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



              This Court’s faithful and consistent oversight of lawyer disciplinary matters

is among the highest duties owed to the citizens of the State of West Virginia. Yet in a

virtually unprecedented decision, the majority dismissed charges and resulting sanctions

against a lawyer who had expressly consented to the recommended sanctions made by the

Hearing Panel Subcommittee (“HPS”). To be clear, Mr. Hussell did not come before this

Court asking to have the findings of the HPS or its recommended sanctions set aside. In fact,

Mr. Hussell requested in his brief “that the recommended sanctions be imposed[.]” (emphasis

added). To reach its unwarranted result, the majority completely disregards the factual

findings made by the HPS–the body charged with making those factual determinations–and

casually discards the implications of Mr. Hussell’s consent to the recommended disposition.

The majority’s result-oriented opinion is nothing more than a work of fiction that will

assuredly send a message that this Court is more interested in protecting its own than

policing its own. The image of the West Virginia legal system will once again be sullied as

ethical considerations are cast aside along with any concerns for protecting the public.



              This Court’s standard of review in disciplinary matters requires plenary review


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of “questions of law, questions of application of the law to the facts, and questions of

appropriate sanctions[.]” Syl. Pt. 2, in part, Lawyer Disciplinary Bd. v. McGraw, 194 W.Va.

788, 461 S.E.2d 850 (1995).      “On the other hand, substantial deference is given to the

[Board’s] findings of fact, unless such findings are not supported by reliable, probative, and

substantial evidence on the whole record.” Id. (emphasis supplied). The lone factual issue

presented in this case, and resolved by the HPS, was whether James L. terminated the

attorney-client relationship that he and his wife, Carolyn L., had with Mr. Hussell during

their conversation of January 10, 2010. If he did not, then Mr. Hussell’s subsequent actions

relative to his sexual relationship with Carolyn L. violated various Rules of Professional

Conduct. The HPS concluded that the attorney-client relationship was not terminated during

that conversation. Without question, this conclusion was supported by “reliable, probative,

and substantial evidence,” all of which was conveniently ignored by the majority.



              In addition to the fact that James L. and Carolyn L. each signed a consent to

joint representation after the January 10, 2010, conversation, they both testified that the

attorney-client relationship continued following this conversation. Carolyn L. testified

before the HPS, as follows:

              Q.     And what did you believe that meant when you signed
                     this [joint representation] letter on January 14th of 2010?

              A.     That he was going to continue to represent [James L.].
              ....
              Q.     In what way would that [sexual relationship] have hurt
                     his job?

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              A.     Because at the time technically he was our attorney so I
                     was just worried. I didn’t want it to hurt his career.

Completely ignoring the foregoing, the majority cites an isolated statement from Carolyn L.’s

testimony to contend that Carolyn L. did not believe an attorney-client relationship existed.

The majority looked to her explanation that she “didn’t really think of [Mr. Hussell] as an

attorney. I just thought of him as my friend.” This single statement, which was seized upon

by the majority to justify its result, has literally nothing to do with whether there was an

attorney-client relationship.



              Of more import is the fact that James L. clearly expressed to Mr. Hussell

during their January 10, 2010, conversation that he had yet to obtain alternate counsel and,

subsequently, James L. explained that he signed the joint representation document to cover

any additional work Mr. Hussell might perform while he was searching for substitute

counsel:

              Q.     What was your intention on signing this on January 14th,
                     2010, then?

              A.     . . . . because I didn’t have an estate planner at that point.
                     So I didn’t know if he was going to do some more work
                     for us and then send that to us . . . .

To whatever extent the foregoing does not plainly express James and Carolyn L.’s belief that

Mr. Hussell was still their attorney pending their search for a new one, James L. testified:

“I still thought he was my attorney, though. I mean the thing is he said he was going to do


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my estate.”



              The majority has selectively adopted its own view of the vague descriptions

of the January 10, 2010, conversation to determine that a “clear” termination of the attorney-

client relationship occurred. The majority does so without a hint of discussion about the

somewhat obvious, yet well-articulated premise, that whether an attorney-client relationship

has been terminated is a question for the fact-finder.         “[T]he question of when an

attorney-client relationship for a particular undertaking or transaction has terminated is

necessarily one of fact.” Omni-Food & Fashion v Smith, 528 N.E.2d 941, 944 (Ohio 1988);

see Ruf v. Belfance, 2013 WL 243992, at *3 (Ohio Ct. App. Jan. 23, 2013) (“Generally, the

determination of whether an attorney-client relationship has ended is a factual question to be

resolved by the trier of fact.”); Mobberly v. Hendricks, 649 N.E.2d 1247, 1249 (Ohio Ct.

App. 1994) (citations omitted) (“In determining when the attorney-client relationship is

terminated, the court must point to an affirmative act by either the attorney or the client that

signals the end of the relationship. For a trial court to take this issue away from a jury, such

an act must be clear and unambiguous.”); Bee v. McNamara, 2006 WL 895014, at *1 (Conn.

Super. Ct. Mar. 23, 2006) (finding that genuine issue of fact precluded determination as to

whether client effected de facto termination of his relationship with defendant); McGehee v.

Johnson, 2006 WL 3019823, at *3 (Mich. Ct. App. Oct. 24, 2006) (“Although a formal

discharge is not required to terminate an attorney-client relationship, any claim that plaintiff

impliedly terminated the relationship raises additional factual issues.”).

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              The majority has elevated the expressions of distrust made by James L. to Mr.

Hussell during their January 10, 2010, conversation and wholly ignored the remainder of the

evidence as to what was conveyed in that conversation. James L. testified that during this

conversation he stated:

              I’m uncomfortable with the phone calls and your relationship
              with my wife, and I think in terms of my estate I really have to
              look after my children and make sure that they have an iron clad
              estate so people can’t come back and find holes and gaps. . . . I
              have talked to Ditsy Keightley at BB&T and she said she could
              probably find me another estate planner.

Mr. Hussell did not disagree with this characterization of their conversation, testifying that

“the facts are basically as he [James L.] relayed it.” Mr. Hussell testified that James L.

advised him that “he was uncomfortable with my representation of him. He had contacted

Ditsy and was going in a different direction.” Critically, however, “[w]hile a lack of trust

may lead to the termination of the attorney-client relationship, that lack of trust and

confidence does not necessarily signal termination of the relationship.” Thayer v. Fuller &

Henry, Ltd., 503 F. Supp. 2d 887, 892 (N.D. Ohio 2007); see R. E. Holland Excavating, Inc.

v. Martin, Browne, Hull & Harper, P.L.L., 833 N.E.2d 1273, 1276 (Ohio Ct. App. 2005)

(holding that “lack of trust and confidence does not constitute the termination of the

[attorney-client] relationship”); Ruf, 2013 WL 243992, at *3 (“The termination of the

attorney-client relationship depends, not on a subjective loss of confidence on the part of the

client, but on conduct, an affirmative act by either the attorney or the client that signals the

end of the relationship.” (quoting Mastran v. Marks, 1990 WL 34845 (Ohio Ct. App. Mar.


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28, 1990))); McOwen v. Zena, 2012 WL 4714038 (Ohio Ct. App. Sept. 27, 2012) (finding

that letter by client to attorney equivocally informing him that she intended to terminate him

as her attorney did not terminate the attorney-client relationship).



              In a half-hearted effort to “reverse engineer” a termination of the attorney-

client relationship necessary to vacate the disciplinary charges, the majority identifies three

utterly illogical factors to support its position that the attorney-client relationship had been

terminated. The majority states that it “finds probative” the fact that Mr. Hussell performed

no work after January 10, 2010; that neither James nor Carolyn L. asked him to perform

work after that date; and that Mr. Hussell did not “signify his acceptance” of the joint

representation letter. The majority ignored the strongest and most obvious evidence that

James and Carolyn L. believed that Mr. Hussell continued to be their attorney–as reflected

by their signing and returning the joint representation agreement after January 10, 2010.

The fabricated determinants cited by the majority illogically suggest that an attorney must

perform perpetual services for all clients, without pause, lest the attorney-client relationship

be deemed to have ended. Moreover, it suggests that a client must constantly demand

updates and further services for fear that any lull in the relationship may be construed as a

termination sufficient to allow the attorney to violate their interests and trust. Finally, the

suggestion that an attorney who sends out a joint representation agreement that is then

accepted and signed by the clients must thereafter “accept the acceptance” is ludicrous and



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deserves no further comment.1



              As noted above, the majority’s dismissal of the sanctions to which Mr. Hussell

had consented is virtually unprecedented. Unfortunately, however, this is not the first

occasion the majority has taken such an inexplicable position. In Lawyer Disciplinary Board

v. Jarrell, 206 W.Va. 236, 523 S.E.2d 552 (1999), a narrow majority of the Court dismissed

charges against a prosecuting attorney after she consented to admonishment for the charges.

In that case, the Court noted that only in “rare instances” may there be “extraordinary

mitigating circumstances” which would justify its dismissal of agreed-upon sanctions. Id.

at 244, 523 S.E.2d at 560. In a strongly worded dissent, Justice Davis bemoaned the

“uncertainty” created by the majority’s “unwillingness[] to accept recommended dispositions

which are consented to by the parties.” Id. Justice Davis found there was “no justifiable

reason for [the] Court to have refused to adopt the recommended decision of the HPS, which

was consented to by [the respondent].” Id. at 245, 523 S.E.2d at 561. As Justice Davis aptly

noted, the majority’s disregard of the respondent’s consent to the disposition simply “created

more embarrassment and humiliation for [the respondent] by etching the details of her ethical

violations forever in the law reporters of this State. This undoubtedly was something she was

hoping to avoid by voluntarily consenting to [the disposition].” Id. As was the case in


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        Additionally, the majority’s reliance on Mr. Hussell’s purported “reasonable belief”
that he had been fired is completely incorrect. United States v. Dennis, 843 F.2d 652, 657
(2d Cir. 1988) (“The key . . . to whether an attorney/client relationship existed is the intent
of the client[.]”).

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Jarrell, Mr. Hussell’s decision to consent to the recommended disposition of the HPS was

likely impelled by a desire to minimize negative publicity, accept the consequences of his

actions, and move forward with the rest of his professional life.



              In short, the majority has performed a disservice to both the rule of law and Mr.

Hussell. Accordingly, I respectfully dissent.




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