Link to PDF Version
THE LAWYER DISCIPLINARY BOARD
GEARY M. BATTISTELLI,
Submitted: September 1, 1999
Filed: October 13, 1999
Amie L. Johnson, Disciplinary Counsel
Michael C. Allen
Office of Disciplinary Counsel Charleston, West Virginia
Charleston, West Virginia Attorney for Geary Battistelli
Attorney for The Lawyer Disciplinary Board
The Opinion of the Court was delivered PER CURIAM.
JUDGE RISOVICH, sitting by temporary assignment.
2. 'A de novo standard applies to a review of the adjudicatory record
made before the [Lawyer Disciplinary Board] as to questions of law, questions of application
of the law to the facts, and questions of appropriate sanctions; this Court gives respectful
consideration to the [Board's] recommendations while ultimately exercising its own
independent judgment. On the other hand, substantial deference is given to the [Board's]
findings of fact, unless such findings are not supported by reliable, probative, and substantial
evidence on the whole record. Syl. pt. 3, Committee on Legal Ethics v. McCorkle, 192 W.
Va. 286, 452 S.E.2d 377 (1994).' Syllabus Point 2, Lawyer Disciplinary Bd. v. McGraw,
194 W. Va. 788, 461 S.E.2d 850 (1995). Syl. Pt. 3, Lawyer Disciplinary Bd. v.
Cunningham, 195 W. Va. 27, 464 S.E.2d 181 (1995).
3. "This Court is the final arbiter of legal ethics problems and must make
the ultimate decisions about public reprimands, suspensions or annulments of attorneys'
licenses to practice law." Syl. Pt. 3, Committee on Legal Ethics of the West Virginia State
Bar v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984), cert. denied, 470 U.S. 1028 (1985).
4. Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary
Procedure enumerates factors to be considered in imposing sanctions and provides as
follows: 'In imposing a sanction after a finding of lawyer misconduct, unless otherwise
provided in these rules, the Court [West Virginia Supreme Court of Appeals] or Board
[Lawyer Disciplinary Board] shall consider the following factors: (1) whether the lawyer has
violated a duty owed to a client, to the public, to the legal system, or to the profession; (2)
whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of the
actual or potential injury caused by the lawyer's misconduct; and (4) the existence of any
aggravating or mitigating factors. Syl. Pt. 4, Office of Lawyer Disciplinary Counsel v.
Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998).
5. Although Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates the factors to be considered in imposing sanctions after a finding of lawyer misconduct, a decision on discipline is in all cases ultimately one for the West Virginia Supreme Court of Appeals. This Court, like most courts, proceeds from the general
rule, that absent compelling extenuating circumstances, misappropriation or conversion by
a lawyer of funds entrusted to his/her care warrants disbarment. Syl. Pt. 5, Office of Lawyer
Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998).
6. Disbarment of an attorney to practice law is not used solely to punish
the attorney but is for the protection of the public and the profession. Syl. Pt. 2, In re
Daniel, 153 W. Va. 839, 173 S.E.2d 153 (1970).
7. 'In deciding on the appropriate disciplinary action for ethical
violations, this Court must consider not only what steps would appropriately punish the
respondent attorney, but also whether the discipline imposed is adequate to serve as an
effective deterrent to other members of the Bar and at the same time restore public
confidence in the ethical standards of the legal profession.' Syllabus Point 3, Committee on
Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987)." Syl. Pt. 5, Committee on
Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989).
8. The repayment of funds wrongfully held by an attorney does not negate a violation of a disciplinary rule. Any rule regarding mitigation of the disciplinary punishment because of restitution must be governed by the facts of the particular case. Syl. Pt. 4, Committee on Legal Ethics of West Virginia State Bar v. Hess, 186 W. Va. 514, 413 S.E.2d 169 (1991).
The Lawyer Disciplinary Board (hereinafter Board) recommends that this
Court take disciplinary action against attorney Geary M. Battistelli (hereinafter
Respondent) based upon his conduct in three separate matters. After thorough review of
the record and arguments of counsel, we agree with the determinations of the Board and
order as follows: The Respondent's law license is hereby annulled; he will be permitted to
apply for reinstatement on January 19, 2004; he will pay all costs of the disciplinary
proceedings incurred incident to Counts I, II, and III in this matter; and he will reimburse the
sum of $2,186 to his clients in the Count I controversy.
The Respondent's conditions of reinstatement, should such reinstatement be
sought, shall include compliance with all provisions imposed by this Court in prior
disciplinary proceedings against the Respondent; compliance with all provisions of the
discipline imposed in this matter; supervised practice for a period of 2 years following his
reinstatement upon terms imposed by the Office of Disciplinary Counsel and approved by
this Court; and maintenance of a policy of professional malpractice liability insurance with
limits of liability as agreed by the Office of Disciplinary Counsel and approved by this Court.
The jury in the underlying civil action awarded $232,000 against Wheeling Hospital in 1993. In lieu of appeal, the parties settled the action for a $220,000 settlement, and Wheeling Hospital paid that settlement amount in April 1994.
Having failed to receive compensation for his services, Dr. Tucker instituted a civil action against the Respondent, dated November 15, 1993, in the Court of Common Pleas in Cuyahoga County, Ohio, seeking recovery of $3,960 plus interest. On December 12, 1994, the Respondent confessed judgment in the Ohio collection action in the amount of $2,960, immediately paying $1,000 of the $3,960 owed. Dr. Tucker filed his complaint with the Office of Disciplinary Counsel in West Virginia on April 10, 1996, alleging that the Respondent had not paid the remaining $2,960 determined to be due to Dr. Tucker. The Respondent tendered a check to Dr. Tucker in the amount of $2,960 at the hearing before the Hearing Panel Subcommittee on February 27, 1998.
From the settlement amount of $220,000, the Respondent withheld $9,096 from the clients' settlement funds. Payments made from 1992 to 1998 to Dr. Tucker total $6,910, leaving the balance of $2,186 apparently over-withheld from client funds. That amount has not been accounted for or explained by the Respondent.
Subsequent to its review of this count, the Board concluded that the
Respondent's failure to pay Dr. Tucker in a timely fashion constituted a violation of Rule
1.15(b) of the Rules of Professional Conduct. Rule 1.15(b) provides as follows:
(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
The Board further concluded that by withholding client money from the settlement, in the amount determined to be $2,186, the Respondent violated Rule 8.4(c) of the Rules, providing as follows: It is professional misconduct for a lawyer to . . . [e]ngage in conduct involving dishonesty, fraud, deceit or misrepresentation.
We agree with the conclusions and recommendations of the Board regarding
appropriate discipline in Count I, the Dr. Tucker claim. While the Respondent contends that
Dr. Tucker failed to file the ethics complaint within the prescribed statute of limitations,See footnote 2
find that Dr. Tucker satisfied the statute of limitations by filing in April 1996. Based upon
the change in counsel from the original attorney to the Respondent, there was apparently
considerable controversy during the underlying proceedings regarding the precise
compensation to which Dr. Tucker was entitled. Further, the Wheeling Hospital settlement
payment was not tendered until April 1994, and no exact amount of money was determined
to be owed until the Respondent confessed judgment in the Ohio court during the civil action
instituted by Dr. Tucker against the Respondent. Consequently, the April 1996 filing of the
ethics complaint was within the 2-year statute of limitations.
The Respondent did not pay Dr. Tucker the entirety of his fee until February
1998, during a Subcommittee hearing on the ethics complaint. We find that such overt and
conspicuous failure to pay Dr. Tucker is violative of Rule 1.15(b) of the Rules of
Professional Conduct, as quoted above.
In Lawyer Disciplinary Board v. Kupec, 202 W. Va. 556, 505 S.E.2d 619 (1998), we exhaustively evaluated the issue of misappropriation of client funds by an attorney and recognized as follows:
The term misappropriation can have various meanings. In fact, the misuse of another's funds is generally characterized as misappropriation or conversion. Black's defines misappropriation as "[t]he unauthorized, improper, or unlawful use of funds or other property for purposes other than that for which intended ... including not only stealing but also unauthorized temporary use for [the] lawyer's own purpose, whether or not he derives any gain or benefit therefrom." Black's Law Dictionary (6th ed.1990). See In re Wilson, 81 N.J. 451, 409 A.2d 1153, 1155 n. 1 (1979) (defining misappropriation as "any unauthorized use by the lawyer of client's funds entrusted to him including not only stealing, but also unauthorized temporary use for the lawyer's own purpose, whether or not he derives any personal gain or benefit therefrom").
202 W. Va. at 568, 505 S.E.2d at 631.
We further explained that [r]estitution is not a defense to misappropriation.
In syllabus point four of Committee on Legal Ethics of West Virginia State Bar v. Hess, 186
W. Va. 514, 413 S.E.2d 169 (1991), we explained: The repayment of funds wrongfully held
by an attorney does not negate a violation of a disciplinary rule. Any rule regarding
mitigation of the disciplinary punishment because of restitution must be governed by the
facts of the particular case.See footnote 3
We acknowledged in Hess that "[i]f a lawyer converts [others']
monies to his or her own use without authorization, the attorney is subject to a disciplinary
charge. Such conduct obviously reflects a dishonest and deceitful nature which violates the
general precept that an attorney should avoid dishonesty or deceitful conduct." 186 W. Va.
at 517, 413 S.E.2d at 172.
According to the findings of the Board, as explained above, an additional
$2,186 in client funds has still not been paid to the clients by the Respondent. We order the
Respondent to reimburse his client, the estate of Mrs. Maruca, the sum of $2,186.
Mr. O'Dell filed the complaint alleging an ethical violation on May 18, 1995.
As of that date, the Respondent had repaid $3,850 to Mr. O'Dell. The Hearing Panel
Subcommittee heard Mr. O'Dell's testimony by video deposition in February 1998. During
that video deposition, the Respondent presented Mr. O'Dell with a check representing the
remaining balance of the loan.
The Subcommittee found that although the Respondent maintained that the
attorney-client relationship terminated immediately prior to his request for a loan, the
Respondent still planned to act in the capacity of Mr. O'Dell's attorney in his application for
attorney fees. The Subcommittee further found that a determination of whether an attorney-
client relationship continues to exist should be viewed from the perspective of the client,
rather than the attorney, and that the attorney-client relationship was still in existence at the
time the loan was consummated.
The Subcommittee concluded that the Respondent had violated the following rules: Rule 1.8(a) of the Rules of Professional ConductSee footnote 5 5 by obtaining a loan with no security interest protecting the client; and Rule 8.4(c), as quoted above, by failing to explain the facts surrounding the security interest, by including inaccurate and incomplete language in the assignment, and by failing to pay back the loan in a timely manner.
The Respondent claims that Rule 2.14 of the Rules of Lawyer Disciplinary Procedure, as quoted above, prohibits this action against him since more than 2 years passed between the time of the alleged misconduct and the filing of the complaint. The Subcommittee found that there was no evidence that Mr. O'Dell knew or in the exercise of reasonable diligence should have known that the Respondent's conduct violated the Rules until he consulted another attorney based upon the Respondent's failure to repay the loan.
We agree with the recommendations of the Board regarding the appropriate
discipline to be imposed in the O'Dell claim. The statute of limitations was satisfied since
Mr. O'Dell neither knew nor reasonably should have known of the ethical violation until he
consulted a different attorney in August 1993; the complaint was then filed in May 1995.
Further, we agree with the Board that the attorney-client relationship was still
in existence at the time of loan was requested. Courts have struggled with the concept of the
parameters of the attorney-client relationship, its initiation, and its conclusion. "What
constitutes an attorney-client relationship is a rather elusive concept." Folly Farms I, Inc. v.
Trustees, 387 A.2d 248, 254 (Md. 1978). A rudimentary answer to that query would
perhaps propose that the relationship terminates where the purpose of an attorney's
employment has been accomplished. . . . Schwarze v. May Department Stores, 360 S.W.2d
336, 338 (Mo.App.1962). Acceptance of that simple standard, however, would detrimentally
overlook a fundamental maxim of the attorney-client relationship. Having obtained loans
from clients, an attorney in In re Imming, 545 N.E.2d 715 (Ill. 1989), contended that there
was a definite point in time where [he] ceased rendering legal services to the clients before
the loans were made. Id. at 721. The court recognized, however, that some of the clients
had directly invested the proceeds of the legal work respondent performed for them. . . .
Id. All of the loans in these five situations, therefore, occurred so close in time to the
respondent's legal services to each client as to cause the client to believe that the respondent's
business relations were a continuation of the attorney-client relationship. Id.
In Hunniecutt v. State Bar of California, 748 P.2d 1161 (Cal. 1988), the court explained as follows:
A client who receives the proceeds of a judgment or settlement will often place great trust in the investment advice of the attorney who represented him in the matter. This is especially likely when the client is unsophisticated and a large amount of money is involved. This trust arises directly from the attorney-client relationship, and abuse of this trust is precisely the type of overreaching that rule 5-101 is designed to prevent. Accordingly, when an attorney enters into a transaction with a former client regarding a fund which resulted from the attorney's representation, it is reasonable to examine the relationship between the parties for indications of special trust resulting therefrom. We conclude that if there is evidence that the client placed his trust in the attorney because of the representation, an attorney-client relationship exists for the purposes of rule 5-101 even if the representation has otherwise ended.
Id. at 166. The Hunniecutt court concluded that there is an attorney-client relationship as a matter of law where a client receives settlement proceeds and is then solicited by the attorney to invest in the attorney's business. Id at 1165-66.
As the Supreme Court of Minnesota has explained, "[s]ince the duty of fidelity
and good faith arising out of the confidential relation of attorney and client is founded, not
on the professional relation per se, but on the influence which the relation creates, such duty
does not always cease immediately upon the termination of the relation but continues as long
as the influence therefrom exists." Colstad v. Levine, 67 N.W.2d 648, 654-55 (Minn. 1954).
The personal perception of the client is also significant to the determination of whether the attorney-client relationship is in continued existence. Because the existence of any attorney-client relationship turns largely on the client's subjective belief that it exists, this court has held that an unsophisticated client who is asked for a loan by her attorney out of her settlement proceeds is justified in believing the lawyer is acting as her attorney and guardian of her interests. Louisiana State Bar Assoc. v. Williams, 498 So.2d 727, 728 (La. 1986), citing Louisiana State Bar Assoc. v. Bosworth, 481 So.2d 567 (La. 1986). Likewise, in Matter of McGlothlen, 663 P.2d 1330 (Wash. 1983), the court found that [t]he existence of an attorney-client relationship turns largely on the client's subjective belief that it exists.
Id. at 1334. See E. Cleary, McCormick on Evidence § 88 at 179 (2d ed. 1972).
An illuminating hypothetical was postulated in In re Drake, 642 P.2d 296 (Or.
1982). An attorney had been accused of borrowing $10,000 from his client, in violation of
several attorney disciplinary rules, and had contended the attorney-client relationship had
terminated prior to the procurement of the loan. In holding that the attorney-client
relationship had not ceased, the court advanced the following, quoting from the Disciplinary
Board in the underlying investigation:
If Accused's contention is to be accepted, then the simple
termination of a case creates an opportunity or period in which
an attorney is freed from the rules governing attorney-client
relationships. During this period the attorney would be free to
use the rapport and confidence he had developed with his former
client to persuade the former client to do things that would
otherwise be prohibited by disciplinary rules governing client
relationships. After these actions were completed, the attorney
could then freely enter into a new relationship with the former
client. The only important thing would be that the paperwork
showing opening and closing dates of cases be kept in order.
The attorney would point to these as proof the aggrieved party
was not a client during the period in question.
Id. at 301-302.
The elements of trust, rapport, and gratitude were present in the case sub judice
and compel our conclusion that the attorney-client relationship had not terminated when the
loan was procured. Based upon our review of this count, we agree with the disciplinary
sanctions recommended by the Board.
As a result of a 6½ year delay by the Respondent in filing a response to the
employer's motion to dismiss, the passage of time, and the difficulty in locating defense
witnesses, the circuit court granted the employer's motion to dismiss on May 12, 1993. The
Respondent filed a notice of intent to appeal the dismissal on June 3, 1993, and informed Mr.
Smith that he planned to file a Petition for Appeal. He later assured Mr. Smith that an appeal
had been filed. Despite Mr. Smith's repeated attempts to gather information regarding the
progress of his appeal, the Respondent informed Mr. Smith that these things take time and
that the Respondent would contact Mr. Smith when he heard something regarding the appeal.
In April 1995, Mr. Smith personally telephoned this Court and learned that no appeal had
The Smiths filed a complaint with the Office of Disciplinary Counsel on June
19, 1995. In responding to the complaint, the Respondent indicated that he had failed to file
the appeal because it would not have been successful; yet he had never communicated this
concern to the client. He acknowledged that he put his head in the sand when he realized
that his client had no case.
The Subcommittee found the following violations: Rule 1.2(a)See footnote 7
to file a petition for appeal when his clients had directed him to do so; Rule 1.3See footnote 8
failure to diligently pursue the appeal; Rule 1.4See footnote 9
through failure to inform Mr. Smith of the
status of his suit and by failing to communicate his view that the appeal would ultimately
be unsuccessful; Rule 3.2See footnote 10
through failure to expedite litigation through an appeal; and Rule
8.4(c), as quoted above, through failure to file an appeal and misrepresenting the status of the
case to the client.See footnote 11
While the Respondent again raises a statute of limitations issue regarding the
extent to which Mr. Smith was aware of the ethical violations several years prior to the filing
of the complaint, that issue is fittingly resolved by referencing the client's telephone call to
this Court in April 1995, during which he learned that no appeal had been filed. That was
the definitive point at which lingering suspicion regarding delayed progress became certain
realization of deception and misrepresentation. The ethics complaint was thereafter filed in
June 1995. The Respondent's actions in this count indicate neglect of client affairs, repeated
lying to the client about the status of the case, and failure to act with reasonable diligence in
representing a client.
In fashioning the appropriate disciplinary action in this case, this Court is
cognizant of the Respondent's prior suspension from the practice of law based upon
unrelated disciplinary proceedings.See footnote 12
That suspension commenced on May 18, 1995, was
scheduled to continue for a period of 2 years and 9 months, and would have terminated on
February 18, 1998. In annulling the Respondent's license in this matter, we find that the
Respondent should be permitted to apply for reinstatement 5 years from the date upon which
the Board recommended the annulment of his license on January 19, 1999. Thus, the date
upon which the Respondent could seek reinstatement would be January 19, 2004.
It is so Ordered.
be assigned as collateral to secure the loan.
by a client's decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.