Former Prosecutor’s License Annulled
The West Virginia Supreme Court of Appeals has annulled a former prosecutor’s license for job-related sexual misconduct, rejecting a Hearing Panel Subcommittee’s proposed two-year suspension.
Mr. Clifton lives and works in Marlinton, Pocahontas County, West Virginia. Before he started law school in 2004, Mr. Clifton operated a bar/restaurant, was a police officer, and worked for Child Protective Services, all in Marlinton. Upon successful completion of law school and the bar examination, Mr. Clifton was admitted to the bar on November 5, 2007. Directly following his admission, Mr. Clifton served as an assistant prosecuting attorney for Pocahontas County from November 7, 2007, to January 15, 2011. Mr. Clifton began working for the prosecutor’s office part-time, ultimately shifting to full-time employment before leaving the office in 2011 for private practice.
In August 2012, a criminal investigation of a police officer in Marlinton led the State Police and the Federal Bureau of Investigation (“FBI”) to investigate Mr. Clifton. Mr. Clifton was indicted on two counts of sexual assault in the second degree and two counts of imposition of sexual intercourse on an incarcerated person in the Circuit Court of Pocahontas County.
The criminal charges were dismissed with prejudice but
The [Office of Disciplinary Counsel] obtained a copy of the files concerning the criminal investigation, and using that information, the ODC identified three women who, it determined, engaged in sexual conduct with Mr. Clifton in his office while he served as an assistant prosecuting attorney. The ODC contended that Mr. Clifton’s sexual involvement with these women was unethical, and the Investigative Panel of the [Lawyer Disciplinary Board] detailed the alleged unethical conduct in a statement of charges…
Which led to findings of misconduct
First, with regard to T.S., the HPS found that T.S. performed oral sex on Mr. Clifton in his assistant prosecuting attorney’s office and that she provided him with sexually explicit photos and videos he solicited while she was on probation and participating in day report [a court-ordered program]…Also with regard to Mr. Clifton’s relationship with T.S., the HPS found that Mr. Clifton provided false information to the ODC when he denied the conduct alleged in the indictment…
Second, the HPS found that Mr. Clifton attempted to require K.M. to perform oral sex on him when she went to his office at the prosecutor’s office about her son’s criminal case…
Third, the HPS found that L.B. performed oral sex on Mr. Clifton in his assistant prosecuting attorney’s office after she approached him with an inquiry about a criminal matter while she was both a defendant and a victim.
T.S. was on probation and unhappy with the court-ordered program. He reached out to her
After T.S. began Day Report, Mr. Clifton sent her a message on Facebook, a social networking website, regarding a picture she had posted of herself. Mr. Clifton testified, “I told her I really liked this one photo of her backside toward a camera where she was wearing only panties and I said ‘Yeah, I really like that one.’ And she said ‘Well, it looks a lot better now.’ And I said, ‘You’ll have to show me.’” Both T.S. and Mr. Clifton stated that following the messages regarding the picture, the two began an ongoing correspondence. T.S. testified that she told Mr. Clifton that she was upset about having to take part in Day Report. She testified, “I didn’t want to be on day report and he told me that he could maybe help me.” According to T.S., in response to her displeasure with Day Report, Mr. Clifton told her “to stop by [his office at the courthouse] sometime.”
She did. Several times.
The other victims had been in sexual relationships with him prior to his becoming an attorney; both were pressured to give him oral sex because of his position.
The court found the violations and imposed annullment
It is apparent from the record before us that Mr. Clifton knowingly and intentionally violated a duty to his former client, the State. By engaging in sexual relationships with T.S., K.M., and L.B.—all of whom were, at some point during the time Mr. Clifton was an assistant prosecuting attorney, a victim, a defendant, or seeking help for another defendant—Mr. Clifton created a conflict of interest with his client. This same activity also violates his duty to the public and the legal system. As a public officer charged with the prosecution of criminal cases, abusing his position by engaging in sexual relationships with T.S., K.M., and L.B. impacted the fair administration of justice. Mr. Clifton acknowledged that his conduct, at least as far as the sexual banter and explicit photograph exchanges with T.S. are concerned, created “an inescapable negative reflection” on the legal profession. Finally, by providing false information to investigators regarding his relationship with T.S. and then by providing false information to the ODC regarding the recording of the sexual encounter between himself and K.M., Mr. Clifton violated a duty to the legal system and to the profession.
The amount of real injury in this case is great. As the HPS aptly surmised, it is not likely that the women who made the allegations against Mr. Clifton will be trusting of lawyers and the legal system in the future. By using his position as assistant prosecuting attorney to elicit sexual behavior from vulnerable women—women involved in criminal matters and/or seeking his help—he has damaged the prosecutor’s office in Pocahontas County and the legal profession on the whole.
The ODC charges are linked here.
The West Virginia Record had a report on the civil case filed by T.S. against the attorney and a police officer. (Mike Frisch)