Lawyer Disciplinary Board v. Mark S. Plants
239 W. Va. 347
W. Va.2017Background
- Mark S. Plants, elected Kanawha County prosecuting attorney, was the subject of two 2014 incidents: (1) alleged whipping of his son with a belt leading to a domestic battery complaint and (2) contact with his ex-wife and children while an Emergency Protective Order (EPO) was in effect.
- Family court found domestic violence by clear and convincing evidence and entered a 90‑day Domestic Violence Protective Order; the EPO prohibited contact and communication.
- Plants entered a pretrial monitoring agreement, completed a batterers intervention program, and the magistrate dismissed the misdemeanor charges.
- Collateral proceedings removed Plants from certain prosecutions and ultimately a three‑judge panel removed him from office for malfeasance; he did not appeal that removal.
- The Lawyer Disciplinary Board charged Plants with violating Rules 1.7(b) (conflict of interest), 3.4(c) (knowingly disobeying a tribunal rule), and 8.4(b)/(d) (criminal act; conduct prejudicial to administration of justice).
- The Hearing Panel Subcommittee (HPS) found clear and convincing evidence of the violations and recommended a public reprimand and costs; the Office of Disciplinary Counsel (ODC) sought a three‑month suspension. Plants consented to the HPS sanctions.
Issues
| Issue | Plaintiff's Argument (ODC) | Defendant's Argument (Plants) | Held |
|---|---|---|---|
| Whether Plants violated Rule 1.7(b) (conflict of interest) by creating a non‑waivable conflict while prosecuting office matters after conduct giving rise to domestic battery charges | Plants’s conduct created a personal interest that materially limited his official duties; removal from relevant prosecutions did not cure the conflict sufficiently — merited discipline | Plants contended corporal punishment was lawful discipline and disputed the conflict finding in briefing (but did not properly object on appeal) | Court: Clear and convincing evidence supported HPS finding of a non‑waivable conflict in violation of Rule 1.7(b) |
| Whether Plants knowingly disobeyed a tribunal order in violation of Rule 3.4(c) by communicating while the EPO was in effect | ODC: Plants knowingly violated the EPO by communicating with his children (and indirectly with his ex‑wife) while aware of its terms | Plants denied knowingly violating the order and emphasized concern for child safety; did not assert an open refusal based on lack of obligation | Court: HPS finding that Plants knowingly violated the EPO is supported by the record; violation of Rule 3.4(c) sustained |
| Whether Plants committed a criminal act/engaged in conduct prejudicial to the administration of justice (Rule 8.4(b)/(d)) | ODC: Criminal conduct and knowing violation of a court order reflect adversely on fitness and prejudice administration of justice | Plants argued lack of intent to injure and that charges were dismissed after compliance with monitoring | Court: HPS finding that the conduct satisfied Rules 8.4(b) and 8.4(d) is supported by clear and convincing evidence |
| Appropriate sanction: public reprimand (HPS) vs. three‑month suspension (ODC) | ODC: Suspension appropriate to vindicate public trust and deter prosecutors who violate criminal law or court orders | Plants consented to public reprimand; emphasized mitigating factors (no prior discipline, removal from office, dismissal of criminal charges) | Court: Adopted HPS sanction — public reprimand and payment of costs; suspension not warranted given mitigating factors and prior removal from office |
Key Cases Cited
- Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994) (standard of review in disciplinary appeals)
- Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984) (Supreme Court is final arbiter of lawyer discipline)
- Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987) (factors and goals in selecting sanctions: punishment, deterrence, restore public confidence)
- Committee on Legal Ethics of W. Va. State Bar v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989) (ethical violations by public officials viewed as more egregious)
- Office of Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998) (factors to consider in imposing sanctions)
- Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003) (mitigating and aggravating factors list)
- Committee on Legal Ethics v. Mullins, 159 W.Va. 647, 226 S.E.2d 247 (1976) (case‑by‑case consideration of disciplinary action)