Submitted: February 6, 2018
Disciplinary Proceeding Nos. 15-03-283, 15-03-285, 15-03-288
N. Frymyer, Esq. Office of Disciplinary Counsel Charleston,
West Virginia Counsel for the Petitioner.
Benjamin F. White, Esq. Chapmanville, West Virginia
BY THE COURT
"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).
"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).
"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).
"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 Court [West Virginia
Court of Appeals] or Board [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 Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495');">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 Board v.
Scott, 213 W.Va. 209');">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 Board v. Scott, 213 W.Va. 209');">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 Board v.
Scott, 213 W.Va. 209');">213 W.Va. 209, 579 S.E.2d 550 (2003).
"A person named in a disciplinary proceeding before this
Court, who, after the Hearing Panel Subcommittee has filed
its Report with recommended sanctions, commits a violation of
the Rules of Professional Conduct related to the facts in the
underlying complaint may be subject to an increased degree of
discipline. Such subsequent misconduct may be relied upon by
this Court as an aggravating factor that justifies
enhancement of the recommended sanctions of the Hearing Panel
Subcommittee." Syllabus Point 7, Lawyer Disciplinary
Board v. Grafton, 227 W.Va. 579');">227 W.Va. 579, 712 S.E.2d 488 (2011).
F. White is a lawyer who convinced A.S. to hire him as
counsel after A.S. was charged with one count of felony child
neglect in April 2015. Mr. White never discussed (or
documented) his fee arrangement with A.S., but immediately
pursued an intimate relationship with her. Mr. White took
A.S. on out-of-town trips, during which he provided her with
alcohol and drugs - causing her to violate the terms of her
probation - and engaged in sexual relations with her. A.S.
eventually reported Mr. White's conduct and he was
promptly removed as her counsel in June 2015. Mr. White was
charged with violating six separate provisions of the West
Virginia Rules of Professional Conduct, but he failed to
respond to the formal statement of charges. Following a
hearing at which both Mr. White and A.S. testified, the
Hearing Panel Subcommittee (HPS) of the Lawyer Disciplinary
Board (LDB) recommended that Mr. White be suspended from the
practice of law for five years. Upon consideration of Mr.
White's egregious conduct, including the additional
aggravating factor that Mr. White disregarded this
Court's order to file a responsive brief, we order that
his license be annulled.
FACTUAL AND PROCEDURAL BACKGROUND
White is a lawyer practicing in Chapmanville, West Virginia
who was admitted to the West Virginia State Bar on November
2, 2005. Mr. White was previously reprimanded in 2014.
Additionally, Mr. White's license was administratively
suspended on November 13, 2017 for nonpayment of dues and
noncompliance with the financial responsibility disclosure
requirement, but was reinstated on February 2, 2018 after
complying with both. The current proceeding arises from three
lawyer ethics complaints filed against Mr. White in July
2015-all stemming from allegations of misconduct in relation
to his representation of A.S. in a felony criminal
Underlying Facts and Allegations
October 2014, Mr. White sent A.S. a Facebook friend request
and began sending her messages through that social media
platform. Throughout early 2015, though Mr. White and A.S.
communicated online occasionally about her ongoing divorce
proceeding, she testified that she did not consider him to be
her attorney. The nature of their relationship changed,
however, on April 22, 2015, when A.S. was charged with one
felony count of gross child neglect. A.S. was appointed
representation, but after speaking with Mr. White-who advised
her that court appointed attorneys "were not as good as
[him]"-she requested that the public defender be removed
as counsel. Although Mr. White and A.S. did not reduce his
representation to a formal written agreement or set his rate
of pay, Mr. White filed a Notice of Appearance on May 19,
representation began, Mr. White came to A.S.'s residence
unannounced on several occasions. Though A.S. acknowledges
that they had a friendship beyond the usual attorney-client
relationship, she testified that she felt that he was
"pushy and bullish" during this time. Because Mr.
White never asked for payment for his services, A.S.
testified that she felt obligated to be friendly with him and
that she didn't feel like she could turn down his
requests, specifically testifying that she felt that "if
she quit having anything to do with him, then he wasn't
going to be [her] lawyer anymore."
plea hearing on May 28, 2015, A.S.'s home confinement was
suspended and she was placed on probation. Immediately
afterward, Mr. White insisted that they drive to Charleston
to "celebrate." Once in Charleston, Mr. White took
A.S. to dinner and purchased alcoholic drinks for her,
despite knowing that her consumption of those drinks would
violate her probation. On their way home, in the early
morning hours of May 29, 2015, Mr. White took her to the ATV
resort he owns and they engaged in sexual relations for the
following week, Mr. White and A.S. traveled together again
when she accompanied him to Louisville, Kentucky for an ATV
convention. Mr. White told her not to mention to anyone at
the convention that he was her lawyer. On the way to
Louisville, Mr. White gave A.S. an entire bottle of Xanax. In
addition to ingesting a number of those pills, she consumed
alcohol that was also provided by Mr. White and the two again
engaged in sexual relations.
the Louisville trip, Mr. White threatened to "put [A.S.]
in jail" for one year for leaving her required
alternative sentencing program classes early, despite her
having permission to do so. On one such occasion, Mr. White
came to the location where A.S. attended classes and began
questioning other workers as to her whereabouts. One of the
workers told Mr. White that A.S. left in a gold Suburban and
Mr. White asked a friend on the police department to stop the
automobile in an attempt to find her. When Mr. White and A.S.
next spoke, A.S. told Mr. White that she was upset that he
had involved the police because she could have been arrested.
According to A.S.'s testimony, Mr. White responded,
"that would have been good for [her]" and
"that's what [she] need[s]." A.S. testified
that after this encounter she was paranoid that he would try
to "set her up." Notwithstanding this concern, Mr.
White and A.S. ultimately reconciled and were on "good
terms for a week." During this time, Mr. White and A.S.
again traveled to Charleston and engaged in sexual relations.
Once more, Mr. White purchased alcohol for A.S. while she was
still on probation.
this time, Mr. White continued serving as A.S.'s lawyer
by filing various motions. A.S. testified that she believed Mr.
White filed motions relating to her plea solely to remain
involved with her case. Mr. White also gave A.S.'s
children gifts during his representation and paid to have her
cell phone fixed.
22, 2015, A.S. told A.S.'s community service manager, Ms.
Maynard, about Mr. White's behavior. Ms. Maynard
accompanied A.S. to Judge Thompson's office, where A.S.
requested a new lawyer. On June 24, 2015, Mr. White was
removed as counsel and Theresa McCune was appointed to
represent her. A.S.'s probation was ultimately revoked
due to a failed drug screen and she was sentenced to jail as
a result. A.S. testified that the situation with Mr. White
was very stressful and embarrassing, and had occurred at a
very vulnerable time in her life. She cited her
"downfall" as the prescription Xanax Mr. White had
provided to her.
Charges by the Lawyer Disciplinary Board
review of the three complaints filed against Mr. White, the
Investigative Panel of the LDB filed a formal Statement of
Charges on October 26, 2016, alleging that Mr. White violated
the following Rules of Professional Conduct: Rule 1.7(a)(2)
(conflict of interest; current clients),  Rule 1.8(e)
(conflict of interest/prohibition on providing financial
assistance to a client),  Rule 1.8(j) (conflict of
interest/prohibition on sexual relations with a client),
Rule 4.2 (prohibition on communication with persons
represented by counsel),  Rule 1.5(b) (requiring communication of
scope of representation, fees, and expenses),  and Rule 8.4(d)
(misconduct). Further, the LDB listed-as an aggravating
factor-a prior disciplinary offense, which resulted in this
Court issuing a reprimand for Mr. White's violation of
Rules 1.15(b) and (c) (safekeeping property).
Statement of Charges was served upon Mr. White on November
10, 2016,  when he appeared for the Scheduling
Conference. He verbally agreed to accept service as of that
date. But, Mr. White failed to respond to these formal
charges as required by Rule of Lawyer Disciplinary Procedure
(RLDP) 2.12. Accordingly, the Office of Disciplinary
Counsel (ODC) filed a Motion to Deem Admitted the Factual
Allegations in the Statement of Charges. The ODC also filed a
Motion to Exclude Testimony of Witnesses and Documentary
Evidence or Testimony of Mitigating Factors because Mr. White