1. “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 [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 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 , 192 W. Va. 286, 452 S.E.2d 377 (1994).
2. “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 [Supreme Court of Appeals of West Virginia] 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 Disciplinary Counsel v. Jordan, 204
W. Va. 495, 513 S.E.2d 722 (1998).
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.” Syl. pt. 3,
Committee on Legal
Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987).
4. “Disbarment of an attorney to practice law is not used solely to punish
the attorney but is for the protection of the public and the profession.” Syl. pt. 2,
In re:
Application by Daniel, 153 W. Va. 839, 173 S.E.2d 153 (1970).
Per Curiam:
(See footnote 1)
This lawyer disciplinary proceeding concerning the respondent, Mark A.
Blevins, is before this Court upon the Report of the Hearing Panel Subcommittee of the West
Virginia Lawyer Disciplinary Board and the Subcommittee's recommended sanctions: (1)
that respondent Blevins' license to practice law in the State of West Virginia be suspended
for a period of eighteen months; (2) that, upon reinstatement, his private practice be
supervised for a period of two years; (3) that respondent Blevins complete nine hours of
Continuing Legal Education in ethics in addition to such ethics hours he is otherwise required
to complete to maintain his active license to practice, said additional nine hours to be
completed in the current reporting period after he is reinstated; and (4) that respondent
Blevins pay the costs of these proceedings.
Respondent Blevins was admitted to The West Virginia State Bar in 1993 and
maintains a private law practice in Wheeling, West Virginia. The findings and recommended
sanctions of the Hearing Panel Subcommittee arose from a Statement of Charges filed in this
Court by the Investigative Panel of the Lawyer Disciplinary Board. Following an evidentiary
hearing conducted in October 2007, the Hearing Panel Subcommittee found that the
allegations were proven and that respondent Blevins' actions constituted transgressions of
the West Virginia Rules of Professional Conduct. The Subcommittee's Report containing
its findings and the recommended sanctions was filed in this Court on March 24, 2008.
Although the respondent filed an objection to the Report, he did not file a brief.
This Court has before it the findings and recommendations contained in the
Report of the Hearing Panel Subcommittee, all matters of record including the audio and
video tapes admitted at the evidentiary hearing and the brief filed by the Office of
Disciplinary Counsel. Upon review by this Court
de novo, and for the reasons expressed
below, this Court concludes that the magnitude of respondent Blevins' actions, which
included, at a minimum, recklessly encouraging a convicted felon to intimidate, by violence
or the threat of violence, certain former clients who owed the respondent money, warrants
the annulment of the respondent's license to practice in this State. Moreover, this Court
concludes that it would be appropriate, as a prerequisite to reinstatement, for the respondent
to be certified by a psychiatrist, to be selected jointly by the respondent and the Office of
Disciplinary Counsel, that the respondent is in such condition that his ability to practice law
will result in the protection of the public.
See,
Lawyer Disciplinary Board v. McCorkle, 219
W. Va. 245, 252, 633 S.E.2d 1, 8 (2006).
With that modification, this Court concludes that the Report and
recommendations of the Hearing Panel Subcommittee are otherwise supported by the
evidence. Accordingly, this Court orders: (1) that respondent Blevins' license to practice law
in the State of West Virginia be annulled; (2) that, upon reinstatement, his private practice
be supervised for a period of two years; (3) that respondent Blevins complete nine hours of
Continuing Legal Education in ethics in addition to such ethics hours he is otherwise required
to complete to maintain his active license to practice, said additional nine hours to be
completed in the current reporting period after he is reinstated; and (4) that respondent
Blevins pay the costs of these proceedings. In addition, as a prerequisite to reinstatement,
respondent Blevins shall be certified by a psychiatrist, to be selected jointly by the respondent
and the Office of Disciplinary Counsel, that the respondent is in such condition that his
ability to practice law will result in the protection of the public.
I.
Factual Background
In December 2006, the Investigative Panel of the Lawyer Disciplinary Board,
upon a finding of probable cause, filed a Statement of Charges against respondent Blevins
alleging violations of Rule 8.4.(a), (b) and (d) of the Rules of Professional Conduct. Those
sections provide:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct,
knowingly assist or induce another to do so, or do so through the acts of
another;
(b) commit a criminal act that reflects adversely on the lawyer's
honesty, trustworthiness or fitness as a lawyer in other respects;
* * *
(d) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation[.]
The evidence presented below indicates that, in 2003, respondent Blevins paid
Curtis Griffin $500 to locate an individual named Horbatak, a contractor hired to renovate
the respondent's office building. According to the respondent, Horbatak failed to pay the
subcontractors who worked on the building and was indebted to the respondent in the amount
of $7,500 to $8,000.
After several weeks without hearing anything from Griffin, a series of
telephone calls took place, in February 2004, between Griffin and William Curtin. Curtin
was a part time process server and courier for the respondent. Curtin told Griffin that, if he
could obtain a handgun for respondent Blevins, the $500 would be forgiven. In addition,
Curtin indicated that there were four people the respondent wanted them to “go get” who
owed the respondent money. Curtin stated that he, Griffin and the respondent would share
the monies collected. One person “down in Uniontown” was to have his “brain beat in.”
Unknown to Curtin, his comments were recorded by law enforcement officers. At that time,
Griffin was an informant in an unrelated matter for the Ohio Valley Drug Task Force and had
advised the officers about some of his contacts with Curtin. (See footnote 2)
On February 21, 2004, Griffin, with audio and video surveillance devices hidden on
his body, met Curtin and respondent Blevins in an alley near Market Street in Wheeling.
From there, they walked to a nearby 7-Eleven Food Store and then to respondent Blevins'
law office. While in the office, the respondent confirmed that he wanted Griffin to obtain
a handgun for him. Moreover, four people who owed the respondent money were discussed.
First, the respondent stated that, of the amount owed by contractor Horbatak, the respondent
wanted $5,000, and Griffin and Curtin could keep the excess. The respondent warned: “So
you've got to let [Horbatak] know, if he opens his mouth to anyone, he's done.” Second,
respondent Blevins stated that the individual in Uniontown was a former client who owed
him $3,400. The respondent stated that he wanted $400 from that individual and that Griffin
and Curtin could split the $3,000. Again, the respondent warned: “But you tell him, if he
goes and talks to anybody on the planet, he's going to have a little problem here.” Griffin
replied: “I'll cut his f*ckin' tongue out.”
Third, respondent Blevins stated that a former client by the name of Stiltenpole
in West Alexander, Pennsylvania, owed him $1,500 and that, upon collection, Griffin and
Curtin could share the entire amount. As the respondent concluded: “Well, he's probably
the easiest because he's a dope dealer, and he may not go squealing.” Fourth, the respondent
stated that a former client by the name of Dickerson of Belmont County, Ohio, owed him
$2,000. Respondent Blevins stated that, upon collection, he wanted $1,000, and Griffin and
Curtin could share the remaining $1,000. As respondent Blevins stated: “This guy thinks
he's a tough guy, but he'll crack like a cookie, and he has got money.”
During the February 21, 2004, meeting, Griffin stated three times that he was
a “two-time loser.” Respondent Blevins subsequently testified before the Hearing Panel
Subcommittee that, although he did not believe Griffith was being truthful in making that
statement, he understood the phrase “two-time loser” to mean a person with prior criminal
convictions. In any event, after the comments were made by Griffin, the respondent stated:
Mr. Blevins: “But what I'm saying is Billy [Curtin] will know exactly
when I'm leaving. He knows exactly when I'm coming back. I don't care.
First, I don't care what you do.”
Mr. Griffin: “Okay. Just get the money.”
Mr. Blevins: “But whatever you do, I'm somewhere else.”
Mr. Griffin: “Right.”
Finally, during the February 21, 2004, meeting, a number of other individuals
who owed the respondent money were discussed, and the respondent indicated that, when
Griffin and Curtin collected the money from the first four, set forth above, the respondent
would give Griffin and Curtin “another list.”
On February 24 and February 25, 2004, discussions took place between Griffin
and Curtin in Wheeling: (1) at The Sportsman Club, (2) an establishment known as Little
Ricky's and (3) in Curtin's vehicle, all of which were the subject of audio and video
surveillance by the Ohio Valley Drug Task Force. Griffin and Curtin talked about obtaining
the handgun for the respondent and about the plan to recover the various monies from the
individuals discussed on February 21, 2004. In carrying out the plan, Griffin suggested that
he and Curtin bring ski masks, tape and gloves. (See footnote 3)
II.
Procedural Background
As stated above, in December 2006, the Investigative Panel of the Lawyer
Disciplinary Board, upon a finding of probable cause, filed a Statement of Charges against
respondent Blevins alleging violations of Rule 8.4.(a), (b) and (d) of the Rules of
Professional Conduct. In his reply, the respondent asserted that he never requested or
authorized any actions involving intimidation, violence, or the threat of violence, to collect
the monies owed him. In that regard, respondent Blevins stated that Griffin was given
insufficient information to locate the individuals and that some of the individuals were
fictitious. The respondent asserted that, consequently, his actions did not result in harm to
his former clients or to anyone else. According to respondent Blevins, he and Curtin were
simply playing a role to either recover the $500 given to Griffin to locate Horbatak or to
obtain something of equal value, the handgun, which respondent Blevins stated he wanted
for protection.
On October 15 and 16, 2007, an evidentiary hearing was conducted before the
Hearing Panel Subcommittee of the Lawyer Disciplinary Board. Respondent Blevins was
represented by counsel. Subsequently, on March 24, 2008, the Subcommittee's Report and
recommended sanctions were filed in this Court. The Subcommittee found that the
allegations in the Statement of Charges were proven and that respondent Blevins violated
Rule 8.4.(a), (b) and (d) of the Rules of Professional Conduct. The Subcommittee concluded:
Respondent's conduct reflected adversely on his character and fitness
to practice law and endangered his former clients and other members of the
public for his own pecuniary gain. Respondent's conduct in soliciting the
services of a known felon to obtain a gun can be considered an attempt to
violate 18 U.S.C. § 922(g)
(See footnote 4) , and his participation in aiding and abetting a
known felon in a scheme to extort money through violence and intimidation
of individuals who owed respondent money can be considered conduct
criminal in nature. * * *
Respondent's assertions that he did not know of Mr. Griffin's criminal
background and that he was only “role playing” are not credible. It is not
believable that any attorney, let alone one who has an extensive criminal
defense practice, would only “pretend” to hire a known criminal capable of
extreme violence and condone criminal behavior in an attempt to obtain a gun
and to collect a debt. * * * Respondent could have availed himself of
legal means to obtain a gun for himself and could have initiated civil suits
against the individuals who owed him money. However, respondent chose not
to employ those legal means to reach his goal.
In recommending sanctions for respondent Blevins' conduct, the Hearing Panel
Subcommittee found no mitigating factors, other than the consideration that he had no
disciplinary history. Moreover, the Subcommittee noted that the respondent testified that “he
was not suffering from any physical, mental or substance abuse issues that would have
impaired his judgment or his ability to practice law in February 2004.” On the other hand,
the Subcommittee determined the following to constitute aggravating factors: (1) that the
respondent exhibited a dishonest and selfish motive in soliciting the services of a two-time
felon to locate and extort money and obtain a handgun, (2) that the respondent refused to
acknowledge the wrongful nature of his conduct and (3) that the respondent “has substantial
experience in the practice of law, including an active criminal defense practice.”
The respondent filed an objection to the Report and recommendations of the
Hearing Panel Subcommittee. Thereafter, the Office of Disciplinary Counsel filed a letter
indicating that it had no objection to the Report and recommendations. In April 2008, this
Court entered an order establishing a briefing schedule and setting the case for argument.
III.
Standards of Review
In
Committee on Legal Ethics v. McCorkle , 192 W. Va. 286, 452 S.E.2d 377
(1994), this Court took the opportunity to “resolve any doubt as to the applicable standard
of review” in lawyer disciplinary cases. 192 W. Va. at 289, 452 S.E.2d at 380. Thus,
syllabus point 3 of
McCorkle holds:
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
[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 findings of fact, unless such findings are not supported by
reliable, probative, and substantial evidence on the whole record.
Syl. pt. 1,
Lawyer Disciplinary Board v. Lakin, 217 W. Va. 134, 617 S.E.2d 484 (2005); syl.
pt. 1,
Lawyer Disciplinary Board v. Lusk, 212 W. Va. 456, 574 S.E.2d 788 (2002); syl. pt.
3,
Lawyer Disciplinary Board v. Barber, 211 W. Va. 358, 566 S.E.2d 245 (2002); syl. pt. 2,
Lawyer Disciplinary Board v. Turgeon, 210 W. Va. 181, 557 S.E.2d 235 (2000),
cert. denied,
534 U.S. 841, 122 S.Ct. 99, 151 L.Ed.2d 59 (2001).
The above standard of review is consistent with this Court's ultimate authority
with regard to legal ethics matters in this State. As 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), holds: “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. 2,
Barber,
supra; syl. pt. 3,
Lawyer Disciplinary Board v. Frame, 198 W. Va. 166, 479 S.E.2d 676 (1996).
See also, 2A
M.J.
Attorney and Client § 55 (1993), stating that the Supreme Court of Appeals of West
Virginia “is the final arbiter of legal ethics problems.”
Rule 3.7. of the West Virginia Rules of Lawyer Disciplinary Procedure
provides that, in order to recommend the imposition of discipline of a lawyer, “the allegations
of the formal charge must be proved by clear and convincing evidence.”
Lusk,
supra, 212
W. Va. at 461, 574 S.E.2d at 793; syl. pt. 2,
Lawyer Disciplinary Board v. Cunningham, 195
W. Va. 27, 464 S.E.2d 181 (1995). The various sanctions which may be recommended to
this Court are set forth in Rule 3.15.
(See footnote 5) , and, in making a recommendation or imposing
discipline, certain factors are to be considered pursuant to Rule 3.16. As syllabus point 4 of
Office of Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998), holds:
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 [Supreme Court of Appeals of
West Virginia] 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. 2,
Lakin,
supra; syl. pt. 4,
Lawyer Disciplinary Board v. Battistelli, 206 W. Va. 197,
523 S.E.2d 257 (1999).
See also, syl. pt. 3,
Lawyer Disciplinary Board v. Keenan, 208
W. Va. 645, 542 S.E.2d 466 (2000).
IV.
Discussion
This Court has conducted a complete review of the record in this matter,
including the transcript and numerous exhibits with regard to the October 15 and 16, 2007,
hearing before the Hearing Panel Subcommittee. As a result, this Court concludes that the
findings of the Subcommittee are supported by reliable, probative and substantial evidence
as that standard is expressed in
McCorkle, and that the allegations in the Statement of
Charges are proven by clear and convincing evidence. Moreover, this Court concludes that
the Hearing Panel Subcommittee appropriately determined that the actions of respondent
Blevins constituted misconduct under Rule 8.4.(a), (b) and (d), set forth above, of the Rules
of Professional Conduct.
There does not exist in the Rules of Professional Conduct a “no harm, no foul”
Rule. The respondent's assertion that his actions did not result, nor could have resulted, in
actual harm to anyone notwithstanding, the record contains sufficient matters of proof to
establish that the respondent and Curtin, his agent, solicited the services of Griffin, a two-
time felon: (1) to locate or obtain a handgun without going through legal channels and (2)
to intimidate, through violence or the threat of violence, certain individuals, including former
clients, who owed the respondent money. Officer Moore of the Task Force testified before
the Subcommittee as follows concerning Griffin:
Q. Did you have any reservations of using Mr. Griffin as a confidential
informant?
A. Yes, I did. When I first met with Sheriff Burgoyne about using him,
I expressed my concern that - his reputation and his past history. He was
known, at least to me - I never worked any investigation involving him. This
was all mostly before my time as a law enforcement officer. He has a
reputation in the area as being kind of a tough guy. He had connections to
organized crime in the past. I know he did federal time for drugs and weapons
charges.
And I had dealt with him on - the only time I had dealt with him was on
a domestic type of situation when I was a patrol officer, and I expressed my
concerns to Sheriff Burgoyne that I didn't know if he would make a good
informant. I wanted to make sure he was somebody we could - that he
wouldn't mess up again while he was working for us. That was my biggest
problem.
(See footnote 6)
Although respondent Blevins pressed upon the attention of the Subcommittee
that he and Curtin were merely playing a role to persuade Griffin to either return the $500
or obtain the handgun, both the respondent and Curtin conceded in their testimony that,
several days after the February 21, 2004, meeting, they concluded that the role playing may
have been too effective and that Griffin might take action against some of the individuals
discussed. Thus, both respondent Blevins and Curtin testified that Griffin was told the plan
was called off.
(See footnote 7) As stated above, however, the Hearing Panel Subcommittee determined that
the respondent's assertion that he was role playing was not credible.
Syllabus point 3 of
Committee on Legal Ethics v. Walker, 178 W. Va. 150, 358
S.E.2d 234 (1987), holds:
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.
Syl. pt. 3,
Lawyer Disciplinary Board v. Keenan,
supra; syl. pt. 3,
Lawyer Disciplinary
Board v. Swisher, 203 W. Va. 603, 509 S.E.2d 884 (1998). Consistent with that principle is
the earlier case of
In re: Application by Daniel, 153 W. Va. 839, 173 S.E.2d 153 (1970),
syllabus point 2 of which confirms: “Disbarment of an attorney to practice law is not used
solely to punish the attorney but is for the protection of the public and the profession.” Syl.
pt. 4,
Lawyer Disciplinary Board v. Sayre, 207 W. Va. 654, 535 S.E.2d 719 (2000).
In its March 24, 2008, Report, the Hearing Panel Subcommittee stated that this type
of conduct “has a dramatic impact on the public's confidence in the integrity of the Bar” and
that the respondent's actions could have resulted in significant injury to his former clients
and other individuals. The Subcommittee emphasized that the respondent failed to seek
lawful avenues to recover the monies owed him and to obtain the gun he wanted. This Court
is in full agreement with the Subcommittee's statements. However, in view of: (1) the
elaborate nature of the plan communicated to Griffin, (2) its potential tragic consequences,
(3) the risk that at least some of the information concerning various individuals disclosed by
the respondent in February 2004 may be disseminated throughout the criminal culture by
Griffin and (4) the aggravating circumstances set forth by the Subcommittee, this Court is
of the opinion that the recommendations of the Hearing Panel Subcommittee should be
adopted, with the exception that respondent Blevins' license to practice law in this State be
annulled rather than suspended.
As indicated above, this Court is particularly disturbed by the explanation advanced
by the respondent herein for his behavior with Griffin. Specifically, the respondent contends
that his actions constituted a somewhat fanciful role-playing of some sort. We fail to see
how the claimed explanation in any way relates to respondent's attempt to recover money
from Griffin. Respondent's role-playing story begs belief. Combined with the attempt to
illegally procure a “throw-away” gun through a person whom respondent knew to be a
convicted felon, the respondent's actions, whether or not violence actually resulted, is
profoundly disturbing.
V.
Conclusion
This Court holds that the Statement of Charges against respondent Blevins was
proven by clear and convincing evidence as required by the West Virginia Rules of Lawyer
Disciplinary Procedure. As modified, the March 24, 2008, Report and recommendations of
the Hearing Panel Subcommittee are adopted.
Accordingly, this Court orders: (1) that respondent Blevins' license to practice
law in the State of West Virginia be annulled; (2) that, upon reinstatement, his private
practice be supervised for a period of two years; (3) that respondent Blevins complete nine
hours of Continuing Legal Education in ethics in addition to such ethics hours he is otherwise
required to complete to maintain his active license to practice, said additional nine hours to
be completed in the current reporting period after he is reinstated; and (4) that respondent
Blevins pay the costs of these proceedings. In addition, as a prerequisite to reinstatement,
respondent Blevins shall be certified by a psychiatrist, to be selected jointly by the respondent
and the Office of Disciplinary Counsel, that the respondent is in such condition that his
ability to practice law will result in the protection of the public.
The mandate of this Court shall issue contemporaneously herewith. Office of
Disciplinary Counsel v. Niggemyer, 221 W. Va. 59, 650 S.E.2d 158 (2007).
License to Practice Law in West Virginia
Annulled, and Additional Sanctions
Footnote: 1