Sherri D. Goodman, Esq.
Bar Counsel, West Virginia State Bar
Charleston, West Virginia
Attorney for the Complainant
Robert C. Chambers, Esq.
Guy R. Bucci L.C.
Charleston, West Virginia
Attorney for the Respondent
The Opinion of the Court was delivered PER CURIAM.
JUSTICE NEELY dissents and reserves the right to file a dissenting opinion.
CHIEF JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. "Absent a showing of some mistake of law or
arbitrary assessment of the facts, recommendations made by the
State Bar Ethics Committee . . . are to be given substantial
consideration." Syl. Pt. 3, in part, In re Brown, 166 W. Va. 226,
273 S.E.2d 567 (1980).
2. "'In deciding on the appropriate disciplinary action
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.' Syllabus Point 3, Committee on Legal Ethics v.
Walker, [178 W.Va. 150], 358 S.E.2d 234 (1987). Syllabus Point 5,
Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313
(1989)." Syl. Pt. 2, Committee on Legal Ethics v. Craig, 187 W.
Va. 14, 415 S.E.2d 255 (1992).
3. "'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 appropriate, 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). Syllabus Point 2, Committee on Legal Ethics v. Higinbotham,  W. Va. , 342 S.E.2d 152 (1986)." Syl. Pt. 4, Committee on Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989).
In this disciplinary proceeding, the Committee on Legal
Ethics of the West Virginia State Bar (Committee) found that Mark
Hobbs violated the Code of Professional Responsibility when because
of coercion from the circuit judge assigned to his medical
malpractice case, he paid a percentage of his fee to the judge's
wife and failed to inform anyone of the extortion for almost six
years. After a hearing primarily focusing on mitigating factors,
the Committee recommended that Mr. Hobbs' license to practice law
be suspended for two years and that he be required to pay
$1,642.73, the costs of the proceedings. Although Mr. Hobbs
acknowledges that his conduct violated the Code of Professional
Responsibility, he alleges that the Committee's disciplinary
recommendations should not be accepted because the Committee failed
to give proper consideration to the climate of fear and corruption
that led him to succumb to the judge's pressure and to his
voluntary disclosure of the extortion. Based on our independent
review of the record, we find that the Committee properly
considered the mitigating factors and therefore we adopt their
With the exception of an eighteen-month association with
a small firm immediately after graduation, Mr. Hobbs has practiced
alone in Chapmanville, West Virginia since his 1982 graduation from
the West Virginia University College of Law. In 1988, Mr. Hobbs
was an unsuccessful candidate for prosecuting attorney for Logan
County; in 1990, while maintaining his private practice, he became
a public defender. In 1992 Mr. Hobbs ran unopposed for prosecuting
attorney and took office in January 1993.
Mr. Hobbs' unethical conduct began in May 1986, when
Judge J. Neb Grubb, one of the two circuit judges in Logan County,
approached Mr. Hobbs about his recently filed medical malpractice
case.See footnote 1 Mr. Hobbs was representing Roy Dingess in a wrongful death
action, against his wife's obstetrician, her anesthesiologist and
Logan General Hospital after she died after giving birth to twins.
The Dingess case was assigned to Judge Grubb. Approximately one
week after the suit was filed, Judge Grubb requested that Mr.
Hobbs, who was meeting in the judge's chambers on another matter,
remain.See footnote 2 When the two were alone, Judge Grubb asked Mr. Hobbs,
"Why don't you turn your two hundred and fifty thousand dollar case
into a million?" After Mr. Hobbs said "Yeah," the judge informed
him that his wife Linda Grubb, who worked as a nurse anesthetist at
Logan General Hospital, knew what happened on the morning that Mrs.
Dingess died. The judge told Mr. Hobbs, "Talk to Linda. She knows
what happened there." Mr. Hobbs testified that he understood the
exchange to mean that the judge wanted a share of his case with
payment to be made to the judge's wife.
Following that meeting, Mr. Hobbs refrained from
informing the local prosecutor's and the sheriff's offices of the
judge's proposition because they ran on the same slate as the
judge. In his testimony before the Committee, Mr. Hobbs
acknowledged that other options were available to him, for example
approaching federal prosecutors, the state police, another lawyer,
his co-counsel in the malpractice case or one of his former law
professors. Mr. Hobbs, however, stated that in 1986, as a sole
practitioner, he remained silent because he did not see any options
beyond Judge Grubb's influence.
According to Mr. Hobbs, on June 6 or 7, 1986, Mrs. Grubb
visited him and told him the name of the nurse on duty when Mrs.
Dingess died. Mrs. Grubb said that Mrs. Dingess' anesthesiologist
had a "cavalier attitude" toward his patients. Mr. Hobbs
maintained that he was already aware of the duty nurse's name and
believed that the anesthesiologist's attitude would have been
disclosed in discovery. After Mrs. Grubb learned that Mr. Hobbs
would be paid a percentage of Mr. Dingess' recovery, she demanded
four percent of his fee. Mr. Hobbs admitted that although he
expected no help from Mrs. Grubb, he agreed to the fee arrangement
because he feared the loss of his "one big case" and feared Judge
Grubb might retaliate against him or his client.
While the medical malpractice case was pending, in other
matters Judge Grubb jailed Mr. Hobbs for contempt because he was
late for a hearing and fined him $100 for late discovery.
According to Mr. Hobbs, he was the only lawyer disciplined by the
judge. Mr. Hobbs felt the judge used the discipline to keep him
cooperative and quiet.
While the malpractice case was still pending, Mr. Hobbs
asked the judge if the four percent fee was acceptable. The judge
replied affirmatively. After Mr. Dingess retained additional
counsel in the malpractice action, Judge Grubb asked Mr. Hobbs if
his wife's payment would be affected.See footnote 3 Subsequently, Judge Grubb
was recused from the malpractice case, but only after Logan General
Hospital listed Mrs. Grubb as a potential witness. After the
Dingess medical malpractice case was settled before trial for
$500,000, Mrs. Grubb asked Mr. Hobbs for $4,000.00 in cash or 4
percent of what she believed to be Mr. Hobbs' fee. (Actually, Mr.
Hobbs' fee was $88,000.) On January 29, 1988, Mrs. Grubb went to
Mr. Hobbs' office where he paid her $4,000 in cash.
Mr. Hobbs remained silent until after Judge Grubb was
indicted by a United States Grand Jury on February 27, 1992. After
Judge Grubb's indictment, Mr. Hobbs sought counsel and thereafter
contacted the U.S. Attorney's office. Once his lawyer had arranged
for immunity, Mr. Hobbs told the federal officials about Judge and
Mrs. Grubb's actions in the Dingess case. Based on Mr. Hobbs'
information, a superseding indictment was obtained charging Judge
and Mrs. Grubb with extortion. In May 1992, although Judge Grubb
was found guilty on other matters, he and Mrs. Grubb were acquitted
on the extortion charge.See footnote 4
About a week after the verdict, on May 14, 1992, Mr.
Hobbs voluntarily informed the West Virginia State Bar Counsel
about his contacts with Judge and Mrs. Grubb.
The Committee charged that in his contacts with Judge
Grubb and his wife, Mr. Hobbs violated the following disciplinary
rules of the Code of Professional Responsibility: (1) DR 1-
102(A)(4) by engaging in dishonest and deceitful conduct; (2) DR 1-
102(A)(5) by engaging in conduct prejudicial to the administration
of justice; (3) DR 7-110(A) by giving something of value to a
judge; and, (4) DR 7-110(B) by communicating with a judge on the
merits of a case.See footnote 5
Because Mr. Hobbs admitted his unethical conduct, the
Committee's February 5, 1993 hearing focused on the mitigating
circumstances including Judge Grubb's actions and Mr. Hobbs'
voluntary admission of the incident. The Committee heard testimony
from Marty Allen, a State Police Sergeant who spent six years
investigating Judge Grubb. According to Sergeant Allen, Judge
Grubb possessed substantial political power in Logan County and
people feared he might fabricate criminal charges or even attempt
to have them killed. Paul Billups, an Assistant U. S. Attorney,
considered Mr. Hobbs' fear of Judge Grubb reasonable and stated
that in 1986 although Mr. Hobbs probably could not have received
help in Logan County, he could have contacted the U. S. Attorney's
Office or other resources outside Logan County. Alvis R. Porter,
the Circuit Clerk of Logan County, asserted that Judge Grubb
occasionally asked him illegally to fire or hire certain people.
Because he did not always cooperate, Mr. Porter believed that Judge
Grubb sought to impeach him. Leonard Codispoti, a Magistrate for
Logan County, testified that when he reported Judge Grubb's
attempts to coerce him into unethical conduct to the State Police,
Judge Grubb filed "baseless ethics complaints."See footnote 6 Roger Perry, a
Circuit Court Judge of Logan County, testified that when he
practiced before Judge Grubb he believed that politics played a
role in some of Judge Grubb's judicial decisions and that Judge
Grubb had unpredictable mood swings.
Mr. Hobbs testified that he voluntarily came forward
after Judge Grubb's indictment because he felt that although Judge
Grubb "was still a threat . . . that maybe they finally have him.
Maybe I don't have this to worry about, what he could do, because
he's not going to have a chance." Mr. Hobbs explained that his
campaign for prosecuting attorney was "on a law and order platform
that some of the things, a lot of the things in Logan needed to be
changed." Mr. Hobbs said, "How could I, how could I, with this
sitting in my closet-- I mean, how's it going to affect me, you
know, not necessarily with the public but me, the individual?" Mr.
Hobbs maintains disclosure by Judge Grubb was unlikely because
under the scheme "he was using his wife as a scapegoat." However,
when questioned whether he feared Judge Grubb would "just open up
and you would be caught in the net," Mr. Hobbs admitted the
possibility of disclosure by Judge Grubb concerned him.See footnote 7
Based on the hearing, the Committee concluded that by
acceding to the judge's demands, Mr. Hobbs expected either to gain
and maintain an advantage with the judge in the malpractice case or
that payment was necessary to obtain a fair hearing before the
judge. The Committee also found that Mr. Hobbs knowingly promised
to give a percentage of his fee to the wife of the judge presiding
over his case and communicated ex parte with a judge on a pending
case's merits. The Committee deemed the judge's later recusal to
In determining the sanctions, the Committee noted the
following mitigating factors: (1) the youth and relative
inexperience of Mr. Hobbs as a lawyer in 1986; (2) the "fear and
trepidation" of those who practiced before Judge Grubb that they
would be "mistreated verbally to the detriment of their clients and
their professional future;" (3) Judge Grubb's coercion; and, (4)
Mr. Hobbs' disclosure of the matter.
Although the Committee considered these factors they
noted that Mr. Hobbs "had a responsibility to abide by the Code of
Professional Responsibility" and that Mr. Hobbs "was simply unable
to deal properly with all the factors thrust upon him." The
The payment of money to a judge presiding over an attorney's case, whether characterized as extortion or bribery, strikes at the foundation of the judicial system and should not be countenanced.
The Committee also considered how important "my one big case" or
"case that had some significance" was to Mr. Hobbs, a struggling
young lawyer with political ambitions. The Committee found that
ultimately Mr. Hobbs came forward because he was running for
prosecutor and feared public disclosure of the transaction because
of Judge Grubb's indictment.
After considering that Mr. Hobbs ultimately reported the
matter, his relative youth and his lack of a prior disciplinary
record, the Committee recommended that Mr. Hobbs' license to
practice law be suspended for two years and that he be required to
pay the costs of the proceedings.
Mr. Hobbs admits he indirectly paid money to the judge
presiding over his case and does not challenge the Committee's
conclusion that his actions violation the Code of Professional
Responsibility. Mr. Hobbs' challenge is to the recommended
sanctions. Mr. Hobbs argues that the Committee did not give proper
consideration to the climate of fear and intimidation that lead to
his acquiescence, to his voluntary disclosure and to his lack of
personal gain. Consideration of these factors, according to Mr.
Hobbs, would indicate only a 90-day suspension.See footnote 8 However, the
seriousness of Mr. Hobbs' ethical violations require us to adopt
the recommendations of the Committee.
The Committee's recommendations for sanctions are
ordinarily given substantial consideration. In Syl. Pt. 3, in
part, In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980), this
Absent a showing of some mistake of law or
arbitrary assessment of the facts,
recommendations made by the State Bar Ethics
Committee . . . are to be given substantial
In accord, Syl. Pt. 2, Committee on Legal Ethics v. Keenan, 189
W. Va. 37, 427 S.E.2d 471 (1993) (per curiam); Syl. Pt. 2,
Committee on Legal Ethics v. Mitchell, 187 W. Va. 287, 418 S.E.2d
733 (1992). See Committee on Legal Ethics v. Craig, 187 W. Va. 14,
17, 415 S.E.2d 255, 258 (1992).
In Syl. Pt. 3, Committee on Legal Ethics v. Blair, 174
W. Va. 494, 327 S.E.2d 671 (1984), cert. denied, 470 U.S. 1028, 105
S.Ct. 1395, 84 L.Ed.2d 783 (1985), we stated:
This Court is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys' licenses to practice law.
In accord Syl. Pt. 10, Committee on Legal Ethics v. Cometti, 189
W. Va. 262, 430 S.E.2d 320 (1993); Syl. Pt. 1, Craig, supra; Syl.
Pt. 6, Committee on Legal Ethics v. Farber, 185 W. Va. 522, 408
S.E.2d 274 (1991), cert. denied, ___ U.S. ___, 112 S.Ct. 970, 117
L.Ed.2d 135 (1992).
We outlined some of the major factors to be considered in determining a disciplinary penalty in Syl. Pt. 3, Committee on Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987):
In deciding on the appropriate disciplinary action 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 accord Syl. Pt. 2, Craig, supra; Syl. Pt. 5, Committee on Legal
Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989).
This Court, as stated in Syl. Pt. 2, Committee on Legal
Ethics v. Mullins, 159 W. Va. 647, 226 S.E.2d 427 (1976), overruled
on another matter, Syl. Pt. 11, Cometti, supra, endeavors to make
an individualized assessment of the sanction rather than follow a
schedule of punishment.
"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 appropriate, 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 accord Syl. Pt. 4, Roark, supra; Syl. Pt. 2, Committee on Legal
Ethics v. Higinbotham, 176 W. Va. 186, 342 S.E.2d 152 (1986).
In this case, the ethics violations are serious. Secret
payments of money to a presiding judge are a direct attack on one
of the most vital areas of our legal system. To paraphrase In re
Barron, 155 W. Va. 98, 102, 181 S.E.2d 273, 275 (1971) (disbarment
for bribing a juror), we find it difficult to consider an offense
which is more destructive or corruptive of the legal system of West
Virginia than secret payments, however categorized, to a presiding
judge. Protection of the public against members of the Bar who are
unworthy of the trust and confidence essential to the
attorney/client relationship is a primary purpose of professional
Although we have not previously considered a case
involving bribery of or extortion by a judge, we have ordered
disbarment in cases involving bribery of a jurorSee footnote 9; election fraudSee footnote 10;
conviction of a crime that reflects adversely on fitness to
practice lawSee footnote 11; conversion of fundsSee footnote 12; and, obtaining money under
false pretenses.See footnote 13
Other states have found that secret payments to presiding
judges are serious ethical violations justifying disbarment. In
In re Hughes, 90 N.J. 32, ___, 446 A.2d 1208, 1210 (1982)
(disbarment for bribing an I.R.S. agent), the New Jersey Supreme
Bribery of a public official and forgery of public documents are among the more serious offenses an attorney can commit. They strike at the heart of the attorney's honesty and trustworthiness as an officer of the court. Without more, these acts demonstrate unfitness to practice law.
Similarly, the Illinois Supreme Court in In re Heller, 126 Ill.2d
94, ___, 124 Ill.Dec. 742, ___, 533 N.E.2d 824, 830 (1988), cert.
denied, 493 U.S. 815, 110 S.Ct. 65, 107 L.Ed.2d 32 (1989)
(disbarment for arranging a series of loans for a presiding judge)
commented on an eight-year period during which the lawyers
continued to practice before a judge to whom they had loaned money
by saying "[s]uch flagrant and continuous disregard for the
integrity of our legal system cannot be countenanced." In In re
Powell, 126 Ill.2d 15, __, 127 Ill.Dec. 749, ___, 533 N.E.2d 831,
837 (1988), cert. denied, 491 U.S. 907, 109 S.Ct. 3191, 105 L.Ed.2d
699 (1989) (disbarment for arranging for his client, the defendant,
to loan money to the presiding judge), the Illinois Supreme Court
noted that the presence of a pending case was an aggravating
In Matter of Kassner, 93 A.D.2d 87, __, 461 N.Y.S.2d 11,
14 (N.Y.A.D. 1983), appeal denied, 59 N.Y.2d 604, 464 N.Y.2d 1025,
451 N.E.2d 504 (1983), the New York Supreme Court ordered
disbarment for accepting a bribe to be paid to a judge's secretary
and said that such "conduct demonstrates his utter lack of minimal
professional character. (Citations omitted.)" In People v. Yoakum,
191 Colo. 269, ___, 552 P.2d 291, 297 (1976), the Colorado Supreme
Court found that an attempt to bribe a grand jury witness was
"deserving of serious and substantial discipline" and ordered
In Application of Hetland, 275 N.W.2d 582 (Minn. 1978)
(disbarment for attempting to coerce and bribe client), the
Minnesota Supreme Court noted that:
The public interest is and must be the paramount consideration; and the primary duty of the court must be protection of the public. Clear violation of a lawyer's duties to his clients and to the public compels an order of disbarment. (Citation omitted.)
Hetland id. at 584, quoting, In re Application for Discipline of
Hanson, 258 Minn. 231, 233, 103 N.W.2d 863, 864 (1960). In State
ex rel. Oklahoma Bar Assoc. v. Hall, 567 P.2d 975 (Okla. 1977)
(disbarment of a former governor for bribery, extortion and
conspiracy), the Oklahoma Supreme Court considered the gravity of
the offenses and noted that "the offense is of so grave a character
as to call for serious treatment, not only as a matter of
discipline to the respondent, but for its restraining influence
upon others." Hall id. 567 P.2d at 978, quoting, In re: Stolen,
193 Wis. 602, 214 N.W. 379, 216 N.W. 127, 55 A.L.R. 1355.
In spite of the serious nature of his ethical violations
Mr. Hobbs urges us to impose only a 90-day suspension of his
license, public service and payment of costs.See footnote 14 In support of his
position, Mr. Hobbs cites In re Topper, 135 Ill.2d 331, 142 Ill.
Dec. 792, 553 N.E.2d 306 (1990) (suspending for one year the
license of a lawyer who loaned money to the judge who was presiding
over lawyer's biggest case). However unlike this case, in Topper
the respondent requested the judge's recusal and neither the
respondent nor his client benefited from the transaction.See footnote 15 The
cases in which this Court has imposed a relatively brief suspension
have been for matters, such as a conflict of interestSee footnote 16; altering
a date on a judicial orderSee footnote 17; neglect or failure to return a fileSee footnote 18;
failure to communicateSee footnote 19; and, making false accusations and
misrepresentations.See footnote 20 The matters that resulted in a brief
suspension are serious ethical violations; however, the gravity of
these matters does not compare to the gravity of Mr. Hobbs' ethical
violations. We reject Mr. Hobbs' suggestion of relatively minor
sanctions because such sanctions would not serve as an adequate
deterrent to other members of the Bar or serve to restore public
confidence in the ethical standard of the profession. See Syl. Pt.
5, Roark, supra.
We agree with the Committee that this case has
substantial mitigating factors. First, we note that Mr. Hobbs'
payment to the judge's wife was instigated by the judge as a
protection payment; however, this protection was purchased at the
expense of the integrity of the legal system. Mr. Hobbs argues
that he gained nothing from the protection payment. However, Mr.
Hobbs did expect the judge to grant him a continuance in the
malpractice case and did expect to continue with his case to
receive his fee. Although the federal officials are correct in
considering Mr. Hobbs a victim of extortion, this does not excuse
his acquiescence because as a officer of the court, Mr. Hobbs had
a responsibility not to succumb to the solicitation and to report
The second mitigating factor is that Mr. Hobbs voluntarily disclosed the judge's extortion and cooperated with federal prosecutors. Mr. Hobbs testified that he recognized the possibility that under pressure Judge Grubb might disclose the scheme, but considered it unlikely. However, before his disclosure Mr. Hobbs remained silent for six years-- silent during his law and order campaign for prosecuting attorney, silent when he represented other clients before the judge, silent as the malpractice case proceeded toward trial-- a silence Mr. Hobbs maintained until the judge was indicted and immunity was granted. Mr. Hobbs' evidence of the climate of fear and intimidation that Judge Grubb created in Logan County argues that he was foreclosed from reporting the judge's demand to local authorities. However, even if local resources were foreclosed, Mr. Hobbs could have notified authorities outside Logan County, such as the U.S. Attorney's Office, Bar Counsel, his co-counsel in the medical malpractice case, other lawyers, or one of his former law professors. Although we recognize that Mr. Hobbs' disclosure is a mitigating factor, the disclosure's circumstances lessen its weight.
The Committee also considered Mr. Hobbs' inexperience and
lack of prior disciplinary record. Mr. Hobbs maintains that
because he is currently serving as Logan County's prosecuting
attorney, a suspension of more that 90 days would be unfair to the
people of Logan County. Mr. Hobbs's public position, acquired
after his ethical violations, is neither an aggravating factor (see
Syl. Pt. 3, in part, Roark, supra ("[e]thical violations by a
lawyer holding a public office are viewed as more
egregious. . . .)") nor a mitigating factor (see Committee on Legal
Ethics v. Goode, No. 20226 (W. Va., Filed July 24, 1991)
(prosecuting attorney suspended for three months for failure to
file federal tax returns timely).
The Committee's recommendations are similar to our
holdings in several cases. Recently, in Craig, supra, we
considered a case involving a lawyer who worked as an
administrative assistant to the governor and illegally distributed
$100,000 in campaign funds. The lawyer, who had received a $5,000
cash payment that was not initially declared on his tax return,
lied to a federal grand jury about the distribution of campaign
funds. We found the Committee's recommended two-year suspension
insufficient because the Committee had only considered the most
serious of the violations. Craig, id. 187 W. Va. at 18, 415 S.E.2d
at 259. After we considered the charges on which the Committee did
not impose sanctions, we determined that the violations were
serious enough to warrant a 4-year suspension. Craig, id. 187 W.
Va. at 19, 415 S.E.2d at 260. However, because the mitigating
circumstances justified some leniency, we ordered a three-year
suspension. Craig, id. 187 W. Va. at 19, 415 S.E.2d at 260.
In Committee on Legal Ethics v. Boettner, 188 W. Va. 1,
422 S.E.2d 478 (1992), we considered a case involving a member and
majority leader of the State Senate, who failed to report on his
federal tax return a loan he received to pay off back campaign
expenses. In Boettner, we noted that because of a plea bargain,
two charges were not pursued in exchange for Mr. Boettner's plea of
guilty to a felony. See Boettner, id. 188 W. Va. at ___, n. 12,
422 S.E.2d at 484, n. 12, for a description of the charges that
were not pursued. After considering the presence of some
mitigating factors, we ordered a three-year suspension and payment
In Roark, supra, another case involving a plea bargain by
a public official (the Mayor of the City of Charleston and a former
prosecuting attorney for Kanwaha County), we considered the serious
nature of the charges as well as the added element of a public
trust violation. Roark, id. 181 W. Va. at 265, 382 S.E.2d at 318.
After considering Mr. Roark's former excellent reputation and his
acknowledgement of the gravity of his offenses, we accepted the
Committee's recommendation of a three-year suspension, plus payment
of costs. Roark, id. See also Committee on Legal Ethics v. White,
189 W. Va. 135, 428 S.E.2d 556 (1993) (per curiam) (a prosecutor's
possession of cocaine, marijuana and percocet warranted a 2-year
We believe that the serious nature of Mr. Hobbs's misconduct warrants disbarment. However, we find that the mitigating circumstances in this case justify some leniency.
Accordingly, we adopt the Committee's recommendations and order Mr.
Hobbs suspended from the practice of law for a period of two years
and require him to pay $1,642.73, the costs of the proceedings. At
the conclusion of the two-year period, Mr. Hobbs may petition for
reinstatement to the Bar in accordance with the provisions of
Article VI, Sections 31 and 32 of the By-Laws of the West Virginia
Two-year suspension and costs.
Footnote: 1For a disciplinary action involving Judge Grubb, see Committee on Legal Ethics v. Grubb, 187 W. Va. 608, 420 S.E.2d 744 (1992).
Footnote: 2Our recitation of facts is based solely on Mr. Hobbs' testimony either from his deposition with Bar Counsel or his testimony before the Committee.
Footnote: 3Nothing in the record indicates that the additional counsel in the Dingess case was aware of Mr. Hobbs' arrangement with Mrs. Grubb.
Footnote: 4According to Mr. Hobbs, Mrs. Grubb testified during her trial that Mr. Hobbs paid her $3,300 for her medical consultation (or 4 percent of Mr. Hobbs' actual fee), which she spent without telling her husband. Mrs. Grubb acknowledged that $3,300 was not included in her federal income tax return.
Footnote: 5The Code of Professional Responsibility was in effect during
the 1986-1988 period when the acts occurred. On January 1, 1989,
the Code of Professional Responsibility was superseded by the Rules
of Professional Conduct. The following are the disciplinary rules
that Mr. Hobbs violated:
DR 1-102(A)(4) and (5) state:
Misconduct. -- (A) A lawyer shall not:
(4) Engage in conduct involving dishonesty, fraud or deceit or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
DR 7-110(A) and (B) state:
(A) A lawyer shall not give or lend anything of value to a judge, official or employee of a tribunal except as permitted by Section C(4) of Cannon 5 of the Code of Judicial Conduct . . .
(B) In an adversary proceeding a lawyer shall not communicate or cause another to communicate as to the merits of the cause with a judge or an official before whom the proceeding is pending. . . .
Footnote: 6See In the Matter of Codispoti, 186 W. Va. 710, 414 S.E.2d 628 (1992)(charges were dismissed because magistrate made reasonable efforts to perform his judicial duties). But see In the Matter of Codispoti, No. 21522 (W. Va., Filed December 9, 1993).
Footnote: 7The following is Mr. Hobbs' complete answer to the question
of Judge Grubb's possible disclosure:
Well, now, you know I'd be lying to you if I said that
wasn't a thought. I don't think that was a -- I knew Ned
enough to know that he had it defensed up. In other
words, he had it set up that like he didn't do nothing
wrong, that Linda was a renegade operating on her own.
And I didn't know that -- I wasn't sure whether he would
But the one thing I did know, and I had campaigned in
'88, spent probably most of the money that I had saved in
my whole life on trying to run for office with the
campaign promise that, you know, things were going to be
different, and I didn't want this.
You know, to this day, I'll never know whether anybody would have said anything about it, but I knew about it, and I knew that eventually, in my mind, I was going to have to deal with it. Any maybe I picked on Ned when he was wounded and should have come forward earlier, but I think the fact he was acquitted on these charges, which lends credence I think to what I said, that it was always going to be two on one. It was going to be him and Linda versus me. Even with him charged with all this other stuff, they still -- [sic]
Footnote: 8Mr. Hobbs also suggests that in addition to the 90-day suspension he be required to speak to all county bar associations about the need to come forward.
Footnote: 9See Barron, supra; Brown, supra.
Footnote: 10See In re Smith, 158 W. Va. 13, 206 S.E.2d 920 (1974).
Footnote: 11See Committee on Legal Ethics v. Gorrell, 185 W. Va. 419, 407 S.E.2d 923 (1991)(mail fraud): Committee on Legal Ethics v. Folio, 184 W. Va. 503, 401 S.E.2d 248 (1990)(obstruction of justice).
Footnote: 12See Committee on Legal Ethics v. Lampert, 189 W. Va. 84, 428 S.E.2d 65 (1993).
Footnote: 13See Committee on Legal Ethics v. Wilson, 185 W. Va. 598, 408 S.E.2d 350 (1991).
Footnote: 14See Committee on Legal Ethics v. Mitchell, 187 W. Va. 287, 418 S.E.2d 733 (1992)(under appropriate circumstances community service can serve as a legitimate sanction).
Footnote: 15Topper is one of several Illinois cases dealing with a judge who requested loans from attorneys who practiced before him. See Heller, supra (disbarment for arranging a series of loans for a presiding judge); Powell, supra (disbarment for arranging for his client to loan money to the presiding judge); In re Jones, 125 Ill.2d 371, 126 Ill.Dec. 554, 532 N.E.2d 239 (1988) (no sanction for a lawyer who did not appear before the judge to whom he loaned money); In re Weinstein, 131 Ill.2d 261, 137 Ill.Dec. 72, 545 N.E.2d 725 (1989)(censure for a lawyer who had one pro bono case, which was settled, before a judge for whom he arranged loans); In re Karzov, 126 Ill.2d 33, 127 Ill.Dec. 744, 533 N.E.2d 856 (1988), cert. denied, 491 U.S. 906, 109 S.Ct. 3189, 105 L.Ed.2d 698 (1989) (18-month suspension for a lawyer who loaned money to a judge who appointed him to a case).
Footnote: 16See Committee on Legal Ethics v. Veneri, 186 W. Va. 210, 411 S.E.2d 865 (1991) (90 days).
Footnote: 17See Committee on Legal Ethics v. Thompson, 177 W. Va. 752, 356 S.E.2d 623 (1987) (90 days).
Footnote: 18See Mitchell, supra (60 days).
Footnote: 19See Committee on Legal Ethics v. Charonis, 146 W. Va. 268, 400 S.E.2d 276 (1990)(60 days).
Footnote: 20See Farber, supra (90 days).