Lawyer Disciplinary Board v. Ball
633 S.E.2d 241, 2006 W. Va. LEXIS 56, 219 W. Va. 296 (2006)
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Rule of Law:
A rebuttable presumption of undue influence arises when an attorney actively participates in preparing a will for a client that provides a bequest to the attorney or their close relative. A lawyer who commits a clear and serious violation of duty to a client, such as self-dealing or charging excessive fees, may be required to forfeit all compensation and is subject to the most severe sanctions, including license annulment.
Facts:
- Attorney John Patrick Ball prepared wills for two elderly, unrelated sisters, Vivian D. Michael and Gladys G. Davis.
- The wills drafted by Ball bequeathed an automobile to himself and valuable personal property to his wife.
- Ball drafted the wills to name himself as executor and set his compensation at 7.5% of the total gross estate, a rate significantly higher than the generally accepted maximum of 5%.
- The wills also gave Ball oversight of millions of dollars in funds donated to the WVU Foundation, with a provision allowing him to set his own annual fee, which he negotiated at 1% of the funds' market value.
- After Ms. Michael died, Ball transported the surviving sister, Ms. Davis, to a bank to change the beneficiary of her annuity, valued at nearly $500,000, to Ball's two adult sons.
- Ball later drafted a codicil to Ms. Davis's will which named his wife as the substitute executor and overseer of the charitable funds.
- Ball also prepared a will for another elderly client, Earle L. Elmore, which similarly appointed Ball as executor with a 7.5% fee and gave him fee-setting authority for overseeing charitable funds.
Procedural Posture:
- An investigative panel filed a six-count statement of charges against attorney John Patrick Ball with the Lawyer Disciplinary Board.
- The Office of Disciplinary Counsel (ODC) and Mr. Ball submitted stipulated findings and recommended discipline to a Hearing Panel Subcommittee (Panel).
- The Panel adopted the stipulations and recommended sanctions including a five-year period of inactive status and partial restitution.
- Mr. Ball did not object to the Panel's recommendations.
- The Monongalia County Bar Association was permitted to intervene in the proceeding before the Supreme Court of Appeals of West Virginia.
- The Bar Association filed a brief with the Supreme Court of Appeals, asking the Court to reject the Panel's recommendations and impose full restitution.
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Issue:
Are the recommended sanctions of a five-year inactive status and partial restitution adequate discipline for an attorney who drafted multiple wills that provided substantial gifts to himself and his family, charged excessive executor fees, and created a conflict of interest by overseeing charitable bequests for a fee he set himself?
Opinions:
Majority - Davis, C.J.
No. The recommended sanctions are wholly inadequate for such egregious, intentional, and self-serving misconduct that undermines public confidence in the legal profession. The court rejects the recommendations and instead imposes the annulment of Mr. Ball's license to practice law and orders full restitution of all funds and property he, his wife, and his sons improperly received. The court found that Mr. Ball's actions were not negligent mistakes but a deliberate pattern of misconduct driven by a selfish motive, causing millions of dollars in actual and potential injury to his clients' estates. The court established that ignorance of the Rules of Professional Conduct is no defense and that a client cannot waive the Rules to permit an attorney to engage in prohibited self-dealing. Given the severity and willfulness of the violations, only the sanctions of annulment and complete forfeiture of all improperly gained assets are sufficient to punish the attorney, deter others, and restore public confidence.
Analysis:
This decision significantly strengthens lawyer discipline in West Virginia by establishing a new rebuttable presumption of undue influence when an attorney drafts a will benefiting themselves or their family, shifting the burden of proof to the attorney in such cases. It formally adopts the Restatement's fee forfeiture test, providing a clear framework for disgorging all improperly earned fees as a remedy for serious ethical breaches. The ruling serves as a powerful deterrent, signaling that intentional self-dealing and client exploitation will result in the most severe sanctions—annulment and complete restitution—regardless of any alleged client consent or an attorney's previously clean record.
