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Lawyer Disciplinary Board v. Plants

Supreme Court of West Virginia

June 1, 2017

LAWYER DISCIPLINARY BOARD, Petitioner
v.
MARK S. PLANTS, Respondent

          Submitted: February 7, 2017

         Lawyer Disciplinary Proceeding ID. Nos.: 14-06-187 & 14-06-444

          Joanne M. Vella Kirby Rachel L. Fletcher Cipoletti Office of Disciplinary Counsel Charleston, West Virginia Counsel for the Petitioner.

          James M. Cagle Charleston, West Virginia Counsel for the Respondent.

         SYLLABUS

         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).

         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).

         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 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).

          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 evidence[1] 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 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 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 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 ...


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