Lawyer Disciplinary Board v. Sims

574 S.E.2d 795, 212 W. Va. 463, 2002 W. Va. LEXIS 179
CourtWest Virginia Supreme Court
DecidedNovember 4, 2002
DocketNo. 28473
StatusPublished
Cited by15 cases

This text of 574 S.E.2d 795 (Lawyer Disciplinary Board v. Sims) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lawyer Disciplinary Board v. Sims, 574 S.E.2d 795, 212 W. Va. 463, 2002 W. Va. LEXIS 179 (W. Va. 2002).

Opinions

PER CURIAM:

In this disciplinary proceeding, the Hearing Panel Subcommittee of the Lawyer Disciplinary Board (Hearing Panel) recommends that this Court suspend the law license of the respondent, John G. Sims, and assess the costs of the proceeding against him. The recommendation follows Sims’ removal from the office of prosecuting attorney for Logan County by this Court in In re Sims, 206 W.Va. 213, 523 S.E.2d 273 (1999) (Sims I), and is based on the Hearing Panel’s conclusion that Sims violated West Virginia Rules of Professional Conduct 3.6,1 3.8,2 and 8.4 3 prior to and following the circuit court’s caution to refrain from improper behavior. We believe Sims should be reprimanded and pay the costs of the disciplinary proceeding.

I.

FACTS

The Hearing Panel bases its recommendation upon many of the same facts which [466]*466provided the foundation for the removal proceeding in which Sims was removed by this Court from the elected office of prosecuting attorney for Logan County. Those facts were discussed in detail in Sims I, supra. The only facts that we need to enumerate in this opinion are those which we did not previously consider. After the three-judge panel entered its order but before this Court filed its opinion, Russell Rick Grimmett, assessor of Logan County, filed a petition for a writ of prohibition in the Circuit Court of Logan County against Sims seeking to prevent Sims from investigating the practices of the assessor’s office regarding property tax exonera-tions or presenting evidence to the grand jury. The circuit court found that a conflict of interest existed between the two offices and awarded the writ.

In its order, the trial court noted that it was concerned “regarding the release of new[s] stories about the grand jury proceedings[.]” The court thereupon strongly cautioned Sims that he should refrain from making extrajudicial statements to the press regarding grand jury matters. Nonetheless, articles were subsequently printed in The Williamson Daily News and in The Logan Banner wherein Sims was directly quoted as accusing the assessor of forgery, illegal reduction of property taxes, and fraud. Based upon Sims’ apparent flagrant disregard for the court’s admonishment against making extrajudicial statements, Grimmett filed a motion for contempt against Sims. Following a hearing on the matter, the circuit court found that Sims’ behavior violated West Virginia Rules of Professional Conduct 3.6 and 3.8. However, the court dismissed the motion because civil contempt was not alleged; the special prosecutor was ordered to “expand her investigation to determine whether charges of criminal contempt are warranted against the Respondent for actions including allegations of disclosure of Grand Jury information in violation of Rule 6 of the Rules of Criminal Procedure.”

Even though the three-judge panel failed to remove Sims from office, the panel concluded that Sims’ behavior was “so flagrant” that it “warrant[ed] some suspension from the practice of law.” Consequently, the panel referred the case to the Lawyer Disciplinary Board for resolution. The entirety of Sims’ behavior was submitted to special counsel for the Office of Disciplinary Counsel. Following an investigation, the Investigative Panel issued a statement of charges against Sims alleging he violated Rules 3.6, 3.8, and 8.4. The matter was then brought before the Hearing Panel upon stipulations. The Office of Disciplinary Counsel and Sims stipulated and submitted for consideration the transcript and testimony adduced during the removal proceeding; the order of the three-judge panel; the opinion of this Court, Sims I; the transcript and testimony adduced along with the court’s order in the prohibition proceeding; and the transcript and testimony adduced along with the court’s order in the contempt proceeding.

The Hearing Panel found that while Sims served as prosecuting attorney, he “repeatedly made extrajudicial statements that he knew or should have known would have a substantial likelihood of materially prejudicing an adjudicative proceeding.” The Hearing Panel also found that following his removal from the investigation involving the assessor’s office, Sims continued on at least two occasions to give interviews to the press. In both newspaper articles, Sims is quoted as publicly accusing the assessor of forgery, illegal reduction of property taxes, and fraud.4

[467]*467After making these findings of fact, the Hearing Panel concluded that both aggravating and mitigating factors existed in this case. The Hearing Panel believed it was significant that Sims “held a position of public trust — that of Prosecuting Attorney — at the time of the misconduct and that his misconduct involved a pattern of repeated offenses.” Along this same vein, the Hearing Panel believed it was significant that notwithstanding the fact that the three-judge panel held his behavior had violated the rules, and after he had been cautioned by the supervising circuit judge, Sims flagrantly repeated the improper behavior. The Hearing Panel also concluded that Sims’ removal from office as prosecuting attorney was “a substantial sanction” which was a mitigating factor. The Hearing Panel was not persuaded that removal from office alone was a sufficient sanction under the circumstances. Therefore, the Hearing Panel recommends to this Court that Sims’ license be suspended for ninety days and that he be required to pay the costs of the proceedings.

II.

STANDARD OF REVIEW

“ ‘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, 192 W.Va. 286, 452 S.E.2d 377 (1994).” Syllabus Point 2, Lawyer Disciplinary Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995).

Syllabus Point 3, Lawyer Disciplinary Bd. v. Cunningham, 195 W.Va. 27, 464 S.E.2d 181 (1995).

III.

DISCUSSION

Rule 3.7 of the West Virginia Rules of Lawyer Disciplinary Procedure states that “[i]n order to recommend the imposition of discipline of any lawyei', the allegations of the formal charge must be proved by clear and convincing evidence.” There is no question or dispute that the allegations in this case were proved by clear and convincing evidence. The parties stipulated the facts and the Board submitted to this Court copies of the latest newspaper articles which quote statements made by Sims.

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Bluebook (online)
574 S.E.2d 795, 212 W. Va. 463, 2002 W. Va. LEXIS 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawyer-disciplinary-board-v-sims-wva-2002.