Lawyer Disciplinary Bd. v. Marcum, 20-0133

CourtSupreme Court of West Virginia
Writing for the CourtHUTCHISON, Justice
Citation865 S.E.2d 502,245 W.Va. 760
Parties LAWYER DISCIPLINARY BOARD, Petitioner v. Justin J. MARCUM, a member of The West Virginia State Bar, Respondent
Docket NumberNo. 20-0133,20-0133
Decision Date05 November 2021

245 W.Va. 760
865 S.E.2d 502

LAWYER DISCIPLINARY BOARD, Petitioner
v.
Justin J. MARCUM, a member of The West Virginia State Bar, Respondent

No. 20-0133

Supreme Court of Appeals of West Virginia.

Submitted: September 14, 2021
Filed: November 5, 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.

HUTCHISON, Justice:

865 S.E.2d 506

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.

The HPS recommended that respondent's law license be suspended for a period of two years with the suspension being stayed in its entirety, in addition to other sanctions.1 With the recommendation that the two-year suspension be stayed, the HPS rejected the proposed sanction that was agreed upon and jointly submitted to the HPS by ODC and respondent after the evidentiary hearing – that is, that respondent's law license be suspended for a period of two years with a stay of the suspension

after six months having been served [and] for imposition of a period of supervised probation for the remaining period of [r]espondent's contract with [the Judicial and Lawyer Assistance Program ("JLAP")]; automatic reinstatement at the end of the six[-]month suspension; and immediate imposition of the remaining one and a half year suspension if any conditions or requirements of the JLAP contract or other
865 S.E.2d 507
Rules of Professional Conduct are violated after a petition to [this] Court.2

(Footnote added).

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.

I. Facts and Procedural History

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.

Count One – Complaint of Jeffrey S. Simpkins

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) ("Rule 3.7 of the Rules of Lawyer Disciplinary Procedure ... requires the Office

865 S.E.2d 508

of Disciplinary Counsel to prove the allegations of the formal charge by clear and convincing evidence.") 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) (prohibiting concurrent conflict of interest); 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 concerning respondent's conversation with K.P.B. was either favorable to respondent's position or failed to support the factual allegations underlying the formal charges. With regard to the allegations that respondent represented a party in a divorce proceeding after he had represented that party and his spouse in adoption proceedings, video evidence from the parties’ final divorce hearing showed that any possible conflict of interest was expressly waived.

Count Two – Complaint of Lora L. Cline

With regard to Count Two, ODC and respondent agreed that the evidence presented at the disciplinary hearing did not prove the majority of the charges set forth therein by clear and convincing evidence. Count Two alleged that respondent had a conflict of interest in representing Darrell Dotson and complainant Lora L. Cline in their effort to recover insurance proceeds after the mobile home they co-owned was destroyed by fire. ODC alleged that respondent solicited Ms. Cline as a client and lied to ODC about it. For this alleged conduct, respondent was charged with violating West Virginia Rule of Professional Conduct 1.7(a) (prohibiting concurrent conflict of interest), Rule 7.3(a) (prohibiting solicitation of professional employment), Rule 8.1(a) (knowingly making a false statement of material fact in connection with a disciplinary matter), and Rule 8.4(c) ("engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation"). However, ODC and respondent jointly proposed findings and conclusions indicating that the foregoing charges were not proven at the disciplinary hearing, and the HPS agreed, as reflected in its report.

Count Two also alleged that respondent, who represented Mr. Dotson and Ms. Cline...

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1 practice notes
  • In re L.M., 20-0921
    • United States
    • Supreme Court of West Virginia
    • November 5, 2021
    ...reach its target audience, and so is already the least calculated of all manners of service to apprise a parent that his or her parental 865 S.E.2d 502 rights – constitutional rights – are in jeopardy. Yet even where the stakes are of constitutional proportion, we recognize that these proce......
1 cases
  • In re L.M., No. 20-0921
    • United States
    • Supreme Court of West Virginia
    • November 5, 2021
    ...reach its target audience, and so is already the least calculated of all manners of service to apprise a parent that his or her parental 865 S.E.2d 502 rights – constitutional rights – are in jeopardy. Yet even where the stakes are of constitutional proportion, we recognize that these proce......

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