Rationalizations Prevent Reinstatement

The West Virginia Supreme Court of Appeals has denied a petition for reinstatement of a disbarred attorney

This matter arises from the recommendation of the Hearing Panel Subcommittee (“HPS”) that petitioner C. Michael Sparks (“petitioner”) be reinstated to the practice of law with a two-year period of supervision, following his disbarment by consent in October 2013. Petitioner’s consent to disbarment was an express term of his agreement to plead guilty to a federal misdemeanor arising from an investigation into political and judicial corruption in Mingo County, West Virginia. Despite opposing his reinstatement before the HPS due to inconsistencies regarding his role in the crime, the Office of Disciplinary Counsel (“ODC”) now consents to the HPS’s recommendation of reinstatement.

This Court has before it all matters of record, including the exhibits and a transcript of the evidentiary hearing conducted by the HPS, as well as the briefs and arguments of petitioner and ODC. Upon our independent review, we conclude that petitioner has failed to meet his requisite burden to warrant reinstatement at this time and therefore reject the HPS’s recommendation and deny the petition for reinstatement.

Original action

Petitioner, who was admitted to the West Virginia State Bar in 1996, was originally elected Mingo County Prosecuting Attorney in 2004. He was thereafter twice reelected and resigned in 2013 as part of a federal plea deal for his role in a political and judicial corruption scandal in Mingo County involving former Judge Michael Thornsbury  (“Thornsbury”). Petitioner pled guilty to violating 18 U.S.C. § 242 (1996), aiding and abetting deprivation of a constitutional right under color of law, a misdemeanor, for his role in a scheme to entice a criminal defendant to discharge his counsel, who was believed to be providing the press and/or FBI with information damaging to the then-Mingo County Sheriff. As part of his plea agreement, petitioner was required to surrender his law license, which was annulled by consent on October 11, 2013, pursuant to Rule 3.25 of the West Virginia Rules of Lawyer Disciplinary Procedure. This is his first petition for reinstatement.

By way of background, when running for prosecutor petitioner affiliated himself with a slate of political candidates headed by Thornsbury and referred to as “Team Mingo.” Eugene Crum, former magistrate and Mingo County Sheriff (“Sheriff Crum”), who was murdered in early 2013, and County Commissioner David Baisden (“Baisden”) were also part of this slate. Those who affiliated themselves with a slate of candidates led by former Senator Truman Chafin were perceived by Team Mingo to be political adversaries and included Attorney Charles “Butch” West (“West”), who ran against petitioner in his final bid for prosecutor.

In 2013, a federal investigation into political and judicial corruption in Mingo County was launched. Following the April 2013 murder of Sheriff Crum, petitioner began cooperating with the FBI in May and viewed himself as a “collaborator” in the federal investigation. The scandal was publicly brought to light through an August 2013, indictment against Thornsbury alleging crimes of corruption stemming from his vendetta against the husband of his assistant, with whom he was allegedly having an extramarital affair (the “Thornsbury indictment”). Although he was not charged in the Thornsbury indictment, petitioner was specifically named and implicated in certain of its allegations.

Petitioner was instead charged in an October, 2013, information and pled guilty to a crime involving George White (“White”), discussed infra. Thornsbury was also charged separately by information in this incident and likewise pled guilty, resulting in the dismissal of the initial indictment against him.

The court noted Petitioner’s plea admissions

Ten years later, in 2023, petitioner filed the instant petition for reinstatement. In both his sworn statement and subsequent testimony before the HPS, petitioner took a similar position regarding his role in the crime as that which concerned the district court: that he simply failed to intervene in the scheme to deprive White of his counsel. Petitioner further took the newly-established position that he offered White no better plea deal than he would have any other defendant—in stark contrast to the factual predicate upon which the district court accepted his guilty plea. Petitioner characterized his conduct as a “failure to act more proactively and to protect [White’s] right to counsel of choice[]” and that he utilized his customary graduated plea negotiation strategy.

With regard to his role in facilitating the scheme that was specifically probed by the district court, petitioner testified that any knowledge of the scheme was largely intuition. Petitioner testified that when he was advised White was changing counsel, “I should have done something, because, you know, I was aware that—that the judge—” and “I knew—at least had reason to believe that there was great bigger—there was other things at play here.” When petitioner was asked why Baisden would want West off the case,  petitioner replied: “[I]t had that stench to it that, you know, ‘Here we go.’ . . . . I should have said, you know, ‘Hey, guys, this is—you know, I know what’s going on here. This is no good.’” (Emphasis added). Petitioner admitted that “from talking to [Baisden] . . . [petitioner] knew that part of this thing that was going on, they were . . . going to make sure [White] got a different lawyer[.]”

Regarding the plea offer made to White, petitioner testified extensively that he offered White plea terms consistent with his customary practice of reducing more than three charges to two, typically reserving a counteroffer to run sentences concurrently as plea negotiations continued. According to petitioner, he offered to drop three of the five counts while West still represented White. Baisden thereafter approached him and asked if he could “do better” than the offer on the table; later, Baisden approached him again and stated “‘we’re getting rid of—[White] is going to get a new attorney.’” However, petitioner emphasizes that he had already made an initial offer to reduce the charges to West, who then withdrew as counsel without “[coming] back to me[.]” After White obtained new counsel, petitioner then negotiated the charges as running concurrently with White’s substitute counsel, a friend of Thornsbury’s. Petitioner further testified that he later became aware that Thornsbury had advised Baisden that White would not get probation with West as his attorney and that at White’s sentencing, he recommended probation. Petitioner excused his “failure to act” to prevent the coercion to change counsel by reasoning, “‘He’s going to get the same deal he’s going to get anyway,’ you know, so I did nothing about it.”

Inconsistency troublesome

This disparity between the stipulation—as a necessary factual basis for the district court’s acceptance of his plea—and his current testimony prompted ODC to oppose petitioner’s reinstatement, as per its proposed recommended findings to the HPS. In those proposed findings, ODC argued that based on the seriousness of the underlying conduct and because petitioner had not shown the requisite rehabilitation by virtue of his equivocation about his role, he should not be reinstated. ODC noted that petitioner had been practicing for seventeen years at the time of the misconduct and argued that his current repackaging of his role in the crime was a poor reflection on his character and integrity, deeming his equivocation “striking and troublesome.”

The court

With the certainty and gravity of petitioner’s misconduct in little doubt, we find that the position he has taken in the instant proceedings reflects poorly on his current rehabilitation, fitness, and integrity. We have held that rehabilitation is “demonstrated by a course of conduct that enables the court to conclude there is little likelihood that after such rehabilitation is completed and the applicant is readmitted to the practice of law he will engage in unprofessional conduct.”

…In this case, we cannot ignore petitioner’s unjustifiable position that although he admitted, under oath, to facts for the purpose of avoiding more serious criminal exposure, he should now be permitted to minimize his “actual” involvement and be granted the favor of leniency as a result. And while we do not presume to wholly dismiss petitioner’s stated regret, this posturing makes his acceptance of responsibility appear more expedient than sincere.

The court thus rejected a finding of remorse

A lawyer who offers continued “rationalizations, extenuating circumstances, absence of thorough memory, or evasiveness” while seeking reinstatement only diminishes otherwise compelling evidence of rehabilitation. DiTrapano I, 233 W. Va. at 775, 760 S.E.2d at 589 (Workman, J., concurring). Accordingly, we find that in the course of this proceeding petitioner has failed to presently demonstrate the requisite rehabilitation, integrity, and fitness to be returned to the practice of law.

Walker, Justice, dissenting, and joined by Justice Trump:

I respectfully disagree with the majority’s decision to deny C. Michael Sparks’s petition for reinstatement to the West Virginia State Bar. Mr. Sparks established by clear and convincing evidence that he “presently possesses the integrity, moral character and legal competence to resume the practice of law,” has an exemplary “record of rehabilitation,” and that his reinstatement will not have an “adverse effect on the public confidence in the administration of justice[.]” For these reasons, I would accept the recommendation of the Hearing Panel Subcommittee that Mr. Sparks be reinstated to the practice of law with a two-year period of supervision, along with its other recommendations.

Majority error

Regrettably, the members of the majority appear to be projecting their own perceptions about the extent of Mr. Sparks’s participation in the Mingo County political  and judicial scandal and unfairly punishing him for the crimes of former Judge Thornbury. The majority extensively discusses the Thornsbury indictment and insinuates that Mr. Sparks must also be guilty of other crimes, without affording him the basic benefit of a trial. The majority disregards the fact that a person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In the same way, the majority faults Mr. Sparks for the Office of Disciplinary Counsel’s unilateral decision to not reopen and investigate complaints that it closed a decade ago. Then, on a cold record and without evidentiary basis, the majority declares that several of the rule violations asserted by the ODC in those other cases “would likely have been substantiated had he not consented to the closure of those matters as part of his disbarment[.]”  This ignores Mr. Sparks’s constitutional right to due process and improperly disregards the fact that it was never his burden to prove his innocence of those charges.

Redemption merits reinstatement

A disbarred lawyer who, as the evidence before us demonstrates, has redeemed himself and is a competent legal advocate should not be kept out of the profession to which he has devoted much of his life and means. Unless our decisions are based on evidence and the rule of law uniformly applied, they are nothing more than arbitrary determinations that change from time to time according to the whims of the individual members of the Court; when that occurs, we have a government of men and not of law.

(Mike Frisch)