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Lawyer Disciplinary Board v. Wolfe

Supreme Court of West Virginia

May 31, 2019

LAWYER DISCIPLINARY BOARD, Petitioner
v.
JENNIFER M. WOLFE, A MEMBER OF THE WEST VIRGINIA STATE BAR, Respondent

          Submitted: April 23, 2019

          Lawyer Disciplinary Proceeding I. D. No. 16-03-311

          Jessica H. Donahue Rhodes, Esq. Lawyer Disciplinary Counsel Office of Lawyer Disciplinary Counsel Counsel for the Petitioner

          J. Michael Benninger, Esq. Benninger Law, PLLC Counsel for the Respondent

          ARMSTEAD, JUSTICE delivered the Opinion of the Court.

          OPINION

          ARMSTEAD, JUSTICE.

         SYLLABUS BY THE COURT

         1."A de novo standard applies to a review of the adjudicatory record made before the Committee on Legal Ethics of the West Virginia State Bar [currently the Hearing Panel Subcommittee of 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 Committee's recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the Committee'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).

         2. "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).

         This case is before this Court upon the report and recommendations of the Hearing Panel Subcommittee of the Lawyer Disciplinary Board regarding the license to practice law of Jennifer M. Wolfe ("Wolfe"). Ms. Wolfe was admitted to the Bar in 2014 and is subject to the disciplinary jurisdiction of this Court.

         The Hearing Panel Subcommittee found that Wolfe committed violations of the West Virginia Rules of Professional Conduct which resulted from her acknowledged drug abuse and dependency. Wolfe formally disengaged from the active practice of law on October 22, 2018.[1] The recommendations of the Hearing Panel Subcommittee include the suspension of Wolfe's license to practice law for one year and six months and her mandatory participation in the evaluation and treatment protocols established by the West Virginia Judicial and Lawyer Assistance Program. The Office of Disciplinary Counsel consents to the recommendations. Wolfe asks that her suspension be limited to six months.

         Upon review, this Court confirms the findings and conclusion set forth in the report of the Hearing Panel Subcommittee, and we adopt the Subcommittee's recommendations in their entirety. This Court holds, however, that the one year and six month suspension of Wolfe's license to practice law shall be retroactive to October 22, 2018, the date Wolfe formally disengaged from the active practice of law.

         I. Factual and Procedural Background

         On October 12, 2017, the Investigative Panel of the Lawyer Disciplinary Board filed a Statement of Charges formally charging Wolfe with violations of the Rules of Professional Conduct. The Statement of Charges referred to the following occurrences:

On June 13, 2016, local police officers executed a search warrant of Wolfe's Jackson County residence in search of Jack Greene, a fugitive from justice. Wolfe, outside the residence when the police arrived, stated that Greene was not in the residence, that she had not seen him, and that she did not know where he was. The police entered the residence, found Greene in the bedroom and placed him under arrest. A handgun was observed on the nightstand by the bed. The police found drug paraphernalia in the residence, along with a white, crystal substance believed to be crystal methamphetamine. According to the Statement of Charges, Wolfe's two year old child was present at that time.

          As a result of the June 13, 2016, incident, Wolfe was charged in the Magistrate Court of Jackson County with the misdemeanor offenses of possession of a controlled substance and obstructing an officer and the felony offense of child neglect creating risk of injury.[2] In March 2017, the controlled substance and obstructing an officer charges were resolved through Wolfe's entry into a pretrial diversion program. The child neglect creating risk of injury charge was bound over to the Circuit Court of Jackson County but dismissed nolle prosequi by order entered on June 22, 2017.

         The Statement of Charges further alleged that, during a urine drug screen conducted on July 5, 2016, a tube containing liquid was observed taped to Wolfe's body. According to the police report, Wolfe stated that she had worn the tube to pass the drug screen but decided to be honest and abandoned the plan. During the screen, Wolfe urinated as required. Both liquids, however, field-tested positive for controlled substances (amphetamines and methamphetamine). The resulting criminal charge was also resolved through pretrial diversion. Finally, the Statement of Charges alleged that Wolfe wrote a worthless check on May 8, 2016, payable to Foodfair in the amount of $148.48. Denying intentional misconduct, Wolfe maintained that she wrote the check on an account which had been closed by the bank without her knowledge. Wolfe entered a no contest plea to the charge and was assessed a fine, costs and restitution.[3]

         Wolfe self-reported to the Office of Disciplinary Counsel that she had been charged with possession of a controlled substance, obstructing an officer and child neglect creating risk of injury. Upon inquiry, the Investigative Panel found probable cause to charge Wolfe in the October 12, 2017, Statement of Charges with a violation of Rule 8.4. (b) of the Rules of Professional Conduct. Rule 8.4. (b) states that it 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." The violation of Rule 8.4. (b) was based on the Investigative Panel's conclusion that Wolfe possessed a controlled substance and obstructed an officer, and that she attempted to defeat the drug screen and wrote a worthless check.

         In addition, based on Wolfe's attempt to defeat the drug screen and writing a worthless check, the Investigative Panel found probable cause to charge Wolfe with a violation of Rule 8.4. (c) which states that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

         An evidentiary hearing was conducted before the Hearing Panel Subcommittee in April 2018, and on September 11, 2018, the Subcommittee filed its report and recommendations in this Court. The Hearing Panel Subcommittee found by clear and convincing evidence that Wolfe was guilty of (1) possession of a controlled substance in violation of W.Va. Code, 60A-4-401 [2011], (2) attempting to defeat a drug and alcohol screening test in violation of W.Va. Code, 60A-4-412 [2007], and (3) writing a worthless check in violation of W.Va. Code, 61-3-39a [2007].[4] Consequently, the Hearing Panel Subcommittee concluded that Wolfe violated Rule 8.4. (b) of the West Virginia Rules of Professional Conduct. Based on the drug screen and worthless check violations, the Subcommittee also concluded that Wolfe violated Rule 8.4. (c).

         As a result of Wolfe's violations of the Rules of Professional Conduct, the Hearing Panel Subcommittee recommends that this Court adopt the following sanctions ...


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