Court suspends one, disbars two attorneys

By Lawrence Smith | Nov 26, 2008

CHARLESTON – The licenses of three attorneys have either been suspended or annulled by recent order of the state Supreme Court.

In a press release issued Nov. 19, the Office of Disciplinary Counsel, the investigative arm of the state Bar, announced the Court took disciplinary action against Rodney Toth, Anthony Tatano and John E. Lutz Jr.

On Nov. 5, the Court suspended Toth's license for 91 days and annulled Lutz's license. A week later, Tatano's license was annulled. An annulment carries an automatic five-year prohibition of practicing law.

According to court records, Toth's license, though inactive since November 1993, was suspended by reciprocal agreement with the Florida Supreme Court. Toth, who was admitted to the West Virginia Bar in 1978, and practices in Charlotte , N.C. , was first suspended by the North Carolina Bar on Aug. 5, 2005 for failing to timely disburse funds to third parties on behalf of clients in real estate and personal injury matters and poor recordkeeping.

However, the North Carolina Bar agreed to a three-year stay of Toth's suspension provided he meet certain conditions, including abstaining from alcohol and undergo substance abuse counseling and monitoring. According to the Bar's Web site, Toth failed to meet the conditions as the Bar's Disciplinary Hearing Committee lifted the stay on began his suspension in December 2006.

Because of his suspension in North Carolina, Florida 's Supreme Court likewise suspended Toth for 90 days on Aug. 30, 2007. In addition to the suspension, the Court ordered him to be supervised for two years following reinstatement and reimburse the Bar $1,773.50 for the costs of the disciplinary proceedings.

The Florida Bar's Web site shows Toth is still suspended.

In Tatano's case, records show he was disciplined for a criminal conviction on converting client funds for personal use.

According to a complaint ODC filed on Nov. 2, 2007, Tatano, a Marlinton attorney, "On March 13, 2006…willfully and unlawfully misappropriated and converted certain funds from his IOLTA account that belonged to two minor children for his personal use." In a sworn statement he made to ODC on Oct. 4, 2007, Toth took the funds, $6,000 in all, to prevent foreclosure on his home, but later repaid his clients.

However, on June 12, records show Tatano was charged in Pocahontas Magistrate Court on two misdemeanor charges of embezzlement by misuse of power of attorney. Following his arraignment and release on bond on July 15, Tatano pleaded guilty to the charges on Sept. 22.

That same day, records show Tatano was sentenced to two concurrent six-month terms of unsupervised home confinement, and fined $250 plus $159.53 in court costs. Ironically, Tatano, who was admitted to the Bar in 1999, served as an assistant Pocahontas County prosecuting attorney from Feb. 1, 2002 to Aug. 31, 2007.

According to the Pocahontas County Clerk's Office, his salary was $31,000.08.

As a result of his convictions, ODC on Oct. 1 petitioned the Court that Tatano's license be annulled.

In disciplining Lutz, a Charleston attorney, the Court in its order gave no reason for annulling his license except that it came at Lutz's request. However, a compliant filed by one of Lutz's clients shows the reason he asked for a voluntary annulment may have been to avoid allegations he, too, converted client funds for personal use, particularly to fund a drug habit.

According to a complaint filed with ODC on July 23, Shannon R. Mullins of Belle, says she paid Lutz $7,200 to handle a divorce. Though the date she paid Lutz the money is unclear, Mullins alleges she requested from him on three or four occasions an accounting of the work he'd done.

After a month of not hearing from Lutz, Mullins filed her complaint.
Though she does not say where or from whom, Mullins says in her complaint, "I was told he was in rehab." The reason Mullins believes Lutz wouldn't tell her about her case is that "he was using my money for drugs."

The West Virginia Record attempted to get a comment from Lutz, who was first admitted to the Bar in 1972, concerning his annulment, and Mullins' allegations. A telephone number listed for Lutz was disconnected.

West Virginia Supreme Court of Appeals, Case Nos. 33852 (Toth), 34343 (Tatano) and 34345 (Lutz)

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