Lawyer Disciplinary Bd. v. Busch, 12–0174.

• Decision Date: 05 February 2014
• Docket Number: No. 12–0174.,12–0174.
• Citation: 233 W.Va. 43,754 S.E.2d 729
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner v. Richard T. BUSCH, a member of The West Virginia State Bar, Respondent.

233 W.Va. 43

754 S.E.2d 729

LAWYER DISCIPLINARY BOARD, Petitioner

v.Richard T. BUSCH, a member of The West Virginia State Bar, Respondent.

No. 12–0174.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 22, 2014.

Decided Feb. 5, 2014.

Syllabus By The Court

1. “A de novo standard applies to a review of the adjudicatory record made before 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 [Board's] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [Board's] findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.” Syllabus point 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 [West Virginia Supreme Court of Appeals] or [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.’ ” Syllabus point 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

3. “Mitigating factors in a lawyer disciplinary proceeding are any considerations or factors that may justify a reduction in the degree of discipline to be imposed.” Syllabus point 2, Lawyer Disciplinary Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

4. “Mitigating factors which may be considered in determining the appropriate sanction to be imposed against a lawyer for violating the Rules of Professional Conduct include: (1) absence of a prior disciplinary record; (2) absence of a dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith effort to make restitution or to rectify consequences of misconduct; (5) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (6) inexperience in the practice of law; (7) character or reputation; (8) physical or mental disability or impairment; (9) delay in disciplinary proceedings; (10) interim rehabilitation; (11) imposition of other penalties or sanctions; (12) remorse; and (13) remoteness of prior offenses.” Syllabus point 3, Lawyer Disciplinary Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

5. “Aggravating factors in a lawyer disciplinary proceeding are any considerations or factors that may justify an increase in the degree of discipline to be imposed.” Syllabus point 4, Lawyer Disciplinary Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

6. “ ‘ “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).’ Syl. Pt. 5, Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989).” Syllabus point 7, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

7. “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.” Syllabus point 3, Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989).

Rachael L. Fletcher Cipoletti, Esq., Chief Lawyer Disciplinary Counsel, Office of Disciplinary Counsel, Charleston, WV, for Petitioner.

J. Michael Benninger, Esq., Benninger Law, PLLC, Morgantown, WV, for Respondent.

PER CURIAM:

This lawyer disciplinary proceeding against Richard T. Busch (hereinafter “Mr. Busch”) was brought to this Court by the Office of Disciplinary Counsel (hereinafter the “ODC”) on behalf of the Lawyer Disciplinary Board (hereinafter the “Board”). The Board's Hearing Panel Subcommittee (hereinafter the “Subcommittee”) determined that Mr. Busch committed numerous violations of the West Virginia Rules of Professional Conduct and recommended that his law license be suspended for a period of three years, among other sanctions that will be fully set forth in this opinion. Mr. Busch filed an objection to the recommendations,¹ arguing that his conduct was merely negligent, not intentional. Therefore, he suggests a lesser suspension. Based upon the parties' arguments to this Court, the appendix record designated for our consideration, and the pertinent authorities, we adopt the recommendations of the Subcommittee.

I.FACTUAL AND PROCEDURAL HISTORY

Mr. Busch was admitted to practice law by the West Virginia State Bar on April 23, 2002. Initially, Mr. Busch practiced law at his father's firm in Elkins, West Virginia. The conduct in question began in January 2009 during Mr. Busch's tenure as the Randolph County Prosecuting Attorney and ended with his resignation from the position on December 5, 2011.² A background of the alleged misconduct is summarized herein.

Count I—Complaint Regarding Conduct in the Blake Case

J. Ronald Blake, Jr., and his wife, Judy Mae Blake, were the co-directors of the Community Response Foundation (hereinafter the “CRF”), a non-profit organization specializing in representative payee services for Social Security recipients. Mr. Blake died November 29, 2009, and Mrs. Blake continued in the role of the CRF's director. A warrant was issued on December 4, 2009, for the arrest of Mrs. Blake for embezzlement by a fiduciary related to her work as the CRF's director. Subsequently, on December 7, 2009, a warrant was issued for all records and computers pertaining to the Blakes and the CRF.

A hearing was held before the Honorable Judge Jaymie Wilfong on April 7, 2010, pertaining to a request from Appalachian Benefits Assistance, Inc., the court-appointed conservator for the CRF, to receive an archival copy of the records of the seized computers. Judge Wilfong entered an order on April 8, 2010, “that such computers be turned over, FORTHWITH, to the State Police Crime Lab and that a complete archival record for each computer be made and forwarded to Appalachian Benefits on an EXPEDITED basis.” During a status conference, thereafter, on July 21, 2010, the contention was made that Mr. Busch failed to comply with the directive in the April 8, 2010, order. In response, Mr. Busch made the following statement to the circuit court:

And, what he [referring to Sergeant Casto of the West Virginia State Police in Morgantown] is doing is he is duplicating the hard drive while keeping it in the chain of custody so we can get that hard drive out and get it to Mr. Jory [counsel for Mrs. Blake] and also to the benefit services group, the Appalachian Benefits, has taken over the accounts.

Additionally, Mr. Busch proffered, “So, at this point, I tried to contact Sergeant Casto yesterday and I'm awaiting his response with regards to the status of if he's copied the hard drive or not. Essentially, that's where we are, Your Honor.”

On July 22, 2010, a staff person in Mr. Busch's office inquired as to the location of the computers and was advised that the computer equipment remained in the evidence locker at the Randolph County Sheriffs Office. Additional communication occurred between Mr. Busch's staff and Sergeant Casto via e-mail messages on July 21 and July 22, 2010, concerning the computer hard drives and the duplication of the same.³

On July 26, 2010, Mr. Busch submitted a proposed order to Judge Wilfong for the July 21, 2010, hearing. Despite his awareness that the evidence remained in Randolph County and that his prior statements to the court regarding Sergeant Casto had been false, Mr. Busch took no remedial action to correct his prior misstatements to the court and, instead, memorialized the same in a draft order. The following day, in response to receiving the proposed order from Mr. Busch, Mr. Jory requested modifications. Specifically, Mr. Jory stated, “Not being computer literate, I interpret ‘duplicate the hard drive’ to mean that another hard drive should be produced. Nevertheless, it is the documents on the hard drive which Appalachian Benefits and I seek to obtain.” Later, on July 30, 2010, Mr. Busch directed that the computer equipment be transported to the State Police Forensics Lab in Morgantown, West Virginia.

By correspondence dated August 3, 2010, Mr. Busch advised the circuit court:

The State's investigation may or may not include the said hard drives that are being provided to Appalachian Benefits Services, and therefore the State is of the opinion that the Defendant is not entitled to copies of said hard drives at this time. Please advise how the Court wishes the State to proceed, through correspondence or by order.

By order entered August 24, 2010, the lower court ordered that “all documents in the seized hard drives be printed and that copies thereof be duplicated and provided to Appalachian Benefits Assistance, Inc., and to Defendant on or before August 9, 2010.”

On or about August 24, 2010, the original computer equipment was returned to the Randolph County Sheriffs Office. Appalachian Benefits Assistance, in its capacity as conservator for the CRF, received a cloned copy. Despite the prior court orders, however, no archival copy was provided to Mr. Jory, counsel for Mrs. Blake. By letter...