Lawyer Disciplinary Board v. John F. Hussell ( 2014 )

No. 13-0544 Lawyer Disciplinary Board v. Hussell
FILED
November 25, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Justice Workman, concurring:
I concur with the decision of the majority in this case. As explained by the
majority, the HPS found that attorney John Hussell violated the West Virginia Rules of
Professional Conduct and recommended that Mr. Hussell be sanctioned by suspension for
ninety days, supervised practice for one year, psychiatric treatment, and reimbursement of
costs. In the vast majority of lawyer disciplinary cases, this Court adopts such findings and
recommendations. However, this Court has the ultimate decision-making authority on
lawyer ethics and on occasion decides to set the matter for full hearing, after which it may
accept or modify the HPS recommendations. As succinctly stated in Committee on Legal
Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994), “this Court independently
examines each case on its own merits in determining what, if any, disciplinary action is
warranted.” 192 W.Va. at 290, 452 S.E.2d at 381.1 Ironically, this matter was set for a full
1
Rule 3.12 of the Rules of Lawyer Disciplinary Procedure provides:
If the parties consent to the recommended disposition, the matter shall
(continued...)
1
hearing due to our concerns regarding possible over-leniency in this disciplinary action
against lawyer John Hussell.
Having examined this matter in its entirety, with due regard to the applicable
standards of review,2 it is now clear that there is no factual dispute that the sexual
1
(...continued)
be filed with the Supreme Court of Appeals for entry of an order consistent
with the recommended disposition. If the Court does not concur with the
recommended disposition, the Clerk of the Supreme Court of Appeals shall
promptly establish a briefing schedule and notify the parties of the date and
time of oral argument or submission of the case without oral argument before
the Supreme Court of Appeals. Whenever the Office of Disciplinary Counsel
advocates any position before the Supreme Court of Appeals which differs
from findings of fact, conclusions of law, or recommended disposition of the
Hearing Panel Subcommittee, it shall provide notice to the Hearing Panel
Subcommittee, whether by service of a copy of its brief or otherwise, and the
Hearing Panel Subcommittee shall be permitted, if it so desires, to file, within
thirty days of receipt of such notice, its own brief before the Supreme Court
of Appeals, in support of its findings of fact, conclusions of law, and
recommended disposition. Following oral argument or submission of the case
without oral argument, the Court will file an opinion or order disposing of the
case. Unless otherwise provided in the Court’s opinion or order, any sanction
will not take effect until after expiration of the rehearing period or the denial
of any petition for rehearing.
2
“A de novo standard applies to a review of the adjudicatory record made for the
Committee on Legal Ethics of the West Virginia State Bar [currently, the Hearing Panel
Subcommittee of 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 Committee’s recommendations while ultimately exercising
its own independent judgment. On the other hand, substantial deference is given to the
Committee’s finding of fact, unless such findings are not supported by reliable, probative,
and substantial evidence on the whole record.” McCorkle, 192 W.Va. at 287, 452 S.E.2d at
378, syl. pt. 3.
2
relationship between Mr. Hussell and Mrs. Carolyn L. did not commence until all legal
representation in the estate planning matters had concluded. Again, there is no factual
dispute that Mr. James L. discharged Mr. Hussell as attorney in these matters and that no
further legal representation by Mr. Hussell was thereafter undertaken. What muddies up the
waters is that, prior to Mr. James L. terminating Mr. Hussell, a letter outlining the “rules” of
continued joint representation of the L’s designed to protect each of their interests had been
sent to the L’s. It is unclear why Mr. L signed and returned the letter in view of the fact that
he had just fired Mr. Hussell shortly before.
Additionally, the HPS felt that Mr. Hussell improperly represented Mrs.
Carolyn L. in connection with the divorce pending between the L’s by giving her legal advice
on marital property and alimony matters. Mr. Hussell did not undertake any type of
representation of Mrs. L. in the divorce matter. Consequently, the majority concludes that
Mr. Hussell did not commit an ethical violation sanctionable by the West Virginia Rules of
Professional Conduct. Had the evidence demonstrated that a sexual relationship existed
between Mr. Hussell and Carolyn L. during Mr. Hussell’s legal representation of her and/or
her husband, this Court unquestionably would have found violations of the Rules of
Professional Conduct, and Mr. Hussell would have been sanctioned accordingly.
The wiser course for Mr. Hussell to have followed was to memorialize the
termination of the legal representation agreement in this matter by means of an unequivocal
3
disengagement letter by Mr. Hussell. Although there is no current ethical rule that requires
such a disengagement letter, if an attorney wishes to avoid allegations of ethics violations for
questionable conduct with a former client, he or she would be well-advised to specifically
and emphatically memorialize key elements of the process of legal representation and its
termination.
In consequence of our full review of this record, I must concur with the
majority that the HPS failed to prove the charges contained in its report by clear and
convincing evidence.3 Hopefully, though, this case will capture the attention of the Bar for
the principle that attorneys should document termination of representation agreements for
both the clients’ protection as well as the lawyers’ protection.
3
Rule 3.7 of the West Virginia Rules of Lawyer Disciplinary Procedure states: “In
order to recommend the imposition of discipline of any lawyer, the allegations of the formal
charge must be proven by clear and convincing evidence.”
4