Lawyer Disciplinary Bd. v. White

811 S.E.2d 893

LAWYER DISCIPLINARY BOARD, Petitioner

v.Benjamin F. WHITE, a member of the West Virginia State Bar, Respondent

No. 16-1003

Supreme Court of Appeals of West Virginia.

Submitted: February 6, 2018

Filed: March 15, 2018

Renee N. Frymyer, Esq., Office of Disciplinary Counsel, Charleston, West Virginia, Counsel for the Petitioner

Benjamin F. White, Esq., Chapmanville, West Virginia, Respondent

WALKER, Justice:

Benjamin F. White is a lawyer who convinced A.S.¹ to hire him as counsel after A.S. was charged with one count of felony child neglect in April 2015. Mr. White never discussed (or documented) his fee arrangement with A.S., but immediately pursued an intimate relationship with her. Mr. White took A.S. on out-of-town trips, during which he provided her with alcohol and drugs—causing her to violate the terms of her probation—and engaged in sexual relations with her. A.S. eventually reported Mr. White's conduct and he was promptly removed as her counsel in June 2015. Mr. White was charged with violating six separate provisions of the West Virginia Rules of Professional Conduct, but he failed to respond to the formal statement of charges. Following a hearing at which both Mr. White and A.S. testified, the Hearing Panel Subcommittee (HPS) of the Lawyer Disciplinary Board (LDB) recommended that Mr. White be suspended from the practice of law for five years. Upon consideration of Mr. White's egregious conduct, including the additional aggravating factor that Mr. White disregarded this Court's order to file a responsive brief, we order that his license be annulled.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mr. White is a lawyer practicing in Chapmanville, West Virginia who was admitted to the West Virginia State Bar on November 2, 2005. Mr. White was previously reprimanded in 2014. Additionally, Mr. White's license was administratively suspended on November 13, 2017 for nonpayment of dues and noncompliance with the financial responsibility disclosure requirement, but was reinstated on February 2, 2018 after complying with both. The current proceeding arises from three lawyer ethics complaints filed against Mr. White in July 2015—all stemming from allegations of misconduct in relation to his representation of A.S. in a felony criminal matter.²

A. Underlying Facts and Allegations

In October 2014, Mr. White sent A.S. a Facebook friend request and began sending her messages through that social media platform. Throughout early 2015, though Mr. White and A.S. communicated online occasionally about her ongoing divorce proceeding, she testified that she did not consider him to be her attorney. The nature of their relationship changed, however, on April 22, 2015, when A.S. was charged with one felony count of gross child neglect. A.S. was appointed representation, but after speaking with Mr. White—who advised her that court appointed attorneys "were not as good as [him]"—she requested that the public defender be removed as counsel. Although Mr. White and A.S. did not reduce his representation to a formal written agreement or set his rate of pay, Mr. White filed a Notice of Appearance on May 19, 2015.

After representation began, Mr. White came to A.S.'s residence unannounced on several occasions. Though A.S. acknowledges that they had a friendship beyond the usual attorney-client relationship, she testified that she felt that he was "pushy and bullish" during this time. Because Mr. White never asked for payment for his services, A.S. testified that she felt obligated to be friendly with him and that she didn't feel like she could turn down his requests, specifically testifying that she felt that "if she quit having anything to do with him, then he wasn't going to be [her] lawyer anymore."

At her plea hearing on May 28, 2015, A.S.'s home confinement was suspended and she was placed on probation. Immediately afterward, Mr. White insisted that they drive to Charleston to "celebrate." Once in Charleston, Mr. White took A.S. to dinner and purchased alcoholic drinks for her, despite knowing that her consumption of those drinks would violate her probation. On their way home, in the early morning hours of May 29, 2015, Mr. White took her to the ATV resort he owns and they engaged in sexual relations for the first time.

The following week, Mr. White and A.S. traveled together again when she accompanied him to Louisville, Kentucky for an ATV convention. Mr. White told her not to mention to anyone at the convention that he was her lawyer. On the way to Louisville, Mr. White gave A.S. an entire bottle of Xanax. In addition to ingesting a number of those pills, she consumed alcohol that was also provided by Mr. White and the two again engaged in sexual relations.

After the Louisville trip, Mr. White threatened to "put [A.S.] in jail" for one year for leaving her required alternative sentencing program classes early, despite her having permission to do so. On one such occasion, Mr. White came to the location where A.S. attended classes and began questioning other workers as to her whereabouts. One of the workers told Mr. White that A.S. left in a gold Suburban and Mr. White asked a friend on the police department to stop the automobile in an attempt to find her. When Mr. White and A.S. next spoke, A.S. told Mr. White that she was upset that he had involved the police because she could have been arrested. According to A.S.'s testimony, Mr. White responded, "that would have been good for [her]" and "that's what [she] need[s]." A.S. testified that after this encounter she was paranoid that he would try to "set her up." Notwithstanding this concern, Mr. White and A.S. ultimately reconciled and were on "good terms for a week." During this time, Mr. White and A.S. again traveled to Charleston and engaged in sexual relations. Once more, Mr. White purchased alcohol for A.S. while she was still on probation.

During this time, Mr. White continued serving as A.S.'s lawyer by filing various motions.³ A.S. testified that she believed Mr. White filed motions relating to her plea solely to remain involved with her case. Mr. White also gave A.S.'s children gifts during his representation and paid to have her cell phone fixed.

On June 22, 2015, A.S. told A.S.'s community service manager, Ms. Maynard, about Mr. White's behavior. Ms. Maynard accompanied A.S. to Judge Thompson's office, where A.S. requested a new lawyer. On June 24, 2015, Mr. White was removed as counsel and Theresa McCune was appointed to represent her. A.S.'s probation was ultimately revoked due to a failed drug screen and she was sentenced to jail as a result. A.S. testified that the situation with Mr. White was very stressful and embarrassing, and had occurred at a very vulnerable time in her life. She cited her "downfall" as the prescription Xanax Mr. White had provided to her.

B. Charges by the Lawyer Disciplinary Board

Upon review of the three complaints filed against Mr. White, the Investigative Panel of the LDB filed a formal Statement of Charges on October 26, 2016, alleging that Mr. White violated the following Rules of Professional Conduct: Rule 1.7(a)(2) (conflict of interest; current clients),⁴ Rule 1.8(e) (conflict of interest/prohibition on providing financial assistance to a client),⁵ Rule 1.8(j) (conflict of interest/prohibition on sexual relations with a client),⁶ Rule 4.2 (prohibition on communication with persons represented by counsel),⁷ Rule 1.5(b) (requiring communication of scope of representation, fees, and expenses),⁸ and Rule 8.4(d) (misconduct).⁹ Further, the LDB listed—as an aggravating factor—a prior disciplinary offense, which resulted in this Court issuing a reprimand for Mr. White's violation of Rules 1.15(b) and (c) (safekeeping property).

The Statement of Charges was served upon Mr. White on November 10, 2016,¹⁰ when he appeared for the Scheduling Conference. He verbally agreed to accept service as of that date. But, Mr. White failed to respond to these formal charges as required by Rule of Lawyer Disciplinary Procedure (RLDP) 2.12.¹¹ Accordingly, the Office of Disciplinary Counsel (ODC) filed a Motion to Deem Admitted the Factual Allegations in the Statement of Charges. The ODC also filed a Motion to Exclude Testimony of Witnesses and Documentary Evidence or Testimony of Mitigating Factors because Mr. White failed to provide his discovery to the ODC as he was obligated to do under RLDP 3.4.¹² These motions were granted by the HPS at the April 17, 2017 prehearing.

C. HPS Report and Recommended Sanctions

This matter proceeded to hearing before the HPS in Charleston on April 24, 2017, at which the HPS heard testimony from A.S. and from Mr. White. As a result of the HPS's ruling to deem the factual allegations in the statement of charges admitted, in conjunction with it considering the evidence presented, the HPS found that Mr. White violated Rules of Professional Conduct 1.7(a)(2), 1.8(e), 1.8(j), 1.5(b), and 8.4(d). The HPS further found that there were no mitigating factors present, but found several aggravating factors, including past discipline by this Court and the vulnerability of the victim in this matter. As to sanctions, the HPS recommended that Mr. White's law license be suspended for a period of five years and that he be required to pay the costs of the proceedings.

On September 13, 2017, the ODC filed its consent to the recommendation of the HPS. This Court, however, did not concur with the recommendation of the HPS and on October 18, 2017, ordered this matter to be scheduled for oral argument under Rule 19 of the West Virginia Rules of Appellate Procedure.

Although this Court directed the ODC and Mr. White to brief the matter pursuant to the scheduling order, Mr. White did not file a responsive brief. On January 8, 2018, the ODC filed a motion urging this Court to consider Mr. White's failure to file a responsive brief in accordance with this Court's scheduling order as an additional aggravating factor. The ODC now requests that we enhance Mr. White's...