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Legal Ethics Committee v. Hobbs
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1993 Term
No. 21858
THE COMMITTEE ON LEGAL ETHICS OF THE WEST VIRGINIA STATE BAR, Complainant
v.
MARK HOBBS, A MEMBER OF THE WEST VIRGINIA STATE BAR, Respondent
Recommendation of the Committee on Legal Ethics
L.E.C. No. 92-142
TWO YEAR SUSPENSION, PLUS COSTS
Submitted: November 2, 1993
Filed: December 9, 1993

Sherri D. Goodman, Esq.
Bar Counsel, West Virginia State Bar
Charleston, West Virginia
Attorney for the Complainant

Robert C. Chambers, Esq.
Guy R. Bucci L.C.
Charleston, West Virginia
Attorney for the Respondent

The Opinion of the Court was delivered PER CURIAM.
JUSTICE NEELY dissents and reserves the right to file a dissenting opinion.
CHIEF JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.

SYLLABUS BY THE COURT

1.
"Absent a showing of some mistake of law or arbitrary assessment of the facts, recommendations made by the State Bar Ethics Committee . . . are to be given substantial consideration." Syl. Pt. 3, in part, In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980).

2.
"'In deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical

standards of the legal profession.' Syllabus Point 3, Committee on Legal Ethics v. Walker, [178 W.Va. 150], 358 S.E.2d 234 (1987). Syllabus Point 5, Committee on Legal Ethics v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989)." Syl. Pt. 2, Committee on Legal Ethics v. Craig, 187 W. Va. 14, 415 S.E.2d 255 (1992).

3.
"'In disciplinary proceedings, this Court, rather than endeavoring to establish a uniform standard of disciplinary action, will consider the facts and circumstances [in each case], including mitigating facts and circumstances, in determining what disciplinary action, if any, is appropriate, and when the committee on legal ethics initiates proceedings before this Court, it has a duty to advise this Court of all pertinent facts with reference to


the charges and the recommended disciplinary action.' Syl. pt. 2, Committee on Legal Ethics v. Mullins, 159 W. Va. 647, 226 S.E.2d 427 (1976). Syllabus Point 2, Committee on Legal Ethics v. Higinbotham, [176] W. Va. [186], 342 S.E.2d 152 (1986)." Syl. Pt. 4, Committee on Legal Ethics v. Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989).
Per Curiam:
        In this disciplinary proceeding, the Committee on Legal Ethics of the West Virginia State Bar (Committee) found that Mark Hobbs violated the Code of Professional Responsibility when because of coercion from the circuit judge assigned to his medical malpractice case, he paid a percentage of his fee to the judge's wife and failed to inform anyone of the extortion for almost six years. After a hearing primarily focusing on mitigating factors, the Committee recommended that Mr. Hobbs' license to practice law be suspended for two years and that he be required to pay $1,642.73, the costs of the proceedings. Although Mr. Hobbs acknowledges that his conduct violated the Code of Professional Responsibility, he alleges that the Committee's disciplinary recommendations should not be accepted because the Committee failed to give proper consideration to the climate of fear and corruption that led him to succumb to the judge's pressure and to his voluntary disclosure of the extortion. Based on our independent review of the record, we find that the Committee properly considered the mitigating factors and therefore we adopt their recommended sanctions.
        With the exception of an eighteen-month association with a small firm immediately after graduation, Mr. Hobbs has practiced alone in Chapmanville, West Virginia since his 1982 graduation from the West Virginia University College of Law. In 1988, Mr. Hobbs was an unsuccessful candidate for prosecuting attorney for Logan County; in 1990, while maintaining his private practice, he became a public defender. In 1992 Mr. Hobbs ran unopposed for prosecuting attorney and took office in January 1993.
        Mr. Hobbs' unethical conduct began in May 1986, when Judge J. Neb Grubb, one of the two circuit judges in Logan County, approached Mr. Hobbs about his recently filed medical malpractice case.See footnote 1 Mr. Hobbs was representing Roy Dingess in a wrongful death action, against his wife's obstetrician, her anesthesiologist and Logan General Hospital after she died after giving birth to twins. The Dingess case was assigned to Judge Grubb. Approximately one week after the suit was filed, Judge Grubb requested that Mr. Hobbs, who was meeting in the judge's chambers on another matter, remain.See footnote 2 When the two were alone, Judge Grubb asked Mr. Hobbs, "Why don't you turn your two hundred and fifty thousand dollar case into a million? " After Mr. Hobbs said "Yeah," the judge informed him that his wife Linda Grubb, who worked as a nurse anesthetist at Logan General Hospital, knew what happened on the morning that Mrs. Dingess died. The judge told Mr. Hobbs, "Talk to Linda. She knows what happened there." Mr. Hobbs testified that he understood the exchange to mean that the judge wanted a share of his case with payment to be made to the judge's wife.
        Following that meeting, Mr. Hobbs refrained from informing the local prosecutor's and the sheriff's offices of the judge's proposition because they ran on the same slate as the judge. In his testimony before the Committee, Mr. Hobbs acknowledged that other options were available to him, for example approaching federal prosecutors, the state police, another lawyer, his co -counsel in the malpractice case or one of his former law professors. Mr. Hobbs, however, stated that in 1986, as a sole practitioner, he remained silent because he did not see any options beyond Judge Grubb's influence.
        According to Mr. Hobbs, on June 6 or 7, 1986, Mrs. Grubb visited him and told him the name of the nurse on duty when Mrs. Dingess died. Mrs. Grubb said that Mrs. Dingess' anesthesiologist had a "cavalier attitude" toward his patients. Mr. Hobbs maintained that he was already aware of the duty nurse's name and believed that the anesthesiologist's attitude would have been disclosed in discovery. After Mrs. Grubb learned that Mr. Hobbs would be paid a percentage of Mr. Dingess' recovery, she demanded four percent of his fee. Mr. Hobbs admitted that although he expected no help from Mrs. Grubb, he agreed to the fee arrangement because he feared the loss of his "one big case" and feared Judge Grubb might retaliate against him or his client.
        While the medical malpractice case was pending, in other matters Judge Grubb jailed Mr. Hobbs for contempt because he was late for a hearing and fined him $100 for late discovery. According to Mr. Hobbs, he was the only lawyer disciplined by the judge. Mr. Hobbs felt the judge used the discipline to keep him cooperative and quiet.
        While the malpractice case was still pending, Mr. Hobbs asked the judge if the four percent fee was acceptable. The judge replied affirmatively. After Mr. Dingess retained additional counsel in the malpractice action, Judge Grubb asked Mr. Hobbs if his wife's payment would be affected.See footnote 3 Subsequently, Judge Grubb was recused from the malpractice case, but only after Logan General Hospital listed Mrs. Grubb as a potential witness. After the Dingess medical malpractice case was settled before trial for $500,000, Mrs. Grubb asked Mr. Hobbs for $4,000.00 in cash or 4 percent of what she believed to be Mr. Hobbs' fee. (Actually, Mr. Hobbs' fee was $88,000.) On January 29, 1988, Mrs. Grubb went to Mr. Hobbs' office where he paid her $4,000 in cash.
        Mr. Hobbs remained silent until after Judge Grubb was indicted by a United States Grand Jury on February 27, 1992. After Judge Grubb's indictment, Mr. Hobbs sought counsel and thereafter contacted the U.S. Attorney's office. Once his lawyer had arranged for immunity, Mr. Hobbs told the federal officials about Judge and Mrs. Grubb's actions in the Dingess case. Based on Mr. Hobbs' information, a superseding indictment was obtained charging Judge and Mrs. Grubb with extortion. In May 1992, although Judge Grubb was found guilty on other matters, he and Mrs. Grubb were acquitted on the extortion charge.See footnote 4
        About a week after the verdict, on May 14, 1992, Mr. Hobbs voluntarily informed the West Virginia State Bar Counsel about his contacts with Judge and Mrs. Grubb.
        The Committee charged that in his contacts with Judge Grubb and his wife, Mr. Hobbs violated the following disciplinary rules of the Code of Professional Responsibility: (1) DR 1- 102(A)(4) by engaging in dishonest and deceitful conduct; (2) DR 1- 102(A)(5) by engaging in conduct prejudicial to the administration of justice; (3) DR 7

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