Committee on Legal Ethics of the West Virginia State Bar v. Lambert

428 S.E.2d 65, 189 W. Va. 84, 1993 W. Va. LEXIS 22
CourtWest Virginia Supreme Court
DecidedFebruary 25, 1993
DocketNo. 21465
StatusPublished
Cited by7 cases

This text of 428 S.E.2d 65 (Committee on Legal Ethics of the West Virginia State Bar v. Lambert) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Committee on Legal Ethics of the West Virginia State Bar v. Lambert, 428 S.E.2d 65, 189 W. Va. 84, 1993 W. Va. LEXIS 22 (W. Va. 1993).

Opinion

PER CURIAM:

In this attorney disciplinary proceeding, the Committee on Legal Ethics of the West Virginia State Bar (“the Committee”) recommends that this Court annul the license to practice law of the respondent, Sherman L. Lambert. Furthermore, the Committee recommends that the respondent should not be reinstated until he has made full restitution to the State Bar’s Client Security Fund. The hearing panel of the Committee found that the respondent converted two clients’ property to his own personal use, in violation of W.Va.Code, 61-3-20 [1931] and DR 1-102(A)(3)1; the respondent caused a forged instrument to be uttered in violation of W.Va.Code, 61-4-5 [1961] and DR 1-102(A)(4)2; the respondent failed to pay over money received on behalf of a client, in violation of W.Va. Code, 30-2-13 [1931] and DR 9-102(B)(4)3; and, the respondent failed to inform the Committee during reinstatement proceedings that he owed clients money, in violation of Rule 8.1(b) of the Rules of Professional Conduct.4 The respondent acknowledged an earlier problem with alcohol abuse which he contends has been resolved. It is recommended by the Committee that the respondent’s license be annulled for converting clients’ property to his own personal use, causing a forged instrument to

[86]*86be uttered, failing to pay over money received on behalf of a client and failing to inform the Committee during reinstatement proceedings that he owed clients money. We adopt the recommendation of the Committee. For the reasons stated below, we hereby order the annulment of the respondent, Sherman Lambert’s, license to practice law in the State of West Virginia, and we further order that he shall not be permitted to petition for reinstatement until he has made full restitution to the State Bar’s Client Security Fund.

I

In this case before us, the charges brought against the respondent evolve from two separate cases in which the respondent was counsel for the respective plaintiffs. In the first case, the respondent represented Terry and Carmen Allen on a one-third contingent fee basis in a civil action entitled Terry Lee Allen and Carmen H. Allen v. Jeffrey Dean Marshall, Jefferson County Circuit Court, Civil Action No. 86-C-310, for personal injuries received in an automobile accident.

On October 14, 1987, the parties agreed to a settlement of $8,450 and the respondent prepared a release. A check was issued by the defendant’s insurer for the aforementioned amount on October 19, 1987. The check was made payable to “Terry & Carmen Allen Individ. & As Husband & Wife & Blue Cross Blue Shield as Subrogee & Sherman Lambert Att.” The check was endorsed by the respondent, and it appeared to be endorsed by “Terry L. Allen” and “Carmen H. Allen.” However, Mr. and Mrs. Allen testified that the signatures were not theirs, and they were unaware the check had been issued. The respondent denied the fact that he or anyone else could have forged the Allens’ signatures on the check. On October 26, 1987, the circuit court entered an order dismissing the Allens’ case with prejudice on the grounds that a compromise and settlement had been reached.

From October 22,1987, when the respondent received the settlement check, through December 1987, he made no effort to deliver the settlement money to the Al-lens. The Allens unsuccessfully attempted to contact the respondent on numerous occasions to check on the status of the settlement money. Finally, on December 18, 1987, the respondent advised Mrs. Allen that he had received the settlement check, and on that same day, he wrote and personally delivered, to the Allens, a check drawn on his trust account in the amount of $5,633.61. However, when Mrs. Allen tried to negotiate the check, on December 18, 1987, she was informed that there were insufficient funds in the account. The couple was unsuccessful in locating the respondent thereafter.

In order to press criminal charges, Mr. Allen returned to the bank with the check and had the check stamped as being returned for insufficient funds on December 22, 1987. Subsequently, Mr. Allen filed a criminal complaint against the respondent for a worthless check on December 23, 1987. On May 10, 1989, the Allens applied to the Client Security Fund, a discretionary fund maintained by the Board of Governors of the West Virginia State Bar to recompense clients for attorney theft. The Al-lens were paid $5,000.00, the maximum amount payable by the Fund, on November 1, 1989.

The respondent was arrested on February 27, 1991. Pursuant to a plea agreement, the respondent pleaded no contest to a misdemeanor worthless check charge on July 9, 1991. He then made restitution to the Allens in the amount of $600.00, the difference between the total amount respondent owed the Allens and the amount they received from the Client Security Fund, plus $170.00, the amount the Allens paid to an attorney to assist them in filing an application with the Fund.

During the period of time between when Mr. Allen swore out the warrant and the respondent’s arrest, the respondent left the State and abandoned his practice and obligations thereto. As reflected below, the respondent’s departure from the State coincided in time with his unlawful conversion of monies of another client.

[87]*87In the second action, the respondent represented Seneca Valley Feeds, owned by Gordon and Ann Erricker, to collect an overdue account for horse feed against Susan Newcomer. The respondent filed the suit in 1986, in the Circuit Court of Jefferson County, Seneca Valley Feeds v. Susan Newcomer, Civil Action No. 86-C-300, and obtained summary judgment in favor of Seneca Valley Feeds for $2,880.01, plus interest on July 27, 1987.

On November 30, 1987, Mr. Robert R. Skinner, defendant’s attorney, notified the respondent that he had received a check in the amount of $3,014.43, made payable to “Sherman Lambert, Attorney for Seneca Valley Feeds,” in satisfaction of the judgment. Later that same day, the respondent drove to Dickerson, Maryland, where Seneca Valley Feeds was located and obtained the Errickers’ signature on the release. The Errickers and the respondent agreed that they would pay his fee in advance, and the respondent would endorse and forward the settlement check to them when he received it. Accordingly, Ann Er-ricker wrote a check to Sherman Lambert, in the amount of $1,004.81, dated November 30, 1987, to pay for the respondent’s one-third contingent fee. The respondent negotiated his check on December 1, 1987.

The respondent then tendered the Errick-ers’ release to Mr. Skinner and obtained the check in satisfaction of the judgment. However, instead of endorsing the check and forwarding it to the Errickers as agreed, the respondent negotiated the check for cash at the Peoples Bank of Charles Town. The Errickers never received their money despite repeated efforts to contact the respondent.

On August 18,1988, Mr. Erricker applied to the Client Security Fund and was paid $3,014.43 in two installments, in November of 1988 and on May 2, 1989. The respondent never made restitution to the Fund for the $8,014.43 it paid to the Allens and the Errickers.

II

The Committee petitioned this Court in December of 1987, for an order requiring the respondent to submit to a psychiatric examination regarding disciplinary troubles unrelated to the events in the aforementioned cases. On April 12,1988, this Court granted the petition.

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Bluebook (online)
428 S.E.2d 65, 189 W. Va. 84, 1993 W. Va. LEXIS 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/committee-on-legal-ethics-of-the-west-virginia-state-bar-v-lambert-wva-1993.