Attorney Phillip B. Ball indicted on charges of embezzlement and fraudulent schemes

Oct. 18—PRINCETON — A Mercer County attorney has been indicted on charges including embezzlement and fraudulent scheme after being reviewed by the state Supreme Court for alleged misconduct involving the misappropriation of stock from a trust fund.

Phillip B. Ball was indicted by the October 2023 Mercer County Grand Jury on charges including embezzlement and fraudulent schemes, according to the criminal docket at the Mercer County Circuit Clerk's Office.

Ball's case was recently before the Lawyer Disciplinary Board at Supreme Court of Appeals of the State of West Virginia, according to court documents filed Sept. 25 at the supreme court.

Formal charges were filed against Ball with the Clerk of the Supreme Court of Appeals on or about July 21, 2022 and served on his council, John Carr, via certified mail on July 25, 2022. The Chief Disciplinary Counsel, Rachael F. Fletcher Cipoletti, filed her mandatory discovery on or about Aug. 15, 2022, according to court documents.

Ball, who was counsel for the Mercer County Sheriff's Department, was handling a trust fund established in the will of the late Fred B. Warden, who passed away on April 16, 2012. When Warden passed away, he owned a variety of property and assets including "liquid monetary assets in banks, real estate, as well as stock in BB&T Corporation, First Community Bank, and One Valley Bank," according to court documents. As part of the estate planning, Warden had established a trust for the purpose of caring for his daughter, Leslee Burton, for life, with the remainder of any trust assets passing to other relatives upon her death.

In 2019, Burton's attorney, John E. Williams, suggested using the trust to buy a home for his client. Buying a home was outside the court's purview regarding the trust, so court approval was required. In November 2019, Williams prepared a petition for approval to buy a home for Burton with money from the trust, according to court documents.

At the November 2019 hearing on Burton's petition, both Williams and attorney Harold B. Wolfe III, who passed away on Jan. 26, 2022, "indicated that approximately $77,000.00 remained in the trust for Ms. Burton," according to court documents.

Circuit Court Judge William Sadler approved buying a home, "but expressed surprise that only $77,000.00 remained in the Trust," according to the court document. "Concerned, Judge Sadler testified that he later reviewed the final settlement of the Estate in the Court file and did some rough calculations, and determined that there should be at least twice the amount that the Sheriff's Department reported was in the Trust."

Judge Sadler later testified that "Attorney Wolfe stated that he would go to the sheriff. Wolf contacted Jessica Tibbs, an administrative assistant to the sheriff, to determine how 'almost $200,000.00 worth of assets had been reduced to approximately $77,000.00 in roughly six years.'" Tibbs provided copies of the bank statements which outlined the deposits and withdrawals relating to the trust account. From review of the documents, the trust corpus was never the approximate $196,000.00 as previously referenced in the Court's order creating the Trust," according to the court document.

By an order entered on Dec. 11, 2019, because it was discovered that the funds were not deposited into the trust as previously ordered by the court, Wolfe was directed, as the trustee's council, to obtain all financial records relating to the estate and the trust. Wolfe learned that "the entirety" of Fred B. Warden's shares of stock in First Community Bank were transferred to the Respondent (Ball) and his wife as joint tenants on or about March 12, 2015. The entirety of Warden's stock shares in BB&T were transferred to Ball and his wife on or about March 13, 2015, according to the court document.

Judge Sadler later testified that "Attorney Wolfe did not represent to him that he believed Respondent's (Ball's) actions were inadvertent," according to the court document. "Judge Sadler also testified that he also did not 'know how anybody could transfer stock that belonged to a trust and should be titled in a trust or at least titled in the estate or Mr. Warden's name, could inadvertently transfer that into a personal account. I mean maybe to a trust account or something like that, but not to a personal account."

According to the supreme court document, Sheriff Don Meadows "trusted Respondent (Ball) and as expected in an attorney-client relationship, Sheriff Meadows relied soley upon (Ball's) representations in the handling of the Warden Estate. In that regard, Sheriff Meadows testified that he was aware that the Warden stocks were transferred into (Ball's) own account. Sheriff Meadows believed that (Ball) had to transfer the stock so he (Ball) could later transfer it to the Sheriff's Department."

Wolfe, after reporting his findings to the state supreme court and law enforcement, filed an ethics complaint at the Office of Disciplinary Counsel on or about Feb. 19, 2020.

After learning from Wolfe's investigation that Ball "had converted and misappropriated that Warden Stock to he and his wife's personal use, Attorney Williams decided to advise (Ball's) senior law partner, Attorney Tom Lilly, of (Ball's) unethical actions," according to the court document. "He did so because did not think (Ball) would do 'anything quick' and he knew if he contract Mr. Lilly that 'something would get done.'"

On or about Feb. 26, 2020, after his senior partner asked him about the estate of Fred Warden, Ball sent "a letter regarding self-reporting his actions," according to the court document. "On or about Feb. 27, 2020, (Ball) contacted Attorney Wolfe and advised that he had control of the Warden Estate stocks, agreed that he would transfer the stocks to an account designated by Attorney Wolfe.

On March 6, 2020, Wolfe sent Ball the documents to transfer the converted stock. The transfer was completed on or about April 1, 2020, according to the court document.

"At the time (Ball) transferred the converted stock share's back to Ms. Burton's Trust, the value of Mr. Burton's stocks converted by (Ball) and wife were in excess of One Hundred and Five Thousand Dollars ($105,000.00)," according to court documents. "Attorney Williams testified that his clients are now confident in the administration of the Trust."

In the document section titled Violations of the Rules of Professional Conduct, the Hearing Panel Subcommittee "found that the evidence established by clear and convincing evidence that (Ball) failed to competently safeguard and/or diligently deposit the Warden Estate shares of stock into the corpus of the Trust and instead on or about March 12, 2016 and March 13, 2015, he wrongfully misappropriated and converted all the Warden Estate shares of stock into an account opened for he and his wife's own personal use..."

The Hearing Panel Subcommittee also concluded that the evidence "established by clear and convincing evidence since the dat of March 12 and March 13, 2015, wrongful conversion of the Warden Estate stock that rightfully belonged to the trust until the April 1, 2020 forced return of the converted property, (Ball) enjoyed the benefits associated with the shares of stock, including but not limited to the financial benefits, including growth, dividends, and any tax advantages associated with the wrongfully converted shares of stock."

Later in the court document, the Hearing Panel Subcommittee stated that, "There is no dispute the (Ball's) actions of converting the Warden Estate stocks valued at nearly $75,000.00 at the time of the conversion were entrusted into his client's (sheriff's department) care as the Successor Trustee was intentional. (Ball) is an experienced attorney, and he drafted the documents for the transfer of the Warden stocks. His office notarized the transfer documents. He directed his client, who trusted and believed he was acting in compliance with the law, to make the transfer.

"He opened a Compushare account in his and his wife's names, and immediately caused the transfer of nearly $75,000.00 converted Warden stocks to his own personal ownership and use," according to the court document. "He did not have any personal stocks prior to misappropriating the Warden stocks. After converting the stocks, (Ball) then paid taxes on the converted stocks each year until the theft was detected. And, when his mother died, he them commingled the Warden stocks with his inherited stocks in the Compushare account."

The court document listed "aggravating factors" in the case including "1) multiple prior disciplinary offenses; 2) dishonesty; 3) selfish motive; 4) multiple offenses; 5) vulnerability of the individuals the Trust was created to serve; 6) substantial experience in the practice of the law; and 7) illegal conduct."

"Although the Respodent's misconduct alone is sufficient to warrant disbarment, another significant consideration in this matter is the Respondent's prior disciplinary history," according to the court document. "The Supreme Court has looked to the overall history of the lawyer, including such things as prior wrongdoing and discipline, when determining what sanction to impose."

"First, in ODC (Office of Disciplinary Counsel) v. Phillip B. Ball, Esquire (Complaint I.D. No. 02-02-055) it was alleged that (Ball), who was an Assistant Prosecutor at the time, made sexual advances toward an unrepresented criminal defendant and offered lenience in her criminal case in exchange for sexual favors. It is undisputed that no sexual activity ever occurred between the criminal defendant and (Ball) and the criminal case against the (Ball) was ultimately dismissed. However, (Ball) was in a position of heightened scrutiny because of his public position as Assistant Prosecuting Attorney and as City of Princeton attorney," according to the court document.

After a review, the Investigative Panel "believed at a minimum, attempting to exploit a criminal defendant's vulnerability was in violation of Rule 8.4(d) of the Rules of Professional Conduct and Admonished Respondent (Ball), according to the court document.

On July 26, the court's Hearing Panel Subcommittee recommended that Ball's law license be annulled. Ball is appealing the supreme court's findings.

— Contact Greg Jordan at gjordan@bdtonline.com

Contact Greg Jordan at gjordan@bdtonline.com