Former Kanawha County prosecuting attorney Mark Plants didn't violate the rules lawyers in the state are required to follow, his attorney argued in a response Wednesday to the West Virginia Office of Disciplinary Counsel.
Attorneys with the ODC have said that, although a magistrate dismissed two misdemeanor charges against Plants earlier this year, the allegations surrounding those charges still amount to violations of the State Bar's Code of Professional Conduct. The ODC, which oversees lawyers in West Virginia, filed a statement of charges against Plants last month.
In response to the charges, Plants attorney Jim Cagle asked that they be dismissed.
Plants was elected prosecutor in 2008 and re-elected in 2012. He opened his own law office in South Charleston after a panel of judges removed him from office last fall.
A panel of attorneys will hear the case before making recommendations to the West Virginia Supreme Court about the future of Plants' license to practice law.
Plants' trouble began after his ex-wife, Allison Plants, complained about him striking their then-11-year-old son with a belt. A West Virginia State Police investigation resulted in Mark Plants being charged with misdemeanor battery.
The prosecutor was then charged with a second misdemeanor, for violating a domestic-violence protection order that barred him from contact with his children and ex-wife. Last year, Plants waited with his children outside Fruth Pharmacy while their mother was inside. He has said he was there for their protection, but the Office of Disciplinary Counsel alleges that he was knowingly violating the protection order.
The criminal charges were dropped after Plants attended a domestic-violence intervention program for 32 weeks.
Cagle wrote in the response on Wednesday that Plants had reason to believe his wife might have been drinking the night she was inside Fruth. Plants stood outside of the store with his children to make sure they were safe - not to violate the rules for lawyers or the domestic-violence protection order, Cagle wrote.
"Under the Office of Disciplinary Counsel's reasoning, had [Plants'] ex-wife stumbled out of the store with bloodshot eyes, the smell of alcohol about her person, and slurred speech; his only course of conduct under the Rule of Professional Conduct was to let her drive off with his children," Cagle wrote. "The spirit and/or intent of the protective order was to protect the children, not potentially endanger them."
Soon after the battery charge was filed against Plants, Cagle, who also represented him in the criminal case, filed a motion asking that the charge be dismissed. He argued that Plants had a constitutional right to discipline his child by spanking him. That argument created a conflict of interest with his job as prosecutor, a Kanawha judge ruled.
In response to the conflict, Circuit Judge Duke Bloom appointed a special prosecutor and a team of assistants to handle cases that involved allegations similar to those Plants had faced.
Once Plants was removed as prosecutor and Charles Miller was appointed to take his place, Bloom ruled that a conflict no longer existed. In response to the mounting costs of paying a special prosecutor to handle the caseload the conflict created, Kanawha County commissioners filed a petition to have Plants removed from office.
The filing made public last month 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."
Cagle accused the ODC of releasing information about Plants before it became public. He said members of the news media started calling his client before even he had received a copy of the charges.
The 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 several arguments Bird made during the removal proceedings should be brought to the disciplinary agency's attention.
Plants was asked by disciplinary attorneys to explain an incident that occurred at John Adams Middle School on July 30, 2014, according to the statement of charges.
Charleston Police Sgt. Anthony Colagrasso testified during Plants' removal proceedings that he'd responded to a call at the 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," according to the charges. Bird had argued that Plants had tried to use his position as prosecutor to have his ex-wife jailed.
The three-judge panel didn't hear all the circumstances surrounding the incident, according to Cagle. Plants actually said his ex-wife was violating a court order and that "it won't be my office that handles it," his response stated. The entire conversation is on video, which the ODC never asked for, Cagle wrote.
The judges also called it troubling that Plants could have made deals with the prosecutor handling the criminal case against him while knowing they weren't legal.
The first deal Plants made with special prosecutor Sid Bell was a pretrial diversion agreement that would have allowed the charges to be dismissed after a year, if Plants stayed out of trouble. Such pretrial diversion programs, though, can't be used in cases of domestic violence. Bell realized that soon after the deal was made and pointed it out to the court so a new deal could be made.
Kanawha County's domestic-violence pilot program routinely orders pretrial diversion agreements, though, Cagle wrote. Furthermore, it was Plants' attorney who negotiated the deal with Bell that was approved by a magistrate.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.