How About Restitution In Email Snooping Case?

The concurring opinion of Justice Starcher in the West Virginia email snooping case is now posted. The justice would have preferred a remand to explore the issue of restitution:

…the law firm of Offutt Fisher & Nord, suffered a significant economic loss in investigating the unlawful intrusion into its computer e-mail system. OFN was required to hire a computer systems engineer to investigate the integrity of its computer systems and to institute remedial measures. Additionally, OFN was required to expend resources with respect to the investigation and the aftermath of the discovery of the intrusion.

As to the attitude of the accused attorney:

Rather than acknowledging and taking responsibility for his conduct, the respondent suggests that he “has suffered the most from his actions.” Furthermore, the respondent attempts to excuse himself from the obligation for making restitution by pointing to Mr. Offutt’s failure to quantify the amount of the injury during Mr. Offutt’s testimony before the Hearing Panel Subcommittee.

Thus:

I would have preferred to remand this matter to the Lawyer Disciplinary Board with instructions to conduct further investigation into the damages incurred by the law firms of Offutt Fisher & Nord and Huddleston Bolen LLP as a result of he respondent’s conduct. The Board should quantify the damages, review Mr. Markins’ earnings capacity, evaluate his ability to make restitution, and recommend a payment schedule to the Court. With this information, the Court could better determine an appropriate period of suspension for Mr. Markins — whether to impose a longer or shorter suspension, taking into consideration Mr. Markins’ obligation to make restitution in this matter.

(Mike Frisch)