811 S.E.2d 893
W. Va.2018Background
- Benjamin F. White, admitted 2005, represented A.S. (a criminal defendant with substance-abuse history) in a 2015 felony child-neglect matter and never reduced fees/scope to writing.
- While counsel of record White pursued an intimate sexual relationship with A.S., supplied her alcohol and prescription Xanax while she was on probation, and took her on out-of-town trips where sexual relations occurred.
- A.S.’s probation was later revoked after positive drug screens; she reported White’s conduct and he was removed as counsel in June 2015.
- The Lawyer Disciplinary Board charged White with multiple Rules of Professional Conduct violations (including Rules 1.7, 1.8(e), 1.8(j), 1.5(b), 4.2, and 8.4); White failed to timely respond or provide discovery, and the HPS deemed the factual allegations admitted.
- The Hearing Panel Subcommittee found violations and recommended a five-year suspension; the Office of Disciplinary Counsel consented but the Supreme Court considered the matter de novo.
- The Court found multiple aggravating factors (prior discipline, client vulnerability, White’s misconduct during proceedings including failing to file a brief) and annulled White’s law license and assessed costs.
Issues
| Issue | Petitioner (LDB/ODC) Argument | Respondent (White) Argument | Held |
|---|---|---|---|
| Whether White violated the Rules of Professional Conduct | White knowingly pursued a sexual/financial relationship, provided drugs/alcohol to a probationer, failed to communicate fees — violating Rules 1.7, 1.8(e), 1.8(j), 1.5(b), and 8.4 | (No effective response filed; factual allegations were deemed admitted) | Court accepted HPS findings that White violated the cited rules. |
| Standard of review for Board recommendations | HPS’s findings deserve respectful consideration but Court exercises independent judgment on sanctions | N/A (White defaulted) | Court applied de novo review for sanctions and substantial deference to factual findings. |
| Appropriate sanction for admitted ethical violations | Five-year suspension acceptable to HPS; ODC later urged annulment given subsequent misconduct | N/A (no responsive advocacy) | Because of the egregious misconduct and aggravating factors, including failure to comply with Court’s order, Court annulled White’s license. |
| Whether respondent’s failure to comply with Court directives can aggravate sanction | Failure to file a responsive brief and to cooperate during proceedings warrants enhancement of discipline | (No defense presented) | Court held such post‑report misconduct is an aggravating factor justifying increased sanction. |
Key Cases Cited
- Committee on Legal Ethics v. McCorkle, 192 W. Va. 286 (1994) (standard of review: de novo for law/sanctions, deference to board fact-finding)
- Committee on Legal Ethics v. Blair, 174 W. Va. 494 (1984) (Supreme Court is final arbiter of attorney discipline)
- Committee on Legal Ethics v. Walker, 178 W. Va. 150 (1987) (sanctioning must punish, deter, and restore public confidence)
- Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495 (1998) (factors to consider under Rule 3.16 for sanctions)
- Lawyer Disciplinary Board v. Scott, 213 W. Va. 209 (2003) (enumeration of mitigating and aggravating factors)
- Lawyer Disciplinary Bd. v. Grafton, 227 W. Va. 579 (2011) (post-report misconduct may justify enhanced discipline)
- Lawyer Disciplinary Bd. v. Stanton, 225 W. Va. 671 (2010) (prior suspension for pursuing a personal relationship with a vulnerable client)
- Lawyer Disciplinary Bd. v. Nessel, 234 W. Va. 695 (2015) (discipline for gifts/financial assistance to clients and related sanctions)
- Lawyer Disciplinary Bd. v. McGraw, 194 W. Va. 788 (1995) (ODC burden to prove charges by clear and convincing evidence)