Opinion, Case No.21858 The Committee on Legal Ethics of the West Virginia Bar v. Mark Hobbs

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 1993 Term

_____________

No. 21858

_____________

THE COMMITTEE ON LEGAL ETHICS

OF THE WEST VIRGINIA STATE BAR,

Complainant

v.

MARK HOBBS, A MEMBER

OF THE WEST VIRGINIA STATE BAR,

Respondent

_____________________________________________________

Recommendation of the Committee on Legal Ethics

L.E.C. No. 92-142

TWO YEAR SUSPENSION, PLUS COSTS

_____________________________________________________

Submitted: November 2, 1993

Filed: December 9, 1993

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, [176] W. Va. [186], 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).

Per Curiam:

        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 recommended sanctions.

I

        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 be insignificant.

        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 Committee said:

         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.

II

        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 Court said:

         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.

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 discipline.

        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 Court said:

         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 factor.

         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 disbarment.

        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 demand.


        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 of costs.

        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 suspension).

        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 State Bar.

                            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 or not.

     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).