Sherri D. Goodman
West Virginia State Bar
Charleston, West Virginia
Attorney for the Complainant
George S. Taylor, pro se
JUSTICE MILLER delivered the opinion of the Court.
1. "The best general definition of the term 'moral
turpitude' is that it imports an act of baseness, vileness or
depravity in the duties which one person owes to another or to
society in general, which is contrary to the usual, accepted and
customary rule of right and duty which a person should follow."
Syllabus Point 2, Committee on Legal Ethics v. Scherr, 149 W. Va.
721, 143 S.E.2d 141 (1965)
2. The writing of a bad check by an attorney ordinarily
does not constitute an act or crime involving moral turpitude.
3. Where an attorney writes a worthless check under
circumstances that demonstrate dishonesty or misrepresentation
under Disciplinary Rule 1-102(A)(4) of the Code of Professional
Responsibility or conduct that adversely reflects on fitness to
practice law under Disciplinary Rule 1-102(A)(6) of the Code of
Professional Responsibility, disciplinary punishment is warranted.
It should be shown that the attorney was either aware that the
check was worthless when it was written or failed to make it good
within a reasonable period of time after the attorney was aware the
account had insufficient funds.
This is a disciplinary proceeding initiated by the
Committee on Legal Ethics of the West Virginia State Bar
(Committee) against George S. Taylor, a member of the Bar. The
Committee asks us to issue a public reprimand to Mr. Taylor based
upon his issuance of a bad check and his subsequent failure to make
payment on the dishonored check. We agree with the Committee's
conclusion that this action constitutes an ethical violation and,
therefore, issue a public reprimand.
The charge before the Committee originally consisted of
three counts. One count dealt with a client whose case had
previously been heard in the magistrate court and had been
dismissed. Mr. Taylor, who had not been involved in the earlier
suit, refiled the suit in circuit court. The circuit court found
the second case to be barred by res judicata. The Committee
dismissed the ethics charge on the ground that Mr. Taylor relied
upon indications in the court file that the original case had been
dismissed without prejudice. We agree with the Committee that Mr.
Taylor's reliance on the court file was reasonable, and, therefore,
his actions did not constitute an ethical violation.
A second charge, which dealt with Mr. Taylor's receipt of $500 for representing the same client, was dismissed by Bar counsel
prior to the evidentiary hearing before the Committee. There is no
record of the reason for this dismissal.
The third count of the disciplinary charge deals with Mr.
Taylor's issuance of a check, for which there were insufficient
funds in his account, to Mullens Travel Agency. Although the
Committee's charge deals only with the check issued to Mullens
Travel, it was not an isolated incident. Mr. Taylor issued several
bad checks in the spring of 1988, and he was subsequently indicted
by a grand jury in October, 1988. The indictment charged three
violations of W. Va. Code, 61-3-39 (1977), for writing worthless
checks. As a result of a plea agreement, two of the counts were
dropped and the third was reduced from a felony to a misdemeanor.
One of the counts which was dropped involved the check to Mullens
The circuit court accepted Mr. Taylor's plea of guilty to
the one misdemeanor count of writing a worthless check and
sentenced him to six months in jail and a fine of $200. Mr.
Taylor's sentence was suspended, and he was placed on probation for
two years, with several conditions: He was to serve thirty days in
jail on the weekends; he was required to make restitution, with ten
percent interest; he was to perform 300 hours of public service and
pay the costs of the criminal proceedings. As of the date of the
Committee hearing, Mr. Taylor had failed to make restitution to any
of the victims.
The Committee found that Mr. Taylor's conduct with regard to the bad checks was in violation of Disciplinary Rule 1-102(A)(3), (4), and (6) of the Code of Professional Responsibility, which was in effect at the time of these occurrences.See footnote 1
There are not many jurisdictions that have dealt with the situation where the bad check was the sole subject matter of the
In Florida Bar v. Davis, 361 So. 2d 159 (Fla. 1978), the attorney had issued three bad checks to his secretary in payment for her legal services. When the attorney was advised that the checks were worthless, he issued a promissory note to his secretary for the amount of the bad checks. However, he failed to pay the note, and, ultimately, a judgment was obtained against him. He
deposited another bad check at his bank. The bank had to obtain a
judgment against the attorney. This judgment was not satisfied.
He was also convicted of the misdemeanor of uttering a worthless
The lawyer in Davis was charged with several ethical
violations similar to those in this case, i.e., illegal conduct
involving moral turpitude, conduct involving dishonesty, fraud,
deceit, or misrepresentation, and conduct that adversely reflected
on his fitness to practice law. The Florida Supreme Court
initially considered whether the attorney's conduct was sufficient
to constitute illegal conduct involving moral turpitude and cited
this definition: "A crime involves moral turpitude if it is an act
of baseness, vileness, or depravity in the private and social
duties which a man owes to his fellow men or to society in
general." 361 So. 2d at 161. This definition is similar to the
one adopted in Syllabus Point 2 of Committee on Legal Ethics v.
Scherr, 149 W. Va. 721, 143 S.E.2d 141 (1965):
"The best general definition of the term 'moral turpitude' is that it imports an act of baseness, vileness or depravity in the duties which one person owes to another or to society in general, which is contrary to the usual, accepted and customary rule of right and duty which a person should follow."
The Florida Supreme Court in Davis also went on to point out that "where there is no intent to defraud . . . the act itself is not so base as to fall into the category of illegal conduct involving moral turpitude." 361 So. 2d at 161. In Committee on
Legal Ethics v. Six, 181 W. Va. 52, ___, 380 S.E.2d 219, 221
(1989), we discussed the concept of moral turpitude at some length
and made this statement: "Where fraud or a fraudulent intent is an
essential element of the offense, the crime is one of moral
turpitude per se."
In Davis, the court found no fraud and, therefore, that
no disciplinary action was warranted based on the moral turpitude
violation. The Florida Supreme Court appeared, in part, to
recognize that under Florida law, conviction of a crime of moral
turpitude would result in disbarment, citing this statement from In
re LaMotte, 341 So. 2d 513, 517 (Fla. 1977):
"'Lawyers are disbarred only in cases where they commit extreme violations involving moral turpitude, corruption, defalcations, theft, larceny or other serious or reprehensible offenses. . . .'
Disbarment is an extreme penalty and should
only be imposed in those rare cases where
rehabilitation is highly improbable." 361 So.
2d at 162.See footnote 4
We agree with the Florida Supreme Court that the writing of a bad check by an attorney ordinarily does not constitute an act
or crime involving moral turpitude. As a consequence, we find that
the respondent's acts are not punishable under DR 1-102(A)(3).
However, this is not to say that disciplinary action is
not appropriate when worthless checks are written by an attorney.
Where an attorney writes a worthless check under circumstances that
demonstrate "dishonesty . . . or misrepresentation" under DR 1-102(A)(4) or "conduct that adversely reflects on [the] fitness to
practice law" under DR 1-102(A)(6), disciplinary punishment is
warranted. It should be shown that the attorney was either aware
that the check was worthless when it was written or failed to make
it good within a reasonable period of time after the attorney was
aware that there were insufficient funds. See Matter of Holloway,
514 N.E.2d 829 (Ind. 1987); In re Johnston, 524 P.2d 593 (Utah
Here, even if we accept the respondent's initial story
that he believed there were sufficient funds in his account when he
wrote the check, his more than two-year delay in repaying the
worthless check cannot be justified. His action, at the very
least, reflects adversely on his fitness to practice law under DR
1-102(A)(6). It requires no extensive discussion to demonstrate
that an attorney who either knowingly issues a bad check or delays
making it good indulges in conduct that dishonors the practice of
law. The public perception of lawyers cannot be served when they
fail to pay their checks.
We find that the Committee's recommendation that the respondent receive a public reprimand, while lenient, is appropriate in this case because the full parameters of our law in this area had not been set by this Court at the time of the Committee's hearing. In the future, we expect the Committee to charge an attorney who has written bad checks with an ethical violation in accordance with the standards set forth herein.
For the foregoing reasons, we issue a public reprimand to
Mr. Taylor. Because restitution has been made since the filing of
this case, we make no further order.
Footnote: 1Disciplinary Rule 1-102 of the Code of Professional Responsibility stated, in pertinent part:
DR 1-102 Misconduct. -- (A) A
lawyer shall not:
* * *
"(3) Engage in illegal conduct
involving moral turpitude.
"(4) Engage in conduct involving
dishonesty, fraud, deceit, or
* * *
"(6) Engage in any other conduct
that adversely reflects on his fitness to
As of January 1, 1989, the Code of Professional Responsibility was revised and readopted as the Rules of Professional Conduct. The present counterpart to DR 1-102(A)(3), (4), and (6) is found in Rule 8.4. See Michie's West Virginia Rules 521 (1991).
Footnote: 2In a number of states, the attorney's bad check charge has been combined with other disciplinary violations, such as misusing his fiduciary account or failing to promptly pay over a client's funds. See, e.g., People v. Horn, 738 P.2d 1186 (Colo. 1987) (preexisting suspension for failure to comply with continuing legal education requirements and failure to respond without good cause to grievance committee); Matter of Slenker, 424 N.E.2d 1005 (Ind. 1981) (unauthorized personal use of estate funds and alcohol abuse); Kentucky Bar Ass'n v. Friedlander, 536 S.W.2d 454 (Ky.), cert. denied, 429 U.S. 922, 50 L. Ed. 2d 290, 97 S. Ct. 321 (1976) (using funds from escrow account of corporation to benefit law firm which owns corporation and issuing bad checks on that account); Matter of Gallow, 110 A.D.2d 920, 487 N.Y.S.2d 168 (1985) (neglect and mishandling of estate); Matter of Purpura, 69 A.D.2d 155, 419 N.Y.S.2d 22 (1979) (forgery and obtaining blank checks from associate without consent); Matter of Spata, 34 A.D.2d 63, 309 N.Y.S.2d 95 (1970) (conversion of funds and neglect of legal matter); State ex rel. Oklahoma State Bar Ass'n v. Smith, 615 P.2d 1014 (Okla. 1980) (commingling of funds, refusal to pay co-counsel, and failure to return client funds within reasonable time); In re Haberlin, 242 Or. 564, 410 P.2d 1022 (1966) (embezzlement of funds from estate of ward).
Footnote: 3See, e.g., In re Gorman, 299 So. 2d 24 (Fla. 1974); In re Hill, 298 So.2d 161 (Fla. 1974); The Florida Bar v. Thomson, 271 So. 2d 758 (Fla. 1972); The Florida Bar v. Kelly, 269 So. 2d 362 (Fla. 1972); The Florida Bar v. Hill, 265 So. 2d 698 (Fla. 1972); The Florida Bar v. Parsons, 238 So. 2d 644 (Fla. 1970); The Florida Bar v. Dingle, 235 So. 2d 479 (Fla. 1970); The Florida Bar v. Budzinski, 217 So. 2d 108 (Fla. 1968); The Florida Bar v. Charles, 201 So. 2d 713 (Fla. 1967); The Florida Bar v. Baxter, 178 So. 2d 699 (Fla. 1965); State ex rel. Florida Bar v. Hill, 132 So. 2d 170 (Fla. 1961).
Footnote: 4Article VI, Section 23 of the By-Laws of the West Virginia State Bar provide for the annulment of an attorney's license for a crime involving moral turpitude. Its relevant provision is: "The license of any attorney shall be annulled and such attorney shall be disbarred upon proof that he has been convicted--(a) of any crime involving moral turpitude or professional unfitness[.]"