Lawyer Disciplinary Board v. Richard T. Busch , 233 W. Va. 43 ( 2014 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2014 Term
FILED
February 5, 2014
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 12-0174 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LAWYER DISCIPLINARY BOARD,
Petitioner
V.
RICHARD T. BUSCH,
a member of The West Virginia State Bar,
Respondent
Lawyer Disciplinary Proceeding
LAW LICENSE SUSPENDED AND OTHER SANCTIONS
Submitted: January 22, 2014
Filed: February 5, 2014
Rachael L. Fletcher Cipoletti, Esq. J. Michael Benninger, Esq.
Chief Lawyer Disciplinary Counsel Benninger Law, PLLC
Office of Disciplinary Counsel Morgantown, West Virginia
Charleston, West Virginia Attorney for the Respondent
Attorney for the Petitioner
The Opinion of the Court was delivered PER CURIAM.
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. “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 [West Virginia Supreme Court of Appeals] or [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).
i
3. “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).
4. “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
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).
5. “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).
ii
6. “‘“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).’ Syl. Pt. 5, Committee on
Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989).” Syllabus point 7, Office of
Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998).
7. “Ethical violations by a lawyer holding a public office are viewed as
more egregious because of the betrayal of the public trust attached to the office.” Syllabus
point 3, Committee on Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989).
iii
Per Curiam:
This lawyer disciplinary proceeding against Richard T. Busch (hereinafter
“Mr. Busch”) was brought to this Court by the Office of Disciplinary Counsel (hereinafter
the “ODC”) on behalf of the Lawyer Disciplinary Board (hereinafter the “Board”). The
Board’s Hearing Panel Subcommittee (hereinafter the “Subcommittee”) determined that Mr.
Busch committed numerous violations of the West Virginia Rules of Professional Conduct
and recommended that his law license be suspended for a period of three years, among other
sanctions that will be fully set forth in this opinion. Mr. Busch filed an objection to the
recommendations,1 arguing that his conduct was merely negligent, not intentional.
Therefore, he suggests a lesser suspension. Based upon the parties’ arguments to this Court,
the appendix record designated for our consideration, and the pertinent authorities, we adopt
the recommendations of the Subcommittee.
I.
FACTUAL AND PROCEDURAL HISTORY
Mr. Busch was admitted to practice law by the West Virginia State Bar on
April 23, 2002. Initially, Mr. Busch practiced law at his father’s firm in Elkins, West
Virginia. The conduct in question began in January 2009 during Mr. Busch’s tenure as the
1
Under Rule 3.11 of the Rules of Lawyer Disciplinary Procedure, a “lawyer
shall have thirty days . . . within which to file . . . [an] objection . . . to the disposition of the
formal charge recommended by the Hearing Panel Subcommittee.”
1
Randolph County Prosecuting Attorney and ended with his resignation from the position on
December 5, 2011.2 A background of the alleged misconduct is summarized herein.
Count I - Complaint Regarding Conduct in the Blake Case
J. Ronald Blake, Jr., and his wife, Judy Mae Blake, were the co-directors of the
Community Response Foundation (hereinafter the “CRF”), a non-profit organization
specializing in representative payee services for Social Security recipients. Mr. Blake died
November 29, 2009, and Mrs. Blake continued in the role of the CRF’s director. A warrant
was issued on December 4, 2009, for the arrest of Mrs. Blake for embezzlement by a
fiduciary related to her work as the CRF’s director. Subsequently, on December 7, 2009, a
warrant was issued for all records and computers pertaining to the Blakes and the CRF.
A hearing was held before the Honorable Judge Jaymie Wilfong on April 7,
2010, pertaining to a request from Appalachian Benefits Assistance, Inc., the court-appointed
conservator for the CRF, to receive an archival copy of the records of the seized computers.
Judge Wilfong entered an order on April 8, 2010, “that such computers be turned over,
FORTHWITH, to the State Police Crime Lab and that a complete archival record for each
2
The Randolph County Commission had ordered an investigation into Mr.
Busch’s position as Prosecuting Attorney. A meeting was scheduled for December 6, 2011,
to discuss the report that resulted from the enquiry. Mr. Busch resigned one day prior to the
scheduled meeting.
2
computer be made and forwarded to Appalachian Benefits on an EXPEDITED basis.”
During a status conference, thereafter, on July 21, 2010, the contention was made that Mr.
Busch failed to comply with the directive in the April 8, 2010, order. In response, Mr. Busch
made the following statement to the circuit court:
And, what he [referring to Sergeant Casto of the West
Virginia State Police in Morgantown] is doing is he is
duplicating the hard drive while keeping it in the chain of
custody so we can get that hard drive out and get it to Mr. Jory
[counsel for Mrs. Blake] and also to the benefit services group,
the Appalachian Benefits, has taken over the accounts.
Additionally, Mr. Busch proffered, “So, at this point, I tried to contact Sergeant Casto
yesterday and I’m awaiting his response with regards to the status of if he’s copied the hard
drive or not. Essentially, that’s where we are, Your Honor.”
On July 22, 2010, a staff person in Mr. Busch’s office inquired as to the
location of the computers and was advised that the computer equipment remained in the
evidence locker at the Randolph County Sheriffs Office. Additional communication
occurred between Mr. Busch’s staff and Sergeant Casto via e-mail messages on July 21 and
July 22, 2010, concerning the computer hard drives and the duplication of the same.3
3
Sergeant Casto produced an affidavit that the communication on July 21,
2010, with Mr. Busch’s staff was the first communication he had about the subject evidence.
Sergeant Casto stated that, prior to this communication, the subject evidence had not been
submitted to the West Virginia State Police Digital Forensics Unit. Sergeant Casto said he
became aware of Mr. Busch’s assertions during the July 21, 2010, court hearing when a
(continued...)
3
On July 26, 2010, Mr. Busch submitted a proposed order to Judge Wilfong for
the July 21, 2010, hearing. Despite his awareness that the evidence remained in Randolph
County and that his prior statements to the court regarding Sergeant Casto had been false,
Mr. Busch took no remedial action to correct his prior misstatements to the court and,
instead, memorialized the same in a draft order. The following day, in response to receiving
the proposed order from Mr. Busch, Mr. Jory requested modifications. Specifically, Mr. Jory
stated, “Not being computer literate, I interpret ‘duplicate the hard drive’ to mean that
another hard drive should be produced. Nevertheless, it is the documents on the hard drive
which Appalachian Benefits and I seek to obtain.” Later, on July 30, 2010, Mr. Busch
directed that the computer equipment be transported to the State Police Forensics Lab in
Morgantown, West Virginia.
By correspondence dated August 3, 2010, Mr. Busch advised the circuit court:
The State’s investigation may or may not include the said
hard drives that are being provided to Appalachian Benefits
Services, and therefore the State is of the opinion that the
Defendant is not entitled to copies of said hard drives at this
time. Please advise how the Court wishes the State to proceed,
through correspondence or by order.
3
(...continued)
trooper contacted him to advise that Judge Wilfong stated in Court that she was
contemplating holding Sergeant Casto in contempt of court for his delays.
4
By order entered August 24, 2010, the lower court ordered that “all documents in the seized
hard drives be printed and that copies thereof be duplicated and provided to Appalachian
Benefits Assistance, Inc., and to Defendant on or before August 9, 2010.”
On or about August 24, 2010, the original computer equipment was returned
to the Randolph County Sheriffs Office. Appalachian Benefits Assistance, in its capacity as
conservator for the CRF, received a cloned copy. Despite the prior court orders, however,
no archival copy was provided to Mr. Jory, counsel for Mrs. Blake. By letter dated
September 9, 2010, Mr. Jory wrote to Mr. Busch and inquired about the documents that were
the subject of the two prior court hearings. Mr. Jory requested the same be provided to him
within the next week. Thereafter, by letter dated September 23, 2010, Mr. Busch wrote to
Mr. Jory and stated “[p]erhaps more curious, however, is why you feel that you are entitled
to such information. First, Ms. Blake has not yet been indicted. The potential relevance of
these hard drives is, and shall remain undetermined until an indictment is returned.” By letter
dated September 28, 2010, Mr. Jory responded to Mr. Busch’s letter and stated, in pertinent
part,
[l]est you forget, I am entitled to a copy of the hard drives
because a court order exists stating that they shall be delivered
to me. If you believe the order to be erroneous, you have an
obligation to have it changed. Otherwise, you could find
yourself in contempt of a court order. The ultimate issue is not,
as you suggest, one of relevance.
5
Judge Wilfong had been copied on both attorneys’ correspondence. By letter
dated October 12, 2010, Judge Wilfong wrote that Mr. Busch had been directed at the July
21, 2010, hearing to provide Mr. Jory with the subject evidence. Further, Judge Wilfong
referenced Mr. Busch’s statements made during the July 21, 2010, hearing about the delays
in receiving the subject evidence from Sergeant Casto and indicated that she learned that the
hard drives were not in Sergeant Casto’s possession at the time of the July 21, 2010, hearing.
Judge Wilfong further explained that she had been advised that the hard drives were
transported to Sergeant Casto on July 30, 2010. The circuit court’s correspondence further
asserted that Mr. Busch had been made aware of the location of the hard drives on several
occasions and, despite the knowledge concerning the location of the hard drives, Mr. Busch
never contacted the court to correct his misrepresentations made at the July 21, 2010,
hearing. Finally, Judge Wilfong invited the parties to advise her if she had inaccurately
assessed that the statements made by Mr. Busch were false and misleading. Mr. Busch did
not respond to Judge Wilfong’s letter.
The Grand Jury of Randolph County issued an eleven count indictment against
Mrs. Blake on October 25, 2010. Mr. Busch advised Mr. Jory in a November 9, 2010, letter
that he had
directed . . . [the] release [of] the original hard drives that were
obtained as evidence in the above-referenced case . . . [because]
[f]urther investigation has led me to determine that the files
contained on the hard drives are neither relevant nor germane to
6
the charge[s] against your client returned by the Randolph
County Grand Jury.
However, Mr. Busch later admitted that, despite the contrary representation in the letter, he
did not review the contents of the hard drives.
Mrs. Blake was arraigned on November 10, 2010, and trial was set for January
11, 2011. Mr. Jory filed a motion to dismiss the case based upon Mr. Busch’s prosecutorial
misconduct citing, in relevant part, Mr. Busch’s failure to comply with the court’s orders and
his lies to the court and Mr. Jory about the same. The motions were heard on December 22,
2010. The circuit court found that Mr. Busch “deliberately refus[ed] to turn over documents
as required;” made false statements to the circuit court during the July 21, 2010, hearing;
attempted to shift the blame to others who were not responsible; failed to correct the false
statements made to the court during the July 21, 2010, hearing even after the court gave him
an opportunity to correct the same by the issuance of a letter on October 12, 2010; and found
that, despite Mr. Busch’s assertions to Mr. Jory in his November 9, 2010, letter that the
computer records were not germane, Mr. Busch subsequently acknowledged in the December
22, 2010, hearing that he had never reviewed the records.
The circuit court entered a January 10, 2011, order, finding Mr. Busch’s
conduct to “clearly demonstrate a pervasive pattern of prosecutorial misconduct” and
dismissed the case against Mrs. Blake with prejudice. By letter dated January 10, 2011,
7
Judge Wilfong reported to the ODC allegations of misconduct by Mr. Busch in a criminal
matter. The ODC initiated an investigation into Judge Wilfong’s allegations. By letter dated
January 13, 2011, Disciplinary Counsel sent the complaint to Mr. Busch, and his verified
response was filed March 2, 2011.
Count II - Complaint Regarding Conduct in the Faulkner Case
Autumn Ray Faulkner was indicted by the Randolph County Grand Jury during
the February 2011 term of court on three counts of sexual abuse by a parent, guardian,
custodian, or person in position of trust, and three counts of sexual abuse in the third degree.
Ms. Faulkner was arraigned on March 9, 2011, and trial was set for June 2011. Ms.
Faulkner’s counsel of record, Mr. Mazzei, filed a “Motion to Dismiss Indictment or in the
Alternative to Suppress Evidence on Additional Grounds.” In relevant part, Mr. Mazzei
claimed that the Prosecuting Attorney’s Office refused to provide him with a video of the
minor child victim. When questioned by the circuit court about this issue during a hearing
on June 1, 2011, Mr. Busch advised the lower court that he had never been in possession of
the video, that he had been in contact with the West Virginia State Trooper assigned to the
case on multiple occasions, and that he believed that the West Virginia State Trooper had lost
the evidence.
8
Subsequent to the June 1, 2011, hearing, Judge Wilfong was informed that the
statements made by Mr. Busch may not have been accurate, and, out of an abundance of
caution, she noticed the same for judicial review. Trooper First Class Loudin was not in
attendance at the previous motion hearing, but did attend the judicial review hearing.
Trooper First Class Loudin testified that the video in question had never been “lost;” that
there was a copy of the same in his investigative file; and that Mr. Busch never contacted him
about the video. Mr. Busch denied that he had blamed Trooper First Class Loudin for losing
the video and indicated that he was responsible for the video, not Trooper First Class Loudin.
Judge Wilfong then read from the prepared transcript of the June 1st hearing wherein Mr.
Busch clearly placed the blame for the missing video on Trooper First Class Loudin and
inquired of Mr. Busch what other inference could be drawn from Mr. Busch’s statements.
Judge Wilfong found that Mr. Busch made a material misrepresentation to the court and held
him in contempt of court. By letter dated June 8, 2011, because the court had exposed his
false statements about Trooper Loudin’s culpability, Mr. Busch now asserted that the reason
the prosecutor’s office did not have the subject disc was that the same had been given to Mr.
Mazzei; Mr. Busch additionally produced a handwritten receipt to support his new
contention. By letter dated June 10, 2011, Mr. Mazzei disputed that he had received a copy
of the video. Mr. Mazzei stated that “he had filed three (3) separate prior discovery requests
requesting this information and received no response from Mr. Busch.” Mr. Mazzei
9
reiterated his position that, based on Mr. Busch’s course of misconduct, Ms. Faulkner’s case
should be dismissed with prejudice.
Prior to holding the sanctions hearing or reporting the same to ODC, Judge
Wilfong testified that, on June 13, 2011, she received a text message from Mr. Busch asking
to meet with her. Judge Wilfong met with Mr. Busch in her chambers, and she offered to
help him and to sit down with Trooper Loudin’s supervisor to allow Mr. Busch to explain
that he fully understood what he did was wrong in this case. Judge Wilfong stated that,
despite how frustrated she was with Mr. Busch’s behavior, she felt that she had to offer help
because he was a critical member of the bar who had asked for her help. By letter dated June
13, 2011, Mr. Busch advised Trooper Loudin that Judge Wilfong misunderstood him to be
blaming Trooper Loudin for losing evidence. By letter dated June 14, 2011, Judge Wilfong,
pursuant to her duties as a judge, reported to ODC allegations of misconduct by Mr. Busch
in a criminal matter. Judge Wilfong testified that, after reviewing Mr. Busch’s letter of June
13, 2011, and by letter dated June 23, 2011, she rescinded her offer to help Mr. Busch. Judge
Wilfong testified further that when she read Mr. Busch’s correspondence wherein he said that
“[m]y statements the judge seized on were incorrect. They were a misstatement of fact and
I should have stopped her in her tracks when she took my comments as an attempt to blame
you for my not having the disc,” she realized that “[s]o now it is not Trooper Loudins’ fault,
and it’s certainly not Rich Busch’s fault, it’s my fault because I’ve misunderstood the whole
10
thing . . .”. Judge Wilfong further stated, “I felt at that point that Mr. Busch had no interest
in being honest, that he had no interest in correcting it, that it was more of a spin[.]”
On or about June 22, 2011, the ODC sent Mr. Busch a letter directing him to
file a response to the complaint within twenty days. He filed a verified response to the same
on or about July 12, 2011. Further, Mr. Busch resigned his position as Prosecuting Attorney
of Randolph County, West Virginia, on December 5, 2011. Mr. Busch avers that he has not
practiced law since that date.
Statement of Charges
The Statement of Charges contains two separate counts: Count I involves Mr.
Busch’s actions in the Blake criminal case; and Count II relates to Mr. Busch’s behavior in
the Faulkner criminal case. In the Blake matter, Mr. Busch was charged with violating the
following West Virginia Rules of Professional Conduct: Rule 3.1;4 Rule 3.3;5 Rule 3.4;6 Rule
4
Rule 3.1 of the West Virginia Rules of Professional Conduct directs that
[a] lawyer shall not bring or defend a
proceeding, or assert or controvert an issue
therein, unless there is a basis for doing so that is
not frivolous, which includes a good faith
argument for an extension, modification or
reversal of existing law. A lawyer for the
defendant in a criminal proceeding, or the
respondent in a proceeding that could result in
incarceration, may nevertheless so defend the
(continued...)
11
4
(...continued)
proceeding as to require that every element of the
case be established.
5
Pursuant to Rule 3.3 of the West Virginia Rules of Professional Conduct,
(a) A lawyer shall not knowingly:
(1) make a false statement of
material fact or law to a tribunal;
(2) fail to disclose a material fact to
a tribunal when disclosure is
necessary to avoid assisting a
criminal or fraudulent act by the
client;
(3) fail to disclose to the tribunal
legal authority in the controlling
jurisdiction known to the lawyer to
be directly adverse to the position
of the client and not disclosed by
opposing counsel; or
(4) offer evidence that the lawyer
knows to be false. If a lawyer has
offered material evidence and
comes to know of its falsity, the
lawyer shall take reasonable
remedial measures.
(b) The duties stated in paragraph (a) continue to
the conclusion of the proceeding, and apply even
if compliance requires disclosure of information
otherwise protected by Rule 1.6.
(c) A lawyer may refuse to offer evidence that the
lawyer reasonably believes is false.
(d) In an ex parte proceeding, a lawyer shall
inform the tribunal of all material facts known to
the lawyer which will enable the tribunal to make
an informed decision, whether or not the facts are
adverse.
6
West Virginia Rule of Professional Conduct, Rule 3.4, states that
(continued...)
12
3.8;7 and Rules 8.4(c) and (d).8 It was alleged, in the Faulkner case, that Mr. Busch breached
6
(...continued)
A lawyer shall not:
(a) unlawfully obstruct another party’s access to
evidence or unlawfully alter, destroy or conceal a
document or other material having potential
evidentiary value. A lawyer shall not counsel or
assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to
testify falsely, or offer an inducement to a witness
that is prohibited by law;
(c) knowingly disobey an obligation under the
rules of a tribunal except for an open refusal
based on an assertion that no valid obligation
exists;
(d) in pretrial procedure, make a frivolous
discovery request or fail to make reasonable
diligent effort to comply with a legally proper
discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer
does not reasonably believe is relevant or that will
not be supported by admissible evidence, assert
personal knowledge of facts in issue except when
testifying as a witness, or state a personal opinion
as to the justness of a cause, the credibility of a
witness, the culpability of a civil litigant or the
guilt or innocence of an accused; or
(f) request a person other than a client to refrain
from voluntarily giving relevant information to
another party unless:
(1) the person is a relative or an
employee or other agent of a client;
and
(2) the lawyer reasonably believes
that the person’s interests will not
be adversely affected by refraining
from giving such information.
13
the same Rules of Professional Conduct9 as he had violated in the Blake case.
7
Behavior of a prosecutor is governed specifically by Rule 3.8 of the West
Virginia Rules of Professional Conduct:
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the
prosecutor knows is not supported by probable
cause;
(b) make reasonable efforts to assure that the
accused has been advised of the right to, and the
procedure for obtaining, counsel and has been
given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented
accused a waiver of important pretrial rights, such
as the right to a preliminary hearing;
(d) make timely disclosures to the defense of all
evidence or information known to the prosecutor
that tends to negate the guilt of the accused or
mitigates the offense, and, in connection with
sentencing, disclose to the defense and to the
tribunal all unprivileged mitigating information
known to the prosecutor, except when the
prosecutor is relieved of this responsibility by a
protective order of the tribunal; and
(e) exercise reasonable care to prevent
investigators, law enforcement personnel,
employees or other persons assisting or associated
with the prosecutor in a criminal case from
making an extrajudicial statement that the
prosecutor would be prohibited from making
under Rule 3.6.
8
The pertinent portions of Rule 8.4 of the West Virginia Rules of Professional
Conduct provide as follows: “It is professional misconduct for a lawyer to: . . . . (c) engage
in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct
that is prejudicial to the administration of justice[.]”
9
See notes 4-8, supra.
14
Mr. Busch admits that he violated Rule 3.3, although he states the violation was
not intentional or knowing. The Subcommittee did not make any findings of fact or
conclusions of law or recommendation as to Rule 3.1; however, it specifically found that Mr.
Busch’s conduct also violated Rules 3.4, 3.8, and 8.4(c) and (d).
Taking into account both mitigating and aggravating factors, the Subcommittee
recommended that Mr. Busch’s law license be suspended for three years. Additionally, it
recommended that, prior to petitioning for reinstatement, Mr. Busch be evaluated by a
licensed mental health provider and follow any protocols set forth; that, prior to petitioning
for reinstatement, Mr. Busch be ordered to undergo an additional twelve hours of continuing
legal education with a focus in ethics; that Mr. Busch be ordered to pay the costs of these
proceedings; that, prior to petitioning for reinstatement, Mr. Busch reimburse these costs to
the Lawyer Disciplinary Board; and, if Mr. Busch is successfully reinstated in the future, that
he be placed on two years of probation with supervised practice by an active attorney in his
geographic area in good standing with the State Bar. Mr. Busch filed his objection to the
Subcommittee’s findings and recommendations. Thus, this matter comes before this Court
for review.
15
II.
STANDARD OF REVIEW
Although the Board makes recommendations to this Court regarding sanctions
to be imposed upon an attorney for ethical violations, we have held that “‘[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.’ Syllabus point
3, Committee on Legal Ethics of the West Virginia State Bar v. Blair, 174 W. Va. 494, 327
S.E.2d 671 (1984).” Syl. pt. 1, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d
550 (2003).
Our standard of review has been stated as follows:
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.
Syl. pt. 3, Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994).
Accord Syl. pt. 3, Lawyer Disciplinary Bd. v. Cunningham, 195 W. Va. 27, 464 S.E.2d 181(1995). Mindful of these standards, we proceed to consider the parties’ arguments.
16
III.
DISCUSSION
The ODC urges this Court to accept the sanctions as recommended by the
Subcommittee. In so doing, the ODC contends that Mr. Busch violated duties to his client,
to the public, to the legal system, and to fellow members of the legal profession. This lawyer
disciplinary proceeding and its underlying facts are largely undisputed and submitted by
stipulation, including Mr. Busch’s agreement that he violated Rule 3.3 in both cases.
However, Mr. Busch disagrees with the conclusions reached by the Subcommittee that he
acted with an intentional state of mind. Rather, Mr. Busch contends that the violations of
Rule 3.3 were due to negligent conduct and, therefore, warrant a lesser punishment. Further,
Mr. Busch disputes the conclusions that his conduct violated Rules 3.1,10 3.4, 3.8, and 8.4(c)
and (d) in both the Blake and the Faulkner cases. Thus, before determining the appropriate
punishment, this Court must decide which rules were, in fact, violated as a result of Mr.
Busch’s admitted conduct.
We review this case with the recognition that the ODC is required “to prove
the allegations of the formal charge by clear and convincing evidence.” Syl. pt. 1, in part,
Lawyer Disciplinary Bd. v. McGraw, 194 W. Va. 788, 461 S.E.2d 850 (1995). The record
10
At the outset, we note that the findings by the Subcommittee do not support
a determination that Mr. Busch violated Rule 3.1. Therefore, we agree with Mr. Busch in
this regard and find that his conduct did not breach Rule 3.1.
17
before us fully supports the Subcommittee’s determination and conclusion that Mr. Busch
violated Rules 3.3, 3.4, 3.8, and 8.4(c) and (d).
First, all parties stipulated to the fact that Mr. Busch’s conduct in both cases
violated Rule 3.3. Mr. Busch admits that he made false statements to the circuit court, and
his contention that his transgressions of Rule 3.3 were negligent as opposed to intentional is
an argument best left to the affixation of appropriate sanctions and, therefore, will be
discussed later in this opinion.
The evidence illustrates that Mr. Busch’s actions in both the Blake case and the
Faulkner case also violated Rule 3.4 of the Rules of Professional Conduct. In Blake, Mr.
Busch ignored requests made by Mr. Jory, Mrs. Blake’s attorney, for the information
contained on the computer hard drives. Significantly, Mr. Busch also knowingly disobeyed
the circuit court’s order from the July 21, 2010, hearing that required Mr. Busch to provide
hard drive copies to Mr. Jory. Moreover, in the Faulkner case, Mr. Busch’s misconduct
unlawfully obstructed Ms. Faulkner’s attorney’s access to the recording of the alleged
victim’s statements. Therefore, the Subcommittee’s findings that Mr. Busch violated Rules
3.4(a) and (c) in both cases will not be disturbed.
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Next, the subcommittee determined that Mr. Busch violated Rule 3.8 in both
cases. Mr. Busch, as the elected Prosecuting Attorney, had a duty to make timely disclosures
that “tend to negate” the guilt of the accused or mitigate the offense. In the Blake case, Mr.
Busch was aware that the computer hard drives could possess exculpatory evidence, and he
was under a court-ordered obligation to tender the same to defense counsel. Also, in the
Faulkner case, Mr. Busch failed to provide a prior recorded statement of the alleged victim,
despite his obligation to do so. Mr. Busch’s refusal to comply with the court orders in the
above-listed cases, as well as his failure to comply with these special duties as a prosecuting
attorney are violations of Rule 3.8.
Finally, we agree with the Subcommittee’s conclusions that Mr. Busch violated
Rules 8.4(c) and (d). Not only did Mr. Busch make false representations of fact to the circuit
court and opposing counsel, he also made false statements of fact in court documents. The
evidence clearly established that Mr. Busch made false statements concerning the
whereabouts of computer hard drives in the Blake case, as well as the location of the victim’s
prior recorded statement in the Faulkner case. Mr. Busch’s statements to the circuit court
inappropriately placed responsibility for the maintenance of the evidence to others,
misrepresented his attempts to communicate with others regarding the evidence in question,
and falsely stated that the contents of the evidence were not germane to the issues before the
circuit court when he had not viewed the evidence in question. Importantly, when presented
19
with opportunities to correct his stated falsehoods and misrepresentations, Mr. Busch failed
to provide the proper information.
In summary, we adopt the Subcommittee’s determinations that Mr. Busch’s
conduct violated Rules 3.3, 3.4, 3.8, and 8.4(c) and (d) in both the Blake case and the
Faulkner case. Having established that Mr. Busch’s conduct violated the aforementioned
rules, we must now determine the appropriate sanction. While we give respectful
consideration to the Subcommittee’s recommendations, the sanction must ultimately be
established and determined by this Court. See Syl. pt. 3, McCorkle, 192 W. Va. 286, 452
S.E.2d 377.
The Subcommittee recommends, among other sanctions, that Mr. Busch’s
license to practice law be suspended for a period of three years. Conversely, Mr. Busch
states that a three-year suspension is too harsh based on his contention that his conduct was
merely negligent, and not intentional or knowing. Our analysis of the appropriate sanctions
includes the well-settled principles that
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 [West Virginia Supreme Court of
Appeals] or [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
20
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.”
Syl. pt. 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722(1998). We will examine each of these elements individually.
(1) Duties Owed to Clients, the Public, the Legal System, or the Profession
Guidance is found in the recognition that “attorney disciplinary proceedings
are primarily designed to protect the public, to reassure it as to the reliability and integrity of
attorneys and to safeguard its interest in the administration of justice[.]” Committee on Legal
Ethics v. Keenan, 192 W. Va. 90, 94, 450 S.E.2d 787, 791 (1994). The public relies on
lawyers to protect life, liberty, and property. Lawyers are officers of the court and, as such,
must operate within the bounds of the law. A lawyer also is expected to maintain the
integrity of the profession. The evidence in this case establishes that Mr. Busch violated
duties owed to his client: the State of West Virginia. Mr. Busch’s misconduct disregarded
his duty to the public, to the people of Randolph County, to the legal system, and to the legal
profession.
(2) Degree of Intransigence of Conduct
Second, we review Mr. Busch’s actions to ascertain whether they were
intentional, knowing, or negligent in nature. The degree of the misconduct determines the
21
severity of discipline to be imposed. Mr. Busch asserts that his actions were merely
negligent. The evidence, however, shows otherwise.
As we have established previously, Mr. Busch lied and made false statements
to opposing counsel and the tribunal. He failed to comply with court orders, and he placed
responsibility for his misdeeds on others. Mr. Busch contends that he was inexperienced in
the area of criminal law and that his indiscretions were merely negligent. However, the
record shows that Mr. Busch was provided with many opportunities to correct the
misstatements and inaccuracies that he portrayed to the lower court. When those
opportunities arose, he did not take advantage of them. His pattern of misconduct only
deepened the misrepresentations made to the court.
If Mr. Busch’s actions were truly negligent and not intentional, he had
numerous opportunities to make amends. He made a conscious choice, however, to maintain
his misrepresentations to the lower court. Significantly, even if Mr. Busch truly believed he
was being truthful during his prosecution of both the Blake and the Faulkner cases, upon
learning that he had misstated the evidence and provided inaccuracies to the court, Mr. Busch
could have taken reasonable steps to correct the same. He failed to do so. We agree with the
Subcommittee’s summation that Mr. Busch’s actions were intentional.
22
(3) Amount of Real or Potential Injury
Third, we examine the amount of real injury or potential injury in this matter.
Mr. Busch was the chief law enforcement officer of Randolph County, and he repeatedly lied
to the circuit court judge about the actions of law enforcement officers in the community.
This pattern of misconduct not only caused actual harm to the legal system by undermining
the community’s perception of the justice system, but also endangered the jobs, pension
plans, and credibility of the law enforcement officers who were portrayed as irresponsible
by Mr. Busch. Further, Mr. Busch’s misconduct could have affected the freedom of the
defendants involved, especially when possibly exonerating evidence was not provided to
them. As a matter of public harm, the dismissal of criminal cases merely because of
prosecutorial misconduct is a waste of public funds, as well as a detractor from the public
confidence in the office of the prosecutor. The amount of real or potential harm in this case
was significant.
(4) Presence of Mitigating and Aggravating Factors
The fourth and final factor in our analysis is the presence of mitigating and
aggravating factors. “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.” Syl. pt. 2, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550(2003). The Scott opinion, at Syllabus point 3, further explains that
23
[m]itigating 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 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.
213 W. Va. 209, 579 S.E.2d 550.
Based on the evidence before the Subcommittee, the following mitigating
factors were recognized: (1) upon the advice of counsel, prior to the commencement of
impeachment proceedings, Mr. Busch voluntarily resigned his position as prosecuting
attorney; (2) there was no prior disciplinary record; and (3) by and through counsel, Mr.
Busch displayed a cooperative attitude toward the disciplinary proceeding. Moreover, Mr.
Busch argues to this Court that additional mitigating factors existed. Specifically, he
delineates the following mitigating factors: his lack of any prior service as prosecuting
attorney and experience in handling criminal cases generally; his attempt to ask the circuit
court for guidance in both cases; the absence of any dishonest or selfish motive; the personal
and emotional problems created for him as a result of his father’s long-term illness and the
loss of his father as a mentor and resource person; his general anxiety disorder for which he
24
has been treated for a number of years; his general good character; and the delay of over one
year in these lawyer disciplinary proceedings from his final evidentiary hearing on July 27,
2012, until the issuance of the Subcommittee’s report in August 2013.
By contrast, “[a]ggravating factors in a lawyer disciplinary proceeding are any
considerations or factors that may justify an increase in the degree of discipline to be
imposed.” Syl. pt. 4, Scott, id. The Subcommittee found the following aggravating factors
in this case: (1) pattern of misconduct; (2) multiple offenses; (3) refusal to acknowledge
wrongful nature of the conduct; (4) experience in the practice of law; (5) aside from the
execution of Judge Wilfong’s mandatory judicial duty to report to ODC, there was no
additional penalty imposed upon Mr. Busch by the Judge in either the Blake or Faulkner
cases for his misconduct; (6) lack of any interim rehabilitation in the execution of his duties
as the prosecuting attorney after the Blake case; and (7) the fact that Mr. Busch was the
elected prosecuting attorney, in a position of public trust, at the time of the misconduct.
In fashioning the sanction, this Court is mindful of its prior holding that,
“‘[i]n 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).” Syl. Pt. 5,
25
Committee on Legal Ethics v. Roark, 181 W. Va. 260, 382
S.E.2d 313 (1989).
Syl. pt. 7, Jordan, 204 W. Va. 495, 513 S.E.2d 722. Unfortunately, this Court has had
previous occasion to consider disciplinary measures for attorneys in public office. In those
reviews, we placed great emphasis on the importance of the community’s trust in the matter
of public office. For example, in this Court’s Scott opinion, we stated that “[i]n addition to
the aggravating factors suggested by the ODC, this Court finds . . . other circumstances that
are aggravating factors in this case: the fact that Mr. Scott violated the Rules of Professional
Conduct while he held a public office[.]” Scott, 213 W. Va. at 216, 579 S.E.2d at 557.
While recognizing multiple mitigating factors in Scott, we also were gravely concerned by
the pattern of misconduct exhibited by Mr. Scott during his term as Prosecuting Attorney of
Harrison County. In addition to other sanctions, this Court imposed a three-year suspension
of Mr. Scott’s law license. See also Committee on Legal Ethics of the West Virginia State
Bar v. White, 189 W. Va. 135, 428 S.E.2d 556 (1993) (lawyer was prosecuting attorney who
pled guilty to possession of cocaine and had his law license suspended for two years);
Committee on Legal Ethics of the West Virginia State Bar v. Boettner, 188 W. Va. 1, 422
S.E.2d 478 (1992) (lawyer was state senator who pled guilty to evading payment of federal
income taxes and had his law license suspended for three years); Committee On Legal Ethics
of West Virginia State Bar v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989) (lawyer was
prosecuting attorney and former mayor who pled guilty to possession of cocaine and had his
law license suspended for three years).
26
Balancing the mitigating and aggravating factors in the instant case, we are
convinced that the recommendations by the Subcommittee, including a three-year license
suspension, are appropriate. There is simply no justification for permitting Mr. Busch’s
ability to practice law to go unimpeded after he engaged in such egregious conduct as a
public official. As we have held previously, “[e]thical violations by a lawyer holding a
public office are viewed as more egregious because of the betrayal of the public trust
attached to the office.” Syl. pt. 3, Roark, 181 W. Va. 260, 382 S.E.2d 313. We find that Mr.
Busch’s pattern of misconduct, coupled with his habit of continuing his dishonest behavior
even when provided opportunities to remedy the same, was a detriment to the public office,
to the State of West Virginia as his client, to the public who deserved efficiency and
protection from the public office, to the legal system, and to the legal profession. For those
reasons, we adopt the recommendations as set forth by the Subcommittee.11
11
In his assertion that his conduct did not warrant a license suspension, Mr.
Busch also set forth that he deserves credit toward any sanctions approved by this Court. In
that regard, Mr. Busch resigned as prosecuting attorney on December 5, 2011, and states he
has not practiced law since that date. Thus, Mr. Busch asserts that any suspension should be
retroactive to that date. We find this argument wholly without merit.
Factually, the County Commission had ordered an investigative report into the
workings of Mr. Busch’s office, and they were scheduled to meet to discuss the same on
December 6, 2011. Mr. Busch resigned one day prior to the Commission’s scheduled
meeting to discuss the investigation into his conduct in office. Mr. Busch’s resignation prior
to the meeting was not an act of remorse. Rather, we view it as an attempt to avoid
reprimand and to keep his digressions out of the public spotlight. Further, his claim that he
has not practiced law since that date merits no consideration. He did not give up his law
license, only his prosecuting attorney title.
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IV.
CONCLUSION
For the foregoing reasons, we adopt the following sanctions as recommended
by the Hearing Panel Subcommittee that: Mr. Busch’s law license be suspended for three
years; prior to petitioning for reinstatement, Mr. Busch be evaluated by a licensed mental
health provider and follow any protocols set forth; prior to petitioning for reinstatement, Mr.
Busch be ordered to undergo an additional twelve hours of continuing legal education with
a focus in ethics; Mr. Busch be ordered to pay the costs of these proceedings; prior to
petitioning for reinstatement, Mr. Busch reimburse these costs to the Lawyer Disciplinary
Board; and, if Mr. Busch is successfully reinstated in the future, he be placed on two years
of probation with supervised practice by an active attorney in his geographic area in good
standing with the State Bar.
Law License Suspended and Other Sanctions.
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