Committee On Legal Ethics of West Virginia State Bar v. Roark

• Decision Date: 08 June 1989
• Docket Number: No. 18996,18996
• Citation: 382 S.E.2d 313,181 W.Va. 260
• Court: West Virginia Supreme Court
• Parties: COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. James E. ROARK.

Page 313

382 S.E.2d 313

181 W.Va. 260

COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. James E. ROARK.

No. 18996.

Supreme Court of Appeals of

West Virginia.

June 8, 1989.

Syllabus by the Court

1. An attorney convicted of a crime that does not involve moral turpitude can nevertheless be suspended from the practice of law.

2. Disciplinary Rule 8-101 of the Code of Professional Responsibility, relating to a lawyer's conduct as a public official, does not supplant the general prohibition against misconduct contained in Disciplinary Rule 1-102.

3. Ethical violations by a lawyer holding a public office are viewed as more egregious because of the betrayal of the public trust attached to the office.

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.' 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).

5. "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, --- W.Va. ----, 358 S.E.2d 234 (1987).

Jack M. Marden, West Virginia State Bar, Charleston, for Committee on Legal Ethics.

James McIntyre, Charleston, for James E. Roark.

MILLER, Justice:

This is a disciplinary proceeding brought against the respondent, James E. Roark, a licensed attorney. The Legal Ethics Committee of the West Virginia State Bar (Committee) urges that we uphold its recommendation to suspend Mr. Roark's license to practice law for three years, based on his plea of guilty to six counts of the federal misdemeanor offense of possession of cocaine ¹ in the United States District Court for the Southern District of West Virginia. ² The Committee maintains that Mr. Roark is guilty of professional misconduct in violation of DR 1-102(A)(4), (5), and (6) of the Code of Professional Responsibility. ³

The respondent admits the fact of these convictions, ⁴ but claims that the penalty recommended by the Committee is too harsh. The respondent first argues that the offense of possession of cocaine is not a crime involving moral turpitude and, therefore, a three-year suspension is not warranted. This argument misperceives the Committee's case, based on a charge of violating DR 1-102(A)(4), (5), and (6), which does not involve a moral turpitude issue. The moral turpitude prohibition is contained in DR 1-102(A)(3), which states that a lawyer shall not "[e]ngage in illegal conduct involving moral turpitude."

We pointed out in Committee on Legal Ethics v. Six, --- W.Va. ----, 380 S.E.2d 219 1989, that a charge of illegal conduct involving moral turpitude triggers the penalty set out in Article VI, Section 23 of the By-Laws of the West Virginia State Bar, providing that an "attorney shall be disbarred upon proof that he has been convicted ... of any crime involving moral turpitude or professional unfitness." We set out in Syllabus Point 3 of Six our traditional rule:

" ' "Section 23, Part E, Article VI of the By-Laws of the West Virginia State Bar imposes upon any Court before which an attorney has been qualified a mandatory duty to annul the license of such attorney to practice law upon proof that he has been convicted of any crime involving moral turpitude." Point 2, syllabus, In the Matter of Mann, 151 W.Va. 644 .' Syllabus, In Re Smith, 158 W.Va. 13, 206 S.E.2d 920 (1974)."

The Committee, as we have previously pointed out, did not bring a moral turpitude charge. Thus, we have no occasion to consider whether the offenses here are crimes of moral turpitude. Moreover, the recommended penalty here is not an annulment of the respondent's license, but a three-year suspension. ⁵

Furthermore, we made it clear in Committee on Legal Ethics v. Higinbotham, --- W.Va. ----, 342 S.E.2d 152 (1986), that an attorney convicted of a crime that does not involve moral turpitude could nevertheless be suspended from the practice of law. See also Committee on Legal Ethics v. Scherr, 149 W.Va. 721, 143 S.E.2d 141 (1965). In Committee on Legal Ethics v. Walker, --- W.Va. ----, 358 S.E.2d 234 (1987), we considered acts that were criminal in nature, even though not formally charged at the time of the disciplinary proceedings, and found them sufficient to annul the attorney's license.

The respondent's more novel claim is that because he was either the mayor of the City of Charleston or the prosecuting attorney of Kanawha County when these illegal acts occurred, his misconduct must be tested by DR 8-101, which relates to "Action as a Public Official." ⁶ He further argues that since he did not violate DR 8-101, the Committee was foreclosed from charging him under other Code sections, in effect asserting that DR 8-101 preempts all other sections of the Code where the respondent is a public official. This claim is not based on any case authority, but on the doctrine of expressio unius est exclusio alterius, which we defined in Syllabus Point 3 of Manchin v. Dunfee, --- W.Va. ----, 327 S.E.2d 710 (1984): "In the interpretation of statutory provisions the familiar maxim expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of another, applies."

We question the applicability of this rule to the Code of Professional Responsibility. The Code regulates a variety of separate subjects relating not only to the practice of law, but also to the general conduct of an attorney. ⁷ It cannot be said that the expression in any one topic is designed to exclude other designated topics. Furthermore, it is generally held that the expressio unius doctrine is limited to situations where the language clearly suggests a contrast between what is expressed and what is impliedly omitted. Estate of Banerjee, 21 Cal.3d 527, 147 Cal.Rptr. 157, 580 P.2d 657 (1978); Wade v. Commonwealth, 303 S.W.2d 905 (Ky.1957). See 73 Am.Jur.2d Statutes § 212 (1974); 2A Sutherland Stat.Constr. §§ 47.23-47.25 (4th ed. 1984). Here we do not find this to be the case.

It is apparent that DR 8-101 is designed to provide a special set of duties surrounding the lawyer's action as a public official and which relate specifically to his public office. See Graf v. Frame, --- W.Va. ----, 352 S.E.2d 31 (1986). It cannot be read to cover or exclude all of the other disciplinary rules that a lawyer might violate when not acting as a public servant.

The design of the Code is such that while specific areas of concern are covered, there is also general disciplinary language in DR 1-102 to control a lawyer's personal misconduct. It is in this area that the charges against the respondent are rooted. Consequently, we hold that DR 8-101, relating to a lawyer's conduct as a public official, does not supplant the general prohibition against misconduct on the part of lawyers contained in DR 1-102.

We turn now to the proposed penalty. In Syllabus Point 2 of Higinbotham, supra, we spoke to our settled rule that rather than attempt to establish a schedule of punishment, we would make an individualized assessment:

" '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)."

In Syllabus Point 3 of Committee on Legal Ethics v. Walker, supra, we outlined some of the major factors that should be considered in determining a disciplinary penalty:

"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."

In mitigation of punishment, the respondent points to testimony before the Committee that he was an active member of a local church in Charleston and that he was elected to the church vestry and asked to remain even after his convictions. He worked in a church-sponsored program which provided meals to underprivileged citizens both before his guilty pleas and after his release from prison. Other witnesses testified that the respondent carried out his duties as mayor and as prosecuting attorney of Kanawha County with dedication and efficiency. These witnesses also indicated that the respondent's drug use was unknown to them, that he never appeared to be under the influence of any drugs, and that while prosecuting attorney, he never attempted to interfere with or influence the prosecution of drug offenders. Finally, in his testimony before the Committee, the respondent himself acknowledged the gravity of his offenses and his personal anguish and contrition over allowing these acts to occur.

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