Kentucky Bar Association v. Justin Jerome Marcum ( 2022 )

TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0002-KB
KENTUCKY BAR ASSOCIATION MOVANT
V. IN SUPREME COURT
JUSTIN JEROME MARCUM RESPONDENT
OPINION AND ORDER
Justin Jerome Marcum, whose bar roster address is P.O. Box 2531,
Williamson, West Virginia 25661, KBA Member Number 97426, was admitted
to the practice of law in the Commonwealth of Kentucky on January 11, 2017.
On November 5, 2021, the Supreme Court of Appeals of West Virginia entered
an order suspending Marcum from the practice of law in that state for two
years with a stay of the suspension after six months and imposing a period of
supervised probation. That order became final on December 7, 2021.
Thereafter, the Kentucky Bar Association (KBA) filed a petition with this Court
asking that we impose reciprocal discipline pursuant to Supreme Court Rule
(SCR) 3.435. We ordered Marcum to show cause why we should not impose
such discipline, and he did not respond. Accordingly, this Court hereby
suspends Marcum from the practice of law for two years with six months of
that suspension to be served and the remainder to be probated until the
completion of his contract with the West Virginia Judicial and Lawyer
Assistance Program, as consistent with the order of the Supreme Court of
Appeals of West Virginia.
I. BACKGROUND
On February 8, 2020, the West Virginia Lawyer Disciplinary Board
Investigative Panel issued a formal statement of charges against Marcum that
included four counts that alleged multiple violations of that state’s lawyer
disciplinary rules, the West Virginia Rules of Professional Conduct. The
Hearing Panel Subcommittee of the Lawyer Disciplinary Board conducted an
evidentiary hearing on September 21, 2020. The Hearing Panel Subcommittee
then submitted a report and recommendations to the Supreme Court of
Appeals of West Virginia. After reviewing the record and the briefs filed by the
parties, the Supreme Court of Appeals of West Virginia found that Marcum
violated five of West Virginia’s Rules of Professional Conduct.
The Supreme Court of Appeals of West Virginia found that Marcum made
multiple posts on Facebook attempting to solicit business without including
the name and address of at least one lawyer or law firm responsible for the
content. He also failed to include the words “Advertising Material” in the posts.
By making these posts on Facebook without the required wording, Marcum
violated Rules 7.2(c)1 and 7.3(c)2.
1 West Virginia Rule of Professional Conduct 7.2(c) requires that “[a]ny
communication made pursuant to this Rule shall include the name and office address
of at least one lawyer or law firm responsible for its content.”
2 West Virginia Rule of Professional Conduct 7.3(c) provides that
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The Supreme Court of Appeals of West Virginia also found that Marcum
represented a client who had been charged with one count of delivery of a
controlled substance and three counts of conspiracy to deliver a controlled
substance. Significantly, this representation occurred after Marcum himself
had illegally purchased drugs from the client.3
The client was first appointed counsel by the trial court. However, at the
client’s arraignment on April 25, 2018, the client told the circuit court judge
that Marcum would be representing him instead. In June of 2018, Marcum
worked out a plea agreement by which the client would plead guilty to two
counts of conspiracy to deliver a controlled substance, and the client would be
sentenced to serve a period of incarceration. After entry of the guilty plea but
before sentencing, Marcum moved to withdraw as the client’s counsel. Marcum
cited both a possible conflict of interest as well as unpaid fees. Thereafter, the
client was again appointed counsel. Said appointed counsel reviewed the
discovery in the client’s case and viewed surveillance footage from the client’s
home. The surveillance footage showed Marcum driving his vehicle (bearing his
[e]very written, recorded or electronic communication from a lawyer
soliciting professional employment from anyone known to be in need of
legal services in a particular matter shall include the words “Advertising
Material” on the outside envelope and at the beginning and ending of any
recorded, if any, or electronic communication, unless the recipient of the
communication is a person specified in (a)(1) or (a)(2).
3 The client’s name is Jackie Lee Marcum. He is not related to the respondent in
this matter. However, because their last names are the same, to avoid confusion, we
refer to Jackie Lee Marcum as “the client” in this Opinion and Order.
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“House of Delegates” license plate)4 to the client’s home. The footage then
showed the client giving Marcum pills in exchange for money. Also included in
the discovery items reviewed by appointed counsel was a ledger used to track
individuals who owed the client money for the purchase of drugs. Marcum’s
name appeared in this ledger. Ultimately, appointed counsel was able to set
aside client’s plea agreement and to negotiate a new, more favorable agreement
that avoided incarceration.
Based on the above described conduct, the Supreme Court of Appeals of
West Virginia found Marcum violated three of West Virginia’s Rules of
Professional Conduct. That court found Marcum violated Rule 1.7(a)5 by
representing the client after purchasing illegal drugs from the client, thus
having a conflict of interest during that representation. The court also found
Marcum violated Rule 8.4(b)6 by purchasing illegal drugs from the client.
4 Marcum was a duly elected member of the West Virginia House of Delegates at
the time of all events recounted in this Opinion and Order.
5 West Virginia Rule of Professional Conduct 1.7(a) provides in relevant part:
[A] lawyer shall not represent a client if the representation involves a
concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another
client; or
(2) there is significant risk that the representation of one or more clients
will be materially limited by the lawyer’s responsibilities to another client,
a former client or a third person or by a personal interest of the lawyer.
6 West Virginia Rule of Professional Conduct 8.4(b) defines “professional
misconduct for a lawyer” as “commit[ting] a criminal act that reflects adversely on the
lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”
4
Finally, the court found Marcum violated Rule 8.4(d)7 by “work[ing] out a plea
offer with [the client] without explaining his own involvement in the purchase
of illegal drugs from [the client].”
After finding Marcum violated five of West Virginia’s Rules of Professional
Conduct, the Supreme Court of Appeals of West Virginia weighed aggravating
and mitigating factors to determine a sanction for his unethical behavior. The
Supreme Court of Appeals of West Virginia found the following aggravating
factors: the purchase of illegal drugs, that Marcum “held public office at the
time” of the rule violations, and that Marcum “acted dishonestly and with a
selfish motive.” That court found the following mitigating factors:
the absence of a prior disciplinary record, [Marcum]’s inexperience
in the practice of law, his chemical dependency and interim
rehabilitation, personal or emotional problems, full and free
disclosure to the Board or cooperative attitude toward the
proceedings, good character or reputation, physical or mental
disability or impairment, no delay in the disciplinary proceedings,
and expression of remorse.
The court specifically “commend[ed] [Marcum]’s recognition of his addiction
and success in treatment and continued rehabilitation.” The Supreme Court of
Appeals of West Virginia then ordered the following:
(1) The respondent is suspended from the practice of law for a
period of two years with a stay of the suspension after six months
having been served and for imposition of a period of supervised
probation for the remaining period of respondent’s contract with
the West Virginia Judicial and Lawyer Assistance Program; (2)
immediate imposition of the remaining one-and-a-half year
suspension if any conditions or requirements of the West Virginia
7West Virginia Rule of Professional Conduct 8.4(d) defines “professional
misconduct for a lawyer” as “engag[ing] in conduct that is prejudicial to the
administration of justice.”
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Judicial and Lawyer Assistance Program contract or other Rules of
Professional Conduct are violated after a petition to this Court; (3)
respondent be required to complete an additional nine Continuing
Legal Education hours in ethics and/or substance abuse
education in addition to the twenty-four hours already required of
him by the West Virginia State Bar, with the additional nine hours
being completed during the six-month suspension; (4) respondent
comply with the terms and conditions of his West Virginia Judicial
and Lawyer Assistance Program contract; (5) that respondent
comply with the provisions of Rule 3.28 of the Rules of Lawyer
Disciplinary Procedures; and, (6) respondent must reimburse the
Office of Disciplinary Counsel for the costs of these proceedings in
the amount of $3,981.56 pursuant to Rule 3.15 of the Rules of
Lawyer Disciplinary Procedure.
Following Marcum’s suspension from the practice of law in West Virginia,
the KBA filed a petition with this Court asking that we impose reciprocal
discipline pursuant to SCR 3.435. We ordered Marcum to show cause why we
should not impose such discipline, and he did not respond.
II. ANALYSIS
When this Court is presented with an attorney facing disciplinary action
in another jurisdiction, the Court must decide whether identical reciprocal
discipline is warranted here in the Commonwealth. This Court “shall impose
the identical discipline unless Respondent proves by substantial evidence: (a) a
lack of jurisdiction or fraud in the out-of-state disciplinary proceeding, or (b)
that misconduct established warrants substantially different discipline in this
state.” SCR 3.435(4). Without such “substantial evidence,” “a final adjudication
in another jurisdiction that an attorney has been guilty of misconduct shall
establish conclusively the misconduct for purposes of a disciplinary proceeding
in this State.” SCR 3.435(4)(c).
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“This Court typically imposes the same sanction as the reciprocal state,
so long as our rules are similar.” Kentucky Bar Ass’n v. Gardiner, 638 S.W.3d
415, 416 (Ky. 2022) (citing Kentucky Bar Ass’n v. Harwood, 341 S.W.3d 85 (Ky.
2011); SCR 3.435). Although Kentucky does not have an equivalent to West
Virginia Rule of Professional Conduct 7.2(c), which requires the name and
address of at least one lawyer or law firm responsible for the content of any
advertising material to be included in the material, we do have an equivalent to
West Virginia Rule of Professional Conduct 7.3(c). SCR 3.130(4.5)(3) requires
that
[e]very written, recorded or electronic communication from a
lawyer soliciting professional employment from anyone known to
be in need of legal services in a particular matter shall include the
words “Advertising Material” on the outside of the envelope, if any,
or in the subject line if sent as an email, and at the beginning and
ending of any recorded or electronic communication, unless the
recipient of the communication is a person specified in paragraphs
(1)(a) or (1)(b).
Kentucky does not have a rule equivalent to West Virginia’s Rule 8.4(d), which
defines “professional misconduct for a lawyer” as “engaging in conduct that is
prejudicial to the administration of justice,” but we do have an equivalent to
both Rule 1.7(a) and 8.4(b). SCR 3.130(1.7)(a) provides that
a lawyer shall not represent a client if the representation involves a
concurrent conflict of interest. A concurrent conflict of interest
exists if:
(1) the representation of one client will be directly adverse to
another client; or
(2) there is a significant risk that the representation of one or more
clients will be materially limited by the lawyer's responsibilities to
another client, a former client or a third person or by a personal
interest of the lawyer.
7
SCR 3.130(8.4), in relevant part, provides, “It is professional misconduct for a
lawyer to: . . . (b) commit a criminal act that reflects adversely on the lawyer’s
honesty, trustworthiness or fitness as a lawyer in other respects.”
Finally, in the case before us, Marcum has failed to provide any evidence
showing a lack of jurisdiction or fraud in the West Virginia proceedings, or any
reason our Court should impose a lesser discipline upon him. As such, we
follow the Rules of this Court and impose identical discipline.
ACCORDINGLY, IT IS HEREBY ORDERED THAT:
1. Justin Jerome Marcum is suspended from the practice of law in the
Commonwealth of Kentucky for two years with 180 days of that to be
served and the remainder to be probated until successful completion of
his contract with the West Virginia Judicial and Lawyer Assistance
Program (JLAP);
2. During the period of his Kentucky probation, Marcum shall fully comply
with all terms and conditions of his West Virginia supervised probation
and his JLAP contract. Should he fail to comply with any term or
condition of his supervised probation or his JLAP contract or violate any
Kentucky Rule of Professional Conduct, Bar Counsel may petition this
Court for immediate imposition of the remainder of his suspension;
3. If he has not already done so, pursuant to SCR 3.390, Marcum shall
promptly take all reasonable steps to protect the interests of his clients,
including, within ten days after the issuance of this order, notifying by
letter all clients of his inability to represent them and of the necessity
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and urgency of promptly retaining new counsel and notifying all courts
or other tribunals in which Marcum has matters pending. Marcum shall
simultaneously provide a copy of all such letters to the Office of Bar
Counsel;
4. If he has not already done so, pursuant to SCR 3.390, Marcum shall
immediately cancel any pending advertisements, shall terminate any
advertising activity for the duration of the term of suspension, and shall
not allow his name to be used by a law firm in any manner until he is
reinstated;
5. Pursuant to SCR 3.390, Marcum shall not, during the term of
suspension and until reinstatement, accept new clients or collect
unearned fees; and
6. In accordance with SCR 3.450, Marcum shall pay all costs associated
with these disciplinary proceedings against him, and for which execution
may issue from this Court upon finality of this Opinion and Order.
All sitting. All concur.
ENTERED: April 28, 2022.
______________________________________
CHIEF JUSTICE MINTON
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