          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                  September 2014 Term
                                   _______________                      FILED
                                                                 November 25, 2014
                                                                     released at 3:00 p.m.
                                     No. 13-0544                   RORY L. PERRY II, CLERK
                                                                 SUPREME COURT OF APPEALS
                                   _______________                    OF WEST VIRGINIA



                       LAWYER DISCIPLINARY BOARD,
                                Petitioner

                                          v.

                   JOHN F. HUSSELL, IV, a member of The
                          West Virginia State Bar,
                               Respondent
      ____________________________________________________________

                          Lawyer Disciplinary Proceeding
                                 No. 11-05-289

                  STATEMENT OF CHARGES DISMISSED
      ____________________________________________________________

                           Submitted: September 3, 2014
                             Filed: November 25, 2014


Jessica H. Donahue Rhodes, Esq.                         Benjamin L. Bailey, Esq.
Lawyer Disciplinary Counsel                             Michael B. Hissam, Esq.
Charleston, West Virginia                               Bailey & Glasser LLP
Counsel for the Petitioner                              Charleston, West Virginia
                                                        Counsel for the Respondent


JUSTICE BENJAMIN delivered the Opinion of the Court.

JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.
JUSTICE KETCHUM dissents and reserves the right to file a concurring opinion.
JUSTICE LOUGHRY dissents and reserves the right to file a dissenting opinion.
                             SYLLABUS BY THE COURT


              1.    “A de novo standard applies to a review of the adjudicatory record

made before the Committee on Legal Ethics of the West Virginia State Bar as to

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

appropriate sanctions; this Court gives respectful consideration to the Committee’s

recommendations while ultimately exercising its own independent judgment. On the

other hand, substantial deference is given to the Committee’s findings of fact, unless such

findings are not supported by reliable, probative, and substantial evidence on the whole

record.” Syl. pt. 3, Comm. on Legal Ethics of the W. Va. State Bar v. McCorkle, 192

W.Va. 286, 452 S.E.2d 377 (1994).



              2.    “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

dealings thereafter between them relating to the subject of the employment will be

governed by the rules applicable to such relation.” Syl. pt. 1, Keenan v. Scott, 64 W. Va.

137, 61 S.E. 806 (1908).




                                             i
Benjamin, Justice:


              This is a lawyer disciplinary proceeding instituted by the Office of

Disciplinary Counsel (“ODC”) against John F. Hussell IV, (“Mr. Hussell”). ODC alleges

that Mr. Hussell violated the Rules of Professional Conduct (“Rules”) by engaging in a

sexual relationship with his then-client Carolyn L.,1 and by providing legal advice to her

against her husband’s interest, who was also Mr. Hussell’s then-client. Concluding that

the allegations had been proven by clear and convincing evidence, the Hearing Panel

Subcommittee (“HPS”) of the Lawyer Disciplinary Board recommended that Mr.

Hussell’s law license be suspended for ninety days, with automatic reinstatement. The

HPS also recommended that Mr. Hussell’s practice be supervised for one year by an

attorney agreed upon between the ODC and Mr. Hussell. In addition, the HPS

recommended that Mr. Hussell undergo a psychiatric evaluation to determine his fitness

to practice law. Finally, the HPS recommended that Mr. Hussell pay the costs of this

proceeding. Mr. Hussell and ODC agreed to the imposition of these sanctions.




       1
         Because of the sensitive nature of the facts alleged in this case, we have referred
to the complainant, his wife and other members of his family, by the first initial of their
surname. See State v. Edward Charles L, 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127
n.1 (1990).


                                             1
             This Court did not agree with the recommended disposition and scheduled

the case for oral argument.2 The Court has before it the recommendation of the HPS, all

matters of record, the briefs, and the arguments of counsel. Based upon our review and

for the reasons stated herein, this Court rejects the recommendations of the HPS and finds

that because there was no attorney-client relationship between Mr. Hussell, and James

and Carolyn L. at the time of the acts complained of herein, such joint relationship having

ended by James L.’s firing of Mr. Hussell on January 10, 2010, Mr. Hussell did not

violate the rules for which he was charged. Accordingly, we dismiss the Statement of

Charges against Mr. Hussell.



                I. FACTUAL AND PROCEDURAL BACKGROUND

             The respondent, Mr. Hussell, is a lawyer practicing in Charleston, West

Virginia. He was admitted to the West Virginia State Bar on October 3, 1994. This

proceeding arises from the June 27, 2011, complaint of James L.     James L. and his wife,

Carolyn, jointly engaged Mr. Hussell’s estate planning services on or near September 12,



      2
         This Court is not bound by the agreement between Mr. Hussell and ODC. Rule
3.12 of the Rules of Lawyer Disciplinary Procedure states that

             [i]f the Court does not concur with the recommended
             disposition, the Clerk of the Supreme Court of Appeals shall
             promptly establish a briefing schedule and notify the parties
             of the date and time of oral argument or submission of the
             case without oral argument before the Supreme Court of
             Appeals.


                                            2
2009.3 James L. alleged in his complaint that Mr. Hussell violated the rules by engaging

in a sexual relationship with Carolyn L. This sexual relationship began in March 2010

and ended in May 2010 after Carolyn L. terminated their relationship. James L. also

alleged that prior to the beginning of their sexual relationship, Mr. Hussell and Carolyn

L. engaged in frequent telephone conversations and were once found together at 5:30

a.m. in a remote area of Greenbrier County by Mr. Hussell’s wife, all of which bothered

James L. James L. further alleged that after he and his wife separated in January of 2010,

Mr. Hussell gave legal advice to Carolyn L. that resulted in James having to pay more

money to purchase her interest in jointly-held marital real estate.



              A statement of charges was issued against Mr. Hussell on May 13, 2013.

The statement of charges alleged that Mr. Hussell violated Rule 8.4(g) of the Rules of

Professional Conduct, by engaging in sexual relations with Carolyn, a client, during the

course of that representation. Mr. Hussell was also charged with violating Rule 1.7(a) of

the Rules by providing independent legal advice concerning marital property and spousal

support issues to Carolyn, which advice adversely affected James L.’s interests by

increasing the amount of money he had to pay to purchase Carolyn’s share of marital

property. Finally, Mr. Hussell was also accused of violating Rule 1.7(b) by engaging in

sexual relations with Carolyn at the same time he jointly represented her and James L.,

       3
         At the same time that James and Carolyn were planning their estate, other
members of their extended family were using Mr. Hussell’s services for the same
purpose. James’ father bore the costs of Mr. Hussell’s services.


                                              3
creating an impermissible conflict between Mr. Hussell’s personal interests and his

clients’ interests. Mr. Hussell contested the allegations of wrongdoing in James L.’s

complaint. Further, he denied that he represented either James L. or his wife during the

time of the sexual relationship between himself and Carolyn L.



                This matter was heard by the HPS on October 29, 2013. It is uncontested

by Mr. Hussell that he and Carolyn engaged in a two-month-long sexual relationship

from March 2010 to May 2010 that started after James and Carolyn L. separated and

before a divorce action was filed in the State of Virginia.4 It is also uncontested that both

James and Carolyn L. retained separate counsel in the State of Virginia to represent them

in these divorce proceedings.5



                In finding that Mr. Hussell was Carolyn’s attorney at the time of their

sexual relationship, the HPS found that Mr. Hussell’s conduct violated Rule 8.4(g), which

states that it is professional misconduct for a lawyer to


                have sexual relations with a client whom the lawyer
                personally represents during the legal representation unless a
                consensual sexual relationship existed between them at the
                commencement of the lawyer/client relationship. For

       4
           This relationship was terminated by Carolyn L., ostensibly via a text message.
       5
          James and Carolyn L were divorced in 2010. While they have not remarried,
they resumed a relationship post-divorce and consider themselves reconciled as of the
time of the hearing.


                                              4
              purposes of this rule, “sexual relations” means sexual
              intercourse or any touching of the sexual or other intimate
              parts of a client or causing such client to touch the sexual or
              other intimate parts of the lawyer for the purpose of arousing
              or gratifying the sexual desire of either party or as a means of
              abuse.


              The HPS determined that, beginning in September of 2009, Mr. Hussell

was jointly engaged by the L. family for the purpose of drafting and implementing a

comprehensive estate plan. Prior to this time James and Carolyn L. and Mr. Hussell and

his wife were acquainted and friendly with each other. During the time of the joint

representation, in late 2009, James and Carolyn were experiencing marital problems.

They separated in or near December of 2009.



              James L. testified before the HPS that after he and Carolyn L. separated, in

or near December of 2009, he and Mr. Hussell discussed the particulars of his further

representation of James and Carolyn L. in their unfinished estate plan. James L. testified

that Mr. Hussell suggested that he could represent both James L. and Carolyn L., but

would keep any information garnered from either one from the other spouse. On January

6, 2010, Mr. Hussell mailed a letter to James L. and Carolyn L. in which he stated that he

could represent both James and Carolyn and that he could keep their information separate

and confidential from the other spouse, if that is what they wanted.



              Four days later, on January 10, 2010, Mr. Hussell and James L. were both

at the Greenbrier Resort, when James indicated that he wanted to talk to Mr. Hussell

                                             5
privately. James L. and Mr. Hussell both testified that during this exchange, James fired

Mr. Hussell from his joint representation because of his concerns over the nature of his

relationship with his estranged wife. Both testified that James L. stated that he had

engaged the services of a trust officer to find another attorney to separately prepare

James’s estate documents.      After this conversation took place, Carolyn L. also

acknowledged to Mr. Hussell that he had been fired.



             In testimony before the HPS, Carolyn L. acknowledged that sometime after

January 10, 2010, she and Mr. Hussell discussed James L.’s termination of the joint

representation. Carolyn L. knew that this conversation took place about the time that

James L. moved out of the marital residence. She testified that James L. told her that he

was not comfortable with Mr. Hussell representing him because of the friendship

between Mr. Hussell and Carolyn L. While Carolyn L. could not recall whether the

termination discussion took place in Lewisburg (at the site of their cabins) or at the

Greenbrier, she acknowledged that she and Mr. Hussell discussed the event in at least one

telephone conversation after January 10, 2010. Carolyn L. testified that she explained to

Mr. Hussell her understanding that James L. had terminated the joint representation,

because James L. was not comfortable with the amount of time she and Mr. Hussell were

spending together. Four days after this termination of Mr. Hussell, on January 14, 2010,

James and Carolyn L. signed the January 6, 2010, letter prepared by Mr. Hussell

regarding the confidentiality of the information provided to Mr. Hussell and sent it to

him. This letter was received by Mr. Hussell’s office on or about January 22, 2010, and

                                           6
was placed in James’ and Carolyn L.’s file. Nothing thereafter was done pursuant to the

letter.



              Mr. Hussell testified that he performed no further legal services for James

and Carolyn L. after his termination on January 10, 2010. This was not refuted by James

or Carolyn L., or by anything in the record. Billing records disclosed that Mr. Hussell

performed a total of two and a half hours of work on their behalf, all prior to January 10,

2010. James L. ultimately used a Virginia attorney to prepare his estate plan. Mr. Hussell

did not send a disengagement letter to James and Carolyn L.6



              In her testimony, Carolyn L. stated that she never felt that there was an

attorney-client relationship between herself and Mr. Hussell. She stated that the planning

of her and James L.’s estate was primarily the work of James L. and his family,7 and that

she took no part in any of the financial decisions in respect to the estate. Carolyn L.

stated that “because of the fact that [Mr. Hussell] and I had become friends, I didn’t really

think of him as an attorney. I just thought of him as my friend.”


          6
          The Court observes that the better practice in matters where an attorney-client
relationship is terminated is to send such a letter that makes it clear that any obligations
or responsibilities for further representation by the attorney are terminated.
          7
          James L. testified that his extended family’s business holdings and investments
were intertwined. Therefore, having one attorney prepare the entire family’s estate plan
was advantageous. James L. stated that his father was going to pay Mr. Hussell’s fees for
the entire family’s estate planning.


                                             7
              In terms of Mr. Hussell’s providing legal advice to Carolyn at the expense

of James L.’s interests, the HPS found that Mr. Hussell discussed an alimony formula

with Carolyn L. during the course of their sexual relationship. In addition, the HPS found

that Mr. Hussell’s suggestion that Carolyn L. obtain an independent appraisal of the

marital property in Greenbrier County constituted legal advice that acted to the detriment

of his client James. The HPS concluded that as a result of Carolyn L.’s obtaining an

independent appraisal, the value of the jointly-held property was higher, which resulted in

James L. having to pay more to purchase Carolyn’s interests in that property. None of

this “advice” related to confidential information conveyed to Mr. Hussell prior to January

10, 2010.



              On April 17, 2014, the HPS issued its decision in this matter, concluding

that Mr. Hussell violated three provisions of the Rules. The HPS found that Mr. Hussell

engaged in a sexual relationship with a client, in violation of Rule 8.4(g). The HPS

further found that by giving Carolyn L. legal advice regarding her pending divorce

proceedings against James L. at a time when they were jointly represented by Mr.

Hussell, he had a conflict of interest and violated Rule 1.7 of the Rules. Finally, because

Mr. Hussell had contested the existence of an attorney-client relationship between

himself and James and Carolyn L., the HPS found that Mr. Hussell knowingly made a

false statement of material fact in the course of a disciplinary proceeding in violation of



                                            8
Rule 8.1, as well as violating Rule 8.4(c) by engaging in conduct that involves

dishonesty, fraud, deceit or misrepresentation.



              The HPS recommended that Mr. Hussell’s law license be suspended for a

period of 90 days, that Mr. Hussell be automatically reinstated to the practice of law

without further proceedings, that Mr. Hussell’s practice be supervised for a period of one

year after reinstatement, that Mr. Hussell undergo a psychiatric evaluation, and that Mr.

Hussell bear the costs of this proceeding. Mr. Hussell and ODC agreed to the sanctions

recommended by the HPS. This Court did not agree with the recommended disposition

and implemented a briefing schedule.



                             II. STANDARD OF REVIEW

              In lawyer disciplinary proceedings, this Court reviews de novo the

recommended decision of the Lawyer Disciplinary Board’s HPS:

                     A de novo standard applies to a review of the
              adjudicatory record made before the Committee on Legal
              Ethics of the West Virginia State Bar as to questions of law,
              questions of application of the law to the facts, and questions
              of appropriate sanctions; this Court gives respectful
              consideration to the Committee’s recommendations while
              ultimately exercising its own independent judgment. On the
              other hand, substantial deference is given to the Committee’s
              findings of fact, unless such findings are not supported by
              reliable, probative, and substantial evidence on the whole
              record.

Syl. pt. 3, Comm. on Legal Ethics of the W. Va. State Bar v. McCorkle, 192 W.Va. 286,

452 S.E.2d 377 (1994). This review is deferential to the HPS’s conclusions. “Absent a

                                             9
showing of some mistake of law or arbitrary assessment of the facts, recommendations

made by the State Bar Legal 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).



             This Court is responsible for determining the ultimate resolution of lawyer

disciplinary proceedings. As such, “[t]his Court is the final arbiter of legal ethics

problems and must make the ultimate decisions about public reprimands, suspensions or

annulments of attorneys’ licenses to practice law.” Syl. pt. 3, Comm. on Legal Ethics of

The W. Va. State Bar v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984). The appropriate

sanction is likewise the responsibility of this Court, with three distinct goals in mind:

punishment, deterrence and maintenance of the public’s trust and confidence in the

lawyers that serve this State. See Lawyer Disciplinary Bd. v. Stanton, 225 W. Va. 671,

676, 695 S.E.2d 901, 906 (2010).



             With these standards in mind, we now proceed to consider the HPS’s

recommended decision and the parties’ contentions.



                                    III. ANALYSIS

             As a threshold issue, in order to sustain the findings and conclusions of the

HPS, there must have existed at the time of the charged violations an attorney-client

relationship between Mr. Hussell, James and Carolyn. If, as Mr. Hussell argued below

and upon appeal, there was not an attorney-client relationship at certain relevant times,

                                           10
the charges cannot be sustained. On the contrary, if the joint representation continued

past January 10, 2010, the charges would be sustained.



             It is uncontroverted that Mr. Hussell was jointly representing James and

Carolyn L. in estate planning matters from approximately September 12, 2009, to at least

January 10, 2010. The question before us is whether that representation continued after

January 10, 2010, and on to the time period when Mr. Hussell and Carolyn L. first began

their sexual relationship and when it is alleged that Mr. Hussell improperly gave Carolyn

L. legal advice against the interests of James L. As noted herein, although Mr. Hussell

admits to a sexual relationship with Carolyn L., he denies that he gave any improper legal

advice to Carolyn regarding her divorce proceedings and that he encouraged her to speak

with her Virginia attorney on matters involving her divorce.



             The HPS found that the letter signed by James and Carolyn on January 14,

2010, established that an attorney-client relationship existed between Mr. Hussell and

James on that date. As to the issue of an attorney-client relationship, this Court finds

more compelling the termination of joint representation by James L. when he spoke with

Mr. Hussell on January 10, 2010, and the fact that after January 10, 2010: Mr. Hussell

performed no work for James and Carolyn L.; neither James nor Carolyn L. sought Mr.

Hussell to perform work on their behalf, having each hired their own counsel in Virginia;

and Mr. Hussell did nothing to signify his acceptance of new representation from the



                                           11
January 14, 2010, letter from James and Carolyn L. after the January 10, 2010,

termination by James L. of his joint representation.



              Long ago this Court established that the attorney-client relationship is a

matter of contract, express or implied. In syllabus point 1 of Keenan v. Scott, 64 W. Va.

137, 61 S.E. 806 (1908), this Court stated that an attorney-client relationship begins

                     [a]s 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 dealings thereafter between them relating to the subject of
              the employment will be governed by the rules applicable to
              such relation.



In Committee on Legal Ethics of the West Virginia State Bar v. Simmons, 184 W.Va. 183,

399 S.E.2d 894 (1990), the attorney, Mr. Simmons, argued that there was no attorney-

client privilege at the time he became involved in a financial transaction with two persons

who were his clients. The specific charges against Mr. Simmons were that he entered

into business transactions with long-time clients without making adequate disclosures to

them, without providing adequate security or other legal means to protect their interests,

and without referring them to independent counsel.



              In Simmons, this Court concurred with other courts which have held that

“an attorney-client relationship may be implied from the conduct of the parties” (citations

omitted) and stated that the Court must “look to the specific facts and circumstances of

                                            12
each case to determine whether an attorney-client relationship exists.” Id., at 186, 399

S.E.2d at 897.



             Examining the specific facts and circumstances of this case, along with the

conduct of Mr. Hussell, James L. and Carolyn L., we agree with the HPS’s finding that

there jointly existed an attorney-client relationship between Mr. Hussell, James and

Carolyn L. prior to January 10, 2010. This relationship was clearly established by

correspondence, the parties’ recollections and statements, and the preliminary work

performed by Mr. Hussell on behalf of his clients.



             When James and Carolyn L. separated, James L. contacted Mr. Hussell to

get assurance that information he might give Mr. Hussell would not be relayed to his

estranged wife, Carolyn L. Mr. Hussell wrote a letter to James and Carolyn L. dated

January 6, 2010, to acknowledge the changed circumstances and to attempt to confirm for

James L. the privacy of the information he might give to Mr. Hussell. However, prior to

this letter being signed and returned to Mr. Hussell on January 14, 2010, the intervening

conversation between James L. and Mr. Hussell took place on January 10, 2010, during

which James L. definitely ended the joint attorney-client relationship. Carolyn L.’s

testimony confirms this termination of representation, as does Mr. Hussell’s. In keeping

with the termination, Mr. Hussell thereafter took no further legal action on behalf of

James and Carolyn L. and billed for no further time. Equally important, there is no

indication that either James or Carolyn L. undertook any action, such as contacting Mr.

                                           13
Hussell to discuss the progress of their estate plan or to indicate that they believed the

joint representation continued past its ostensible termination on January 10, 2010. We

find it reasonable that Mr. Hussell understood the January 10, 2010, conversation for

what it was — a termination of joint representation and that he reasonably believed that

he was no longer counsel for James and Carolyn L.



             The HPS’s conclusion that the January 14, 2010, unilateral act of James and

Carolyn L. in returning the January 6, 2010, representation letter after the discharge of

Mr. Hussell re-established an attorney-client relationship is simply unsupported by

reliable, probative, and substantial evidence on the whole record. Neither Mr. Hussell

nor James and Carolyn L. did anything to signify a belief that representation had been re-

established. Indeed, we observe that James and Carolyn L. engaged separate counsel in

Virginia for their divorce. Based upon the totality of circumstances, we find that there

was no attorney-client relationship between Mr. Hussell and James and Carolyn L. after

January 10, 2010. Consequently, any sexual relationship between Mr. Hussell and

Carolyn L. past that date could not violate Rule 8.4(g) of the Rules.8 Furthermore,

because there was no attorney-client relationship between himself and either James or

Carolyn L., Mr. Hussell did not violate Rule 1.7 of the Rules by giving legal advice that

adversely affected the interests of another client. Finally, we find that Mr. Hussell did

8
  Our inquiry is limited to the disciplinary issues before us. We do not consider the
propriety, or lack thereof, of the relationship between Mr. Hussell and Carolyn L. outside
of the context of the issues before us.


                                           14
not knowingly make a false statement of material fact during the course of these

disciplinary proceedings, in violation of Rule 8.1. Mr. Hussell’s statements consistently

challenged the existence of an attorney-client relationship between himself and James

and Carolyn L. after January 10, 2010.



                                 IV. CONCLUSION

      For the foregoing reason, we dismiss the Statement of Charges against Mr.

Hussell.



                                                        Statement of Charges Dismissed.




                                           15
