Submitted: February 7, 2017
Disciplinary Proceeding ID. Nos.: 14-06-187 & 14-06-444
M. Vella Kirby Rachel L. Fletcher Cipoletti Office of
Disciplinary Counsel Charleston, West Virginia Counsel for
M. Cagle Charleston, West Virginia Counsel for the
"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).
"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).
"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).
"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).
"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).
"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).
"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).
"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).
"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." 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).
"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.
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.
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.
consideration of the parties' briefs and arguments, the
submitted record and pertinent authorities, this Court finds
that there is clear and convincing evidence 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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
Incidents and Criminal Complaints
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 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
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]
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 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.
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.
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
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
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 ...