Lawyer Disciplinary Bd. v. Stanton

233 W.Va. 639

760 S.E.2d 453

LAWYER DISCIPLINARY BOARD, Petitioner

v.George P. STANTON, III, Respondent.

No. 13–0138.

Supreme Court of Appeals of West Virginia.

Submitted May 7, 2014.

Decided June 5, 2014.

Syllabus by the Court

A formal charge that a lawyer has violated the Rules of Professional Conduct must be sufficiently clear and specific to inform the lawyer of the alleged misconduct and should identify the Rules alleged to have been violated. Nevertheless, a lawyer may be disciplined for an uncharged rule violation if the uncharged violation is within the scope of the misconduct alleged in the formal charge, and if the lawyer is given: (1) clear and specific notice of the alleged misconduct supporting the uncharged rule violation; and (2) an opportunity to respond.

Rachael L. Fletcher Cipoletti, Esq., Chief Lawyer Disciplinary Counsel, Office of Disciplinary Counsel, Charleston, WV, for Petitioner.

George P. Stanton, III, Esq., Fairmont, WV, pro se for Respondent.

Justice KETCHUM:

In this disciplinary proceeding we review a recommended disposition by the Lawyer Disciplinary Board. The Board has recommended, among other sanctions, that lawyer George P. Stanton, III, have his license to practice law suspended for three years. Mr. Stanton challenges the recommended sanctions. Mr. Stanton contends he did not receive due process because the Board found that he violated four Rules of Professional Conduct, including making false statements in the course of the disciplinary proceeding, that were not listed in the Statement of Charges that initiated the disciplinary proceeding.

We find that the Statement of Charges gave Mr. Stanton notice that was clear and specific enough to inform him of the alleged misconduct, and that the Rules which the Board found Mr. Stanton violated were clearly within the scope of that misconduct. Furthermore, Mr. Stanton was given an opportunity—which he waived—to respond to those allegations of misconduct.

After careful consideration of the record, we find clear and convincing evidence to support the violations of the Rules of Professional Conduct as found by the Board. We therefore adopt the Board's recommended sanctions.

I.FACTUAL AND PROCEDURAL BACKGROUND

George P. Stanton, III, is a lawyer practicing in Fairmont, West Virginia. He was admitted to the West Virginia State Bar on May 17, 1983, by diploma privilege. Early in his career, Mr. Stanton acted as general counsel for the Department of Corrections.

On February 14, 2013, the Lawyer Disciplinary Board filed a Statement of Charges against Mr. Stanton. The Statement alleged Mr. Stanton violated two of the Rules of Professional Conduct in his romantic relationships toward two women (J.L. and K.A.) ¹ who were incarcerated at Lakin Correctional Center in West Columbia, West Virginia, when the violations occurred. Specifically, the Statement charged that Mr. Stanton was the lawyer for both women and that he deposited money into each woman's prison trust account, and thereby violated the prohibition in Rule 1.8(e) that a “lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation[.]” The Statement of Charges also alleged that Mr. Stanton had started a personal relationship with K.A. while she was incarcerated; because she was a client in a vulnerable situation, the Statement of Charges alleged Mr. Stanton had engaged in misconduct prejudicial to the administration of justice in violation of Rule 8.4(d).

Mr. Stanton's defense to the charges, throughout this case, is that he did not represent these women in any official, legal, litigation capacity. Mr. Stanton admitted to having personal relationships with both women, but insists the relationships pre-date their incarceration. The pre-incarceration relationship with J.L. was sexual. As to K.A., Mr. Stanton says they dated before her incarceration and that he knows her family. Mr. Stanton stated under oath that she is “a very attractive woman,” and the record contains a letter declaring Mr. Stanton's intention to marry K.A. after she is released from jail. Mr. Stanton took the position that since none of the women were involved in “pending or contemplated litigation,” there was nothing wrong with his placing money into their prison trust accounts.

During the prosecution of the charges, it became clear that Mr. Stanton repeatedly gave misleading statements about his legal representation of these women. He would often deny ever representing a woman, but would thereafter admit representing her in some capacity. For instance, Mr. Stanton said in a letter to Disciplinary Counsel, “I really don't believe ... I've had a significant attorney/client relationship with [J.L.].” During a sworn statement given to Disciplinary Counsel, Mr. Stanton denied representing J.L. as an attorney and insisted he was a friend, saying, “I have never represented her at all other than I did go to that parole hearing in 2008 or nine with her family.” But later in his sworn statement, Mr. Stanton admitted to visiting J.L. in a regional jail at some point in 2012, signing into the jail as her attorney and discussing a civil rights suit against the jail with J.L. and another prisoner.

On the morning of August 29, 2013, a hearing panel subcommittee of the Lawyer Disciplinary Board conducted a hearing on the allegations against Mr. Stanton and received testimony from witnesses. Mr. Stanton appeared pro se at the hearing wearing shorts, a t-shirt and running shoes. After Disciplinary Counsel presented two witnesses, Mr. Stanton announced, “I have no desire to be here any longer. Do I have to be here?” The chairperson of the hearing panel told Mr. Stanton he could “leave at any time,” but the panel was going to continue the hearing. A recess was taken at about 10:15 a.m., and when proceedings resumed the chairperson noted that Mr. Stanton had left:

The Respondent has left the building and has apparently driven off in his truck. He advised the panel as he left that he was going out for a breath of fresh air, but I see we've been on break for about 22 minutes now and he had earlier expressed a desire to absent himself from the hearing, so we're going to proceed.

At the conclusion of the hearing, at approximately 1:00 p.m., the chairperson again stated on the record that Mr. Stanton “absented himself from the hearing after our morning break and has not returned.” Members of the hearing panel had “searched the exterior of the building without success” and could not find Mr. Stanton. Disciplinary Counsel collected the notebook of evidence that Mr. Stanton left behind, and later mailed it to him.²

The evidence presented to the hearing panel indicated that most inmate mail at Lakin Correctional Center (into or out of the facility) is opened and inspected. Likewise, inmates may make phone calls at limited times (but they cannot receive calls), and most calls are recorded and reviewed by prison employees. However, mail to and from an inmate's lawyer is not monitored. Inmate phone calls to the person who the inmate has designated as her lawyer are also not monitored, and may be placed at almost any time.³ Further, if an inmate is in segregation or has engaged in misconduct resulting in a loss of telephone privileges, the only phone call she can make is to her designated lawyer.

In early 2012, prison officials searched the cell of an inmate in segregation and found an unsigned note with lawyer George Stanton's office phone number. The note also said, “You can send messages to me through Mom and George, too. If you need anything, just have him call her.” This was a “red flag” to prison officials, who perceived that prisoners were using their ability to call Mr. Stanton, in his capacity as a lawyer, to pass unmonitored messages to other prisoners that might jeopardize the security of the institution.

Prison officials reviewed records of phone calls from Lakin Correctional Center to Mr. Stanton and discovered that numerous inmates (including J.L. and K.A.) had designated Mr. Stanton as their lawyer, and had been placing numerous unmonitored “legal” phone calls to Mr. Stanton. We recognize—as Mr. Stanton insists we do—that it was the inmates who designated Mr. Stanton as their lawyer, and it was the inmates who initiated the “legal” phone calls. Mr. Stanton insists that he never represented these inmates in any legal capacity.

Regardless of how the phone calls were placed, or how Mr. Stanton came to be designated as the lawyer for so many inmates, prison officials were troubled enough that, on January 9, 2012, the warden officially revoked Mr. Stanton's right to visit with any prisoner.⁴ Because the warden found Mr. Stanton's “activity sufficiently unusual” she notified Disciplinary Counsel who began an investigation that resulted in the aforementioned Statement of Charges.

Findings of the Hearing Panel Subcommittee

Based upon the testimony and exhibits presented, the hearing panel discerned that Mr. Stanton had not, as listed in the Statement of Charges, violated the prohibition in Rule 1.8(e) against “provid[ing] financial assistance to a client in connection with a pending or contemplated litigation” when he placed money into the female prisoners' prison trust accounts. ⁵ Even though Mr. Stanton admitted to giving money to prisoners, the hearing panel stated it was “unconvinced that this violation occurred.”

However, the hearing panel did find Mr. Stanton committed the following six violations of five different Rules of Professional Responsibility:

1. Mr. Stanton maintained a romantic relationship with J.L. while she was an inmate, and while he was acting as her lawyer. Mr. Stanton repeatedly presented himself to prison officials as J.L.'s lawyer when, in fact, he was cultivating his relationship with J.L. In so doing, he abused the privileges of prison communication associated with the attorney-client relationship. The hearing panel found Mr. Stanton improperly...