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Lawyer Disciplinary Board v. Campbell

Supreme Court of West Virginia

November 17, 2017

LAWYER DISCIPLINARY BOARD, Petitioner
v.
SARAH CAMPBELL, Respondent

          Submitted: October 4, 2017

         Lawyer Disciplinary Proceeding No. 15-03-311

          Rachael L. Fletcher Cipoletti Office of Disciplinary Counsel Charleston, West Virginia Counsel for the Petitioner

          M. Timothy Koontz Law Offices of M. Timothy Koontz Charleston, West Virginia Counsel for Respondent

          Sidney Bell Attorney at Law Beaver, West Virginia Counsel for the Respondent

         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');">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');">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');">178 W.Va. 150, 358 S.E.2d 234 (1987).

         4. "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');">159 W.Va. 647, 226 S.E.2d 427 (1976), overruled on other grounds by Committee on Legal Ethics v. Cometti, 189 W.Va. 262');">189 W.Va. 262, 430 S.E.2d 320 (1993).

         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');">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 Board v. Scott, 213 W.Va. 209');">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 Board v. Scott, 213 W.Va. 209');">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 Board v. Scott, 213 W.Va. 209');">213 W.Va. 209, 579 S.E.2d 550 (2003).'

          OPINION

          WALKER, JUSTICE:

         The Hearing Panel Subcommittee (HPS) of the Lawyer Disciplinary Board (LDB) found that Respondent Sarah Campbell violated two provisions of the West Virginia Rules of Professional Conduct and recommended that she be admonished and ordered to pay the costs of these proceedings. Ms. Campbell does not challenge the recommendations of the HPS; however, the Office of Disciplinary Counsel (ODC) of the LDB objected to the sanctions. This matter comes before this Court upon the objections of the ODC.

         Based upon the parties' stipulations, the ODC asserts that the appropriate sanction is a suspension of Ms. Campbell's license to practice law for sixty days with automatic reinstatement, six months of supervised practice following her suspension, and that she be required to pay the costs of these proceedings.

         In order to resolve this case, we must consider whether a sexual relationship between an attorney and her client predates the attorney-client relationship. Given the long history of the relationship in this case, we find that it does.

         1

         Even so, this Court finds that there is clear and convincing evidence[1] to support the findings of the HPS that Ms. Campbell violated Rules 4.1 and 8.4(c) of the Rules of Professional Conduct because she misrepresented to her supervisor the nature of her relationship with a client. For the reasons explained below, we adopt the sanctions recommended by the HPS.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Ms. Campbell is a lawyer practicing in Summersville, West Virginia who was admitted to the West Virginia State Bar on October 24, 2013. This proceeding arises from the July 30, 2014 complaint filed by Samuel R. White, Nicholas County Assistant Prosecutor, pursuant to his mandatory reporting obligations under Rule 8.3 of the Rules of Professional Conduct.[2]

         A. Underlying Facts and Allegations

         In 2002, Ms. Campbell and Mr. H began a romantic relationship; at the time, she was fourteen and he was sixteen years old.[3] In 2003, this relationship became sexual and continued intermittently until December 2013, when both parties decided to pursue other romantic partners.

         In October 2013, Ms. Campbell was admitted to practice law in West Virginia and began working for the Nicholas County Public Defender's Office. In April 2014, having practiced law for only six months, Ms. Campbell was appointed to represent Mr. H. in an abuse and neglect proceeding.[4] Shortly thereafter, Mr. H. was arrested on felony charges stemming from the abuse and neglect proceeding and Ms. Campbell was again appointed to represent him.

         That same month, due to the nature of their relationship and fully complying with her obligations under Rule 1.7(b), Ms. Campbell initiated a discussion with Mr. H. about her continued representation.[5] Mr. H. verbally waived the conflict and asked Ms. Campbell to continue representation, adding that he believed it would "lead to more zealous representation."[6]

         In September 2014, Mr. H. told Ms. Campbell he was in love with her and asked her to restart the relationship. At that time, Ms. Campbell advised Mr. H. that they should speak with her supervisor, Chief Public Defender Cynthia Stanton, to make her aware of the preexisting sexual relationship. Mr. H. insisted on seeing Ms. Stanton alone and Ms. Campbell obliged.

         During this private meeting, Mr. H. told Ms. Stanton that he was in love with Ms. Campbell, but failed to disclose the prior relationship or that Ms. Campbell had feelings for him as well. As a result, Ms. Stanton believed that Mr. H. was merely asking for permission to date Ms. Campbell. At the same time, Mr. H. led Ms. Campbell to believe that he told Ms. Stanton everything about the preexisting relationship and that she was fine with its continuance.[7] During this meeting, Ms. Stanton did not question Ms. Campbell about the relationship and Ms. Campbell did not inquire as to the extent of Ms. Stanton's knowledge of it. Still operating on inaccurate information, Ms. Stanton advised Ms. Campbell that she did not believe a judge would grant a motion to withdraw from representation of Mr. H. and that she believed continued representation would be appropriate.

         Ms. Campbell met again with Mr. H. and indicated for a second time that he could request new counsel, but informed him that she did not have a problem moving forward with representation. Shortly thereafter, Ms. Campbell and Mr. H. resumed sexual relations. From roughly October 2014 until May 2015 (when Mr. H. was indicted), aside from appointments related to his case, Ms. Campbell saw Mr. H. socially a maximum of five or six times.

         In July 2015, Assistant Prosecutor White received information from Trooper Daniel White concerning a possible relationship between Ms. Campbell and Mr. H. Trooper White obtained this information during a home confinement check performed at Mr. H.'s residence. Trooper White confronted Mr. H. regarding the allegation that he was dating Ms. Campbell. Upon requesting Mr. H.'s phone, Trooper White observed "no less than seven (7) photographs" of Ms. Campbell, including "one that appeared to be [Ms. Campbell] in lingerie" on the phone. During this encounter, Mr. H. told Trooper White he was in love with Ms. Campbell and was actively seeking other representation for his criminal proceedings. During the home confinement check, which resulted in a finding of no violations by Mr. H., Trooper White also met with the owner of the home, Mr. H.'s aunt, Alma Varner. Ms. Varner provided a written statement that Mr. H. was dating Ms. Campbell.

         Prior to filing his complaint with the ODC, Assistant Prosecutor White advised Ms. Stanton of the allegations. Ms. Stanton contacted Ms. Campbell by telephone and asked if the allegations were true, alerting her that her job depended on the response. Ms. Campbell denied having a sexual relationship with Mr. H. Immediately thereafter, Ms. Campbell filed a motion to withdraw as Mr. H.'s counsel and Assistant Prosecutor White filed the disciplinary complaint against Ms. Campbell. Mr. H.'s new counsel made a notice of appearance in the case that same week. Based upon Ms. Campbell's denial of the allegations, Ms. Stanton advised the Public Defender's Corporation board members and the Circuit Court of Nicholas County that the allegations were unfounded.

         In August 2015, ODC sent Ms. Campbell a letter with the complaint. Ms. Campbell filed a three-sentence affidavit in which she stated her name and that she was an assistant public defender in Nicholas County and denied violating the Rules of Professional Conduct. Ultimately, in December 2015, Mr. H. pled guilty to two counts of the misdemeanor offense of Sexual Abuse in the 3rd Degree and registered with the Sex Offender Registry. At this time, the sexual relationship between Mr. H. and Ms. Campbell ended by mutual agreement.[8]

         On April 21, 2016, Ms. Campbell called Ms. Stanton to inform her she had lied about not having sexual relations with Mr. H. when directly asked in July 2015. The following day, Ms. Campbell appeared for a sworn statement at ODC pursuant to a subpoena duces tecum and testified that her relationship with Mr. H. predated her representation of him and that despite not believing there was a conflict, she nonetheless advised him of it and obtained his consent. Ms. Campbell admitted that Ms. Stanton informed her of Mr. H.'s desire to have a relationship with her and that Ms. Stanton told her not to pursue a relationship until the attorney-client relationship concluded, but that she resumed the relationship anyway in October 2014. Ms. Campbell admitted that she sent photographs to Mr. H. via her smart phone on several occasions, but denied that she was wearing lingerie in any of them.

         A few days later, the ODC received a letter from Ms. Stanton indicating that neither Ms. Campbell nor Mr. H. had advised her of their sexual relationship until Ms. Campbell telephoned her the evening of April 21, 2016. In the letter, Ms. Stanton stated that, had she known, she would have advised Ms. Campbell appropriately.

         In a May 2016 sworn statement, Ms. Campbell addressed the misrepresentations made to Ms. Stanton and denied violating the Rules of Professional Conduct, stating that the relationship began when the two were in junior high school and continued intermittently until 2013, when it dissipated but did not end.

         B. Charges by the Lawyer Disciplinary Board

         The LDB filed a formal Statement of Charges on November 2, 2016, alleging that Ms. Campbell violated Rules 1.7(b) (conflict of interest), [9] Rule 1.8(j) (conflict of interest/prohibition on sexual relations with a client), [10] Rule 8.4(d) (misconduct), [11] and Rule 8.1(a) (false statements of material fact).[12]

         The ODC and Ms. Campbell reached an agreement to resolve the matter under the following terms: (1) that Ms. Campbell's law license be suspended for 60 days; (2) that upon her suspension, she must comply with the mandates of Rule 3.28 of the Rules of Lawyer Disciplinary Procedure; (3) that she be subject to automatic reinstatement of her law license; (4) that upon reinstatement of her law license, she would be subject to six months of probation with supervised practice; and (5) that she be ordered to pay the costs of these proceedings pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure.

         C. Report of the Hearing Panel Subcommittee

         Following a hearing on March 2, 2017, the HPS filed a report with this Court on June 12, 2017. Providing a detailed analysis of the testimony and other evidence presented at the hearing, the HPS found that the evidence did not establish that Ms. Campbell violated any of the Rules of Professional Conduct asserted by the LDB, but did find violations of Rules 4.1 (truthfulness in statements to others) and 8.4(c) (misconduct generally).[13] The HPS evaluated Ms. Campbell's conduct in accordance with applicable standards to determine whether discipline should be imposed, including mitigating and aggravating factors, and concluded that she should be sanctioned with an admonishment and with payment of the costs of these proceedings.

         The HPS concluded that Ms. Campbell violated Rule 4.1 by denying the existence of a past or current sexual relationship with her client. It also concluded that Rule 8.4 was violated because she failed to inform her employer of the relationship, she further denied the existence of the relationship, and she engaged in a sexual relationship with her client when she knew that such conduct violated her employer's prohibitions.

         However, as previously stated, the HPS concluded that Ms. Campbell did not violate any of the rules alleged by the LDB. The HPS found no violation of Rule 1.7, deeming it sufficient that Ms. Campbell had consulted with Mr. H. and obtained his consent for the representation, and because there was no evidence that Ms. Campbell's representation of Mr. H. was materially limited by her personal interest. The HPS further concluded that Ms. Campbell did not violate Rule 1.8(j), because a consensual sexual relationship had existed for more than ten years at the commencement of the representation. The HPS also concluded that Ms. Campbell did not violate Rule 8.1(a) because, for the reasons stated above, she believed that her client had informed Ms. Stanton of the relationship, and therefore she had not made a false statement. Finally, the HPS concluded that Ms. Campbell did not violate Rule 8.4(d) after finding that the relationship itself was not prohibited.

         As for the imposition of an appropriate sanction, the HPS concluded that Ms. Campbell violated two rules, both stemming from misrepresentations made to her supervisor and her actions following those misrepresentations, and further concluded that there were no aggravating factors. Rather, the HPS concluded that there were seven mitigating factors: (1) Ms. Campbell had no prior disciplinary record; (2) Ms. Campbell, licensed in 2013, had little to no experience in the practice of law; (3) Ms. Campbell expressed true remorse at her disciplinary proceedings; (4) Ms. Campbell's supervisor, the one person most affected by the rules violation, believes that a sanction of suspension is too harsh;[14] (5) the disciplinary proceeding itself has made Ms. Campbell endure humiliating and embarrassing situations with judges and others in her small legal community, and such conditions are likely to follow her for years to come; (6) given its heavy caseload and limited staff, the public defender's office where Ms. Campbell works, and the public more generally, would suffer unnecessary hardship if a sanction of suspension was imposed; and (7) there are no victims in this case and no one was harmed by Ms. Campbell's conduct.

         In addition to the mitigating factors listed above, the HPS was particularly troubled by the fact that the disciplinary complaint was filed by opposing counsel in ongoing litigation. This fact is even more pronounced considering the investigation of the relationship ensued within 24 hours of Ms. Campbell having refused to grant a continuance to accommodate the complainant - the prosecutor - in the case against Mr. H.

         Although Ms. Campbell agreed with the HPS's recommended disposition, the ODC filed an objection on the grounds that the sanctions were not sufficiently harsh. Instead, the ODC recommends that we impose the sanctions contemplated in its agreement with Ms. Campbell. Although Ms. Campbell has agreed to the sanctions recommended by the ODC and has also agreed to the sanctions recommended by the HPS, by virtue of the fact that the ODC and HPS disagree, this Court must determine the appropriate sanction to address the severity of the violations of the Rules of Professional Conduct.[15]

         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 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.[16]

         While we respectfully consider the HPS's recommendations on the sanction, "[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."[17] We are ...


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