Lawyer Disciplinary Bd. v. Plants
| Citation | 801 S.E.2d 225 |
| Decision Date | 01 June 2017 |
| Docket Number | No. 15-0957,15-0957 |
| Court | Supreme Court of West Virginia |
| Parties | LAWYER DISCIPLINARY BOARD, Petitioner v. Mark S. PLANTS, Respondent |
Joanne M. Vella Kirby, Rachael L. Fletcher Cipoletti, Office of Disciplinary Counsel, Charleston, West Virginia, Counsel for the Petitioner
James M. Cagle, Charleston, West Virginia, Counsel for the Respondent
This lawyer disciplinary proceeding is before the Court upon the written objection of the Office of Disciplinary Counsel ("ODC") of the Lawyer Disciplinary Board ("LDB") to the sanctions recommended by the Hearing Panel Subcommittee ("HPS") of the LDB. The HPS found that Respondent Mark S. Plants violated three provisions of the West Virginia Rules of Professional Conduct and recommended that Mr. Plants be publicly reprimanded and pay the costs of these proceedings. Mr. Plants does not challenge the recommended sanctions.
The ODC asserts that the appropriate sanction in this case is a suspension of Mr. Plants's license to practice law for three months based upon the seriousness of the violations involving domestic battery and the knowing violation of a court order by this former elected prosecuting attorney. The ODC also urges this Court to address the admissibility of expert testimony offered on the issue of violations of the West Virginia Rules of Professional Conduct.
Upon consideration of the parties' briefs and arguments, the submitted record and pertinent authorities, this Court finds that there is clear and convincing evidence1 to support the findings of the HPS that Mr. Plants violated Rules 1.7(b), 3.4(c) and 8.4(b) and (d) of the West Virginia Rules of Professional Conduct. For the reasons explained below, we adopt the sanctions recommended by the HPS.
Mr. Plants has been licensed to practice law in the State of West Virginia since 2004. He was elected prosecuting attorney of Kanawha County in 2008 and re-elected in 2012. The underlying charges involve conduct that occurred in 2014 while he was the prosecuting attorney. Since his removal from elected office in October of 2014, Mr. Plants has practiced law as a sole practitioner in South Charleston.
The charges filed by the ODC against Mr. Plants arose out of two incidents that resulted in criminal complaints against him. First, on February 26, 2014, Allison Plants, Mr. Plants's ex-wife ("Ms. Plants"), reported to the West Virginia State Police that Mr. Plants had injured their son by whipping him with a belt. The next day, Ms. Plants filed a Domestic Violence Petition seeking protection for herself and their two minor children. The magistrate/family court issued a Domestic Violence Emergency Protective Order ("Emergency Protective Order") on February 27, 2014, concluding that Ms. Plants had proved "the allegations of domestic violence or abuse by clear and convincing evidence of immediate and present danger of abuse."
The Emergency Protective Order provided that Mr. Plants (1) "shall refrain from abusing, harassing, stalking, threatening, intimidating or engaging in conduct that places [Ms. Plants and the two children] ... in reasonable fear of bodily injury"; (2) "shall refrain from contacting, telephoning, communicating with, harassing, or verbally abusing [Ms. Plants]"; (3) "shall refrain from entering any school, business, or place of employment of [Ms. Plants]"; and (4) "shall refrain from entering or being present in the immediate environs of [Ms. Plants's] residence."
On March 17, 2014, while the Emergency Protective Order was in effect, Ms. Plants reported that in the parking lot at the Fruth Pharmacy in Charleston, West Virginia, Mr. Plants spoke to their two children at her vehicle and then spoke to her. During the hearing before the HPS, Mr. Plants admitted that he spoke with his children but denied that he communicated with Ms. Plants. Mr. Plants further acknowledged that he was aware of the terms of the Emergency Protective Order at the time of this incident. The evidence adduced during the hearing was that as Mr. Plants was exiting Fruth Pharmacy, Ms. Plants entered the same location. After exiting Fruth Pharmacy, Mr. Plants observed his children waving to him from inside Ms. Plants's car in the parking lot and he walked over to speak with them. After Ms. Plants returned to her car, Mr. Plants walked away. The next day, the State Police filed a criminal complaint in magistrate court charging Mr. Plants with violating the Emergency Protective Order based upon this incident.
On March 21, 2014, the family court modified the Emergency Protective Order according to an agreement between the parties. Among other things, the modified Emergency Protective Order permitted Mr. Plants to have supervised visitation with the children and to communicate with the children. Except as otherwise agreed by the parties, the original terms of the Emergency Protective Order continued in full force and effect.
On March 31, 2014, the State Police filed a criminal complaint charging Mr. Plants with domestic battery based upon the report on February 26 by Ms. Plants that Mr. Plants had whipped their son with a belt. On April 7, 2014, Mr. Plants filed a motion to dismiss this charge on the grounds that he had a constitutionally protected right to discipline his child and that there is no liability for the reasonable use of corporal punishment for disciplinary purposes. Mr. Plants admitted that he "spanked his son with his leather belt."
On June 19, 2014, the family court entered a 90-day Domestic Violence Protective Order at the final hearing to address the status of the Emergency Protective Order. The family court found that Ms. Plants "proved by a preponderance of the evidence ... allegations of domestic violence or abuse" under West Virginia Code § 48-27-501. The family court further found that "[t]hough Mr. Plants did not intend to injure his son, the incident was significant and serious enough to warrant the issuance of a protective order." The Domestic Violence Protective Order expired by its own terms on September 17, 2014.
On July 14, 2014, Mr. Plants and the Special Assistant Prosecuting Attorney ("Special Prosecutor") entered into a Pretrial Monitoring Agreement as a Condition of Bond ("Monitoring Agreement") relating to both criminal complaints. In that Agreement, Mr. Plants agreed, among other things "to comply fully with the provisions of this agreement for a period of six (6) months or upon completion of the BIPPS (Batterers Intervention and Prevention Program) class, whichever occurs last." The Agreement also provided that if Mr. Plants "successfully completes [the BIPPS] class and fully complies with all of the other terms of the Agreement, the circumstances would be communicated to the Special Prosecutor for consideration prior to the final compliance hearing."
On May 21, 2015, the magistrate court dismissed both criminal complaints against Mr. Plants with prejudice based upon a joint motion in which the Special Prosecutor attested that Mr. Plants had successfully completed the BIPPS program and had not violated any terms of the Monitoring Agreement.
After the incidents that resulted in misdemeanor criminal complaints against Mr. Plants, three collateral proceedings relating to his position as prosecuting attorney ensued. First, on April 11, 2014, the ODC petitioned this Court, pursuant to Rule 3.27 of the Rules of Lawyer Disciplinary Procedure, for immediate, temporary suspension of Mr. Plants and/or the disqualification of Mr. Plants and the Kanawha County Prosecutor's Office from instituting actions or prosecuting claims related to domestic violence involving a parent or guardian and a minor child. The ODC alleged that the temporary suspension was necessary due to a conflict of interest that posed a substantial threat of irreparable harm to the public.
In its Rule 3.27 petition, the ODC asserted that by denying the domestic battery charges against him, Mr. Plants created a non-waivable conflict of interest in violation of Rule 1.7(b) of the West Virginia Rules of Professional Conduct in which his personal interests materially limited his ability to execute properly his official duties. Mr. Plants responded that temporary suspension or disqualification was unnecessary because the action taken at the circuit court by entering an order disqualifying him from certain cases was sufficient to protect the public. We denied the ODC's petition on the grounds that the Circuit Court of Kanawha County, pursuant to a petition for writ of prohibition by the City of Charleston ("City") and the Charleston Police Department ("Police Department"), properly removed Mr. Plants from any cases involving the subject matter similar to the pending criminal charges against him thereby removing the threat of a possible conflict of interest. Office of Lawyer Disciplinary Counsel v. Plants , 233 W.Va. 477, 485, 759 S.E.2d 220, 228 (2014).
As referenced above, while the ODC's Rule 3.27 petition was proceeding, the City and the Police Department filed a petition for writ of prohibition on April 14, 2014. The petition sought to prohibit Mr. Plants and the Kanawha County Prosecuting Attorney's Office from prosecuting allegations of domestic violence involving parents and minor children reported, investigated or charged by the City and the Police Department until the conflict of interest issue identified by the ODC was resolved. Following a hearing, the circuit court entered an agreed order in which Mr. Plants and the Kanawha County Prosecuting Attorney's Office agreed to be disqualified from three categories of cases: (1) crimes of violence against a child; (2) abuse and neglect; and (3) criminal violations of domestic violence protection orders.
Finally, on August 15, 2014, the Kanawha County Commission instituted proceedings pursuant to West Virginia Code § 6-6-7(c) (1985)2 to remove Mr....
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