Lawyer Disciplinary Board v. Stephen L. Hall , 234 W. Va. 298 ( 2014 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
September 2014 Term October 23, 2014
______________ released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 13-0180 OF WEST VIRGINIA
_____________
LAWYER DISCIPLINARY BOARD,
Petitioner
v.
STEPHEN L. HALL,
A MEMBER OF THE WEST VIRGINIA STATE BAR,
Respondent
____________________________________________________________
Lawyer Disciplinary Proceeding
LAW LICENSE SUSPENDED AND OTHER SANCTIONS
_____________________________________________________________
Submitted: September 3, 2014
Filed: October 23, 2014
Renée N. Frymyer, Esq. Stephen L. Hall, Esq., Pro Se
Office of Disciplinary Counsel Huntington, West Virginia
Charleston, West Virginia
Attorney for the Petitioner
The Opinion of the Court was delivered by JUSTICE WORKMAN.
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, Comm. 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.” Syl. Pt. 3, Comm. on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671
(1984), cert denied, 470 U.S. 1028 (1985).
3. Administrative law judges are adjudicatory officers within the meaning of
Rule 8.2(a) of the West Virginia Rules of Professional Conduct.
4. “The Free Speech Clause of the First Amendment protects a lawyer’s
i
criticism of the legal system and its judges, but this protection is not absolute. A lawyer’s
speech that presents a serious and imminent threat to the fairness and integrity of the judicial
system is not protected. When a personal attack is made upon a judge or other court official,
such speech is not protected if it consists of knowingly false statements or false statements
made with a reckless disregard of the truth. Finally, statements that are outside of any
community concern, and are merely designed to ridicule or exhibit contumacy toward the
legal system, may not enjoy First Amendment protection.” Syl. Pt. 1, Comm. on Legal Ethics
v. Douglas, 179 W.Va. 490, 370 S.E.2d 325 (1988).
5. Within the context of assessing an alleged violation of Rule 8.2(a) of the
West Virginia Rules of Professional Conduct, a statement by an attorney that such attorney
knows to be false or with reckless disregard as to its truth or falsity concerning the
qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a
candidate for election or appointment to judicial or legal office is not protected by the First
Amendment as public speech on a matter of public concern where such statement is not
supported by an objectively reasonable factual basis. The State’s interest in protecting the
public, the administration of justice, and the legal profession supports use of the objectively
reasonable standard in attorney discipline proceedings involving disparagement of the
credibility of the aforementioned judicial officers.
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 standard of
the legal profession.” Syl. Pt. 3, Comm. on Legal Ethics v. Walker, 178 W.Va. 150, 358
S.E.2d 234 (1987).
7. “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 Supreme 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.” Syl. Pt. 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513
S.E.2d 722 (1998).
8. “Aggravating factors in a lawyer disciplinary proceeding are any
considerations or factors that may justify an increase in the degree of discipline to be
iii
imposed.” Syl. Pt. 4, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550
(2003).
9. “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).
10. “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 Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).
iv
WORKMAN, Justice:
This is a lawyer disciplinary proceeding brought against Stephen L. Hall
(hereinafter “Mr. Hall”) by the Office of Disciplinary Counsel (hereinafter “the ODC”) on
behalf of the Lawyer Disciplinary Board (hereinafter “the Board”). A Hearing Panel
Subcommittee of the Board (hereinafter “HPS”) determined that Mr. Hall violated Rules
8.2(a) and 8.4(d) of the West Virginia Rules of Professional Conduct. The Board has
recommended a three-month suspension of Mr. Hall’s license to practice law, a requirement
of three additional hours of continuing legal education, and the payment of costs.
Upon thorough review of the record, briefs, and applicable precedent, this
Court finds that clear and convincing evidence exists to support the Board’s findings and
recommended sanctions. This Court therefore imposes the sanctions recommended by the
Board.
I. Factual and Procedural History
Mr. Hall was admitted to The West Virginia State Bar on November 20, 1996.
He serves as the financial aid officer for the Charleston Academy of Beauty Culture
(hereinafter “CABC”) and does not regularly practice law. Ms. Tyleemah Edwards and Mr.
Harry Walter Robinson filed complaints with the West Virginia Human Rights Commission
1
(hereinafter “WVHRC”) asserting that the CABC, Judy Hall, and Cherie Bishop had
discriminated against them on the basis of race. The CABC is owned and operated by Mr.
Hall’s mother, Judy Hall. Mr. Hall represented the CABC, Judy Hall, and Cherie Bishop1
in the proceedings before the WVHRC.
The complainants in the underlying matter, Ms. Edwards and Mr. Robinson,
were African-American students of the CABC.2 In their complaints before the WVHRC,
they alleged racial discrimination, a racially hostile environment, and segregation. Ms.
Edwards also alleged reprisal and retaliation, allegedly occurring after she had complained
about racial discrimination. Their cases were consolidated for hearing before the WVHRC.
The Honorable Phyllis H. Carter (hereinafter “ALJ Carter”) served as Chief
Administrative Law Judge during the proceedings at issue before the WVHRC. ALJ Carter
held a public hearing from April 23 to 26, 2007, and issued a Final Decision on May 29,
2009, finding by a preponderance of evidence that the CABC, Judy Hall, and Cherie Bishop
had illegally discriminated against the complainants on the basis of their race. The 109-page
decision included extensive citations to exhibits and the hearing transcript.
1
Cherie Bishop was an instructor at the CABC.
2
Mr. Robinson is now deceased.
2
On June 29, 2009, Mr. Hall filed a Petition of Appeal with the WVHRC on
behalf of his clients, the CABC, Judy Hall, and Cherie Bishop.3 A significant portion of the
appellate brief was devoted to ALJ Carter’s alleged racial bias and predisposition toward the
complainants’ position, based upon the fact that ALJ Carter was also an African American.4
Specifically, the Petition of Appeal contained the following statements:5
Phyllis H. Carter failed to execute her duties as ALJ for the
HRC in a fair an (sic) impartial manner by, and in direct conflict
with the Code of Judicial Conduct, exhibiting clear bias and
having personal knowledge of the matters appearing before her;
refusing to disclose the same; and ruling against that which she
personally knew to be false.
The ALJ based her Decision upon a large number of misstated
and judicially fabricated facts, as well as misrepresenting and
lying about the history of the case and the issues involved in the
case, in direct violation of the case law precedent of the
Supreme Court of Appeals of the State of West Virginia.
On May 29th, 2009, Phyllis H. Carter, the ALJ in the present
cases, did unlawfully purport to exercise the function of a public
official, employee and tribunal without legal authority to do so
and with the intent to induce the Respondents to submit to the
3
According to the record, the underlying matter was Mr. Hall’s first and only
experience practicing law before ALJ Carter. ALJ Carter is now deceased.
4
One of Mr. Hall’s primary contentions was that ALJ Carter knew the allegations of
CABC’s discriminatory practice of steering white students to white customers and black
students to black customers were false because she had personally visited the CABC and had
received services from a white student. This Court observes that Mr. Hall could have filed
a motion to recuse, pursuant to West Virginia 77 C.S.R. 2-7.4.b, if he had believed this issue
to constitute bias on the part of ALJ Carter.
5
These statements are excerpts from the 122-page and 124-page petitions filed by Mr.
Hall with the WVHRC and in the Kanawha County Circuit Court.
3
fraudulent authority of Phyllis H. Carter. . . . Phyllis H. Carter
impersonated a public official, a clear criminal violation of
W.Va. Code §61-5-27a(e). Phyllis H. Carter criminally violated
the law when she caused to be filed, recorded and delivered said
fraudulent Decision.
The glaring fact that this presents is not merely that Phyllis
Carter, (sic) flaunted her disdain for ethical obligations, but that
knowing the allegations to be false, openly displayed her bias by
deciding against the Respondents personally knowing the
allegations to be fraudulent. It is apparent from the context of
these proceedings that the explanation for Phyllis H. Carter’s
unethical behavior can only be that the individual Respondents
are white, while Ms. Carter is black. Counsel can think of no
other explanation but that Phyllis H. Carter is engaging in the
most heinous of racial bigotry against the Respondents.
The ALJ’s Decision explicitly relied on this fraudulent incident
in finding for the Complainants knowing the incident to be
fraudulent. The ALJ refused to follow the Rules of Procedure
even-handedly, but showed favoritism towards the AG’s
[Attorney General’s] Office even knowing that the testimony
supporting new allegations was fraudulent, and that the AG’s
Office had participated in perpetrating the fraud.
In the Decision, the ALJ lied and stated that counsel for
Respondent would not accept service of process.
In an outlandish display of tyrannical inclination, ALJ Carter
found that Respondents discriminated because they were unable
to force other companies and trade groups to provide instruction
and product knowledge at the Respondents’ school. . . . ALJ
Carter basing her Decision upon the absence of such an
outlandish forced coercion, as she obviously did, indicates not
only that ALJ Carter is deluded into thinking that this is a
Communist country where companies are forced to perform
services for others, but is under the deluded impression that
Respondents have the power and authority to compel others to
do its bidding. For the foregoing reasons, Respondents
recommend that ALJ Carter seek professional psychiatric help,
4
or be required to attend a forced reeducation camp . . . oops . .
. wrong country.
The ALJ refers to the child as ‘the only non-white party goer.’
The child was allegedly, according to Complainant Edwards,
mixed. That the ALJ ascribes racist motives to Respondent
Bishop and pointedly denies the child’s white heritage speaks
more of the ALJ’s racism than Respondents. (sic)
ALJ Carter relies on her absolute unquestionable power as sole
determinant of who is to be given the halo of credibility.
Apparently this practice is routine for the HRC, the AG’s Office
and ALJ Carter as the ubiquitous appearance of the word
credible, or variations thereof, attests.
These are plainly stupid reasons for the ALJ to ignore Ms.
Davis’ testimony, and more reflection upon Phyllis Carter’s
bias.
Corroboration is only important to ALJ Carter if it favors her
predetermined outcome of the case.
Former Chief ALJ Carter states numerous lies and falsehoods in
her Decision, which, while not by themselves constituting a
legal error, demonstrate the pervasiveness of the ALJ’s bias,
disdain for the facts and lack of judicial temperament.
This appeal could go on and on concerning the seemingly
perpetual lies and misrepresentations by ALJ Carter about the
actual evidence in the present cases.
The WVHRC affirmed ALJ Carter’s Final Decision and incorporated by
reference the factual findings and conclusions of law set forth by ALJ Carter into a Final
Order of the agency. Mr. Hall thereafter filed an appeal on behalf of his clients with the
Circuit Court of Kanawha County on October 8, 2009. In that appeal, Mr. Hall included the
5
same statements about ALJ Carter that he had made in the prior appeal, as quoted above. On
August 8, 2011, the Circuit Court of Kanawha County affirmed the WVHRC decision. This
Court affirmed the circuit court on May 25, 2012. See Charleston Academy of Beauty
Culture, Inc. v. West Virginia Human Rights Comm’n, No. 11-1286, 2012 WL 3129142
(W.Va. May 25, 2012) (Memorandum Decision).
Based on Mr. Hall’s statements concerning ALJ Carter in his petitions for
appeal, the ODC charged Mr. Hall with violating Rule 8.2(a), 8.4(c), and Rule 8.4(d) of the
West Virginia Rules of Professional Conduct. Rule 8.2(a) provides: “A lawyer shall not
make a statement that the lawyer knows to be false or with reckless disregard as to its truth
of falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public
legal officer, or of a candidate for election or appointment to judicial or legal office.” Rule
8.4 provides that “[i]t 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.” A Statement of Charges was issued against Mr.
Hall and filed with this Court on February 26, 2013.6 Mr. Hall was served with the Statement
of Charges on February 27, 2013, and he filed a timely response on March 25, 2013.
6
The Investigative Panel of the Board issued a written admonishment on December
14, 2012. By letter dated December 28, 2012, Mr. Hall objected to the issuance of the
admonishment.
6
A hearing was held by the HPS on September 26, 2013. The HPS heard
testimony from ALJ Carter, attorney Paul Sheridan,7 and Mr. Hall. On March 13, 2014, the
HPS issued its decision, and the Report and Recommendation of the HPS was filed with this
Court on March 26, 2014. The HPS found clear and convincing evidence that Mr. Hall
violated Rules 8.2(a) and 8.4(d) of the West Virginia Rules of Professional Conduct.
Specifically, the HPS found that Mr. Hall made statements with reckless disregard as to truth
or falsity concerning the integrity of a judicial officer, in violation of Rule 8.2(a) of the Rules
of Professional Conduct. Further, the HPS found that Mr. Hall engaged in conduct that is
prejudicial to the administration of justice, in violation of Rule 8.4(d).8
The HPS recommended that Mr. Hall’s law license be suspended for a period
of three months; that Mr. Hall be ordered to complete an additional three hours of continuing
legal education during the 2014-2016 reporting period, specifically in ethics, over and above
that already required; and that Mr. Hall be ordered to reimburse the Board the costs of the
proceedings pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure.
7
Paul Sheridan testified that he served as an assistant attorney general in the civil
rights division from 1990 to 2013. He represented the WVHRC in the underlying matter
wherein Mr. Hall’s clients were adverse parties. According to Mr. Sheridan, ALJ Carter’s
Final Decision did not contain any lies or misrepresentations.
8
The HPS did not find that Mr. Hall’s statements constituted fraud, dishonesty, deceit
or misrepresentation and consequently recommended the dismissal of the charged violation
of Rule 8.4(c).
7
On April 15, 2014, Mr. Hall filed an “Objection made pursuant to Rule 3.11
of the Rules of Lawyer Disciplinary Procedure.” By Order entered April 17, 2014, this Court
ordered the parties to submit written briefs. Oral argument was heard on September 3, 2014.
II. Standard of Review
In Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377
(1994), this Court addressed the applicable standard of review in lawyer disciplinary cases.
Syllabus point three of McCorkle provides:
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.
Id. at 289, 452 S.E.2d at 380; see also In re L.E.C., 171 W.Va. 670, 672, 301 S.E.2d 627, 629
(1983) (finding that absent mistake of law or arbitrary factual assessment, recommended
sanctions in lawyer disciplinary matters are given substantial consideration).
The standard of review enunciated above is consistent with this Court’s
ultimate authority on issues of legal ethics. Syllabus point three of Committee on Legal
Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984), provides that “‘[t]his Court is the
8
final arbiter of legal ethics problems and must make the ultimate decisions about public
reprimands, suspensions or annulments of attorneys’ licenses to practice law.” This Court
is also mindful that, pursuant to Rule 3.7 of the Rules of Lawyer Disciplinary Procedure,
“the allegations of the formal charge must be proved by clear and convincing evidence.”
With these standards as guidance, we address the issues raised in this matter.
III. Discussion
A. Applicability of Rule 8.2(a) to Administrative Law Judges
In response to the Board’s recommended sanctions, Mr. Hall contends that ALJ
Carter was not an “adjudicatory officer” as contemplated by Rule 8.2(a). The rule, as quoted
above, provides that “[a] lawyer shall not make a statement that the lawyer knows to be false
or with reckless disregard as to its truth of falsity concerning the qualifications or integrity
of a judge, adjudicatory officer or public legal officer, or of a candidate for election or
appointment to judicial or legal office.” (Emphasis supplied). In analyzing the applicability
of that rule to the present situation, the HPS found that ALJ Carter was an “adjudicatory
officer” as contemplated by the rule. As the HPS observed, an administrative law judge is
authorized by statute to conduct hearings, determine legal and factual questions, and render
final decisions within the context of proceedings pursuant to the West Virginia Human
Rights Act. See W.Va. Code § 5-11-8(d)(3) (2013). The rule does not exclude any particular
types of judges or adjudicatory officers, and the comment to the rule specifically references
9
the attorney general, prosecuting attorney, and public defender as examples of legal officials
to which the rule applies.
While Mr. Hall contends that Rule 8.2 prohibits false or reckless statements
only against elected or appointed judicial officers, we find such argument meritless. He
presents no legal authority for his assertions, and his perception that only elected or
appointed judicial officers are entitled to the protections of Rule 8.2 is unfounded. While
there is no direct precedent in this state, other jurisdictions have disciplined attorneys for
violations of rules concerning statements made by attorneys about administrative law judges.
In The Florida Bar v. Ray, 797 So. 2d 556 (Fla. 2001), cert. denied, 535 U.S. 930 (2002), for
instance, an attorney was disciplined for violating Florida Rule of Professional Conduct
4-8.2(a), identical to our Rule 8.2(a), based upon statements made regarding an
administrative law judge in the United States Executive Office for Immigration Review. It
is undisputed that ALJ Carter possessed explicit authority to adjudicate cases before the
WVHRC, and this Court finds that the HPC was correct to hold that ALJ Carter was an
adjudicatory officer, as contemplated by Rule 8.2(a). This Court holds that administrative
law judges are adjudicatory officers within the meaning of Rule 8.2(a) of the West Virginia
Rules of Professional Conduct.
B. Applicability of Rule 8.2 to Statements Made in Legal Writings
10
Mr. Hall also contends that Rule 8.2(a) should not apply to his statements
because they were made in the context of a written legal appeal. The HPS rejected this
argument, noting that Mr. Hall failed to cite to any authority consistent with his position.
The HPS relied upon this Court’s holding in Lawyer Disciplinary Board v. Turgeon, 210
W.Va. 181, 557 S.E.2d 235 (2000), in which this Court found a violation of Rule 8.2(a) for
statements made by an attorney in a motion to recuse. Other jurisdictions have disciplined
attorneys for making statements in pleadings impugning the integrity of judges. See The
Florida Bar v. Kleinfeld, 648 So. 2d 698 (Fla. 1994); In re Cobb, 838 N.E.2d 1197 (Mass.
2005); Smith v. Pace, 313 S.W.3d 124 (Mo. 2010); Board of Prof. Resp. v. Davidson, 205
P.3d 1008 (Wyo. 2009). In Kentucky Bar Association v. Waller, 929 S.W.2d 181 (Ky. 1996),
an attorney was suspended for six months for calling a judge a “lying incompetent a[–]hole”
in a document entitled “Legal Authorities Supporting the Motion to Dismiss.” Id. at 181.
The reviewing court stated:
There can never be a justification for a lawyer to use such
scurrilous language with respect to a judge in pleadings or in
open court. The reason is not that the judge is of such delicate
sensibilities as to be unable to withstand the comment, but rather
that such language promotes disrespect for the law and for the
judicial system.
Id. at 183 (emphasis supplied). Based upon the precedent of this Court and other
jurisdictions, we find that the HPS correctly concluded that Rule 8.2(a) applies to pleadings
filed by lawyers.
11
C. An Attorney’s Freedom of Speech and the Appropriate Standard for Determining
Violations of Rule 8.2(a) of the West Virginia Rules of Professional Conduct
Mr. Hall also raises an issue regarding his freedom of speech, contending that
the First Amendment to the United States Constitution permits him to express his opinions
without fear of sanction through the West Virginia Rules of Professional Conduct. The HPS
rejected Mr. Hall’s argument that his right to freedom of speech prohibits the imposition of
sanctions under Rule 8.2(a). The HPS references this Court’s holding in syllabus point one
of Committee on Legal Ethics v. Douglas, 179 W.Va. 490, 370 S.E.2d 325 (1988), in which
this Court explained that although the First Amendment permits criticism of judges, such
protection is not absolute.
The Free Speech Clause of the First Amendment protects
a lawyer’s criticism of the legal system and its judges, but this
protection is not absolute. A lawyer’s speech that presents a
serious and imminent threat to the fairness and integrity of the
judicial system is not protected. When a personal attack is made
upon a judge or other court official, such speech is not protected
if it consists of knowingly false statements or false statements
made with a reckless disregard of the truth. Finally, statements
that are outside of any community concern, and are merely
designed to ridicule or exhibit contumacy toward the legal
system, may not enjoy First Amendment protection.
179 W.Va. at 490-91, 370 S.E.2d at 325-26.
This Court, however, has not previously had the opportunity to consider the
appropriate standard for determining whether statements by an attorney regarding a judicial
officer enjoy constitutional protection. Recognizing an absence of precedent in this state
12
on the precise standard to be employed, the HPS sought guidance from the methods utilized
in other jurisdictions and ultimately applied the standard of whether there is an objectively
reasonable factual basis for the statements made by the attorney. The Supreme Judicial Court
of Massachusetts engaged in an illuminating discussion of this issue when it addressed the
“question of the standard to be applied in disciplinary proceedings where an attorney invokes
the First Amendment protection of free speech when defending against charges that he
impugned the integrity of a judge, without basis, during a pending case.” Cobb, 838 N.E.2d
at 1211. The Cobb court noted that at least three states9 have held that an actual malice
standard, such as that utilized in a defamation action regarding a public official, should be
employed in the attorney discipline setting. Id.; see New York Times Co. v. Sullivan, 376
U.S. 254, 279-81 (1964) (holding, in defamation context, that First Amendment protects
speech regarding a public official unless made with actual malice). The Cobb court further
explained, however, that a majority of jurisdictions have concluded that the interests sought
to be protected by the attorney disciplinary system require a less stringent standard than the
actual malice standard. 838 N.E.2d at 1212; see also Standing Comm. on Discipline v.
Yagman, 55 F.3d 1430, 1437 n.12 (9th Cir. 1995); Office of Disciplinary Counsel v. Gardner,
793 N.E.2d 425, 431 (Ohio 2003). The majority of state courts that have considered the issue
of appropriate discipline for an attorney criticizing a judge have determined that “the
9
See Matter of Green, 11 P.3d 1078, 1084 (Colo. 2000); Oklahoma Bar Ass’n v.
Porter, 766 P.2d 958, 969 (Okla.1988); Ramsey v. Board of Prof. Resp., 771 S.W.2d 116,
121-22 (Tenn.), cert. denied, 493 U.S. 917 (1989).
13
standard is whether the attorney had an objectively reasonable basis for making the
statements.” Cobb, 838 N.E.2d at 1212.10
The rationale for employing the objectively reasonable standard rather than the
actual malice test of New York Times was also persuasively explained by the Minnesota
Supreme Court in In re Disciplinary Action Against Graham, 453 N.W.2d 313 (Minn.1990).
The court stated:
This court certifies attorneys for practice to protect the public
and the administration of justice. That certification implies that
the individual admitted to practice law exhibits a sound capacity
for judgment. Where an attorney criticizes the bench and bar,
the issue is not simply whether the criticized individual has been
harmed, but rather whether the criticism impugning the integrity
of judge or legal officer adversely affects the administration of
justice and adversely reflects on the accuser’s capacity for sound
judgment. An attorney who makes critical statements regarding
10
See also U.S. Dist. Court for the E. Dist. of Washington v. Sandlin, 12 F.3d 961 (9th
Cir. 1993) (applied objective standard to attorney disciplinary proceedings, requiring court
to determine “what the reasonable attorney, considered in light of all his professional
functions, would do in the same or similar circumstances[.]”); Mississippi Bar v. Lumumba,
912 So. 2d 871 (Miss. 2005) (attorney had no “objectively reasonable factual basis” for
making statements impugning judge’s integrity and qualifications); Office of Disciplinary
Counsel v. Price, 732 A.2d 599 (Pa. 1999) (found violation where attorney relied upon
rumors, innuendo, and perceptions rather than conducting reasonably diligent inquiry); In re
Disciplinary Proceedings Against Sommers, 811 N.W.2d 387 (Wis. 2012) (finding violation
where record devoid of credible evidence to support attorney’s statements regarding judge’s
credibility). Generally, these cases have involved the application of a rule similar or identical
to Rule 8.2 in West Virginia. See, e.g., Idaho State Bar v. Topp, 925 P.2d 1113 (Idaho 1996),
cert. denied, 520 U.S. 1155 (1997); In re Frerichs, 238 N.W.2d 764 (Iowa 1976); In re
Westfall, 808 S.W.2d 829 (Mo.), cert. denied, 502 U.S. 1009 (1991); In re Holtzman, 577
N.E.2d 30 (NY), cert. denied, 502 U.S. 1009 (1991).
14
judges and legal officers with reckless disregard as to their truth
or falsity and who brings frivolous actions against members of
the bench and bar exhibits a lack of judgment that conflicts with
his or her position as “an officer of the legal system and a public
citizen having special responsibility for the quality of justice.”
....
Because of the interest in protecting the public, the
administration of justice and the profession, a purely subjective
standard is inappropriate. The standard applied must reflect that
level of competence, of sense of responsibility to the legal
system, of understanding of legal rights and of legal procedures
to be used only for legitimate purposes and not to harass or
intimidate others, that is essential to the character of an attorney
practicing in Minnesota. Thus, we hold that the standard must be
an objective one dependent on what the reasonable attorney,
considered in light of all his professional functions, would do in
the same or similar circumstances.
Id. at N.W.2d at 322 (quoting Minn. R. Prof’l Conduct, Preamble).
This majority approach was also succinctly articulated in In re Terry, 394
N.E.2d 94 (Ind. 1979), cert. denied sub nom. Terry v. Indiana Supreme Court Disciplinary
Comm’n, 444 U.S. 1077 (1980), as follows:
The Respondent is charged with professional misconduct, not
defamation. The societal interests protected by these two bodies
of law are not identical. Defamation is a wrong directed against
an individual and the remedy is a personal redress of this wrong.
On the other hand, the Code of Professional Responsibility
encompasses a much broader spectrum of protection.
Professional misconduct, although it may directly affect an
individual, is not punished for the benefit of the affected person;
the wrong is against society as a whole, the preservation of a
fair, impartial judicial system, and the system of justice as it has
evolved for generations. . . . Unwarranted public suggestion by
15
an attorney that a judicial officer is motivated by criminal
purposes and considerations does nothing but weaken and erode
the public’s confidence in an impartial adjudicatory process.
394 N.E.2d at 95-96.
As the Cobb court accurately perceived, judges are not immune from criticism,
and an attorney’s rights to freedom of speech are not eviscerated by rules of professional
conduct such as Rule 8.2(a). 838 N.E.2d at 1214. An attorney “may make statements critical
of a judge . . . [and] may even be mistaken. What is required by the rules of professional
conduct is that he have a reasonable factual basis for making such statements before he
makes them.” Id. While this requirement may arguably “be inconsistent with the manner in
which one generally may engage in free and public debate in our society, . . . it is essential
to the orderly and judicious presentation of cases in a court room.” Id.
Decisions made in the forum of public debate, unlike those
made in the court room, are not constrained by principles of due
process and the rule of law, or by the application of logic and
common sense to objective facts dispassionately determined
from competent and relevant evidence. When an attorney
speaks in a court room, he is not seeking political converts
whose vote properly may be cast without regard to motive or
basis. Rather, he seeks to persuade an impartial judicial officer
to direct the force of government against a particular third
person. If the judicial system is to operate fairly, rationally, and
impartially, as it must, and if the administration of justice is to
proceed in an orderly manner, judges and attorneys alike must
act with responsibility toward these principles. Attorneys must
conduct themselves conformably with the legal and ethical
requirements that their factual assertions in the court room that
are critical of judges have an objective basis.
16
Id. The Cobb court identified the significant State interests of “protecting the public, the
administration of justice, and the legal profession” as compelling factors in the use of the
objectively reasonable standard in attorney discipline matters. Id.11
As the Court of Appeals of New York observed in Matter of Holtzman, 577
N.E.2d 30 (N.Y. 1991), employing the actual malice standard “would immunize all
accusations, however reckless or irresponsible, from censure as long as the attorney uttering
them did not actually entertain serious doubts as to their truth.” Id. at 34. “A system that
permits an attorney without objective basis to challenge the integrity, and thereby the
authority, of a judge presiding over a case elevates brazen and irresponsible conduct above
competence and diligence, hallmarks of professional conduct.” Cobb, 838 N.E.2d at 1214.
Upon evaluation of the methodology of other jurisdictions, as outlined above,
we find that the rationale underlying the application of an objectively reasonable standard in
cases involving criticism of judicial officers is sound and persuasive. We consequently hold
that within the context of assessing an alleged violation of Rule 8.2(a) of the West Virginia
Rules of Professional Conduct, a statement by an attorney that such attorney knows to be
false or with reckless disregard as to its truth or falsity concerning the qualifications or
11
As recognized in Yagman, prohibiting false or reckless accusations of judicial
misconduct is not intended “to shield judges from unpleasant or offensive criticism, but to
preserve the public confidence in the fairness and impartiality of our system of justice.” 55
F.3d at 1437.
17
integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election
or appointment to judicial or legal office is not protected by the First Amendment as public
speech on a matter of public concern where such statement is not supported by an objectively
reasonable factual basis. The State’s interest in protecting the public, the administration of
justice, and the legal profession supports use of the objectively reasonable standard in
attorney discipline proceedings involving disparagement of the credibility of the
aforementioned judicial officers.
Employing the objectively reasonable standard in considering whether Mr.
Hall’s statements concerning ALJ Carter are sanctionable, the HPS exhaustively evaluated
every statement made by Mr. Hall concerning the integrity of ALJ Carter. The HPS found
clear and convincing evidence that Mr. Hall had made the statements with reckless disregard
of their truth or falsity. The HPS further found, by clear and convincing evidence, that Mr.
Hall made these statements disparaging the integrity of ALJ Carter without an objectively
reasonable factual basis for such statements. Specifically, the HPS found that the following
statements by Mr. Hall lacked an objectively reasonable factual basis: ALJ Carter failed to
be fair and impartial; she exhibited clear bias; she had personal knowledge of the matters
before her; she lied, misrepresented, misstated, and fabricated facts about the history of the
case; and she personally knew that the allegations of discrimination were false. Likewise,
the HPS found no objectively reasonable factual basis for Mr. Hall’s statements that ALJ
18
Carter was unethical; that her finding that CABC had engaged in steering customers based
upon race could only be explained because “the individual Respondents are white, while Ms.
Carter is black[;]” and that ALJ Carter had engaged “in the most heinous of racial bigotry[.]”
The evidence in this case satisfied the clear and convincing standard as
required by the Rules of Lawyer Disciplinary Procedure. Mr. Hall’s conduct violated Rule
8.2(a) because the statements made by Mr. Hall in legal pleadings were unsubstantiated,
made with a reckless disregard as to their truth or falsity, and impugned the integrity of a
presiding adjudicatory officer. Mr. Hall’s conduct also violated Rule 8.4(d) by engaging “in
conduct that is prejudicial to the administration of justice.” His statements threatened the
integrity and fairness of the judicial system, were knowingly false or made with reckless
disregard of the truth, and were designed to ridicule or exhibit contumacy toward the legal
system. As referenced above, an attorney’s inflammatory, unprofessional, and disrespectful
comments concerning the integrity of a judicial officer, without any objectively reasonable
basis for such statements, cannot be tolerated and constitute a clear violation of Rule 8.4(d).
Mr. Hall’s conduct unquestionably promoted disrespect for the legal system and clearly
impugned the integrity of a judicial officer. Mr. Hall indicated that his comments were all
made in good faith, that hyperbole was appropriate to “express a sense of outrage,” and that
calling ALJ Carter’s psychiatric well-being into question was a valid argument. We
vehemently disagree. Mr. Hall’s vitriolic tirade was replete with accusations that had no
19
objectively reasonable basis, and his comments reflected poorly upon the entire legal
profession.
D. Imposition of Sanctions
This Court has consistently stated that “[a]ttorney disciplinary proceedings are
not designed solely to punish the attorney, but rather 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.” Lawyer Disciplinary Bd. v. Taylor, 192 W.Va. 139, 144, 451 S.E.2d 440, 445
(1994). In syllabus point three of Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358
S.E.2d 234 (1987), the Court stated:
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.
As articulated in In re Brown, 166 W.Va. 226, 273 S.E.2d 567 (1980), attorneys are held to
an elevated standard of behavior, and this Court has consistently expressed the requirement
of adherence to strict ethical standards in the practice of law. As the Brown court stated:
Woven throughout our disciplinary cases involving attorneys is
the thought that they occupy a special position because they are
actively involved in administering the legal system whose
ultimate goal is the evenhanded administration of justice.
Integrity and honor are critical components of a lawyer’s
character as are a sense of duty and fairness. Because the legal
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system embraces the whole of society, the public has a vital
expectation that it will be properly administered. From this
expectancy arises the concept of preserving public confidence
in the administration of justice by disciplining those lawyers
who fail to conform to professional standards.
Id. at 232-33, 273 S.E.2d at 570.
In assessing sanctions recommended by the Board, this Court stated as follows
in syllabus point four of Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495,
513 S.E.2d 722 (1998):
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 Supreme 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.
In addressing the first factor identified above, this Court finds that the HPS
properly concluded that Mr. Hall violated duties to his client, to the public, to the legal
system, and to the profession. An attorney is obligated to present the most effective
argument for his client within the Rules of Professional Conduct and to pursue his client’s
interests in a lawful manner. Attorneys are encouraged to present zealous advocacy and to
21
pursue all available avenues of relief on the client’s behalf. Dissatisfaction with adverse
rulings, however, does not justify unwarranted attacks upon the credibility and personal
values of the adjudicatory officer. Such irresponsible behavior is injurious to the client’s
interests and to the attorney’s obligation to the legal system.
The HPS also properly ruled upon the second factor under the Rule 3.16
analysis. Mr. Hall acted intentionally and knowingly; his violations were made in writing
after deliberation. Moreover, he presented his statements in two separate appeals and has
remained steadfast in his assertion that his statements regarding ALJ Carter were justified.
The third factor, an assessment of the degree of actual or potential injury
caused by the misconduct, was also thoroughly analyzed by the HPS. Reckless statements
regarding the integrity of a presiding judicial officer, such as those made by Mr. Hall, serve
to significantly undermine the integrity and public confidence in the administration of justice.
Such statements diminish the public’s confidence in a fair and impartial administration of
justice. Mr. Hall also imposed an intangible injury upon ALJ Carter, through the attacks
upon her judicial integrity and her fitness for her position.
The existence of aggravating or mitigating factors is the final consideration
under Rule 3.16. This Court has held that “[a]ggravating factors in a lawyer disciplinary
22
proceeding are any considerations or factors that may justify an increase in the degree of
discipline to be imposed.” Syl. Pt. 4, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579
S.E.2d 550 (2003). This Court agrees with the HPS finding that Mr. Hall’s repetition of the
same comments in the Petition of Appeal to the WVHRC and the appeal to the Circuit Court
of Kanawha County was an aggravating factor. The HPS also noted that Mr. Hall’s
continued assertion of the accusations against ALJ Carter in the disciplinary hearing
demonstrates his lack of understanding of the effects of his reckless disregard for the truth
upon the integrity of the judicial system.
Mitigating factors were also considered by the HPS. In syllabus point two of
Scott, this Court held 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.” 213 W.Va. at 209, 579 S.E.2d at 550. In syllabus point three of Scott, we further
explained:
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;
23
and (13) remoteness of prior offenses.
Id. at 210, 579 S.E.2d at 551. The HPS found that the following mitigating factors were
present in this case: absence of a prior disciplinary record for Mr. Hall, cooperative attitude
toward proceedings, and inexperience in the practice of law. This Court agrees with the HPS
findings regarding mitigating circumstances, and our analysis of the four factors set forth in
Rule 3.16 compels the conclusion that the sanctions recommended by the Board are proper
and accomplish the primary goals of our disciplinary proceedings by punishing Mr. Hall,
serving as a deterrent to other attorneys, and ensuring public confidence in the ethical
standards of the legal profession.
IV. Conclusion
Based upon the foregoing, this Court adopts the recommendation of the Board
and imposes the following sanctions: Mr. Hall’s license to practice law shall be suspended
for a period of three months; Mr. Hall shall be ordered to complete an additional three hours
of continuing legal education during the 2014-2016 reporting period, specifically in the area
of ethics, over and above that already required; and Mr. Hall shall be ordered to reimburse
the Board for costs of these disciplinary proceedings, pursuant to Rule 3.15 of the Rules of
Lawyer Disciplinary Procedure.
Law License Suspended and Other Sanctions.
24