780 S.E.2d 628
W. Va.2015Background
- J. L. Clifton II, formerly an assistant prosecuting attorney (Pocahontas County), was investigated after a criminal indictment (later dismissed) arising from sexual-contact allegations by three women (T.S., K.M., L.B.).
- Investigators and the Office of Disciplinary Counsel (ODC) found evidence (recorded meeting, Facebook messages, saved photos/videos, testimony) that Clifton engaged in sexual conduct with these women while he held prosecutorial authority or while they were involved with the criminal-justice system.
- The ODC charged Clifton with violating the West Virginia Rules of Professional Conduct (Rules 1.7(b), 8.1(a), 8.4(b), 8.4(c), 8.4(d)); Clifton partially invoked the Fifth Amendment during criminal proceedings and initially denied or mischaracterized conduct to investigators and the ODC.
- A Hearing Panel Subcommittee (HPS) found Clifton violated the cited Rules, concluded he used his office to obtain sexual favors from vulnerable women, and recommended a two-year suspension plus conditions (psych evaluation, supervised practice on reinstatement, ethics CLE, costs).
- ODC sought annulment of Clifton’s license; Clifton sought significantly lesser discipline. The Supreme Court of Appeals reviewed de novo and, finding multiple aggravating factors (abuse of public office, pattern, dishonesty, vulnerability of victims), annulled Clifton’s law license and ordered reimbursement of costs.
Issues
| Issue | Plaintiff's Argument (ODC) | Defendant's Argument (Clifton) | Held |
|---|---|---|---|
| Timeliness under Rule 2.14 (statute of limitations for complaints) | Complaint timely because ODC opened it upon learning of alleged violations (Clifton self‑reported indictment) | Some allegations predated complaint by >2 years and should be dismissed | Held: ODC complaint timely; Rule 2.14 not a bar because ODC filed upon learning of violation |
| Sufficiency/credibility of evidence (findings of fact) | HPS findings supported by recordings, messages, multiple witnesses, investigators’ testimony and discovery of tape/photos | Witnesses inconsistent; evidence unreliable; HPS findings unsupported | Held: Substantial deference to HPS credibility findings; record contains reliable, probative, substantial evidence supporting HPS |
| Violations of Rules 1.7(b), 8.1(a), 8.4(b), 8.4(c), 8.4(d) | Conduct (sexual relations with persons tied to criminal matters, false statements to investigators and ODC) violated those Rules | Denied some contacts and misuse of office; denied or challenged some Rule violations | Held: Court adopted HPS conclusions—Clifton violated Rules 1.7(b), 8.1(a), 8.4(b), 8.4(c), and 8.4(d) |
| Appropriate sanction (suspension vs. annulment) | Annulment required given abuse of prosecutorial power, pattern, multiple victims, dishonesty, harm to public trust | Recommended lesser discipline (public reprimand, monitoring, or suspension) | Held: Two‑year suspension inadequate; annulment ordered due to egregious, repeated misconduct and betrayal of public trust |
Key Cases Cited
- Comm. on Legal Ethics v. Blair, 174 W. Va. 494 (Court is final arbiter of legal ethics and decides discipline)
- Comm. on Legal Ethics v. McCorkle, 192 W. Va. 286 (de novo review for legal questions; deference to Board fact findings)
- Comm. on Legal Ethics v. Walker, 178 W. Va. 150 (disciplinary sanctions must punish, deter, and restore public confidence)
- Comm. on Legal Ethics v. Roark, 181 W. Va. 260 (ethical violations by public officers are more egregious)
- Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209 (defines aggravating/mitigating factors for lawyer discipline)
- Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495 (factors for sanctions under disciplinary procedure)
- Lawyer Disciplinary Bd. v. Amos, 233 W. Va. 610 (suspension appropriate for misconduct by assistant prosecuting attorney; distinguished on facts)