IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2006 Term
LAWYER DISCIPLINARY BOARD,
JOHN PATRICK BALL, A MEMBER OF THE
WEST VIRGINIA STATE BAR,
MONONGALIA COUNTY BAR ASSOCIATION,
Lawyer Disciplinary Proceeding
Submitted: May 23, 2006
Filed: June 15, 2006
Lawrence J. Lewis
William C. Brewer
Office of Disciplinary Counsel Brewer & Giggenbach
Charleston, West Virginia
Morgantown, West Virginia
Attorney for Complainant
Patrick D. Deem
Allan N. Karlin
Steptoe & Johnson
Allan N. Karlin &
Clarksburg, West Virginia
Morgantown, West Virginia
Charles J. Crooks
Morgan Palmer Griffith
Jackson Kelly, PLLC
Charleston, West Virginia
Morgantown, West Virginia Attorneys for Respondent
Attorneys for Intervenor
CHIEF JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE STARCHER, deeming himself disqualified, did not participate in the decision
of this opinion.
JUDGE JENNIFER BAILEY WALKER, sitting by temporary assignment.
SYLLABUS BY THE COURT
1. A rebuttable presumption of undue influence by an attorney arises when
(1) there is an attorney-client relationship with the testator at the time a will was prepared, (2)
the attorney actively participated in preparation of the will, and (3) the attorney, or a person
who is a parent, child, sibling or spouse to the attorney but not to the testator, receives a
bequest under the will.
2. Lawyers who engage in the practice of law in West Virginia have a duty
to know the Rules of Professional Conduct and to act in conformity therewith. Consequently,
a claim of lack of knowledge of any prohibition or duty imposed under the Rules is no defense
in a lawyer disciplinary proceeding.
3. The Rules of Professional Conduct cannot be waived by a client, so as to
permit a lawyer to do that which the Rules prohibit, unless the Rules themselves provide a
specific exception allowing waiver. The Rules reflect the high standards by which all lawyers
must abide regardless of the wishes of a client.
4. When this Court, in a lawyer disciplinary proceeding, issues an order that
requires an attorney to make restitution to his or her client, the order may be enforced in two
ways: (1) by the Office of Disciplinary Counsel seeking a contempt order from this Court, or
(2) through the prosecution of a separate lawsuit by the client or a duly authorized
representative of the client.
5. A lawyer engaging in clear and serious violation of duty to a client may
be required to forfeit some or all of the lawyer's compensation for the matter. Considerations
relevant to the question of forfeiture include (1) the gravity and timing of the violation, (2) its
willfulness, (3) its effects on the value of the lawyer's work for the client, (4) any other
threatened or actual harm to the client, and (5) the adequacy of other remedies.
This is a lawyer disciplinary proceeding against John Patrick Ball (hereinafter
referred to as Mr. Ball), by the Office of Disciplinary Counsel (hereinafter referred to as
the ODC), on behalf of the Lawyer Disciplinary Board. A Hearing Panel Subcommittee
(hereinafter the Panel), determined that Mr. Ball committed five violations of the Rules of
Professional Conduct. (See footnote 1) Consequently, the Panel and the ODC have recommended the
following: (1) that Mr. Ball remain on inactive status and not practice law for a period of not
less than five years; (See footnote 2) (2) that after five years Mr. Ball must file a petition for reinstatement to
active status; (3) that Mr. Ball reduce his annual fee charged for overseeing funds donated to
the WVU Foundation under the wills of Vivian D. Michael and Gladys G. Davis to 0.25% of
the market value of the funds; (4) that Mr. Ball's executor fee from the Estate of Earle L.
Elmore be not more than 5%; (5) that Mr. Ball forego any oversight fee for funds donated to
the WVU Foundation under the Elmore Estate; and (6) that upon reinstatement to active status
Mr. Ball must pay the WVU Foundation $500,000.
Mr. Ball does not object to the Panel's recommendations. The Monongalia
County Bar Association (hereinafter the Bar), which was permitted to intervene in this
matter, filed a brief asking this Court to reject the recommendations and require Mr. Ball to
make full restitution of all monies obtained in violation of the Rules of Professional Conduct.
After a thorough review of the briefs and record in this proceeding, and consideration of oral
arguments, we reject the Panel's recommendations. As is more fully set out in the Conclusion
section of this opinion, Mr. Ball's license to practice law in this state is annulled, along with
other specific sanctions herein imposed.
On July 6, 2004, a six count statement of charges was filed against Mr. Ball by
an investigative panel. The charges arose as a result of information being sent anonymously
to the ODC regarding wills prepared by Mr. Ball for two deceased clients, Vivian D. Michael
(hereinafter Ms. Michael) and Gladys G. Davis (hereinafter Ms. Davis). (See footnote 3)
underlying each of the five counts are summarized below.
. On November 7, 1996, Ms. Michael and Ms. Davis went to Mr.
Ball's office and executed their wills, which were prepared by Mr. Ball. (See footnote 4)
The will of Ms.
Michael bequeathed an automobile she owned to Mr. Ball. The wills of both sisters left all
tangible personal property, including personal effects, household goods and jewelry to Mr.
Ball's wife. Ms. Michael died on January 6, 1998. Ms. Davis died on January 3, 2001. The
value of the items bequeathed to Mr. Ball and to his wife totaled $64,000. (See footnote 5)
As a result of Mr. Ball's preparation of wills giving him and his wife
testamentary gifts from clients who were not related to either of them, the Panel found that
Mr. Ball violated Rule 1.8(c). (See footnote 6)
. On April 30, 1998, about four months after the death of Ms.
Michael, Mr. Ball transported Ms. Davis to Huntington Bank in Morgantown. The purpose of
the trip was to have Ms. Davis change the name of the beneficiary of an annuity she owned. The
previous beneficiary was her deceased sister, Ms. Michael. While at the bank, Ms. Davis
designated Mr. Ball's two adult children, Whitney L. Ball and John P. Ball, Jr., as the new
beneficiaries of the annuity. Mr. Ball knew in advance that his two sons would be named
beneficiaries of the annuity. In fact, Mr. Ball provided Ms. Davis with the addresses and social
security numbers of his sons for the purpose of making the changes. When Ms. Davis died in
2001, the annuity was valued at $487,783.13. This money was distributed in equal amounts to
Mr. Ball's two sons after Ms. Davis' death.
The Panel found that Mr. Ball's conduct in connection with the change in
beneficiaries of the annuity violated Rule 1.7(b), as it was contrary to his fiduciary obligations
to Ms. Davis, and his representation of her interests was materially limited by his own
interests. (See footnote 7)
. Mr. Ball was named the executor of the wills of Ms. Michael
and Ms. Davis. (See footnote 8)
The wills of both sisters, as drafted by Mr. Ball, stated that the executor would
receive compensation in the amount of seven and one-half percent of the total gross estate. At
the time each will was drafted by Mr. Ball the generally accepted maximum charge for
administering an estate was 5% of the total gross estate. At the death of Ms. Michael, her
estate was valued at $10,052,223.18. At the time of Ms. Davis' death, her estate was valued
at $11,495,391.00. As the executor of Ms. Michael's estate, Mr. Ball received $785,996. Mr.
Ball received $837,362 as executor of Ms. Davis' estate. (See footnote 9)
The Panel found Mr. Ball's fee of seven and one-half percent of the total gross
estate of both sisters to be excessive and unreasonable, and violative of Rule 1.5(a). (See footnote 10)
. The wills of Ms. Michael and Ms. Davis provided for funds
from their respective estates to be given to the West Virginia University Foundation
(hereinafter the Foundation) for specific purposes. (See footnote 11)
Both wills provided that Mr. Ball, as
the executor of each will, would have some oversight of the funds given to the Foundation. In
addition, both wills allowed Mr. Ball to set the fee he would charge for overseeing the gift to
the Foundation. Moreover, after the death of Ms. Michael, Mr. Ball drafted a Codicil to the
will of Ms. Davis. The Codicil provided that if Mr. Ball was unable to act as executor of Ms.
Davis' estate and overseer of the gift to the Foundation, his wife would be appointed. Should
Mrs. Ball be unable to fulfill her duties as executrix, then Mr. Ball's law partner and another
attorney would be jointly appointed. The Codicil was signed by Ms. Davis.
The total amount of funds bequeathed to the Foundation was $18,400,000. Mr.
Ball negotiated an agreement with the Foundation to obtain an annual fee of 1% of the market
value of the respective funds bequeathed by each sister. This agreement, as it pertained to Ms.
Davis' funds, was signed by Mr. Ball, his wife, and the other substitute executors to Ms. Davis'
estate. Subsequent to signing the agreement, Mr. Ball received a total of $336,889.61 from
The Panel found that Mr. Ball violated Rule 1.7(b) when he drafted the wills to
give himself complete discretion to set the fee for his ministerial work in overseeing the funds
bequeathed to the Foundation and in drafting the Codicil to name is wife as substitute executor
for Ms. Davis' estate. (See footnote 12)
Additionally, the Panel found that Mr. Ball violated Rule 1.5(a) by
negotiating an excessive and unreasonable fee of 1% of the market value of the respective
funds bequeathed to the Foundation. (See footnote 13)
. Mr. Ball prepared a will for Earle L. Elmore (hereinafter Mr.
Elmore), which was executed on September 17, 1997. (See footnote 14)
The will appointed Mr. Ball as
executor and authorized him to receive compensation of 7½ % of the total gross estate. Mr.
Elmore died on May 4, 2003, leaving an estate valued at $1,388,579.
When the statement of charges was filed, it was unclear whether Mr. Ball had
obtained his fee as executor of Mr. Elmore's estate. Consequently, the statement of charges
alleged that Mr. Ball violated Rule 1.5(a) if he had obtained the excessive fee. (See footnote 15)
his conduct violated Rule 8.4(a) had he not received the fee. (See footnote 16)
The Panel has recommended dismissal of Count V of the statement of charges,
based solely upon a stipulation by Mr. Ball and the ODC to dismiss the count. Even so, the
Panel has recommended that Mr. Ball not be allowed to receive more than 5% of the estate as
Sixth Charge. The will of Mr. Elmore provided for the bulk of his estate to be
given to the Foundation for specific purposes. The will also provided that Mr. Ball, as the
executor of the estate, have some oversight of the funds given to the Foundation. In addition,
the will allowed Mr. Ball to set the annual fee he would charge for overseeing the gift to the
Foundation. The will suggested that the fee could be one percent of the gross assets of the
When the statement of charges was filed it was unclear whether Mr. Ball had
obtained a fee (and in what amount) for his ministerial work overseeing the funds bequeathed
to the Foundation. Consequently, the statement of charges alleged that Mr. Ball violated Rule
1.7(b) if he had obtained the excessive fee. (See footnote 17) Alternatively, his conduct violated Rule 8.4(a)
if he had not received the fee. (See footnote 18)
The Panel has recommended dismissal of Count VI of the statement of charges,
based solely upon a stipulation by Mr. Ball and the ODC to dismiss the count. Even so, the
Panel has recommended that Mr. Ball receive no oversight fee for the funds bequeathed to the
STANDARD OF REVIEW
The standard of review for a lawyer disciplinary proceeding was set out in
syllabus point 3 of Committee on Legal Ethics v. McCorkle
, 192 W. Va. 286, 452 S.E.2d 377
(1994), as follows:
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, Lawyer Disciplinary Bd. v. Cunningham
, 195 W. Va. 27, 464 S.E.2d 181
(1995). Additionally, we have made clear that [t]his 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).
As previously indicated, the Panel's recommended findings and sanctions were
adopted from a stipulation by Mr. Ball and the ODC. Consequently, neither Mr. Ball nor ODC
contest the violations found by the Panel and its recommended sanctions. In light of this
situation, we will not disturb the Panel's determination that, with respect to matters involving
the estates of Ms. Michael and Ms. Davis, Mr. Ball engaged in conduct that violated five
provisions of the Rules of Professional Conduct. However, the Bar argues that the
recommended sanctions should be rejected because it is inconsistent with the purpose of
lawyer disciplinary proceedings. This Court has held that in determining the imposition of
lawyer disciplinary sanctions we will 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
Syl. pt. 4, in part, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513
S.E.2d 722 (1998). Prior to discussing each of the Jordan factors, we must first examine the
disposition of the charges involving the Elmore will.
A. Recommendation to Dismiss Charges Involving the Elmore Will
As we previously noted, the will of Mr. Elmore provided that Mr. Ball would
receive a 7½ % fee as executor of his estate, and that Mr. Ball could set an annual fee for
overseeing funds bequeathed to the Foundation, which fee was suggested as being 1% of the
gross assets of the funds. The record indicates that when the statement of charges was filed
involving Mr. Elmore's will, Mr. Ball had obtained no fees as executor of Mr. Elmore's estate,
nor had he received any fees for overseeing the gift Mr. Elmore bequeathed to the Foundation.
It also appears that at the time of the hearing before the Panel such fees had not been collected.
Insofar as Mr. Ball agreed to reduce his executor fee for Mr. Elmore's estate and to forego any
fee for overseeing the gift to the Foundation, the Panel recommended dismissing the charges
involving Mr. Elmore's will. Simply put, we reject this recommendation.
We have held that '[t]his Court may in appropriate circumstances exercise its
inherent supervisory power to review attorney disciplinary charges for which the [Hearing
Panel] has not recommended discipline.' Lawyer Disciplinary Bd. v. Kupec
, 202 W. Va. 556,
568, 505 S.E.2d 619, 631 (1998) (quoting Syl. pt. 3, Committee on Legal Ethics of West
Virginia State Bar v. Douglas
, 179 W. Va. 490, 370 S.E.2d 325 (1988)). Further, in Kupec
we held that [s]hould [this] Court reject the recommendation of dismissal of a formal charge
by the Hearing Panel . . ., an evidentiary record is necessary for the Court to determine the
proper disposition of the charge. Kupec
, 202 W. Va. at 567, 505 S.E.2d at 630. In the instant
case, the record is sufficient for this Court to determine the proper disposition of charges
involving the Elmore will. In doing so, we are mindful that charges of lawyer misconduct must
be proven by clear and convincing evidence. See
Syl. pt. 1, in part, Lawyer Disciplinary Bd.
, 194 W. Va. 788, 461 S.E.2d 850 (1995) (Rule 3.7 of the Rules of Lawyer
Disciplinary Procedure . . . requires the Office of Disciplinary Counsel to prove the
allegations of the formal charge by clear and convincing evidence.).
The uncontested evidence in this case illustrates that Mr. Ball drafted a will for
Mr. Elmore naming Mr. Ball as the executor. The will also provided that Mr. Ball would
receive a seven and one-half percent fee as executor of the estate. Even though Mr. Ball had
yet to receive the fee when the charges were filed, his conduct in drafting the will providing
for an excessive fee of 7½ % was an attempt to violate the Rules of Professional Conduct.
Therefore, his conduct violated Rule 8.4(a). (See footnote 19)
Additionally, Mr. Elmore's will permitted Mr. Ball to oversee the bequeath to
the Foundation for a fee to be determined by Mr. Ball, with a suggestion of 1% of the gross
assets of the funds. Again Mr. Ball had not received this fee when the charges were brought.
However, his conduct in drafting the will suggesting an excessive fee of 1% was an attempt to
violate the Rules of Professional Conduct. Therefore his conduct violated Rule 8.4(a). (See footnote 20)
will now consider Mr. Ball's conduct involving all violations under the Jordan
B. Violation of a Duty
Under the first factor set out in Jordan
we must determine whether Mr. Ball's
conduct violated a duty owed to his clients, to the public, to the legal system or to the
profession. This Court has recognized that [o]ur profession is founded, in part, upon the
integrity of the individual attorney in his dealings with the public in general and his clients in
particular. Office of Lawyer Disciplinary Counsel v. Tantlinger
, 200 W. Va. 542, 548, 490
S.E.2d 361, 367 (1997). Further, [t]he relation between attorney and client is a fiduciary
relation of the very highest character. Estate of Auen
, 30 Cal. App. 4th 300, 309 (1994)
(superseded by statute). The court in Iowa Supreme Court Board of Professional Ethics and
Conduct v. Winkel
, addressed the issue of an attorney receiving a bequest from a will that
It is no defense that the idea for the bequest originates
with the client or that the bequest was not actually enjoyed. It is
certainly no answer that the lawyer exercised no undue influence
in precipitating such a bequest. Even a strong desire by the client
to bequeath property to a lawyer will not justify the lawyer in
drafting such a will. Lawyers who would enjoy the right to inherit
property from persons disposed to favor them must take extreme
pains to distance themselves from any professional activity
incident to establishing the bequest. All professional advice and
legal work in such an undertaking must come from an independent
lawyer of the client's, not the initial lawyer's, choosing.
541 N.W.2d 862, 864 (Iowa 1995). Cf. Frye v. Norton, 148 W. Va. 500, 514, 135 S.E.2d 603,
612 (1964) (no undue influence or other impropriety when attorney received bequest from will
of client because attorney did not participate in drafting of will).
As a result of the high standard placed upon the fiduciary relationship between
an attorney and his/her client, we adopt the rule followed by other courts and hold that a
rebuttable presumption of undue influence by an attorney arises when (1) there is an
attorney-client relationship with the testator at the time a will was prepared, (2) the attorney
actively participated in preparation of the will, and (3) the attorney, or a person who is a parent,
child, sibling or spouse related to the attorney but not to the testator, receives a bequest under
the will. (See footnote 21) See Estate of Auen, 30 Cal. App. 4th at 311. See also Clarkson v. Whitaker, 657
N.E.2d 139, 144 (Ind. Ct. App. 1995) (When an attorney drafts a will that includes a bequest
or provides a benefit to the attorney or one of his family members, the will is presumed to be
void for undue influence or fraud.); In re Fankboner v. Pallatin, 638 So. 2d 493, 495
(Miss. 1994) (Suspicious circumstances, along with the confidential relationship, also give
rise to a presumption of undue influence.); Matter of Henderson, 80 N.Y.2d 388, 394 (1992)
([A] question of undue influence often arises when a person in a position of trust and
confidence becomes the object of the other party's generosity. Such scrutiny is especially
important when attorney-beneficiaries are involved, since the intensely personal nature of the
attorney-client relationship, coupled with the specialized training and knowledge that attorneys
have, places attorneys in positions that are uniquely suited to exercising a powerful influence
over their clients' decision.); Krischbaum v. Dillon, 567 N.E.2d 1291, 1296 (Ohio 1991)
(Because of the peculiar susceptibility of a client/testator to the influence of the attorney he
consults in connection with the preparation of his will, we agree with those jurisdictions that
have recognized that a refutable presumption arises whenever an attorney, unrelated to the
testator by blood or by marriage, assists in the preparation of a will in which he is a named
beneficiary.); In re Disciplinary Proceeding Against Miller, 66 P.3d 1069, 1080 (Wash.
2003) (The RPC prohibits lawyers from drafting wills in which they receive substantial gifts
because the practice is inherently permeated with the dangers of self-dealing and undue
influence.). (See footnote 22)
The evidence in this case clearly established that Mr. Ball drafted three wills in
which he gave himself excessive fees as an executor, drafted two wills that improperly
conveyed property to himself and his wife, and assisted in changing a client's annuity to benefit
his sons. This conduct satisfies the requirements for invoking the rebuttable presumption of
undue influence by Mr. Ball in drafting and assisting in the preparations of documents for Ms.
Michael, Ms. Davis and Mr. Elmore. However, Mr. Ball asserts that the issue of undue
influence was never alleged in this case. The record supports this defense. Nevertheless, for
the purposes of our disposition of the case, we need not remand this issue for Mr. Ball to
present whatever evidence he can muster to rebut the presumption of undue influence arising
from his conduct. (See footnote 23) The ultimate disposition of this case rests squarely upon our finding that
Mr. Ball's conduct violated the duty he owed to his clients not to charge excessive fees, draft
wills leaving bequests for himself and his wife, and assisting in making his sons beneficiaries
to a client's annuity.
C. Nature of Conduct
Under the second factor set out in Jordan
we must determine whether Mr. Ball
acted intentionally, knowingly or negligently in violating the Rules of Professional Conduct.
Mr. Ball has asserted that his misconduct was not intentional because he was not aware that he
violated the Rules of Professional Conduct when he engaged in the misconduct. The ODC
disputes this assertion and argues that Mr. Ball's misconduct was intentional. We agree with
It has been appropriately observed that although lawyers who have drafted a
bequest to themselves often claim lack of knowledge of the ethics prohibition, ignorance is
no defense to a disciplinary charge. ABA/BNA, Lawyers' Manual on Professional Conduct,
p. 51:603 (2006). See also In re Grevemberg
, 838 So. 2d 1283, 1288 (La. 2003) ([I]t is
well-settled that ignorance of the Disciplinary Rules which set forth the minimum level of
conduct below which no lawyer may fall without being subject to disciplinary action is no
excuse.) (internal quotations and citation omitted); Attorney Grievance Comm'n of
Maryland v. Stein
, 819 A.2d 372, 379 (Md. 2003) (Respondent's defense of ignorance of
the rule is no defense at all. Lawyers . . . are deemed to know the Rules of Professional
Conduct and have the obligation to act in conformity with those standards as a requirement to
practice law.). In view of the forgoing authorities, we expressly hold that lawyers who engage
in the practice of law in West Virginia have a duty to know the Rules of Professional Conduct
and to act in conformity therewith. Consequently, a claim of lack of knowledge of any
prohibition or duty imposed under the Rules is no defense in a lawyer disciplinary proceeding.
The Rules of Professional Conduct speak for themselves. To the extent that a
lawyer ignores the well-reasoned prohibitions and duties under those Rules, he/she does so at
his/her own peril. Mr. Ball chose to ignore the Rules. He now attempts to cloak his
misconduct in the guise of innocent mistakes. We find Mr. Ball's position to be insulting to
the integrity of the Rules and to this Court. Rather than taking full responsibility for his
misconduct by admitting what the evidence conclusively establishes, Mr. Ball argues that
although he practiced law for over thirty years, he did not know that charging excessive fees,
drafting self-aggrandizing wills and assisting a client to enrich his children constituted conduct
that was prohibited by the Rules. Cf. Lawyer Disciplinary Bd. v. Moore
, 214 W. Va. 780, 798,
591 S.E.2d 338, 356 (2003) (Davis, J., concurring) ([I]t is this Court's duty to the public and
the bar to deny reinstatement of a law license when there is no admission to and acceptance
of responsibility for the conduct which caused disbarment.). As the ODC appropriately noted,
[t]he suggestion by [Mr. Ball] that his conduct was not intentional is without merit.
D. Amount of Injury
Under the third factor set out in Jordan
we must determine whether there was
any actual or potential injury caused by Mr. Ball's misconduct. The record in this case
supports the finding of actual and potential monetary injury to the estates of Ms. Michael, Ms.
Davis and Mr. Elmore. Mr. Ball's misconduct resulted in him actually obtaining over two
million dollars and potentially receiving additional millions of dollars. (See footnote 24)
Obviously, the actual
and potential monetary loss to his clients' estates is overwhelming.
E. Mitigating and Aggravating Circumstances
Under the fourth factor set out in Jordan
we must determine the existence of
any mitigating or aggravating circumstances surrounding Mr. Ball's misconduct. We will
address each issue separately.
(1) Mitigating circumstances
. Mr. Ball contends that the Panel's disciplinary
recommendation is appropriate because of mitigating circumstances surrounding the
violations. This Court has held that [m]itigating factors in a lawyer disciplinary proceeding
are any considerations or factors that may justify a reduction in the degree of discipline to be
imposed. Syl. pt. 2, Lawyer Disciplinary Bd. v. Scott
, 213 W. Va. 209, 579 S.E.2d 550
(2003). In Scott
, we outlined some considerations that are viewed as mitigating:
Mitigating factors which may be considered in
determining the appropriate sanction to be imposed against a
lawyer for violating the Rules of Professional Conduct include:
(1) absence of a prior disciplinary record; (2) absence of a
dishonest or selfish motive; (3) personal or emotional problems;
(4) timely good faith effort to make restitution or to rectify
consequences of misconduct; (5) full and free disclosure to
disciplinary board or cooperative attitude toward proceedings;
(6) inexperience in the practice of law; (7) character or
reputation; (8) physical or mental disability or impairment; (9)
delay in disciplinary proceedings; (10) interim rehabilitation;
(11) imposition of other penalties or sanctions; (12) remorse;
and (13) remoteness of prior offenses.
Syl. pt. 3, Scott
In this proceeding Mr. Ball cites as mitigating factors (1) the absence of any
prior disciplinary action since his admission to the Bar in 1963, (2) the absence of any
dishonest or selfish motive, (3) a willingness to forego certain fees that would exceed one
million dollars over his expected lifetime, (4) his cooperation during the proceedings, and (5)
his remorse. We believe that the record supports four of the five mitigating factors argued by
Mr. Ball. The record does not support Mr. Ball's contention that his conduct lacked a
dishonest or selfish motive. This issue is discussed in the aggravating circumstances section
of the opinion.
(2) Aggravating circumstances
. This Court has held that [a]ggravating factors
in a lawyer disciplinary proceeding are any considerations or factors that may justify an
increase in the degree of discipline to be imposed. Syl. pt. 4, Lawyer Disciplinary Bd. v.
, 213 W. Va. 209, 579 S.E.2d 550 (2003). In this proceeding, the Panel has cited to a
number of factors which it contends are sufficiently aggravating to warrant adoption of its
recommendation. Specifically, the Panel found the following aggravating factors: (1)
substantial experience in the practice of law, (2) a pattern of misconduct, and (3) a self-serving
motive. We agree with the Panel that the evidence establishes each of these aggravating
(I) Substantial experience in the practice of law
. Lack of experience as a
lawyer is considered mitigating, while substantial experience is deemed aggravating. This
distinction is made in recognition of the fact that a youthful and inexperienced attorney may
have [engaged in misconduct] as a result of inexperience rather than as a result of deliberate
calculation. In re Brown
, 166 W. Va. 226, 235, 273 S.E.2d 567, 572 (1980). The record
indicates that Mr. Ball was admitted to the practice of law in this state in 1963. At the time of
Mr. Ball's misconduct in this case he had been practicing law for over thirty years. Thus, Mr.
Ball had substantial experience as a lawyer. Mr. Ball's length of experience in the practice of
law aggravates the misconduct in this case because it suggests that his misconduct was the
product of deliberate calculation.
(ii) Pattern of misconduct
. The Panel found that Mr. Ball engaged in a pattern
of misconduct. See Lawyer Disciplinary Bd. v. Scott
, 213 W. Va. 209, 217, 579 S.E.2d 550,
558 (2003) ([Lawyer] engaged in a serious pattern of misconduct that involved constant
lying.). This finding is supported by Mr. Ball's drafting of three wills that permitted him to
receive excessive fees as an executor and as overseer of funds bequeathed to the Foundation.
Additionally, there was a pattern of having his clients improperly convey property and funds
to his family members.
(iii) Self-serving motive
. The Panel found that a self-serving motive triggered
Mr. Ball's misconduct. Mr. Ball has attempted to characterize his conduct not as self-serving,
but as that of carrying out the wishes of his clients. We reject such a characterization because
it would mean that a lawyer could violate the Rules of Professional Conduct so long as his/her
client insists that he/she engage in conduct that violates the Rules. It has been appropriately
observed that the prohibition against preparing an instrument that makes a gift to the drafting
lawyer [or his/her relative] cannot be waived by the client ABA/BNA, Lawyers' Manual on
Professional Conduct, p. 51:603 (2006) (citations omitted). In this regard, we hold that the
Rules of Professional Conduct cannot be waived by a client, so as to permit a lawyer to do that
which the Rules prohibit, unless the Rules themselves provide a specific exception allowing
waiver. The Rules reflect the high standards by which all lawyers must abide regardless of the
wishes of a client.
Clearly, as an attorney practicing for over thirty years, Mr. Ball knew that his
clients could not give him permission to violate the Rules. Assuming, for the sake of
argument, however, that Mr. Ball's clients insisted that he violate the Rules, his willingness to
do so would demonstrate a self-serving motive to enrich himself and family members.
Mr. Ball and the ODC urge this Court to impose the sanctions recommended by
the Panel. The Bar requests this Court reject the recommendation insofar as it does not
require full restitution. Rule 3.15 of the West Virginia Rules of Lawyer Disciplinary
Procedure enumerates the sanctions that may be imposed upon a finding that a lawyer has
violated one or more of the disciplinary rules: (1) probation; (2) restitution; (3) limitation on
the nature or extent of future practice; (4) supervised practice; (5) community service; (6)
admonishment; (7) reprimand; (8) suspension; or (9) annulment. In fashioning the appropriate
sanctions, this Court is mindful of its prior holding that,
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
Syl. pt. 3, Committee on Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987).
There are two sanctions that we will discuss: restitution and annulment. However, before
addressing those two issues we must examine the Panel's reason for not recommending
(1) The Panel misunderstood enforcement of restitution. The brief of the
Bar points out that the Panel believed
that it lacked any mechanism to enforce restitution other than
through restrictions on a lawyer's license or as a condition for
reinstatement. As a result, it decided to recommend an agreed
disposition . . . that permits [Mr. Ball] to retain the funds and
property that he and his family received from the estates[.]
We are at a loss to understand the Panel's position on the issue of restitution. This Court has
previously imposed restitution in lawyer disciplinary proceedings that did not involve
restrictions on a lawyer's license or as a condition for reinstatement. See Lawyer
Disciplinary Bd. v. Lusk, 212 W. Va. 456, 462, 574 S.E.2d 788, 794 (2002) (annulling law
license and requiring restitution); Lawyer Disciplinary Bd. v. Askin, 203 W. Va. 320, 324,
507 S.E.2d 683, 687 (1998) (same). See also Matter of Elowitz, 866 P.2d 1326, 1330 (Ariz.
1994) (disbarring attorney and requiring restitution); In re Benge, 783 A.2d 1279, 1287 (Del.
2001) (same); In re Letellier, 742 So. 2d 544, 548 (La. 1999) (same); Matter of Discipline
of Babilis, 951 P.2d 207, 217 (Utah 1997) (same); Matter of Disciplinary Proceedings
Against Wright, 509 N.W.2d 290, 291 (Wis. 1994) (same).
It must be underscored that [t]his [C]ourt's disciplinary orders are not intended
to be empty noise. Disciplinary orders are intended to protect the public. Matter of
Disciplinary Action Against Larson, 512 N.W.2d 454, 457 (N.D. 1994) (internal quotations
and citation omitted). When this Court imposes sanctions on an attorney, including suspension
or annulment, the attorney is still subject to the continuing jurisdiction of this Court as a result
of the disciplinary order. See The Florida Bar v. Ross, 732 So. 2d 1037, 1041 (Fla. 1998)
([S]uspended attorneys, disbarred attorneys, and attorneys who have resigned in the face of
disciplinary charges are all subject to the continuing jurisdiction of this Court by virtue of the
respective orders under which they were disciplined.). Because of our continuing jurisdiction
over a disciplined attorney, the ODC is empowered to take action to enforce compliance with
a disciplinary order. That is, [w]e construe the power and duty of [the ODC] broadly to . . .
authorize prosecution of enforcement actions by seeking such relief as injunctions and
punishment for contempt of court for noncompliance. Matter of Disciplinary Action
Against Larson, 512 N.W.2d 454, 458 (N.D. 1994). See Lawyer Disciplinary Bd. v. Sigwart,
216 W. Va. 212, 214, 605 S.E.2d 587, 589 (2004) (suspending lawyer's license for being in
contempt of prior disciplinary order); Office of Disciplinary Counsel v. Cunningham, 202
W. Va. 186, 188, 503 S.E.2d 275, 277 (1998) (annulling lawyer's license for being in
contempt of prior disciplinary order); Office of Lawyer Disciplinary Counsel v. Cunningham,
200 W. Va. 339, 342, 489 S.E.2d 496, 499 (1997) (suspending lawyer's license for being in
contempt prior disciplinary order). Moreover, a disciplinary order that requires restitution to
a client, which is not imposed as a condition for reinstatement, may be enforced by the client
or his/her duly authorized representative through the prosecution of a separate lawsuit. See
generally Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999) (former clients sued lawyers for
forfeiture of fees due to breach of duty).
In view of the foregoing, we hold that when this Court, in a lawyer disciplinary
proceeding, issues an order that requires an attorney to make restitution to his or her client,
the order may be enforced in two ways: (1) by the Office of Disciplinary Counsel seeking a
contempt order from this Court, or (2) through the prosecution of a separate lawsuit by the
client or a duly authorized representative of the client.
(2) Restitution. The Panel has recommended modest restitution by Mr. Ball,
which is contingent upon his seeking to return to active practice. The Bar argues that the
Panel's recommendation sends a message to the public that an attorney can violate ethical
standards, engage in unethical conduct that directly benefits himself and his family, charge
grossly unreasonable fees and retain the benefits of his unethical conduct. We agree with the
Bar. The Panel's restitution recommendation is unsatisfactory.
As a matter of policy, a lawyer should be regarded as 'earning' his fee only when
he provides legal services to his client in a manner consistent with his professional duties[.] Kourouvacilis v. American Fed'n of State, County & Mun. Employees, 841 N.E.2d 1273,
1284 n.22 (Mass. App. Ct. 2006). Consequently, it is generally recognized that [a] lawyer's
improper conduct can reduce or eliminate the fee that the lawyer may reasonably charge[.]
Restatement (Second) of the Law Governing Lawyers § 37, p. 271 (2000). The Restatement
has set out a standard, which we now expressly adopt, for determining whether a lawyer should
forfeit some or all of the fees obtained from a client for legal services:
A lawyer engaging in clear and serious violation of duty to
a client may be required to forfeit some or all of the lawyer's
compensation for the matter. Considerations relevant to the
question of forfeiture include [(1)] the gravity and timing of the
violation, [(2)] its willfulness, [(3)] its effects on the value of the
lawyer's work for the client, [(4)] any other threatened or actual
harm to the client, and [(5)] the adequacy of other remedies.
Restatement, § 37, p. 270.
Applying the above test to the facts of this case, we find that total restitution is
required. There is no question that the violations in this case involve a clear and serious breach
of duty Mr. Ball owed to his clients. We have already determined that Mr. Ball's misconduct
was intentional and that it caused actual and potential harm to his clients. Furthermore,
complete restitution is the only adequate remedy in this case. To permit Mr. Ball to retain any
of the proceeds of his unethical conduct would send a chilling message to the public and,
because of the amount of money involved, would be an incentive for other lawyers to engage
in similar conduct. See, e.g. Cheung v. Pena, 2006 WL 1159918 (Idaho) (total forfeiture of
attorney fees); King v. White, 962 P.2d 475 (Kan. 1998) (same); Rice v. Perl, 320 N.W.2d
407 (Minn. 1982) (same); Hartford v. Young, 782 P.2d 365 (Mont. 1989) (same); In re
Estate of Fraelich, 2004 WL 1921998 (Ohio App. 11 Dist.) (same).
(3) Annulment. This Court is also concerned by the Panel's recommendation
that Mr. Ball's law license remain on inactive status for five years. We cannot accept such a
recommendation. The conduct engaged in by Mr. Ball allowed him to obtain vast sums of
money and property from his clients that he was not entitled to receive. Although Mr. Ball's
conduct did not technically constitute misappropriation of clients' funds, the practical effect
of his conduct was no different from that of misappropriation. See Lawyer Disciplinary Bd.
v. Kupec, 202 W. Va. 556, 561, 505 S.E.2d 619, 631 (1998) (Most courts proceed from the
general rule that absent compelling extenuating circumstances, misappropriation . . . by a
lawyer of funds entrusted to his/her care warrants disbarment.); Syl. pt. 5, Committee on
Legal Ethics v. Pence, 161 W. Va. 240, 240 S.E.2d 668 (1977) (Detaining money collected
in a professional or fiduciary capacity without bona fide claim coupled with acts of dishonesty,
fraud, deceit or misrepresentation justify annulment of an attorney's license to practice law.).
Thus, while different labels may be attached to greed _ theft, misappropriation,
misrepresentation, fraud, conversion _ in disciplinary proceedings this Court is duty bound
to look beyond labels and examine the effects of unethical conduct. The effect of Mr. Ball's
conduct resulted in his improperly receiving funds and property from his clients. As pointed
out by the decision in Matter of Discipline of Babilis, 951 P.2d 207 (Utah 1997),
[improperly taking] a client's funds is always indefensible;
it strikes at the very foundation of the trust and honesty that are
indispensable to the functioning of the attorney-client
relationship and, indeed, to the functioning of the legal
profession itself. The honesty and loyalty that all lawyers owe
their clients are irrevocably shattered by an intentional act of
[improperly taking a client's funds], and the corrosive effect of
such acts tends to undermine the foundations of the profession
and the public confidence that is essential to the functioning of
our legal system. Lawyers should be on notice that an intentional
act of [improperly taking] a client's funds is an act that merits
Babilis, 951 P.2d at 217 (citations omitted). See also Florida Bar v. Tunsil, 503 So.2d 1230,
1231 (Fla. 1986) (In the hierarchy of offenses for which lawyers may be disciplined,
[improperly taking funds] from a client must be among those at the very top of the list.). The
egregious conduct by Mr. Ball demands that his license to practice law be annulled.
We reject the Panel's recommendation and impose the following sanctions upon
Mr. Ball: (1) Mr. Ball's license to practice law in the State of West Virginia is annulled; (2)
he is ordered to make restitution of all funds he received as executor of the Estate of Ms.
Michael, which shall not be less than $785,996.00; (3) he is ordered to make restitution of all
funds he received as executor of the Estate of Ms. Davis, which shall not be less than
$837,362.00; (4) he is ordered to make restitution of all funds he received as trustee for the
trust established for Ms. Davis, which shall not be less than $318,933.00; (5) he is ordered to
make restitution of the value of the property received by him and his wife from the Estates of
Ms. Michael and Ms. Davis, which shall not be less than $64,300.00; (6) he is ordered to make
restitution of the full amount of the funds paid to his sons as beneficiaries of Ms. Davis'
annuity, which shall not be less than $487,783.13; (7) he is ordered to make restitution of all
monies he received for overseeing the funds bequeathed to WVU Foundation by Ms. Michael
and Ms. Davis, which shall not be less than $336,889.61; (8) he is ordered to forego any
further oversight of the funds donated to the WVU Foundation under the Estates of Ms.
Michael and Ms. Davis; (9) the provision in Ms. Davis' Codicil drafted by Mr. Ball naming his
wife, law partner and an unnamed lawyer as potential executors of Ms. Davis' estate and
overseers of her bequeath to the WVU Foundation is void; (10) Mr. Ball is ordered to make
restitution of all funds he received as executor of the Estate of Mr. Elmore; (11) he is ordered
to make restitution of all monies, if any, he received for overseeing the funds bequeathed to
WVU Foundation by Mr. Elmore; (12) he is ordered to forego any further oversight of the
funds donated to the WVU Foundation under the Elmore Estate; (13) all funds required to be
paid as restitution herein bear interest at the rate of 10% from the date the mandate for this
opinion is issued; (14) Mr. Ball shall pay to the ODC the costs it incurred in this proceeding.
This case is remanded to the Panel for a determination of the exact amount of
money Mr. Ball must make as restitution to the Estates of Ms. Michael, Ms. Davis and Mr.
Elmore. (See footnote 25)
This Court is further ordering that a copy of this opinion be filed with the Chief
Judge of the Circuit Court of Monongalia County, for the purpose of having the circuit court
appoint an administrator for the Estates of Ms. Michael, Ms. Davis and Mr. Elmore. The court
shall limit the administrator's authority to that of collecting the restitution ordered in this
opinion for the Estates of Ms. Michael, Ms. Davis and Mr. Elmore and to disburse the same
to WVU Foundation as provided for in the residuary clause of each will. The administrator
shall take part in the proceeding to determine the amount of restitution Mr. Ball must make and
shall be entitled to recover a reasonable fee, to be set by the Circuit Court of Monongalia
County, as administrator of the Estates of Ms. Michael, Ms. Davis and Mr. Elmore.
The Panel shall convene and conclude the remand hearing within sixty days
from the date this opinion is filed.