Former Kanawha County prosecuting attorney Mark Plants should be publicly reprimanded by the West Virginia Supreme Court for his conduct while in office, members of a state lawyers panel recommended this week.
As prosecutor, Plants was held to a higher standard, members of a hearing panel subcommittee of the West Virginia Lawyer Disciplinary Board wrote after what they called "a long and laborious analysis."
"Therefore, especially under the facts herein, the ethical violations [Plants] commits are considered more egregious because of the betrayal of the public trust attached to the office," the panel wrote.
Plants and attorneys with the Lawyer Disciplinary Board, who filed the complaint charging Plants with violating state lawyer rules, have 30 days to object to the recommendation. If they do, arguments will be made before the Supreme Court.
Justices must decide whether to follow the recommendation and sanction Plants. A public reprimand is more severe than an admonishment, but not as harsh as the suspension or annulment of a law license.
The charges came five months after two misdemeanor criminal charges were dismissed against Plants in Kanawha Magistrate Court, and were filed almost exactly a year after he was removed as prosecutor in October 2014.
Plants' trouble began after his ex-wife, Allison, 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 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 arrived. Plants said he went to his sons for their protection, but the Office of Disciplinary Counsel argued that he knowingly violated the protective order.
A second misdemeanor was filed against Plants by the trooper assigned to investigate the incident with the belt. Plants was charged with battery for leaving a 6- to 7-inch bruise on the boy's thigh.
The criminal charges were dropped after Plants attended a domestic violence intervention program for 32 weeks.
Plants' "misconduct created a conflict of interest that interfered with his ability to properly represent his client, the State," the disciplinary panel wrote. Plants, "in violating the Protective Order, committed a criminal act that reflects adversely on his honestly, trustworthiness or fitness as a lawyer in other respects."
The Supreme Court ruled in May 2014 that suspending Plants' law license immediately, before the completion of the disciplinary counsel's investigation wasn't warranted. The disciplinary counsel had said an immediate suspension was needed because of the conflict of interest the charges against Plants created for his office.
Justices said then, though, that any conflict was resolved when Kanawha Circuit Judge Duke Bloom disqualified Plants' office from handling most cases of domestic violence and appointed a team of special assistant prosecutors.
Plants went before the three-member hearing panel - Huntington attorney Steve Nord, Wetzel County Prosecuting Attorney Timothy Haught and layman William Barr - in May.
Deliberating on a proper sanction, members of the panel cited a 1992 case from Indiana in which the then-chief deputy prosecuting attorney for Elkhart County was accused of domestic violence regarding his girlfriend and her daughter. That prosecutor argued that he shouldn't be guilty of professional misconduct because "the physical altercation was the culmination of a private, adult relationship, and that the battery 'arose instantaneously' after provocation," the panel's filing states.
The court rejected the Indiana prosecutor's argument, though, finding that, as a prosecutor, stricter scrutiny of his conduct was warranted. His law license was suspended for 60 days.
"As a part-time prosecutor," the Indiana court wrote, "Respondent inevitably encounters domestic assaults, and this incident calls into question his ability to zealously prosecute or to effectively work with the victims of such crimes. As a part-time practitioner, Respondent's effectiveness with his own clients or with adversaries in situations involving issues of domestic violence is compromised by his own contribution to this escalating societal problem. In both his capacities, we believe the perception of his fitness is tainted."
Lawyers from the West Virginia disciplinary counsel had tried to persuade the panel to recommend suspending Plants' law license for three months. The panel also recommended that Plants pay for the cost of the disciplinary proceedings.
Charleston lawyer Jim Cagle, Plants' attorney, argued that Plants didn't violate the rules and asked the panel to dismiss the charges.
Plants, a Republican, was first elected Kanawha prosecutor in 2008 and was re-elected in 2012. He couldn't be reached for comment Friday.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.