WEST VIRGINIA RECORD

CHARLESTON –- A Fayette County attorney and former assistant prosecutor has been suspended for involving herself too intimately a former client's divorce and child custody case.

The state Supreme Court on April 15 ordered Jennifer Day Hewitt's license suspended for three months. The Court without comment accepted the recommendations of its Lawyer Disciplinary Board that Hewitt, 39, of Fayetteville, acted unprofessionally when in 2008 she not only began a sexual relationship with a client seeking a divorce from his wife, but also continued to involve herself in the client's custody dispute that led to an altercation with his ex-wife, and Hewitt's arrest on criminal charges following it.

The relationship, and altercation occurred while Hewitt was working simultaneously with a Fayetteville law firm, and the Fayette County Prosecuting Attorney's Office.

Beginnings

According to the report issued by the Board's hearing panel subcommittee, Hewitt accepted a part-time position with the prosecutor's office in March 2007. Six months later, she began working part-time with Hamilton, Burgess, Young and Pollard.

On June 18, 2008, William Oxley retained Hewitt in seeking a divorce from his wife, Janice. According to the report, Janice initiated divorce proceedings five days later.

Later on July 1, Hewitt filed two ex parte motions on William's behalf in Fayette Family Court including one for expedited child custody. The next day, Fayette Family Law Judge Jane Frye-Steele granted Hewitt's motions, and scheduled them for a temporary hearing the next month.

According to the report, it was sometime after the July 2 hearing on the ex parte motions that Hewitt began a sexual relationship with Oxley.

After filing addition pleadings in Oxley's case including his answer and counterclaim to Janice's divorce petition, and parenting plan, Hewitt sent him a letter dated July 14, 2008, stating he would need to find other counsel due to unspecified criminal allegations that surfaced during a July 10 hearing. Accompanying the letter was her final bill.

Nevertheless, the report states the next day, the two, with their respective children, went on vacation together. Two weeks later, Judge David Arrington, who was assigned the Oxley's divorce after Frye-Steele recused herself for unspecified reasons, granted William's request to have Charleston attorney, and former Kanawha County Prosecutor Michael T. Clifford substitute as his new attorney.

Altercation and charges

However, Hewitt remained personally involved in Oxley's case when she accompanied him to Janice's home in Oak Hill on Dec. 9, 2008. An altercation between the three led to Janice calling the police, and Hewitt later charged with assault, and brandishing a deadly weapon.

According to the criminal complaint filed in Fayette Magistrate Court by Patrolman C.A. Young, Hewitt and Oxley went to Janice's home when she failed to return William's repeated telephone calls to schedule a time for him to pick-up their son. During the altercation, Janice accused Hewitt of cussing at her, and threatening to shoot her with a handgun she had on her.

In the course of interviewing Hewitt and Oxley, Young said he could smell alcohol on their breaths. Despite his repeated requests, Young says Hewitt placed her handgun on the seat of her car only after William told her to do so.

Records show she was released on $5,000 bond. According the Beckley Register-Herald, Fayette County Prosecutor Carl Harris fired Hewitt the next day.

In exchange for pleading no contest to a charge of trespassing, Assistant Nicholas County Prosecuting Attorney Mark Hudnall, who was appointed as a special prosecutor in the case, agreed to dismiss the assault, and brandishing charges. Kanawha Magistrate Kim Aaron, who was appointed by the Court to hear the case after all Fayette magistrates recused themselves, ordered Hewitt to pay a $100 fine, and $159.53 in court costs on Feb. 12, 2009.

Punishment

Following an investigation by the Office of Disciplinary Counsel, the Board issued a two-count statement of charges against Hewitt on March 26, 2010. She was charged with violating Rules of Professional Conduct dealing with misconduct arising out of her sexual relationship with Oxley, and her arrest following the altercation with Janice.

A statement of charges acts as an indictment for disciplinary purposes.

In its report, the Board said because "there was no real injury" in her sexual relationship with Oxley, it might have recommended a lighter punishment. However, it felt at least a suspension was in order since Hewitt, while serving as a prosecutor, continued to involve herself in Oxley's case, and threaten his ex-wife while possessing a firearm.

"If this were the only charge, it might be that the sanction recommended by the Hearing Panel would likely be less than is being recommended," the Board said. "That is not the case, however."

"Respondent's misconduct in this case is not limited to her sexual relations with Mr. Oxley," the Board added. "As we have noted, around six (6) month later, Respondent [Hewitt] exercised extremely poor judgment when she became involved in the Oxley's custody dispute. [Her] position as Assistant Prosecutor and having a gun in plain view during the confrontation with Ms. Oxley raise concerns over Respondent's fitness to practice law."

In addition to the three-month suspension, the Court ordered Hewitt to formally petition for reinstatement, and as a condition of it undergo a psychological evaluation to determine her fitness to not only practice law, but also possess a concealed weapons permit. Should the evaluation prove she's unfit to possess one, she was to surrender it, and provide ODC evidence she did.

Also, Hewitt was ordered to pay the costs of the disciplinary proceeding. She was represented by Charleston attorney Sherri Goodman.

The suspension is the first disciplinary action taken against Hewitt since her admission to the Bar on May 5, 1998.

West Virginia Supreme Court of Appeals case number: 35515