Lawyer Disciplinary Bd. v. Markins

• Decision Date: 23 May 2008
• Docket Number: No. 33256.,33256.
• Citation: 222 W.Va. 160,663 S.E.2d 614
• Court: West Virginia Supreme Court
• Parties: LAWYER DISCIPLINARY BOARD, Petitioner v. Michael P. MARKINS, a Member of the West Virginia State Bar, Respondent.

663 S.E.2d 614

222 W.Va. 160

LAWYER DISCIPLINARY BOARD, Petitioner v. Michael P. MARKINS, a Member of the West Virginia State Bar, Respondent.

No. 33256.

Supreme Court of Appeals of West Virginia.

Submitted April 1, 2008.

Decided May 23, 2008.

Concurring Opinion of Justice Starcher June 8, 2008.

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." Syl. Pt. 3, Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

2. "This Court is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys' licenses to practice law." Syl. Pt. 3, Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).

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. 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)." Syl. Pt. 4, Lawyer Disciplinary Bd. v. Wade, 217 W.Va. 58, 614 S.E.2d 705 (2005).

4. "`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 [West Virginia Supreme Court of Appeals] 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 Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998)." Syl. Pt. 2, Lawyer Disciplinary Bd. v. Lakin, 217 W.Va. 134, 617 S.E.2d 484 (2005).

Rachael L. Fletcher Cipoletti, Charles A. Jones, III, Office of Disciplinary Counsel, Charleston, WV, for the Petitioner.

Michael O. Callaghan, Neely & Callaghan, Charleston, WV, for the Respondent.

PER CURIAM:

In this lawyer disciplinary proceeding, Respondent Michael P. Markins ("Respondent") objects to the sanctions recommended by a Hearing Panel Subcommittee of the Lawyer Disciplinary Board ("Board") for violations of the West Virginia Rules of Professional Conduct ("Rules"). Following a disciplinary hearing conducted on July 20, 2007, the Board determined that Respondent violated Rules 8.4(b) and (c) by repeatedly accessing the e-mail accounts of other attorneys, without their knowledge or permission, for over a two-year period. The Board recommends, inter alia, that Respondent be suspended from the practice of law for a period of two (2) years. Though Respondent does not dispute the facts giving rise to the disciplinary charges filed against him, he contends the recommended sanctions are too harsh.

For the reasons discussed below, we adopt the Board's recommendations.

I. Factual and Procedural Background

The facts of this case are not in dispute. Respondent has been a practicing attorney since October, 2001. At all times relevant, Respondent was employed as an associate attorney at the law firm of Huddleston Bolen, LLP ("Huddleston").¹ His wife, also an attorney, was similarly employed at the law firm of Offutt, Fisher & Nord ("OFN"). In late October or early November of 2003, Respondent began accessing his wife's OFN e-mail account without her permission or knowledge.² Respondent testified that the purpose of reading his wife's e-mails was to secretly monitor her activities because he believed she had become involved in an extramarital affair with an OFN client. Respondent further testified that, initially, he improperly accessed only his wife's account and later, that of another attorney, an OFN partner.³ Eventually, however, Respondent's curiosity got the better of him, and he began accessing the e-mail accounts of seven other OFN attorneys. Obviously, Respondent did so without either the knowledge or permission of the account holders.

When an OFN attorney began to suspect that her e-mail account had been improperly accessed, OFN retained Paul Law, a computer systems engineer, and launched an investigation. From Mr. Law's investigation, it was learned that on numerous occasions from sometime prior to November 7, 2003, until March 16, 2006, Respondent gained unauthorized access to OFN e-mail accounts from three IP accounts:⁴ Respondent's Huddleston IP account; Respondent's residential IP account; and the IP account at the Hampton Inn in Beckley, West Virginia, where Respondent had been monitoring a trial in which both Huddleston and OFN clients were being represented.

According to D.C. Offutt, Jr., the managing partner of OFN, although they were not able to view the actual e-mail messages read by Respondent, they were able to determine which e-mail accounts were accessed, the date and time they were accessed, and from what IP account. Furthermore, Mr. Offutt testified that if there was an attachment to an e-mail, they could determine whether the attachment had been opened. More specifically, they were able to determine that on one occasion certain confidential OFN financial information sent by the firm's chief accountant to the firm's partners by e-mail attachment was opened by Respondent.

It is undisputed that Respondent improperly accessed the e-mail accounts of OFN attorneys on more than 150 occasions. In so doing, Respondent learned personal information about certain attorneys which had been relayed confidentially via e-mail. With regard to confidential client information that had been accessed by Respondent, Mr. Offutt was particularly concerned with the fact that OFN and Huddleston, Respondent's employer, represented co-defendants in a large mass tort case that was in litigation during the time period at issue. In March, 2006, Respondent, along with other lawyers whose firms were involved in the mass litigation, was monitoring the trial from the Hampton Inn in Beckley, West Virginia. While monitoring the proceedings, Respondent gained unauthorized access into various OFN e-mail accounts from the Hampton Inn's IP account. According to Mr. Offutt, Huddleston's mass tort client had a contractual relationship with and a claim for indemnity against OFN's client. Though the claim was not then being litigated, Mr. Offutt testified that information included in the firm's e-mail system would have been "helpful" to Huddleston's client. However, neither Huddleston nor OFN found evidence that any information between OFN attorneys and its client in that case had been compromised.⁵

Following the disciplinary hearing in this case, Mr. Offutt indicated in an affidavit⁶ that, since Respondent's misconduct was reported by the Charleston Gazette newspaper and the Associated Press, OFN "has suffered further damage to its image and reputation." Mr. Offutt further indicated that one of the firm's clients expressed "serious concerns" about the security breach and about whether Respondent improperly accessed important information concerning that client. According to Mr. Offutt, this client has put the firm on notice of a potential claim for damages against it. Mr. Offutt indicated that he anticipates that similar concerns will be expressed by other clients in the future and that the negative ramifications and stigma of Respondent's misconduct will be felt for many years. Finally, Mr. Offutt indicated that his firm suffered direct economic losses as a result of Respondent's actions: Mr. Offutt, along with other firm lawyers and staff, spent considerable time and resources investigating and attending internal meetings on the matter and were distracted by the events and their aftermath.

As indicated above, Respondent does not dispute the facts giving rise to this disciplinary proceeding. He testified that in the beginning he began accessing his wife's OFN e-mail account and that of another OFN attorney for the sole purpose of determining if his wife was having an extramarital affair with a client. He later began accessing the e-mail accounts of other OFN attorneys purely "out of curiosity" and "almost on a daily basis." As noted previously, Respondent accessed the e-mail accounts of a total of nine OFN attorneys (including his wife), without their knowledge or permission, at least 150 times beginning in late October or early November, 2003.

In March 2006, Respondent's wife, who had been completely unaware of Respondent's misconduct, told Respondent that someone had been breaking into OFN e-mail accounts and that the firm was getting close to finding out who it was. Shortly thereafter, Respondent revealed to his wife that it was he who had been improperly accessing the OFN e-mail accounts. The following day, Mr. Offutt, who had learned from the computer expert's investigation that Respondent was responsible for the unauthorized access of the...