No. 13-0544 – Lawyer Disciplinary Board v. Hussell
                                                                                  FILED
                                                                           November 25, 2014
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA
Justice Ketchum, dissenting:


               The Hearing Panel recommended Mr. Hussell be suspended for 90 days. Mr.

Hussell agreed with the suspension, saying in his brief that he “requests that the recommended

sanctions be imposed.” At oral argument, Mr. Hussell’s lawyer insisted that we should adopt the

Hearing Panel’s recommended 90-day suspension. A lawyer would not agree with a suspension

if he/she hadn’t breached the Rules of Professional Conduct. I would therefore have suspended

Mr. Hussell for 90 days.

               There will be many lawyers who will grouse that the majority opinion took it easy

on Mr. Hussell. Nothing is farther from the truth. There is absolutely no evidence that Mr.

Hussell did any legal work or represented James and Carolyn L. during the time he had an extra-

marital affair with Carolyn L. The extra-marital affair started after Hussell was fired as the

estate lawyer for James and Carolyn L.

               Hussell and the L. family became acquainted around 2008 after Hussell and his

family purchased property and built a cabin in Greenbrier County near property owned by James

and Carolyn L. Soon thereafter, Hussell and his wife and children became social acquaintances

of James and Carolyn L. and their family. On September 12, 2009, Hussell was hired by

multiple members of the L. family to assist them with estate-planning services.

               On November 3, 2009, Hussell met in his office in Charleston with James and

Carolyn L. (James L. participated by phone) to have them fill out a standard questionnaire for

estate-planning clients. The meeting quickly ended, however, when James and Carolyn L. were



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unable to complete the questionnaire due to their disagreement over the guardianship of their

children in their wills. After that meeting, James and Carolyn L. never completed the estate-

planning questionnaire nor provided the requested information. As a result, Hussell received no

information during his representation regarding their assets or financial situation.

               Consequently, Hussell did not perform any estate-planning work for James or

Carolyn L. after the November 2009 meeting, nor did he ever have any communications with

either of them regarding their estate planning after November 2009.

               Around January 1, 2010, Carolyn L. telephoned Hussell and told him that she and

James L. were separating. In addition, James L. asked if Hussell would keep his financial

information separate from his wife’s, Carolyn L. On January 6, 2010, Hussell mailed a letter to

both James and Carolyn L. stating that he could represent both of them (a big mistake) if they

gave their consent and that he would keep each spouse’s financial information separate and

confidential. James and Carolyn L. were to sign the letter and return it to Hussell.

               Within a week, James L. indicated to Hussell that he wanted to speak with him

privately. The meeting took place at the Greenbrier on January 10, 2010. At the meeting, James

L. terminated Hussell’s legal representation of himself and his wife, Carolyn L. James L.

testified that he was uncomfortable with Hussell continuing the estate planning for him and his

wife. He had already obtained a reference for another estate-planning lawyer in Roanoke,

Virginia.

               The termination on January 10, 2010, was not disputed. In fact, it was confirmed

by Carolyn L. and by James L.’s sister. Carolyn L. recalled that her husband had a conversation

with Hussell in January 2010, during which James L. told Hussell “that he wasn’t comfortable

with [Hussell] representing him because of the fact that [Hussell] and I were such good friends.”



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In addition, James L.’s sister testified that she was present when James L. and Hussell stepped

aside to speak privately in January 2010. She further testified that James L. told her that he had

informed Hussell that he “just didn’t really want to continue to have Hussell work with him.”

She indicated that Hussell was terminated.

               Put simply, it is undisputed that Hussell was fired at the January 10, 2010,

Greenbrier meeting.      However, Hussell made another big mistake in not confirming his

termination in a letter to James and Carolyn L.

               The most important undisputed fact is that Hussell never performed any legal

work for James or Carolyn L. after the Greenbrier meeting on January 10, 2010.

               On January 22, 2010, twelve days after the Greenbrier termination, Hussell

received back the letter he had sent to James and Carolyn L. which they signed and dated

January 14, 2010. Both James and Carolyn L. signed the letter relating to separate representation

and confidentiality. Having been previously fired, Hussell took no action and put the letter in the

James L. billing file which is a file for “administrative things that are not substantive.”

               Hussell did not act on the letter because he had been fired. James and Carolyn L.

never spoke again with Hussell about legal representation. Hussell never performed any legal

work for James and Carolyn L. after he had been fired at the Greenbrier.

               People can speculate all they want, but the majority opinion isn’t off the mark.

The undisputed evidence in the record is that the extra-marital affair between Hussell and

Carolyn L. did not start until approximately three months after Hussell was fired at the

Greenbrier on January 10, 2010. The only evidence presented was that the affair started three

months later, in March 2010. No witness even surmised that the affair started before March

2010.



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               The ethical violations found by the Hearing Panel were that Hussell had a sexual

relationship with his client, Carolyn L., and that he gave her divorce advice while he represented

her and James L. However, all this occurred after he was fired on January 10, 2010, and after the

extra-marital affair started in March 2010. Hussell had not acted as the lawyer for James and

Carolyn L. for three months when the extra-marital affair began.

               The Hearing Panel found that Hussell’s representation was not terminated because

he had received the letter from James and Carolyn L. which was signed by them four days after

he was fired. The Hearing Panel found, because of the letter, Hussell was still the lawyer for

both James and Carolyn L. when the affair began three months later. They also found he did not

send a disengagement letter.

               I respectfully disagree with the Hearing Panel. There is no ethical rule or case

law that requires a lawyer to send a client a disengagement letter when he/she is fired. Hussell

did nothing to indicate he represented James and Carolyn L. after he was fired at the Greenbrier.

Hussell did nothing by way of legal work for James and Carolyn L. after the Greenbrier

termination. He did nothing.

               In order for the letter signed by James and Carolyn L. to be considered a re-

engagement of Hussell as a lawyer, there must have been an acceptance by Hussell to act for

James and Carolyn L. in a professional legal capacity. Our Court has held,

                       As soon as the client has expressed a desire to employ an
               attorney, and there has been a corresponding consent on the part of
               the attorney to act for him in a professional capacity, the relation of
               attorney and client has been established; and all dealing thereafter
               between them relating to the subject of the employment will be
               governed by the rules applicable to such relation.

Syllabus Point 1, Keenan v. Scott, 64 W.Va. 137, 61 S.E. 806 (1908) (emphasis added).




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              Mr. Hussell did not consent to a re-engagement to act as the lawyer for James and

Carolyn L. He made a big mistake in not replying in writing to the letter. However, this does

not amount to any ethical violation under the Rules of Professional Conduct.

              Still, even with all this in mind, by forcefully advocating we adopt the Hearing

Panel’s recommended 90-day suspension, Mr. Hussell has conceded that he committed ethical

violations. While I can’t find them in the record, Mr. Hussell’s concessions say that the Hearing

Panel got it right. The majority therefore should have adopted their recommendation.




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