Date: 11-04-2002

Case Style: Lawyer Disciplinary Board v. Sims

Case Number: 28473

Judge: Per Curiam

Court: In the Supreme Court of Appeals of West Virginia

Plaintiff's Attorney: Charles M. Love, III, Esq., Bowles Rice McDavid Graff & Love, Charleston, West Virginia, Attorney for Complainant.

Defendant's Attorney: H. John Rogers, Esq., Michael J. Halaiko, Esq., New Martinsville, West Virginia, Special Disciplinary Counsel, Attorney for Respondent.

Description: The Hearing Panel bases its recommendation upon many of the same facts which provided the foundation for the removal proceeding in which Sims was removed by this Court from the elected office of prosecuting attorney for Logan County. Those facts were discussed in detail in Sims I, supra. The only facts that we need to enumerate in this opinion are those which we did not previously consider. After the three-judge panel entered its order but before this Court filed its opinion, Russell Rick Grimmett, assessor of Logan County, filed a petition for a writ of prohibition in the Circuit Court of Logan County against Sims seeking to prevent Sims from investigating the practices of the assessor's office regarding property tax exonerations or presenting evidence to the grand jury. The circuit court found that a conflict of interest existed between the two offices and awarded the writ.

In its order, the trial court noted that it was concerned "regarding the release of new[s] stories about the grand jury proceedings[.]" The court thereupon strongly cautioned Sims that he should refrain from making extrajudicial statements to the press regarding grand jury matters. Nonetheless, articles were subsequently printed in The Williamson Daily News and in The Logan Banner wherein Sims was directly quoted as accusing the assessor of forgery, illegal reduction of property taxes, and fraud. Based upon Sims' apparent flagrant disregard for the court's admonishment against making extrajudicial statements, Grimmett filed a motion for contempt against Sims. Following a hearing on the matter, the circuit court found that Sims' behavior violated West Virginia Rules of Professional Conduct 3.6 and 3.8. However, the court dismissed the motion because civil contempt was not alleged; the special prosecutor was ordered to "expand her investigation to determine whether charges of criminal contempt are warranted against the Respondent for actions including allegations of disclosure of Grand Jury information in violation of Rule 6 of the Rules of Criminal Procedure."

Even though the three-judge panel failed to remove Sims from office, the panel concluded that Sims' behavior was "so flagrant" that it "warrant[ed] some suspension from the practice of law." Consequently, the panel referred the case to the Lawyer Disciplinary Board for resolution. The entirety of Sims' behavior was submitted to special counsel for the Office of Disciplinary Counsel. Following an investigation, the Investigative Panel issued a statement of charges against Sims alleging he violated Rules 3.6, 3.8, and 8.4. The matter was then brought before the Hearing Panel upon stipulations. The Office of Disciplinary Counsel and Sims stipulated and submitted for consideration the transcript and testimony adduced during the removal proceeding; the order of the three-judge panel; the opinion of this Court, Sims I; the transcript and testimony adduced along with the court's order in the prohibition proceeding; and the transcript and testimony adduced along with the court's order in the contempt proceeding.

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Click the case caption above for the full text of the Court's opinion.

Outcome: We, therefore, conclude that under all the circumstances of this case, including the fact that Mr. Sims was removed from office, a public reprimand and payment of the costs incurred in this proceeding (See footnote 6) are appropriate and adequate sanctions.

Public Reprimand and Costs.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: C.L.