Lawyer Disciplinary Bd. v. Marcum
| Decision Date | 05 November 2021 |
| Docket Number | 20-0133 |
| Court | Virginia Supreme Court |
| Parties | LAWYER DISCIPLINARY BOARD, Petitioner v. JUSTIN J. MARCUM, a member of The West Virginia State Bar, Respondent |
Submitted: September 14, 2021.
Rachael L. Fletcher Cipoletti, Esq. Chief Lawyer Disciplinary Counsel Jessica H. Donahue Rhodes, Esq. Lawyer Disciplinary Counsel Office of Lawyer Disciplinary Counsel Charleston West Virginia Counsel for the Petitioner.
Lonnie C. Simmons, Esq. DiPiero Simmons McGinley & Bastress, PLLC Charleston, West Virginia Counsel for the Respondent.
SYLLABUS BY THE COURT
1. Syl. Pt. 3, Comm. on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).
2. "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, Comm. on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).
3. "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." Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).
4. "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." Syl. Pt. 3, Comm. on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989).
This lawyer disciplinary proceeding against Respondent Justin J. Marcum, a member of the West Virginia State Bar, originated in a Statement of Charges issued against him by the Investigative Panel of the Lawyer Disciplinary Board ("the Board") and filed with this Court by the Office of Disciplinary Counsel ("ODC"). Following an evidentiary hearing, the Board's Hearing Panel Subcommittee ("HPS") found that certain charges were supported by the evidence and that respondent, who, at the time of the alleged misconduct, was also serving as a member of the West Virginia House of Delegates, committed several violations of the West Virginia Rules of Professional Conduct relating, most notably, to his drug addiction and representation of a client in a drug-related criminal matter after illegally purchasing drugs from that client.
ODC filed its objection to the HPS's recommended sanction, and this Court directed that the matter be scheduled for oral argument and that the parties file briefs in support of their respective positions. Oral argument was conducted on September 14, 2021.
Upon our thorough review of the briefs, the record, oral argument, and the pertinent legal authorities, and for the reasons set forth below, we agree with the HPS's recommendation that respondent's law license be suspended for two years. However, we disagree with the HPS that the suspension should be stayed in its entirety. Instead, we find that respondent's professional misconduct warrants his removal from the practice of law for a period of six months. With the exception of the recommendation that respondent's license be automatically reinstated at the end of the six-month suspension, [3] we generally adopt the remaining sanctions as recommended by the HPS.
Respondent was admitted to the practice of law in West Virginia in 2011. Therefore, he is subject to the disciplinary jurisdiction of this Court and its properly constituted Board.
Respondent has maintained a solo practice in Williamson, Mingo County, since 2012.[4] Further, the misconduct giving rise to this disciplinary proceeding occurred while respondent was a duly elected member of the West Virginia House of Delegates.
On February 8, 2020, the Board's Investigative Panel issued a formal Statement of Charges against respondent that included four counts alleging multiple violations of the Rules. An evidentiary hearing was conducted before the HPS on September 21, 2020, at which the testimony of various witness was heard and numerous exhibits were presented.
Following the evidentiary hearing, on December 10, 2020, ODC and respondent submitted to the HPS their Joint Proposed Findings of Fact, Conclusions of Law, and Recommended Sanctions. As reflected in its report, the HPS is generally in agreement with the findings and conclusions that were jointly proposed by the parties. In the instances where the parties disputed whether the evidence supported a finding that respondent violated a particular Rule, the HPS made findings and conclusions that are favorable to respondent that ODC does not challenge in this proceeding. The HPS's findings and conclusions are summarized below.
The parties agreed that, based upon the admissible evidence presented at the hearing, none of the charges set forth in Count One of the Statement of Charges were proven by clear and convincing evidence. See Syl. Pt. 1, in part Lawyer Disciplinary Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995) () Because, as reflected in its report, the HPS agrees with the parties' proposed findings and conclusions in this regard, we need not recount the allegations in great detail.
Briefly stated, Count One stemmed from an ethics complaint filed by attorney Jeffrey S. Simpkins. Count One alleged that respondent visited K.P.B., an inmate at the regional jail, for the purpose of soliciting her as a client even though respondent knew her to be already represented by counsel (Mr. Simpkins); that respondent lied to ODC about soliciting K.P.B. as a client; and that, after respondent visited K.P.B. and allegedly obtained confidential information that was harmful to her, he was retained to represent clients who had instituted an action for slander against Mr. Simpkins related to Mr. Simpkins's representation of K.P.B. against said clients in another (but related) matter. Count One also alleged, based upon a second ethics complaint filed by Mr. Simpkins against respondent, that respondent represented a party in a divorce proceeding after previously representing both that party and his spouse in an adoption proceeding and then lied to ODC about it.[5]
For the conduct alleged in Count One, respondent was charged with violating West Virginia Rule of Professional Conduct 7.3(a) (prohibiting solicitation of professional employment); Rule 1.7(a) (); Rule 1.9(a) (concerning duties to former clients); Rule 1.18(c) (concerning duties to prospective clients); Rule 8.1(a) (knowingly making a false statement of material fact in connection with a disciplinary matter); Rule 8.4(c) ("engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation"), and Rule 8.4(d) (prohibiting conduct that is prejudicial to the administration of justice).
At the evidentiary hearing, respondent denied the allegations against him concerning K.P.B. and, because K.P.B. failed to appear and testify at the hearing, respondent's testimony regarding his conversation with her was unrefuted. The other testimony presented at the hearing...
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