760 S.E.2d 424
W. Va.2014Background
- ODC charged Amos with violating Rules 1.7(b), 4.2, and 8.4(d) due to non-consensual outside-counsel communications with a represented party (Ms. C.) in a child abuse/neglect case where Amos was DHHR’s assistant prosecutor.
- Factual record shows June 2011 social encounter with Ms. C. at bars including a strip club, followed by discussions of the abuse/neglect case and inappropriate conduct, including seeking access to her home and children’s bedrooms.
- Amos self-reported misconduct after informing the presiding judge and Prosecutor Plymale; he resigned as assistant prosecutor and cooperated with disciplinary proceedings.
- Hearing Panel found misconduct and recommended a 75-day suspension with automatic reinstatement, plus other conditions including avoidance of abuse/neglect work for a year and counseling.
- Court did not concur with the panel’s sanction; analyzed mitigating and aggravating factors and determined a 75-day suspension was appropriate, with a one-year prohibition from abuse/neglect proceedings and ongoing counseling and cost reimbursement.
- Concluding sanctions: 75-day suspension with automatic reinstatement, one-year ban from abuse/neglect proceedings in any capacity, mandatory counseling, and payment of disciplinary costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 75-day suspension is appropriate. | ODC/Amos: panel’s 75-day suspension appropriate; mitigated factors support suspension. | Amos: panel’s sanctions should be adopted; mitigations justify a suspension rather than harsher punishment. | Court adopts 75-day suspension (not public reprimand) with additional conditions. |
| Whether Amos’ conduct justified a bar from abuse/neglect proceedings beyond one year. | Panel’s one-year ban from abuse/neglect proceedings is sufficient and appropriate. | N/A (Amos agrees with panel; focus is court’s modification). | Court prohibts Amos from any role in abuse/neglect proceedings for one year (no guardian ad litem allowance). |
| Whether the disciplinary sanction should consider Amos’ mitigating and aggravating factors. | Mitigating factors (no prior record, cooperation, remorse) weigh against harsher punishment. | Aggravating factors (position of authority, vulnerability of Ms. C., repeated misconduct) justify stronger discipline. | Court weighs factors and imposes suspension with additional sanctions reflecting aggravation and mitigation. |
| Whether the court should depart from Hearing Panel’s recommended sanctions. | Court should defer to panel’s recommendations given mitigating factors. | N/A (Amos agrees with panel; focus is court’s independent decision). | Court rejects panel’s recommended public reprimand; imposes suspension and additional restrictions. |
| What ancillary sanctions are appropriate (counseling, cost reimbursement). | Maintain panel’s ancillary sanctions (counseling, costs) with suspension. | N/A | Court imposes counseling requirement and costs, aligning with the panel’s broader sanctions. |
Key Cases Cited
- Lawyer Disciplinary Bd. v. Artimez, 208 W.Va. 288 (2000) (considerations of mitigating and aggravating factors in public office discipline)
- Lawyer Disciplinary Bd. v. Chittum, 225 W.Va. 83 (2010) (public office discipline and sanctions standards)
- Committee on Legal Ethics v. McCorkle, 192 W.Va. 286 (1994) (de novo standard for sanctions; factual deference to panel)
- Committee on Legal Ethics v. Blair, 174 W.Va. 494 (1984) (final authority on suspensions and ethical discipline)
- Committee on Legal Ethics v. Walker, 178 W.Va. 150 (1987) (deterrence and public confidence in ethics rules)