Lawyer Disciplinary Board v. Gregory H. Schillace, a Member of the West Virginia State Bar

FILED
November 29, 2022
EDYTHE NASH GAISER, CLERK
No. 20-0233 – Lawyer Disciplinary Board v. Gregory H. Schillace SUPREME COURT OF APPEALS
OF WEST VIRGINIA
WOOTON, Justice, dissenting:
Based on the facts and circumstances of this case, I respectfully dissent from
the draconian penalty imposed on the respondent, Gregory H. Schillace – a penalty which
is, in practical effect, the death penalty for this solo practitioner’s career.
At the outset, let me note several points of agreement with the majority. First,
there is no question that during the time frame involved in the Statement of Charges (“the
Charges”) the respondent caused harm to a number of clients and committed multiple
violations of the Rules of Professional Conduct, and for that he must pay a price. Second,
I agree that the Hearing Panel Subcommittee (“HPS”) committed clear legal error in
concluding that this Court’s opinion in the case of Rector v. Ross, 245 W. Va. 352, 859
S.E.2d 295 (2021), was dispositive of the ethical violations alleged in Count III of the
Charges. Our holding in Rector was narrow: that because the $5,000.00 fine the circuit
court had imposed on the respondent as a sanction for various acts of misconduct was a
criminal contempt sanction, the respondent was entitled to a jury trial. 1 Nothing in Rector
can be read as bearing on the factual issue of whether the alleged misconduct was proved,
1
See Syl. Pt. 8, in part, In re Frieda Q., 230 W. Va. 652, 742 S.E.2d 68 (2013) (“In
any contempt case where the sanction imposed is either (1) a determinate term of
incarceration, or (2) a monetary penalty payable to the State or to the court, the contemner
is entitled to a jury trial.”).
1
as the HPS seemed to believe. Third, I agree with the majority that three aggravating factors
recognized in our case law were established by unrebutted evidence: pattern of misconduct,
multiple offenses, and substantial legal experience.
However, I strongly disagree with the majority’s finding that selfish motive
was established; the undisputed evidence showed that the petitioner was motivated not by
greed but by depression – a depression that caused him to ignore his duties to his clients
and then stick his head in the sand as things fell apart. Further, I disagree that these
aggravating factors come close to outweighing the substantial mitigating factors present in
this case, where the facts fall squarely within this Court’s holding in Lawyer Disciplinary
Board. v. Dues, 218 W. Va. 104, 624 S.E.2d 125 (2005):
In a lawyer disciplinary proceeding, a mental disability
is considered mitigating when: (1) there is medical evidence
that the attorney is affected by a mental disability; (2) the
mental disability caused the misconduct; (3) the attorney’s
recovery from the mental disability is demonstrated by a
meaningful and sustained period of successful rehabilitation;
and (4) the recovery arrested the misconduct and recurrence of
that misconduct is unlikely.
Id. at 105, 624 S.E.2d at 126, Syl. Pt. 3; see also Law. Disciplinary Bd. v. Scott, 213 W.
Va. 209, 218, 579 S.E.2d 550, 559 (2003) (“I agree that the attorney here should not
practice law until he can show that his condition has improved. However, I would permit
reinstatement of the attorney's law license upon a showing that his illness is under control
and will not adversely affect the public interest.”) (McGraw, J., dissenting).
2
In the underlying proceedings, the HPS, which heard the testimony of
thirteen witnesses, reviewed sixty-seven exhibits, and issued a fifty-six-page report,
recommended that the respondent’s law license be suspended for two years, “provided that
the imposition of that suspension is stayed and the Respondent placed on a period of Three
(3) years of probation and supervised practice.” (Emphasis added). Unsatisfied with this
recommendation, the majority refuses to stay any of the suspension, notwithstanding that
the mitigating factors here far outweigh any aggravating factors; that the respondent’s
mental condition (depression) was “a substantial cause of the misconduct” which, in the
opinion of his treating therapist, is unlikely to recur if the respondent continues to receive
treatment; that the respondent has, in fact, continued to receive treatment; that the
respondent has implemented changes in many aspects of law office management in
response to suggestions made by a consultant he hired for this express purpose; and that in
the period of time (close to three years) which has elapsed since the filing of these charges,
the respondent has continued to practice law with no problems or complaints arising from
his handling of his cases. This final factor has heightened significance, because the lengthy
suspension of the respondent’s law license imposed by the majority will create immediate
chaos in all of his pending cases; all of the clients will have to find new counsel – a process
fraught with practical difficulties, allocation of fees being just one – which in turn will
result in substantial delay in the resolution of their cases. Moreover, in light of the
3
respondent’s age 2 and his status as a sole practitioner, a two-year suspension of his license
to practice law virtually guarantees that his legal career is over.
My research discloses that in the dozens of lawyer disciplinary cases decided
by this Court in the past decade, 3 the vast majority resulted in suspensions measured in
months rather than years. As for the remaining cases, setting aside those in which the
attorney respondents have been disbarred as a result of conduct so egregious that allowing
them to retain a law license is deemed a disservice to the Bar and a danger to the public, 4
there have been only nine occasions on which this Court has suspended an attorney’s
license for two years or longer without staying any part of the penalty. 5 In light of the facts
2
The respondent has been a member of the West Virginia Bar for more than thirty
years.
In my review I have not included any discussion of cases that were decided by
3
unpublished orders, cases involving reciprocal discipline, or cases involving reinstatement.
See Law. Disciplinary Bd. v. Robinson, 230 W. Va. 18, 736 S.E.2d 18 (2012); Off.
4
of Disciplinary Couns. v. Rogers, 231 W. Va. 445, 745 S.E.2d 483 (2013); Law.
Disciplinary Bd. v. Scotchel, 234 W. Va. 627, 768 S.E.2d 730 (2014); Law. Disciplinary
Bd. v. Clifton, 236 W. Va. 362, 780 S.E.2d 628 (2015); Law. Disciplinary Bd. v. Kohout,
238 W. Va. 668, 798 S.E.2dd 192 (2016); Law. Disciplinary Bd. v. White, 240 W. Va. 363,
811 S.E.2d 893 (2018); Law. Disciplinary Bd. v. Hart [Hart II], 241 W. Va. 69, 818 S.E.2d
895 (2018); Law. Disciplinary Bd. v. Ryan, 241 W. Va. 264, 823 S.E.2d 702 (2019); Law.
Disciplinary Bd. v. Morgan, 243 W. Va. 627, 849 S.E.2d 627 (2020); Law. Disciplinary
Bd. v. Hatfield, 244 W. Va. 285, 852 S.E.2d 785 (2020).
In Lawyer Disciplinary Board v. Sidiropolis, 241 W. Va. 777, 828 S.E.2d 8395
(2019), the two-year suspension imposed on the respondent was stayed after two months,
and in Lawyer Disciplinary Board v. Marcum, 245 W. Va. 760, 865 S.E.2d 502 (2021), the
two-year suspension imposed on the respondent was stayed after six months.
4
and circumstances of this case, I cannot agree that the respondent should be the tenth
member of this Ring of Dishonor. In this regard, a brief review of the cases demonstrates
that none of them are factually on point with the instant case.
For example, in Lawyer Disciplinary Board v. Aleshire, 230 W. Va. 70, 736
S.E.2d 70 (2012), this Court imposed a three-year suspension based on what we deemed
the respondent’s “egregious conduct” in his representation of two clients, specifically,
failing to file one client’s tax returns, causing her to be investigated by the Internal Revenue
Service; refusing to deliver a deed for a property another client had purchased, causing the
client to lose the use of the property for more than two years; causing actual financial harm
to both clients; charging unauthorized attorney fees; and attempting to condition a
settlement of a client’s claim on the client’s withdrawal of an ethics complaint. Id. at 74-
77, 736 S.E.2d at 74-77. Additionally, the respondent had failed and refused to respond to
requests for information from the ODC or to otherwise cooperate in the investigation of
the complaints. Id. at 75, 736 S.E.2d at 75. The HPS found the existence of six aggravating
factors, all of them substantial and serious, which the respondent countered by citing as a
mitigating factor – his sole mitigating factor – that he was ignorant of the Rules of
Professional Conduct and was “out of his depth in his substantive areas of practice.” Id. at
79, 736 S.E.2d at 79. Not surprisingly, this Court found that this so-called mitigating factor
was in fact another aggravating factor for an attorney who had been practicing law for ten
years. Id.
5
In Lawyer Disciplinary Board v. Elswick, 231 W. Va. 684, 749 S.E.2d 577(2013), this Court imposed a two-year suspension on the respondent, an assistant public
defender, for concealing evidence in a criminal case from her superior which in turn caused
him – unwittingly – to make false statements to the court with respect to the anticipated
testimony of a witness in habeas corpus proceedings. Id. at 687-89, 749 S.E.2d at 581-82.
Additionally, the respondent knowingly attached what she knew to be the witness’ false
statement to a motion, and then intentionally elicited those same false statements in the
witness’ deposition. Id. at 690, 749 S.E.2d at 583. 6 Although the Court reduced the HPS’s
recommended three-year sentence to a two-year sentence, in light of the fact that
respondent was relatively inexperienced in the practice of law and wholly inexperienced
in dealing with manipulative serial killers, 7 we reiterated that her “misconduct was more
diverse and extended over a longer period of time[]” than the conduct of an attorney in a
somewhat similar case who had received only a one-year suspension. Id. at 695, 749 S.E.2d
at 588 (citing Law. Disciplinary Bd. v. Smoot, 228 W. Va. 1, 716 S.E.2d 491 (2010)).
6
It is suggested that the respondent engaged in a personal relationship with the
witness, who was on death row in Texas, in order to encourage him to confess to the crimes
for which her client had been convicted. Elswick, 231 W. Va. at 694, 749 S.E.2d at 587.
7
As noted in the Court’s opinion, the witness in question “is the subject of a book
by D. Fanning entitled Through the Window: The Terrifying True Story of Cross-Country
Killer Tommy Lynn Sells.” Id. at 687, n.1, 749 S.E.2d at 580, n.1.
6
In Lawyer Disciplinary Board v. Busch, 233 W. Va. 43, 754 S.E.2d 729(2014), this Court imposed a three-year suspension on the respondent, then the Randolph
County Prosecuting Attorney, for making material representations to the circuit court, to
opposing counsel, and in court documents on multiple occasions, in an attempt to withhold
information from defense counsel in two criminal cases. Id. at 47-51, 754 S.E.2d at 733-
37. This Court found that the respondent’s actions were intentional, and that he “was
provided with many opportunities to correct the misstatements and inaccuracies that he
portrayed to the lower court. When those opportunities arose, he did not take advantage of
them. His pattern of misconduct only deepened the misrepresentations made to the court.”
Id. at 54, 754 S.E.2d at 740. In affirming the HPS’s recommendation of a three-year
suspension, we noted the existence of multiple aggravating factors, including the fact that
the respondent was a public official; in this latter regard, we noted that historically we had
“placed great emphasis on the importance of the community’s trust in the matter of public
office.” Id. at 56, 754 S.E.2d at 742.
In Lawyer Disciplinary Board v. Stanton, 233 W. Va. 639, 760 S.E.2d 453(2014), this Court imposed a three-year suspension on the respondent based on his
inappropriate romantic relationships – one of them sexual – with two incarcerated clients. 8
8
Although the respondent “vacillated throughout these proceedings as to whether
he was an attorney for [the two women],” the HPS found that “the evidence exceeds that
of clear and convincing evidence that Respondent was [the women’s] attorney.
Respondent’s self-serving statements to the contrary are false statements of material fact.”
Stanton, 233 W. Va. at 646, 760 S.E.2d at 460.
7
Id. at 642, 760 S.E.2d at 456. At the hearing on the charges, the respondent appeared in
shorts, a t-shirt and running shoes, listened to the testimony of two witnesses, and then,
after advising the HPS that he “was going out for a breath of fresh air,” got into his truck
and left. Id. at 643, 760 S.E.2d at 457. Given the respondent’s attitude toward the
disciplinary process, which could most charitably be characterized as insouciance but
appeared to the HPS (and to this Court) as contemptuous disrespect, it is little wonder that
this Court found the HPS’s recommended sanction to be appropriate. Further, noting that
the respondent was formerly general counsel for the Department of Corrections and thus
had knowledge of the rules and regulations governing prison facilities, this Court found
that “lawyers who engage in the type of conduct exhibited by Mr. Stanton must be severely
sanctioned[]” in order “for the public to have confidence in our disciplinary and legal
systems[.]” Id. at 652, 760 S.E.2d at 466.
In Lawyer Disciplinary Board v. Rossi, 234 W. Va. 675, 769 S.E.2d 464(2015), this Court imposed a three-year suspension on the respondent based on his failure
to diligently represent six clients, his refusal to return the clients’ files to them upon request,
his refusal to follow the ODC’s directive to return those files, and his failure to respond to
correspondence from the ODC. Id. at 677-81, 769 S.E.2d at 466-70. Indeed, during the
course of the disciplinary proceedings the respondent failed to contact the Lawyer
Assistance Program after being directed to do so and failed to file a brief after being ordered
8
by this Court to do so. 9 Although the respondent claimed that his misconduct was the
result, in part, of depression, the Court refused to consider this as a mitigating factor
because “Mr. Rossi did not present any medical evidence supporting his contention that he
suffered from depression or that he sought treatment for this depression.” Id. at 685-86,
769 S.E.2d at 474-75.
In Lawyer Disciplinary Board v. Hart [Hart I], 235 W. Va. 523, 775 S.E.2d
75 (2015), this Court imposed a three-year suspension on the respondent based on his
failure to diligently represent seven clients; failure to release settlement funds to clients for
extended periods of time; failure to return unearned fees; failure to respond to numerous
requests for information – twenty-one in all – by the ODC; and failure to abide by “orders
from this Court regarding handling of appeals in certain cases, as well as rebuffing the
directive to file a response brief in the disciplinary matters currently before us for decision.”
Id. at 527-32, 535, 775 S.E.2d at 79-84, 87. The Court noted that there were multiple
aggravating factors in the case but no mitigating factors; as had been the situation in Rossi,
the respondent failed to present any medical evidence as to his claimed depression and no
9
Citing to an earlier case, Lawyer Disciplinary Board v. Grindo [Grindo I], 231 W.
Va. 365, 371, 745 S.E.2d 256, 262 (2013), the Court noted that “[t]he fact that [the
respondent] failed to respond to the deadlines and entreaties of this Court regarding the
filing of briefs certainly weighs heavily against [him].” Rossi, 234 W. Va. at 686, 769
S.E.2d at 475.
9
evidence showing “that the alleged disability caused the misconduct because it appears that
Mr. Hart never sought treatment.” Id. at 537, 775 S.E.2d at 89. 10
In Lawyer Disciplinary Board v. Cooke, 239 W. Va. 40, 799 S.E.2d 117(2017), the first of several cases involving overbilling of the West Virginia Public Defender
Services (“PDS”), 11 this Court imposed a two-year suspension on the respondent for
conduct that was later summarized in Grindo II as “billing an obviously false number of
hours to the PDS . . . billing for the same travel in multiple cases . . . [and] commit[ing]
unethical acts in two others [sic] other matters.” 12 Grindo II, 243 W. Va. at 141, 842 S.E.2d
at 694. Ironically, although the respondent attempted to claim a medical condition as
mitigation – low testosterone, which caused him to sleep ten to sixteen hours a day – we
noted that this was highly incriminating evidence as to the authenticity of bills the
respondent submitted to PDS claiming fifteen to twenty hours of case-related work on each
of thirty-seven different days. Id. at 50, 799 S.E.2d at 127. We also noted that with respect
10
The respondent was ultimately disbarred for various offenses, including failure to
attend to the duties of a suspended lawyer. See Hart II, 241 W. Va. at 92, 818 S.E.2d at
918.
11
See also Law. Disciplinary Bd. v. Hassan, 241 W. Va. 298, 824 S.E.2d 224(2019); Law. Disciplinary Bd. v. Grindo [Grindo II], 243 W. Va. 130, 842 S.E.2d 683(2020).
12
One of those other matters was an abuse and neglect case in which the respondent
failed to file a timely guardian ad litem brief, resulting in delay which “is not only a gross
disservice to [the guardian’s] infant client, but also actively perpetuates the continuing
harm occasioned by the lack of permanency.” Cooke, 239 W. Va. at 53, 799 S.E.2d at 130.
10
to one of the other (non-billing) matters, the respondent had “persistent[ly] refus[ed] to
respond to ODC, PDS, and particularly this Court,” id. at 53, 799 S.E.2d at 130,
“[i]ncredibly, despite receiving the HPS’ recommendation of suspension of his law license
and despite assurances to the HPS that he had rectified this dilatory conduct, Cooke
likewise filed his response brief in the instant matter untimely.” Id. We summed up as
follows:
Cooke’s defrauding of the State through overbilling, gross
mishandling of a client matter and funds, his dereliction of duty
to his infant clients as a guardian ad litem – all of which is
compounded by his unrelenting pattern of unresponsiveness
and empty reassurances of remediation – plainly justify this
degree of discipline.
Id. at 55, 799 S.E.2d at 132.
In Lawyer Disciplinary Board v. Sirk, 240 W. Va. 274, 810 S.E.2d 276(2018), this Court imposed a three-year suspension on the respondent, who had
misappropriated client funds and thus “breache[d] one of the fundamental duties of this
profession . . . [which] perhaps more than any other, sullies the reputation of the entire
legal profession and not merely the errant practitioner.” Id. at 282, 810 S.E.2d at 284.
Additionally, the respondent had committed post-complaint infractions, including
“ignor[ing] a directive of this Court when he failed to file a responsive brief. Not only does
this behavior evince a disturbing pattern of misconduct, but it also shows a failure to obey
an obligation imposed by a tribunal.” Id. at 280, 810 S.E.2d at 282. Concluding that the
11
aggravating factors in the case far outweighed the mitigating factors, and reiterating that
“[t]here are few more egregious acts of professional misconduct of which an attorney can
be guilty than misappropriation of a client’s funds held in trust,” id. at 283, 810 S.E.2d at
285 (citation omitted), this Court concluded that the severe penalty imposed was necessary
“to maintain the integrity of the State Bar.” Id.
Finally, in Grindo II, this Court imposed a two-year suspension on a repeat
offender 13 who had overbilled the PDS and, in the course of doing so, made false statements
to the circuit courts who reviewed and approved his vouchers, to the PDS, and ultimately
to the ODC. 243 W. Va. at 132, 842 S.E.2d at 685. In upholding the HPS’s recommended
sanction, the Court first noted that “public money was used to pay for the respondent’s
overbilling. ‘This Court considers the protection of the public and the State coffers of
paramount importance, particularly as pertains to lawyer disciplinary matters.’” Id. at 139,
842 S.E.2d at 692. Further, we found that there were no mitigating factors in the case. Id.
at 141, 842 S.E.2d at 694. Summarizing the facts, we wrote that “the respondent had a
business model of billing paralegal work at illegal rates, he lied about self-reporting, and
there are no factors to mitigate his sanction.” Id. at 142, 842 S.E.2d at 695.
13
In Grindo I “this Court publically [sic] reprimanded [the respondent] for his
conduct in two separate cases where he failed to act diligently, failed to expedite his clients’
cases, and failed to comply with court orders requiring him to file briefs.” Grindo II, 243
W. Va. at 140, 842 S.E.2d at 693.
12
There is a critical commonality in all of the cases discussed above: the
aggravating factors far outweigh any mitigating factors – indeed, in several of the cases
there are no mitigating factors at all. Here, in contrast, the aggravating factors are far
outweighed by the substantial mitigating factors – even the pared down list accepted by the
majority. 14 In many of the cited cases it is noted that the respondent attorneys refused to
cooperate with the ODC and/or the HPS; here, in contrast, the respondent cooperated
throughout the investigatory and adjudicatory proceedings. Many of the cited cases
involved commingling or theft of client funds; here, in contrast, there was no evidence of
any financial gain on the respondent’s part. Although in several of the cited cases the
respondent attorneys claimed to suffer from depression, there was a complete absence of
any proof to substantiate the claims, as well as an absence of any proof that the attorneys’
misconduct was caused in whole or in part by any mental condition. Here, in contrast, the
respondent’s depression is well documented, he has been in a lengthy course of treatment
for the condition, and the HPS specifically found that the respondent’s misconduct was
caused primarily by his mental condition. Critically, the record supports the HPS’s finding
that the misconduct is not likely to recur – and indeed, has not recurred in the three years
since the respondent began treatment.
14
The majority agrees that the petitioner’s emotional problems, mental impairment,
interim rehabilitation, and character and reputation, are all mitigating factors to be
considered.
13
In summary, I do not believe the respondent’s penalty must or even should
be congruent with the penalties imposed in the cited cases, as the facts and circumstances
of this case fall squarely within this Court’s rationale and holding in Dues. See 218 W. Va.
at 105, 624 S.E.2d at 126, Syl. Pt. 3. Accordingly, this Court should temper justice with
mercy, following the example set not only in Dues 15 but also in Sidiropolis and Marcum. 16
In this regard, in Sidiropolis, where the respondent attorney, an addict, had pleaded guilty
in federal court to conspiracy to distribute a large quantity of heroin, 21 U.S.C. § 842(a)(1),
we found that
[t]he conduct underlying these disciplinary proceedings is
quite serious and reflects how addiction issues, particularly
involving heroin, are becoming all too common in our State
and our Nation. However, this proceeding offers
encouragement that recovery is possible with the proper
assistance. Thus, while Mr. Sidiropolis’ criminal conduct
cannot be ignored, we find it appropriate in this instance to, in
determining the proper sanction, recognize his hard-earned
recovery and his dedication to his own sobriety and to that of
others around him.
241 W. Va. at 788, 828 S.E.2d at 850 (emphasis added). In Marcum, another case involving
an attorney who was both addicted to drugs and criminally involved in their distribution,
15
In Dues, where the respondent attorney was found to have committed thirty-nine
violations of the Rules of Professional Conduct, this Court reduced the proposed penalty
to a public reprimand and a restriction on the respondent’s practice whereby the only legal
work he could perform for twenty-four months was in his capacity as a mental health
commissioner. 218 W. Va. at 114, 624 S.E.2d at 135.
16
See supra note 5.
14
we found that the respondent could not bring himself within the rationale of Sidiropolis
for several reasons: first, he was an elected member of the West Virginia House of
Delegates – a serious aggravating factor, 17 and second,
rather than take deliberate steps to ensure that his drug
addiction did not adversely impact his client’s interests,
respondent knowingly represented a client with whom he had
a conflict of interest and with whom he engaged in criminal
activity. Further, he proceeded to negotiate a plea agreement
for Mr. Marcum without disclosing his own criminal
involvement with him.
Id. at 776, 865 S.E.2d at 518. Nonetheless, the two-year suspension imposed on the
respondent was stayed after six months, a penalty harsher than that imposed in Sidiropolis
but far less than that imposed in the instant case.
Where, as here, the evidence establishes that the respondent’s misconduct
was the result of a mental condition for which he is receiving ongoing treatment; that he
has learned from his mistakes; and that he has already proved, throughout the course of “a
17
We noted that
“[t]his Court has emphasized that a lawyer who holds public
office is held to a higher ethical standard because of his or her
position of public trust: ‘Ethical violations by a lawyer holding
a public office are viewed as more egregious because of the
betrayal of the public trust attached to the office.’”
Marcum, 245 W. Va. at 776, 865 S.E.2d at 518 (citing Syl. Pt. 3, Comm. On Legal Ethics
v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989)).
15
sustained period of successful rehabilitation[,]” 18 that future misconduct is unlikely, I
would impose a two-year suspension and require the respondent to serve three months of
it, with the remainder stayed for a twenty-one month term of supervised probation by a
West Virginia licensed attorney in good standing tasked with providing quarterly reports
to the ODC. Under the facts and circumstances of this case, the respondent’s ethical
violations, although serious, do not warrant putting a wrecking ball to his career and
livelihood.
For these reasons, I respectfully dissent.
18
See Dues, 218 W. Va. at 105, 624 S.E.2d at 126, Syl. Pt. 3, in part.
16