Lawrence Smith Nov. 15, 2012, 10:24am
CHARLESTON – In the opinion of the chief justice, the West Virginia Supreme Court's consideration of D. Michael Burke’s disciplinary case was a colossal waste of the Court’s time.
In a blistering four-page dissent, Chief Justice Menis E. Ketchum, joined by Justice Margaret A. Workman, said the Court made a big deal out of a minor error. The Court, he said, ignored its own ruling in the 1976 case of Committee on Legal Ethics of West Virginia State Bar v. Mullins – which Burke cited in his defense - that “[c]harges of isolated errors of judgment or malpractice in the ordinary sense of negligence would normally not justify the intervention of the ethics committee.”
“In 1976, our Court plainly said that an isolated negligent act will not justify the intervention of the ethics committee.” Ketchum said. “Failing to notify the bankruptcy trustee did not make lawyer Burke unworthy of public confidence or an unfit or unsafe lawyer, as the majority opinion seems to suggest.
“It was an inadvertent slip."
If the Burke case becomes the new normal, Ketchum said, then the Court can expect to see an explosion of disciplinary cases for the smallest of infractions.
"I dissent because the majority opinion makes no distinction between a mistake and ethical misconduct,” Ketchum said. “As a result, lawyers had better be careful. Deed lawyers, for instance, had better be extra careful.
“If they now inadvertently leave a word out of a metes and bounds description, they are subject to the whims of the Office of Disciplinary Counsel."