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663 S.E.2d 614
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2008 Term
LAWYER DISCIPLINARY BOARD,
MICHAEL P. MARKINS, A MEMBER
OF THE WEST VIRGINIA STATE BAR,
LAWYER DISCIPLINARY PROCEEDING
WITH ADDITIONAL SANCTIONS
Submitted: April 1, 2008
Filed: May 23, 2008
Rachael L. Fletcher Cipoletti
Michael O. Callaghan
Charles A. Jones,
Neely & Callaghan
Office of Disciplinary Counsel Charleston, West Virginia
Charleston, West Virginia
Counsel for the Respondent
Counsel for the Petitioner
The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
SYLLABUS BY THE COURT
1. A de novo
standard applies to a review of the adjudicatory record made
before the [Lawyer Disciplinary Board] 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 [Board's] recommendations while ultimately exercising its own
independent judgment. On the other hand, substantial deference is given to the [Board's]
findings of fact, unless such findings are not supported by reliable, probative, and substantial
evidence on the whole record. Syl. Pt. 3, Committee on Legal Ethics v. McCorkle
W.Va. 286, 452 S.E.2d 377 (1994).
2. 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. Syl. Pt. 3, Committee on Legal Ethics v. Blair
, 174 W.Va. 494, 327 S.E.2d
3. ''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.
, 178 W.Va. 150, 358 S.E.2d 234 (1987). Syl. Pt. 5, Committee on Legal Ethics
, 181 W.Va. 260, 382 S.E.2d 313 (1989).' Syllabus point 7, Office of Lawyer
Disciplinary Counsel v. Jordan
, 204 W.Va. 495, 513 S.E.2d 722 (1998). Syl. Pt. 4, Lawyer
Disciplinary Bd. v. Wade
, 217 W.Va. 58, 614 S.E.2d 705 (2005).
4. 'Rule 3.16. of the West Virginia Rules of Lawyer Disciplinary Procedure
enumerates factors to be considered in imposing sanctions and provides as follows: In
imposing a sanction after a finding of lawyer misconduct, unless otherwise provided in these
rules, the Court [West Virginia Supreme Court of Appeals] or Board [Lawyer Disciplinary
Board] shall consider the following factors: (1) whether the lawyer has violated a duty owed
to a client, to the public, to the legal system or to the profession; (2) whether the lawyer
acted intentionally, knowingly or negligently; (3) the amount of the actual or potential
injury caused by the lawyer's misconduct; and (4) the existence of any aggravating or
mitigating factors.' Syl. pt. 4, Office of Lawyer Disciplinary Counsel v. Jordan
W.Va. 495, 513 S.E.2d 722 (1998). Syl. Pt. 2, Lawyer Disciplinary Bd. v. Lakin
W.Va. 134, 617 S.E.2d 484 (2005).
In this lawyer disciplinary proceeding, Respondent Michael P. Markins
(Respondent) objects to the sanctions recommended by a Hearing Panel Subcommittee of
the Lawyer Disciplinary Board (Board) for violations of the West Virginia Rules of
Professional Conduct (Rules). Following a disciplinary hearing conducted on July 20,
2007, the Board determined that Respondent violated Rules 8.4 (b) and (c) by repeatedly
accessing the e-mail accounts of other attorneys, without their knowledge or permission, for
over a two-year period. The Board recommends, inter alia, that Respondent be suspended
from the practice of law for a period of two (2) years. Though Respondent does not dispute
the facts giving rise to the disciplinary charges filed against him, he contends the
recommended sanctions are too harsh.
For the reasons discussed below, we adopt the Board's recommendations.
I. Factual and Procedural Background
The facts of this case are not in dispute. Respondent has been a practicing
attorney since October, 2001. At all times relevant, Respondent was employed as an
associate attorney at the law firm of Huddleston Bolen, LLP (Huddleston). (See footnote 1)
also an attorney, was similarly employed at the law firm of Offutt, Fisher & Nord (OFN).
In late October or early November of 2003, Respondent began accessing his wife's OFN e-
mail account without her permission or knowledge. (See footnote 2)
Respondent testified that the purpose
of reading his wife's e-mails was to secretly monitor her activities because he believed she
had become involved in an extramarital affair with an OFN client. Respondent further
testified that, initially, he improperly accessed only his wife's account and later, that of
another attorney, an OFN partner. (See footnote 3)
Eventually, however, Respondent's curiosity got the
better of him, and he began accessing the e-mail accounts of seven other OFN attorneys.
Obviously, Respondent did so without either the knowledge or permission of the account
When an OFN attorney began to suspect that her e-mail account had been
improperly accessed, OFN retained Paul Law, a computer systems engineer, and launched
an investigation. From Mr. Law's investigation, it was learned that on numerous occasions
from sometime prior to November 7, 2003, until March 16, 2006, Respondent gained
unauthorized access to OFN e-mail accounts from three IP accounts: (See footnote 4) Respondent's
Huddleston IP account; Respondent's residential IP account; and the IP account at the
Hampton Inn in Beckley, West Virginia, where Respondent had been monitoring a trial in
which both Huddleston and OFN clients were being represented.
According to D.C. Offutt, Jr., the managing partner of OFN, although they
were not able to view the actual e-mail messages read by Respondent, they were able to
determine which e-mail accounts were accessed, the date and time they were accessed, and
from what IP account. Furthermore, Mr. Offutt testified that if there was an attachment to
an e-mail, they could determine whether the attachment had been opened. More specifically,
they were able to determine that on one occasion certain confidential OFN financial
information sent by the firm's chief accountant to the firm's partners by e-mail attachment
was opened by Respondent.
It is undisputed that Respondent improperly accessed the e-mail accounts of
OFN attorneys on more than 150 occasions. In so doing, Respondent learned personal
information about certain attorneys which had been relayed confidentially via e-mail. With
regard to confidential client information that had been accessed by Respondent, Mr. Offutt
was particularly concerned with the fact that OFN and Huddleston, Respondent's employer,
represented co-defendants in a large mass tort case that was in litigation during the time
period at issue. In March, 2006, Respondent, along with other lawyers whose firms were
involved in the mass litigation, was monitoring the trial from the Hampton Inn in Beckley,
West Virginia. While monitoring the proceedings, Respondent gained unauthorized access
into various OFN e-mail accounts from the Hampton Inn's IP account. According to Mr.
Offutt, Huddleston's mass tort client had a contractual relationship with and a claim for
indemnity against OFN's client. Though the claim was not then being litigated, Mr. Offutt
testified that information included in the firm's e-mail system would have been helpful to
Huddleston's client. However, neither Huddleston nor OFN found evidence that any
information between OFN attorneys and its client in that case had been compromised. (See footnote 5)
Following the disciplinary hearing in this case, Mr. Offutt indicated in an
affidavit (See footnote 6) that, since Respondent's misconduct was reported by the Charleston Gazette
newspaper and the Associated Press, OFN has suffered further damage to its image and
reputation. Mr. Offutt further indicated that one of the firm's clients expressed serious
concerns about the security breach and about whether Respondent improperly accessed
important information concerning that client. According to Mr. Offutt, this client has put
the firm on notice of a potential claim for damages against it. Mr. Offutt indicated that he
anticipates that similar concerns will be expressed by other clients in the future and that the
negative ramifications and stigma of Respondent's misconduct will be felt for many years.
Finally, Mr. Offutt indicated that his firm suffered direct economic losses as a result of
Respondent's actions: Mr. Offutt, along with other firm lawyers and staff, spent considerable
time and resources investigating and attending internal meetings on the matter and were
distracted by the events and their aftermath.
As indicated above, Respondent does not dispute the facts giving rise to this
disciplinary proceeding. He testified that in the beginning he began accessing his wife's
OFN e-mail account and that of another OFN attorney for the sole purpose of determining
if his wife was having an extramarital affair with a client. He later began accessing the e-mail accounts of other OFN attorneys purely out of curiosity and almost on a daily basis.
As noted previously, Respondent accessed the e-mail accounts of a total of nine OFN
attorneys (including his wife), without their knowledge or permission, at least 150 times
beginning in late October or early November, 2003.
In March 2006, Respondent's wife, who had been completely unaware of
Respondent's misconduct, told Respondent that someone had been breaking into OFN e-
mail accounts and that the firm was getting close to finding out who it was. Shortly
thereafter, Respondent revealed to his wife that it was he who had been improperly
accessing the OFN e-mail accounts. The following day, Mr. Offutt, who had learned from
the computer expert's investigation that Respondent was responsible for the unauthorized
access of the e-mail accounts, inquired of Respondent's wife if she was aware of
Respondent's actions. Though she had just learned of Respondent's misconduct, she denied
any knowledge of it to Mr. Offutt. Immediately thereafter, Respondent's counsel contacted
Mr. Offutt and others at the firm to disclose his actions. Both Respondent and his wife were
eventually terminated from employment by their respective law firms as a result. (See footnote 7)
Respondent has consistently maintained that he has never disclosed to anyone
any information he obtained from improperly accessing the various OFN e-mail accounts. (See footnote 8) He testified that he has never used any of the information in an improper manner; did not
save any of the accessed e-mails onto his computer; and did not forward any of the e-mails
to another person. Indeed, to date, there has been no evidence to the contrary. Respondent
testified that he is extremely remorseful for his actions, takes full responsibility for his
misconduct, and has been cooperative during the course of this disciplinary proceeding and
during OFN's investigation of the matter. (See footnote 9)
On the advice of counsel, Respondent was examined by psychologist David
A. Clayman, Ph.D., whose affidavit was submitted with Respondent's Answer to Statement
of Charges before the Board. Dr. Clayman opined that the primary purpose of Respondent's
actions was to determine if his wife was having an inappropriate relationship with an OFN
client or employee. Dr. Clayman opined further that Respondent's
review of any material not specifically related to his concerns
regarding a perceived extramarital affair involving his wife
constituted aberrant acts that are a significant departure from his
usual behavior. These aberrant acts would be attributed to the
significant emotional stress brought on by [Respondent's]
concern for the stability of his marriage.
According to Dr. Clayman, Respondent would not have engaged in the
misconduct herein described if it were not for the significant emotional strain caused by
concern for the integrity of his marriage[,] and that he is unlikely to repeat this or any
similar conduct in the future in light of the resulting professional and personal
embarrassment he has suffered, the strain and hardship on his family, and the remorse he
feels for what he did.
On December 18, 2006, the Board filed a Statement of Charges against
Respondent, alleging violations of Rule 8.4(b) and (c) of the West Virginia Rules of
Professional Conduct. The Board alleged violations of Rule 8.4(c) [b]ecause Respondent
engaged in the repetitive unauthorized access of [OFN] e-mail accounts by improperly using
various e-mail account passwords assigned to various [OFN] attorneys. Under Rule 8.4(c),
[i]t is professional misconduct for a lawyer to: . . . ( c ) engage in conduct involving
dishonesty, fraud, deceit or misrepresentation. The Board also alleged violations of Rule 8.4(b) [b]ecause Respondent's
repetitive unauthorized access of [OFN] e-mail accounts was criminal in nature, violated
West Virginia Code 61-3C-12, (See footnote 10) and adversely reflected on his honesty, trustworthiness or
fitness as a lawyer[.] (Footnote added). Under Rule 8.4(b), [i]t 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[.] The Board
further alleged there to be aggravating factors, stating that Respondent's conduct
involved multiple offenses and a pattern of misconduct, was for a selfish motive, and
constituted illegal acts.
Following the disciplinary hearing before the Board, the Board found
Respondent had violated Rules 8.4(b) and (c), as charged, and recommended the following
1. That Respondent be suspended from the practice of law for
a period of two (2) years;
2. That, upon reinstatement, Respondent's private practice be
supervised for a period of one (1) year;
3. That Respondent complete twelve (12) hours of CLE in
ethics in addition to such ethics hours he is otherwise required
to complete to maintain his active license to practice, said
additional twelve (12) hours to be completed before he is
4. That Respondent pay the costs of these proceedings.
Respondent objects only to the recommended sanctions. Initially, Respondent
proposed that he be publicly reprimanded and be required to complete an additional six
hours of CLE in ethics above his current requirements. During oral argument, however, he
conceded that while a public reprimand may not be an appropriate sanction, in light of the
mitigating factors present in this case, the proper sanction is something less than a two-year
suspension of his law license.
II. Standard of Review
Our standard of review of lawyer disciplinary proceedings was set forth in
syllabus point 3 of Committee on Legal Ethics v. McCorkle
, 192 W.Va. 286, 452 S.E.2d 377
(1994), as follows:
A de novo standard applies to a review of the
adjudicatory record made before the [Lawyer Disciplinary
Board] 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 [Board's]
recommendations while ultimately exercising its own
independent judgment. On the other hand, substantial
deference is given to the [Board's] findings of fact, unless such
findings are not supported by reliable, probative, and substantial
evidence on the whole record.
Furthermore, we have made clear that [t]his 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. Syl. Pt. 3, Committee on Legal Ethics
v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).
As previously noted, the facts giving rise to this disciplinary proceeding and
the resulting ethical violations found by the Board are not in dispute. Therefore, our
singular purpose in this matter is to determine the appropriate sanction, recognizing that
'[i]n 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).' Syl. Pt. 5, Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382
S.E.2d 313 (1989). Syllabus point 7, Office of Lawyer
Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d
Syl. Pt. 4, Lawyer Disciplinary Bd. v. Wade, 217 W.Va. 58, 614 S.E.2d 705 (2005).
Indeed, '[a]ttorney disciplinary proceedings are not designed solely to punish the attorney,
but rather to protect the public, to reassure it as to the reliability and integrity of attorneys
and to safeguard its interest in the administration of justice.' Lawyer Disciplinary Bd. v.
Taylor, 192 W.Va. 139, 144, 451 S.E.2d 440, 445 (1994). Lawyer Disciplinary Bd. v.
Battistelli, 206 W.Va. 197, 201, 523 S.E.2d 257, 261 (1999).
Furthermore, as we held in syllabus point 2 of Lawyer Disciplinary Bd. v.
Lakin, 217 W.Va. 134, 617 S.E.2d 484 (2005),
Rule 3.16. of the West Virginia Rules of Lawyer
Disciplinary Procedure enumerates factors to be considered in
imposing sanctions and provides as follows: 'In imposing a
sanction after a finding of lawyer misconduct, unless otherwise
provided in these rules, the Court [West Virginia Supreme
Court of Appeals] or Board [Lawyer Disciplinary Board] shall
consider the following factors: (1) whether the lawyer has
violated a duty owed to a client, to the public, to the legal
system or to the profession; (2) whether the lawyer acted
intentionally, knowingly or negligently; (3) the amount of the
actual or potential injury caused by the lawyer's misconduct;
and (4) the existence of any aggravating or mitigating factors.
Syl. pt. 4, Office of Lawyer Disciplinary Counsel v. Jordan
W.Va. 495, 513 S.E.2d 722 (1998).
Respondent contends there were mitigating factors that this Court should
consider in determining the sanction to be imposed. (See footnote 11)
According to Respondent, he
believed his wife was engaged in an extramarital affair with an OFN client and that the
relationship was encouraged by OFN partners. Thus, he secretly accessed his wife's OFN
e-mail account and the accounts of other OFN attorneys while under extreme emotional
distress, fearing he would lose his wife and family. As Dr. Clayman indicated, were it not
for the grave emotional strain caused by his suspicions about his wife's activities,
Respondent would not have engaged in the misconduct described.
Additional mitigating factors offered by Respondent were the fact that he acted
without criminal intent and, indeed, has not been charged with any crime in connection with
his misconduct; his actions did not cause harm (or intend to cause harm) to his clients, his
firm's clients, or the clients of OFN; he has never divulged any information he obtained to
anyone with the one exception of confronting his wife about the inappropriate e-mails she
received from an OFN client; he is extremely remorseful for his actions; he has never before
been accused of ethical impropriety, but rather, was highly regarded by his peers and clients;
he has cooperated fully with the Board during its investigation and in these proceedings; he
has suffered extreme personal and professional embarrassment; he was a relatively
inexperienced lawyer when the misconduct occurred; and he has already suffered significant
financial losses, having been placed on administrative leave, without pay, for two months.
Further, Respondent argues that this matter is similar to the case of Lawyer
Disciplinary Bd. v. Losch, 219 W.Va. 316, 633 S.E.2d 261 (2006), in which this Court
imposed a public reprimand on an attorney who unilaterally altered a court document, in
violation of Rule 8.4(c) and (d). The respondent attorney in Losch obtained a default
judgment for a sum certain on behalf of his client against Jamie Woods, individually, and
Jamie Woods d/b/a Woods Construction Company, Defendants. Id. at 317, 633 S.E.2d at
262. Thereafter, the respondent attorney obtained a suggestion (suggestee execution) from
the circuit clerk's office directed to Midstate Pre-Owned Autos, the local business where
Woods was working. When the respondent attorney came to believe that Jamie Woods was
operating as AJM Corporation, he unilaterally altered the language on the suggestion to read
Jamie Woods, individually, and Woods Construction Company and dba AJM Corporation.
Upon being charged with ethical violations, the respondent attorney in Losch admitted that he did not file a motion or take any other action to amend the judgment order
against Jamie Woods to include 'AJM Corporation[,]' [n]or did he obtain any court order
authorizing the issuance of a suggestion upon 'AJM Corporation.' Id. at 318, 633 S.E.2d
at 263. However, the respondent attorney argued that the alteration had no legal force or
effect and that his action, although intentional, did not create any actual or potential injury. Id. at 319, 633 S.E.2d at 264. Moreover, respondent attorney contended AJM Corporation
had its charter revoked and was not a legal entity when the suggestion was served; that he
altered a copy of the suggestion and not the original; that his client was entitled to the
suggestion against Jamie Woods; and that he did not attempt to recover more than the
amount due. The respondent attorney also argued that he altered the suggestion for the sole
purpose of ensuring timely recovery for his client.
This Court in Losch found the respondent attorney's conduct to be unethical
and in violation of the Rules. However, we rejected the portion of the Board's
recommendation that he be suspended from the practice of law for thirty days and that his
law practice be supervised for one year following reinstatement, explaining that these
sanctions were not necessary for the purposes of punishment of the respondent or
restoration of public confidence in the ethical standards of the legal profession. Id. at 320,
633 S.E.2d at 265. Rather, this Court articulated its belief that
suspension, in this case, would likely be more detrimental to the
respondent's clients than punitive to the respondent.
Furthermore, the violation in this case represents a single act
rather than a pattern of professional misconduct that suggests
the need for supervision. Additionally, we note that in this case
there is but a single count in the charges against the respondent,
and this is the first instance of the respondent having been
before this Court for a violation of the [Rules].
In the instant case, Respondent contends that, as in Losch
, his misconduct
involved a single set of circumstances unlikely to repeat itself. Though his improper
activities occurred over a two-year period, Respondent argues they were tied together under
a common theme and common purpose and constitute a one time event. Furthermore,
Respondent points out that, like the attorney in Losch
, he was charged with only one count
of violating the Rules. Finally, Respondent contrasts his conduct to that in Losch
that his actions were less egregious than in Losch
because neither he nor his clients
benefitted from his actions; likewise, his actions had no detrimental impact on OFN's
clients. Thus, Respondent argues that, as in Losch
, suspension of his law license is too great
a sanction considering the facts unique to this case.
Though the use of e-mail and other computer technology has become widely
used in the legal profession, legal ethics cases involving their abuse or misuse are very few.
In In re Brown
, 628 S.E.2d 885 (S.C. 2006), an attorney admitted to secretly accessing the
e-mail accounts of more than forty co-workers for the purpose of monitor[ing] management
activity and anti-union sentiment during a unionizing effort that [she] initiated and
supported. 628 S.E.2d at 886. During a period of twenty-eight months, the attorney read,
downloaded, disseminated and, in some instances, deleted information contained in the e-
mails, without the authorization or knowledge of the e-mail account holders. For her
professional misconduct, the attorney's law license was suspended for a period of two years.
In In re Schwartz
, 599 S.E.2d 184 (Ga. 2004), the offending attorney admitted
that for a 13-14 month period he accessed, listened to, and randomly deleted voice mail
messages left on the voice mail system of his former employer, a law firm which had
previously discharged him. Id
. Though his actions, a violation of Georgia's Rules of
Professional Conduct, were punishable by disbarment, the Supreme Court of Georgia agreed
to accept the attorney's petition for voluntary discipline of an 18-month suspension of his
law license. The Court in Schwartz
was persuaded by certain mitigating factors, including
the fact the attorney had no prior or subsequent incidents of inappropriate behavior related
to his professional conduct; appears to be well-respected by other members of the Bar; has
been forthright in his dealings with the State Bar regarding this matter; and has demonstrated
contrition and remorse. Id
In the instant matter, we are mindful of the mitigating factors presented by
Respondent, including the unique circumstances which motivated his misconduct in the first
place. However, there are also several aggravating factors which this Court cannot ignore
or minimize. (See footnote 12)
Though Respondent initially accessed his wife's OFN e-mail account with
motives very personal to his marriage, his misconduct eventually became more rampant. Out
of simple curiosity, he broke into the e-mail accounts of eight of his wife's unsuspecting co-
workers on almost a daily basis for over a two-year period. He did not cease or disclose his
actions until he learned OFN's computer experts were on the verge of discovering who was
behind the unauthorized intrusions. Moreover, in addition to confidential personal
information, Respondent viewed confidential financial information intended to be read
exclusively by OFN partners. With regard to confidential client information, in one
instance, his firm and OFN represented separate co-defendants which had interests adverse
to each other because Respondent's client had an indemnity claim against OFN's client.
Presently, there is no evidence that Respondent has used or misused the
information he improperly accessed from OFN. Nevertheless, we must recognize that OFN
has suffered negative consequences from Respondent's actions. Not only was OFN forced
to expend valuable time and resources to investigate the matter, but it was also required to
disclose the unfortunate events to its clients, opening itself up to potential lawsuits and
professional embarrassment. Moreover, one is unable to predict or tangibly quantify the
future impact of Respondent's misconduct on OFN or on Respondent's former law firm in
terms of attracting new clients.
Finally, we recognize that with the widespread use of computer e-mail as an
important method of communication between and among attorneys and their clients comes
the potentiality that the communication might be improperly infiltrated. This Court does not
take lightly the fact that, in this case, it was an attorney who repeatedly accessed the
confidential e-mails of other attorneys without their knowledge or permission. Thus, the
imposition of a suitable sanction in a case such as this is not exclusively dictated by what
sanction would appropriately punish the offending attorney, (See footnote 13)
but, just as importantly, this
Court must ensure that the discipline imposed adequately serve as an effective deterrent to
other attorneys, (See footnote 14)
to protect the public, to reassure it as to the reliability and integrity of
attorneys and to safeguard its interest in the administration of justice. Battistelli
W.Va. at 201, 523 S.E.2d at 261, quoting Lawyer Disciplinary Board v. Taylor
, 192 W.Va.
at 144, 451 S.E.2d at 445. Accordingly, based upon the foregoing, we are compelled to
adopt the recommendation of discipline tendered by the Board.
For the reasons stated above, we adopt the Board's recommendations and
hereby impose the following sanctions upon Respondent: (1) Respondent is suspended from
the practice of law in West Virginia for a period of two years; (2) upon reinstatement,
Respondent's private practice shall be supervised for a period of one year; (3) Respondent
is ordered to complete twelve hours of CLE in ethics in addition to such ethics hours he is
otherwise required to complete to maintain his active license to practice, said additional
twelve hours to be completed before he is reinstated; and (4) Respondent is ordered to pay
the costs of these proceedings.
License suspended, with additional sanctions.
It is undisputed that while in law school Respondent was an outstanding
student, graduating near the top of his class. While at Huddleston, Respondent was well
thought of in the legal community and was on the firm's Partnership Track.
The password to his wife's e-mail account was her last name. Similarly, the
passwords to the e-mail accounts of all OFN attorneys was the individual account holder's
During his testimony before the Board, Respondent described an e-mail
between his wife and an OFN partner in which the partner encouraged Respondent's wife
to join her and a particular client in an evening out. (It is unclear from Respondent's
testimony if this is the same client with whom he suspected his wife of having an affair.)
According to Respondent, the partner's e-mail suggested that they would keep the evening
a secret from Respondent.
Mr. Law explained that, [i]n layman's terms, an IP address is basically a
phone number for a computer. . . . It's basically Caller ID for computer systems.
When contacted by Mr. Offutt about the breach in OFN's e-mail system by
one of its employees, Huddleston conducted its own investigation to determine if
Respondent had ever saved OFN e-mails or other OFN computer files in Huddleston's
computer system. From its investigation, Huddleston found no information improperly
accessed from the OFN e-mails on its computer system.
An affidavit by Mr. Offutt was given on March 24, 2008, and was attached
to the Reply Brief of the Lawyer Disciplinary Board filed with this Court on March 26,
Respondent's wife was initially placed on administrative leave, with pay.
When Mr. Offutt learned that Respondent's wife did not answer truthfully when she denied
knowledge of Respondent's misconduct, her employment was terminated. As indicated
above, Respondent's wife did not know about Respondent's misconduct until he disclosed
it to her the evening before she met with Mr. Offutt.
According to Respondent, he did not discuss with anyone any of the
improperly-accessed information, with one notable exception: He testified that when he
disclosed his misconduct to his wife, he then confronted her about sexually-suggestive e-mails she received from the OFN client with whom Respondent suspected she was having
In his affidavit, Mr. Offutt stated that in order to further determine if
Respondent did not view confidential client information, he requested access to
Respondent's personal home computer. Mr. Offutt indicated that his request was denied.
In contrast, Respondent argues that when asked for access to his computer by Mr. Offutt,
Mr. Offutt was told that his request would be considered after Respondent's computer at
Huddleston was examined. Respondent contends that once it was determined by
independent computer experts examining Respondent's work computer that Respondent did
not compromise or disseminate any information from OFN's computer system, Mr. Offutt
did not repeat his request to have Respondent's home computer examined.
W.Va. Code § 61-3C-12 (1989) (Repl. Vol. 2005) states:
Any person who knowingly, willfully and without
authorization accesses a computer or computer network and
examines any employment, salary, credit or any other financial
or personal information relating to any other person, after the
time at which the offender knows or reasonably should know
that he is without authorization to view the information
displayed, shall be guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not more than five hundred
dollars or confined in the county jail for not more than six
months, or both.
No criminal charges arising out of Respondent's unauthorized access of OFN
e-mail accounts have ever been filed against Respondent.
We held in syllabus point 3 of Lawyer Disciplinary Bd. v. Scott
, 213 W.Va.
209, 579 S.E.2d 550 (2003), that
[m]itigating factors which may be considered in
determining the appropriate sanction to be imposed against a
lawyer for violating the Rules of Professional Conduct include:
(1) absence of a prior disciplinary record; (2) absence of a
dishonest or selfish motive; (3) personal or emotional
problems; (4) timely good faith effort to make restitution or to
rectify consequences of misconduct; (5) full and free disclosure
to disciplinary board or cooperative attitude toward
proceedings; (6) inexperience in the practice of law; (7)
character or reputation; (8) physical or mental disability or
impairment; (9) delay in disciplinary proceedings; (10) interim
rehabilitation; (11) imposition of other penalties or sanctions;
(12) remorse; and (13) remoteness of prior offensee.
Aggravating factors in a lawyer disciplinary proceeding are any
considerations or factors that may justify an increase in the degree of discipline to be
, 213 W.Va. at 210, 579 S.E.2d at 551, syl. pt. 4.
Indeed, during the disciplinary hearing in this case, it was abundantly clear
that Respondent and his family have already suffered greatly as a result of Respondent's
See Wade, 217 W.Va. at 60, 614 S.E.2d at 707, syl. pt. 4.