Lawyer Disciplinary Board v. Hatfield, 112020 WVSC, 18-0101

Docket Nº:18-0101
Opinion Judge:JENKINS, JUSTICE
Party Name:LAWYER DISCIPLINARY BOARD, Petitioner v. MCGINNIS E. HATFIELD, JR., Respondent
Attorney:Rachel L. Fletcher Cipoletti Chief Lawyer Disciplinary Counsel Renee N. Frymyer Lawyer Disciplinary Counsel Office of Lawyer Disciplinary Counsel Charleston, West Virginia Attorneys for the Petitioner John W. Feuchtenberger Princeton, West Virginia Attorney for the Respondent
Case Date:November 20, 2020
Court:Supreme Court of Appeals of West Virginia

LAWYER DISCIPLINARY BOARD, Petitioner

v.

MCGINNIS E. HATFIELD, JR., Respondent

No. 18-0101

Supreme Court of Appeals of West Virginia

November 20, 2020

Submitted: September 15, 2020

Lawyer Disciplinary Proceeding No. 13-02-399 LICENSE ANNULLED AND OTHER SANCTION IMPOSED

Rachel L. Fletcher Cipoletti Chief Lawyer Disciplinary Counsel Renee N. Frymyer Lawyer Disciplinary Counsel Office of Lawyer Disciplinary Counsel Charleston, West Virginia Attorneys for the Petitioner

John W. Feuchtenberger Princeton, West Virginia Attorney for the Respondent

SYLLABUS BY THE COURT

1. "A de novo standard applies to a review of the adjudicatory record made before the [Hearing Panel Subcommittee of the Lawyer Disciplinary Board ('HPS')] 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 [HPS's] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [HPS'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. "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." Syllabus point 3, Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).

3. "Rule 3.7 of the Rules of Lawyer Disciplinary Procedure . . . requires the Office of Disciplinary Counsel to prove the allegations of the formal charge by clear and convincing evidence." Syllabus point 1, in part, Lawyer Disciplinary Board v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995).

4. "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).

5. "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.'" Syllabus point 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

6. "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).

7. "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).

8. "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).

OPINION

JENKINS, JUSTICE

This lawyer disciplinary proceeding against McGinnis E. Hatfield, Jr. ("Mr. Hatfield") was brought to this Court by the Office of Disciplinary Counsel ("ODC") on behalf of the Lawyer Disciplinary Board ("LDB"). The Hearing Panel Subcommittee ("HPS") of the LDB recommended the following disposition in its report to this Court: that Mr. Hatfield's license to practice law be annulled and that he pay the costs of these proceedings pursuant to Rule 3.15 of the West Virginia Rules of Lawyer Disciplinary Procedure. Thereafter, the ODC submitted its consent to the recommendation, and Mr. Hatfield filed his objection. After a thorough review of the record developed before the HPS, and upon careful consideration of the parties' briefs and oral arguments and the relevant law, this Court concludes that Mr. Hatfield has violated multiple Rules of Professional Conduct and agrees with the recommendations of the HPS. Accordingly, this Court finds that the recommended sanctions are warranted.

I.

FACTUAL AND PROCEDURAL HISTORY

Mr. Hatfield is a currently suspended [1] lawyer who last practiced in Bluefield, located in Mercer County, West Virginia. Mr. Hatfield was admitted to the West Virginia State Bar on May 20, 1975, by diploma privilege. Accordingly, he is subject to the disciplinary jurisdiction of this Court and its properly constituted LDB. Below we set out the conduct underlying this disciplinary matter as well as the relevant procedural history.

A. Underlying Conduct and Factual Background

The events relevant to the instant proceeding occurred in 2013. At some point in 2013, Mr. Hatfield visited the Cherry Bomb Gentlemen's Club with a friend. While at the club, the friend introduced Mr. Hatfield to B.W. [2] Mr. Hatfield claims that he then proceeded to pay B.W. for a lap dance. [3] Subsequent to this interaction, [4] on August 29, 2013, [5] B.W. filed a complaint before the LDB alleging that during that same month she had asked Mr. Hatfield to represent her in a divorce action in Mercer County, West Virginia. B.W. further asserted that Mr. Hatfield "asked whether [B.W.] had $1, 500 for his services and [she] told him [she] did not." B.W. alleged that based on her inability to pay, Mr. Hatfield indicated he would only represent her if she engaged in explicit sexual acts with him in lieu of the $1, 500. "He then persisted in trying to get sexual favors in exchange for representation." B.W. asserted that she "told him that [she] was not interested in him and that [she] had recorded his requests for sexual favors[, ]" and he responded to her that "he did not care because he was 'untouchable.'" In addition to the written complaint, B.W. attached six separate audio recordings to her complaint, which she claimed contained telephone conversations with Mr. Hatfield wherein he requested sex from B.W. in exchange for his representation of her in her divorce proceeding. In one such recording, the following exchange occurred: Mr. Hatfield: I can't do anything. We're just going to have to talk (UI). Okay? Did you take your papers to the courthouse?

B.W.: No not yet because I have to go over there tomorrow.

Mr. Hatfield: Well, take them there and show them to them face to face, show them what you've got and say, look, I need to have forms for me to file, you know, to reply to this.

B.W.: I know, but I thought like when we first started out, I was just going to pay you. I didn't know that you wanted sex out of the whole thing.

Mr. Hatfield: Well, I'd have to charge you like [$]1, 500 bucks. You don't have [$]1, 500, do you?

B.W.: No.

Mr. Hatfield: So come on out here. Just come. What time do you want to come?

B.W.: I don't know if I'd be able to make it because I have to go to work.

Mr. Hatfield: Well, come over here at five.

Mr. Hatfield: Yeah. Okay. You know, if you don't want to - you told me earlier, you'd be over here at seven. Then something else comes up, you stood me up yesterday. And, you know, I'm - it's just not going to work unless you do what I say.

B.W.: What do you want me to do?

Mr. Hatfield: You know what I want you to do. I told you.

B.W.: Well, I'm a little confused.

Mr. Hatfield: Well, there's nothing to be confused about.

B.W.: Well, what do you want me to do?

Mr. Hatfield: Well, I want you to let me eat your p****, and then I want you to let - I want you to suck my d***, and then, you know, I just have to - I'm as straightforward as I can be. And if you don't want to do that, then fine. I don't have any - I like you. And if you don't want to do that, then we'll just have to call it off.

Mr. Hatfield: Is that okay?

B.W.: I mean no, not really because I'm not a whore.

Mr. Hatfield: Well, I'm not treating you as a whore. I'm just telling you, I'm an old man that needs some sex and I like you. And if you want to do it, that's fine. If you don't, that's okay, too. I know you're not a whore. That's ridiculous. But I've been straight up with you, [B.W.], I mean I - you know -[.]

B.W.: Well, I didn't know until today that that's all you wanted.

Mr. Hatfield: Well, I told you today what I wanted and if you don't - if you don't want to come...

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