Committee on Legal Ethics of the West Virginia State Bar v. Hobbs

• Citation: 439 S.E.2d 629,190 W.Va. 606
• Decision Date: 09 December 1993
• Docket Number: No. 21858,21858
• Court: Supreme Court of West Virginia
• Parties: The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR, Complainant, v. Mark HOBBS, a Member of the West Virginia State Bar, Respondent.

Page 629

439 S.E.2d 629

190 W.Va. 606

The COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR, Complainant, v. Mark HOBBS, a Member of the West Virginia State Bar, Respondent.

No. 21858.

Supreme Court of Appeals of West Virginia.

Submitted Nov. 2, 1993.

Decided Dec. 9, 1993.

Syllabus by the Court

1. "Absent a showing of some mistake of law or arbitrary assessment of the facts, recommendations made by the State Bar Ethics Committee ... are to be given substantial consideration." Syl. Pt. 3, in part, In re Brown, 166 W.Va. 226, 273 S.E.2d 567 (1980).

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.' Syllabus Point 3, Committee on Legal Ethics v. Walker, , 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)." Syl. Pt. 2, Committee on Legal Ethics v. Craig, 187 W.Va. 14, 415 S.E.2d 255 (1992).

3. " '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.' Syl. pt. 2, Committee on Legal Ethics v. Mullins, 159 W.Va. 647, 226 S.E.2d 427 (1976). Syllabus Point 2, Committee on Legal Ethics v. Higinbotham, W.Va. , 342 S.E.2d 152 (1986)." Syl. Pt. 4, Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989).

Sherri D. Goodman, Bar Counsel, West Virginia State Bar, Charleston, for complainant.

Robert C. Chambers, Guy R. Bucci L.C., Charleston, for respondent.

PER CURIAM:

In this disciplinary proceeding, the Committee on Legal Ethics of the West Virginia State Bar (Committee) found that Mark Hobbs violated the Code of Professional Responsibility when because of coercion from the circuit judge assigned to his medical malpractice case, he paid a percentage of his fee to the judge's wife and failed to inform anyone of the extortion for almost six years. After a hearing primarily focusing on mitigating factors, the Committee recommended that Mr. Hobbs' license to practice law be suspended for two years and that he be required to pay $1,642.73, the costs of the proceedings. Although Mr. Hobbs acknowledges that his conduct violated the Code of Professional Responsibility, he alleges that the Committee's disciplinary recommendations should not be accepted because the Committee failed to give proper consideration to the climate of fear and corruption that led him to succumb to the judge's pressure and to his voluntary disclosure of the extortion. Based on our independent review of the record, we find that the Committee properly considered the mitigating factors and therefore we adopt their recommended sanctions.

I

With the exception of an eighteen-month association with a small firm immediately after graduation, Mr. Hobbs has practiced alone in Chapmanville, West Virginia since his 1982 graduation from the West Virginia University College of Law. In 1988, Mr. Hobbs was an unsuccessful candidate for prosecuting attorney for Logan County; in 1990, while maintaining his private practice, he became a public defender. In 1992 Mr. Hobbs ran unopposed for prosecuting attorney and took office in January 1993.

Mr. Hobbs' unethical conduct began in May 1986, when Judge J. Neb Grubb, one of the two circuit judges in Logan County, approached Mr. Hobbs about his recently filed medical malpractice case. ¹ Mr. Hobbs was representing Roy Dingess in a wrongful death action, against his wife's obstetrician, her anesthesiologist and Logan General Hospital after she died after giving birth to twins. The Dingess case was assigned to Judge Grubb. Approximately one week after the suit was filed, Judge Grubb requested that Mr. Hobbs, who was meeting in the judge's chambers on another matter, remain. ² When the two were alone, Judge Grubb asked Mr. Hobbs, "Why don't you turn your two hundred and fifty thousand dollar case into a million?" After Mr. Hobbs said "Yeah," the judge informed him that his wife Linda Grubb, who worked as a nurse anesthetist at Logan General Hospital, knew what happened on the morning that Mrs. Dingess died. The judge told Mr. Hobbs, "Talk to Linda. She knows what happened there." Mr. Hobbs testified that he understood the exchange to mean that the judge wanted a share of his case with payment to be made to the judge's wife.

Following that meeting, Mr. Hobbs refrained from informing the local prosecutor's and the sheriff's offices of the judge's proposition because they ran on the same slate as the judge. In his testimony before the Committee, Mr. Hobbs acknowledged that other options were available to him, for example approaching federal prosecutors, the state police, another lawyer, his co-counsel in the malpractice case or one of his former law professors. Mr. Hobbs, however, stated that in 1986, as a sole practitioner, he remained silent because he did not see any options beyond Judge Grubb's influence.

According to Mr. Hobbs, on June 6 or 7, 1986, Mrs. Grubb visited him and told him the name of the nurse on duty when Mrs. Dingess died. Mrs. Grubb said that Mrs. Dingess' anesthesiologist had a "cavalier attitude" toward his patients. Mr. Hobbs maintained that he was already aware of the duty nurse's name and believed that the anesthesiologist's attitude would have been disclosed in discovery. After Mrs. Grubb learned that Mr. Hobbs would be paid a percentage of Mr. Dingess' recovery, she demanded four percent of his fee. Mr. Hobbs admitted that although he expected no help from Mrs. Grubb, he agreed to the fee arrangement because he feared the loss of his "one big case" and feared Judge Grubb might retaliate against him or his client.

While the medical malpractice case was pending, in other matters Judge Grubb jailed Mr. Hobbs for contempt because he was late for a hearing and fined him $100 for late discovery. According to Mr. Hobbs, he was the only lawyer disciplined by the judge. Mr. Hobbs felt the judge used the discipline to keep him cooperative and quiet.

While the malpractice case was still pending, Mr. Hobbs asked the judge if the four percent fee was acceptable. The judge replied affirmatively. After Mr. Dingess retained additional counsel in the malpractice action, Judge Grubb asked Mr. Hobbs if his wife's payment would be affected. ³ Subsequently, Judge Grubb was recused from the malpractice case, but only after Logan General Hospital listed Mrs. Grubb as a potential witness. After the Dingess medical malpractice case was settled before trial for $500,000, Mrs. Grubb asked Mr. Hobbs for $4,000.00 in cash or 4 percent of what she believed to be Mr. Hobbs' fee. (Actually, Mr. Hobbs' fee was $88,000.) On January 29, 1988, Mrs. Grubb went to Mr. Hobbs' office where he paid her $4,000 in cash.

Mr. Hobbs remained silent until after Judge Grubb was indicted by a United States Grand Jury on February 27, 1992. After Judge Grubb's indictment, Mr. Hobbs sought counsel and thereafter contacted the U.S. Attorney's office. Once his lawyer had arranged for immunity, Mr. Hobbs told the federal officials about Judge and Mrs. Grubb's actions in the Dingess case. Based on Mr. Hobbs' information, a superseding indictment was obtained charging Judge and Mrs. Grubb with extortion. In May 1992, although Judge Grubb was found guilty on other matters, he and Mrs. Grubb were acquitted on the extortion charge. ⁴

About a week after the verdict, on May 14, 1992, Mr. Hobbs voluntarily informed the West Virginia State Bar Counsel about his contacts with Judge and Mrs. Grubb.

The Committee charged that in his contacts with Judge Grubb and his wife, Mr. Hobbs violated the following disciplinary rules of the Code of Professional Responsibility: (1) DR 1-102(A)(4) by engaging in dishonest and deceitful conduct; (2) DR 1-102(A)(5) by engaging in conduct prejudicial to the administration of justice; (3) DR 7-110(A) by giving something of value to a judge; and, (4) DR 7-110(B) by communicating with a judge on the merits of a case. ⁵

Because Mr. Hobbs admitted his unethical conduct, the Committee's February 5, 1993 hearing focused on the mitigating circumstances including Judge Grubb's actions and Mr. Hobbs' voluntary admission of the incident. The Committee heard testimony from Marty Allen, a State Police Sergeant who spent six years investigating Judge Grubb. According to Sergeant Allen, Judge Grubb possessed substantial political power in Logan County and people feared he might fabricate criminal charges or even attempt to have them killed. Paul Billups, an Assistant U.S. Attorney, considered Mr. Hobbs' fear of Judge Grubb reasonable and stated that in 1986 although Mr. Hobbs probably could not have received help in Logan County, he could have contacted the U.S. Attorney's Office or other resources outside Logan County. Alvis R. Porter, the Circuit Clerk of Logan County, asserted that Judge Grubb occasionally asked him illegally to fire or hire certain people. Because he did not always cooperate, Mr. Porter believed that Judge Grubb sought to impeach him. Leonard Codispoti, a Magistrate for Logan County, testified that when he reported Judge Grubb's attempts to coerce him into unethical conduct to the State Police, Judge Grubb filed "baseless ethics complaints." ⁶ Roger Perry, a Circuit Court Judge of Logan County, testified that when he practiced before Judge Grubb he...