Lawyer Disciplinary Board v. Mark S. Plants

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term
_______________ FILED
June 1, 2017
No. 15-0957 released at 3:00 p.m.
RORY L. PERRY II, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LAWYER DISCIPLINARY BOARD,
Petitioner
v.
MARK S. PLANTS,
Respondent
____________________________________________________________
Lawyer Disciplinary Proceeding
I.D. Nos.: 14-06-187 & 14-06-444
PUBLIC REPRIMAND AND COSTS
____________________________________________________________
Submitted: February 7, 2017
Filed: June 1, 2017
Joanne M. Vella Kirby James M. Cagle
Rachel L. Fletcher Cipoletti Charleston, West Virginia
Office of Disciplinary Counsel Counsel for the Respondent
Charleston, West Virginia
Counsel for the Petitioner
JUSTICE WALKER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A de novo standard applies to a review of the adjudicatory record
made before the [Lawyer Disciplinary Board] as to questions of law, questions of
application of the law to the facts, and questions of appropriate sanctions; this Court
gives respectful consideration to the [Board’s] recommendations while ultimately
exercising its own independent judgment. On the other hand, substantial deference is
given to the [Board’s] findings of fact, unless such findings are not supported by reliable,
probative, and substantial evidence on the whole record.” Syllabus Point 3, Committee on
Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).
2. “This Court is the final arbiter of legal ethics problems and must
make the ultimate decisions about public reprimands, suspensions or annulments of
attorneys’ licenses to practice law.” Syllabus Point 3, Committee on Legal Ethics v.
Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).
3. “In deciding on the appropriate disciplinary action for ethical
violations, this Court must consider not only what steps would appropriately punish the
respondent attorney, but also whether the discipline imposed is adequate to serve as an
effective deterrent to other members of the Bar and at the same time restore public
confidence in the ethical standards of the legal profession.” Syllabus Point 3, Committee
on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).
i
4. “Ethical violations by a lawyer holding a public office are viewed as
more egregious because of the betrayal of the public trust attached to the office.”
Syllabus Point 3, Committee on Legal Ethics of West Virginia State Bar v. Roark, 181
W.Va. 260, 382 S.E.2d 313 (1989).
5. “Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary
Procedure enumerates factors to be considered in imposing sanctions and provides as
follows: ‘In imposing a sanction after a finding of lawyer misconduct, unless otherwise
provided in these rules, the [West Virginia Supreme Court of Appeals] or [Lawyer
Disciplinary Board] shall consider the following factors: (1) whether the lawyer has
violated a duty owed to a client, to the public, to the legal system, or to the profession; (2)
whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of the
actual or potential injury caused by the lawyer's misconduct; and (4) the existence of any
aggravating or mitigating factors.’” Syllabus Point 4, Office of Disciplinary Counsel v.
Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).
6. “Mitigating factors in a lawyer disciplinary proceeding are any
considerations or factors that may justify a reduction in the degree of discipline to be
imposed.” Syllabus Point 2, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579
S.E.2d 550 (2003).
ii
7. “Mitigating factors which may be considered in determining the
appropriate sanction to be imposed against a lawyer for violating the Rules of
Professional Conduct include: (1) absence of a prior disciplinary record; (2) absence of a
dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith
effort to make restitution or to rectify consequences of misconduct; (5) full and free
disclosure to disciplinary board or cooperative attitude toward proceedings; (6)
inexperience in the practice of law; (7) character or reputation; (8) physical or mental
disability or impairment; (9) delay in disciplinary proceedings; (10) interim
rehabilitation; (11) imposition of other penalties or sanctions; (12) remorse; and (13)
remoteness of prior offenses.” Syllabus Point 3, Lawyer Disciplinary Bd. v. Scott, 213
W.Va. 209, 579 S.E.2d 550 (2003).
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
imposed.” Syllabus Point 4, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579
S.E.2d 550 (2003).
9. “In disciplinary proceedings, this Court, rather than endeavoring to
establish a uniform standard of disciplinary action, will consider the facts and
circumstances in each case, including mitigating facts and circumstances, in determining
what disciplinary action, if any, is appropriate, and when the committee on legal ethics
initiates proceedings before this Court, it has a duty to advise this Court of all pertinent
iii
facts with reference to the charges and the recommended disciplinary action.” Syllabus
Point 2, Committee on Legal Ethics of the West Virginia State Bar v. Mullins, 159 W.Va.
647, 226 S.E.2d 247, 248 (1976), overruled on other grounds by Committee on Legal
Ethics of the West Virginia State Bar v. Cometti, 189 W.Va. 262, 430 S.E.2d 320 (1993).
10. “Moot questions or abstract propositions, the decision of which
would avail nothing in the determination of controverted rights of persons or of property
are not properly cognizable by a court.” Syllabus Point 1, State ex rel. Lilly v. Carter, 63
W.Va. 684, 60 S.E. 873 (1908).
iv
WALKER, Justice:
This lawyer disciplinary proceeding is before the Court upon the written
objection of the Office of Disciplinary Counsel (“ODC”) of the Lawyer Disciplinary
Board (“LDB”) to the sanctions recommended by the Hearing Panel Subcommittee
(“HPS”) of the LDB. The HPS found that Respondent Mark S. Plants violated three
provisions of the West Virginia Rules of Professional Conduct and recommended that
Mr. Plants be publicly reprimanded and pay the costs of these proceedings. Mr. Plants
does not challenge the recommended sanctions.
The ODC asserts that the appropriate sanction in this case is a suspension
of Mr. Plants’s license to practice law for three months based upon the seriousness of the
violations involving domestic battery and the knowing violation of a court order by this
former elected prosecuting attorney. The ODC also urges this Court to address the
admissibility of expert testimony offered on the issue of violations of the West Virginia
Rules of Professional Conduct.
Upon consideration of the parties’ briefs and arguments, the submitted
record and pertinent authorities, this Court finds that there is clear and convincing
1
evidence1 to support the findings of the HPS that Mr. Plants violated Rules 1.7(b), 3.4(c)
and 8.4(b) and (d) of the West Virginia Rules of Professional Conduct. For the reasons
explained below, we adopt the sanctions recommended by the HPS.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Plants has been licensed to practice law in the State of West Virginia
since 2004. He was elected prosecuting attorney of Kanawha County in 2008 and re­
elected in 2012. The underlying charges involve conduct that occurred in 2014 while he
was the prosecuting attorney. Since his removal from elected office in October of 2014,
Mr. Plants has practiced law as a sole practitioner in South Charleston.
A. Incidents and Criminal Complaints
The charges filed by the ODC against Mr. Plants arose out of two incidents
that resulted in criminal complaints against him. First, on February 26, 2014, Allison
Plants, Mr. Plants’s ex-wife (“Ms. Plants”), reported to the West Virginia State Police
that Mr. Plants had injured their son by whipping him with a belt. The next day, Ms.
Plants filed a Domestic Violence Petition seeking protection for herself and their two
minor children. The magistrate/family court issued a Domestic Violence Emergency
1
Rule 3.7 of the Rules of Lawyer Disciplinary Procedure states: “In order to
recommend the imposition of discipline of any lawyer, the allegations of the formal
charge must be proved by clear and convincing evidence.”
2
Protective Order (“Emergency Protective Order”) on February 27, 2014, concluding that
Ms. Plants had proved “the allegations of domestic violence or abuse by clear and
convincing evidence of immediate and present danger of abuse.”
The Emergency Protective Order provided that Mr. Plants (1) “shall refrain
from abusing, harassing, stalking, threatening, intimidating or engaging in conduct that
places [Ms. Plants and the two children] . . . in reasonable fear of bodily injury”; (2)
“shall refrain from contacting, telephoning, communicating with, harassing, or verbally
abusing [Ms. Plants]”; (3) shall refrain from entering any school, business, or place of
employment of [Ms. Plants]”; and (4) “shall refrain from entering or being present in the
immediate environs of [Ms. Plants’s] residence.”
On March 17, 2014, while the Emergency Protective Order was in effect,
Ms. Plants reported that in the parking lot at the Fruth Pharmacy in Charleston, West
Virginia, Mr. Plants spoke to their two children at her vehicle and then spoke to her.
During the hearing before the HPS, Mr. Plants admitted that he spoke with his children
but denied that he communicated with Ms. Plants. Mr. Plants further acknowledged that
he was aware of the terms of the Emergency Protective Order at the time of this incident.
The evidence adduced during the hearing was that as Mr. Plants was exiting Fruth
Pharmacy, Ms. Plants entered the same location. After exiting Fruth Pharmacy, Mr.
Plants observed his children waving to him from inside Ms. Plants’s car in the parking lot
and he walked over to speak with them. After Ms. Plants returned to her car, Mr. Plants
3
walked away. The next day, the State Police filed a criminal complaint in magistrate
court charging Mr. Plants with violating the Emergency Protective Order based upon this
incident.
On March 21, 2014, the family court modified the Emergency Protective
Order according to an agreement between the parties. Among other things, the modified
Emergency Protective Order permitted Mr. Plants to have supervised visitation with the
children and to communicate with the children. Except as otherwise agreed by the
parties, the original terms of the Emergency Protective Order continued in full force and
effect.
On March 31, 2014, the State Police filed a criminal complaint charging
Mr. Plants with domestic battery based upon the report on February 26 by Ms. Plants that
Mr. Plants had whipped their son with a belt. On April 7, 2014, Mr. Plants filed a motion
to dismiss this charge on the grounds that he had a constitutionally protected right to
discipline his child and that there is no liability for the reasonable use of corporal
punishment for disciplinary purposes. Mr. Plants admitted that he “spanked his son with
his leather belt.”
On June 19, 2014, the family court entered a 90-day Domestic Violence
Protective Order at the final hearing to address the status of the Emergency Protective
Order. The family court found that Ms. Plants “proved by a preponderance of the
4
evidence . . . allegations of domestic violence or abuse” under West Virginia Code § 48­
27-501. The family court further found that “[t]hough Mr. Plants did not intend to injure
his son, the incident was significant and serious enough to warrant the issuance of a
protective order.” The Domestic Violence Protective Order expired by its own terms on
September 17, 2014.
On July 14, 2014, Mr. Plants and the Special Assistant Prosecuting
Attorney (“Special Prosecutor”) entered into a Pretrial Monitoring Agreement as a
Condition of Bond (“Monitoring Agreement”) relating to both criminal complaints. In
that Agreement, Mr. Plants agreed, among other things “to comply fully with the
provisions of this agreement for a period of six (6) months or upon completion of the
BIPPS (Batterers Intervention and Prevention Program) class, whichever occurs last.”
The Agreement also provided that if Mr. Plants “successfully completes [the BIPPS]
class and fully complies with all of the other terms of the Agreement, the circumstances
would be communicated to the Special Prosecutor for consideration prior to the final
compliance hearing.”
On May 21, 2015, the magistrate court dismissed both criminal complaints
against Mr. Plants with prejudice based upon a joint motion in which the Special
Prosecutor attested that Mr. Plants had successfully completed the BIPPS program and
had not violated any terms of the Monitoring Agreement.
5
B. Collateral Proceedings
After the incidents that resulted in misdemeanor criminal complaints
against Mr. Plants, three collateral proceedings relating to his position as prosecuting
attorney ensued. First, on April 11, 2014, the ODC petitioned this Court, pursuant to
Rule 3.27 of the Rules of Lawyer Disciplinary Procedure, for immediate, temporary
suspension of Mr. Plants and/or the disqualification of Mr. Plants and the Kanawha
County Prosecutor’s Office from instituting actions or prosecuting claims related to
domestic violence involving a parent or guardian and a minor child. The ODC alleged
that the temporary suspension was necessary due to a conflict of interest that posed a
substantial threat of irreparable harm to the public.
In its Rule 3.27 petition, the ODC asserted that by denying the domestic
battery charges against him, Mr. Plants created a non-waivable conflict of interest in
violation of Rule 1.7(b) of the West Virginia Rules of Professional Conduct in which his
personal interests materially limited his ability to execute properly his official duties. Mr.
Plants responded that temporary suspension or disqualification was unnecessary because
the action taken at the circuit court by entering an order disqualifying him from certain
cases was sufficient to protect the public. We denied the ODC’s petition on the grounds
that the Circuit Court of Kanawha County, pursuant to a petition for writ of prohibition
by the City of Charleston (“City”) and the Charleston Police Department (“Police
Department”), properly removed Mr. Plants from any cases involving the subject matter
6
similar to the pending criminal charges against him thereby removing the threat of a
possible conflict of interest. Office of Lawyer Disciplinary Counsel v. Plants, 233 W.Va.
477, 485, 759 S.E.2d 220, 228 (2014).
As referenced above, while the ODC’s Rule 3.27 petition was proceeding,
the City and the Police Department filed a petition for writ of prohibition on April 14,
2014. The petition sought to prohibit Mr. Plants and the Kanawha County Prosecuting
Attorney’s Office from prosecuting allegations of domestic violence involving parents
and minor children reported, investigated or charged by the City and the Police
Department until the conflict of interest issue identified by the ODC was resolved.
Following a hearing, the circuit court entered an agreed order in which Mr. Plants and the
Kanawha County Prosecuting Attorney’s Office agreed to be disqualified from three
categories of cases: (1) crimes of violence against a child; (2) abuse and neglect; and (3)
criminal violations of domestic violence protection orders.
Finally, on August 15, 2014, the Kanawha County Commission instituted
proceedings pursuant to West Virginia Code §6-6-7(c)(1985)2 to remove Mr. Plants from
2
West Virginia Code § 6-6-7 was amended effective June 9, 2016. At the time of
the underlying proceedings, it stated in relevant part as follows:
(a) Any person holding any county, school district or
municipal office, including the office of a member of a board
(continued . . .)
7
of education and the office of magistrate, the term or tenure
of which office is fixed by law, whether the office be elective
or appointive, except judges of the circuit courts, may be
removed from such office in the manner provided in this
section for official misconduct, malfeasance in office,
incompetence, neglect of duty or gross immorality or for any
of the causes or on any of the grounds provided by any other
statute.
(b) Charges may be preferred:
(1) In the case of any county officer, member of a
district board of education or magistrate, by the county
commission, or other tribunal in lieu thereof, any other officer
of the county, or by any number of persons other than such
county officers, which number shall be the lesser of fifty or
one percent of the total number of voters of the county
participating in the general election next preceding the filing
of such charges . . . .
(c) The charges shall be reduced to writing in the form of a
petition duly verified by at least one of the persons bringing
the same, and shall be entered of record by the court, or the
judge thereof in vacation, and a summons shall thereupon be
issued by the clerk of such court, together with a copy of the
petition, requiring the officer or person named therein to
appear before the court, at the courthouse of the county where
such officer resides, and answer the charges on a day to be
named therein, which summons shall be served at least
twenty days before the return day thereof in the manner by
which a summons commencing a civil suit may be served.
The court, or judge thereof in vacation, or in the case of any
multi-judge circuit, the chief judge thereof, shall, without
delay forward a copy of the petition to the supreme court of
appeals and shall ask for the impaneling or convening of a
three-judge court consisting of three circuit judges of the
state. The chief justice of the supreme court of appeals shall
without delay designate and appoint three circuit judges
within the state, not more than one of whom shall be from the
(continued . . .)
8
the office of prosecuting attorney. After a hearing, the three-judge panel appointed to
consider the matter ruled that Mr. Plants should be removed from office on the grounds
of malfeasance in office by committing wrongful conduct affecting the performance of
his duties. The panel further found that Mr. Plants had neglected the duties of his office
by voluntarily agreeing to a disqualification that had, in effect, prevented him from
giving appropriate attention to a substantial and important part of his statutory duties.
Mr. Plants did not appeal the panel’s decision.
C. Charges by the Lawyer Disciplinary Board
same circuit in which the petition is filed and, in the order of
such appointment, shall designate the date, time and place for
the convening of such three-judge court, which date and time
shall not be less than twenty days from the date of the filing
of the petition.
Such three-judge court shall, without a jury, hear the charges
and all evidence offered in support thereof or in opposition
thereto and upon satisfactory proof of the charges shall
remove any such officer or person from office and place the
records, papers and property of his office in the possession of
some other officer or person for safekeeping or in the
possession of the person appointed as hereinafter provided to
fill the office temporarily. Any final order either removing or
refusing to remove any such person from office shall contain
such findings of fact and conclusions of law as the three-
judge court shall deem sufficient to support its decision of all
issues presented to it in the matter.
W.Va. Code § 6-6-7 (1985).
9
The LDB filed a formal Statement of Charges on October 2, 2015, alleging
that Mr. Plants violated Rules 1.7(b) (conflict of interest),3 3.4(c) (knowingly disobey
rule of a tribunal),4 8.4(b) (criminal act),5 and 8.4(d) (prejudice to the administration of
justice).6 In his answer, Mr. Plants denied any violation of the Rules of Professional
Conduct but admitted that the two incidents occurred. In his answer and during the
hearing before the HPS, Mr. Plants contended that corporal punishment was an
acceptable form of discipline to which he and Ms. Plants had agreed and noted that the
family court judge had ruled that he did not intend to injure his son. Mr. Plants also
explained his concerns for the safety of his children when he saw them in Ms. Plants’s
car in the parking lot of Fruth Pharmacy. Mr. Plants denied knowingly or willfully
violating the Emergency Protective Order.
3
Because the subject conduct occurred prior to January 1, 2015, the version of the
Rules of Professional Conduct in effect prior to the January 1, 2015 amendments applies.
The applicable version of Rule 1.7(b) provided “[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 third person, or by the lawyer’s own interests . . . .” All references
in this opinion to Rule 1.7(b) shall be to the pre-January 1, 2015 version of the rule.
4
Rule 3.4(c) provides “[a] lawyer shall not: . . . knowingly disobey an obligation
under the rules of a tribunal except for an open refusal based on an assertion that no valid
obligation exists . . . .”
5
Rule 8.4(b) provides “[i]t is professional misconduct for a lawyer to: . . . commit
a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as
a lawyer in other respects; . . . .”
6
Rule 8.4(d) provide “[i]t is professional misconduct for a lawyer to: . . . engage
in conduct that is prejudicial to the administration of justice.”
10
D. Discovery and Expert Testimony
During the course of discovery, Mr. Plants retained Robert H. Davis, Jr.,
who had previously served as his legal counsel, as an expert witness on the Rules of
Professional Conduct. In an evidentiary deposition, Mr. Davis testified that Mr. Plants’s
conduct did not violate the West Virginia Rules of Professional Conduct. The ODC filed
a pre-hearing motion in limine to preclude the expert testimony. The HPS denied the
motion, concluding that “having reviewed the transcript in its entirety, [the HPS] will
give said testimony such weight as the Hearing Panel Subcommittee members determine
appropriate when making the recommended disposition to the Supreme Court of Appeals
of West Virginia, pursuant to Rule 3.10 of the Rules of Disciplinary Procedure.”
E. Report of the Hearing Panel Subcommittee
Following a lengthy hearing on May 19 and 20, 2016,7 the HPS filed a
report with this Court on September 19, 2016. Providing a detailed analysis of the
testimony and other evidence presented at the hearing, the HPS concluded:
The Hearing Panel finds that the Office of Disciplinary
Counsel has proven by clear and convincing evidence that
Respondent [Mr. Plants] violated Rules 1.7(b), 3.4(c), 8.4(b)
7
In addition to Mr. Plants and Ms. Plants, the HPS heard testimony from Sergeant
Matthew Adams, Sergeant Brian Hammontree, Sergeant Anthony Colagrasso, Paul Ellis,
Melissa Foster-Bird, Dan Holstein, and Donald Morris. The testimony of Robert H.
Davis, Jr. was offered by deposition.
11
and 8.4(d) of the Rules of Professional Conduct. By his
behavior/conduct, which result[ed] in domestic battery
charges being filed against him pursuant to West Virginia
Code §61-2-28(a), while simultaneously serving as the
Prosecuting Attorney of Kanawha County, West Virginia, a
conflict of interest was created. Additionally, Respondent
knowingly disobeyed an obligation under the rules of a
tribunal when he knowingly violated the Domestic Violence
Emergency Protective Order, entered on February 27, 2014,
by communicating with Petitioner Allison Plants and their
children outside of the Fruth Pharmacy in Charleston, West
Virginia, on or about March 17, 2014. He did so without
asserting that no valid obligation existed for him to follow the
Protective Order. Finally, Respondent committed a criminal
act that reflects adversely on his honesty, trustworthiness or
fitness as a lawyer in other respects, and engaged in conduct
prejudicial to the administration of justice when he knowingly
violated the Domestic Violence Emergency Protective Order,
entered on February 27, 2014, by communicating with
Petitioner Allison Plants and their children outside of the
Fruth Pharmacy in Charleston, West Virginia on or about
March 17, 2014.
The HPS evaluated Mr. Plants’s conduct in accordance with applicable
standards to determine whether discipline should be imposed, including mitigating and
aggravating factors, and concluded that he should be sanctioned with a public reprimand
and with payment of the costs of these proceedings. As the HPS explained:
Accordingly, Respondent should be sanctioned for his
misconduct. For the public to have confidence in our State’s
disciplinary and legal systems, lawyers who engage in the
type of conduct exhibited by Respondent must be sanctioned,
pursuant to Rules 3.15 of the Rules of Lawyer Disciplinary
Procedure in the form of a Public Reprimand. Such a
sanction is also necessary to deter other lawyers from
engaging in similar conduct and to restore the faith of the
general public in the integrity of the legal profession.
Although Respondent’s lack of disciplinary history and his
12
removal from his position as the elected Prosecuting Attorney
of Kanawha County, West Virginia, are mitigating factors, as
is the fact that the criminal charges against him were
dismissed, it must be remembered that Respondent, as the
elected Prosecuting Attorney, was held to a higher standard.
Therefore, especially under the facts herein, the ethical
violations he commits are considered more egregious because
of the betrayal of the public trust attached to the office.
Importantly, despite the fact that Respondent held public
office at the time of the incidents in question and, as such,
may be held to a higher standard in these proceedings, the
sanctions imposed must be justified by the conduct of
Respondent, rather than linked to any publicity the matter
may have received.
II. STANDARD OF REVIEW
We review lawyer disciplinary proceedings using the following standards:
A de novo standard applies to a review of the
adjudicatory record made before the [Lawyer Disciplinary
Board] as to questions of law, questions of application of the
law to the facts, and questions of appropriate sanctions; this
Court gives respectful consideration to the [Board’s]
recommendations while ultimately exercising its own
independent judgement. On the other hand, substantial
deference is given to the [Board’s] findings of fact, unless
such findings are not supported by reliable, probative, and
substantial evidence on the whole record.
Syl. Pt. 3, Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377(1994). We have determined that “[t]his Court is the final arbiter of legal ethics problems
and must make the ultimate decisions about public reprimands, suspensions, or
annulments of attorneys’ licenses to practice law.” Syl. Pt. 3, Committee on Legal Ethics
13
v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984). We are mindful of the multiple
considerations in these cases:
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).
With respect to public confidence in the ethical standards of the legal profession and
public officials, in particular, we have emphasized that “[e]thical violations by a lawyer
holding a public office are viewed as more egregious because of the betrayal of the public
trust attached to the office.” Syl. Pt. 3, Committee on Legal Ethics of West Virginia State
Bar v. Roark, 181W.Va. 260, 382 S.E.2d 313 (1989).
Applying these standards, we turn to the case before us.
III. DISCUSSION
The ODC urges this Court to impose a harsher sanction than public
reprimand in this lawyer disciplinary matter but takes no other issue with the findings of
fact and conclusions of law of the HPS. According to the ODC, Mr. Plants’s conduct
warrants a stronger sanction to send a clear message that when an elected prosecuting
attorney engages in conduct that results in a conflict of interest and knowingly violates
14
the terms of a court order, this Court will suspend that prosecutor’s license because such
conduct violates the public trust in the very official elected to enforce the law. The ODC
urges this Court to impose a three-month suspension of Mr. Plants’s law license.
Mr. Plants consented to the sanction of public reprimand and costs
recommended by the HPS.8
In considering the ODC’s challenge to the HPS’s recommended sanctions,
we rely upon Syllabus Point 4 of Office of 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 [West Virginia
Supreme Court of Appeals] or [Lawyer Disciplinary Board]
shall consider the following factors: (1) whether the lawyer
has violated a duty owed to a client, to the public, to the legal
system, or to the profession; (2) whether the lawyer acted
intentionally, knowingly, or negligently; (3) the amount of the
actual or potential injury caused by the lawyer's misconduct;
8
While Mr. Plants consented to the sanction, he takes issue in his brief with the
HPS’s conclusions regarding conflict of interest and knowing violation of a court order.
However, Mr. Plants did not file an objection as required by Rule 3.11 of the Rules of
Lawyer Disciplinary Procedure to raise these issues before this Court. Accordingly, we
decline to consider them. However, we consider individual facts in the record relating to
the issues raised by Mr. Plants in the context of the appropriate sanction, which is the
issue before us.
15
and (4) the existence of any aggravating or mitigating
factors.”
Id. at 497, 513 S.E.2d at 724, syl. pt. 4.
In a detailed analysis of the first three Jordan factors, the HPS found that
Mr. Plants’s conduct resulting in the domestic battery charges created an unwaivable
conflict of interest violating his duty to his client, the citizens of Kanawha County, and
the public and the legal system. The HPS also determined that Mr. Plants knowingly
violated the Emergency Protective Order. The HPS further concluded that Mr. Plants’s
misconduct created actual and potential injury to the public, the legal system and the
legal profession.
With regard to the fourth Jordan factor, we have explained that
“[m]itigating factors in a lawyer disciplinary proceeding are any considerations or factors
that may justify a reduction in the degree of discipline to be imposed.” Syl. Pt. 2, Lawyer
Disciplinary Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003). We consistently
have described mitigating factors as follows:
Mitigating factors which may be considered in
determining the appropriate sanction to be imposed against a
lawyer for violating the Rules of Professional Conduct
include: (1) absence of a prior disciplinary record; (2) absence
of a dishonest or selfish motive; (3) personal or emotional
problems; (4) timely good faith effort to make restitution or to
rectify consequences of misconduct; (5) full and free
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
16
impairment; (9) delay in disciplinary proceedings; (10)
interim rehabilitation; (11) imposition of other penalties or
sanctions; (12) remorse; and (13) remoteness of prior
offenses.
Id. at 210, 579 S.E.2d at 551, syl. pt. 3.9 In contrast, “[a]ggravating factors in a lawyer
disciplinary proceeding are any considerations or factors that may justify an increase in
the degree of discipline to be imposed.” Id., syl. pt. 4.
In this case, the HPS found three mitigating factors: (1) Mr. Plants did not
have a prior disciplinary record; (2) Mr. Plants had been removed from office as the
elected Prosecuting Attorney of Kanawha County; and (3) the magistrate court dismissed
the misdemeanor criminal complaints against Mr. Plants. The HPS also found one
aggravating factor: Mr. Plants refused to acknowledge his wrongful conduct when he
maintained that he did not commit a crime by speaking with his children in violation of
the Emergency Protective Order. Taking into account these mitigating and aggravating
factors, the HPS recommended that Mr. Plants be publicly reprimanded.
9
In Scott, we adopted the mitigating factors proposed by the American Bar
Association in its Standards for Imposing Lawyer Sanctions. Lawyer Disciplinary Bd. v.
Scott, 213 W.Va. at 214, 579 S.E.2d at 555. We noted, however, that these mitigating
factors are not to the exclusion of others that a particular case may present. Id. at 214
n.33, 579 S.E.2d at 555 n.33.
17
Notwithstanding the HPS’s findings, the ODC maintains that a three-month
suspension is more appropriate. The ODC notes that this Court has routinely suspended
prosecutors for misconduct. However, the sanctions we have imposed in cases involving
prosecuting attorneys have ranged from outright dismissal of the charges to three-year
suspensions and annulment. For example, in Lawyer Disciplinary Board v. Jarrell, 206
W.Va. 236, 523 S.E.2d 552 (1999), we dismissed the charges filed against a county
prosecutor based upon extraordinary mitigating circumstances. We determined that
while ethical violations occurred in some of the counts charged, none involved criminal
conduct, the attorney was inexperienced in criminal law and lacked advisors, no harm or
prejudice resulted to anyone, and the prosecutor chose not to run for office again. Id. at
244, 523 S.E.2d at 560.
Notably, in Lawyer Disciplinary Board v. Sims, 212 W.Va. 463, 468, 574
S.E.2d 795, 800 (2002), we declined to accept a recommendation to suspend for ninety
days a prosecutor who had already been removed from office. In that case, we stated that
“removal of a lawyer from an elected office is an effective, dramatic, and powerful
punishment which serves as a ‘deterrent to other members of the Bar.’” Id. at 468, 574
S.E.2d at 800. After concluding that Sims’s removal from office as prosecuting attorney
for his conduct must “in fairness be considered a mitigating factor,” we further stated that
“[f]orfeiture of a public office and removal therefrom is a harsh and drastic sanction
indeed.” Id. at 469, 574 S.E.2d at 801. In Sims, we concluded that “under all the
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circumstances of this case, including the fact that Mr. Sims was removed from office, a
public reprimand and payment of the costs incurred in this proceeding are appropriate
and adequate sanctions.” Id.
On the other hand, in Committee on Legal Ethics of the West Virginia State
Bar v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989), we suspended a mayor and former
county prosecutor’s license for three years based upon his criminal conduct while in
office. After a federal indictment on thirty criminal charges, Mr. Roark pled guilty to six
counts of felony misdemeanor possession of cocaine, resigned from office as mayor of
the City of Charleston, served 179 days in federal prison, served three years of probation
and paid a $5,000 fine. Id. at 262 n.2, 382 S.E.2d at 315 n.2. In these circumstances, we
held “[e]thical violations by a lawyer holding a public office are viewed as more
egregious because of the betrayal of the public trust attached to the office.” Id. at 260,
382 S.E.2d at 313, syl. pt. 3. See also, Lawyer Disciplinary Board v. Busch, 233 W.Va.
43, 754 S.E.2d 729 (2014) (license of prosecuting attorney who failed to cooperate with
opposing counsel, lied to circuit court, and avoided giving up exculpatory evidence
suspended for three years); Lawyer Disciplinary Board v. Scott, 213 W.Va. 209, 579
S.E.2d 550 (2003) (prosecuting attorney’s license suspended for three years based upon
ethical violations of dishonesty for lying in and out of court and falsifying court
documents); Committee on Legal Ethics of the West Virginia State Bar v. White, 189
W.Va. 135, 428 S.E.2d 556 (1993) (prosecutor’s license suspended for two years based
19
on illicit drug use that led to federal investigation in which he pled guilty to possession of
marijuana, cocaine and percocet); Lawyer Disciplinary Bd. v. Clifton, 236 W.Va. 362,
780 S.E.2d 628 (2015) (assistant prosecuting attorney’s repeated sexual misconduct by
using position of power over vulnerable women in criminal system resulted in annulment
of law license).
Likewise, the sanctions imposed in our prior decisions involving other
public officials have ranged from public reprimand to annulment, depending upon the
conduct and aggravating and mitigating factors present in the particular case. See In re
Matter of Callaghan, __ W.Va. __ , 796 S.E.2d 604 (2017) (law license of judge-elect
suspended for two years for violating Rule 8.4(d) and engaging in conduct prejudicial to
the administration of justice, along with other violations of Code of Judicial Conduct);
Lawyer Disciplinary Board v. Blyler, 237 W.Va. 325, 787 S.E.2d 596 (2016) (law license
of court appointed special commissioner suspended for sixty days for violation of rule
requiring safekeeping of funds); Lawyer Disciplinary Board v. McGraw, 194 W.Va. 788,
461 S.E.2d 850 (1995) (public reprimand of Attorney General who violated ethics rule
requiring client confidentiality); Committee on Legal Ethics of the West Virginia State
Bar v. Boettner, 188 W.Va. 1, 422 S.E.2d 478 (1992) (license of former Senate President
who pled guilty to willfully evading payment of federal taxes for failing to report
payment of interest by a third person on a campaign loan suspended for three years);
Committee on Legal Ethics of the West Virginia State Bar v. Grubb, 187 W.Va. 608, 420
20
S.E.2d 744 (1992) (license of inactive member of bar annulled after conviction in federal
court of bribery of public official, mail fraud, conspiracy, witness tampering, obstruction
of justice, RICO, and aiding and abetting); Committee on Legal Ethics of the West
Virginia State Bar v. Moore, 186 W.Va. 127, 411 S.E. 2d 452 (1991) (law license of
former governor who pled guilty to three federal felonies including obstruction of justice
and Hobbs Act violation annulled).
As in all disciplinary cases, however, we remain mindful of our obligation
to consider facts on a case-by-case basis in determining appropriate sanctions:
In disciplinary proceedings, this Court, rather than
endeavoring to establish a uniform standard of disciplinary
action, will consider the facts and circumstances in each case,
including mitigating facts and circumstances, in determining
what disciplinary action, if any, is appropriate, and when the
committee on legal ethics initiates proceedings before this
Court, it has a duty to advise this Court of all pertinent facts
with reference to the charges and the recommended
disciplinary action.
Syl. Pt. 2, Committee on Legal Ethics of the West Virginia State Bar v. Mullins, 159
W.Va. 647, 226 S.E.2d 427 428 (1976), overruled on other grounds by Committee on
Legal Ethics v. Cometti, 189 W.Va. 262, 430 S.E.2d 320 (1993).
As the final arbiters of the discipline to be imposed in this case, we know
we must keep in mind our prior decisions involving public officials generally and
prosecuting attorneys specifically and take into account our responsibility to consider not
only appropriate punishment on a case-by-case basis, but also our goals of achieving a
21
deterrent effect and the restoration of public confidence in the ethical standards of the
legal profession. Given the facts and circumstances of this case, we are not persuaded
that suspending Mr. Plants would achieve the goal of holding him to a higher standard as
a former prosecutor or would send a stronger message than a public reprimand.
In fact, we have previously analyzed the necessity for suspension and have
concluded that in some circumstances this sanction is not necessary to punish the
respondent appropriately or restore public confidence. For example, in Lawyer
Disciplinary Board v. Losch, 219 W.Va. 316, 633 S.E.2d 261 (2006), we concluded,
“[w]e believe that suspension from the practice of law and supervision for one year is not
necessary for the purposes of punishment of the respondent or restoration of public
confidence in the ethical standards of the legal profession.” Id. at 320, 633 S.E.2d at 265.
We see no reason why these same considerations could not arise in a case involving a
public official. Moreover, we have applied this analysis of our prior decisions involving
public officials as demonstrated above by the wide array of sanctions, many less than a
three-month suspension. Moreover, in this specific case, the mitigating factors fully
support the recommendation of the HPS.
The misdemeanor criminal charges against Mr. Plants were dismissed
based upon his full compliance with the requirements of a pre-trial monitoring
agreement. He accepted the ruling removing him from office as prosecuting attorney and
did not extend those proceedings by filing an appeal. Finally, we note that he had no
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prior disciplinary record. We agree with the HPS, which observed that “despite the fact
that [Mr. Plants] held public office at the time of the incidents in question and, as such,
may be held to a higher standard in these proceedings, the sanctions imposed must be
justified by the conduct of Respondent, rather than linked to any publicity the matter may
have received.” The hearing record is replete with testimony regarding personal and
political matters, the discussion of which would not serve our goals for this proceeding.
We conclude that given Mr. Plants’s circumstances as a former prosecutor and current
sole practitioner, suspension would not serve as a greater punishment to him or deterrent
to others than removal from office has already served.
Finally, with respect to the ODC’s request that this Court address the HPS’s
admission of expert testimony on the issue of what conduct violates the West Virginia
Rules of Professional Conduct, we find that the issue is moot. As Justice McHugh noted,
“[t]he law on this point is well settled in West Virginia. ‘Moot questions or abstract
propositions, the decision of which would avail nothing in the determination of
controverted rights of persons or of property are not properly cognizable by a court.’”
State ex rel. Durkin v. Neely, 166 W.Va. 553, 556, 276 S.E.2d 311, 313 (1981) (citing,
inter alia, Syl. Pt. 1, State ex rel. Lilly v. Carter, 63 W.Va. 684, 60 S.E. 873 (1908)). See
also, Syl. Pt. 4 Cline v. Mirandy, 234 W.Va. 427, 765 S.E.2d 583 (2014).
In this case, while the HPS ruled in a pre-hearing motion that the deposition
testimony could be offered into evidence at the disciplinary hearing, the HPS ultimately
23
gave no weight whatsoever to Mr. Davis’s opinions in its report to this Court. Since we
have adopted the HPS’s recommended sanction of public reprimand without modification
in this proceeding, the HPS’s admission of the testimony of Robert M. Davis, Jr. is moot.
Consideration of its admissibility at the hearing below would avail nothing in the
determination of the appropriate sanction to be imposed upon Mr. Plants, which is the
only issue before us. See, e.g., U.S. v. Bernard, 757 F2d 1439 (4th Cir. 1985) (expert
testimony not relied upon by jury in arriving at its verdict on an unrelated charge;
therefore, issue of admissibility of expert’s testimony on appeal of conviction on
unrelated charge is moot).
IV. CONCLUSION
Based upon the foregoing, we impose the following sanctions pursuant to
Rule 3.15 of the Rules of Lawyer Disciplinary Procedure: (1) Public reprimand of Mr.
Plants; and (2) order that Mr. Plants reimburse the Lawyer Disciplinary Board the costs
of the proceedings on the formal statement of charges.
Public Reprimand and Costs.
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