A November 18 decision by the West Virginia Supreme Court of Appeals has annulled the law license of Jarrell L. Clifton, II, of Marlinton.
The opinion of the court was delivered by Justice Brent D. Benjamin.
In its syllabus, the court states that it “is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys’ li- censes to practice law.”
There are several steps involved before a case reaches the Supreme Court of Appeals.
Evidence is heard before the Lawyer Disciplinary BOARD (LDB) which makes a recommendation as to appropriate sanctions in each case.
The court reviews the case as it was presented to the LDB, and gives considerable respect to the Board’s findings and recommendations, but ultimately the court exercises its own independent judgment, and issues the final decision.
The syllabus continues: “In deciding on the appropriate disciplinary action for ethical violations, the 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.
“Ethical violations by a lawyer holding a public office are viewed as more egregious because of the betrayal of the public trust attached to the office.”
Following an evidentiary hearing on November 10 and 11, 2014, the Hearing Panel Subcommittee (HPS) of the Lawyer Disciplinary Board (LDB) determined that Clifton engaged in unethical conduct, violating West Virginia Rules of Professional Conduct. The HPS recommended that Clifton receive, among other sanctions, a two-year suspension of his law license.
The ODC disagreed with the recommendation of the HPS, arguing that Clifton’s law license should be annulled. Clifton also disagreed with the findings of the HPS, asserting that while disciplinary action in some form was warranted, appropriate sanctions should be less than those recommended by the HPS.
In August 2012, a criminal investigation by a Marlinton police officer led the State Police and the Federal Bureau of Investigation (FBI) to investigate Clifton, who was indicted in the Circuit Court of Pocahontas County on two counts of sexual assault in the second degree and two counts of imposition of sexual intercourse on an incarcerated person.
Clifton self-reported the indictment to the ODC, which then opened a complaint on August 8, 2012.
Clifton invoked the Fifth Amendment until the matters were resolved, and requested a stay of the disciplinary proceedings. That request was granted September 15, 2012.
According to the record, on January 8, 2013, the criminal charges against Clifton were dismissed with prejudice. Subsequently, on April 27, 2013, the stay on the disciplinary proceedings was lifted. The ODC obtained a copy of the files concerning the criminal investigation, and using that information, the ODC identified three women who, it determined, engaged in sexual conduct with Clifton in his office while he served as an assistant prosecuting attorney in Pocahontas County. The ODC contended that Clifton’s behavior was unethical, and the Investigative Panel of the LDB detailed the alleged unethical conduct in a statement of charges dated November 5, 2013. A hearing was held November 10 and 11, 2014.
The earliest events giving rise to the allegations of misconduct took place in early 2009.
Upon examining the facts, the HPS concluded that sanctions were appropriate and recommended that Clifton’s law license be suspended for a period of two years, as well as imposing other remedies with regard to the case.
The final order states: “Although the LDB may make recommendations based on its investigations, this Court is the final arbiter of legal ethics problems and must make the ultimate decision about public reprimands, suspensions or annulments of attorneys’ licenses to practice.
“While the PDC finds no error with the HPS’s findings of fact and the HPS’s conclusions regarding violation of the Rules, the PDC believes the HPS’s recommended sanction “is insufficient…”
In addition the order notes that the testimony given at the hearing indicates that one of the women involved has had difficulty with complete honesty in the past. “This is true of allegations she has made against others and allegations against Mr. Clifton,” it says.
Both investigators in the case testified that she was untruthful, as well.
The order states, “however, despite her prior inconsistent statements, there is evidence that lends strong support to the HPS’s factual finding.
In conclusion, the order states: “We find no error in the HPS’s findings of fact and conclusions of law:, however, we disagree with the HPS’s recommended sanctions, determining that Mr. Clifton’s intentional and repeated violations of the rules warrant the annulment of his law license. We, therefore, order the annulment of Mr. Clifton’s license to practice law in the State of West Virginia, and we further order that he reimburse the LDB for the costs it incurred in connection with these proceedings.”
Pursuant to Rule 3.33(b) of the West Virginia Rules of Lawyer Disciplinary Procedure, Clifton may apply for reinstatement of his law license in five years.