452 S.E.2d 377 (W.Va. 1994), 22315, Committee on Legal Ethics of the West Virginia State Bar v. McCorkle

Docket Nº:22315.
Citation:452 S.E.2d 377, 192 W.Va. 286
Opinion Judge:CLECKLEY, Justice:
Party Name:The COMMITTEE ON LEGAL ETHICS OF THE WEST VIRGINIA STATE BAR, Complainant, v. Thomas H. McCORKLE, A Member of the West Virginia State Bar, Respondent.
Attorney:Sherri D. Goodman, Chief Disciplinary Counsel Committee on Legal Ethics of The West Virginia State Bar Charleston, for complainant. Joseph W. Caldwell, Caldwell, Cannon-Ryan & Riffee, Charleston, for respondent.
Case Date:November 18, 1994
Court:Supreme Court of Appeals of West Virginia

Page 377

452 S.E.2d 377 (W.Va. 1994)

192 W.Va. 286

The COMMITTEE ON LEGAL ETHICS OF THE WEST VIRGINIA STATE

BAR, Complainant,

v.

Thomas H. McCORKLE, A Member of the West Virginia State Bar,

Respondent.

No. 22315.

Supreme Court of Appeals of West Virginia.

November 18, 1994

Submitted Sept. 13, 1994.

Page 378

[192 W.Va. 287] Syllabus by the Court

1. " ' " 'In a court proceeding initiated by the Committee on Legal Ethics of the West Virginia State Bar to annul [or suspend] the license of an attorney to practice law, the burden is on the Committee to prove, by full, preponderating and clear evidence, the charges contained in the Committee's complaint.' Syllabus Point 1, Committee on Legal Ethics v. Pence, [---] W.Va. [----], 216 S.E.2d 236 (1975)." Syl. pt. 1, Committee on Legal Ethics v. Tatterson, W.Va. , 319 S.E.2d 381 (1984).' Syllabus Point 1, Committee on Legal Ethics v. Tatterson, 177 W.Va. 356, 352 S.E.2d 107 (1986)." Syllabus Point 1, Committee on Legal Ethics v. Burdette, 191 W.Va. 346, 445 S.E.2d 733 (1994).

2. "Where there has been a final criminal conviction, proof on the record of such conviction satisfies the Committee on Legal Ethics' burden of proving an ethical violation arising from such conviction." Syllabus Point 2, Committee on Legal Ethics v. Six, 181 W.Va. 52, 380 S.E.2d 219 (1989).

3. 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 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.

4. " ' "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).' Syllabus Point 5, Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989)." Syllabus Point 2, Committee on Legal Ethics v. White, 189 W.Va. 135, 428 S.E.2d 556 (1993).

Sherri D. Goodman, Chief Disciplinary Counsel Committee on Legal Ethics of The West Virginia State Bar Charleston, for complainant.

Joseph W. Caldwell, Caldwell, Cannon-Ryan & Riffee, Charleston, for respondent.

CLECKLEY, Justice:

On June 3, 1994, we received this verified complaint from the West Virginia State Bar Committee on Legal Ethics (Committee) pursuant to Section 19 of Article VI of the Constitution, By-Laws and Rules and Regulations of the West Virginia State Bar. 1 The Committee found that Thomas H. McCorkle, a member of the State Bar, used cocaine and crack cocaine, engaged in improper solicitation of clients, and testified falsely before the Hearing Panel Subcommittee with respect to the solicitation charge. For these violations of the Code of Professional Responsibility, the Committee recommends that Mr. McCorkle's license to practice law in West Virginia be suspended for two years and that he be required to obtain treatment and counseling to deal with his drug and alcohol problems. The Committee further recommends that

Page 379

[192 W.Va. 288] Mr. McCorkle reimburse the Committee for the cost of this disciplinary proceeding, in the amount of $3,583.32, and apply for reinstatement at the end of his suspension. After reviewing the record in this case, we find the Committee's findings to be proper, and we adopt their recommended sanctions.

I.

DISCIPLINARY PROCEEDINGS

  1. Burden of Proof at the Hearing

The Committee is required to prove its allegations against an attorney at law by clear and convincing evidence. In Syllabus Point 1 of Committee on Legal Ethics v. Burdette, 191 W.Va. 346, 445 S.E.2d 733 (1994), we stated the following well established burden of proof:

" ' " 'In a court proceeding initiated by the Committee on Legal Ethics of the West Virginia State Bar to annul [or suspend] the license of an attorney to practice law, the burden is on the Committee to prove, by full, preponderating and clear evidence, the charges contained in the Committee's complaint.' Syllabus Point 1, Committee on Legal Ethics v. Pence, [---] W.Va. [----], 216 S.E.2d 236 (1975)." Syl. pt. 1, Committee on Legal Ethics v. Tatterson, W.Va. , 319 S.E.2d 381 (1984).' Syllabus Point 1, Committee on Legal Ethics v. Tatterson, 177 W.Va. 356, 352 S.E.2d 107 (1986)."

In Committee on Legal Ethics v. White, 189 W.Va. 135, 138, 428 S.E.2d 556, 559 (1993), which involved a situation in which an attorney at law pled guilty to possession of illicit drugs, we stated:

"Where there has been a final criminal conviction, proof of ethical violations is controlled by Syllabus Point 2 of Committee on Legal Ethics v. Six, 181 W.Va. 52, 380 S.E.2d 219 (1989):

" 'Where there has been a final criminal conviction, proof on the record of such conviction satisfies the Committee on Legal Ethics' burden of proving an ethical violation arising from such conviction.' " "

B. Standard Before the Supreme Court on Review

When a disciplinary action is reviewed by this Court, different standards apply. The standards of judicial review applicable in such matters reflect the respective roles and responsibilities of the Committee and this Court in cases involving lawyer discipline.

In Daily Gazette Co., Inc. v. Committee on Legal Ethics, 174 W.Va. 359, 326 S.E.2d 705 (1985), we emphasized that Section 3 of Article VIII of the West Virginia Constitution vests in this Court "the exclusive authority to regulate and control the practice of law in this State." Syllabus Point 1, in part. 2 In the exercise of this plenary authority to regulate and control the practice of law, we have delegated to the State Bar and to the Committee certain administrative, investigative, and adjudicatory functions. In carrying out those functions, the State Bar and the Committee act "as an administrative arm" of the Court. Syllabus Point 2, in part, Daily Gazette, supra,

Thus, our power to control the lawyer disciplinary process is constitutional in origin. When we act pursuant to that power our touchstone must be vindication of the public's interest in the integrity of the administration of justice. 3 In every case involving a review of the results of a Committee disciplinary proceeding, we are cognizant of this solemn

Page 380

[192 W.Va. 289] responsibility owed to the citizens of this State and to the rule of law.

In our prior decisions, however, we have not always been clear as to the standard of judicial review applicable to lawyer disciplinary actions. We have vacillated between the "independent assessment" and "substantial deference" standards. Moreover, we have said that both legal and factual findings of the Committee are entitled to "substantial consideration." 4 Although we believe that these standards are not necessarily incompatible when properly applied, we recognize that when not applied with precision they lack clarity and may cause confusion. Therefore, we take this opportunity to resolve any doubt as to the applicable standard of judicial review.

Different standards apply when we review the Committee's conclusions of law, the application of the law to the facts, and the appropriate discipline as opposed to the Committee's factual findings. This Court reviews de novo questions of law and the appropriateness of a particular sanction. However, with respect to the findings of fact, the appropriate standard of judicial review requires that we defer to the Committee unless the findings are not supported by "reliable, probative and substantial evidence on the whole record." 5

With regard to this standard, we have said in In re Brown, 166 W.Va. 226, 236, 273 S.E.2d 567, 572 (1980):

"[M]ost courts will give some weight to the recommendations of the Ethics Committee that conducts the reinstatement hearing simply because the Committee, having heard the witnesses, is in a better position to evaluate their testimony. This does not mean that the court is foreclosed from making an independent assessment of the record but it does mean absent a showing of some mistake of law or arbitrary assessment of the facts such recommendations made by the Ethics Committee in regard to reinstatement of an attorney are to be given substantial consideration. Tardiff v. State Bar, 27 Cal.3d 395, 612 P.2d 919, 165 Cal.Rptr. 829 (1980); In re Wigoda, 77 Ill.2d 154, [32 Ill.Dec. 341] 395 N.E.2d 571 (1979); In re Hiss, 368 Mass. 447, 333 N.E.2d 429 (1975); In re Freedman, 406 Mich. 256, 277 N.W.2d 635 (1979); Petition of Harrington, 134 Vt. 549, 367 A.2d 161 (1976)." (Emphasis added).

Simply stated, "independent assessment" requires us to engage in what is essentially a de novo review of the record. Even here, we accord due weight to the conclusions and recommendations of the Committee. To ignore these recommendations and conclusions would render the Committee's important adjudicatory role a useless gesture and deprive this Court of the most important benefit of its collective and evaluative judgment.

However, while the Committee's conclusions and recommendations are given respectful consideration, 6 they are not binding

Page 381

[192 W.Va. 290] on this Court. Consistent with the supervisory function mandated by Section 3...

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    ...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). 3. Unlike the evidentiary attorney-client privilege recognized under West Virginia Rules of Evidence 501, a lawyer's......
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    ...court of its primary function as an expositor of the law. Questions of law are reviewed de novo. Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994). The identifying features of questions of law are: (1) they are general; (2) they do not normally rest on the existenc......
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159 cases
  • 461 S.E.2d 850 (W.Va. 1995), 22639, Lawyer Disciplinary Bd. v. McGraw
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • June 19, 1995
    ...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). 3. Unlike the evidentiary attorney-client privilege recognized under West Virginia Rules of Evidence 501, a lawyer's......
  • 464 S.E.2d 181 (W.Va. 1995), 22761, Lawyer Disciplinary Bd. v. Cunningham
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • October 12, 1995
    ...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)." Syllabus Point 2, Lawyer Disciplinary Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995). Sherri D. Goodman, C......
  • 465 S.E.2d 391 (W.Va. 1995), 22702, HN Corp. v. Cyprus Kanawha Corp.
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • November 16, 1995
    ...56, 454 S.E.2d 96, 101 (1994); Adkins v. Gatson, 192 W.Va. 561, 564, 453 S.E.2d 395, 399 (1994); Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994). "Whether a contract is ambiguous is a legal question reviewable by this Court de novo. See Thrift v. Hubbard, 44......
  • 465 S.E.2d 841 (W.Va. 1995), 22084, Stephen L.H. v. Sherry L.H.
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • March 6, 1995
    ...court of its primary function as an expositor of the law. Questions of law are reviewed de novo. Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994). The identifying features of questions of law are: (1) they are general; (2) they do not normally rest on the existenc......
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