Lawyer Disciplinary Board v. Benjamin F. White , 811 S.E.2d 893 ( 2018 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2018 Term
_______________ FILED
March 15, 2018
No. 16-1003 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LAWYER DISCIPLINARY BOARD,
Petitioner
v.
BENJAMIN F. WHITE, a member of the West Virginia State Bar,
Respondent
____________________________________________________________
Lawyer Disciplinary Proceeding
Nos. 15-03-283, 15-03-285, 15-03-288
ANNULMENT AND COSTS
____________________________________________________________
Submitted: February 6, 2018
Filed: March 15, 2018
Renee N. Frymyer, Esq. Benjamin F. White, Esq.
Office of Disciplinary Counsel Chapmanville, West Virginia
Charleston, West Virginia Respondent
Counsel for the Petitioner
JUSTICE WALKER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A de novo standard applies to a review of the adjudicatory record
made before the [Lawyer Disciplinary Board] as to questions of law, questions of
application of the law to the facts, and questions of appropriate sanctions; this Court gives
respectful consideration to the [Board’s] recommendations while ultimately exercising its
own independent judgment. On the other hand, substantial deference is given to the
[Board’s] findings of fact, unless such findings are not supported by reliable, probative,
and substantial evidence on the whole record.” Syllabus Point 3, Committee on Legal
Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994).
2. “This Court is the final arbiter of legal ethics problems and must make
the ultimate decisions about public reprimands, suspensions or annulments of attorneys’
licenses to practice law.” Syllabus Point 3, Committee on Legal Ethics v. Blair, 174 W.
Va. 494, 327 S.E.2d 671 (1984).
3. “In deciding on the appropriate disciplinary action for ethical
violations, this Court must consider not only what steps would appropriately punish the
respondent attorney, but also whether the discipline imposed is adequate to serve as an
effective deterrent to other members of the Bar and at the same time restore public
confidence in the ethical standards of the legal profession.” Syllabus Point 3, Committee
on Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987).
i
4. “Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary
Procedure enumerates factors to be considered in imposing sanctions and provides as
follows: ‘In imposing a sanction after a finding of lawyer misconduct, unless otherwise
provided in these rules, the Court [West Virginia Court of Appeals] or Board [Lawyer
Disciplinary Board] shall consider the following factors: (1) whether the lawyer has
violated a duty owed to a client, to the public, to the legal system, or to the profession; (2)
whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of the
actual or potential injury caused by the lawyer’s misconduct; and (4) the existence of any
aggravating or mitigating factors.’” Syllabus Point 4, Office of Lawyer Disciplinary
Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998).
5. “Mitigating factors in a lawyer disciplinary proceeding are any
considerations or factors that may justify a reduction in the degree of discipline to be
imposed.” Syllabus Point 2, Lawyer Disciplinary Board v. Scott, 213 W. Va. 209, 579
S.E.2d 550 (2003).
6. “Mitigating factors which may be considered in determining the
appropriate sanction to be imposed against a lawyer for violating the Rules of Professional
Conduct include: (1) absence of a prior disciplinary record; (2) absence of a dishonest or
selfish motive; (3) personal or emotional problems; (4) timely good faith effort to make
restitution or to rectify consequences of misconduct; (5) full and free disclosure to
disciplinary board or cooperative attitude toward proceedings; (6) inexperience in the
ii
practice of law; (7) character or reputation; (8) physical or mental disability or impairment;
(9) delay in disciplinary proceedings; (10) interim rehabilitation; (11) imposition of other
penalties or sanctions; (12) remorse; and (13) remoteness of prior offenses.” Syllabus Point
3, Lawyer Disciplinary Board v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003).
7. “Aggravating factors in a lawyer disciplinary proceeding are any
considerations or factors that may justify an increase in the degree of discipline to be
imposed.” Syllabus Point 4, Lawyer Disciplinary Board v. Scott, 213 W. Va. 209, 579
S.E.2d 550 (2003).
8. “A person named in a disciplinary proceeding before this Court, who,
after the Hearing Panel Subcommittee has filed its Report with recommended sanctions,
commits a violation of the Rules of Professional Conduct related to the facts in the
underlying complaint may be subject to an increased degree of discipline. Such subsequent
misconduct may be relied upon by this Court as an aggravating factor that justifies
enhancement of the recommended sanctions of the Hearing Panel Subcommittee.”
Syllabus Point 7, Lawyer Disciplinary Board v. Grafton, 227 W. Va. 579, 712 S.E.2d 488(2011).
iii
WALKER, Justice:
Benjamin F. White is a lawyer who convinced A.S.1 to hire him as counsel
after A.S. was charged with one count of felony child neglect in April 2015. Mr. White
never discussed (or documented) his fee arrangement with A.S., but immediately pursued
an intimate relationship with her. Mr. White took A.S. on out-of-town trips, during which
he provided her with alcohol and drugs — causing her to violate the terms of her probation
— and engaged in sexual relations with her. A.S. eventually reported Mr. White’s conduct
and he was promptly removed as her counsel in June 2015. Mr. White was charged with
violating six separate provisions of the West Virginia Rules of Professional Conduct, but
he failed to respond to the formal statement of charges. Following a hearing at which both
Mr. White and A.S. testified, the Hearing Panel Subcommittee (HPS) of the Lawyer
Disciplinary Board (LDB) recommended that Mr. White be suspended from the practice
of law for five years. Upon consideration of Mr. White’s egregious conduct, including the
additional aggravating factor that Mr. White disregarded this Court’s order to file a
responsive brief, we order that his license be annulled.
1
Because of the sensitive nature of the facts alleged in this case, initials are used
herein for Mr. White’s client. See W. Va. R. App. P. 40(e); State v. Edward Charles L.,
183 W. Va. 641, 645 n. 1, 398 S.E.2d 123, 127 n. 1 (1990).
1
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. White is a lawyer practicing in Chapmanville, West Virginia who was
admitted to the West Virginia State Bar on November 2, 2005. Mr. White was previously
reprimanded in 2014. Additionally, Mr. White’s license was administratively suspended
on November 13, 2017 for nonpayment of dues and noncompliance with the financial
responsibility disclosure requirement, but was reinstated on February 2, 2018 after
complying with both. The current proceeding arises from three lawyer ethics complaints
filed against Mr. White in July 2015—all stemming from allegations of misconduct in
relation to his representation of A.S. in a felony criminal matter.2
A. Underlying Facts and Allegations
In October 2014, Mr. White sent A.S. a Facebook friend request and began
sending her messages through that social media platform. Throughout early 2015, though
Mr. White and A.S. communicated online occasionally about her ongoing divorce
proceeding, she testified that she did not consider him to be her attorney. The nature of
their relationship changed, however, on April 22, 2015, when A.S. was charged with one
felony count of gross child neglect. A.S. was appointed representation, but after speaking
2
The first complaint was filed on July 1, 2015, by Judge Miki Thompson, Circuit
Court Judge for the Thirtieth Judicial Circuit of West Virginia (I.D. No. 15-03-283). The
second complaint was filed on July 6, 2015, by Teresa C. McCune, Chief Public Defender
for the Thirtieth Judicial Circuit of West Virginia, who served as appointed counsel for
A.S. in the associated criminal case (I.D. No. 15-03-285). The final complaint was filed
on July 8, 2015, by A.S., Mr. White’s client in the associated criminal case (I.D. No. 15-
03-288).
2
with Mr. White—who advised her that court appointed attorneys “were not as good as
[him]”—she requested that the public defender be removed as counsel. Although Mr.
White and A.S. did not reduce his representation to a formal written agreement or set his
rate of pay, Mr. White filed a Notice of Appearance on May 19, 2015.
After representation began, Mr. White came to A.S.’s residence
unannounced on several occasions. Though A.S. acknowledges that they had a friendship
beyond the usual attorney-client relationship, she testified that she felt that he was “pushy
and bullish” during this time. Because Mr. White never asked for payment for his services,
A.S. testified that she felt obligated to be friendly with him and that she didn’t feel like she
could turn down his requests, specifically testifying that she felt that “if she quit having
anything to do with him, then he wasn’t going to be [her] lawyer anymore.”
At her plea hearing on May 28, 2015, A.S.’s home confinement was
suspended and she was placed on probation. Immediately afterward, Mr. White insisted
that they drive to Charleston to “celebrate.” Once in Charleston, Mr. White took A.S. to
dinner and purchased alcoholic drinks for her, despite knowing that her consumption of
those drinks would violate her probation. On their way home, in the early morning hours
of May 29, 2015, Mr. White took her to the ATV resort he owns and they engaged in sexual
relations for the first time.
3
The following week, Mr. White and A.S. traveled together again when she
accompanied him to Louisville, Kentucky for an ATV convention. Mr. White told her not
to mention to anyone at the convention that he was her lawyer. On the way to Louisville,
Mr. White gave A.S. an entire bottle of Xanax. In addition to ingesting a number of those
pills, she consumed alcohol that was also provided by Mr. White and the two again engaged
in sexual relations.
After the Louisville trip, Mr. White threatened to “put [A.S.] in jail” for one
year for leaving her required alternative sentencing program classes early, despite her
having permission to do so. On one such occasion, Mr. White came to the location where
A.S. attended classes and began questioning other workers as to her whereabouts. One of
the workers told Mr. White that A.S. left in a gold Suburban and Mr. White asked a friend
on the police department to stop the automobile in an attempt to find her. When Mr. White
and A.S. next spoke, A.S. told Mr. White that she was upset that he had involved the police
because she could have been arrested. According to A.S.’s testimony, Mr. White
responded, “that would have been good for [her]” and “that’s what [she] need[s].” A.S.
testified that after this encounter she was paranoid that he would try to “set her up.”
Notwithstanding this concern, Mr. White and A.S. ultimately reconciled and were on “good
terms for a week.” During this time, Mr. White and A.S. again traveled to Charleston and
engaged in sexual relations. Once more, Mr. White purchased alcohol for A.S. while she
was still on probation.
4
During this time, Mr. White continued serving as A.S.’s lawyer by filing
various motions.3 A.S. testified that she believed Mr. White filed motions relating to her
plea solely to remain involved with her case. Mr. White also gave A.S.’s children gifts
during his representation and paid to have her cell phone fixed.
On June 22, 2015, A.S. told A.S.’s community service manager, Ms.
Maynard, about Mr. White’s behavior. Ms. Maynard accompanied A.S. to Judge
Thompson’s office, where A.S. requested a new lawyer. On June 24, 2015, Mr. White was
removed as counsel and Theresa McCune was appointed to represent her. A.S.’s probation
was ultimately revoked due to a failed drug screen and she was sentenced to jail as a result.
A.S. testified that the situation with Mr. White was very stressful and embarrassing, and
had occurred at a very vulnerable time in her life. She cited her “downfall” as the
prescription Xanax Mr. White had provided to her.
B. Charges by the Lawyer Disciplinary Board
Upon review of the three complaints filed against Mr. White, the
Investigative Panel of the LDB filed a formal Statement of Charges on October 26, 2016,
alleging that Mr. White violated the following Rules of Professional Conduct: Rule
3
Mr. White filed a Motion to Reduce Probation Fees on June 16, 2015. On June
18, 2015, Mr. White filed a Motion to Amend Language of Plea and Sentencing Order and
a Motion to Withdraw Felony Plea.
5
1.7(a)(2) (conflict of interest; current clients),4 Rule 1.8(e) (conflict of interest/prohibition
on providing financial assistance to a client),5 Rule 1.8(j) (conflict of interest/prohibition
on sexual relations with a client),6 Rule 4.2 (prohibition on communication with persons
4
Rule 1.7(a)(2) provides:
[e]xcept as provided in paragraph (b), a lawyer shall not
represent a client if the representation involves a concurrent
conflict of interest. A concurrent conflict of interest exists if:
(2) there is a significant risk that the representation of one or
more clients will be materially limited . . . by a personal interest
of the lawyer.
5
Rule 1.8(e) provides:
[a] lawyer shall not provide financial assistance to a
client in connection with pending or contemplated litigation,
except that: (1) a lawyer may advance court costs and expenses
of litigation, the repayment of which may be contingent on the
outcome of the matter; and (2) a lawyer representing an
indigent client may pay court costs and expenses of litigation
on behalf of the client.
6
Rule 1.8(j) provides:
[a] lawyer shall not have sexual relations with a client
whom the lawyer personally represents during the legal
representation unless a consensual relationship existed
between them at the commencement of the lawyer/client
relationship. For purposes of this rule, “sexual relations”
means sexual intercourse or any touching of the sexual or other
intimate parts of the lawyer for the purposes of arousing or
gratifying the sexual desire of either party or as a means of
abuse.
6
represented by counsel),7 Rule 1.5(b) (requiring communication of scope of representation,
fees, and expenses),8 and Rule 8.4(d) (misconduct).9 Further, the LDB listed—as an
aggravating factor—a prior disciplinary offense, which resulted in this Court issuing a
reprimand for Mr. White’s violation of Rules 1.15(b) and (c) (safekeeping property).
The Statement of Charges was served upon Mr. White on November 10,
2016,10 when he appeared for the Scheduling Conference. He verbally agreed to accept
7
Rule 4.2 provides:
[i]n representing a client, a lawyer shall not
communicate about the subject of representation with a person
the lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer or
is authorized to do so by law or a court order.
8
Rule 1.5(b) provides:
[t]he scope of the representation and the basis or rate of
the fee and expenses for which the client will be responsible
shall be communicated to the client in writing, before or within
a reasonable time after commencing the representation, except
when the lawyer will charge a regularly represented client on
the same basis or rate. Any changes in the basis or rate of the
fee or expenses shall also be communicated to the client.
9
Rule 8.4 provides “[i]t is professional misconduct for a lawyer to:…(d) engage in
conduct that is prejudicial to the administration of justice.”
10
The Clerk previously attempted service of process upon Mr. White by certified
mail on or about October 27, 2016, but the correspondence was returned on or about
December 14, 2016, marked unclaimed.
7
service as of that date. But, Mr. White failed to respond to these formal charges as required
by Rule of Lawyer Disciplinary Procedure (RLDP) 2.12.11 Accordingly, the Office of
Disciplinary Counsel (ODC) filed a Motion to Deem Admitted the Factual Allegations in
the Statement of Charges. The ODC also filed a Motion to Exclude Testimony of
Witnesses and Documentary Evidence or Testimony of Mitigating Factors because Mr.
White failed to provide his discovery to the ODC as he was obligated to do under RLDP
3.4.12 These motions were granted by the HPS at the April 17, 2017 prehearing.
C. HPS Report and Recommended Sanctions
This matter proceeded to hearing before the HPS in Charleston on April 24,
2017, at which the HPS heard testimony from A.S. and from Mr. White. As a result of the
11
Rule 2.12 provides, in part: “[responsive] pleadings shall be filed by the
respondent with the Clerk of the Supreme Court of Appeals and the Office of Disciplinary
Counsel not more than thirty days after service of the formal charges.”
12
Rule 3.4, in relevant part, provides:
Within 30 days after receiving Disciplinary Counsel’s
mandatory discovery, the respondent shall provide the Office
of Disciplinary Counsel with the complete identity, address
and telephone number of any person with knowledge about the
facts of any of the charges; provide a list of the proposed
witnesses to be called at the hearing, including their addresses,
telephone numbers, and a summary of their anticipated
testimony; provide a disclosure of any trial expert pursuant to
the requirements of Rule 26(b)(4) of the West Virginia Rules
of Civil Procedure; provide inspection and copying of the
results of any reports of physical or mental examinations or
scientific tests or experiments; and provide a list and copy of
any proposed exhibit to be used at the hearing.
8
HPS’s ruling to deem the factual allegations in the statement of charges admitted, in
conjunction with it considering the evidence presented, the HPS found that Mr. White
violated Rules of Professional Conduct 1.7(a)(2), 1.8(e), 1.8(j), 1.5(b), and 8.4(d). The HPS
further found that there were no mitigating factors present, but found several aggravating
factors, including past discipline by this Court and the vulnerability of the victim in this
matter. As to sanctions, the HPS recommended that Mr. White’s law license be suspended
for a period of five years and that he be required to pay the costs of the proceedings.
On September 13, 2017, the ODC filed its consent to the recommendation of
the HPS. This Court, however, did not concur with the recommendation of the HPS and
on October 18, 2017, ordered this matter to be scheduled for oral argument under Rule 19
of the West Virginia Rules of Appellate Procedure.
Although this Court directed the ODC and Mr. White to brief the matter
pursuant to the scheduling order, Mr. White did not file a responsive brief. On January 8,
2018, the ODC filed a motion urging this Court to consider Mr. White’s failure to file a
responsive brief in accordance with this Court’s scheduling order as an additional
aggravating factor. The ODC now requests that we enhance Mr. White’s sanction from
the five-year suspension recommended by the HPS to annulment of his license to practice
law.
9
II. STANDARD OF REVIEW
We review lawyer disciplinary proceedings using the following standards:
A de novo standard applies to a review of the
adjudicatory record made before the [Lawyer Disciplinary
Board] as to questions of law, questions of application of the
law to the facts, and questions of appropriate sanctions; this
Court gives respectful consideration to the [Board’s]
recommendations while ultimately exercising its own
independent judgment. On the other hand, substantial
deference is given to the [Board’s] findings of fact, unless such
findings are not supported by reliable, probative, and
substantial evidence on the whole record.[13]
While we respectfully consider the HPS’s recommendations on the
appropriate sanctions, “[t]his Court is the final arbiter of legal ethics problems and must
make the ultimate decisions about public reprimands, suspensions or annulments of
attorneys’ licenses to practice law.”14 Keeping these standards in mind, we proceed to
consider the arguments before the Court.
III. DISCUSSION
We have consistently held that in lawyer disciplinary matters, the ODC has
the burden “to prove the allegations of the formal charge by clear and convincing
13
Syl. Pt. 3, Comm. on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377(1994).
14
Syl. Pt. 3, Comm. on Legal Ethics v. Blair, 174 W. Va. 494, 327 S.E.2d 671(1984).
10
evidence.”15 In contrast to most cases we review, Mr. White failed to respond to the
charges against him and the HPS ruled that the factual allegations in the Statement of
Charges were deemed admitted by Mr. White. We find no basis to disturb the underlying
determination by the HPS that Mr. White violated five separate provisions of the Rules of
Professional Conduct.
As such, we need only consider the appropriate sanctions for Mr. White’s
egregious conduct. In doing so, we are mindful of our underlying obligation to weigh the
multiple considerations in this matter:
In deciding on the appropriate disciplinary action for
ethical violations, this Court must consider not only what steps
would appropriately punish the respondent attorney, but also
whether the discipline imposed is adequate to serve as an
effective deterrent to other members of the Bar and at the same
time restore public confidence in the ethical standards of the
legal profession.[16]
With these principles in mind, we turn to the factors to be considered in imposing sanctions
as set forth in Rule 3.16 of the RLDP. We begin with our holding in Office of Disciplinary
Counsel v. Jordan:
Rule 3.16 of the West Virginia Rules of Lawyer
Disciplinary Procedure enumerates factors to be considered in
imposing sanctions and provides as follows: “In imposing a
sanction after a finding of lawyer misconduct, unless otherwise
15
Syl. Pt. 1, in part, Lawyer Disciplinary Bd. v. McGraw, 194 W. Va. 788, 461
S.E.2d 850 (1995).
16
Syl. Pt. 3, Comm. on Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234(1987).
11
provided in these rules, the Court [West Virginia Court of
Appeals] or Board [Lawyer Disciplinary Board] shall consider
the following factors: (1) whether the lawyer has violated a
duty owed to a client, to the public, to the legal system, or to
the profession; (2) whether the lawyer acted intentionally,
knowingly, or negligently; (3) the amount of the actual or
potential injury caused by the lawyer’s misconduct; and (4) the
existence of any aggravating or mitigating factors.[17]
In applying the first Jordan factor, the HPS found—and we agree— that Mr.
White violated several duties owed to his client, to the public, and to the legal profession.
As a defendant in a felony criminal matter, A.S. was in a particularly vulnerable situation
and relied on Mr. White to protect her liberty. Mr. White’s decision to pursue a personal
relationship with such a vulnerable client reflects adversely on his character and fitness to
practice law for a number of reasons.
First, by initiating an intimate and sexual relationship with A.S. after
becoming counsel of record in her criminal matter, Mr. White’s ability to exercise
independent judgment and render her with independent advice became impaired. Second,
Mr. White—by inviting A.S. to accompany him on an overnight trip and purchasing
alcoholic drinks for her and providing her with prescription Xanax while she was on
supervised probation— directly assisted A.S. in violating the terms of her court ordered
probation, falling far short of his fiduciary role in the matter. Third, Mr. White never
17
Syl. Pt. 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513
S.E.2d 722 (1998).
12
confirmed the scope of his representation, nor did he provide the basis or rate of fees and
expenses in writing. This resulted in A.S. feeling indebted to Mr. White and afraid to
terminate the attorney-client relationship for fear of retribution.
More broadly, Mr. White’s reprehensible conduct fell short of the duties
owed to the public and to the legal profession. As officers of the court, lawyers are required
to act in a manner to maintain the integrity of the Bar.18 It is abundantly clear that the
actions Mr. White took with respect to his representation of A.S. were directly contrary to
this obligation.
Turning to the second Jordan factor, we examine Mr. White’s mental state
at the time of his misconduct to determine whether he acted knowingly, intentionally, or
negligently. The undisputed facts are that Mr. White intentionally and knowingly started
and maintained a sexual relationship with a client in a very vulnerable situation, provided
her with alcohol and drugs while he knew she was serving probation, and did not
communicate with her regarding his fees or the scope of his representation. Mr. White’s
culpable mental state is further evidenced by his repeated requests that A.S. keep their
attorney-client relationship a secret—instructing her not tell any of his friends that he was
her attorney. A.S. testified that Mr. White demanded secrecy on this matter “because he
18
See Lawyer Disciplinary Bd. v. Stanton, 225 W. Va. 671, 678, 695 S.E.2d 901,
908 (2010).
13
could get in trouble.”
Applying the third Jordan factor—injury or potential injury caused—it is
clear that Mr. White’s involvement with A.S. caused her real injury. A.S. served jail time
for violating her probation due to positive drug screens. She attributed part of her decision
to “use” again to the Xanax Mr. White provided her, as well as the stress caused by her
relationship with him—specifically his threats to have her imprisoned for things he had
witnessed during the course of their relationship. When Mr. White provided A.S. with
drugs and alcohol, he was aware that the requirements of her probation included mandatory
drug tests. And he knew of her past battles with addiction. This repugnant behavior is not
befitting of an attorney and Mr. White should have been aware of the injury likely to result.
In considering the fourth Jordan factor—aggravating or mitigating factors—
we have explained that “[m]itigating factors in a lawyer disciplinary proceeding are any
considerations or factors that may justify a reduction in the degree of discipline to be
imposed.”19 We have consistently described mitigating factors as follows:
Mitigating factors which may be considered in
determining the appropriate sanction to be imposed against a
lawyer for violating the Rules of Professional Conduct include:
(1) absence of a prior disciplinary record; (2) absence of a
dishonest or selfish motive; (3) personal or emotional
problems; (4) timely good faith effort to make restitution or to
rectify consequences of misconduct; (5) full and free
19
Syl. Pt. 2, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550(2003).
14
disclosure to disciplinary board or cooperative attitude toward
proceedings; (6) inexperience in the practice of law; (7)
character or reputation; (8) physical or mental disability or
impairment; (9) delay in disciplinary proceedings; (10) interim
rehabilitation; (11) imposition of other penalties or sanctions;
(12) remorse; and (13) remoteness of prior offenses.[20]
By contrast, “[a]ggravating factors in a lawyer disciplinary proceeding are
any considerations or facts that may justify an increase in the degree of discipline to be
imposed.”21 As we very recently noted, “there is no ‘magic formula’ for this Court to
determine how to weigh the host of mitigating and aggravating circumstances to arrive at
an appropriate sanction; each case presents different circumstances that must be weighed
against the nature and gravity of the lawyer’s misconduct.”22
We agree with the HPS that there are no mitigating factors in this matter and,
as such, Mr. White should not receive the benefit of any considerations that may justify a
reduction in the degree of discipline to be imposed. We also agree with the HPS that there
are multiple aggravating factors present—the first being Mr. White’s prior disciplinary
offense from 2014 as indicated by Rule 9.22(A) of the ABA Model Standards for Imposing
Lawyer Sanctions. As punishment for Mr. White’s violation of Rules 1.15(b) and (c)
20
Id., Syl. Pt. 3.
21
Id., Syl. Pt. 4.
22
Lawyer Disciplinary Bd. v. Sirk, __W. Va.__, __S.E.2d__, 2018 WL 944266, at
*8 (February 15, 2018).
15
(safekeeping property), this Court issued a reprimand and ordered Mr. White to take an
additional six hours of Continuing Legal Education and to pay the costs of the disciplinary
proceeding.
A second aggravating factor stems from the vulnerability of Mr. White’s
client—an individual charged with gross child neglect and who has a history of drug and
alcohol abuse. Mr. White used A.S.’s vulnerability first to obtain her as a client by
convincing her that her court-appointed attorney would not provide adequate
representation in a felony case involving her children. Then—after initiating a sexual
relationship with A.S.—Mr. White preyed upon this same vulnerability both by employing
tactics to ensure A.S. felt indebted to him and threatening A.S. with criminal charges based
upon information obtained by and through the attorney-client relationship.
Finally, Mr. White’s behavior during the pendency of his disciplinary
proceedings must be considered as an additional aggravating factor. The HPS initially
recommended to this Court that Mr. White’s license be suspended for five years in addition
to other sanctions. Subsequently, Mr. White engaged in additional misconduct by ignoring
the directive of this Court to file a responsive brief. The ODC argues that his law license
should now be annulled as a result.
Based solely on Mr. White’s conduct during his representation of A.S., there
16
is ample precedent to support the five-year suspension initially recommended by the HPS.
For example, in Lawyer Disciplinary Board v. Stanton,23 we imposed a three-year
suspension as a result of a lawyer pursuing and conducting a personal relationship with a
vulnerable client. And this Court has previously ordered discipline where a lawyer
provides his or her client with gifts or financial assistance similar to those provided in this
case.24 Mr. White’s conduct is even more egregious than that of the attorneys in those
cases because he not only pursued a relationship with his client and used his position of
power to his advantage, but he also provided alcohol and prescription drugs to a client with
a known drug problem while she was on probation.
Moreover, Mr. White ignored this Court’s scheduling order and failed to file
a responsive brief in this matter. This behavior further evinces a disturbing pattern of
misconduct that merits a more substantial punishment. This Court has held that
[a] person named in a disciplinary proceeding before
this Court, who, after the Hearing Panel Subcommittee has
filed its Report with the recommended sanctions, commits a
violation of the Rules of Professional Conduct related to the
facts in the underlying complaint may be subject to an
increased degree of discipline. Such subsequent misconduct
may be relied upon by this Court as an aggravating factor that
23
233 W. Va. 639, 760 S.E.2d 453 (2014).
24
Lawyer Disciplinary Bd. v. Nessel, 234 W. Va. 695, 769 S.E.2d 484 (2015)
(lawyer who made small gifts to litigation clients with a humanitarian motive reprimanded,
supervised for a year, assessed costs, and ordered to attend an additional nine hours of
continuing legal education in the area of ethics and law office management).
17
justifies enhancement of the recommended sanctions of the
Hearing Panel Subcommittee.25
Absent extenuating circumstances, we question whether a respondent
attorney who disregards the directives of this Court and altogether fails to advocate for
himself—to maintain his career—will adequately advocate for his or her clients.
Accordingly, we conclude that a respondent attorney’s violation of this Court’s scheduling
order will be deemed an aggravating factor and may give rise to heightened discipline.
We find that Mr. White’s egregious violations of the standards of the legal
profession, combined with his outright unwillingness to comply with the directives of this
Court, are sufficient to merit the most severe sanction available and hereby order that his
license be annulled.
IV. CONCLUSION
Based upon the foregoing, we impose the following sanctions pursuant to
Rule 3.15 of the Rules of Lawyer Disciplinary Procedure: (1) annul Mr. White’s law
license; and (2) order that Mr. White will pay the costs of these proceedings.
Annulment and Costs.
25
Syl. Pt. 7, Lawyer Disciplinary Bd v. Grafton, 227 W. Va. 579, 712 S.E.2d 488(2011).
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