As he testified about the events of the past three years Thursday, ex-Kanawha County prosecuting attorney Mark Plants appeared frustrated.
"Do you believe contact with your children and ex-wife was unavoidable?" Joanne Vella Kirby, an attorney with the West Virginia Office of Disciplinary Counsel, asked Plants about approaching his children outside a Fruth Pharmacy in 2014. At the time, a domestic violence protective order was in place against Plants, meant to keep him away from his two sons and ex-wife.
"As a prosecutor, I may get in trouble for saying this," Plants said. He paused and his voice started to break, "but if my kids are ever hurting - if my kids get hit in the head with a ball, I'm going to check on them," he said, and began crying.
"If that means I can't be a lawyer," his voice trailed off.
After several moments, Plants took a deep breath.
"I don't believe it was a crime and I don't believe it's a violation of the Rules of Professional Conduct," he told the three men on the lawyer disciplinary hearing panel.
On Thursday, Plants went before the three-member West Virginia Lawyer Disciplinary Board's hearing panel. It includes chairman, Huntington attorney Steve Nord; Wetzel County Prosecuting Attorney Timothy Haught; and layperson William Barr.
The panel will decide if Plants violated the State Bar's Rules of Professional Conduct and make a recommendation to the West Virginia Supreme Court.
Attorneys with the ODC, the agency of the State Bar that oversees lawyers in the state, charged Plants last October with violating rules lawyers are required to follow. The ethics charges came five months after two misdemeanor charges were dismissed against Plants in Kanawha Magistrate Court, and were filed almost exactly a year after he was removed as Kanawha County's prosecuting attorney.
The disciplinary agency accuses the ex-prosecutor of violating three rules of professional conduct: a rule dealing with conflicts of interest; a rule that says, "a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists," and a rule regarding misconduct, which states that it is misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects" and "engage in conduct that is prejudicial to the administration of justice."
Plants' trouble began after his ex-wife, Allison Plants, complained about him striking their then-11-year-old son with a belt to the point of leaving bruises. She was granted a domestic violence protective order and a West Virginia State Police trooper, from the northern part of the state, was assigned to launch an investigation. Allison Plants was expected to testify before the hearing panel.
Plants was charged with violating the domestic violence protective order, a misdemeanor. Plants says he went to his sons for their protection, but the ODC alleges he was knowingly violating the protective order.
Plants was then charged with misdemeanor battery after the State Police completed its investigation.
The criminal charges were dropped after Plants attended a domestic violence intervention program for 32 weeks. However, while the charges were pending, Plants' attorney, Jim Cagle filed a motion asking that they be dismissed, arguing that Plants had a constitutional right to discipline his child.
That argument created a conflict of interest with his job as prosecutor, the ethics charges against Plants allege.
"Am I going to need to testify today? I'm the one that's guilty," Cagle said Thursday.
Kirby asked Plants if he reviewed the motion before Cagle filed it and if he knew the statement, attorneys with the ODC claims creates a conflict, was included.
"I'm not sure if I was aware, but I agree that everyone has a constitutional right to discipline their child - reasonably," Plants said.
After Cagle filed the dismissal motion, Kanawha Circuit Judge Duke Bloom hired a special prosecutor and appointed a small team of assistant prosecutors to only handle cases involving charges similar to the ones Plants faced, plus any cases with charges involving child abuse and neglect, violent crimes against children by their parent, guardian or custodian and criminal violations of protective orders.
Plants told members of the panel that he had taken steps to avoid possible conflicts even before Bloom appointed special prosecutors.
"I immediately got off all cases involving corporal punishment," he said.
Blaming the rising costs of paying special prosecutors, Kanawha commissioners filed a petition asking for Plants to be removed from office. A three-judge panel ruled that Plants' misconduct prevented him from remaining in office. The judges wrote, among other things, that Plants couldn't do his job as prosecutor after being taken off so many cases.
Plants said he never agreed to the wide-range of charges that Bloom disqualified his office from handling.
Plants, though, didn't appeal the order removing him as prosecutor. Instead, he opened his own law firm in South Charleston.
The ethics charges stem from a complaint filed by attorney Melissa Foster Bird, who filed the removal petition against Plants on behalf of county commissioners. The judges who removed Plants from office said that some of the allegations Bird made about Plants during the removal proceedings should be brought to the disciplinary agency's attention.
Charleston police Sgt. Anthony Colagrasso testified during Plants' removal proceedings that he responded to a call at John Adams Middle School involving Plants and his ex-wife.
Plants allegedly told Colagrasso that his ex-wife had violated "her domestic violence petition and he wanted her arrested," and that "he was the prosecutor and that I was within my legal right to arrest her, and he wanted her arrested."
Bird argued that Plants improperly tried to use his position as prosecutor to have his ex-wife arrested. She's expected to be called to testify before the panel today.
Plants denied Colagrasso's version of events and said he had a recorded conversation as proof.
"Out of all of the allegations, this is a real allegation," Plants said.
No cameras or recording devices were allowed in the hearing.
Attorneys with the ODC asked members of the panel on Thursday morning to close a part of the hearing while Plants was questioned about matters they called sensitive and involved documents, which had been sealed during proceedings in family court.
Cagle asked the panel to leave the hearing open.
"It's a slippery slope when you start excluding the public. ... They might not get the whole story," he said. Nord agreed with the ODC attorneys and the hearing was closed for more than an hour.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.