LAWYER DISCIPLINARY BOARD, Respondent, v. TRUMAN LYNCH SAYRE, A FORMER MEMBER
OF THE WEST VIRGINIA STATE BAR, Petitioner.
No. 24483
SUPREME COURT OF APPEALS OF WEST VIRGINIA
207 W. Va. 654;
535 S.E.2d 719;
2000 W. Va. LEXIS 5
January 11, 2000, Submitted
February 18, 2000, Filed
DISPOSITION:
[***1] Petition denied.
SYLLABUS: SYLLABUS BY THE COURT
1.
"'A de novo standard applies to a review of the adjudicatory record made before
the Committee on Legal Ethics 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
Committee's recommendations while ultimately exercising its own independent
judgment. On the other hand, substantial deference is given to the Committee's
findings of fact, unless such findings are not supported by reliable,
probative, and substantial evidence on the whole record.' Syl. pt. 3,
Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994)." Syl. Pt. 2, Lawyer Disciplinary Bd. v. Vieweg, 194 W. Va. 554, 461 S.E.2d 60 (1995).
2.
"The general rule for
reinstatement is that a disbarred attorney in order to regain admission to the practice of
law bears the burden of showing that he presently possesses the integrity,
moral character and legal competence to resume the practice of law. To overcome
the adverse effect of the previous
disbarment, he must demonstrate a record of rehabilitation.
[***2] In addition, the court must conclude that such
reinstatement will not have a justifiable and substantial adverse effect on the public
confidence in the administration of justice and in this regard the seriousness
of the conduct leading to
disbarment is an important consideration." Syl. Pt. 1,
In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980).
3.
"Rehabilitation is demonstrated by a course of conduct that enables the court to
conclude there is little likelihood that after such rehabilitation is completed
and the applicant is readmitted to the practice of law he will engage in
unprofessional conduct." Syl. Pt.
2,
In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980).
4.
"'Disbarment of an attorney to practice law is not used solely to punish the attorney but
is for the protection of the public and the profession.' Syl. Pt. 2,
In re Daniel, 153 W. Va. 839, 173 S.E.2d 153 (1970)." Syl. Pt. 6, Lawyer Disciplinary Bd. v. Battistelli, 206 W. Va. 197, 523 S.E.2d 257, 1999 WL 965676 (W. Va. 1999).
COUNSEL: Bruce A. Kayuha, Esquire, Lawyer Disciplinary Counsel, Charleston, West
Virginia, Attorney for Petitioner
John
[***3] N. Charnock, Esquire, Charnock
& Charnock, Charleston, West Virginia, Attorney for Respondent.
JUDGES: JUSTICE MCGRAW dissents and reserves the right to file a dissenting opinion.
OPINION:
[*655]
[**720] Per Curiam:
This case is before this Court upon the October 6, 1997, petition of Truman
Lynch Sayre for
reinstatement of his
license to practice law. We referred this case to the Lawyer Disciplinary Board of The West
Virginia State Bar for the development of a record and
recommendation. That process
[**721]
[*656] having been completed, the report and
recommendations of the Hearing Panel Subcommittee ("HPS") of the Lawyer Disciplinary Board recommends that the Petitioner's law
license not be
reinstated at this time. Pursuant to Rule 3.33(g) of the Rules of Lawyer Disciplinary
Procedure, the HPS also
recommended that: 1) the Petitioner be assessed the costs of these proceedings; 2) the
Petitioner engage in a program of education and
counseling concerning his obligations under the Code of Professional Responsibility, his
conduct in the past, and the reasons for that conduct; and 3) the Petitioner be
reconsidered for
reinstatement at such time that he can demonstrate that he can meet the ethical obligations
of an
[***4] attorney, but no
sooner than one year from the date that this decision becomes final. Having
reviewed the parties' briefs, the record and all other matters submitted in
this case, we adopt the
recommendations made by the HPS, with the exception that we hold that the Petitioner may not
again be considered for
reinstatement until at least five years from the date that this decision becomes final.
I. FACTS n1
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 The facts are taken from the undisputed factual findings made by the HPS.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The Petitioner is seventy-three years old and was admitted to practice law in
1953. He served as a
bankruptcy trustee beginning in the late 1970's and was appointed family law master in October of
1986. He consented to
disbarment on September 2, 1992, following his federal conviction for embezzlement by a
bankruptcy trustee.
A.
DISBARMENT
The Petitioner's conduct which resulted in his
disbarment
began in October of 1985, when the Petitioner transferred a total of $ 60,000
from two bankruptcy trust accounts into his
[***5]
personal account. He then used the money for a business venture with Herman G. Hendricks and
others to construct and operate an EconoLodge
motel in North Beckley, West Virginia. The Petitioner repaid most of the $ 60,000 on
December 10, 1985, by obtaining a check from Herman Hendricks, depositing it
into the Petitioner's
personal account and then writing two checks to the trust accounts.
The Petitioner withdrew another $ 15,000 from one of the bankruptcy trust
accounts on December 31, 1985, and purchased a cashier's check, which he then
deposited into a
motel business account. He repaid the $ 15,000 to the trust account on April 30,
1986, using the proceeds from a bank loan made to the
motel business.
On May 22, 1987, the Petitioner diverted $ 12,000 from one of the trust
accounts to
repay a loan from a client. The Petitioner combined the $ 12,000 with an
additional $ 3,000 from the client to purchase a cashier's check for $ 15,000
to settle unrelated business litigation of the client. Additionally, the
Petitioner failed to pay a bankruptcy estate
disbursement of $ 14,244.36 to the Workers' Compensation Fund as directed by the Bankruptcy
Court in its general
disbursement order of
[***6] June 19, 1987.
B.
REINSTATEMENT HEARING
At the
reinstatement hearing, a number of individuals testified on the Petitioner's behalf that the
Petitioner was well-liked and involved in various community activities. None of
these individuals, however, appeared to have significant knowledge about the
Petitioner's history of ethical violations or why he had committed those
violations.
The Petitioner also failed to offer any real insight as to why he had violated
ethical standards in the past, other than alluding to the possibility that his divorce was a
factor. When the Petitioner was questioned as to what he had done to
rehabilitate himself, he testified that the events were
"better
forgotten for all concerned." The Petitioner was also asked to explain his apparent false contention in the
disbarment proceeding that he did not use the bankruptcy funds for his
"personal purposes." n2 The Petitioner's less-than-candid
[**722]
[*657] explanation of his mendacity was
"the word personal purposes has a connotation of riotous living and that sort of
thing."
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Not only did the Petitioner make this false contention, he also attempted to
cover-up his personal use of the funds by failing to provide the State Bar with
documents from his personal accounts into which he had deposited funds from the
bankruptcy trust accounts.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***7]
Most significantly, the factual findings revealed that during the Petitioner's
disbarment, he had continued to engage in misconduct. Prior to March 1990, the Bank of
Raleigh obtained the first
deed of trust on the Petitioner's Glade Creek Farms property. Subsequently, in March 1990,
the Petitioner and Herman Hendricks used the Petitioner's Glade Creek
Farms property as collateral for consolidating two outstanding loans into one
loan through the Beckley National Bank, thereby creating a second
deed of trust.
In 1993, the North Beckley
Motel, Inc. ("Motel") obtained the first
deed of trust executed by the Petitioner from the Bank of Raleigh by refinancing the loan
secured by the
deed of trust. The
Motel secured this
deed of trust in exchange for the Petitioner
assigning to the
Motel his shares of stock in the
Motel.
Instead of
assigning the first
deed of trust to the Petitioner, the
Motel assigned it to Rebecca Riffe, the Petitioner's
daughter, without any consideration. The Petitioner testified that the assignment to his
daughter was a part of a scheme designed to
extinguish the second
deed of trust held by the Beckley National Bank.
Subsequently, the Petitioner asked his
daughter
[***8] to foreclose on the Bank of Raleigh
deed of trust. He also asked attorney Bruce
Lazenby, who rented office space from the Petitioner's brother, to serve as
substitute trustee on the Bank of Raleigh
deed of trust. Mr. Lazenby was aware of the second lien on the property held by Beckley
National Bank; but, he did not directly notify Beckley National Bank, because
he understood that the bank had never served a written request for notice of
default on the Bank of Raleigh.
The Petitioner paid the expenses of the sale and arranged for Floyd M. Sayre,
III, his nephew, to appear and bid on the property on the Petitioner's behalf.
Floyd Sayre was the highest bidder at $ 6,000. The sale extinguished the second
deed of trust. The Petitioner then conveyed his interest in the Glade Creek Farms property to
his
daughter, Ms. Riffe. The Petitioner also arranged to sell two lots from the Glade Creek
Farms property, which were now unencumbered, for the amounts of $ 30,000 and $
60,000.
At the time of the sales, Bank One held the
Beckley National Bank
deed of trust in the Glade Creek Farms property. When Bank One learned of these
transactions, it sued the Petitioner's
daughter, as well as the purchasers
[***9] of the property, in an attempt to void the sales. Bank One also sued the
Petitioner on the
promissory note, seeking $ 103,224.28, which represented the principal and interest due. Ms.
Riffe and the Petitioner settled these two lawsuits with Bank One for $ 50,000.
Then, in August of 1995, Ms. Riffe deeded any remaining property interest in
the Glade Creek Farms property back to her father as a gift. The Petitioner, in
turn, sold another lot that same day for $ 25,000. Ms. Riffe also gave her
father all of the money remaining from the first two sales.
Subsequently, on June 16, 1997, the Petitioner sued Herman Hendricks averring
that the parties had jointly executed a
promissory note to Beckley National
Bank in 1990. The Petitioner alleged in the complaint that Mr. Hendricks
owed him one-half of $ 103,224.28, which was the original amount of the
promissory note. This allegation was simply false, because the Petitioner had paid Bank One $
50,000 to satisfy the debt, not the original amount of the note. Once again, in
the Petitioner's affidavit executed in support of default judgment n3 against
Mr. Hendricks, the Petitioner misrepresented, under oath, that Mr. Hendricks
owed him one-half
[***10] of $ 103, 224.28. n4
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 Mr. Hendricks did not file an answer to the complaint, because he believed
that he had discharged the
promissory note in bankruptcy.
n4 The Petitioner attempted to justify his entitlement to $ 51,612.14 on the
grounds that Mr. Hendricks
owed him money for other reasons. None of the other reasons, however, were alleged
either in the complaint or the affidavit.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
C. HPS'
RECOMMENDATION
Based upon the
above-mentioned factual findings made by the HPS, the HPS
recommended
[**723]
[*658] that Mr. Sayre's petition for
reinstatement be denied, reasoning, in part, that:
After his
disbarment in 1992, he set out to
extinguish a second
deed of trust with the goal of persuading a bank to reduce his
indebtedness and to permit him to sell three parcels of property without encumbrance for $
115,000. To accomplish this result, he engaged in a clever, but deceptive
scheme, involving his own
daughter that, in the opinion of the Hearing Panel Subcommittee, is inconsistent of the
ethical standards expected of
[***11] an attorney and contrary to Rule 8.4 of the
Rules of Professional Conduct.
Having reduced his
indebtedness to the Bank by more than 50%, Mr. Sayre caused a
misleading lawsuit to be filed that falsely claimed that he had paid the Bank the full
amount of the debt. He then executed and filed an equally
misleading affidavit, under oath, to the same
effect which caused the Court to enter an Order awarding him damages that he
knew were not justified by the facts. Such behavior is contrary to that
expected of an attorney pursuant to Rule 3.3(a), Rule 3.4(b), Rule 8.4(c) and
Rule 8(d) of the
Rules of Professional Conduct[.]
II. DISCUSSION
The only issue before the Court is whether the evidence before the HPS
supported its
recommendation that the Petitioner's
license to practice law not be
reinstated. The Petitioner asserts that his law licence should be
reinstated, with conditions, because the decision of the HPS was not based on the
evidence. n5 In contrast, the Respondent maintains that the Petitioner has not
met his burden of proving
rehabilitation, which is a prerequisite to
reinstatement of his law
license.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 The Petitioner also maintains that the HPS grossly failed to conduct its
dealings with the Petitioner within the reasonable bounds of due process. This
argument centers upon the fact that it took nine months from the filing of the
petition on
October 6, 1997, until the first hearing occurred on July 20, 1998. At the
close of the July 1998 hearing, the HPS requested Disciplinary Counsel to
obtain further information. As a result of the HPS' request, Disciplinary
Counsel sought another evidentiary hearing. The Petitioner maintains that
"had Disciplinary Counsel pursued the matter with any diligence during the nine
months . . . no second hearing would have been required." Thus, the Petitioner
"objects to all items pertaining to taxation of costs assessed for the second
hearing." We find the Petitioner's argument on this issue is without merit.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***12]
The following standard of review governs cases arising from the lawyer
disciplinary process:
"A de novo standard applies to a review of the adjudicatory record made before
the Committee on Legal Ethics 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 Committee's
recommendations while ultimately exercising its own independent judgment. On the other hand,
substantial deference is given to the Committee's findings of fact, unless such
findings are not supported by reliable, probative, and substantial evidence on
the whole record." Syl. pt. 3,
Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994).
Syl. Pt. 2,
Lawyer Disciplinary Bd. v. Vieweg, 194 W. Va. 554, 461 S.E.2d 60 (1995).
Whether a lawyer's
license to practice law should be
reinstated, following
disbarment, is determined as follows:
The general rule for
reinstatement is that a
disbarred attorney in order to regain admission to the
practice of law bears the burden of showing that he presently possesses the integrity,
[***13]
moral character and
legal competence to resume the
practice of law. To
overcome the
adverse effect of the previous
disbarment he must demonstrate a record of
rehabilitation. In addition, the court must conclude that such
reinstatement will not have a justifiable and substantial
adverse effect on the
public confidence in the administration of justice and in this regard the seriousness of the
conduct leading to
disbarment is an important consideration.
Rehabilitation is demonstrated by a
course of conduct that enables the court to
[**724]
[*659] conclude there is little likelihood that after such
rehabilitation is completed and the applicant is readmitted to the
practice of law he will engage in unprofessional conduct.
Syl. Pts. 1 and 2,
In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980).
The evidence adduced by the HPS is devoid of any indicia of
rehabilitation or other assurances that the
course of conduct engaged in by the Petitioner which caused the
disbarment is unlikely to occur again. To the contrary, during his
disbarment, the Petitioner continued to
engage in unscrupulous behavior. Moreover, the Petitioner's continued conduct
is substantially similar to that for which
[***14] he was
disbarred in that the Petitioner continues to misappropriate money from innocent parties
for the Petitioner's own use. This type of conduct belies the Petitioner's
claim that he is entitled to have his law
license
reinstated.
Given that the Petitioner has not ceased his continued scheming, this Court is
left to conclude that any
reinstatement of the Petitioner's law
license would have a
"substantial
adverse effect on the
public confidence in the administration of justice . . . ."
Id. at 226, 273 S.E.2d at 567, Syl. Pt. 1, in part. As we reiterated in syllabus point six of
Lawyer Disciplinary Bd. v. Battistelli, 206 W. Va. 197, 523 S.E.2d 257, 1999 WL 965676 (W. Va. 1999),
"'disbarment of an attorney to practice law is not used solely to punish the attorney but
is for the
protection of the public and the profession.' Syl. Pt. 2,
In re Daniel, 153 W. Va. 839, 173 S.E.2d 153 (1970)." It is clear from the record before us that the Petitioner's previous
disbarment has not deterred him from engaging in conduct which violates the
ethical standards expected of attorneys. Thus, Petitioner's continued unprofessional,
[***15] unethical, and possibly criminal conduct necessitates the denial of
reinstatement of the Petitioner's law
license. This Court is obligated to deny licensing an attorney who does not possess the
requisite
moral character, integrity, and
legal competence as a means of protecting the unsuspecting public, as well as the legal
profession itself. See id.
In view of the foregoing, the
recommendation of the HPS that the Petitioner's law
license not be
reinstated at this time is hereby adopted. Given this Court's grave concern over the
Petitioner's conduct since
disbarment, our firm conviction is that the Petitioner must be precluded from seeking
reinstatement of his law
license for a period of not less than five years. Perhaps the Petitioner will then be
able to show that he has become truly rehabilitated and that as a result of
education and
counseling programs, he understands his obligations under the Code of Professional
Responsibility and the enormity of his prior misdeeds. Finally, the Petitioner
is ordered to pay the costs of these proceedings.
The Petitioner's request for
reinstatement of his law
license is hereby denied.
Petition denied.
