DRUG AND ALCOHOL ABUSE, APPLICATION FOR
REINSTATEMENT REQUIRED, AND PAYMENT OF COSTS
Sherri D. Goodman
Chief Disciplinary Counsel
Committee on Legal Ethics of
The West Virginia State Bar
Charleston, West Virginia
Attorney for the Complainant
Joseph W. Caldwell
Caldwell, Cannon-Ryan & Riffee
Charleston, West Virginia
Attorney for the Respondent
JUSTICE CLECKLEY delivered the Opinion of the Court.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
1. "'"'In a court proceeding initiated by the Committee
on Legal Ethics of the West Virginia State Bar to annul [or
suspend] the license of an attorney to practice law, the burden is
on the Committee to prove, by full, preponderating and clear
evidence, the charges contained in the Committee's complaint.'
Syllabus Point 1, Committee on Legal Ethics v. Pence, [___] W.Va.
[___], 216 S.E.2d 236 (1975)." Syl. pt. 1, Committee on Legal
Ethics v. Tatterson,  W.Va. , 319 S.E.2d 381 (1984).'
Syllabus Point 1, Committee on Legal Ethics v. Tatterson, 177
W.Va. 356, 352 S.E.2d 107 (1986)." Syllabus Point 1, Committee on
Legal Ethics v. Burdette, ___ W.Va. ___, 445 S.E.2d 733 (1994).
2. "Where there has been a final criminal conviction,
proof on the record of such conviction satisfies the Committee on
Legal Ethics' burden of proving an ethical violation arising from
such conviction." Syllabus Point 2, Committee on Legal Ethics v.
Six, 181 W.Va. 52, 380 S.E.2d 219 (1989).
3. A de novo standard applies to a review of the
adjudicatory record made before the Committee on Legal Ethics of
the West Virginia State Bar as to questions of law, questions of
application of the law to the facts, and questions of appropriate
sanctions; this Court gives respectful consideration to the
Committee's recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is
given to the Committee's findings of fact, unless such findings are
not supported by reliable, probative, and substantial evidence on
the whole record.
4. "'"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)." Syllabus Point 2, Committee on Legal Ethics v. White, 189
W.Va. 135, 428 S.E.2d 556 (1993).
On June 3, 1994, we received this verified complaint from
the West Virginia State Bar Committee on Legal Ethics (Committee)
pursuant to Section 19 of Article VI of the Constitution, By-Laws
and Rules and Regulations of the West Virginia State Bar.See footnote 1 The
Committee found that Thomas H. McCorkle, a member of the State Bar,
used cocaine and crack cocaine, engaged in improper solicitation of
clients, and testified falsely before the Hearing Panel
Subcommittee with respect to the solicitation charge. For these
violations of the Code of Professional Responsibility, the
Committee recommends that Mr. McCorkle's license to practice law in
West Virginia be suspended for two years and that he be required to
obtain treatment and counseling to deal with his drug and alcohol
problems. The Committee further recommends that Mr. McCorkle reimburse the Committee for the cost of this disciplinary
proceeding, in the amount of $3,583.32, and apply for reinstatement
at the end of his suspension. After reviewing the record in this
case, we find the Committee's findings to be proper, and we adopt
their recommended sanctions.
"'"'In a court proceeding initiated by the Committee on Legal Ethics of the West Virginia State Bar to annul [or suspend] the license of an attorney to practice law, the burden is on the Committee to prove, by full, preponderating and clear evidence, the charges contained in the Committee's complaint.' Syllabus Point 1, Committee on Legal Ethics v. Pence, [___] W.Va. [___], 216 S.E.2d 236 (1975)." Syl. pt. 1, Committee on Legal Ethics v. Tatterson,  W.Va. , 319 S.E.2d 381 (1984).' Syllabus Point 1, Committee on Legal Ethics v. Tatterson, 177 W.Va. 356, 352 S.E.2d 107 (1986)."
In Committee on Legal Ethics v. White, 189 W.Va. 135,
138, 428 S.E.2d 556, 559 (1993), which involved a situation in which an attorney at law pled guilty to possession of illicit
drugs, we stated:
"Where there has been a final criminal conviction, proof of ethical violations is controlled by Syllabus Point 2 of Committee on Legal Ethics v. Six, 181 W.Va. 52, 380 S.E.2d 219 (1989):
"'Where there has been a final criminal conviction, proof on the record of such conviction satisfies the Committee on Legal Ethics' burden of proving an ethical violation arising from such conviction.'"
In Daily Gazette Co., Inc. v. Committee on Legal Ethics,
174 W.Va. 359, 326 S.E.2d 705 (1985), we emphasized that Section
3 of Article VIII of the West Virginia Constitution vests in this
Court "the exclusive authority to regulate and control the practice
of law in this State." Syllabus Point 1, in part.See footnote 2 In the exercise of this plenary authority to regulate and control the
practice of law, we have delegated to the State Bar and to the
Committee certain administrative, investigative, and adjudicatory
functions. In carrying out those functions, the State Bar and the
Committee act "as an administrative arm" of the Court. Syllabus
Point 2, in part, Daily Gazette, supra,
Thus, our power to control the lawyer disciplinary
process is constitutional in origin. When we act pursuant to that
power our touchstone must be vindication of the public's interest
in the integrity of the administration of justice.See footnote 3 In every case
involving a review of the results of a Committee disciplinary
proceeding, we are cognizant of this solemn responsibility owed to
the citizens of this State and to the rule of law.
In our prior decisions, however, we have not always been
clear as to the standard of judicial review applicable to lawyer
disciplinary actions. We have vacillated between the "independent
assessment" and "substantial deference" standards. Moreover, we
have said that both legal and factual findings of the Committee are
entitled to "substantial consideration."See footnote 4 Although we believe that
these standards are not necessarily incompatible when properly
applied, we recognize that when not applied with precision they
lack clarity and may cause confusion. Therefore, we take this
opportunity to resolve any doubt as to the applicable standard of
Different standards apply when we review the Committee's
conclusions of law, the application of the law to the facts, and
the appropriate discipline as opposed to the Committee's factual
findings. This Court reviews de novo questions of law and the
appropriateness of a particular sanction. However, with respect to
the findings of fact, the appropriate standard of judicial review
requires that we defer to the Committee unless the findings are not supported by "reliable, probative and substantial evidence on the
whole record."See footnote 5
With regard to this standard, we have said in In re
Brown, 166 W. Va. 226, 236, 273 S.E.2d 567, 572 (1980):
"[M]ost courts will give some weight to the recommendations of the Ethics Committee that conducts the reinstatement hearing simply because the Committee, having heard the witnesses, is in a better position to evaluate their testimony. This does not mean that the court is foreclosed from making an independent assessment of the record but it does mean absent a showing of some mistake of law or arbitrary assessment of the facts such recommendations made by the Ethics Committee in regard to reinstatement of an attorney are to be given substantial consideration. Tardiff v. State Bar, 27 Cal.3d 395, 612 P.2d 919, 165 Cal.Rptr. 829 (1980); In re Wigoda, 77 Ill. 2d 154, 395 N.E.2d 571 (1979); In re Hiss, 368 Mass. 447, 333 N.E.2d 429 (1975); In re Freedman, 406 Mich. 256, 277 N.W.2d 635 (1979); Petition of Harrington, 134 Vt. 549, 367 A.2d 161 (1976)." (Emphasis added).
Simply stated, "independent assessment" requires us to engage in
what is essentially a de novo review of the record. Even here, we
accord due weight to the conclusions and recommendations of the Committee. To ignore these recommendations and conclusions would
render the Committee's important adjudicatory role a useless
gesture and deprive this Court of the most important benefit of its
collective and evaluative judgment.
However, while the Committee's conclusions and
recommendations are given respectful consideration,See footnote 6 they are not
binding on this Court. Consistent with the supervisory function
mandated by Section 3 of Article VIII of our Constitution, this
Court independently examines each case on its own merits in
determining what, if any, disciplinary action is warranted. Thus,
with regard to the conclusions of law, the application of the law
to the facts, and the appropriate discipline, the de novo standard
of judicial review applies.See footnote 7
Factual findings of the Committee are reviewed under a
different standard. Unlike issues of law, the application of the
law to the facts, and a determination of appropriate discipline, we
realize that the Committee is in a better position than this Court
to resolve the factual disputes which may arise in a case. The
Committee hears the testimony of the witnesses firsthand and, being
much closer to the pulse of the hearing, is much better situated to
resolve such issues as credibility.See footnote 8
As observed above, we have said in prior cases that
"substantial consideration" must be given to the factual findings
and factual conclusions of the Committee. Committee on Legal Ethics v. Hobbs, 190 W. Va. 606, 439 S.E.2d 629 (1993). To be
clear, in the context of our review of the Committee's findings of
fact, "substantial consideration" means that such factual findings
and conclusions are to be given substantial deference by this
Court.See footnote 9 The burden is on the attorney at law to show that the
factual findings are not supported by reliable, probative, and
substantial evidence on the whole adjudicatory record made before
In summary, a de novo standard applies to a review of the
adjudicatory record made before the Committee as to questions of
law, questions of application of the law to the facts, and
questions of appropriate sanctions; this Court gives respectful
consideration to the Committee's recommendations while ultimately
exercising its own independent judgment. On the other hand,
substantial deference is given to the Committee's findings of fact,
unless such findings are not supported by reliable, probative, and
substantial evidence on the whole record.
The Committee found that Mr. McCorkle used cocaine and crack cocaine in violation of state and federal laws. Mr. McCorkle testified that he did use cocaine and/or crack cocaine from the late 1980's until May 1992 on a regular basis.See footnote 10 In July of 1992, he was arrested and subsequently pled guilty to possession of cocaine.See footnote 11
Mr. McCorkle asserts two arguments to support his defense
of these charges. First, he claims that the Committee is
attempting to turn him into a "scapegoat" and that less severe
punitive measures, such as community service, would be more
appropriate. This argument fails to take into consideration the
multi-purpose of disciplinary sanctions. This Court has long
recognized that a disciplinary action may serve as a deterrent to
other attorneys. We stated in Syllabus Point 2 of Committee on
Legal Ethics v. White, 189 W.Va. 135, 428 S.E.2d 556 (1993):
"'"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)."
Mr. McCorkle also argues that the Committee failed to
consider the mitigating factors in his case. Evidence was
submitted that he suffers from hypothyroidism, generalized anxiety
disorder, and unipolar depression. He contends that these
illnesses contributed to his drug and alcohol problems. Of
particular concern is the fact that admittedly Mr. McCorkle's drug abuse stemmed from his alcohol abuse, yet he continues to drink.
This behavior places him at risk of relapsing into the drug abuse.
We believe the Committee did consider these medical problems and is
attempting to help Mr. McCorkle in his efforts by recommending
treatment and counseling. We fail to see how his medical condition
relates to the solicitation charge and the more egregious false
testimony charge which is discussed below.
Mr. McCorkle proposes a lessening of the severity of the
recommended suspension. He suggests a six-month suspension, after
which he could practice law under the supervision of another
attorney at law for eighteen months. He further suggests that he
be ordered to perform pro bono legal work for defendants in drug
and alcohol cases and to submit to random drug testing during this
We reject Mr. McCorkle's proposal because we believe the
Committee's recommended sentence appropriately exhibits the
severity of this case. When reviewing sanctions, this Court
considers the case as a whole and not merely one of multiple
charges. Mr. McCorkle's illicit drug and alcohol abuse clearly was
not an isolated instance. In fact, the record reflects nearly a
decade of flagrant disregard for the integrity of the legal
profession. A two-year suspension is more than fair considering
this evidence and the following evidence on solicitation.
The complaint alleges that Mr. McCorkle improperly solicited clientsSee footnote 12 by using a "runner" that worked in a local hospital, fabricated evidence, and testified falsely before the Committee in regard to this charge.
The evidence indicates that Mr. McCorkle was acquainted
with Richard (Rick) Scott, who worked in the emergency room of
Charleston Area Medical Center (CAMC). CAMC and the Committee
received complaints that Mr. Scott approached accident victims in an attempt to solicit business for Mr. McCorkle's personal injury
practice.See footnote 13
More specifically, testimony from Aleta Scarbro shows that she and her son were involved in a car accident on Saturday, February 13, 1993, and were treated at CAMC. Mrs. Scarbro did not return to her home until Sunday afternoon. A call was made from Mr. McCorkle's office to Mrs. Scarbro's home at 1:10 p.m. on Sunday.See footnote 14 The following Tuesday, February 16, 1993, Rick Scott called Mrs. Scarbro and asked her to consider retaining Mr. McCorkle if she wanted to file a lawsuit. Two days later, Mrs. Scarbro then received a call from Mr. McCorkle. He asked her to come to his office to discuss her case.
Mr. McCorkle admitted that he attempted to call Mrs.
Scarbro on the Sunday following her accident. He claimed to be
returning her call. He produced a phone message dated Sunday,
February 14, 1993, that was supposedly taken by his receptionist.
After admitting that the receptionist did not work on Sunday, he
claimed she may have been mistaken about the date and that it could
have been the preceding Friday or Saturday. This explanation is not plausible because Mrs. Scarbro would not have called prior to
Margaret Hudnall testified that Mr. McCorkle called her
residence to inquire about her husband after he had been treated at
CAMC for injuries sustained in a car accident that occurred in
February, 1993. The call was an attempt to solicit business. Mr.
Hudnall was unable to take the call, but he later returned the
call. He was very agitated and wanted to know how Mr. McCorkle
received his telephone number and information regarding his
accident. Mr. Hudnall reported this incident to the hospital.
Mr. McCorkle contends that he placed the call to Mr.
Hudnall after he received a phone message that stated "call Mr.
Hudnall, re: referral Dave." However, he could not remember who
Dave was and no other evidence concerning Dave's identity was
introduced at the hearing.
Eunice McClanahan testified that on November 25, 1992,
she was waiting in the emergency room at CAMC as her son underwent
emergency surgery for serious injuries he received in a car
accident. She was approached by a hospital worker who advised her
to talk to a lawyer. The hospital worker told her "I work for
attorneys and if I need help, they will help me." The man gave her
a lawyer's business card. She remembered the card had the name "McCorkle" on it, but she no longer had the card. She notified the
hospital of the incident and, after looking at several pictures
presented to her, identified Mr. Scott as the man who handed her
Furthermore, the evidence shows that Lisa Addington was
approached by Rick Scott while she was in the emergency room at
CAMC. They discussed her accident and whether she would like to
meet with Mr. McCorkle. Mr. Scott later transported Ms. Addington
from her apartment to Mr. McCorkle's office. He remained in the
office during the consultation. Mr. Scott explained that Ms.
Addington was the sister of a fellow friend and co-worker and he
was just trying to help.
Despite the foregoing, Mr. Scott and Mr. McCorkle denied
that any client solicitation agreement had been discussed or
reached. However, the evidence shows that during this period of
time, Mr. Scott was laid off from the coal mines and was earning
substantially less than he received when he worked as a miner. He
frequently would drop in Mr. McCorkle's office to see if any coal
mining jobs were available.See footnote 15 Based on this direct and
circumstantial evidence, we agree with the Committee that Mr. Scott solicited clients on Mr. McCorkle's behalf in an attempt to receive
help from Mr. McCorkle in finding a new job.
We find that the Committee has met its burden of proof
regarding the charges of improper solicitation. A pattern and
practice of improper solicitation was clearly established. We also
find that Mr. McCorkle presented false testimony to the Committee
when he claimed he was returning phone calls to Mrs. Scarbro and to
the Hudnall residence. Furthermore, we agree with the Committee's
finding that the phone message he produced was manufactured to
support his claim. These violations of the Code of Professional
Responsibility are very serious. Even if we did not consider the
drug charges, these charges would warrant Mr. McCorkle's suspension
from the practice of law.
For the foregoing reasons, this Court orders the suspension of Mr. McCorkle's license to practice law for two years, orders him to pay the cost of this proceeding, and orders him to undergo treatment and counseling to deal with his drug and alcohol abuse. A description of the treatment program is to be provided to the West Virginia State Bar no less than every ninety days. Mr. McCorkle is required to apply for reinstatement at the expiration of his two-year suspension.
Two-year suspension, treatment
for drug and alcohol abuse, application for
reinstatement required, and
payment of costs.
Footnote: 1 Section 19 of Article VI states:
"In any such case wherein the committee determines to institute proceedings in the supreme court of appeals, the committee shall cause a verified complaint to be prepared, addressed to said court, concisely setting forth the facts of the case, the reasons and grounds assigned for a public reprimand or the suspension or annulment of the accused's license, and the committee's prayer as to action and relief sought thereon. Such complaint, together with a certified copy of the committee report as provided in section seventeen of this article, shall be transmitted to and filed in the supreme court of appeals by delivery to the clerk thereof."
Footnote: 2 Section 3 of Article VIII provides, in relevant part: "The court shall have power to promulgate rules . . . for all of the courts of the State relating to . . . practice and procedure, which shall have the force and effect of law[.]"
Footnote: 3 Our obligation to protect the public's interest in the integrity of our legal system lies at the heart of the work of this Court:
"Because the legal system embraces the whole of society, the public has a vital expectation that it will be properly administered. From this expectancy arises the concept of preserving public confidence in the administration of justice by disciplining those lawyers who fail to conform to professional standards."
In re Brown, 166 W. Va. 226, 232, 273 S.E.2d 567, 570 (1980). See also Committee on Legal Ethics v. Mullins, 159 W. Va. 647, 226 S.E.2d 427 (1976).
Footnote: 4 See Syllabus Point 1, Committee On Legal Ethics v. Hobbs, 190 W. Va. 606, 439 S.E.2d 629 (1993), where we 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.' Syl. Pt. 3, in part, In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980)."
Footnote: 5 This "substantial evidence" standard also is used in judicial review of formal adjudicatory actions of administrative agencies under the West Virginia Administrative Procedures Act (APA), W. Va. Code, 29A-5-4(g)(5) (1964). However, when the State Bar acts as an administrative arm of this Court in lawyer disciplinary matters, it is not an "agency" subject to the APA. See W. Va. Code, 29A-1-2(a) (1982). Notwithstanding this fact, we believe that the level of judicial deference for this Court to use when reviewing the Committee's findings regarding factual matters should be the "substantial evidence" standard.
Footnote: 6 There is potential for confusion engendered by our use of the term "substantial consideration" in connection with both (1) de novo review of the law and recommendations of sanctions, as well as (2) our more deferential review of the Committee's factual findings. To dispose of this confusion, we clarify that when the term "substantial consideration" has been used in prior cases in the context of de novo review, it should be interpreted to mean "respectful consideration." "Respectful consideration" is a term which recognizes the important role played by the Committee, without circumscribing our responsibility to make an independent de novo evaluation. See Committee on Professional Ethics & Conduct v. Gardalen, 414 N.W.2d 124, 125 (Iowa 1987) ("We have held that the commission's findings and recommendations are given respectful consideration although they are not binding on this court").
Footnote: 7 De novo in this context means that, notwithstanding the Committee's conclusions of law, application of the law to the facts, and recommended discipline, the Court will exercise its
own independent judgment in reaching a final decision.
Footnote: 8 See, e.g., Disciplinary Matter Involving West, 805 P.2d 351, 353 n.3 (Alaska 1991), in which the Alaska court stated:
"Though this court has the authority, if not the obligation, to independently review the entire record in disciplinary proceedings, findings of fact made by the Board are nonetheless entitled to great weight. The deference owed to such findings derives from the responsibility to conduct disciplinary proceedings which this court has delegated to the Bar Association. Where findings of fact entered by the Board are challenged on appeal to this court, . . . the respondent attorney bears the burden of proof in demonstrating that such findings are erroneous. . . . As a general rule, moreover, we ordinarily will not disturb findings of fact made upon conflicting evidence[.]"
Footnote: 9 While this standard of review is deferential, it should
not be seen in any way as requiring this Court to "rubber stamp" the Committee's factual findings. In another context (judicial review of informal agency action under the federal Administrative Procedures Act, 5 U.S.C. § 706 (1964 ed., Supp. V.), the Supreme Court of the United States distinguished judicial review and judicial abdication of the review function. Speaking for the Court, Justice Marshall observed that a deferential standard of judicial review does not "shield . . . [an agency's action] from thorough, probing, in-depth review." Justice Marshall emphasized, however, that "the ultimate standard of review is a narrow one." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16, 91 S. Ct. 814, 823-24, 28 L.Ed.2d 136, 153 (1971). Justice Marshall's admonition in Overton Park is applicable here. In every case involving lawyer discipline, we will review the Committee's findings of fact and not rubber stamp them. Only by giving due deference to such factual findings and by carefully reviewing the record can we properly perform our reviewing task. See also Matter of Disciplinary Action Against Larson, 485 N.W.2d 345, 346 (N.D. 1992), wherein the North Dakota court quoted In re Larson, 450 N.W.2d 771, 773-74 (N.D. 1990):
"'In reviewing the record, we accord due weight to the findings, conclusions, and recommendations of the hearing panel. . . . However, this Court does not act as a mere "rubber stamp" approving the findings and recommendations of the Disciplinary Board after a perfunctory review. . . . In determining what discipline is warranted, each case must be decided on its own particular facts.'"
Footnote: 10 The cocaine use after January 1, 1989, the effective date of the current Rules of Professional Conduct, violated Rule
8.4 which states: "It is professional misconduct for a lawyer to: . . . (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects[.]"
Footnote: 11 Mr. McCorkle pled guilty to violating 21 U.S.C. § 844 (1988), possession of cocaine base, before the Honorable Jerry D. Hogg, Magistrate Judge for the United States District Court for the Southern District of West Virginia. Random drug screening is
a condition of his sentence of probation.
Footnote: 12 Rule 7.3 of the Rules of Professional Conduct states, in pertinent part:
"(a) A lawyer shall not by in-
person or telephone contact solicit
professional employment from a prospective
client with whom the lawyer has no family or
prior professional relationship when a motive
for the lawyer's doing so is the lawyer's
"(b) A lawyer shall not solicit professional employment from a prospective client by written or recorded communication or by in-person or telephone contact even when not otherwise prohibited by paragraph (a), if:
"(1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
"(2) the solicitation involves coercion, duress or harassment."
Footnote: 13 As a result of these actions, Mr. Scott was terminated from his employment with CAMC.
Footnote: 14 No one was home, but the answering machine picked up the call.
Footnote: 15 Mr. McCorkle apparently had contacts in the coal industry.