WEST VIRGINIA RECORD

CHARLESTON -- The state Supreme Court has annulled the license of a Morgantown attorney and ordered he pay back more than $2 million he received from the estates of two clients.

In doing so, the justices rejected lesser penalties suggested by the State Bar's Lawyer Disciplinary Board against John Patrick Ball, who was executor of the estates of Vivian D. Michael and Gladys G. Davis. The court says Ball charged excessive executor fees and altered the wills to benefit himself.

Michael and Davis, who were sisters, bequeathed $18.4 million to the West Virginia University Foundation. The wills also left $64,000 in property to Ball and his wife. The property included a vehicle and jewelry.

After four months after Michael died on Jan. 6, 1998, Ball drove Davis to Huntington Bank in Morgantown to have Davis change the beneficiary of an annuity she owned from her late sister to Ball's two adult children, Whitney L. Ball and John P. Ball Jr.

"Mr. Ball knew in advance that his two sons would be named beneficiaries of the annuity," the court decision, written by Chief Justice Robin Jean Davis, said. "In fact, Mr. Ball provided Ms. Davis with the addresses and social security numbers of his sons for the purpose of making the changes. When Ms. Davis died in 2001 (Jan. 3, 2001), the annuity was valued at $487,783.13."

The wills of Michael and Davis also stated that the executor would be compensated at 7.5 percent of the total gross estates.

"At the time each will was drafted by Mr. Ball, the generally accepted maximum charge for administering an estate was 5 percent of the total gross estate," the court wrote. "At the death of Ms. Michael, her estate was valued at $10,052,223.18. At the time of Ms. Davis' death, her estate was valued at $11,495,391.00. As the executor of Ms. Michael's estate, Mr. Ball received $785,996. Mr. Ball received $837,362 as executor of Ms. Davis' estate."

The sisters' wills also allowed Ball to set the fee he would charge to oversee their gifts to the WVU Foundation.

The court decision says "negotiated an agreement with the Foundation to obtain an annual fee of 1 percent of the market value of the respective funds bequeathed by each sister. ... Subsequent to signing the agreement, Mr. Ball received a total of $336,889.61 from the Foundation."

In its opinion, the court rejected the State Bar's Hearing Panel Subcommittee and the Office of Disciplinary Counsel's recommendations for Ball. Those recommendations included that Ball not be allowed to practice law for five years.

"Even a strong desire by the client to bequeath property to a lawyer will not justify the lawyer in drafting such a will," the court wrote. "Lawyers who would enjoy the right to inherit property from persons disposed to favor them must take extreme pains to distance themselves from any professional activity incident to establishing the bequest. All professional advice and legal work in such an undertaking must come from an independent lawyer of the client's, not the initial lawyer's, choosing."

The Court also says Ball intentionally violated the Rules of Professional Conduct despite his assertion that he wasn't aware that he violated those rules.

The Rules of Professional Conduct speak for themselves," the court wrote. "To the extent that a lawyer ignores the well-reasoned prohibitions and duties under those Rules, he/she does so at his/her own peril. Mr. Ball chose to ignore the Rules. He now attempts to cloak his misconduct in the guise of innocent mistakes. We find Mr. Ball's position to be insulting to the integrity of the Rules and to this Court.

"Rather than taking full responsibility for his misconduct by admitting what the evidence conclusively establishes, Mr. Ball argues that although he practiced law for over thirty years, he did not know that charging excessive fees, drafting self-aggrandizing wills and assisting a client to enrich his children constituted conduct that was prohibited by the Rules."

In seeking mercy, Ball had cited mitigating factors, including the lack of previous disciplinary action against him, his cooperation and remorse.

But, "the record does not support Mr. Ball's contention that his conduct lacked a dishonest or selfish motive," the court wrote.

"Mr. Ball's length of experience in the practice of law aggravates the misconduct in this case because it suggests that his misconduct was the product of deliberate calculation."

"The egregious conduct by Mr. Ball demands that his license to practice law be annulled."

In doing so, the Court also ordered Ball to make restitution of all funds he received as executor of Michael's estate of at least $785,996 and the same to Davis' estate of at least $837,362. He also must repay funds he received as trustee for the trust established for Davis of at least $318,933. Also, he must repay the value of the property he and his wife received from their estates of at least $64,300 and the funds paid to his sons as beneficiaries of Davis' annuity of at least $487,783.13. In addition, he has to repay the money he received for overseeing the funds bequeathed to WVU Foundation of at least $336,889.61 and must forego further oversight of the funds donated to the WVU Foundation.

Justice Larry Starcher disqualified himself from the case. Kanawha Circuit Judge Jennifer Bailey Walker heard the case in his place.

West Virginia Supreme Court of Appeals case number: 31794