Lawyer Disciplinary Bd. v. Blevins

• Decision Date: 26 September 2008
• Docket Number: No. 33281.,33281.
• Citation: 671 S.E.2d 658
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Complainant v. Mark A. BLEVINS, a member of The West Virginia State Bar, Respondent.

671 S.E.2d 658

LAWYER DISCIPLINARY BOARD, Complainant v. Mark A. BLEVINS, a member of The West Virginia State Bar, Respondent.

No. 33281.

Supreme Court of Appeals of West Virginia.

Submitted September 23, 2008.

Decided September 26, 2008.

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. "Rule 3.16. of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates factors to be considered in imposing sanctions and provides as follows: `In imposing a sanction after a finding of lawyer misconduct, unless otherwise provided in these rules, the Court [Supreme Court of Appeals of West Virginia] or Board [Lawyer Disciplinary Board] shall consider the following factors: (1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; (2) whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of the actual or potential injury caused by the lawyer's misconduct; and (4) the existence of any aggravating or mitigating factors.'" Syl. pt. 4, Office of Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

3. "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).

4. "Disbarment of an attorney to practice law is not used solely to punish the attorney but is for the protection of the public and the profession." Syl. pt. 2, In re Application by Daniel, 153 W.Va. 839, 173 S.E.2d 153 (1970).

Rachael L. Fletcher Cipoletti, Esq., Chief Lawyer Disciplinary Counsel, Office of Disciplinary Counsel, Charleston, for the Complainant.

Richard W. Hollandsworth, Esq., Wheeling, for the Respondent.

PER CURIAM:¹

This lawyer disciplinary proceeding concerning the respondent, Mark A. Blevins, is before this Court upon the Report of the Hearing Panel Subcommittee of the West Virginia Lawyer Disciplinary Board and the Subcommittee's recommended sanctions: (1) that respondent Blevins' license to practice law in the State of West Virginia be suspended for a period of eighteen months; (2) that, upon reinstatement, his private practice be supervised for a period of two years; (3) that respondent Blevins complete nine hours of Continuing Legal Education in ethics in addition to such ethics hours he is otherwise required to complete to maintain his active license to practice, said additional nine hours to be completed in the current reporting period after he is reinstated; and (4) that respondent Blevins pay the costs of these proceedings.

Respondent Blevins was admitted to The West Virginia State Bar in 1993 and maintains a private law practice in Wheeling, West Virginia. The findings and recommended sanctions of the Hearing Panel Subcommittee arose from a Statement of Charges filed in this Court by the Investigative Panel of the Lawyer Disciplinary Board. Following an evidentiary hearing conducted in October 2007, the Hearing Panel Subcommittee found that the allegations were proven and that respondent Blevins' actions constituted transgressions of the West Virginia Rules of Professional Conduct. The Subcommittee's Report containing its findings and the recommended sanctions was filed in this Court on March 24, 2008. Although the respondent filed an objection to the Report, he did not file a brief.

This Court has before it the findings and recommendations contained in the Report of the Hearing Panel Subcommittee, all matters of record including the audio and video tapes admitted at the evidentiary hearing and the brief filed by the Office of Disciplinary Counsel. Upon review by this Court de novo, and for the reasons expressed below, this Court concludes that the magnitude of respondent Blevins' actions, which included, at a minimum, recklessly encouraging a convicted felon to intimidate, by violence or the threat of violence, certain former clients who owed the respondent money, warrants the annulment of the respondent's license to practice in this State. Moreover, this Court concludes that it would be appropriate, as a prerequisite to reinstatement, for the respondent to be certified by a psychiatrist, to be selected jointly by the respondent and the Office of Disciplinary Counsel, that the respondent is in such condition that his ability to practice law will result in the protection of the public. See, Lawyer Disciplinary Board v. McCorkle, 219 W.Va. 245, 252, 633 S.E.2d 1, 8 (2006).

With that modification, this Court concludes that the Report and recommendations of the Hearing Panel Subcommittee are otherwise supported by the evidence. Accordingly, this Court orders: (1) that respondent Blevins' license to practice law in the State of West Virginia be annulled; (2) that, upon reinstatement, his private practice be supervised for a period of two years; (3) that respondent Blevins complete nine hours of Continuing Legal Education in ethics in addition to such ethics hours he is otherwise required to complete to maintain his active license to practice, said additional nine hours to be completed in the current reporting period after he is reinstated; and (4) that respondent Blevins pay the costs of these proceedings. In addition, as a prerequisite to reinstatement, respondent Blevins shall be certified by a psychiatrist, to be selected jointly by the respondent and the Office of Disciplinary Counsel, that the respondent is in such condition that his ability to practice law will result in the protection of the public.

I. Factual Background

In December 2006, the Investigative Panel of the Lawyer Disciplinary Board, upon a finding of probable cause, filed a Statement of Charges against respondent Blevins alleging violations of Rule 8.4.(a), (b) and (d) of the Rules of Professional Conduct. Those sections provide:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

* * *

(d) engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]

The evidence presented below indicates that, in 2003, respondent Blevins paid Curtis Griffin $500 to locate an individual named Horbatak, a contractor hired to renovate the respondent's office building. According to the respondent, Horbatak failed to pay the subcontractors who worked on the building and was indebted to the respondent in the amount of $7,500 to $8,000.

After several weeks without hearing anything from Griffin, a series of telephone calls took place, in February 2004, between Griffin and William Curtin. Curtin was a part time process server and courier for the respondent. Curtin told Griffin that, if he could obtain a handgun for respondent Blevins, the $500 would be forgiven. In addition, Curtin indicated that there were four people the respondent wanted them to "go get" who owed the respondent money. Curtin stated that he, Griffin and the respondent would share the monies collected. One person "down in Uniontown" was to have his "brain beat in." Unknown to Curtin, his comments were recorded by law enforcement officers. At that time, Griffin was an informant in an unrelated matter for the Ohio Valley Drug Task Force and had advised the officers about some of his contacts with Curtin.²

On February 21, 2004, Griffin, with audio and video surveillance devices hidden on his body, met Curtin and respondent Blevins in an alley near Market Street in Wheeling. From there, they walked to a nearby 7-Eleven Food Store and then to respondent Blevins' law office. While in the office, the respondent confirmed that he wanted Griffin to obtain a handgun for him. Moreover, four people who owed the respondent money were discussed. First, the respondent stated that, of the amount owed by contractor Horbatak, the respondent wanted $5,000, and Griffin and Curtin could keep the excess. The respondent warned: "So you've got to let [Horbatak] know, if he opens his mouth to anyone, he's done." Second, respondent Blevins stated that the individual in Uniontown was a former client who owed him $3,400. The respondent stated that he wanted $400 from that individual and that Griffin and Curtin could split the $3,000. Again, the respondent warned: "But you tell him, if he goes and talks to anybody on the planet, he's going to have a little problem here." Griffin replied: "I'll cut his f*ckin' tongue out."

Third, respondent Blevins stated that a former client by the name of Stiltenpole in West Alexander, Pennsylvania, owed him $1,500 and that, upon collection, Griffin and Curtin could share the entire amount. As the respondent concluded: "Well, he's probably the easiest because he's a dope dealer, and he may not go squealing." Fourth, the respondent stated that a former client by the name of...