IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

In Re: JENNIFER M. WOLFE, a member of The West Virginia State Bar

Bar No.: 12425 Supreme Court No.: 17-0906

I.D. No.: 16-03-311

REPORT OF THE HEARING PANEL SUBCOMMITTEE

I. PROCEDURAL mSTORY

Formal charges were filed against Jennifer M. Wolfe (hereinafter "Respondent") with the

Clerk of the Supreme Court of Appeals of West Virginia (hereinafter "Supreme Court") on or about

October 12, 2017, and served upon Respondent via certified mail by the Clerk on October 17,2017.

Lawyer Disciplinary Counsel filed her mandatory discovery on or about November 3, 2017.

Respondent filed her Answer to the Statement of Charges on or about November 9, 2017.

Respondent provided her mandatory discovery on December 4, 2017. An evidentiary hearing was set

for February 12, 2018. On February 7, 2018, due to a witness issue, Disciplinary Counsel filed a

Motion to Continue and the same was granted. The matter was then set for hearing on April 17,

2018.

Thereafter, this matter proceeded to hearing in Charleston, West Virginia, on April 17, 2018.

The Hearing Panel Subcommittee (hereinafter "BPS") was comprised of James R. Akers, II, Esquire,

Chairperson, Henry W. Morrow, Jr., Esquire, and Mrs. Rachel Scudiere Vitt, Layperson. Jessica H.

Donahue Rhodes, Lawyer Disciplinary Counsel, appeared on behalf of the Office of Lawyer

Disciplinary Counsel (hereinafter "ODC"). J. Michael Benninger, Esquire, appeared on behalf of

Respondent, who also appeared. The HPS heard testimony from Amy Bain, Lucas M. Casto, Kayla

Martin, Steven L. Story, Esquire, Robert Albnry, Jr., Esquire, George Cosenza, Esquire, Amy Wolfe,

Gregory W. Bowman, Esquire, and Respondent. In addition, ODC Exhibits 1-19, and Joint Exhibits

1 and 2 were admitted into evidence.

Thereafter, Disciplinary Counsel submitted ODe Exhibit 20, and Respondent's counsel

submitted Supp. Ex. 2 and 3 for admission. All three exhibits were admitted into evidence.

Based upon the evidence and the record, the BPS of the Lawyer Disciplinary Board

(hereinafter "LDB") hereby makes the following Findings of Fact, Conclusions of Law and

Recommended Sanctions regarding the final disposition of this matter.

II. FINDINGS OF FACT AND

CONCLUSIONS OF LAW

1. Respondent is a lawyer practicing in Ravenswood, Jackson County, West Virginia. Hrg.

Trans. p. 162. Respondent, having passed the bar exam, was admitted to The West Virginia

State Bar on April 23, 2014. Id. As such, Respondent is subject to the disciplinary

jurisdiction of the Supreme Court and its properly constituted LDB.

2. Respondent attended Marietta College from 2006 to 2010, graduating with a B.A. in Public

Accounting. She then attended and graduated with a J.D. from the WVU College of Law in

2013. Respondent's Exhibit I; Hrg. Jrans. p. 16.

3. Respondent has no prior discipline history from the Supreme Court of Appeals of West

Virginia, the Investigatory Panel ofthe Lawyer Disciplinary Board, or any Court. Hrg. Trans.

p. 169. She has likewise never been named in a malpractice claim or as a defendant in a civil

suit. rd. at 170.

COUNT I I.D. No. 16-03-311

Complaint of ODC

4. On or about June 14, 2016, a criminal complaint was issued against Respondent for child

neglect creating risk of injury, a felony (ODC Ex. 13, Bates stamp 760-762); two

misdemeanor charges of obstructing an officer; and possession of a controlled substance in

the Jackson County, West Virginia Magistrate Court, Case Nos. 16-MI8F-00118, 16-MI8M-

0180. ODC Ex. 14, Bates stamp 857-860. The officer's report noted that on or about June 13,

2016, a search warrant was served at Respondent's residence after police were informed that

Henry Brandt had observed a fugitive from justice, Jack Greene, at Respondent's address.

ODC Ex. 13, Bates stamp 762.

5. Mr. Greene had a warrant issued for escape from home confinement since May 15, 2016. rd.

When police arrived, Respondent was located outside the residence and, when questioned,

she responded that Mr. Greene was not at the residence at that time, that she did not know

where he was, and that she had not seen him. rd. The police entered the residence and found

Mr. Greene asleep in the back bedroom, and there was a struggle to arrest him. rd. Beside the

bed, laying on the nightstand, Deputy Sheriff Lucas M. Casto observed a silver and black

9mm handgun within Mr. Greene's reach. rd.

6. Deputy Casto also found mail addressed to Mr. Greene, what appeared to be a recent photo

of Mr. Greene and Respondent on the refrigerator, and several items belonging to Mr.

.'

Greene. Id. Also found were several items of drug paraphernalia, along with a white, crystal

substance believed to be crystal methamphetamine, on a mirror laying on the nightstand

beside the bed where Mr. Greene was taken into custody.' Id. More white, crystal substance,

believed to be crystal methamphetamine, was located inside the night stand of the room in a

clear plastic container. Id.

7. Also present at the residence was Respondent's two year old child. Id. A preliminary hearing

on the felony charge of child neglect creating risk of injury was held on or about June 29,

2016, and probable cause was found to bound the matter over to the Circuit Court. ODC Ex.

13, Bates stamp 785.

8. On or about July 14,2016, Respondent self-reported misdemeanor charges of obstructing an

officer and possession of a controlled substance, along with a felony charge of child abuse or

neglect creating a risk of injury in Jackson County, West Virginia. ODC Ex. 1, Bates stamp

1.

9. Respondent's then counsel George Cosenza, Esquire, related that Respondent had two

matters pending in Jackson County Circuit Court. ODC Ex. 9, Bates stamp 384-386. Those

included bound over child neglect creating risk of injury charge and an abuse and neglect

case. ODC Ex. 9, Bates stamp 384. Respondent's counsel believed that Respondent would be

indicted in October of2016. Id.

10. In subsequent correspondence, Respondent's counsel advised that Respondent entered

treatment for substance abuse on October 25, 2016, and successfully completed the Halcyon

Intensive Outpatient Treatment at GenPsych PC on November 8, 2016. ODC Ex. 12, Bates

, Deputy Casto testified that he initially thought the methamphetamine was on top ofthe dresser but, after investigation, determined the methamphetamine was actually inside the dresser. Hrg. Trans. 54.

stamp 759. Respondent then emolled in the Intensive Outpatient (lOP) Program at the Wood

County Day Report Center. rd.

11. The abuse and neglect case was reviewed by Disciplinary Counsel and the following was

disclosed:

a. On or about June 27, 2016, Respondent provided a urine sample to Jackson County

Probation Officer Amy Bain for a drug screen that tested positive for amphetamine

and methamphetamine and she refused to sign a voluntary admission/denial form.

ODC Ex. 7, Bates stamp 257-261.

b. Thereafter, on or aboutJuly 5, 2016, Respondent was providing a urine drug screen

to Officer Bain and tubing was found on Respondent. ODe Ex. 7, Bates stamp 263-

266. Respondent told Officer Bain that she wore the tubing to pass the drug screen,

but ultimately provided a current urine sample. ODC Ex. 7, bates stamp 263. A

preliminary screen performed by Officer Bain on the urine tested positive for

amphetamines and methamphetamine, and Respondent then admitted that she used

methamphetamine about two days before, but she refused to sign a voluntary

admission form. ld. The liquid that was contained in the tubing also went through

preliminary screen and tested positive for amphetamines and methamphetamine.

ODC Ex. 7, Bates stamp 263-264. Later testing on both urine samples tested positive

for amphetamines and methamphetamine. ODC Ex. 7, Bates stamp 277-286. Officer

Bain testified that she filed a criminal complaint against Respondent because it "was

the most blatant" attempt to defeat the drug test. Rrg. Trans. p. 15.

c. On or about July 12, 2016, after a Multi-Disciplinary Team ("MDT") meeting,

Officer Bain took a urine sample from Respondent that both by preliminary and

subsequent testing was positive for amphetamines and methamphetamine. ODC Ex.

7, Bates stamp 339, 354-355.

d. On or about July 20, 2016, during an adjudicatory hearing, Respondent admitted that

she has a drug problem which affected her ability to properly parent her child. She

also admitted that she exposed her child to inappropriate persons resulting in harm to

the welfare and safety of the child. ODC Ex. 10, Bates stamp 414-416. Respondent

was granted a post-adjudicatory period of improvement. ODC Ex. 10, Bates stamp

415.

e. On or about October 13, 2016, a Motion to Revoke Improvement Period of

Respondent was filed after she enrolled with the Halcyon Program and began

treatment on or about July 26, 2016, but was discharged on or about August 23, 2016

due to "Failure to meet attendance requirement." ODC Ex. 10, Bates stamp 581-585.

Respondent was also required to participate in and complete an Intensive Out Patient

and Relapse Prevention program and, as of October 11, 2016, she had not enrolled in

a program. ODC Ex. 10, Bates stamp 581-582.

12. Disciplinary Counsel contacted Jackson County Magistrate Court to obtain information about

all charges against Respondent. The following cases were disclosed:

a. On or about May 24, 2016, in Jackson County, West Virginia Magistrate Court Case

No. 16-MI8W-00033, a Criminal Complaint: Worthless Check was filed against

Respondent for a check for Foodfair for $148.48. ODC Ex. 14, Bates stamp 823-824.

On or about March 6, 2017, Respondent pled no contest to the charge and assessed

costs and a fine for a total of$364.73. ODC Ex. 14, Bates stamp 815-819.

b. On or about June 13, 2016, in the Jackson County, West Virginia Magistrate Court

Case No. 16-MI8C-00227, a Petition for Summary Relief: Wrongful Occupation of

Residential Rental Property was filed against Respondent by Henry Brandt for

Rebecca Brandt Kent. ODC Ex. 14, Bates stamp 809-811; ODC Ex. 15, Bates stamp

993-995. The petition noted that rent for June of 2016 was late, as it is due on the

first day of the month, and attenipts to communicate with Respondent about the issue

were unsuccessful. ODC Ex. 14, Bates stamp 809; ODC Ex. 15, Bates stamp 997.

On or about June 27, 2016, Respondent filed a motion to remove the case to circuit

court and for a jury trial, which was granted on June 29, 2016. ODC Ex. 14, Bates

stamp 813. On or about July 8, 2016, the Jackson County, West Virginia Circuit

Court entered an Order granting judgment to Rebecca Brandt Kent and Stephen B.

Kent in the sum of One Thousand Dollars ($1,000.00), plus costs and interest from

the date until paid. ODC Ex. 15, Bates stamp 1006-1007. Respondent was also

ordered to vacate the premises no later than 4 p.m. on July 8, 2016. ODC Ex. 15,

Bates stamp 1007. The Order also noted that Respondent was sent notice of the

hearing on July 8, 2016 by fust class mail to the address provided by Respondent,

and the court's judicial assistant advised Respondent on July 6, 2016 of the hearing

on July 8, 2016. ODC Ex. 15, Bates stamp 1006. On or about July 11, 2016,

Respondent filed a Motion for New Trial and Motion for Stay of Enforcement of

Judgment. ODC Ex. 15, Bates stamp 1009-1011. Respondent alleged that she did not

receive notice of the hearing. ODC Ex. 15, Bates stamp 1009. On or about July 14,

2016, the Jackson County Circuit Court entered an Order Setting Hearing on

[Respondent's] Motion for New Trial and Motion for Stay of Enforcement of

Judgment forJuly 22,2016. ODC Ex. 15, Bates stamp 1013. Thereafter, on or about

July 27, 2016, the Jackson County Circuit Court entered an Order Denying

[Respondent'sj.Motion for New Trial and Motion for Stay of Enforcement of

Judgment. ODC Ex. 15, Bates stamp 1015. The Order noted that Respondent failed

to appear for the hearing on July 22,2016. Id.

c. On or about June 14,2016, in Jackson County, West Virginia Magistrate Court Case

No. 16-MI8M-01380, a Criminal Complaint was filed against Respondent for

obstructing' an officer and possession of a controlled substance for the above

. mentioned incident. ODC Ex. 14, Bates stamp 857-858, 859-860. On or about March

6,2017, the charges were dismissed for a pre-trial diversion. ODC Ex. 14, Bates

stamp 850.

d. Also on or aboutJune 14,2016, in Jackson County, West Virginia Magistrate Court

Case No. 16-MI8F-00118, a Criminal Complaint was filed against Respondent for

child neglect resulting in injury for the above mentioned incident. ODC Ex. 13, Bates

stamp 760-762. After a preliminary hearing on or about June 29, 2016, probable

cause was found and the matter was bound over to the Circuit Court. ODC Ex. 13,

Bates stamp 785.

e. On or about July 6,2016, in Jackson County, West Virginia Magistrate Court Case

No. 16-MI8M-01505, a criminal complaint was filed against Respondent for

defeating drug and alcohol screening tests for the above noted incident on July 5,

2016 with Officer Bain. ODC Ex. 14, Bates stamp 954-955. On or about March 6,

2017, Respondent entered into a pre-trial diversion for six months. ODC Ex. 14,

Bates stamp 949-950. If Respondent successfully completes the pre-trial diversion,

the charges will be dismissed. ODC Ex. 14, Bates stamp 949.

f. On or about July 15,2016, Respondent received a citation in Jackson County, West

Virginia, for speeding 65 mph in a 55 mph zone and left of center in left hand curve.

ODC Ex. 14, Bates stamp 840. On or about December 22, 2016, Respondent pled no

contest to the charges and paid a fme. ODC Ex. 14, Bates stamp 841-842.

g. On or about December 8, 2016, Respondent received a citation in Jackson County,

West Virginia, for cell phone use while driving. ODC Ex. 14, Bates stamp 837. On or

about February 1, 2017, Respondent pled no contest to the charge and paid a fme.

ODC Ex. 14, Bates stamp 838-839.

13. In subsequent correspondence, Respondent's counsel provided a copy of an Order entered on

or about June 22, 2017, in Respondent's bound over felony case. ODC Ex. 18, Bates stamp

1021-1022. The Order dismissed the case nolle prosequi. ODC Ex. 18, bates stamp 1022.

The Order noted that "[fJoliowing testimony during the preliminary hearing in this matter, as

well as evidence presented at a collateral case, both the lead investigator and the [prosecutor 1

are of the opinion that the State will be unable to carry the burden of proof at trial." Id.

Respondent's counsel also provided documentation of Respondent' s satisfactory completion

of Southway Intensive Outpatient treatment program at Thomas Memorial Hospital on

January 16, 2016 (ODC Ex. 18, Bates stamp 1028), and successful completion of the

Halcyon Intensive Outpatient Program at GenPsych on November 8, 2016. ODC Ex. 18,

Bates stamp 1029. Respondent's counsel also provided copies of drug testing results from

October 3, 2016, to May 8, 2017 (ODC Ex. 18, Bates stamp 1030-1125), and July 21,2016,

to June 20, 2017 (ODC Ex. 18, Bates stamp 1127-1208), along with a letter from Ohio

V alley Physicians/Appalachian Realth Services dated June 23, 2017, about Respondent being

a current patient receiving outpatient medication assisted treatment. ODC Ex. 18, Bates

stamp 1126. Respondent was treated with Buprenorphine while participating in outpatient

counseling services on minimal bi-weekly basis. rd.

14. On or about September 5, 2017, the defeating drug and alcohol screening tests charge was

dismissed after Respondent successfully completed a pre-trial diversion. ODC Ex. 19, Bates

stamp 1211-1212.

15. Respondent admitted she possessed drugs, as charged in this matter. Rrg. Trans. p. 256.

16. Respondent pled no contest to writing a worthless check, as charged in this matter. Rrg.

Trans. p. 256.

17. Respondent denied carrying out her plan to defeat drug screen but admitted she initially

attempted to do so. Rrg. Trans. p. 256

18. The HPS finds by clear and convincing evidence that the Respondent was guilty of (1)

possession of a controlled substance in violation of W.Va. Code § 60A-4-401; (2) writing a

worthless check in violation of W.Va. Code § 61-3-39a; and (3) attempting to defeat a drug

and alcohol screening test in violation of W.Va. Code § 60A-4-412,2 Respondent violated

Rule 8.4(b) of the Rules of Professional Conduct, which provide as follows:

Rule 8.4. Misconduct. It is professional misconduct for a lawyer to:

• • * (b) commit a criminal act that reflects adversely on the

lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

2 Respondent was also charged with obstructing an officer in the Statement of Charges. ODC presented no such evidence during the parties' hearing. No adverse findings are therefore made here with regard to that charge.

19. Because Respondent committed the criminal acts of worthless check in violation of W.Va.

Code § 61-3-39a and defeating a drug and alcohol screening test in violation of W.Va. Code

§ 60A-4-412, Respondent violated Rule 8.4(c) of the Rules of Professional Conduct, which

provide as follows:

Rule 8.4. Misconduct. It is professional misconduct for a lawyer to:

* * * (c) engage in conduct involving dishonesty, fraud, deceit or

misrepresentation;

III. DISCUSSION

The Supreme Court has long recognized that attorney disciplinary proceedings are not

designed solely to punish the attorney, but also to protect the public, to reassure the public as to the

reliability and integrity of attorneys, and to safeguard its interests in the administration of justice.

Lawver Disciplinarv Board v. Taylor, 192 W.Va. 139, 451 S.E.2d 440 (1994). Factors to be

considered in imposing appropriate sanctions are found in Rule 3.16 of the Rules of Lawyer

Disciplinary Procedure. These factors consist of: (1) whether the lawyer has violated a duty owed to

a client, to the public, to the legal system, or to the profession; (2) whether the lawyer acted

intentionally, knowingly, or negligently; (3) the amount ofthe actual or potential injury caused by the

lawyer's misconduct; and (4) the existence of any aggravating or mitigating factors. See also, Syl. Pt.

4, Office of Disciplinarv Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722 (1998).

A. Respondent violated duties to the public, to the legal system, and to the legal profession.

In determining the nature of the ethical duty violated, lawyers owe duties to the general

public. Members of the public are entitled to expect lawyers to exhibit the highest standards of

honesty and integrity, and lawyers have a duty not to engage in conduct involving dishonesty, fraud,

or interference with the administration of justice. Lawyers also owe duties to the legal system.

Lawyers are officers of the court, and must abide by the rules of substance and procedure which

shape the administration of justice. Lawyers must always operate within the bounds of the law, and

not engage in any other illegal or improper conduct. Finally, lawyers owe duties to the legal

profession. Unlike the obligations mentioned above, these duties are not inherent in the relationship

between the lawyer and the community. The evidence in this case establishes by clear and

convincing proof that Respondent violated her duties owed to the general public, legal system, and

legal profession by illegally possessing drugs, writing a worthless check and attempting to defeat a

drug screen.

Respondent's violations of Rules 8.4(b) and 8.4(c) by committing criminal acts, which

included fraudulent acts, negatively affect the general public, the legal system, and the legal

profession. Attorneys are representatives of the legal system, and by engaging in illegal conduct and

fraudulent conduct, Respondent failed in her duties as an attorney.

B. Respondent acted intentionally and negligently.

The most culpable mental state is that of intent, when the lawyer acts with the conscious

objective or purpose to accomplish a particular result. The next most culpable mental state is that of

knowledge, when the lawyer acts with conscious awareness of the nature or attendant circumstances

of his conduct, both without the conscious objective or purpose to accomplish a particular result. The

least culpable mental state is negligence, when a lawyer fails to be aware of a substantial risk that

circumstances exist or that a result will follow, which failure is a deviation from the standard of care

that a reasonable lawyer would exercise in the situation. Respondent acted both intentionally and

negligently in this matter.

Respondent intentionally possessed illegal drugs, intended to and did use them. Respondent,

by her own admission, intentionally taped a tube filled with urine to her body in order to defeat a

drug test. This Panel fmds that Respondent's writing of a worthless check was negligent. Her

criminal lawyer, Mr. Cosenza, testified that her worthless check was not knowing or intentional.

Rrg. Trans. p. 270.

C. The amount of real injury is moderate.

Injury is harm to a client, the public, the legal system, or the legal profession which results

from a lawyer's misconduct. The level of i~ury can range from "serious" injury to "little or no"

injury. A reference to "injury" alone indicates any level of injury greater than "little or no" injury.

"Potential injury" is the harm to a client, the public, the legal system or legal profession that is

reasonably foreseeable at the time of the lawyer's misconduct, and which, but for some intervening

factor or event, would probably have resulted from the lawyer's misconduct. While the legal system

and the legal profession were injured by Respondent's misconduct, there is no evidence that any of

Respondent's clients suffered direct harm. The people hurt most by Respondent's conduct are her

and her family.

D. Respondent has one aggravating factor.

Aggravating factors are considerations enumerated under Rule 3.16 of the Rules of Lawyer

Disciplinary Procedure for the Court to examine when considering the imposition of sanctions.

Elaborating on this rule, the Scott Court held "that aggravating factors in a lawyer disciplinary

proceeding' are any considerations, or factors that may justify an increase in the degree of discipline

to be imposed.'" Lawyer Disciplinary Board v. Scott, 213 W.va. 209, 216, 579 S.E. 2d 550, 557

(2003) quoting ABA Model Standards for Imposing Lawyer Sanctions, 9.21 (1992). The following is

the aggravating factor: 1) illegal conduct which involved the use of controlled substances.

E. Respondent has two mitigating factors.

In addition to adopting aggravating factors in Scott, the Scott court also adopted mitigating

factors in a lawyer disciplinary proceedings and stated that mitigating factors "are any considerations

or factors that may justify a reduction in the degree of discipline to be imposed." Lawyer

Disciplinary Board v. Scott, 213 W.Va. 209, 216,579 S.E.2d 550, 557 (2003) quoting ABA Model

Standards for Imposing Lawyer Sanctions, 9.31 (1992)3. It should be clear that mitigating factors

were not envisioned to insulate a violating lawyer from discipline. The mitigating factors present in

this case are: I) absence of prior disciplinary record and 2) inexperience in the practice of law.

Respondent testified as to her continued treatment for her drug addiction. In Lawyer

Disciplinary Board v. Brown, 223 W.Va. 554, 678 S.E.2d 60 (2009), the West Virginia Supreme

Court indicated that alcoholism is a mitigating factor, but "the abuse of an illegal substance is clearly

distinguishable. Alcohol is a legal substance; cocaine is not. Thus, an attorney who embarks on the

use of an illegal substance in the first instance in knowingly violating the law." Id. at 560-561,66-67.

While Respondent used heroin and cocaine in het past, the recent charge for possession of a

controlled substance involved methamphetamine, which is also an illegal drug.

Standard 9.32(1) of the ABA Standards for Imposing Lawyer Sanctions states that chemical

dependency including alcoholism or drug abuse is a mitigating factor when: (I) there is medical

evidence that the respondent is affected by a chemical dependency or mental disability; (2) the

chemical dependency or mental disability caused the misconduct; (3) the respondent's recovery from

the chemical dependency or mental disability is demonstrated by a meaningful and sustained period

of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that

misconduct is unlikely.4

3 The Scott Court held that mitigating factors which may be considered in determining the appropriate sanction to be imposed against a lawyer for violating the Rules of Professional Conduct include: (1) absence of a prior disciplinary record; (2) absence of a dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith effort to make restitution or to rectifY consequences of misconduct; (5) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (6) inexperience in the practice of law; (7) character or reputation; (8) physical or mental disability or impairment; (9) delay in disciplinary proceedings; (10) interim rehabilitation; (\1) imposition of other penalties or sanctions; (12) remorse; and (\3) remoteness of prior offenses.

4 The Supreme Court adopted the mental disability of the AGA Standards for bnposing Lawyer Sanctions in Lawyer Disciplinary Board v. Dues, 218 W.Va. 104, 624 S.E.2d 124 (2005), but left out the wording about chemical dependency.

On April 24-26, 2018, Respondent underwent a three-day professional evaluation by

specialists at the Center for Professional Excellence, Woman's Program atthe JoumeyPure recovery

center in Nashville, Tennessee. The Evaluation Summary and separate evaluations conducted by the

physician medical director, the assessment specialist, and the clinical director were made part of the

record, under seal, as ODC Exhibit No. 20. Respondent complied with the recommendations made

to her during this professional evaluation and ended her eight-week residential in-patient treatment

program "to address relapse prevention, trauma as well as creating a solid aftercare recovery plan."

The aftercare recovery plan includes monitoring by JLAP for a minimum of five (5) years. It

also appears to be imperative for Respondent's plan of recovery that she continue her legal education

in the area of interest and that she join a 12-step support network with continued monitoring by

JLAP. However, while Respondent submitted several records at hearing, she provided no testimony

from a provider about any continued treatment or counseling. Moreover, at the time of the hearing,

Respondent had only just begun a church counseling program. Hrg. Trans. p. 205.

IV. SANCTION

The Rules of Professional Conduct state the minimum level of conduct below which no

lawyer can fall without being subject to disciplinary action. Syllabus Pt. 3, in part, Committee on

Legal Ethics v. Tatterson. 173 W.Va. 613, 319 S.E.2d 381 (1984), cited in Committee on Legal

Ethics v. Morton, 186 W.Va. 43, 45, 410 S.E.2d 279, 281 (1991). In addition, discipline must serve

as both instruction on the standards for ethical conduct and as a deterrent against similar misconduct

to otherattomeys. In Syllabus Point 3 of Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358

S .E.2d 234 (1987), the Court stated:

In deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession.

Moreover, a principle purpose of attorney disciplinary proceedings is to safeguard the public's

interest in the administration of justice. Daily Gazette v. Committee on Legal Ethics, 174 W.va. 359,

326 S.E.2d 705 (1984); Lawyer Disciplinary Board v. Hardison, 205 W.Va. 344, 518 S.E.2d 101

(1999).

The most recent West Virginia case analyzing drug use and drug addiction is Lawyer

Disciplinary Board v. Amber Hanna, No. 16-0178 (W.Va. Aug. 30, 2016)(unreported order). In that

case, the attorney was suspended for one year after being found in violation of Rule 8.4(b) and 8.4( d)

for use of illegal drugs. It should be noted that the attorney in that case had been found to have

successfully completed rehabilitation, and also she continued to meet with her substance abuse

counselor, attend Alcoholics Anonymous meetings, and work with what was then known as the

Lawyers Assistance Committee of the West Virginia State Bar.

In Lawyer Disciplinary Board v. Alderman, 229 W.Va. 656, 734 S.E.2d 737 (2012), an

attorney was suspended for two years after the attorney was convicted of two misdemeanor criminal

charges that involved illegal drugs. In Alderman, the attorney had voluntarily disengaged himself

from the practice of law for over a year and his two year suspension was made retroactive to his

voluntarily withdrawal from practicing law. Id. at 661, 742. Multiple year suspensions are the

sanctions in other disciplinary cases involving the use of illegal drugs. See Committee on Legal

Ethics of the West Virginia State Barv. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994) (attorney

suspended for two years after using the illegal drug cocaine and crack cocaine along with improper

solicitation of clients and false testimony before the hearing panel); Committee on Legal Ethics of

the West Virginia State Bar v. White, 189 W.Va. 135,428 S.E.2d 556 (1993) (attorney suspended

for two years after convictions for possession of cocaine, marijuana, and Percocet); and Committee

on Legal Ethics of the West Virginia State Bar v. Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989)

(attorney suspended for three years after pleading guilty to several counts of possession of cocaine

while a public official).

Regarding the worthless check charge, ODC only provided authority in the case of Lawver

Disciplinary Board v. Taylor, 192 W.Va. 139,451 S.E.2d 440 (1994). In that matter an attorney's

license to practice law was armulled after he wrote numerous worthless checks in violation of Rules

8.4(b) of the Rules of Professional Conduct. However, that lawyer also lied to the Supreme Court.

As noted above, the evidence in this case is that Respondent negligently wrote one worthless check

that she later repaid.

The most serious aspect of this case clearly revolves around Respondent's history of drug

abuse. In fact, all of her other alleged and proven misconduct stems from that issue. As part of her

treatment in 2016, Respondent underwent an evaluation and was diagnosed with opioid dependence,

alcohol abuse, carmabis dependence and other stimulant dependence. Hrg. Trans. p. 198-199.

Respondent disagreed with the carmabis dependence diagnosis but agreed with the other diagnoses.

Id.

With regard to her drug history, Respondent admitted she first used opiates when she was 16

years of age, and that this eventually evolved into a problem. Hrg. Trans. p. 200. Respondent used

methadone in 2013, and stated this was because she was pregnant and did not want to use opiates at

that time. Hrg. Trans. p. 200-201. Respondent relapsed by using methamphetamine in 2014. Hrg.

Trans. p. 201-202. Of note, Respondent was a licensed attorney when she first used

methamphetamine. Hrg. Trans. p. 203. Respondent first used marijuana at 16 years of age, first used

heroin at 25 years of age, first used cocaine at 21 years of age, first used benzodiazepines at 16 years

of age and first used alcohol at 12 years of age. Hrg. Trans. p. 203-204. Respondent stated that she is

"willing to do whatever is required of [her] by the Lawyers' Assistance Program" and admitted to

having "a long term drug history and a problem." Hrg. Trans. pp. 207, 216.

Even though Respondent was initially charged with criminal offenses in 2016, and ultimately

went to rehabilitation in that same year, she has not yet worked with JLAP to ensure her fitness to

practice law. Mr. Albury stated that Respondent had an opportunity for two years to contact JLAP

for assistance. Hrg. Trans. p. 119. As noted above, Mr. Albury does not believe Respondent is

currently fitto practice law. Hrg. Trans. p. 133-135.

However, soon after the hearing in this matter, Respondent did undergo an evaluation

through the JLAP program. It was recommended that Respondent (1) enter a "residential treatment

program to address relapse prevention, trauma, as well as creating a solid aftercare recovery plan";

(2) "enter a monitoring contract with the [JLAP] for a minimum of 5 years including random

toxicology screens"; and (3) "[i]t may also be wise to defer her full licensure until she completes her

master's program."5 ODC Ex. 20. Further, Respondent was diagnosed with opioid use disorder,

stimulant use disorder, and unspecified trauma and stressor related disorder. The report further

stated that Respondent,

appears to have done well with the maintenance approach, but there are concerns about her ongoing ability to not only maintain sobriety but to also thrive in both life and her law career. Due to the nature of her professional career it is imperative that she address the underlying trauma along with the addiction and have a sustainable, long term recovery plan.

ODCEx.20.

Mr. Albury advised ODC on June 6, 2018, that Respondent is currently in treatment. It

appears to ODC that Respondent is following the recommendations of her evaluation. Mr. Albury

indicated that he would alert ODC if Respondent failed in the recommended treatment or did not

engage in JLAP monitoring as recommended.

5 At the time of hearing Respondent was awaiting word on whether she would be accepted into the WVU College of Law Energy LLM program. Sometime thereafter she received notice that she had been rejected for admission during this academic year.

For the public to have confidence in our disciplinary and legal systems, lawyers who engage

in the type of misconduct exhibited by Respondent must be removed from the practice of law for

some period of time. A license to practice law is a revocable privilege and when it is abused our

Supreme Court instructs us that the privilege should be revoked. Such sanction is also necessary to

deter other lawyers from engaging in similar conduct and to restore the faith of the general public in

the integrity ofthe legal profession.

V. RECOMMENDED SANCTIONS

Rule 3.15 of the Rcles of Lawyer Disciplinary Procedure provides that the following

sanctions may be imposed in a disciplinary proceeding: (l) probation; (2) restitution; (3) limitation

on the nature or extent of future practice; (4) supervised practice; (5) community service; (6)

admonishment; (7) reprimand; (8) suspension; or (9) annclment. It is the position of Lawyer

Disciplinary Counsel that Respondent's license shocld be suspended for two (2) years. Respondent

argues for a suspension of no more than six (6) months.

This Panel was presented with mcltiple witnesses, a multitude of documents and persuasive

arguments by both sides. Mr. Albury's testimony was given particular weight based upon his years

of experience and work with similarly situated lawyers. He does not believe Respondent should be

considered for a return to the practice of law until she has completed a full year of treatment,

recovery and evaluation. As noted above, Respondent recently entered into a formal therapeutic

program between the time of hearing and submission of these Findings.

In her April 2018 evaluation from JourneyPure Respondent was also found to exhibit

"notable defensiveness ... [that] indicates an unwillingness to recognize mental health stressors,

which cocld later complicate life." This Panel concluded at hearing that Respondent continued to

exhibit some defensive characteristics and, from a lay perspective, some level of denial of the

seriousness of her past substance abuse.

This Panel agrees with Mr. Albury that Respondent should return to a life of practicing law,

but only if she successfully completes all necessary steps as recommended by treatment professionals

combined with the JLAP guidelines. Respondent is to be commended for her recovery to date;

however, six months is not enough time for this Panel to believe she will be fit to once again

represent clients.

At the same time, ODC's recommended suspension of two years is excessive when compared

against other cases. The authority provided to this Panel generally involved lawyers who had been

convicted of serious drug crimes, which is not the case here. However, ODC's recommended

suspension timeframe does fall more in line with the amount of time Respondent appears to need for

treatment, recovery, evaluation and review by JLAP personnel.

For the reasons set forth above, the HPS recommends the following sanctions:

a. That Respondent's law license be suspended for a period of one year and six months;

b. That Respondent shall participate in the evaluation, and treatment protocol as

established by the JLAP;

c. That Respondent must comply with the mandates of Rule 3.28 of the Rules of

Lawyer Disciplinary Procedure; and

d. Respondent be ordered to pay the costs of these proceedings pursuant to Rule 3.15 of

the Rules of Lawyer Disciplinary Procedure.

The Hearing Panel Subcommittee hereby recommends that the Supreme Court of Appeals of

West Virginia adopt the recommendations as set forth above.

R Akers, II, Esquire 'ariplg.ll'anel Subcommittee, Chairperson

Date: __ 9_-_f 0_'_, -"'-/'---18J-'''--

, Morrow, Jr" Esquire IfuilIiJJll0'anel Subcommittee, Member

Date: _",&~/-,=J-,-'f'--J}L2",O'-'I'-'S,,--_____ _

CERTIFICATE OF SERVICE

This is to certify that I, Andrea J. Hinerman, Senior Lawyer Disciplinary Counsel,

on behalf of Jessica H. Donahue Rhodes, Lawyer Disciplinary Counsel for the Office of

Lawyer Disciplinary Counsel, have this day, the 11 th day of September, 2018, served a true

copy of the foregoing "REPORT OF THE HEARING PANEL SUBCOMMITTEE"

upon J. Michael Benninger, Esquire, counsel for Respondent Jennifer M. Wolfe, by mailing

the same via United States Mail, with sufficient postage, to the following address:

J. Michael Benninger, Esquire Post Office Box 623 Morgantown, West Virginia 26507

Notice to Respondent: for the purpose of filing a consent or objection hereto,

pursuant to Rule 3.11 of the Rules of Lawyer Disciplinary Procedure, either party shall have

thirty (30) days from today's date to file the same.