Sherri D. Goodman
West Virginia State Bar
Charleston, West Virginia
Attorney for the Complainant
Stephen B. Farmer
Jackson & Kelly
Charleston, West Virginia
Attorney for the Respondent
JUSTICE MILLER delivered the opinion of the Court.
JUSTICE BROTHERTON dissents and reserves the right to file a
JUSTICE NEELY dissents.
1. "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." Syllabus Point 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).
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, ___ W. Va. ___, 382 S.E.2d
3. Perjured testimony before a grand jury by an
attorney will be grounds for disciplinary charges even though no
criminal indictment has resulted.
4. False testimony on a material issue is a serious
breach of basic standards as well as a breach of the attorney's
oath of office and his duties as an attorney. Grounds for disciplinary action will lie even though no harm results from such
In this disciplinary proceeding, the Committee on Legal
Ethics of the West Virginia State Bar (Committee) asks us to
suspend for a period of two years the license of the respondent,
Thomas L. Craig, Jr., to practice law. For the reasons stated
below, we reject the recommendation of the Committee and order a
The respondent was admitted to the Bar in 1981. Prior to
that time, he was closely associated with former Governor Arch A.
Moore, Jr. The respondent served as a field coordinator in Moore's
1972 gubernatorial campaign and subsequently worked as a special
assistant and administrative assistant to Governor Moore from 1972
to 1977. The respondent later turned down an appointment to serve
as campaign manager in Moore's 1980 campaign.
The respondent subsequently accepted an offer to be
Moore's campaign manager in the 1984 gubernatorial election. The
respondent requested a $60,000 salary, but settled for less upon
Moore's promise to make up the difference after the election.
The respondent worked on the campaign with Richard
Barber, an advisor to Moore.See footnote 1 In the course of the campaign, Barber asked the respondent to tell Moore that he, Barber, needed
"cash for the precincts." After the respondent conveyed the
message, he met with Moore in a Charleston hotel room. Moore
counted out $100,000 in one-hundred-dollar bills and gave it to the
respondent. The respondent distributed the money to Barber and to
other campaign workers.
Moore won the election. Afterwards, the respondent
pressed Moore for the differential between his promised and his
actual salary as campaign manager. At a subsequent meeting in
Moore's law office, Moore gave the respondent $5,000 in cash as
partial payment. When the respondent announced his intention to
declare this money as income on his tax return, Moore told him "You
can't report it." The respondent subsequently treated the cash
payment as a gift.See footnote 2 After Moore took office as governor, the
respondent worked for the administration, first as Chief Transition
Officer and later as the Governor's Executive Assistant. The
respondent returned to private practice in July of 1985.
In 1989, the United States Attorney for the Southern
District of West Virginia was investigating Moore's possible
involvement in unlawfully influencing changes in Workers' Compensation regulations while he was governor. The respondent was
asked to testify before the federal grand jury in this regard. The
respondent agreed and voluntarily testified before the grand jury
on December 11, 1989. In the course of his appearance before the
grand jury, however, the questioning turned to the 1984
gubernatorial campaign. A grand juror asked the respondent several
questions concerning the use of cash in the campaign. Instead of
consulting with his attorney, who was waiting outside, the
respondent denied that cash payments had been made during the
campaign. The Assistant United States Attorney, Joseph F. Savage,
then asked the respondent whether, as in past campaigns, money had
made its way from the governor to the precincts. The respondent
again answered in the negative, stating that no cash had been
injected into the 1984 campaign that he was aware of.
On December 28, 1989, Moore asked the respondent to meet
with him at Moore's law office. Moore advised the respondent that
he intended to reveal that he had turned the $100,000 in cash over
to the respondent during the campaign because he, Moore, was facing
a tax audit and investigation. The respondent advised Moore that
he had already told the grand jury that no cash was involved in the
1984 campaign. Moore responded that this created a problem with
respect to "our credibility" and suggested that the respondent
return to the grand jury and assert that he had not understood the
questions. When the respondent rejected this suggestion, Moore
proposed that the respondent solicit those to whom he had distributed the cash or others to tell the United States Attorney
that Moore himself gave them the money, thereby keeping the
respondent "out of the loop." Moore suggested another meeting
after the first of the year to work out a final solution.
Upon leaving Moore, the respondent contacted Barber and
told him he intended to "make this thing right." The respondent
then either phoned or visited his attorney, telling him that he
wanted to report to the United States Attorney that he had lied to
the grand jury. The respondent's attorney contacted Mr. Savage the
following morning and obtained an immunity agreement. The
respondent spoke to Mr. Savage that afternoon. There is no
evidence that the United States Attorney's Office was suspicious of
the respondent's grand jury testimony prior to this time.
On February 1, 1990, the respondent formally recanted his
prior testimony and testified truthfully before the federal grand
jury. Moore was subsequently indicted on a number of federal
charges and pled guilty to five counts. On October 31, 1991, we
annulled Moore's license to practice law. See Committee on Legal
Ethics v. Moore, ___ W. Va. ___, 411 S.E.2d 452 (1991).
On February 9, 1991, the Committee charged that the
respondent violated Disciplinary Rules 1-102(A)(3), (4), and (6) of
the Code of Professional Responsibility by accepting the $100,000
in cash from Moore during the campaign and by failing to report the $5,000 cash bonus on his income tax return.See footnote 3 In addition, the
Committee charged the respondent with violating Rules 8.4(b), (c),
and (d) of the Rules of Professional Conduct by testifying falsely
before the federal grand jury.See footnote 4 It appears that the respondent cooperated fully with the Committee in the investigation leading to
A hearing was conducted before the Committee on June 7,
1991. The respondent attributed his misconduct to his loyalty to
his friend and mentor, Arch Moore. He testified that he knew that
his solicitation and acceptance of the $100,000 cash from Moore for
distribution to campaign workers constituted election law
violations,See footnote 5 but asserted that he had no idea where the money came
from or for what purposes it was used. The respondent testified
that he treated the $5,000 cash bonus as a gift based on a
legitimate interpretation of the federal tax laws. The respondent
asserted that he gave false testimony to the grand jury because the
direction of the questioning took him by surprise. He stated that
he was distressed at having lied to the grand jury, but did nothing
for several weeks because he felt the truth was not relevant to the
Government's investigation. The respondent testified that it was
not until his meeting with Moore on December 28, 1989, that he
became aware of the probability that there had been substantial
misconduct during the 1984 campaign and of the extent to which
Moore was willing to subvert the judicial process to protect himself. The respondent expressed remorse for his actions and
presented over 115 testimonials to his good character and standing
in the community.
In its report, the Committee concluded that while the
respondent may not technically have committed a crime in the course
of his grand jury testimony,See footnote 6 he did lie under oath, conduct the
Committee found to be deceitful, dishonest, and prejudicial to the
administration of justice in violation of Rules 8.4(c) and (d) of
the Rules of Professional Conduct. After considering the
respondent's later recantation, his voluntary cooperation with
federal authorities and the State Bar, and the "impressive and
overwhelming array of witnesses attesting to [his] character," the
Committee concluded that the respondent's misconduct warranted a
two-year suspension of his license to practice law. Although the
Committee found "compelling" the evidence relating to the
respondent's violation of the election laws and his
characterization of the cash payment from Moore as a gift, the
Committee made no findings or conclusions with regard to the other
charges. The Committee concluded that the respondent's false
testimony alone was a sufficient justification for the recommended
In this proceeding, the respondent admits that he lied to
the grand jury and does not challenge the Committee's conclusion
that such activity violated the Rules of Professional Conduct. His
only challenge is to the sanction to be imposed. The respondent
argues that the facts presented demonstrated that further
punishment is unnecessary to correct his behavior and that he is
still fit to practice law. Basically, the respondent would have us
impose no discipline at all. This we decline to do.
We have recognized that recommendations of the Committee
are ordinarily to be given substantial consideration. See
Committee on Legal Ethics v. Smith, ___ W. Va. ___, 399 S.E.2d 36
(1990); Committee on Legal Ethics v. Harman, 179 W. Va. 298, 367
S.E.2d 767 (1988); Committee on Legal Ethics v. White, 176 W. Va.
753, 349 S.E.2d 919 (1986); In re L.E.C., 171 W. Va. 670, 301
S.E.2d 627 (1983). However, such recommendations are advisory
only. Committee on Legal Ethics v. Tatterson, 177 W. Va. 356, 352
S.E.2d 107 (1986). In Syllabus Point 3 of 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
"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."
Accord Syllabus Point 6, Committee on Legal Ethics v. Farber, ___
W. Va. ___, 408 S.E.2d 274 (1991), cert. denied, ___ U.S. ___, ___ S. Ct. ___, ___ L. Ed. 2d ___ (1992); Syllabus Point 1, Committee
on Legal Ethics v. Charonis, ___ W. Va. ___, 400 S.E.2d 276 (1990);
Syllabus Point 2, Committee on Legal Ethics v. Lilly, 174 W. Va.
680, 328 S.E.2d 695 (1985). We also made this statement in
Syllabus Point 5 of Committee on Legal Ethics v. Roark, ___ W. Va.
___, 382 S.E.2d 313 (1989):
"'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)."
We believe the Committee's recommended sanction of a two-
year suspension is insufficient. While the most serious of the
respondent's violations was his false testimony before the grand
jury, there was also evidence of election law violations of which
the respondent was aware. Such actions violate the ethics rules
and warrant sanctions in their own right. In addition, the
question of whether the respondent improperly failed to report to
the IRS the $5,000 cash bonus from Moore has not been resolved to
this Court's satisfaction. The fact that the Committee did not
impose sanctions upon the other charges in the complaint does not
preclude us from considering such activities. See Committee on
Legal Ethics v. Douglas, 179 W. Va. 490, 370 S.E.2d 325 (1988).
We have not had occasion to address disciplinary charges
based on false or perjured grand jury testimony by an attorney.
Other states have found that perjured testimony before a grand jury
by an attorney will be grounds for disciplinary charges even though
no criminal indictment has resulted. As the court stated in Olguin
v. State Bar, 28 Cal. 3d 195, 200, 167 Cal. Rptr. 876, 879, 616
P.2d 858, 861 (1980): "[F]alse testimony on a material issue is a
serious breach of basic standards as well as a breach of the
attorney's oath of office and his duties as an attorney. Grounds
for disciplinary action will lie even though no harm results from
such wrongful acts." See also People v. Susman, 196 Colo. 458, 587
P.2d 782 (1978); In re Hutchinson, 534 A.2d 919 (D.C. App. 1987);
Matter of Price, 429 N.E.2d 961 (Ind. 1982); State ex rel. Nebraska
State Bar Ass'n v. Cook, 194 Neb. 364, 232 N.W.2d 120 (1975); In re
Foster, 60 N.J. 134, 286 A.2d 508 (1972); Office of Disciplinary
Counsel v. Shorall, ___ Pa. ___, 592 A.2d 1285 (1991). See
generally 7 Am. Jur. 2d Attorneys at Law § 43 (1980 & Supp. 1991).
The respondent points to several cases where an attorney who gave false testimony was given a disciplinary punishment of a year or less. In re Hutchinson, supra; Matter of Price, supra. On the other hand, other courts have imposed punishments of three years or more for false swearing by an attorney. State ex rel. Nebraska State Bar Ass'n v. Cook, supra (three-year suspension); In re Foster, supra (disbarment ordered); Office of Disciplinary Counsel v. Shorall, supra (three-year suspension). We agree with this statement from State ex rel. Nebraska State Bar Association v. Cook, 194 Neb. at ___, 232 N.W.2d at 131-32:
"The fact that certain lawyers in other jurisdictions may have been lightly dealt with can be no consideration with this court. We are responsible for the discipline only of members of the bar of this jurisdiction and must adhere to disciplinary standards we believe appropriate."
As we have already pointed out, the respondent's
dereliction lies not merely in his initial false statements to the
grand jury with regard to any cash campaign contributions, but also
in obtaining the $100,000 in cash from Moore and distributing this
money in violation of the State election laws, a matter that he
could not ignore as a knowledgeable campaign person. Much the same
is true of the $5,000 cash payment he received from Moore which he
initially characterized as a gift. These two matters were not
dealt with by the Committee in arriving at its disciplinary
recommendation. However, we find that they cannot be ignored.
Recently, in Committee on Legal Ethics v. Hess, ___ W. Va. ___, ___ S.E.2d ___ (No. 20225 12/19/91), we addressed the appropriate sanction for an attorney who, through deceit, had converted the income of his law firm to his personal use. Even though the attorney ultimately repaid the funds, we concluded that his actions, constituting breach of his fiduciary duty to his law partners, warranted a four-year suspension from practice. Because the attorney had ceased practicing law two years before, we imposed an actual suspension of only two additional years.
We believe the respondent's misconduct is at least as
serious as that which warranted a four-year suspension of the
attorney in Hess. However, we feel that the mitigating
circumstances present in this case justify some leniency.
Accordingly, we order the respondent suspended from the practice of
law for a period of three years. The suspension will commence upon
April 15, 1992, to allow the respondent time to wind up his
practice. At the conclusion of the three-year period, the
respondent 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. The costs of the Committee
will be paid by the respondent.
Three-year suspension and costs.
Neely, Justice, dissenting:
I would accept the recommendation of the Committee on
Legal Ethics of the West Virginia State Bar and impose only a two-
Footnote: 1In 1980, Mr. Barber was convicted of taking kickbacks in the form of cash political contributions and free liquor while
serving as Governor Moore's Alcoholic Beverage Control Commissioner.
Footnote: 2The respondent later declared this money as income and paid the taxes and penalties on it.
Footnote: 3These activities occurred prior to January 1, 1989, when the Code of Professional Responsibility was in effect. Disciplinary Rule 1-102 stated, in pertinent part:
DR 1-102 Misconduct. -- (A) A
lawyer shall not:
* * *
"(3) Engage in illegal conduct involving moral turpitude.
"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
* * *
"(6) Engage in any other conduct that adversely reflects on his fitness to practice law."
Footnote: 4These activities took place after January 1, 1989, and are, therefore, governed by the Rules of Professional Conduct. Rule 8.4 provides, in pertinent part:
RULE 8.4 Misconduct
"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;
"(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
"(d) engage in conduct that is prejudicial to the administration of justice[.]"
Footnote: 5See W. Va. Code, 3-8-5 (1980); 3-8-5d (1976); 3-8-12 (1978).
Footnote: 618 U.S.C. § 1623(d) (1976), precludes a prosecution for perjury if, "in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false[.]" The parties apparently agree that the respondent came within the protection of this provision.