Justices hear appeal of attorney who looked at another firm's e-mails

CHARLESTON – Michael Markins deserves a two-year suspension of his law license for stealing 150 e-mails from a law firm where his wife worked, the chief regulator of West Virginia attorneys told the Supreme Court of Appeals at oral arguments April 1.

Rachael Fletcher Cipoletti, interim chief lawyer disciplinary counsel, said Markins engaged in dishonest and deceitful conduct. She said he committed a criminal act.

Michael Callaghan of Charleston, representing Markins, dropped a plea for reprimand without suspension but did not say how long the court should suspend the license.

Callaghan said he and Markins appealed "on our knees," asking the Justices to think about the rest of his life, his marriage and his children.

"He has suffered greatly," Callaghan said. "He lived in obscurity and all of a sudden he's on the front page. Everybody saw it."

Justice Larry Starcher said, "But he caused it."

Five years ago, Markins practiced at Huddleston Bolen in Huntington. His wife Andrea Markins practiced at Offutt, Fisher and Nord in Huntington.

Michael Markins began reading e-mail of the Offutt firm, using his wife's password.

He continued reading and taking e-mails for two and a half years.

The Lawyer Disciplinary Board filed formal charges in December 2006 and brought Markins to a subcommittee hearing last July.

Attorney John Lukens chaired the subcommittee. Attorney Charlene Vaughan and lay member Victoria Weisiger also heard the case.

The subcommittee recommended a two-year suspension. The board adopted the recommendation and sent it to the Justices.

Callaghan answered March 12 that although the board accused Markins of a criminal act, no one prosecuted him.

If anyone had prosecuted him, he wrote, the offense amounted only to a misdemeanor.

Cipoletti replied March 26, "... the mere fact that Respondent has not been prosecuted by state or federal authorities does not negate the illegality of his misconduct."

At oral arguments, Justice Larry Starcher asked Cipoletti if the information Markins took compromised Offutt's clientele. "That would be really serious stuff," he said.

Cipoletti said D.C. Offutt disclosed the theft to clients. She said clients want absolute proof that Markins didn't compromise their interests.

"Not much comfort is given to Mr. Offutt's clients," she said.

Chief Justice Spike Maynard asked her what Offutt wants.

Cipoletti said the two-year suspension "burned him a little bit."

If not for mitigating circumstances, she said, she would have asked the Court to annul Markins's license.

Justice Robin Davis asked if Offutt lost clients. Cipoletti said at least one client has threatened to sue him.

Starcher said, "What clients aren't?"

Cipoletti said media coverage would continue causing damage.

Starcher asked if Markins blamed his behavior on marital problems.

Cipoletti said he testified that he started checking e-mails due to marital problems, but she added that his wife had beautiful twins in the course of his conduct.

Callaghan rose and said Markins confessed to him and asked him to fix it. Callaghan said he met with Offutt. He said he sent Markins to a psychiatrist.

"I grabbed him pretty quick and did the best I could," Callaghan said.

He said he wished Cipoletti would stop beating on Markins for having twins.

He said he asked Offutt if he lost clients, and Offutt testified it was his best year ever.

He said there was no evidence that Markins disseminated the e-mails.

"We put a total clamp on him," he said.

Starcher said a reprimand would be pretty light.

Callaghan said he didn't know the appropriate sanction. He said the disciplinary board first said they wanted 18 months but at the hearing they asked for 24.

Starcher asked if there was harmful access. Callaghan said there was no proof of financial gain for Markins.

Starcher asked if the firm suffered loss. Callaghan said it hired an e-mail expert.

Callaghan said, "He did not disseminate that. He looked at it."

In rebuttal, Cipoletti said she was glad the marriage has continued.

She said marital worries might explain one e-mail and if he entered her account alone, that would explain away his distress.

"But he read things in other accounts," she said. "He read a CPA's bills."

She said Markins claims he didn't disseminate the information and she added, "Nothing would stop him from doing so in the future."

Justice Joseph Albright asked about the switch from 18 months to 24.

Cipoletti said, "I think it is a bit improper to put settlement negotiations in a brief. The 18 months was an effort to – That was our offer."

Chief Justice Spike Maynard said, "What does the victim want?"

Cipoletti said Offutt stated in an affidavit that two years wasn't enough to make up for the damage his firm will suffer.

"There is nothing that will erase that taint from his firm," she said.