Lawyer Disciplinary Bd. v. Elswick

• Decision Date: 26 September 2013
• Docket Number: No. 11–0729.,11–0729.
• Citation: 749 S.E.2d 577,231 W.Va. 684
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner v. Wendelyn A. ELSWICK, a member of The West Virginia State Bar, Respondent.

231 W.Va. 684

749 S.E.2d 577

LAWYER DISCIPLINARY BOARD, Petitioner

v.Wendelyn A. ELSWICK, a member of The West Virginia State Bar, Respondent.

No. 11–0729.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 11, 2013.

Decided Sept. 26, 2013.

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. “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.” Syl. pt. 3, Lawyer Disciplinary Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003).

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).

Rachael L. Fletcher Cipoletti, Esq., Chief Lawyer Disciplinary Counsel, Office of Disciplinary

Counsel, Charleston, WV, for Lawyer Disciplinary Board.

Mark W. Kelley, Esq., Ray, Winton & Kelley, PLLC, Charleston, WV, for Respondent.

PER CURIAM:

This lawyer disciplinary proceeding concerning Wendelyn A. Elswick (“Elswick”) is before this Court upon the report and recommendations of the Hearing Panel Subcommittee of the West Virginia Lawyer Disciplinary Board. The disciplinary proceedings arose from a Statement of Charges alleging that Elswick engaged in misconduct with regard to a witness in her client's post-conviction habeas corpus proceeding.

Following evidentiary hearings, the Hearing Panel Subcommittee found that the allegations in the Statement of Charges were proven by clear and convincing evidence and that Elswick violated the West Virginia Rules of Professional Conduct in several respects. The Subcommittee recommends that this Court impose a number of sanctions, including a three year suspension of Elswick's license to practice law in this State. Elswick contests the findings and conclusions of the Hearing Panel Subcommittee and objects to the recommendations.

After a careful review of the briefs, the argument of counsel and the record submitted on appeal, this Court is of the opinion that the findings, conclusions and recommended sanctions of the Hearing Panel Subcommittee should be adopted in part, with the exception that the mitigating factors herein warrant a two year, rather than a three year, suspension. Consequently, the report of the Subcommittee is adopted, and Elswick's license to practice law in this State is suspended for a period of two years, with additional sanctions as recommended by the Subcommittee.

I. Factual Background

Elswick was admitted to The West Virginia State Bar in September 1999 and, soon after, began working in the Kanawha County Public Defender Office. The Office's managing lawyer was Chief Public Defender George Castelle. In January 2004, the Public Defender Office was appointed to represent Dana December Smith in his post-conviction habeas corpus proceeding. Elswick was assigned to work on the case in February 2004.

Dana December Smith had been found guilty in 1992 of the murder of Margaret McClain and her daughter, Pamela Castaneda, in the Leewood–Cabin Creek area of Kanawha County. As a result, Smith was serving two life sentences without the possibility of parole. His direct appeal was refused by this Court in 1994. Thereafter, Smith filed several pro se petitions for relief in habeas corpus. The current matter arises from an amended habeas petition filed on Smith's behalf in 2003 by retained counsel, M. Timothy Koontz— State ex rel. Dana December Smith v. Trent, 97–Misc–43 (Circuit Court of Kanawha County). Elswick and Koontz later became co-counsel in the habeas proceeding.

Elswick began looking into Dana December Smith's assertion of newly discovered evidence that an individual named Tommy Lynn Sells had confessed to the murders of the two women. Sells was incarcerated on death row in Texas for unrelated crimes.¹ Elswick, inter alia, (1) requested permission from Tommy Lynn Sells's lawyer to speak with Sells about the West Virginia murders, (2) contacted individuals with regard to the television show “48 Hours” to request a copy of the episode during which Sells confessed to the West Virginia murders and (3) contacted the West Virginia Division of Corrections to determine whether Sells and Dana December Smith had ever been incarcerated at the same time and place in West Virginia.

On May 10, 2004, Elswick and her legal assistant, Jane Brumfield, met with Tommy Lynn Sells at his place of incarceration in Livingston, Texas. Elswick interviewed Sells while Brumfield observed. As determined by the Hearing Panel Subcommittee, Elswick took notes during the interview which indicated that Tommy Lynn Sells had met and interacted with Elswick's client, Dana December Smith, at a bar in St. Albans, Kanawha County, West Virginia. Elswick's notes indicate that the meeting occurred prior to the murders of the two women. The notes state in relevant part:

Talked to ? @ St. Albans other side of it ... A bar had a few drinks ? bought drugs off Tommy–Became acquainted ? told Tommy about another place where he could get Drugs w/o worrying about police Met Pamela @ another Bar—

Despite her notes, Elswick insists that she does not recall Tommy Lynn Sells ever telling her that he knew, or had any contact with, her client. According to Elswick, if Sells made such a comment, he retracted it during the same interview. In addition, Elswick maintains that she may have transposed the “?” symbol and, in fact, meant the “?” to refer to one of the female victims. Moreover, Elswick emphasizes that the notes she took that day consisted of several pages; yet, only the page containing the above passage was used to support the Statement of Charges filed against her.

The Hearing Panel Subcommittee found, in addition, that legal assistant Brumfield also took notes on May 10, 2004. Those notes stated in part: “Cabin Creek—St. Albans—other side of it—Met Dana there—bought drugs off me-acquainted—” Nevertheless, Elswick states: “Ms. Brumfield's notes from the initial meeting with Mr. Sells consist of three pages, the last of which contains the following notation: ‘Call's him Danea (sp?)—never housed—Never had conversation w/him’ ”

The following day, May 11, 2004, Tommy Lynn Sells gave a recorded statement to Elswick and Brumfield in which he confessed to the West Virginia murders for which Dana December Smith had been convicted. The statement was conducted by Brumfield in Elswick's presence. Sells was not asked if he knew Dana December Smith or asked about the prior interaction between Sells and Smith at the St. Albans bar.

Thereafter, Tommy Lynn Sells began writing to Elswick at the Kanawha County Public Defender Office, and Elswick responded with letters typed on office letterhead. Ultimately, Sells and Elswick exchanged approximately 60 letters. The evidence reveals that, while Chief Public Defender Castelle expected that there would be some degree of correspondence between Sells and Elswick concerning, for example, the securing of further statements from Sells about the murders, Elswick never revealed to Castelle the magnitude or the nature of the correspondence. The letters sent by Sells were rambling and often included obscenities. In her responses, Elswick encouraged Sells's drawing and poetry writing. Elswick's responses, however, tended to be on a personal rather than a professional level and could be viewed as promoting a “pen pal” relationship with Sells. In some instances, Elswick provided Sells with details of her private and professional life.

Elswick contends that she engaged in that level of correspondence with Tommy Lynn Sells on the advice of Texas authorities who stated that they had shared personal details with Sells and that, if Elswick could maintain rapport with Sells, she might get additional information from him.

On June 9, 2004, Elswick and her co-counsel filed a motion in the Circuit Court of Kanawha County to take Tommy Lynn Sells's deposition, seeking to have his confession to the West Virginia murders taken under oath, subject to cross-examination, for admission in Dana December Smith's habeas proceeding. Elswick attached a copy of Tommy Lynn Sells's recorded statement of May 11, 2004, taken by legal assistant Brumfield during which Sells was not asked if he knew Dana December Smith or whether they met and interacted at the St. Albans bar....