Committee on Legal Ethics v. Roark

*266 BROTHERTON, Chief Justice,

concurring in part, dissenting in part:

I concur with the majority opinion that James E. Roark was guilty of professional misconduct in violation of DR 1-102(A)(4), (5), and (6) of the Code of Professional Responsibility. I dissent, however, to that portion of the majority’s opinion which adopts the Committee on Legal Ethics’ recommendation of a three-year suspension of Mr. Roark’s license to practice law.

A three-year suspension of a license to practice law under these circumstances might, and I emphasize might, be a proper punishment for a lawyer practicing in the private arena. That suspension, however, is insufficient for a lawyer who held the constitutional office of prosecuting attorney of Kanawha County. West Virginia Code § 7-4-1 (1984), provides that it is the prosecuting attorney’s responsibility to “attend to the criminal business of this State ... and when he has information of the violation of any penal law committed within such county, he shall institute and prosecute all necessary and proper proceedings against the offender....” 1

In failing to fulfill the duties prescribed by statute, Mr. Roark breached the trust which exists between an office holder and the citizens whom he represents. Such a violation is not only a breach of the public trust, but is also a tear in the fabric of our form of government. What value is government if we cannot trust our elected officials?

James E. Roark corrupted the office of prosecuting attorney in violation of the statute. Mr. Roark obtained cocaine from known drug dealers and obligingly turned a blind eye to their criminal activities. He socialized with drug dealers at a time when our schools and community were being inundated with drugs. This behavior was all the more unfortunate because citizens relied on Mr. Roark for prosecution and protection without realizing that his office had been compromised. Mr. Roark’s lack of moral accountability was further evidenced by his indignant protests to the voters, to the press, and to anyone who would listen, that he had never used drugs, all the while maintaining, consistent with his “mad dog” image, that he was out to clean up crime in Kanawha County.

“Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws ... argues recreancy to his position and office and sets a pernicious example to the insubordinate and dangerous elements of the body politic.” Ex parte Wall, 107 U.S. 265, 274 , 2 S.Ct. 569, 576 , 27 L.Ed. 552, 556 (1883). 2 Mr. Roark violated two sworn oaths, one taken when he was admitted to the practice of law and the other when he was elected prosecuting attorney for Kanawha County. Although the majority recognizes that ethical violations by a lawyer holding a public office are more egregious, its adoption of the Committee’s recommended three-year suspension does not reflect this position. I believe the gravity of Mr. Roark’s professional misconduct warrants the annulment of his license to practice law, resulting in disbarment in the State of West Virginia. 3 For these reasons, I dissent.

. Only an attorney, duly licensed, is qualified to hold the office of prosecuting attorney. State ex rel. Summerfield v. Maxwell, 148 W.Va. 535 , 135 S.E.2d 741 (1964).

. For a discussion of the impact of substance abuse on the legal profession, see generally, Lawyers and Cocaine: The Legal Profession Draws the Line, 92 Dick.L.Rev. 717 (1988); The Cocaine Impaired Lawyer, 92 Dick.L.Rev. 615 (1988).

.Section 23 of the State Bar Rules (1982) provides for the annulment of the license of an attorney upon conviction of a crime involving moral turpitude or professional unfitness, among other grounds. See In re Robertson, 156 W.Va. 463 , 194 S.E.2d 650 (1973).

Although we recommend the maximum penalty, we note that the party would not necessarily be permanently disbarred. As the majority noted in footnote 5, section 35 of the State Bar Rules provides that five years after the date of *267 disbarment, the party is permitted to petition this Court for reinstatement.