Several of West Virginia's Supreme Court justices on Tuesday seemed puzzled as to why the agency that oversees lawyers in the state wants a more severe punishment for former Kanawha County prosecuting attorney Mark Plants, who was removed from his post in 2014 after being charged with battery.
"What benefit to the public would it be if we imposed additional sanctions?" Justice Robin Davis asked a lawyer with the West Virginia Office of Disciplinary Counsel.
The ODC has asked that justices suspend Plants' license to practice law for three months over violations of the rules lawyers in the state are expected to abide by. Disciplinary lawyers have objected to recommendations made to the Supreme Court by a three-member hearing panel, which found that Plants should be only publicly reprimanded. A reprimand is more severe than an admonishment but not as harsh as the suspension or annulment of a law license.
Suspending Plants' license to practice law could deter other lawyers from similar conduct, according to ODC lawyer Joanne Vella Kirby. It's the job of the ODC to reassure the public as to the reliability and integrity of attorneys and safeguard the administration of justice, she added
"What could be more of a deterrent than losing your job and income, other than maybe being put in jail?" Justice Menis Ketchum said.
A three-month suspension would financially ruin Plants, his lawyer, Jim Cagle, said Tuesday. Plants has his own law firm in South Charleston.
"He did give up his public office," said Justice Margaret Workman. "He's got to support his children."
Kirby corrected Workman that Plants was forced to resign as prosecutor. The high court has previously said that lawyers serving in public office are held to a higher standard, she said, adding also that the ODC's ethics case against Plants is separate from his removal from office.
Kanawha commissioners filed a removal petition and in October 2014 a three-judge panel ruled that Plants had to step down as prosecutor for committing malfeasance in office and neglect of duty. Plants didn't appeal the removal order. About seven months later, two misdemeanor charges in Kanawha magistrate court were dismissed against Plants.
Plants' trouble began after his ex-wife complained about him striking their then-11-year-old son with a belt to the point of leaving a 6-to 7-inch bruise on the boy's thigh. Allison Plants was granted an emergency domestic violence protective order, barring the then-prosecutor from contact with her and their children. A West Virginia State Police trooper from the northern part of the state was assigned to investigate.
Plants was charged with violating the domestic violence protective order shortly afterward, when he approached his two sons outside a Fruth Pharmacy. The boys were in the car while their mother was in the store when Plants walked out of the store and saw them. Plants said he went to his sons for their protection, but ODC lawyers say he knowingly violated the protective order.
"Communication was not unavoidable," Kirby said.
A second misdemeanor was filed against Plants by the trooper assigned to investigate the incident with the belt. Plants was charged with battery for bruising his son.
Kanawha Circuit Judge Duke Bloom appointed a special prosecuting attorney and a team of assistants to handle cases involving charges similar to those Plants was facing. The special prosecutor's office lasted for about six months and cost Kanawha taxpayers about $30,000 a month, Kirby told justices during Tuesday's arguments.
Both criminal charges were dropped in May 2015 after Plants attended a domestic violence intervention program for 32 weeks.
Plants' actions amounted to misconduct, as they created a conflict of interest and interfered with his ability to serve as a prosecuting attorney, disciplinary lawyers found.
Plants and ODC lawyers went before the three-member hearing panel - Huntington attorney Steve Nord, Wetzel County Prosecuting Attorney Timothy Haught and layman William Barr - last May. Both the ODC and the hearing panel members believe Plants should have to pay the cost of the disciplinary proceedings against him.
Plants did not object to the panel's recommendation. Justices did not rule on the matter Tuesday.
"If he loses his job for three months, he twice loses his job," Cagle said. "He'll be out of business within three months. They are seeking a sanction that will destroy the family, not so much as Mr. Plants and his reputation.
"The public will say they understand, because Plants is out of office," he said. "They won't understand if Mr. Plants is put out of business."
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