CHARLESTON - The W.Va. Supreme Court of Appeals ruled that an attorney did not violate the Rules of Professional Conduct and dismissed the statement of charges against him brought by the Lawyer Disciplinary Board.
Justices Brent D. Benjamin and Margaret Workman voted in the majority, with Benjamin authoring the opinion.
Justices Menis Ketchum and Allen Loughry voted in the minority, with Loughry authoring his dissenting opinion.
The opinion was filed on Nov. 25.
The Hearing Panel Subcommittee recommended that John F. Hussell IV have his law license suspended for 90 days with automatic reinstatement, that his practice be supervised for one year by an agreed upon attorney, that Hussell undergo a psychiatric evaluation to determine fitness to practice law and that he pay the costs of the proceeding.
"Based upon our review and for the reasons stated herein, this court rejects the recommendations of the HPS and finds that because there was no attorney-client relationship between Mr. Hussell, and James and Carolyn L. at the time of the acts complained of herein, such joint relationship having ended by James L.'s firing of Mr. Hussell on January 10, 2010," the majority opinion states. "Mr. Hussell did not violate the rules for which he was charged. Accordingly, we dismiss the statement of charges against Mr. Hussell."
The Hearing Panel Subcommittee's conclusion that the Jan. 14, 2010, unilateral act of James and Carolyn L. in returning the Jan. 6, 2010, representation letter after Hussell's discharge re-establishing an attorney-client relationship is unsupported by reliable, probative and substantial evidence on the whole record, according to the majority opinion.
"Neither Mr. Hussell nor James and Carolyn L. did anything to signify a belief that representation had been reestablished," the opinion states.
Because there was no attorney-client relationship between Hussell and James or Carolyn L., Hussell did not violate the rules, according to the majority opinion.
When James and Carolyn L. separated, James L. contacted Hussell to get assurance that information he might give Hussell would not be relayed to his estranged wife. Hussell wrote a letter to James and Carolyn L., to acknowledge the changed circumstances and to attempt to confirm for James L. the privacy of the information he might give to Hussell.
However, prior to the letter being signed and returned to Hussell on Jan. 14, 2010, James L. and Hussell had a conversation on Jan. 10, 2010, in which James L. ended the joint attorney-client relationship.
James L. claimed he was not comfortable with Hissell representing him because of his friendship with Carolyn L.
Four days after Hussell's termination, James and Carolyn L. signed the Jan. 6, 2010, letter prepared by Hussell regarding the confidentiality of the information provided to Hussell and sent it to him. The letter was received by Hussell's office on Jan. 22, 2010, and was placed in their file.
Hussell took no further legal action on behalf of James and Carolyn L. and did not bill them for any further time. There was also no indication that James or Carolyn L. undertook any action, such as contacting Hussell to discuss the progress of their estate plan or to indicate the joint representation continued past the Jan. 10, 2010, termination.
In his dissenting opinion, Loughry said that the state Supreme Court's faithful and consistent oversight of lawyer disciplinary matters is among the highest duties owed to West Virginia citizens.
"Yet in a virtually unprecedented decision, the majority dismissed charges and resulting sanctions against a lawyer who had expressly consented to the recommended sanctions made by the Hearing Panel Subcommittee," Loughry wrote.
Hussell did not come before the court asking to have the findings of the HPS or its recommended sanctions set aside and, in fact, he requested in his brief "that the recommended sanctions be imposed[.]"
"To reach its unwarranted result, the majority completely disregards the factual findings made by the HPS–the body charged with making those factual determinations–and casually discards the implications of Mr. Hussell’s consent to the recommended disposition," Loughry wrote.
The majority’s result-oriented opinion is nothing more than a "work of fiction that will assuredly send a message that this court is more interested in protecting its own than policing its own," Loughry wrote.
"The image of the West Virginia legal system will once again be sullied as ethical considerations are cast aside along with any concerns for protecting the public," the opinion states.
Loughry said in the dissenting opinion that the majority has performed a disservice to both the rule of law and to Hussell.
The LDB is represented by Jessica H. Donahue Rhodes.
Hussell is represented by Benjamin L. Bailey and Michael B. Hissam of Bailey & Glasser.
W.Va. Supreme Court of Appeals case number: 13-0544