West Virginia's high court suspends an attorney for mishandling an estate matter and writing checks to himself for his fees from the estate, finding his lack of experience with estate work to be an insufficient mitigating factor. Lawyer Disciplinary Bd. v. Martin (W. Va., No. 34734, March 4, 2010).
While serving as the executor of Anna Lee Davis's estate, attorney William C. Martin wrote three checks to himself from Ms. Davis's checking account, ostensibly for his fees, totaling $11,000. Three years after Mr. Martin began serving as executor, a beneficiary who was dissatisfied his work petitioned to have him removed. A county commission determined that Mr. Martin mishandled the estate and removed him as executor. He was ordered to refund the fees he paid to himself, turn over the file to the new executor and provide an accounting of his activities to the beneficiaries and the commission.
Represented by new counsel, the estate filed a lawsuit in circuit court and an ethics complaint with the Office of Disciplinary Counsel (ODC) against Mr. Martin. The estate alleged that Mr. Martin breached his fiduciary duties to the estate, misappropriated funds by paying cash to himself and others, and failed to comply with the order to refund the fees to the estate and to provide an accounting. Mr. Martin countered that he believed he was entitled to the fees for services he performed for the estate; however, he was unable to provide any supporting records of time spent on the matter.
A disciplinary panel found that Mr. Martin had committed multiple violations of his professional responsibilities and recommended that his license be suspended and that, upon reinstatement, his practice be supervised. Mr. Martin agreed that he mishandled the estate but asserted that a lesser sanction, such as probation or admonishment, was more appropriate.
The Supreme Court of Appeals of West Virginia, the state's highest court, disagrees with Mr. Martin and adopts the sanctions recommended by the panel. The court concludes that the sole mitigating factor -- Mr. Martin's lack of experience in estate matters -- is insufficient to excuse his behavior.
For the full text of this decision, go to: https://www.state.wv.us/wvsca/docs/Spring10/34734.htm.
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