Maria Marino Potter
The West Virginia State Bar
Charleston, West Virginia
Attorney for the Complainant
J. Timothy DiPiero
DiTrapano & Jackson
Charleston, West Virginia
Attorney for the Respondent
The Opinion of the Court was delivered PER CURIAM.
1. "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).
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
3. "Ethical violations by a lawyer holding a public office are viewed as more egregious because of the betrayal of the public trust attached to the office." Syllabus Point 3, Committee on Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989).
4. "'"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)." Syllabus
Point 4, Committee on Legal Ethics v. Roark, 181 W. Va. 260, 382
S.E.2d 313 (1989).
In this proceeding, the Committee on Legal Ethics of the
West Virginia State Bar (Committee) asks this Court to discipline
Thomas E. White following his guilty plea in the United States
District Court to three misdemeanor charges involving possession of
cocaine, marijuana and percocet, respectively.See footnote 1 In entering his
guilty plea, the respondent violated DR 1-102(A)(4), (A)(5), and
(A)(6) of the West Virginia Code of Professional Responsibility.See footnote 2
The Committee recommends that we suspend Mr. White's license to
practice law for two years and require him to pay the costs of
these proceedings totaling $1,877.64.
The parties have submitted this case to us upon a
stipulation of the facts. Therefore, the following facts are
undisputed. At the time these offenses were committed, Mr. White
was not only a licensed member of the West Virginia State Bar, but
he was also the duly elected Prosecuting Attorney of Marshall
County. Mr. White was first elected in 1980 and was re-elected in
1984 and in 1988.
In 1986, Mr. White became involved in a physical
relationship with a woman and, during the course of this
relationship, he began to use marijuana and cocaine in 1987. While
Mr. White admits to using these substances, he stresses that he
never purchased or obtained the drugs himself.See footnote 3 He further
contends that from 1980, when he was first elected prosecutor,
until 1987, he was not involved in the illicit use of drugs.See footnote 4 The
State Bar has presented no evidence to the contrary.
Mr. White states that in 1987 he began to use percocet,
a painkiller, for relief of an abscessed tooth. While his initial
use of this drug was legitimate, he began to abuse the drug and was
ultimately able to obtain a total of eleven prescriptions from his
dentist. He admits that additional percocets were also obtained by
his girlfriend during this period. Mr. White admits that he became
addicted to the percocet and even stole a blank prescription form
from his dentist. On July 26, 1988, he forged the name of his
dentist to the form and used the prescription to obtain thirty
When Mr. White became aware of a federal investigation
into his drug use, he authorized his attorneys to work out a plea
agreement with the United States Attorney's office. On November
25, 1991, at Mr. White's direction, his counsel advised the
Committee of the nature of the federal investigation. To Mr.
White's credit, this information was given to the Committee over
one month before any criminal charges were filed against him. At
the time Mr. White provided the information regarding the federal
investigation into his drug use to the Committee, it had no
knowledge or suspicion of any wrongdoing by Mr. White. Counsel for
Mr. White continued to keep the Committee apprised of the status of
the investigation and prosecution.
On January 2, 1992, Mr. White notified the State Bar that
he wished to be placed on inactive status and that he would not
engage in the practice of law until further notice. On the
following day, Mr. White entered into a plea agreement in which he
agreed to plead guilty to three misdemeanor charges involving
possession of controlled substances.
On January 13, 1992, Mr. White entered an inpatient
rehabilitation facility for the treatment of alcohol and drug
dependency. This was done even though Mr. White had not used a
controlled substance for over a year and a half. He successfully
completed the rehabilitation program and was released on February
As a condition of his plea agreement, Mr. White was
required to resign his position as prosecutor. Thereafter, on
March 4, 1992, Mr. White pled guilty in the United States District
Court for the Northern District of West Virginia to a three-count
federal information charging possession of cocaine, marijuana and
percocet, respectively. He was sentenced to six months in a
federal correctional facility, followed by four months of home
detention, and three years of probation. A $3,000 fine was also
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
"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."
There being no substantial dispute as to the facts, the
remaining issue involves the extent of the penalty. As earlier
noted, the Committee recommends that Mr. White be suspended for two
years and that he be required to pay the costs of the proceeding.
On the other hand, Mr. White requests that the two-year suspension
recommended by the Committee be modified to allow him to practice
law for the final six months of his suspension under the
supervision of another lawyer.See footnote 5 Furthermore, Mr. White proposes
that during the supervised practice, he would perform five hours of
pro bono work a week for the West Virginia Legal Services Plan,
Inc., and submit to random drug testing.
The considerations we must take into account when meting
out punishment for ethical violations was stated in Syllabus Point
5 of Committee on Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d
"'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)."
As evidence in support of mitigating the severity of the
penalty to be imposed upon him, Mr. White points to the fact that
on January 2, 1992, he asked the State Bar to place him on inactive
status and informed the State Bar that he would not practice law
until further notice. He also asserts that, through his attorney,
he advised the State Bar of the federal investigation of his drug
use before any ethics proceedings had been initiated against him.
He also followed the recommendation of the State Bar's Impaired
Lawyer Committee to enroll in an inpatient rehabilitation program
that he successfully completed.
While these actions are commendable, they can also be
viewed as a prudent realization of the substantiality of the
government's case. The attorney's use of illicit drugs was not
isolated and continued over a period of approximately two years.
Of even more significance is the fact that during this
period, he was the elected prosecuting attorney in Marshall County.
We have taken pains to stress that a lawyer who holds public office
is held to a higher ethical standard simply because of his position
of public trust. The argument was advanced in Committee on Legal
Ethics v. Roark, supra, that an attorney who was a public official
should not be held to any elevated standard. In rejecting this
argument, we said:
"In Graf [v. Frame, 177 W. Va. 282, 352 S.E.2d 31 (1986)], we made this observation: '[A]n attorney who is a public official is held to a high standard of conduct because of his or her (1) professional and (2) public trustee responsibilities.' 177 W Va. at 288, 352 S.E.2d at 38. We went on in Graf to quote from Sanders v. Mississippi State Bar Ass'n, 466 So. 2d 891, 893 (Miss.), cert. denied, 474 U.S. 844, 106 S. Ct. 133, 88 L. Ed .2d 109 (1985): '"Lawyer insensitivity to ethical impropriety [or perceived ethical impropriety] is one of the primary sources of this lack of public confidence in the Bar. The problem is exacerbated when ethical violations are committed by an attorney holding an important public office."' 177 W. Va. at 289, 352 S.E.2d at 38. (Emphasis added)." 181 W. Va. at 265, 382 S.E.2d at 318.
And in Syllabus Point 3 of Roark, we stated:
"Ethical violations by a lawyer holding a public office are viewed as more egregious because of the betrayal of the public trust attached to the office."See footnote 6
In Roark, we dealt with an attorney who used illegal
drugs both when he was the prosecuting attorney for Kanawha County
and later while he was the mayor of the City of Charleston. He
vigorously denied his involvement in drug use, but ultimately
entered a guilty plea to six misdemeanor counts of a thirty-count
federal indictment. The federal court had given him a six-month
sentence followed by three years probation. We ordered that he be
suspended from the practice of law for a period of three years.
In Roark, we noted that in a disciplinary proceeding such
as this we will consider the facts and circumstances of each case,
rather than attempt to create a uniform standard of disciplinary
action to apply in all cases. In Syllabus Point 4, we stated:
"'"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)."
In this case, the number of criminal charges are not as
great as the number imposed in Roark, supra, because the attorney
was forthright with the federal authorities and, consequently, was
able to achieve a more favorable result by a plea to only three
misdemeanor drug offenses. It is this cooperation, coupled with
Mr. White's contrition, that undoubtedly motivated the Committee to
recommend a two-year suspension.
In considering the appropriate disciplinary action to be
taken against Mr. White, we must balance the seriousness of his
unethical and illegal conduct while holding public office with his
cooperation with both the federal authorities and the Committee and
his contrition and acknowledgement of his wrongdoing. We believe
the two-year suspension, retroactive to January 2, 1992 (the date
Mr. White voluntarily placed himself on inactive status with the
State Bar), recommended by the Committee, appropriately accounts
for both the seriousness of Mr. White's crimes while he occupied a
position of public trust, and the mitigating facts and
circumstances of his later behavior.
However, Mr. White also proposes a lessening of the
severity of the recommended suspension. He suggests that we permit
him to practice law under the supervision of another attorney
during the final six months of his suspension. He further suggests
that he be ordered to perform pro bono community work and to submit
to random drug testing during that time. We reject Mr. White's
proposal because we believe the recommended sentence appropriately
reflects the facts and circumstances of this case.See footnote 7 We believe
that any lessening of the recommended suspension would not serve as
an adequate deterrent to other members of the Bar or serve to
restore public confidence in the ethical standards of the
profession. Syllabus Point 5, Roark, supra.
For the foregoing reasons, the Court suspends Mr. White's
license to practice law for two years, retroactive to January 2,
1992, and orders him to pay the costs of this proceeding.
Two-year suspension retroactive
to January 2, 1992, and costs.
Footnote: 1Our inherent and exclusive authority to regulate and control ethical violations is included within the Syllabus of Christie v. West Virginia Health Care Cost Review Authority, 176 W. Va. 420, 345 S.E.2d 22 (1986), where we stated: "'The exclusive authority to define, regulate and control the practice of law in West Virginia is vested in the Supreme Court of Appeals.' Syl. pt. 1, State ex rel. Askin v. Dostert, 170 W. Va. 562, 295 S.E.2d 271 (1982)."
Footnote: 2Because the ethical violations occurred prior to January 1, 1989, the effective date of the current Rules of Professional Conduct, the violations carried the prior professional conduct rules citation to the Code of Professional Responsibility. The applicable text of DR1-102(A)(4), (5), and (6), is:
"A lawyer shall not:
* * *
(4) Engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation.
(5) Engage in conduct that is prejudicial to the administration of justice.
(6) Engage in any other conduct that adversely reflects on his fitness to practice law."
The current relevant ethical rules are recited under Rule 8.4 of the Rules of Professional Conduct and Article VI of the By-Laws of the West Virginia State Bar.
Footnote: 3Although Mr. White asserts that he did not purchase or obtain drugs himself, he admits that he gave money to his girlfriend to purchase the drugs for their use.
Footnote: 4Mr. White admits that he tried marijuana in college and tried cocaine once in 1980 prior to his election as prosecutor. He pled guilty to cocaine possession stemming from the 1980 incident.
Footnote: 5Mr. White proposes that he be permitted to practice law under the supervision of a former Committee member for the final six months of his suspension.
Footnote: 6Mr. White accepts that elected public officials should be held to a higher ethical standard because of their positions of public trust.
Footnote: 7Mr. White did not make his proposal to the Committee, and first suggested the imposition of a lesser penalty upon submission of his case to this Court. We note that, in certain circumstances, we will consider alternatives to suspension. For example, in Syllabus Point 3 of Committee on Legal Ethics v. Mitchell, 187 W. Va. 287, 418 S.E.2d 733 (1992), we stated:
"In an appropriate case involving legal ethics, this Court would consider requiring community service as a legitimate sanction provided that the details of the proposed service are sufficiently specific that the Legal Ethics Committee can appropriately evaluate them and that the
community service meets our requirements for
Although Mr. White has provided a detailed proposal, we do not find this to be an appropriate case.