Office of Lawyer Disciplinary Counsel v. Mark S. Plants

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2014 Term FILED
May 28, 2014
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 14-0348 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
OFFICE OF LAWYER DISCIPLINARY COUNSEL,
Petitioner
v.
MARK S. PLANTS, a member
of the West Virginia State Bar,
Respondent
Lawyer Disciplinary Proceeding
PETITION DENIED
Submitted: May 5, 2014
Filed: May 28, 2014
Joanne M. Vella Kirby, Esq. Robert H. Davis, Jr
Lawyer Disciplinary Counsel Davis Law
Rachael L. Fletcher Cipoletti, Esq. Harrisburg, Pennsylvania
Chief Lawyer Disciplinary Counsel Counsel for Respondent
Charleston, West Virginia
Counsel for Petitioner
The Opinion of the Court was delivered PER CURIAM.
JUSTICE BENJAMIN, deeming himself disqualified, did not participate in the decision
of this case.
SYLLABUS BY THE COURT
1. “The special procedures outlined in Rule 3.27 of the West Virginia Rules
of Lawyer Disciplinary Procedure should only be utilized in the most extreme cases of lawyer
misconduct.” Syl. Pt. 1, Office of Disciplinary Counsel v. Battistelli, 193 W.Va. 629, 457
S.E.2d 652 (1995).
2. “If the Court, after proceeding in accordance with West Virginia Rule of
Lawyer Disciplinary Procedure 3.27(c), concludes that the respondent lawyer should be
temporarily suspended, it will so order.” Syl. Pt. 3, in part, Office of Disciplinary Counsel
v. Battistelli, 193 W.Va. 629, 457 S.E.2d 652 (1995).
3. “Given the practical difficulty of providing specific guidance on the
instances where temporary suspension is appropriate, the Court will apply the two-part
standard in West Virginia Rule of Lawyer Disciplinary Procedure 3.27 to each petition on
a case-by-case basis.” Syl. Pt. 4, Office of Disciplinary Counsel v. Battistelli, 193 W.Va.
629, 457 S.E.2d 652 (1995).
4. “Under the authority of the Supreme Court of Appeals’ inherent power to
supervise, regulate and control the practice of law in this State, the Supreme Court of
i
Appeals may suspend the license of a lawyer or may order such other actions as it deems
appropriate, after providing the lawyer with notice and an opportunity to be heard, when
there is evidence that a lawyer (1) has committed a violation of the Rules of Professional
Conduct or is under a disability and (2) poses a substantial threat of irreparable harm to the
public until the underlying disciplinary proceeding has been resolved.” Syl. Pt. 2, Comm. on
Legal Ethics of the W.Va. State Bar v. Ikner, 190 W.Va. 433, 438 S.E.2d 613 (1993).
5. “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.” Syl. Pt. 3,
Comm. on Legal Ethics of W.Va. State Bar v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989).
ii
Per Curiam:
The Office of Lawyer Disciplinary Counsel (hereinafter “ODC”) filed an April
11, 2014, Petition with this Court pursuant to Rule 3.27 of the West Virginia Rules of
Lawyer Disciplinary Procedure (hereinafter “Rule 3.27”). The ODC seeks the immediate
suspension of the law license of Kanawha County, West Virginia, Prosecuting Attorney,
Mark S. Plants (hereinafter “the Respondent”) and/or the disqualification of the Respondent
and the Kanawha County Prosecuting Attorney’s Office from instituting and prosecuting
allegations of domestic violence involving a parent or guardian and minor child.
Upon thorough review of the briefs, the record, arguments of counsel, and
applicable precedent, this Court denies the ODC’s request for immediate interim suspension
of the Respondent’s law license pending the resolution of disciplinary proceedings. Further,
this Court finds that the April 23, 2014, Kanawha County Circuit Court order disqualifying
the Respondent and the Office of Prosecuting Attorney of Kanawha County from certain
types of cases and the April 24, 2014, order appointing Donald P. Morris as Chief Special
Prosecutor provide sufficient protection from any substantial threat of irreparable harm to the
public pending the resolution of disciplinary proceedings. Those circuit court orders should
remain in full force and effect pending the outcome of the proceedings against the
Respondent.
1
I. Factual and Procedural History
On February 26, 2014, Allison Plants, the Respondent’s ex-wife (hereinafter
“Mrs. Plants”), contacted the West Virginia State Police and reported that the Respondent
had caused injury to their eleven-year-old son by whipping him with a belt on February 22,
2014. On February 27, 2014, Mrs. Plants filed a domestic violence petition with the
Magistrate Court of Kanawha County, and an emergency protective order was thereafter
issued against the Respondent prohibiting contact with his children. Mrs. Plants thereafter
alleged that the Respondent had engaged in impermissible contact with the children by
talking to them in a parking lot on March 17, 2014, and the Respondent was subsequently
charged with violation of the protective order.
On March 31, 2014, the Respondent was arrested for domestic battery, in
violation of West Virginia Code § 61-2-28(a) (2010), as a result of the police investigation
into Mrs. Plants’ allegations. In his April 7, 2014, motion to dismiss, the Respondent
asserted that he “was acting as a parent to discipline his child, therefore he was acting within
a constitutionally protected right to control his child[.]” Further, the Respondent alleged that
“under West Virginia law there is no liability from the reasonable use of corporal punishment
for disciplinary purposes.”
2
On April 11, 2014, the ODC filed a “Petition Seeking Immediate Suspension
of Respondent and/or Disqualification of Respondent and the Kanawha County Prosecuting
Attorney’s Office from Instituting and Prosecuting Allegations of Domestic Violence
Involving a Parent or Guardian and Minor Child” with this Court, alleging that Rule 3.27 1
1
Rule 3.27 of the Rules of Lawyer Disciplinary Procedure, entitled “Extraordinary
Proceedings,” provides:
(a) Upon receipt of sufficient evidence demonstrating
that a lawyer (1) has committed a violation of the Rules of
Professional Conduct or is under a disability and (2) poses a
substantial threat of irreparable harm to the public, the Office
of Disciplinary Counsel shall conduct an immediate
investigation.
(b) Upon completion of such investigation, the Office of
Disciplinary Counsel shall promptly file a report with the
Supreme Court of Appeals indicating whether, in the opinion of
Disciplinary Counsel, the lawyer’s commission of a violation of
the Rules of Professional Conduct or disability poses a
substantial threat of irreparable harm to the public. The Office
of Disciplinary Counsel shall attempt to provide reasonable
notice to the lawyer prior to the filing of this report.
(c) Upon receipt of this report, the Supreme Court, upon
determining the existence of good cause, shall provide notice of
the charges to the lawyer with the right to a hearing in not less
than thirty days before the Court. The Supreme Court may
appoint a trustee to protect the interest of the lawyer’s clients
during the pendency of these proceedings. After such hearing,
the Supreme Court may temporarily suspend the lawyer or may
order such other action as it deems appropriate until underlying
disciplinary proceedings before the Lawyer Disciplinary Board
have been completed.
(d) Unless otherwise provided, interim suspension of a
(continued...)
3
requires such suspension and/or disqualification based upon the Respondent’s alleged
violation of Rule 1.7 of the West Virginia Rules of Professional Conduct (hereinafter “Rule
1.7”).2
In addition to the ODC’s Petition, the City of Charleston and Charleston Police
Department also filed a petition for writ of prohibition with the Circuit Court of Kanawha
County on April 14, 2014, alleging that the Respondent should be disqualified and prohibited
from prosecuting criminal matters pertaining to domestic violence between parents/guardians
and minor children based upon the criminal charges against the Respondent. In response to
that writ of prohibition, an amended agreed order was entered by the Circuit Court of
1
(...continued)
lawyer pursuant to this rule shall take effect immediately upon
entry of the order by the Supreme Court. A hearing on formal
charges against the suspended lawyer shall be conducted by a
Hearing Panel Subcommittee, unless continued for good cause
shown, within ninety days after the effective date of suspension.
W.Va. R. Law. Disc. P. 3.27 (emphasis supplied).
2
Rule 1.7(b) provides, in pertinent part:
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.
4
Kanawha County on April 23, 2014, as referenced above. According to that order, counsel
for the parties “agreed that, for the sake of the integrity of the legal system, the welfare of
minors, and the public’s interest in the same, the Court should establish parameters for the
Respondent and his office that will avoid the appearance of impropriety, conflicts of interest,
and a compromised legal system.” Thus, the circuit court found that “[i]t is in the public
interest that child abuse and neglect, violent crimes against children by their parent, guardian,
or custodian, and criminal violations of protective orders be prosecuted impartially without
any appearance of impropriety.” The circuit court recognized that the Respondent’s
assertions that his actions do not constitute domestic battery “appear to materially limit the
ability of the Kanawha County Prosecuting Attorney’s Office to properly prosecute certain
cases . . . .”
Accordingly, the circuit court ordered as follows:
[T]he Respondent and his office shall not prosecute cases
involving (1) crimes of violence by a parent, guardian, or
custodian against a child; (2) abuse and neglect cases under
Chapter 49 of the West Virginia Code; and (3) criminal
violations of domestic violence protection orders as addressed
in Chapter 48, Article 27 of the West Virginia Code.
The order disqualified the Respondent and the Office of Prosecuting Attorney of Kanawha
County from prosecuting allegations involving those issues, finding that “the Respondent’s
duty to fairly prosecute these matters appears to be materially limited by the Respondent’s
interest in his own defense to the charges against him.”
5
On the following day, April 24, 2014, the Circuit Court of Kanawha County
entered another order appointing Donald P. Morris as Chief Special Prosecutor for the types
of cases identified in the prior order of disqualification, including “(1) abuse and neglect
matters; (2) crimes of violence by a parent, guardian, or custodian against a child; and (3)
criminal violations of domestic violence protection orders.” The circuit court also appointed
Rocky Holmes, Amy Bird, and Adam Petry as Assistant Special Prosecutors of abuse and
neglect cases or other matters to be assigned by Chief Special Prosecutor, Donald P. Morris.
Citing West Virginia Code § 7-7-8 (2010)3 as authority to appoint the special prosecutors,
the circuit court further ordered that the “Assistant Special Prosecutors and their staff shall
remain on their current payroll and maintain their current rate of pay, but shall no longer
report to [the Respondent]” and that the Respondent is prohibited from “altering the
employment, compensation, and benefits” of those prosecutors or their staff. By order dated
April 30, 2014, the circuit court also appointed Deborah Kinder as a victim’s advocate to
support the special prosecuting attorney. Pursuant to that order, the victim’s advocate is not
to report to the Respondent.
This Court, by order dated April 22, 2014, found good cause pursuant to Rule
3
West Virginia Code § 7-7-8 authorizes a circuit court to appoint a competent
practicing attorney to act when a “prosecuting attorney and his assistants are unable to act.”
6
3.27(c) and, on May 5, 2014, this Court heard arguments from the ODC and the Respondent
on the ODC’s petition for suspension and/or disqualification.
II. Standard of Review
The ODC has invoked Rule 3.27 to seek the immediate interim suspension of
the Respondent’s law license pending the resolution of disciplinary proceedings against him.
This Court has recognized that “[t]he special procedures outlined in Rule 3.27 of the West
Virginia Rules of Lawyer Disciplinary Procedure should only be utilized in the most extreme
cases of lawyer misconduct.” Syl. Pt. 1, Office of Disciplinary Counsel v. Battistelli, 193
W.Va. 629, 457 S.E.2d 652 (1995) (emphasis supplied). However, “[i]f the Court, after
proceeding in accordance with West Virginia Rule of Lawyer Disciplinary Procedure 3.27(c),
concludes that the respondent lawyer should be temporarily suspended, it will so order.” Syl.
Pt. 3, in part, Battistelli, 193 W.Va. at 630, 457 S.E.2d at 653. Furthermore, during this
Court’s review of a proceeding initiated under Rule 3.27, we are called upon to “determine
whether there is sufficient evidence to conclude that the Respondent (1) has committed a
violation of the Rules of Professional Conduct, and (2) poses a substantial threat of
irreparable harm to the public.” 193 W.Va. at 636-37, 457 S.E.2d at 659-60 (emphasis
supplied); see also Syl. Pt. 2, Comm. on Legal Ethics of W.Va. State Bar v. Ikner, 190 W.Va.
433, 438 S.E.2d 613 (1993).
7
This Court has also recognized the unique nature of each particular factual
scenario and stated as follows in syllabus point four of Battistelli: “Given the practical
difficulty of providing specific guidance on the instances where temporary suspension is
appropriate, the Court will apply the two-part standard in West Virginia Rule of Lawyer
Disciplinary Procedure 3.27 to each petition on a case-by-case basis.” 193 W.Va. at 630, 457
S.E.2d at 653. With these standards in mind, we proceed to consider the merits of the instant
proceeding.
III. Discussion
The issue before this Court is whether to temporarily suspend the Respondent’s
law license pending resolution of disciplinary proceedings against him and/or disqualify him
from involvement in cases other than those from which he has already been disqualified as
a result of the April 23, 2014, circuit court order. This Court has consistently held that it has
the ultimate responsibility and authority for supervising the practice of law in West Virginia
and for ensuring that the public interest is properly protected. In syllabus point two of Ikner,
this Court held:
Under the authority of the Supreme Court of Appeals’
inherent power to supervise, regulate and control the practice of
law in this State, the Supreme Court of Appeals may suspend the
license of a lawyer or may order such other actions as it deems
appropriate, after providing the lawyer with notice and an
opportunity to be heard, when there is evidence that a lawyer (1)
has committed a violation of the Rules of Professional Conduct
or is under a disability and (2) poses a substantial threat of
8
irreparable harm to the public until the underlying disciplinary
proceeding has been resolved.
190 W.Va. at 434, 438 S.E.2d at 614 (emphasis supplied). This Court has further stated that
“the primary purpose of the ethics committee [Office of Lawyer Disciplinary Counsel] is not
punishment but rather the protection of the public and the reassurance of the public as to the
reliability and integrity of attorneys.” Id. at 436, 438 S.E.2d at 616 (internal citations
omitted).
Rule 3.27 provides a mechanism for the temporary interim suspension of an
attorney’s license to practice law, pending the resolution of disciplinary charges against him.
We have repeatedly emphasized that this is an extraordinary measure to be utilized only in
extreme cases where a substantial threat of irreparable harm to the public exists. As a
preliminary matter, it is imperative to identify what this case is not. It is not a typical
disciplinary matter in which this Court determines the ultimate discipline to be imposed upon
an attorney after a complete and thorough hearing and the submission of recommendations
by the Lawyer Disciplinary Board. This matter has not yet been developed in that fashion.
Instead, it is a very narrow question and a direct assessment of whether the Respondent poses
a substantial threat of irreparable harm to the public4 such that his law license must be subject
4
The standard of “substantial threat of irreparable harm to the public” is rather
amorphous and requires some degree of speculation, dependent upon the facts of each case.
As noted in a dissent to Tapp v. Ligon, 2013 WL 3106222 (Ark. 2013),
(continued...)
9
to interim suspension pending a full hearing and resolution of disciplinary proceedings
against him.
The ODC contends that the Respondent should not be permitted to retain his
license to practice law pending resolution of disciplinary proceedings against him and further
maintains that his continued possession of a law license would pose a substantial threat of
irreparable harm to the public. Specifically, the ODC argues that the Respondent, by
asserting that he did not commit domestic battery, has created a conflict of interest in
violation of Rule 1.7 “involving his own interests that materially limits his ability to execute
properly his duties as the elected Prosecuting Attorney.” The ODC thus contends that
suspension of the Respondent is necessary for the protection of the public and that his
continued representation of the State of West Virginia, “while facing criminal charges of
having committed a domestic battery himself and having violated an Emergency Protective
4
(...continued)
Equally problematic is how to determine when the
“public” is injured or faces injury. In almost every instance of
attorney misconduct, save for those in which an entire client
trust account is looted, only a single party is directly affected by
an attorney’s misconduct. Accordingly, with the exception of
financial malfeasance, it is blatant speculation to project an
attorney’s unethical conduct beyond the harm actually caused to
the affected party.
Id. at *8, Justice Hart dissenting. Thus, the dissent continues, the standard “purports to
protect an entity that is not defined, and may not even exist in any practical, tangible sense.”
Id.
10
Order, poses a substantial threat of irreparable harm to the public in that it undermines the
integrity and impartiality of our system of justice.” The ODC summarizes its position as
follows:
In essence, by maintaining that he was acting within a
constitutionally protected right to discipline his child by striking
him with a belt, and therefore, is not guilty of having violated
West Virginia Code § 61-2-28(a), Respondent is asserting that
the aforementioned criminal statute is unconstitutional insofar
as it relates to parents or guardians having violated it if they
were merely exercising their constitutional right to “control”
their child.
With regard to the existence of the April 23, 2014, circuit court order
disqualifying the Respondent from specific types of cases, the ODC contends that the
Respondent’s continued service “in any capacity during the pendency of the underlying
disciplinary proceedings” is inappropriate. The ODC maintains that the circuit court’s
disqualification order is not sufficient to protect the public and that the disqualification issue
is separate and distinct from the disciplinary issue. See State ex rel. Clifford v. W.Va. Office
of Disciplinary Counsel, 231 W.Va. 334, 745 S.E.2d 225 (2013) (holding that ODC could
bring disciplinary action against attorney based upon alleged conflict of interest, even though
circuit court determined that no conflict existed).
In contrast, the Respondent argues that further action by this Court is
unnecessary pending resolution of disciplinary proceedings against him because the actions
11
already taken by the circuit court in disqualifying him from involvement in certain types of
cases are sufficient to protect the public interest. According to the Respondent, the circuit
court orders effectively screen the Respondent and the Office of Prosecuting Attorney from
any case that might reasonably raise a public concern regarding objectivity and diligence.
Moreover, the Respondent argues that other examples of utilization of Rule 3.27 to
temporarily suspend a law license pending the resolution of disciplinary proceedings have
involved more egregious fact patterns, significant ethical violations, and substantial threats
of irreparable harm to the public. He contends that the nature of this case does not “justify
imposition of the extreme sanction of a suspension from practice. . . .”
This Court’s review of prior cases in which Rule 3.27 has been employed to
justify temporary suspension reveals the magnitude of the ethical violations and threat of
irreparable public harm typically involved in such cases. In Office of Lawyer Disciplinary
Counsel v. Albers, 214 W.Va. 11, 585 S.E.2d 11 (2003), for instance, this Court examined
the circumstances of lawyer misconduct and the fact that the attorney was serving a one-year
jail term and awaiting possible indictment on another felony matter. Id. at 12, 585 S.E.2d at
12. In Albers, we emphasized that suspension pending disciplinary proceedings is an
extraordinary measure, and we found that immediate and temporary suspension was
warranted under those circumstances. Id. at 14, 585 S.E.2d at 14.
12
Similarly, in Office of Lawyer Disciplinary Counsel v. Nichols, 212 W.Va. 318,
570 S.E.2d 577 (2002), the ODC’s petition for temporary suspension pending the outcome
of ongoing disciplinary proceedings was granted based upon the attorney’s apparent
misrepresentations to former clients regarding the status of lawsuits purportedly filed on their
behalf and his conduct subsequent to initiation of formal charges against him. Id. at 322, 570
S.E.2d at 581. While disciplinary charges filed by two clients were pending, Mr. Nichols
continued to engage in a pattern of misrepresentation with regard to other client matters.
Additionally, this Court stated that it was “extremely disturbed by the fact that Mr. Nichols
has failed to respond to this Court, in any manner, regarding the . . . [ODC’s] petition to have
his law license temporarily suspended.” Id. at 321, 570 S.E.2d at 580. We found that “Mr.
Nichols’ conduct subsequent to the initiation of formal charges against him candidly
illustrates his unwillingness to display honor and integrity in dealing with his clients.” Id.
Complete abandonment of an attorney’s practice and his disappearance were
considered sufficient to justify a Rule 3.27 suspension in Office of Lawyer Disciplinary
Counsel v. Butcher, 197 W.Va. 162, 475 S.E.2d 162 (1996). In that case, this Court found
that Mr. Butcher posed a substantial threat of irreparable harm to his clients and to public
confidence in legal system. Id. at 166, 475 S.E.2d at 166. He had been provided with notice
and an opportunity to be heard regarding disciplinary proceedings, but he had refused both.
Id. at 165, 475 S.E.2d at 165.
13
In Battistelli, the attorney had obtained unsecured loans from clients and
deceived disciplinary counsel and the Court. 193 W.Va. at 637, 457 S.E.2d at 660. We
found that temporary suspension was warranted pending the outcome of disciplinary
proceedings based upon the threat the attorney posed to the public. We explained that the
attorney’s “pattern of deceitful activity jeopardizes the relationship with his clients and their
ultimate success in pending litigation. Further, and more importantly, his continuing
dishonesty in this Court and perhaps other tribunals affects the appropriate administration of
justice.” Id. at 638, 457 S.E.2d at 661.
This Court’s review of those various other instances of utilization of Rule 3.27
to warrant immediate suspension pending resolution of disciplinary action reveals that this
Court premised its conclusions upon an attorney’s specific acts and the resultant impact upon
the public. Aggravated situations such as incarceration, engagement in unfair loan
transactions with clients, misrepresentations to disciplinary counsel, and abandonment of a
law practice were found to justify the extreme measures of Rule 3.27 because the substantial
threat of harm to the public continued unabated.
In contrast, the instant case presents a situation in which a prosecuting attorney
is accused of criminal violations, and the ODC contends that his defense to those charges
creates a conflict of interest between his personal interests and his duties to act as a
14
prosecutor.5 Key to this analysis is the April 23, 2014, circuit court order disqualifying the
Respondent from involvement in certain types of cases and the degree to which that
preventive measure insulates the public from potential harm. While the ODC correctly
asserts that discipline is separate and distinct from disqualification, it must be recognized that
we are not entertaining a question of final discipline here. We are deciding whether
immediate interim suspension is warranted pending an ultimate resolution of the disciplinary
issue, and that inquiry must necessarily involve an evaluation of the efficacy of the
framework currently in place to guard against irreparable harm to the public. Hence,
reference to the circuit court’s disqualification order is absolutely essential to our
determination of whether sufficient disqualification has already been accomplished.
The ODC also maintains that the circuit court’s order disqualifying the
Respondent from certain types of cases is insufficient, and it emphasizes the heightened
standard to be applied to public officials based upon the position of public trust they occupy.
5
West Virginia Code § 7-4-1 (2010) addresses the duties of a prosecuting attorney and
provides, in pertinent part:
It shall be the duty of the prosecuting attorney to attend
to the criminal business of the State in the county in which he is
elected and qualified, and when he has information of the
violation of any penal law committed within such county, he
shall institute and prosecute all necessary and proper
proceedings against the offender, and may in such case issue or
cause to be issued a summons for any witness he may deem
material.
15
Within the realm of imposing a disciplinary sanction, this Court has been cognizant of that
elevated standard, explaining as follows in syllabus point three of Committee on Legal Ethics
of West Virginia State Bar v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989): “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.”6
We are acutely aware that the Respondent in the case sub judice occupies a
position of public trust and must be held to a heightened standard of ethical behavior. That
heightened standard certainly governs the ultimate imposition of sanctions, if such sanctions
are determined to be warranted. The instant proceeding, however, does not encompass a
determination of sanctions to be imposed upon the Respondent. It is for the more limited
purpose of deciding whether Rule 3.27 requires temporary interim suspension pending
resolution of disciplinary proceedings. Thus, we must analyze the alleged violation of Rule
6
Mr. Roark, a former prosecuting attorney and former mayor, was suspended for three
years after pleading guilty to six counts of the federal misdemeanor offense of possession of
cocaine. 181 W.Va. at 261-62, 382 S.E.2d at 314-15; see also Comm. on Legal Ethics of the
W.Va. State Bar v. White, 189 W.Va. 135, 428 S.E.2d 556 (1993) (lawyer/prosecuting
attorney was suspended for two years after pleading guilty to possession of cocaine); Comm.
on Legal Ethics of the W.Va. State Bar v. Boettner, 188 W.Va. 1, 422 S.E.2d 478 (1992)
(lawyer/state senator was suspended for two years after pleading guilty to evading payment
of federal income taxes); Comm. on Legal Ethics of W.Va. State Bar v. Grubb, 187 W.Va.
608, 420 S.E.2d 744 (1992) (lawyer/judge was disciplined with license annulment after being
convicted of criminal charges in federal court); Comm. on Legal Ethics of the W.Va. State
Bar v. Moore, 186 W.Va. 127, 411 S.E.2d 452 (1991) (lawyer pled guilty to criminal acts that
arose through his position as governor and was disciplined by license annulment).
16
1.7 and the claim of a substantial threat of irreparable harm to the public based not only upon
the Respondent’s heightened standard of ethical conduct but also in light of the April 23,
2014, circuit court order which disqualified the Respondent and the Office of Prosecuting
Attorney from prosecuting cases involving crimes of violence by a parent, guardian, or
custodian against a child; abuse and neglect cases; and criminal violations of domestic
violence protection orders.
This Court is not persuaded by the ODC’s contention that the conflict of
interest extends to cases beyond those identified areas. We fail to discern a substantial threat
of irreparable harm to the public occasioned by the Respondent’s retention of his law license
pending the resolution of disciplinary proceedings against him, even in light of the
Respondent’s position of public trust and heightened standard of ethical conduct. The circuit
court orders achieved a result that effectively protects the public from the substantial threat
of irreparable harm and is consistent with the standards previously articulated by statute and
this Court. In particular, West Virginia Code § 7-7-8, cited above, recognizes the potential
for disqualification of prosecutors in certain instances and provides that replacement
prosecutors are to be appointed.
Likewise, the circuit court orders are consistent with this Court’s contemplation
of general standards dealing with prosecutorial disqualification, as identified in Keenan v.
17
Hatcher, 210 W.Va. 307, 557 S.E.2d 361 (2001) (addressing issue of disqualification of
prosecutor’s office from participating in recidivist proceeding, based upon fact that
prosecutor and assistant had previously acted as defendant’s counsel); see also Kutsch v.
Broadwater, 185 W.Va. 6, 404 S.E.2d 249 (1991) (holding recusal not warranted for conflict
of interest arising out of attorney’s dual membership on staff of prosecutor’s office and law
firm where attorney resigned from prosecutor’s office); Syl. Pt. 4, in part, State v. Knight,
168 W.Va. 615, 616, 285 S.E.2d 401, 403 (1981) (“Under circumstances where it can
reasonably be inferred that the prosecuting attorney has an interest in the outcome of a
criminal prosecution beyond ordinary dedication to his duty to see that justice is done, the
prosecuting attorney should be disqualified from prosecuting the case.”).
The circuit court properly removed the Respondent from any cases involving
subject matter similar to the criminal charges currently pending against him and extinguished
the threat of potential conflict of interest. This conclusion regarding the adequacy of the
degree of disqualification already accomplished and the absence of justification for
immediate interim suspension pending the resolution of disciplinary proceedings is also
supported by principles encompassed within the decisions of other jurisdictions addressing
similar requests. As one commentator has observed,
Several competing policies are at work when thinking
about whether and when to impose an interim suspension
pending final disposition on a lawyer whose conduct is the
subject of a disciplinary or capacity inquiry. On the one hand,
18
the lawyer regulatory system owes a duty to protect the public
from lawyer misconduct, misconduct that may well continue
throughout the often lengthy disciplinary process. On the other
hand, even an interim suspension is a drastic remedy.
Arthur F. Greenbaum, Administrative and Interim Suspensions in the Lawyer Regulatory
Process - A Preliminary Inquiry, 47 Akron L. Rev. 65, 105 (2014) (footnote omitted). It is
illustrative to note that Rule 20 of the American Bar Association’s Model Rules for Lawyer
Disciplinary Enforcement addresses this issue and premises interim suspensions on a
showing that the lawyer “poses a substantial threat of serious harm to the public.” Model
Rule for Lawyer Disciplinary Enforcement R. 20 (2002).7 With the harm to the public
prevailing as a pivotal component of these evaluations, many courts have endeavored to
address the various facets of the inquiry in terms of the particular threat. As the Supreme
Judicial Court of Massachusetts noted: “Because of the substantial and likely harm that
would arise from a temporary suspension that later proves to have been entered
improvidently, [the Massachusetts rule] requires that there be a showing of a threat of future
7
The commentary to that model rule provides:
Certain misconduct poses such an immediate threat to the
public and the administration of justice that the lawyer should be
suspended from the practice of law immediately pending a final
determination of the ultimate discipline to be imposed. Interim
suspension is also appropriate when the lawyer’s continuing
conduct is causing or is likely to cause serious injury to a client
or the public, as, for example, where a lawyer abandons the
practice of law or is engaged in an ongoing conversion of trust
funds.
19
harm that in the public interest must be guarded against by a temporary suspension.” In re
Ellis, 680 N.E.2d 1154, 1161-62 (Mass. 1997).
As noted by Greenbaum, “[i]n balancing the need for public protection against
the costs suspensions entail, each state must determine the severity of the threat and the
certainty of its occurrence necessary to support interim relief.” Greenbaum, supra at 106.8
Further, Greenbaum explains:
8
Greenbaum further notes: “The current ABA model has two points of emphasis: (1)
the threat of harm must be ‘substantial,’ and (2) the potential harm must be ‘serious.’”
Greenbuam, supra at 106. Greenbaum explains that this language represents a slight
deviation from prior language requiring the threat of harm to be substantial and the harm to
be “irreparable.” See MRLDE R. 20 (1989). The “irreparable” harm requirement is included
in the West Virginia rule, as quoted above. Greenbaum also references several other states’
approaches, as follows:
For example, as to the likelihood of occurrence, Pennsylvania’s
rule, at least on its face, tightens the “substantial threat” standard
by limiting the interim suspension to instances in which the
lawyer’s continued practice “is causing immediate or substantial
public or private harm.” New Mexico tempers this somewhat,
requiring a finding that the lawyer’s conduct “will result in a
substantial probability of harm, loss or damage to the public.”
Similarly, Oregon provides for interim suspension when
disciplinary authorities can show that the lawyer’s continued
practice “will, or is likely to, result in substantial harm to any
person or the public at large.” New York seems to fall
somewhere in between. That state’s rule focuses on situations
where continued practice by the lawyer is “immediately
threatening the public interest.”
Greenbaum, supra at 106-07 (footnotes omitted).
20
Regardless of the exact standard employed, the statutes and case
law provide guidance on the types of misconduct that have been
found to warrant interim suspension. Some forms of conduct,
in and of themselves, seem particularly likely to be repeated and
hence often raise a substantial risk of public harm. High among
them is misappropriation or admitted failure to pay money owed
to a client, such as failure to pay fee arbitration awards.
Disappearance and/or abandonment of law practice also pose an
obvious threat.
Id. at 111-12 (footnotes omitted).
In evaluating serious ethical violations by an attorney and a request for
immediate suspension due to threat of public harm in In re Reiner’s Case, 883 A.2d 315
(N.H. 2005), the Supreme Court of New Hampshire noted the absence of a threat of public
harm, reasoning as follows:
The allegations here, while serious, do not pose a threat to the
respondent’s present and future clients. There are no allegations
that the respondent has misused clients’ funds, made false
statements or engaged in other conduct which poses an
immediate threat to clients or to the public. Nor was any
additional evidence offered either to corroborate or supplement
the allegations or to show that the respondent poses a threat to
the public. Accordingly, we find that suspension is not
necessary for the protection of the public. See Sup. Ct. R.
37(16)(f).
883 A.2d at 319.9
9
Reiner’s Case was decided under a rule allowing the Supreme Court of New
Hampshire to “suspend attorneys or disbar New Hampshire licensed attorneys or publicly
censure attorneys upon such terms and conditions as the court deems necessary for the
protection of the public and the preservation of the integrity of the legal profession.” N.H.
(continued...)
21
Similarly, in Disciplinary Counsel v. Hanson, 2006 WL 2349162 (Conn. Super.
2006), the disciplinary counsel requested an interim suspension of an attorney, arguing that
criminal charges pending against the criminal defense lawyer created a per se conflict of
interest that interfered with his duty of loyalty and violated Rule 1.7 of the Rules of
Professional Conduct. The Superior Court of Connecticut held that evidence was insufficient
to establish that the attorney posed a substantial threat of irreparable harm10 to his clients or
to prospective clients. 2006 WL 2349162 at *4. In reviewing the issue, the court found that
criminal matters were “not for this court to decide” and found no reason to suspend the
attorney’s law license pending resolution of disciplinary proceedings. Id. at *1.11
9
(...continued)
Sup. Ct. R. 37(16)(f).
10
Hanson was decided under Connecticut Practice Book § 2-42(b) (1998), providing
in relevant part:
The court, after hearing, pending final disposition of the
disciplinary proceeding, may, if it finds that the lawyer poses a
substantial threat of irreparable harm to his or her clients or to
prospective clients, enter an order of interim suspension, or may
order such other interim action as deemed appropriate.
11
The Hanson court also reasoned:
The problem with creating a per se rule that an arrest and
pending charges against a criminal defense lawyer should result
in an automatic interim suspension is that it simply sweeps too
broadly and ignores the risk faced by lawyers of unfounded
arrests and charges by disgruntled and/or vindictive clients or
(continued...)
22
We are mindful of the gravity of the fact that the Respondent is facing criminal
charges. Such charges will be addressed in due course, and the ODC may proceed with
disciplinary charges against the Respondent as deemed necessary. The issues will be
thoroughly presented and evaluated in future proceedings, and the Respondent will have
ample opportunity to defend against these charges. At this time and in this proceeding, we
express no opinion upon the merits or the ultimate disposition of the proceedings in either
the criminal or disciplinary forums.
As explained above, the issues for this Court in the present proceeding are
strictly limited to whether the Respondent’s law license should be temporarily suspended
pending resolution of disciplinary charges and whether additional disqualification is
necessary. In addressing those questions, this Court has examined the ODC’s contentions,
and we do not find a substantial threat of irreparable harm to the public where the
Respondent and the prosecutor’s office have been removed from all matters involving crimes
of violence by a parent, guardian, or custodian against a child; abuse and neglect cases; and
criminal violations of domestic violence protection orders. The potential for a Rule 1.7
conflict of interest has been adequately and reasonably resolved by the April 23, 2014, circuit
11
(...continued)
opponents, notwithstanding the probable cause requirement for
an arrest. That is why a case by case rather than a per se rule
makes sense.
2006 WL 2349162, at *4.
23
court order; the criminal charges remain pending; and the disciplinary actions against the
Respondent will proceed as deemed necessary.
IV. Conclusion
For the foregoing reasons, this Court finds that interim suspension pending the
resolution of disciplinary proceedings is not warranted and further disqualification is
unnecessary. The ODC’s request is accordingly denied. Due to the expense of maintaining
a special prosecutor during the pendency of these actions, the proceedings against the
Respondent should continue toward resolution as expeditiously as possible.
Petition Denied.
The Clerk of this Court is directed to issue the mandate in this case forthwith.
24