COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. James E. ROARK.
No. 18996.
Supreme Court of Appeals of West Virginia.
June 8, 1989.
382 S.E.2d 313
This was the same survey of the law that we made in Star Furniture and, with all deference to the view of the United States Supreme Court, its opinions on product liability law are not binding on the states. The East River decision does not persuade us that tort liability should not be extended to a manufacturer whose defective product creates a potentially dangerous situation to persons and property and results in the sudden destruction of the product itsеlf. We recognized the primary differences between a products liability claim and a breach of warranty claim in Syllabus Point 3 of Star Furniture Co. v. Pulaski Furniture Co., supra:
“In West Virginia, property damage to defective products which result from a sudden calamitous event is recoverable under a strict liability cause of action. Damages which result merely because of a ‘bad bargain’ are outside the scope of strict liability.”
Clearly, under this law, we would not have accorded recovery in East River because the turbines were not damaged as a result of a sudden calamitous event resulting from a defect in the manufacture or design.2 What appears obvious from Star Furniture is that under the “bad bargain” concept, the fact that the product may be flawed or defective, such that it does not meet the purchaser‘s expectations or is even unusable beсause of the defect, does not mean that he may recover the value of the product under a strict liability in tort theory. The purchaser‘s remedy is through the Uniform Commercial Code. See Kesner v. Lancaster, 180 W.Va. 607, 378 S.E.2d 649 (1989). In order to recover under Star Furniture, the damage to the product must result from a sudden calamitous event attributable to the dangerous defect or design of the product itself.
In this case, we reaffirm our decision in Star Furniture. The front-end loader was not merely an ineffective produсt which failed to meet the customer‘s expectations. A defect in the front-end loader caused an abrupt fire which continued to burn until the loader was destroyed. The operator of the loader escaped without injury. The defect in the front-end loader created a potentially dangerous situation and the risk associated with the defect was not one ordinarily contemplated by a purchaser. Clearly, this is the type of property damage resulting “from a sudden calamitous event” which is recoverable under Star Furniture, 171 W.Va. at 84, 297 S.E.2d at 859.
Accordingly, the judgment of the Circuit Court of Kanawha County is affirmed.
Affirmed.
James McIntyre, Charleston, for James E. Roark.
MILLER, Justice:
This is a disciplinary proceeding brought against the respondent, James E. Roark, a licensed attorney. The Legal Ethics Committeе of the West Virginia State Bar (Committee) urges that we uphold its recommendation to suspend Mr. Roark‘s license to practice law for three years, based on his plea of guilty to six counts of the
The respondent аdmits the fact of these convictions, but claims that the penalty recommended by the Committee is too harsh. The respondent first argues that the offense of possession of cocaine is not a crime involving moral turpitude and, therefore, a three-year suspension is not warranted. This argument misperceives the Committee‘s case, based on a charge of violating DR 1-102(A)(4), (5), and (6), which does not involve a moral turpitude issue. The moral turpitude prohibition is contained in DR 1-102(A)(3), which states that a lawyer shall not “[e]ngage in illegal conduct involving moral turpitude.”
We pointed out in Committee on Legal Ethics v. Six, 181 W.Va. 52, 380 S.E.2d 219 (1989), that a charge of illegal conduct involving moral turpitude triggers the penalty set out in Article VI, Section 23 of the By-Laws of the West Virginia State Bar, providing that an “attorney shall be disbarred upon proof that he has been convicted ... of any crimе involving moral turpitude or professional unfitness.” We set out in Syllabus Point 3 of Six our traditional rule:
“‘Section 23, Part E, Article VI of the By-Laws of the West Virginia State Bar imposes upon any Court before which an attorney has been qualified a mandatory duty to annul the license of such attorney to practice law upon proof that he has been convicted of any crime involving moral turpitude.’ Point 2, syllabus, In the Matter of Mann, 151 W.Va. 644 [154 S.E.2d 860] Syllabus, In Re Smith, 158 W.Va. 13, 206 S.E.2d 920 (1974).”
The Committee, as we have previously pointed out, did not bring a moral turpitude charge. Thus, we have no occasion to consider whether the offenses here are crimes of moral turpitude. Moreover, the recommended penalty here is not an annulment of the respondent‘s license, but a three-year suspension.5
Furthermore, we made it clear in Committee on Legal Ethics v. Higinbotham, 176 W.Va. 186, 342 S.E.2d 152 (1986), that an attorney convicted of a crime that does not involve moral turpitude could
The respondent‘s more novel claim is that because he was either the mayor of the City of Charleston or the prosecuting attorney of Kanawha County when these illegal acts occurred, his misconduct must be tested by DR 8-101, which relates to “Action as a Public Official.”6 He further argues that since he did not violate DR 8-101, the Committee was foreclosed from charging him under other Code sections, in effect asserting that DR 8-101 preempts all other sections of the Code where the respondent is a public official. This claim is not based on аny case authority, but on the doctrine of expressio unius est exclusio alterius, which we defined in Syllabus Point 3 of Manchin v. Dunfee, 174 W.Va. 532, 327 S.E.2d 710 (1984): “In the interpretation of statutory provisions the familiar maxim expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of another, applies.”
We question the applicability of this rule to the Code of Professional Responsibility. The Code regulates a variety of separate subjects relating not only to the prаctice of law, but also to the general conduct of an attorney.7 It cannot be said that the ex-
It is apparent that DR 8-101 is designed to provide a special set of duties surrounding the lawyer‘s action as a public official and which relate specifically to his public office. See Graf v. Frame, 177 W.Va. 282, 352 S.E.2d 31 (1986). It cannot be read to cover or exclude all of the other disciplinary rules that a lawyer might violate when not acting as a public servant.
The design of the Code is such that while specific areas оf concern are covered, there is also general disciplinary language in DR 1-102 to control a lawyer‘s personal misconduct. It is in this area that the charges against the respondent are rooted. Consequently, we hold that DR 8-101, relating to a lawyer‘s conduct as a public official, does not supplant the general prohibition against misconduct on the part of lawyers contained in DR 1-102.
We turn now to the proposed penalty. In Syllabus Point 2 of Higinbotham, supra, we spoke to our settled rule that rather than attempt to establish a schedule of punishment, we would make an individualized assessment:
“In disciplinary proceedings, this Court, rather than endeavoring to establish a uniform standard of disciplinary action, will consider the facts and circumstances [in each case], including mitigating facts and circumstances, in determining what disciplinary action, if any, is apprоpriate, and when the committee on legal ethics initiates proceedings before this Court, it has a duty to advise this Court of all pertinent facts with reference to the charges and the recommended disciplinary action.” Syl. pt. 2, Committee on Legal Ethics v. Mullins, 159 W.Va. 647, 226 S.E.2d 427 (1976).
In Syllabus Point 3 of Committee on Legal Ethics v. Walker, supra, we outlined some of the major factors that should be considered in determining a disciplinary penalty:
“In deciding on the appropriate disciplinary actiоn for ethical violations, this Court must consider not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession.”
In mitigation of punishment, the respondent points to testimony before the Committee that he was an active member of a local church in Charleston and that he was elected to the church vestry and asked to remain even after his convictions. He worked in a church-sponsored program which provided meals to underprivileged citizens both before his guilty pleas and after his release from prison. Other witnesses testified that thе respondent carried out his duties as mayor and as prosecuting attorney of Kanawha County with dedication and efficiency. These witnesses also indicated that the respondent‘s drug use was unknown to them, that he never appeared to be under the influence of any drugs, and that while prosecuting attorney, he never attempted to interfere with or influence the prosecution of drug offenders. Finally, in his testimony before the Committee, the respondent himself acknowledged the gravity of his offenses and his personal anguish and contrition over allowing these acts to occur.
The respondent also intimates that the fact he served a prison sentence, paid a
The respondent also argues that his standing as a public official should not be considered as adding to the penalty. We disagree. In Graf, we made this observаtion: “[A]n attorney who is a public official is held to a high standard of conduct because of his or her (1) professional and (2) public trustee responsibilities.” 177 W.Va. at 288, 352 S.E.2d at 38. We went on in Graf to quote from Sanders v. Mississippi State Bar Ass‘n, 466 So.2d 891, 893 (Miss.), cert. denied, 474 U.S. 844, 106 S.Ct. 133, 88 L.Ed.2d 109 (1985): “‘Lawyer insensitivity to ethical impropriety [or perceived ethical impropriety] is one of the primary sources of this lack of public confidence in the Bar. The problem is exacerbated when ethical violations are cоmmitted by an attorney holding an important public office.‘” 177 W.Va. at 289, 352 S.E.2d at 38. (Emphasis added).
Ethical violations by a lawyer holding a public office are not frequently found in reported cases. It does appear, however, that in those cases where this matter has been considered, courts have uniformly viewed the lawyer‘s misconduct as more egregious because of the betrayal of the public trust attached to the office. E.g., People v. Unruh, 621 P.2d 948, 949 (Colo. 1980) (“Respondent‘s flagrant violation of the laws, which he took an oath to uphold and enforce as deputy district attorney, tends to discredit all law enforcement officers.“); Matter of Thomas, 472 N.E.2d 609, 610 (Ind.1985) (“[W]e observe that the Respondent violated the very laws he was obligated to enforce in his professional capacity as a Deputy Prosecutor.“); Sanders v. Mississippi State Bar Ass‘n, supra; Syllabus Point 15, State ex rel. Nebraska State Bar Ass‘n v. Douglas, 227 Neb. 1, 416 N.W.2d 515 (1987), cert. denied, 488 U.S. 802, 109 S.Ct. 31, 102 L.Ed.2d 10 (1988) (“The conduct of a government attorney is required to be more circumspect than that of a private lawyer. Improper conduct on the part of a government attorney is more likely to harm the entire system of government in terms of public trust.“).
Finally, the respondent cites Committee on Legal Ethics v. Harman, 179 W.Va. 298, 367 S.E.2d 767 (1988), where a young attorney delivered a small amount of marijuana to her client who was incarcerated in the county jail. She was allowed to plead guilty to the misdemeanor of consрiring to possess marijuana, was fined $500, and placed on one year probation. Thereafter, she voluntarily withdrew from the practice of law for over one year. She successfully completed her probation period and the Committee, in view of these facts, requested only that she be given a public reprimand. We agreed.
Here, the charges are of a more serious nature. In addition, there is the added element of a violation of the public trust. We believe the Committee‘s recommendation of a three-year suspension to be reasonable under all of the circumstances. It is well within the range of punishment accorded by other courts in narcotics cases. See Annot., 99 A.L.R.3d 288 (1980). In addition, we grant the Committee‘s request for the reimbursement by the respondent of its costs and expenses which amount to $570.98.8
Three-year suspension.
BROTHERTON, C.J., concurs, in part, and dissents, in part, and files a separate opinion.
I concur with the majority opinion that James E. Roark was guilty of professional misconduct in violation of DR 1-102(A)(4), (5), and (6) of the Code of Professional Responsibility. I dissent, however, to that portion of the majority‘s opinion which adopts the Committee on Legаl Ethics’ recommendation of a three-year suspension of Mr. Roark‘s license to practice law.
A three-year suspension of a license to practice law under these circumstances might, and I emphasize might, be a proper punishment for a lawyer practicing in the private arena. That suspension, however, is insufficient for a lawyer who held the constitutional office of prosecuting attorney of Kanawha County.
In failing to fulfill the duties prescribed by statute, Mr. Roark breachеd the trust which exists between an office holder and the citizens whom he represents. Such a violation is not only a breach of the public trust, but is also a tear in the fabric of our form of government. What value is government if we cannot trust our elected officials?
James E. Roark corrupted the office of prosecuting attorney in violation of the statute. Mr. Roark obtained cocaine from known drug dealers and obligingly turned a blind eye to their criminal activities. He socialized with drug dealers at a time when our schools and community were being inundated with drugs. This behavior was all the more unfortunate because citizens relied on Mr. Roark for prosecution and protection without realizing that his office had been compromised. Mr. Roark‘s lack of moral accountability was further evidencеd by his indignant protests to the voters, to the press, and to anyone who would listen, that he had never used drugs, all the while maintaining, consistent with his “mad dog” image, that he was out to clean up crime in Kanawha County.
“Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws ... argues recreancy to his pоsition and office and sets a pernicious example to the insubordinate and dangerous elements of the body politic.” Ex parte Wall, 107 U.S. 265, 274, 2 S.Ct. 569, 576, 27 L.Ed. 552, 556 (1883).2 Mr. Roark violated two sworn oaths, one taken when he was admitted to the practice of law and the other when he was elected prosecuting attorney for Kanawha County. Although the majority recognizes that ethical violations by a lawyer holding a public office are more egregious, its adoption of the Committee‘s recommended three-year suspension does not reflect this position. I believe the gravity of Mr. Roark‘s professional misconduct warrants the annulment of his license to practice law, resulting in disbarment in the State of West Virginia.3 For these reasons, I dissent.
Notes
“(A) A lawyer shall not:
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“(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
“(5) Engage in conduct that is prejudicial to the administration of justice.
“(6) Engage in any other conduct that adversely reflects on his fitness to practice law.”
The ethical violations occurred prior to the adoption of the new Rules of Professional Conduct for lawyers which became effective on January 1, 1989. See W.Va.Code, Court Rules at 439 (1989). Consequently, the references are to the prior Code of Professional Responsibility. See W.Va.Code, Court Rules at 365 (1988). Section 23 of the State Bar Rules (1982) provides for the annulment of the license of an attorney upon conviction of a crime involving moral turpitude or professional unfitness, among other grounds. See In re Robertson, 156 W.Va. 463, 194 S.E.2d 650 (1973).Although we recommend the maximum penalty, we note that the party would not necessarily be permanently disbarred. As the majority noted in footnote 5, section 35 of the State Bar Rules provides that five years after the date of disbarment, the party is permitted to petition this Court for reinstatement.
“While the Syllabus of Smith uses the term ‘annul the license,’ it is clear under Article VI, Section 35 of the Bar By-Laws that disbarment of an attorney and annulment of his license are two ways of expressing the same form of punishment. The annulment of a license to practice law ... shall constitute a disbarment.’ Annulment relates to the license and disbarment refers to the individual. Under Section 35, after a five-year period, an application may be made for reinstatement. See In Re Brown, 164 W.Va. 234, 262 S.E.2d 444 (1980).”
“(A) A lawyer who holds public office shall not:
“(1) Use his public position to obtain, or attempt to obtain, a special advantage in legislative matters for himself or for a client under circumstances where he knows or it is obvious that such action is not in the publiс interest.
“(2) Use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client.
“(3) Accept any thing of value from any person when the lawyer knows or it is obvious that the offer is for the purpose of influencing his action as a public official.”
DR 1-101—Maintaining Integrity and Competence of the Legal Profession.
DR 1-102—Misconduct.
DR 1-103—Disclosure of Information to Authorities.
DR 2-101—Publicity.
DR 2-102—Professional Notices, Letterheads and Offices.
DR 2-103—Recommendation of Professional Employment.
DR 2-104—Suggestion of Need of Legal Services.
DR 2-105—Limitation of Practice.
DR 2-106—Fees for Legal Services.
DR 2-107—Division of Fees Among Lawyers.
DR 2-108—Agreements Restricting the Practice of a Lawyer.
DR 2-109—Acceptance of Employment.
DR 2-110—Withdrawal from Employment.
DR 3-101—Aiding Unauthorized Practice of Law.
DR 3-102—Dividing Legal Fees with a Non-Lawyer.
DR 3-103—Forming a Partnership with a Non-Lawyer.
DR 4-101—Preservation of Confidences and Secrets of a Client.
DR 5-101—Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.
DR 5-102—Withdrawal as Counsel When the Lawyer Becomes a Witness.
DR 5-103—Avoiding Acquisition of Interest in Litigation.
DR 5-104—Limiting Business Relations with a Client.
DR 5-105—Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer.
DR 5-106—Settling Similar Claims of Clients.
DR 5-107—Avoiding Influence by Others Than the Client.
DR 6-101—Failing to Act Competently.
DR 6-102—Limiting Liability to Client.
DR 7-101—Representing a Client Zealously.
DR 7-102—Representing a Client Within the Bounds of the Law.
DR 7-103—Performing the Duty of Public Prosecutor or Other Government Lawyer.
DR 7-104—Communicating With One of Adverse Interest.
DR 7-105—Threatening Criminal Prosecution.
DR 7-106—Trial Conduct.
DR 7-107—Trial Publicity.
DR 7-108—Communication with or Investigation of Jurors.
DR 7-109—Contact with Witnesses.
DR 7-110—Contact with Officials.
DR 8-101—Action as a Public Official.
DR 8-102—Statements Concerning Judges and Other Adjudicatory Officers.
DR 8-103—Lawyer Candidate for Judicial Office.
DR 9-101—Avoiding Even the Appearance of Impropriety.
DR 9-102—Preserving Identity of Funds and Property of a Client.