No Suspension For Former Prosecutor

The West Virginia Supreme Court of Appeals has reprimanded a former prosecutor for domestic battery and violating a court order

This lawyer disciplinary proceeding is before the Court upon the written objection of the Office of Disciplinary Counsel (“ODC”) of the Lawyer Disciplinary Board (“LDB”) to the sanctions recommended by the Hearing Panel Subcommittee (“HPS”) of the LDB. The HPS found that Respondent Mark S. Plants violated three provisions of the West Virginia Rules of Professional Conduct and recommended that Mr. Plants be publicly reprimanded and pay the costs of these proceedings. Mr. Plants does not challenge the recommended sanctions.

The ODC asserts that the appropriate sanction in this case is a suspension of Mr. Plants’s license to practice law for three months based upon the seriousness of the violations involving domestic battery and the knowing violation of a court order by this former elected prosecuting attorney. The ODC also urges this Court to address the admissibility of expert testimony offered on the issue of violations of the West Virginia Rules of Professional Conduct.

…we adopt the sanctions recommended by the HPS. 

The story

The charges filed by the ODC against Mr. Plants arose out of two incidents that resulted in criminal complaints against him. First, on February 26, 2014, Allison Plants, Mr. Plants’s ex-wife (“Ms. Plants”), reported to the West Virginia State Police that Mr. Plants had injured their son by whipping him with a belt. The next day, Ms. Plants filed a Domestic Violence Petition seeking protection for herself and their two minor children. The magistrate/family court issued a Domestic Violence Emergency Protective Order (“Emergency Protective Order”) on February 27, 2014, concluding that Ms. Plants had proved “the allegations of domestic violence or abuse by clear and convincing evidence of immediate and present danger of abuse.”

…On March 17, 2014, while the Emergency Protective Order was in effect, Ms. Plants reported that in the parking lot at the Fruth Pharmacy in Charleston, West Virginia, Mr. Plants spoke to their two children at her vehicle and then spoke to her. During the hearing before the HPS, Mr. Plants admitted that he spoke with his children but denied that he communicated with Ms. Plants. Mr. Plants further acknowledged that he was aware of the terms of the Emergency Protective Order at the time of this incident. The evidence adduced during the hearing was that as Mr. Plants was exiting Fruth Pharmacy, Ms. Plants entered the same location. After exiting Fruth Pharmacy, Mr. Plants observed his children waving to him from inside Ms. Plants’s car in the parking lot and he walked over to speak with them. After Ms. Plants returned to her car, Mr. Plants walked away. The next day, the State Police filed a criminal complaint in magistrate court charging Mr. Plants with violating the Emergency Protective Order based upon this incident. 

Sanction

The ODC urges this Court to impose a harsher sanction than public reprimand in this lawyer disciplinary matter but takes no other issue with the findings of fact and conclusions of law of the HPS. According to the ODC, Mr. Plants’s conduct warrants a stronger sanction to send a clear message that when an elected prosecuting attorney engages in conduct that results in a conflict of interest and knowingly violates the terms of a court order, this Court will suspend that prosecutor’s license because such conduct violates the public trust in the very official elected to enforce the law. The ODC urges this Court to impose a three-month suspension of Mr. Plants’s law license…

In this case, the HPS found three mitigating factors: (1) Mr. Plants did not have a prior disciplinary record; (2) Mr. Plants had been removed from office as the elected Prosecuting Attorney of Kanawha County; and (3) the magistrate court dismissed the misdemeanor criminal complaints against Mr. Plants. The HPS also found one aggravating factor: Mr. Plants refused to acknowledge his wrongful conduct when he maintained that he did not commit a crime by speaking with his children in violation of the Emergency Protective Order. Taking into account these mitigating and aggravating factors, the HPS recommended that Mr. Plants be publicly reprimanded…

As the final arbiters of the discipline to be imposed in this case, we know we must keep in mind our prior decisions involving public officials generally and prosecuting attorneys specifically and take into account our responsibility to consider not only appropriate punishment on a case-by-case basis, but also our goals of achieving a deterrent effect and the restoration of public confidence in the ethical standards of the legal profession. Given the facts and circumstances of this case, we are not persuaded that suspending Mr. Plants would achieve the goal of holding him to a higher standard as a former prosecutor or would send a stronger message than a public reprimand… 

The misdemeanor criminal charges against Mr. Plants were dismissed based upon his full compliance with the requirements of a pre-trial monitoring agreement. He accepted the ruling removing him from office as prosecuting attorney and did not extend those proceedings by filing an appeal. Finally, we note that he had no prior disciplinary record. We agree with the HPS, which observed that “despite the fact that [Mr. Plants] held public office at the time of the incidents in question and, as such, may be held to a higher standard in these proceedings, the sanctions imposed must be justified by the conduct of Respondent, rather than linked to any publicity the matter may have received.” The hearing record is replete with testimony regarding personal and political matters, the discussion of which would not serve our goals for this proceeding. We conclude that given Mr. Plants’s circumstances as a former prosecutor and current sole practitioner, suspension would not serve as a greater punishment to him or deterrent to others than removal from office has already served. 

The court held that the issue of admission of expert testimony – the attorney’s former counsel opined as a expert that he had violated no ethics rules – was moot.

During the course of discovery, Mr. Plants retained Robert H. Davis, Jr., who had previously served as his legal counsel, as an expert witness on the Rules of Professional Conduct. In an evidentiary deposition, Mr. Davis testified that Mr. Plants’s conduct did not violate the West Virginia Rules of Professional Conduct. The ODC filed a pre-hearing motion in limine to preclude the expert testimony. The HPS denied the motion, concluding that “having reviewed the transcript in its entirety, [the HPS] will give said testimony such weight as the Hearing Panel Subcommittee members determine appropriate when making the recommended disposition to the Supreme Court of Appeals of West Virginia, pursuant to Rule 3.10 of the Rules of Disciplinary Procedure.”

…In this case, while the HPS ruled in a pre-hearing motion that the deposition testimony could be offered into evidence at the disciplinary hearing, the HPS ultimately gave no weight whatsoever to Mr. Davis’s opinions in its report to this Court. Since we have adopted the HPS’s recommended sanction of public reprimand without modification in this proceeding, the HPS’s admission of the testimony of Robert M. Davis, Jr. is moot. Consideration of its admissibility at the hearing below would avail nothing in the determination of the appropriate sanction to be imposed upon Mr. Plants, which is the only issue before us.

(Mike Frisch)