CHARLESTON – The state Supreme Court has suspended the law license of a Wheeling attorney for two years.
Paul J. Harris also will have to pay the costs of the disciplinary proceedings as well as nearly $35,000 to one of the clients in question, according to the March 21 ruling written by Chief Justice Bill Wooton.
Harris had objected to the state Lawyer Disciplinary Board’s Hearing Panel Subcommittee recommendation of annulment. He had been charged with three counts including 23 violations of the rules of conduct. Oral arguments were heard January 14, where Harris said the charges should be dismissed and that HPS had not followed the Rules of Lawyer Disciplinary Procedure.
The justices found the violations of the state Rules of Professional Conduct alleged in Count 1 were not proven by clear and convincing evidence. As to Count 2, the court found Harris committed seven of the eight rule violations identified by the HPS. And the HPS previously had recommended dismissal of Count 3.
“This disciplinary proceeding yielded numerous pre-hearing filings and contentious objections during the February 20 and 21, 2024, evidentiary hearing, during which 21 witnesses testified before the HPS and over 3,600 pages of exhibits were admitted as evidence,” the Supreme Court ruling states. “Our discussion is necessarily limited to those facts pertinent for contextual development and analysis of the HPS’s findings and recommendations.”
The first count pertains to Harris’s representation and conduct during serial litigation involving Emil Nardone and his now ex-wife Healy Baumgardner. Attorney Elgine H. McArdle represented Baumgardner, a former Fox News analyst and adviser to President Donald Trump and George W. Bush, in an Ohio County divorce proceeding.
In the second count against Harris, Rocky A. Tingler filed an ethics complaint against him in 2021 alleging he paid Harris $50,000 in 2017 to represent him in a federal criminal case. Tingler says Harris never appeared on his behalf, didn’t appear at any hearings and didn’t consult with him about the case.
“Through a variety of separate assignments of error, Harris argues generally that ODC failed in its requisite burden to establish the rule violations that form the basis of the HPS’s recommended sanction,” the ruling states. “He argues further that the HPS’s recommendation that his law license be annulled is disproportionate because the complainants were not injured and their complaints were motivated by animosity toward him.”
Like the HPS, the justices found that reliable and probative evidence supports Tingler’s testimony that he believed the $50,000 a mere starting point for his defense and therefore, an advance payment of fees. Thus, the court says Harris did violate Rules 1.15(a) and 1.15(b) prohibiting commingling of attorney and client funds. And by treating Tingler’s retainer as an advanced payment, Harris’s failure to refund amounts after termination for which he did not purport to perform itemized work violates Rule 1.16(d), requiring return of unearned, advanced fees upon termination.
The court says Harris also failed to properly communicate the fee in writing in violation of Rule 1.5(b), and it says the fee violated Rule 1.5(a) by being unreasonable and Rule 8.4(c) by being deceitful and Rule 8.4(d) by being prejudicial to the administration of justice.
“Having found seven violations of the Rules of Professional Conduct in regard to Count 2, we turn now to the appropriate sanction. Because the additional 15 violations in Count 1 were not proven by clear and convincing evidence, it is self-evident that the HPS’s recommendation of annulment of Harris’s law license likely no longer presents a proportionate sanction,” Wooton wrote. “With respect to these factors, we agree generally with the HPS’s statement that safekeeping of client funds is one of the most serious duties imposed upon a lawyer.
“We find it significant that Harris’s retention and consumption of Tingler’s retainer without earning his fee caused Tingler to require public funds to pay for his defense. As such, Harris’s mishandling of the fee violated duties not only to his client, but to the public, the legal system, and the profession.”
The court said there was intent, not negligence in Harris’s conduct.
“The rule violations committed by Harris were not grounded in uncertainty about our rules, but rather were borne of the type of intentional fee-gouging they were designed to prevent,” Wooton wrote. “Harris collected a fee, performed little to no work to earn it, periodically dipped at will into the funds — which were being housed with other client funds — and then attempted to engineer file materials and billing entries to justify it.”
But the court says the ODC and HPS suggestion that Harris misappropriated or converted client funds warranted annulment.
“At the heart of the Tingler complaint is an unreasonable and mishandled fee,” Wooton wrote. “And although we acknowledge that Harris’s conduct smacks of intentional fee-gouging, the cases relied upon by ODC supporting annulment for ‘knowing misappropriation’ of client funds involve conversion of undisputed client monies held in trust — such as settlement funds or sale proceeds — rather than amounts designated and disputed as fees.”
The court does say Harris’s substantial experience and two prior Rule 1.15 admonishments are “obviously aggravating.”
“And while we do not consider disciplinary matters that are closed without sanction as aggravating, we would be remiss if we did not acknowledge the express warnings previously issued to Harris by the Lawyer Disciplinary Board for his fee practices in other highly similar complaints,”
Wooton wrote. “In response to Harris’s identical defense that a disputed fee constituted a ‘non-refundable flat fee,’ the board cautioned Harris that ‘all fees must be reasonable, including so called nonrefundable retainers and flat fees. ...
“Given his two prior admonishments and these express warnings, we find Harris’s prior disciplinary record markedly aggravating.”
The court also agrees with the HPS that Harris’s conduct reflected a dishonest or selfish motive.
“Courts have applied the aggravating factor of dishonest or selfish motives in cases where the lawyer intends to benefit financially from prohibited transactions,” the ruling states. “Although not tantamount to misappropriation or conversion of undisputed client monies, there is little question that the circumstances presented herein reflect Harris’s intent to fee-gouge Tingler for Harris’s financial gain.”
The justices also note Harris’s lack of remorse.
“Harris’s defense of Count 2 culminated in threatening attorney Summers with a lawsuit if a complaint was filed,” Wooton wrote. “Before this court, Harris attempted to discredit Tingler by repeatedly referencing his ‘multiple felony convictions.’ Even his belated refund of a small portion of the retainer was characterized as a ‘courtesy’ rather than an obligation under the rules.
“Upon this record, we have little difficulty finding Harris’s lack of remorse a significantly aggravating factor.”
The court also says that if Harris is reinstated to practice law, he must secure, at his own expense, a certified public accountant to perform annual audits of the accounts associated with his practice for a period of three years and to provide those audits to ODC.
The court also says Harris must pay $34,995 in restitution to Tingler, which it says is the remaining balance of the $50,000 retainer not already refunded less some expenses.
West Virginia Supreme Court of Appeals case number 23-419