754 S.E.2d 729
W. Va.2014Background
- Busch, a West Virginia lawyer, served as Randolph County Prosecuting Attorney from 2009 to 2011; misconduct spans 2009–2011 and includes court-ordered disclosures and records handling; the Blake and Faulkner criminal cases involve improper handling of evidence and misrepresentations to the court; the Subcommittee found multiple Rule violations and recommended a three-year suspension and related conditions; Busch resigned as prosecutor in 2011 and has not practiced law since then; the Court adopts the Subcommittee’s sanctions after review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Busch violated Rule 3.3 (false statements to tribunal) | ODC: violations established; Busch admits violation but argues negligent intent | Busch: conduct was negligent, not intentional | Yes, Busch violated Rule 3.3 (intentional findings adopted) |
| Whether Busch violated Rule 3.4 (obstruction/disclosure) | ODC: repeated failures to disclose and comply with court orders | Busch: conduct not deliberate obstruction | Yes, violations of Rule 3.4 established in both cases |
| Whether Busch violated Rule 3.8 (prosecutor duties) | ODC: failure to disclose exculpatory evidence and misstatements undermine duties | Busch: duties misunderstood or misapplied | Yes, Rule 3.8 violations found in Blake and Faulkner cases |
| Whether Busch violated Rule 8.4(c)/(d) (dishonesty, interference with administration of justice) | ODC: false representations to court and counsel; misrepresentations in filings | Busch: disputed seriousness of misrepresentations | Yes, violations of Rule 8.4(c) and (d) established |
| Whether three-year license suspension is appropriate given mitigating/aggravating factors | Subcommittee recommended three-year suspension with additional requirements | Busch contends punishment should be lesser due to negligenc e | Yes, three-year suspension adopted with specified conditions |
Key Cases Cited
- Committee on Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987) (1987) (deterrence and public confidence in ethics standards described)
- Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998) (1998) (sanctions framework and mitigating/aggravating factors)
- Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003) (2003) (list of mitigating and aggravating factors; standards for sanctioning)
- Committee on Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989) (1989) (public office misconduct considerations; heightened sanctions for public officials)
- Committee on Legal Ethics v. Keenan, 192 W. Va. 90, 450 S.E.2d 787 (1994) (1994) (public protection role of disciplinary proceedings)
- McCorkle v. Committee on Legal Ethics, 192 W. Va. 286, 452 S.E.2d 377 (1994) (1994) (standard of de novo review for questions of law and sanctions)