Lawyer Disciplinary Board v. Wendelyn A. Elswick , 231 W. Va. 684 ( 2013 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September Term 2013
FILED
_______________ September 26, 2013
released at 3:00 p.m.
No. 11-0729 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
LAWYER DISCIPLINARY BOARD,
Petitioner
v.
WENDELYN A. ELSWICK,
a member of The West Virginia State Bar,
Respondent
Disciplinary Proceeding
Nos. 09-03-246 and 09-03-291
LICENSE TO PRACTICE LAW IN WEST VIRGINIA
SUSPENDED FOR TWO YEARS
AND ADDITIONAL SANCTIONS
Submitted: September 11, 2013
Filed: September 26, 2013
Rachael L. Fletcher Cipoletti, Esq. Mark W. Kelley, Esq.
Chief Lawyer Disciplinary Counsel Ray, Winton & Kelley, PLLC
Office of Disciplinary Counsel Charleston, West Virginia
Charleston, West Virginia Counsel for the Respondent
Counsel for the Lawyer Disciplinary Board
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
Committee on Legal Ethics of the West Virginia State Bar [currently the Hearing Panel
Subcommittee of 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 Committee’s recommendations while ultimately exercising its own independent judgment.
On the other hand, substantial deference is given to the Committee’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).
2. “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.” Syl. pt. 3, Lawyer
Disciplinary Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).
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.” Syl. pt.
3, Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).
Per Curiam:
This lawyer disciplinary proceeding concerning Wendelyn A. Elswick (“Elswick”) is before
this Court upon the report and recommendations of the Hearing Panel Subcommittee of the West
Virginia Lawyer Disciplinary Board. The disciplinary proceedings arose from a Statement of
Charges alleging that Elswick engaged in misconduct with regard to a witness in her client’s post-
conviction habeas corpus proceeding.
Following evidentiary hearings, the Hearing Panel Subcommittee found that the allegations
in the Statement of Charges were proven by clear and convincing evidence and that Elswick violated
the West Virginia Rules of Professional Conduct in several respects. The Subcommittee
recommends that this Court impose a number of sanctions, including a three year suspension of
Elswick’s license to practice law in this State. Elswick contests the findings and conclusions of the
Hearing Panel Subcommittee and objects to the recommendations.
After a careful review of the briefs, the argument of counsel and the record submitted on
appeal, this Court is of the opinion that the findings, conclusions and recommended sanctions of the
Hearing Panel Subcommittee should be adopted in part, with the exception that the mitigating factors
herein warrant a two year, rather than a three year, suspension. Consequently, the report of the
Subcommittee is adopted, and Elswick’s license to practice law in this State is suspended for a
period of two years, with additional sanctions as recommended by the Subcommittee.
1
I. Factual Background
Elswick was admitted to The West Virginia State Bar in September 1999 and, soon after,
began working in the Kanawha County Public Defender Office. The Office’s managing lawyer was
Chief Public Defender George Castelle. In January 2004, the Public Defender Office was appointed
to represent Dana December Smith in his post-conviction habeas corpus proceeding. Elswick was
assigned to work on the case in February 2004.
Dana December Smith had been found guilty in 1992 of the murder of Margaret McClain and
her daughter, Pamela Castaneda, in the Leewood-Cabin Creek area of Kanawha County. As a result,
Smith was serving two life sentences without the possibility of parole. His direct appeal was refused
by this Court in 1994. Thereafter, Smith filed several pro se petitions for relief in habeas corpus.
The current matter arises from an amended habeas petition filed on Smith’s behalf in 2003 by
retained counsel, M. Timothy Koontz - State ex rel. Dana December Smith v. Trent, 97-Misc-43
(Circuit Court of Kanawha County). Elswick and Koontz later became co-counsel in the habeas
proceeding.
Elswick began looking into Dana December Smith’s assertion of newly discovered evidence
that an individual named Tommy Lynn Sells had confessed to the murders of the two women. Sells
was incarcerated on death row in Texas for unrelated crimes.1 Elswick, inter alia, (1) requested
permission from Tommy Lynn Sells’s lawyer to speak with Sells about the West Virginia murders,
1
Sells is the subject of a book by D. Fanning entitled Through the Window: The Terrifying
True Story of Cross-Country Killer Tommy Lynn Sells.
2
(2) contacted individuals with regard to the television show “48 Hours” to request a copy of the
episode during which Sells confessed to the West Virginia murders and (3) contacted the West
Virginia Division of Corrections to determine whether Sells and Dana December Smith had ever
been incarcerated at the same time and place in West Virginia.
On May 10, 2004, Elswick and her legal assistant, Jane Brumfield, met with Tommy Lynn
Sells at his place of incarceration in Livingston, Texas. Elswick interviewed Sells while Brumfield
observed. As determined by the Hearing Panel Subcommittee, Elswick took notes during the
interview which indicated that Tommy Lynn Sells had met and interacted with Elswick’s client,
Dana December Smith, at a bar in St. Albans, Kanawha County, West Virginia. Elswick’s notes
indicate that the meeting occurred prior to the murders of the two women. The notes state in relevant
part:
Talked to ∆ @ St. Albans other side of it . . . A bar had a few drinks ∆ bought
drugs off Tommy-Became acquainted ∆ told Tommy about another place where he
could get Drugs w/o worrying about police Met Pamela @ another Bar ­
Despite her notes, Elswick insists that she does not recall Tommy Lynn Sells ever telling her
that he knew, or had any contact with, her client. According to Elswick, if Sells made such a
comment, he retracted it during the same interview. In addition, Elswick maintains that she may
have transposed the “∆” symbol and, in fact, meant the “∆” to refer to one of the female victims.
Moreover, Elswick emphasizes that the notes she took that day consisted of several pages; yet, only
the page containing the above passage was used to support the Statement of Charges filed against
her.
3
The Hearing Panel Subcommittee found, in addition, that legal assistant Brumfield also took
notes on May 10, 2004. Those notes stated in part: “Cabin Creek----St. Albans----other side of it---­
Met Dana there----bought drugs off me-acquainted—“ Nevertheless, Elswick states: “Ms.
Brumfield’s notes from the initial meeting with Mr. Sells consist of three pages, the last of which
contains the following notation: ‘Call’s him Danea (sp?) - never housed - Never had conversation
w/him’”
The following day, May 11, 2004, Tommy Lynn Sells gave a recorded statement to Elswick
and Brumfield in which he confessed to the West Virginia murders for which Dana December Smith
had been convicted. The statement was conducted by Brumfield in Elswick’s presence. Sells was
not asked if he knew Dana December Smith or asked about the prior interaction between Sells and
Smith at the St. Albans bar.
Thereafter, Tommy Lynn Sells began writing to Elswick at the Kanawha County Public
Defender Office, and Elswick responded with letters typed on office letterhead. Ultimately, Sells
and Elswick exchanged approximately 60 letters. The evidence reveals that, while Chief Public
Defender Castelle expected that there would be some degree of correspondence between Sells and
Elswick concerning, for example, the securing of further statements from Sells about the murders,
Elswick never revealed to Castelle the magnitude or the nature of the correspondence. The letters
sent by Sells were rambling and often included obscenities. In her responses, Elswick encouraged
Sells’s drawing and poetry writing. Elswick’s responses, however, tended to be on a personal rather
4
than a professional level and could be viewed as promoting a “pen pal” relationship with Sells. In
some instances, Elswick provided Sells with details of her private and professional life.
Elswick contends that she engaged in that level of correspondence with Tommy Lynn Sells
on the advice of Texas authorities who stated that they had shared personal details with Sells and
that, if Elswick could maintain rapport with Sells, she might get additional information from him.
On June 9, 2004, Elswick and her co-counsel filed a motion in the Circuit Court of Kanawha
County to take Tommy Lynn Sells’s deposition, seeking to have his confession to the West Virginia
murders taken under oath, subject to cross-examination, for admission in Dana December Smith’s
habeas proceeding. Elswick attached a copy of Tommy Lynn Sells’s recorded statement of May 11,
2004, taken by legal assistant Brumfield during which Sells was not asked if he knew Dana
December Smith or whether they met and interacted at the St. Albans bar. The circuit court granted
the motion in July 2004.
Elswick conducted the deposition of Tommy Lynn Sells in Texas in September 2004. The
Kanawha County Prosecutor’s Office appeared by video-conference. Sells again confessed to the
West Virginia murders. Upon further questioning by Elswick, Sells denied that he knew, or ever
communicated with, Dana December Smith.
In 2005, Elswick was relieved from the case at her request, and Chief Public Defender
Castelle took responsibility with M. Timothy Koontz for Dana December Smith’s habeas corpus
5
proceeding.2 Upon transferring the case, Elswick did not advise Castelle about the initial interview
notes that Sells met and interacted with Dana December Smith at the St. Albans bar. Based on
Tommy Lynn Sells’s deposition testimony, Castelle believed that Sells did not know and had never
communicated with Dana December Smith.
Evidentiary hearings on Dana December Smith’s habeas corpus petition were conducted in
the Circuit Court of Kanawha County in January 2006. Prior to the hearings, neither Elswick nor
Brumfield advised Castelle about the May 10, 2004, notes taken during the initial interview of
Tommy Lynn Sells which showed that Sells had met and interacted with Smith prior to confessing
to the West Virginia murders. During the hearings, Castelle introduced Sells’s September 2004
deposition. As indicated above, Elswick’s May 10, 2004, undisclosed notes were inconsistent with
the September 2004 deposition on the issue of whether any prior interaction had occurred between
Tommy Lynn Sells and Dana December Smith.
On January 31, 2006, Elswick resigned from the Kanawha County Public Defender Office
to take another position. In a February 2, 2006, e-mail, Brumfield told Elswick that notes taken by
Brumfield during the initial meeting with Tommy Lynn Sells revealed that Sells stated he had been
in a bar with Dana December Smith. Brumfield’s e-mail stated in part: “Wendy, I went back over
my notes of our first meeting with Tommy and at that time he said he was at the bar with Dana.”
2
After Elswick was relieved as co-counsel in Dana December Smith’s habeas proceeding,
Brumfield sent four e-mails to a Texas radio station in June and December 2005 requesting “shout
outs” to Tommy Lynn Sells. Brumfield later testified that she sent the e-mails to the radio station
at Elswick’s direction. Elswick denied directing Brumfield to send the e-mails.
6
The Hearing Panel Subcommittee later found that Elswick did not advise Castelle, at that point, that
she was, thus, made aware that Brumfield’s notes contradicted Sells’s deposition.
By letter dated February 7, 2006, Tommy Lynn Sells recanted his confession to the murders
of the two women in West Virginia. Believing that Sells’s confession to the murders was,
nevertheless, valid, Chief Public Defender Castelle argued that there was no evidence to establish
that Tommy Lynn Sells and Dana December Smith knew each other. As subsequently determined
by the Hearing Panel Subcommittee:
Attorney Castelle continued to assert both in the Circuit Court and the
Supreme Court of Appeals of West Virginia that Mr. Sells’ confession was valid and
the recantation was false. Attorney Castelle further continued to assert that there was
no evidence to establish that Mr. Sells and Mr. Smith knew one another.
The Circuit Court of Kanawha County denied Dana December Smith’s request for habeas
relief, and the denial was affirmed by this Court in State ex rel. Smith v. McBride, 224 W.Va. 196,
681 S.E.2d 81, cert. denied, 558 U.S. 921 (2009). In the opinion, this Court noted its agreement with
the circuit court that the confession of Tommy Lynn Sells to the murders lacked credibility. Sells’s
confession, for example, contained blatantly incorrect information about the crime scene.
While Dana December Smith’s habeas appeal was pending in this Court, Castelle and his
staff discovered the letters exchanged between Tommy Lynn Sells and Elswick and, subsequently,
discovered the May 10, 2004, notes taken by Elswick and Brumfield during the initial meeting with
Sells in Texas. The letters and notes were located in the Kanawha County Public Defender Office.
7
Elswick and Brumfield were provided an opportunity to explain the meaning of the discovered
documents. Ultimately, however, Castelle terminated Brumfield’s employment, moved to withdraw
a petition for rehearing filed in the Dana December Smith habeas appeal and moved to withdraw as
Smith’s counsel.
II. Procedural Background
A legal ethics complaint was filed by Castelle against Elswick on May 6, 2009, and an
additional complaint was filed by Dana December Smith on May 18, 2009. Combining the
complaints, the Investigative Panel of the Lawyer Disciplinary Board filed a Statement of Charges
against Elswick in April 2011. The Statement of Charges consisted of two counts.
Count I, No. 09-03-246, alleged that on May 11, 2004, Elswick knowingly and intentionally
directed or permitted Brumfield to elicit a known false statement from Tommy Lynn Sells, a
potential witness in Dana December Smith’s habeas proceeding. In the statement, Sells confessed
to the murders for which Smith had been convicted but was asked no questions with regard to his
prior interaction with Smith in the St. Albans bar. Count I alleged that Elswick, therefore, violated
Rule 5.3. of the West Virginia Rules of Professional Conduct concerning a lawyer’s responsibilities
regarding nonlawyer assistants.3
3
Rule 5.3. states in part:
With respect to a nonlawyer employed or retained by or associated with a
lawyer. * * *
(b) a lawyer having direct supervisory authority over the nonlawyer shall
make reasonable efforts to ensure that the person’s conduct is compatible with the
(continued...)
8
Count I also alleged that Elswick knowingly and intentionally attached Tommy Lynn Sells’s
May 11, 2004, false statement elicited by Brumfield to the June 9, 2004, motion to take Sells’s
deposition. The deposition was to be taken for use in Dana December Smith’s habeas proceeding.
In that regard, Count I alleged that Elswick violated Rule 3.3. requiring candor toward a tribunal,
Rule 8.4.(c) concerning misrepresentation and Rule 8.4.(d) prohibiting conduct prejudicial to the
administration of justice.4 Finally, Count I alleged that, in September 2004, Elswick, in violation
3
(...continued)
professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be
a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies
the conduct involved; or
(2) the lawyer is a partner in the law firm in which the person is employed,
or has direct supervisory authority over the person, and knows of the conduct at a
time when its consequences can be avoided or mitigated but fails to take reasonable
remedial action.
4
Rule 3.3. states:
(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. [concerning confidentiality of information].
(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
(continued...)
9
of Rule 3.4.(b), knowingly and intentionally elicited false statements from Tommy Lynn Sells during
his formal deposition, to the effect that Sells did not know, and had never interacted with, Dana
December Smith.5
Count II, No. 09-03-291, alleged that Elswick, without the knowledge and consent of Dana
December Smith, engaged in a pen-pal relationship with Tommy Lynn Sells which proved harmful
to the objectives of Smith’s habeas proceeding. According to Dana December Smith, after Elswick
severed the relationship, Sells became angry and recanted his confession to the murders for which
Smith had been convicted. The Investigative Panel charged Elswick with violating Rule 1.7.(b) of
the Rules of Professional Conduct concerning conflict of interest.6
4
(...continued)
decision, whether or not the facts are adverse.
In addition, Rule 8.4.(c) and (d) provide that it is professional misconduct for a lawyer to
engage in conduct involving dishonesty, fraud, deceit or misrepresentation or engage in conduct that
is prejudicial to the administration of justice.
5
Rule 3.4.(b) states that a lawyer shall not “falsify evidence, counsel or assist a witness to
testify falsely, or offer an inducement to a witness that is prohibited by law[.]”
6
Rule 1.7.(b) states:
(b) A lawyer shall not represent a client if the representation of that client may
be materially limited by the lawyer’s responsibilities to another client or to a third
person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely
affected; and
(2) the client consents after consultation. When representation of multiple
clients in a single matter is undertaken, the consultation shall include explanation of
the implications of the common representation and the advantages and risks involved.
10
Elswick, by counsel, denied the charges in a response filed in June 2011. A series of
evidentiary hearings were then conducted before the Hearing Panel Subcommittee in August 2011
and May 2012. Elswick testified that, her May 10, 2004, notes notwithstanding, she did not recall
Tommy Lynn Sells ever telling her that he knew or had met her client, Dana December Smith.
On February 22, 2013, the Hearing Panel Subcommittee filed its findings of fact, conclusions
of law and recommended sanctions. The Subcommittee found that Elswick violated Rules 5.3.; 3.3.;
8.4.(c) and (d); 3.4.(b); and 1.7.(b) of the West Virginia Rules of Professional Conduct as set forth
in the Statement of Charges. Among the sanctions the Subcommittee recommends is a three year
suspension of Elswick’s license to practice law in this State. Elswick contests the findings and
conclusions of the Hearing Panel Subcommittee and objects to the recommended sanctions.
III. Standards of Review
In Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994), this
Court took the opportunity to “resolve any doubt” concerning the applicable standard of review in
lawyer disciplinary cases. 192 W.Va. at 289, 452 S.E.2d at 380. Syllabus point 3 of McCorkle
holds:
A de novo standard applies to a review of the adjudicatory record made before
the Committee on Legal Ethics of the West Virginia State Bar [currently the Hearing
Panel Subcommittee of 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 Committee’s
recommendations while ultimately exercising its own independent judgment. On the
other hand, substantial deference is given to the Committee’s findings of fact, unless
11
such findings are not supported by reliable, probative, and substantial evidence on
the whole record.
Accord syl. pt. 1, Lawyer Disciplinary Board v. Santa Barbara, 229 W.Va. 344, 729 S.E.2d 179(2012); syl. pt. 1, Lawyer Disciplinary Board v. Blevins, 222 W.Va. 653, 671 S.E.2d 658 (2008).
See also In re: L.E.C., 171 W.Va. 670, 672, 301 S.E.2d 627, 629 (1983) (Absent a mistake of law
or arbitrary assessment of facts, recommended sanctions in legal ethics cases are to be given
substantial consideration.)
The above standard of review is consistent with this Court’s ultimate authority with regard
to legal ethics matters in this State. Syllabus point 3 of Committee on Legal Ethics v. Blair, 174
W.Va. 494, 327 S.E.2d 671 (1984), cert. denied, 470 U.S. 1028 (1985), states: “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.” Accord syl. pt. 3, Lawyer
Disciplinary Board v. Artimez, 208 W.Va 288, 540 S.E.2d 156 (2000).
Rule 3.7. of the West Virginia Rules of Lawyer Disciplinary Procedure provides that, in order
to recommend the imposition of discipline of a lawyer, “the allegations of the formal charge must
be proved by clear and convincing evidence.” Where discipline is appropriate, the sanctions which
the Hearing Panel Subcommittee may recommend to this Court are found in Rule 3.15. Those
sanctions include (1) probation, (2) restitution, (3) limitation on the nature or extent of future
practice, (4) supervised practice, (5) community service, (6) admonishment, (7) reprimand, (8)
12
suspension or (9) annulment. Pursuant to Rule 3.16. of the Rules of Lawyer Disciplinary Procedure,
the following shall be considered in imposing a sanction:
(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.
See syl. pt. 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722(1998) (emphasizing the provisions of Rule 3.16. in mandating discipline in legal ethics cases).7
IV. Discussion
A. Timeliness
Elswick contends that Count I of the Statement of Charges, relating to the 2009 ethics
complaint filed by Chief Public Defender Castelle, is untimely and should have been dismissed
pursuant to Rule 2.14. of the Rules of Lawyer Disciplinary Procedure. Rule 2.14. states:
Any complaint filed more than two years after the complainant knew, or in
the exercise of reasonable diligence should have known, of the existence of a
violation of the rules of Professional Conduct, shall be dismissed by the Investigative
Panel.
7
With regard aggravating or mitigating factors under Rule 3.16., syllabus point 4 of Lawyer
Disciplinary Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003), states: “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.” By contrast, syllabus point 2 of Scott states that 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.” Accord syl. pts. 5, 6, Lawyer Disciplinary
Board v. Martin, 225 W.Va. 387, 693 S.E.2d 461 (2010).
13
Elswick notes that her alleged violations under Count I concern acts which occurred (1) on
May 11, 2004, when legal assistant Brumfield elicited the recorded statement from Tommy Lynn
Sells, (2) on June 9, 2004, when Elswick attached that statement to the motion to take Sells’s
deposition and (3) in September 2004 when Elswick conducted Sells’s deposition. According to
Elswick, Castelle failed to exercise reasonable diligence in discovering the alleged violations
because, at least by February 2006 when Sells recanted his confession to the murders, Castelle and
his staff were searching their files for records of communication between Sells and the Public
Defender Office. Yet, Castelle’s ethics complaint was not filed until 2009.
The evidence before the Hearing Panel Subcommittee revealed that the Kanawha County
Public Defender Office is located on at least two floors of a building in downtown Charleston, West
Virginia, and consists of a trial and an appellate division. The Office, employing several attorneys
and other employees, handles a significant number of cases of varying complexity, and it is not
uncommon for portions of a case file to be with different employees as the work thereon requires.
The file in the Dana December Smith case consisted of several large boxes. Evidence was submitted
to the Subcommittee that the approximately 60 letters exchanged between Tommy Lynn Sells and
Elswick were not found until 2008. The letters were discovered by a staff member in the bottom of
a filing cabinet. Elswick had never disclosed the nature of the correspondence to Castelle. The
evidence further indicated that, after the letters were found, Elswick’s May 10, 2004, notes were
located. Although those notes, as well as other notes, were found in Dana December Smith’s file,
Elswick had not disclosed them, and the significance of the notes, that Sells and Smith met prior to
the murders, had not been apparent.
14
The Hearing Panel Subcommittee rejected Elswick’s assertion that Count I of the Statement
of Charges was untimely. The Subcommittee found that Castelle repeatedly asked Elswick about
the relationship between Tommy Lynn Sells and Dana December Smith, and despite her and her
legal assistant’s notes to the contrary, Elswick assured Castelle that she had no reason to believe that
Sells and Smith knew one another or had conspired. The Subcommittee concluded: “It is unfair to
suggest that Mr. Castelle, the Chief Public Defender, should have to ferret out the truth on such a
critical issue from one of his own trusted attorneys.”
While Castelle, by his own admission, states that he could have investigated the matter more
promptly, this Court is of the opinion that Castelle exercised reasonable diligence in uncovering the
circumstances resulting in the ethics complaint he filed in May 2009. Therefore, Elswick’s assertion
that Count I is untimely is without merit. See Lawyer Disciplinary Board v. Smoot, 228 W.Va. 1,
716 S.E.2d 491 (2010), cert. denied, 132 S.Ct. 94 (2011) (rejecting an assertion of untimeliness
under Rule 2.14. in a case where an employer’s attorney removed a critical portion of a medical
report he provided to a pro se black lung claimant).
B. Violations of the Rules of Professional Conduct
In the underlying case, Elswick’s client, Dana December Smith, was serving two life
sentences without the possibility of parole for the murder of two women. A potential witness in
Smith’s habeas proceeding, Tommy Lynn Sells, was on death row in a Texas penitentiary and had
confessed to the murders. Elswick acknowledged before the Hearing Panel Subcommittee that it was
important to discern any interaction between the two men prior to Sells’s death row confession.
15
On May 10, 2004, at the initial interview of Sells, both Elswick and legal assistant Brumfield
took notes indicating that Smith and Sells had met and communicated at a bar in St. Albans,
Kanawha County, prior to the murders. Elswick and Brumfield did not use that information the
following day when Brumfield obtained Sells’s recorded statement. During the statement, no
questions were asked about Sells having met Dana December Smith before Sells’s death row
confession. Moreover, the May 10, 2004, notes of the initial interview were not used when Elswick
deposed Tommy Lynn Sells in September 2004. Even if the notes were inaccurately taken down,
they were never disclosed to Castelle who introduced Sells’s deposition in evidence during the
habeas proceedings. Moreover, even if the notes had been present in the Dana December Smith file,
the evidence of record revealed that each attorney in the Public Defender Office had the authority
to organize the file in his or her own way and that, in the Dana December Smith case, the file was
in disarray with the import of various notes therein not easily understood. Elswick was in the best
position to reveal the inconsistency contained in the initial interview notes but failed to do so.
In addition, a letter dated May 28, 2004, from Tommy Lynn Sells to Elswick stated that
“Dane” is a liar. The letter further stated: “And i do think i could of help more had he keep his
word.” The Hearing Panel Subcommittee commented that the May 28, 2004, letter indicated that
Smith and Sells had had some sort of deal between them. Elswick did not show the letter to Castelle,
and the letter predated the motion to take Tommy Lynn Sells’s deposition.
In February 2006, Brumfield told Elswick in an e-mail: ”Wendy, I went back over my notes
of our first meeting with Tommy and at that time he said he was at the bar with Dana.” The Hearing
16
Panel Subcommittee later found that Elswick did not advise Castelle, at that point, that she was, thus,
made aware that Brumfield’s notes contradicted Sells’s deposition.
As a result, Castelle unknowingly introduced Tommy Lynn Sells’s deposition in evidence
during Dana December Smith’s habeas corpus proceeding in the Circuit Court of Kanawha County.
Soon after, when Sells recanted his confession to the murders, Castelle argued that the confession
was, nevertheless, valid because there was no evidence that Sells and Dana December Smith knew
each other. Castelle asserted the validity of the confession before the circuit court as well as to this
Court on appeal. When Castelle learned that his position was undermined by the undisclosed
information, he withdrew the petition for rehearing filed in this Court.8
The approximately 60 letters exchanged between Tommy Lynn Sells and Elswick more
appropriately relate to Count II of the Statement of Charges concerning conflict of interest. The
letters were not lawyer-witness communications about the case. Elswick’s letters were personal and
could accurately be characterized as promoting a “pen pal” relationship with Tommy Lynn Sells.
Even if Elswick wrote the letters on the advice of Texas authorities, she did not disclose the
correspondence to Castelle or her co-counsel.
8
It should be noted that Elswick made no disclosure of the information in question to her
co-counsel in the Dana December Smith habeas proceeding, M. Timothy Koontz.
It should also be noted that, although Dana December Smith and Sells were incarcerated in
West Virginia after the murders for a short period of time in the same county jail and penitentiary,
the question of whether any communication passed between them remains speculative. That
question, however, does not relieve Elswick in the circumstances herein from her responsibilities
under the Rules of Professional Conduct.
17
Testifying before the Hearing Panel Subcommittee, Brumfield expressed the belief that
Tommy Lynn Sells recanted his confession to the murders because Elswick stopped writing to him.
Elswick testified in that regard:
Q. Okay. Did it occur to you when you abruptly discontinued the
correspondence with Mr. Sells that it could have a negative impact on the Public
Defender’s client, Mr. Smith?
A. Yes.
Q. Okay. Did you address the 60 – actually, I think it’s 28 and 29 – almost 60
letters between you and Mr. Sells with Mr. Castelle at that time, when you withdrew
from the case, when you asked to be withdrawn – removed from the case?
A. I don’t recall.
Q. Okay. But you did appreciate at that time that it could negatively impact
your client if you stopped writing to Mr. Sells?
A. I think that I thought about it. yes.
Q. But you didn’t address it with anyone?
A. I don’t recall addressing it.
C. The Subcommittee’s Findings, Conclusions and Recommendations
The report of the Hearing Panel Subcommittee states:
The evidence in this case establishes by clear and convincing proof that
Respondent [Elswick] violated her duties owed to her client, the public, the legal
system, and the legal profession. * * * The actual damage that was done to her
client, . . . Dana December Smith, may never be fully known but the legal and
ethical ramifications to her supervising attorney [and] her co-counsel [were] very real
and serious in nature. The real damage done in this case was the lack of forthright-
fullness with the Courts. * * *
[The respondent] failed to recognize, from the outset, the danger she was
placing her client’s case in by engaging in such a relationship with a key witness as
Mr. Sells. In fact, the evidence reflects that Respondent encouraged the relationship
with Mr. Sells and often times shared intimate details of her personal and
professional life with Mr. Sells. Respondent’s actions jeopardized her client’s case
and the witness’s credibility, as well as her own credibility. * * * Respondent’s
testimony very much bothered this panel when the Respondent denied on direct
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questioning that she was aware of the fact that Mr. Sells and Mr. Smith knew each
other even when it is clearly set forth in her own handwriting in her initial notes.
Additionally, at no time did the Respondent take remedial steps to correct the
potential fraud on the Court. She took no action to advise Mr. Castelle, Mr. Koontz
or her client that there was any error or misconduct on her part.
In recommending the suspension of Elswick’s license, the Hearing Panel Subcommittee
considered mitigating and aggravating factors. Syllabus point 3 of Lawyer Disciplinary Board v.
Scott, supra, observes:
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.
Syl. pt. 3, Lawyer Disciplinary Board v. Stanton, 225 W.Va. 761, 695 S.E.2d 901 (2010).
Here, the mitigating factors include Elswick’s (1) lack of previous legal ethics violations, (2)
cooperative attitude toward Disciplinary Counsel, (3) youth and inexperience in the practice of law,
(4) evidence of good character and reputation, and (5) expression of remorse, while maintaining that
she does not recall Tommy Lynn Sells ever telling her that he had interacted with Dana December
Smith.
19
Additional mitigating factors include evidence that Elswick never attempted to conceal her
May 10, 2004, notes and never attempted to keep her correspondence with Sells a secret. On the
latter point, the record includes testimony that various staff members in the Public Defender Office
were aware that some type of letter exchange was going on between Elswick and Sells. Moreover,
Elswick had never dealt with a serial killer before, especially of the magnitude of Tommy Lynn
Sells. In fact, Koontz testified that Elswick should not have been permitted to travel to Texas to
meet with Sells because of her lack of experience and because Sells was highly manipulative.
The aggravating factors considered by the Hearing Panel Subcommittee included its findings
that Elswick had engaged in a pattern of misconduct in the underlying habeas proceeding and, as a
result, had committed multiple offenses. Among the findings of the Subcommittee was the
determination that Elswick had knowingly adduced incomplete and incorrect evidence from Tommy
Lynn Sells which was relied upon by Castelle in subsequent court proceedings.
Syllabus point 3 of Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234(1987), holds:
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.
Syl. pt. 3, Lawyer Disciplinary Board v. Blevins, supra.20
Here, the Hearing Panel Subcommittee determined that a three year suspension would be
appropriate. In Lawyer Disciplinary Board v. Smoot, supra, this Court imposed a one year
suspension where an employer’s attorney removed a critical, narrative summary from a medical
report the attorney provided to a pro se, black lung claimant. By contrast, Elswick’s misconduct was
more diverse and extended over a longer period of time. As a result, a suspension of more than one
year is warranted. Nevertheless, the mitigating factors discussed above are numerous. In view of
those factors, and in keeping with the principles expressed in Committee on Legal Ethics v. Walker,
supra, this Court is of the opinion that a two year, rather than a three year, suspension of Elswick’s
licence to practice law is appropriate. The remaining sanctions recommended by the Hearing Panel
Subcommittee are hereby adopted.
V. Conclusion
Upon all of the above, Elswick’s license to practice law in this State is suspended for a period
of two years. The remaining recommended sanctions of the Hearing Panel Subcommittee are
adopted. Those sanctions are as follows:
A. That prior to being reinstated to the practice of law, respondent Elswick
be evaluated by a licensed mental health provider and follow any protocol, if any, as
directed by the mental health provider;
B. That prior to being reinstated to the practice of law that respondent be
ordered to undergo an additional twelve (12) hours of Continuing Legal Education
with focus on ethics;
C. That Respondent be ordered to pay the costs of these proceedings pursuant
to Rule 3.15. of the Rules of Lawyer Disciplinary Procedure;
D. That prior to being reinstated to the practice of law that Respondent
reimburse said costs to the Lawyer Disciplinary Board; and
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E. That if Respondent is successfully reinstated in the future, that upon
reinstatement she be placed on two (2) years of probation with supervised practice
by an active attorney in her geographic area in good standing with The West Virginia
State Bar.
License to Practice Law in West Virginia
Suspended for Two Years
And Additional Sanctions
22