Lawyer Disciplinary Board v. Morton

569 S.E.2d 412, 212 W. Va. 165
CourtWest Virginia Supreme Court
DecidedJune 28, 2002
Docket27051
StatusPublished
Cited by4 cases

This text of 569 S.E.2d 412 (Lawyer Disciplinary Board v. Morton) 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
Lawyer Disciplinary Board v. Morton, 569 S.E.2d 412, 212 W. Va. 165 (W. Va. 2002).

Opinions

PER CURIAM:

This is a lawyer disciplinary proceeding brought by the Lawyer Disciplinary Board (hereinafter “Board”) against Ms. Belinda S. Morton (hereinafter “Ms. Morton”), a member of the West Virginia State Bar. A Hearing Panel Subcommittee (hereinafter “Hearing Panel”) found that Ms. Morton had violated Rule 1.5(a)(1) of the Rules of Professional Conduct by obtaining a fee of $1,500 from medical payments obtained on behalf of her client, Mr. David E. Willis (hereinafter “Mr. Willis”). The Hearing Panel recommends that Ms. Morton be publicly reprimanded, ordered to repay the client $1,500, and pay the costs of this proceeding. Based upon thorough consideration of this matter, we reject the recommendation of the Hearing Panel and dismiss the charge against Ms. Morton.

I. Facts and Procedural History'

On October 26, 1995, Mr. Willis was a passenger in an automobile that collided with a tractor trailer owned by H & W Trucking Company and operated by Mr. Donald F. Reed.1 Mr. Willis sustained injuries as a result of the accident. On October 30, 1995, Mr. Willis retained Ms. Morton to represent him in a legal action against the trucking company and its driver, Mr. Reed.2 Under the terms of the contingency contract be[167]*167tween Ms. Morton and Mr. Willis, Ms. Morton was to receive thirty percent of all monies recovered from any source prior to filing a lawsuit.3

In the course of representation of Mr. Willis, Ms. Morton asserts that she prepared and reviewed the contract of representation and explained its terms to Mr. Willis. She also explains that she issued an engagement letter including memorialization of the representation and advice to Mr. Willis concerning maintaining medical bills and the need to avoid contacts and discussion concerning the accident. Ms. Morton’s other actions included correspondence with United States Fidelity and Guarantee Company in an effort to place them on notice of the accident and her representation of Mr. Willis. Ms. Morton also corresponded with medical doctors, Dr. Anwar and Dr. Kominsky, concerning her representation of Mr. Willis and his legal claims. Ms. Morton also explained that she corresponded with State Farm Insurance Company adjuster Elaine Durham, in an effort to prevent State Farm from obtaining an overly broad medical authorization. Ms. Morton also asserts that she conducted legal research and investigation regarding Mi*. Willis’ claims and conducted several phone calls with various State Farm adjustors regarding Mr. Willis’ case. Ms. Morton also prepared for and attended interviews with United States Fidelity and Guarantee claims personnel. Ms. Morton maintains that her representation of Mr. Willis entailed at least forty hours of legal work, including interviews with the client and insurance personnel and review of numerous documents.4

During the course of representation, Ms. Morton contacted State Farm, the insurer of the automobile in which Mr. Willis was a passenger at the time of the accident, and asked State Farm to add her name to all medical payment checks issued on behalf of Mr. Willis and to forward the checks to her office. The medical payment cheeks totaled $5,000, and Ms. Morton retained thirty percent of that amount, $1,500, as her fee. Ms. Morton’s representation of Mr. Willis was terminated subsequent to Mr. Willis’ inability to pay a $500 deposit toward costs and expenses as requested by Ms. Morton on September 11,1996.

Mr. Willis filed an ethics complaint against Ms. Morton on May 15,1997, contending that her retention of $1,500 of the $5,000 in medical payments obtained for Mr. Willis was excessive. An Investigative Panel thereafter charged Ms. Morton with obtaining an excessive fee in violation of Rule 1.5(a)(1) of the Rules of Professional Conduct.5 A hearing [168]*168was held before the Hearing Panel on June 13, 2001, and the Panel subsequently issued its ruling finding that Ms. Morton had violated Rule 1.5(a)(1) by obtaining a fee “grossly excessive for the services actually performed.” W.Va. Rules Profl Conduct R. 1.5(a)(1). The Hearing Panel and Board have recommended that this Court publicly reprimand Ms. Morton, order her to repay Mr. Willis $1,500, and pay the costs of this proceeding. Ms. Morton has objected to the determination that she violated Rule 1.5(a)(1) and that sanctions should be imposed upon her.

II.Standard of Review

This Court set out the standard of review of lawyer disciplinary proceedings in syllabus point three of Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 5.E.2d 377 (1994), as follows:

A de novo standard applies to a review of the adjudicatory record made before the [Lawyer Disciplinary Board] of the West Virginia State Bar 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.

We have also consistently held 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 v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1395, 84 L.Ed.2d 783 (1985).

III.Discussion

With specific reference to this Court’s responsibility to review the reasonableness of fees, we observed as follows in Committee on Legal Ethics v. Tatterson, 177 W.Va. 356, 352 S.E.2d 107 (1986):

Contracts for contingent fees, generally having a greater potential for overreaching of clients than a fixed-fee contract, are closely scrutinized by the courts where there is a question as to them reasonableness. This close scrutiny arises from the duty of the courts to guard against the collection of a clearly excessive fee, thereby fulfilling the primary purpose of attorney-disciplinary proceedings, specifically, protecting the public and maintaining the integrity of the legal profession.

177 W.Va. at 363, 352 S.E.2d at 114 (citations omitted).6 In syllabus point three of Tatter-son, this Court held that “[i]n the absence of any real risk, an attorney’s purportedly contingent fee which is grossly disproportionate to the amount of work required is a ‘clearly excessive fee’ within the meaning of [Rule 1.5(a) of the Rules of Professional Conduct].” 177 W.Va. at 357, 352 S.E.2d at 108. In syllabus point two of Tatterson, this Court further held:

[169]*169If an attorney’s fee is grossly disproportionate to the services rendered and is charged to a client who lacks full information about all of the relevant circumstances, the fee is “clearly excessive” within the meaning of [Rule 1.5 of the Rules of Professional Conduct], even though the client has consented to such fee.

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609 S.E.2d 848 (West Virginia Supreme Court, 2004)
Lawyer Disciplinary Board v. Morton
569 S.E.2d 412 (West Virginia Supreme Court, 2002)

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569 S.E.2d 412, 212 W. Va. 165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawyer-disciplinary-board-v-morton-wva-2002.