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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

FILED 

September 2014 Term October 23, 2014 

released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS No. 13-0180 OF WEST VIRGINIA 

LAWYER DISCIPLINARY BOARD,
 

Petitioner
 

v. 

STEPHEN L. HALL,
 

A MEMBER OF THE WEST VIRGINIA STATE BAR,
 

Respondent
 

Lawyer Disciplinary Proceeding 

LAW LICENSE SUSPENDED AND OTHER SANCTIONS 

Submitted: September 3, 2014
 

Filed: October 23, 2014
 

Renée N. Frymyer, Esq. Stephen L. Hall, Esq., Pro Se 

Office of Disciplinary Counsel Huntington, West Virginia 

Charleston, West Virginia 

Attorney for the Petitioner 

The Opinion of the Court was delivered by JUSTICE WORKMAN. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “A de novo standard applies to a review of the adjudicatory record made 

before the Committee on Legal Ethics of the West Virginia State Bar [currently, the Hearing 

Panel Subcommittee of the Lawyer Disciplinary Board] as to questions of law, questions of 

application of the law to the facts, and questions of appropriate sanctions; this Court gives 

respectful consideration to the Committee’s recommendations while ultimately exercising 

its own independent judgment. On the other hand, substantial deference is given to the 

Committee’s findings of fact, unless such findings are not supported by reliable, probative, 

and substantial evidence on the whole record.” Syl. Pt. 3, Comm. on Legal Ethics v. 

McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994). 

2. “This Court is the final arbiter of legal ethics problems and must make the 

ultimate decisions about public reprimands, suspensions or annulments of attorneys’ licenses 

to practice law.” Syl. Pt. 3, Comm. on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 

(1984), cert denied, 470 U.S. 1028 (1985). 

3. Administrative law judges are adjudicatory officers within the meaning of 

Rule 8.2(a) of the West Virginia Rules of Professional Conduct. 

4. “The Free Speech Clause of the First Amendment protects a lawyer’s 

i 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

criticism of the legal system and its judges, but this protection is not absolute. A lawyer’s 

speech that presents a serious and imminent threat to the fairness and integrity of the judicial 

system is not protected. When a personal attack is made upon a judge or other court official, 

such speech is not protected if it consists of knowingly false statements or false statements 

made with a reckless disregard of the truth. Finally, statements that are outside of any 

community concern, and are merely designed to ridicule or exhibit contumacy toward the 

legal system, may not enjoy First Amendment protection.” Syl. Pt. 1, Comm. on Legal Ethics 

v. Douglas, 179 W.Va. 490, 370 S.E.2d 325 (1988). 

5. Within the context of assessing an alleged violation of Rule 8.2(a) of the 

West Virginia Rules of Professional Conduct, a statement by an attorney that such attorney 

knows to be false or with reckless disregard as to its truth or falsity concerning the 

qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a 

candidate for election or appointment to judicial or legal office is not protected by the First 

Amendment as public speech on a matter of public concern where such statement is not 

supported by an objectively reasonable factual basis. The State’s interest in protecting the 

public, the administration of justice, and the legal profession supports use of the objectively 

reasonable standard in attorney discipline proceedings involving disparagement of the 

credibility of the aforementioned judicial officers. 

ii 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6. “In deciding on the appropriate disciplinaryaction 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 standard of 

the legal profession.” Syl. Pt. 3, Comm. on Legal Ethics v. Walker, 178 W.Va. 150, 358 

S.E.2d 234 (1987). 

7. “Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure 

enumerates factors to be considered in imposing sanctions and provides as follows: ‘In 

imposing a sanction after a finding of lawyer misconduct, unless otherwise provided in these 

rules, the Court [West Virginia Supreme Court of Appeals] or Board [Lawyer Disciplinary 

Board] shall consider the following factors: (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 of the actual or potential injury 

caused by the lawyer’s misconduct; and (4) the existence of any aggravating or mitigating 

factors.” Syl. Pt. 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 

S.E.2d 722 (1998). 

8. “Aggravating factors in a lawyer disciplinary proceeding are any 

considerations or factors that may justify an increase in the degree of discipline to be 

iii 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

imposed.” Syl. Pt. 4, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 

(2003). 

9. “Mitigating factors in a lawyer disciplinary proceeding are any 

considerations or factors that may justify a reduction in the degree of discipline to be 

imposed.” Syl. Pt. 2, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 

(2003). 

10. “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; (11) imposition of other 

penalties or sanctions; (12) remorse; and (13) remoteness of prior offenses.” Syl. Pt. 3, 

Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 S.E.2d 550 (2003). 

iv 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

WORKMAN, Justice: 

This is a lawyer disciplinary proceeding brought against Stephen L. Hall 

(hereinafter “Mr. Hall”) by the Office of Disciplinary Counsel (hereinafter “the ODC”) on 

behalf of the Lawyer Disciplinary Board (hereinafter “the Board”). A Hearing Panel 

Subcommittee of the Board (hereinafter “HPS”) determined that Mr. Hall violated Rules 

8.2(a) and 8.4(d) of the West Virginia Rules of Professional Conduct. The Board has 

recommended a three-month suspension of Mr. Hall’s license to practice law, a requirement 

of three additional hours of continuing legal education, and the payment of costs. 

Upon thorough review of the record, briefs, and applicable precedent, this 

Court finds that clear and convincing evidence exists to support the Board’s findings and 

recommended sanctions. This Court therefore imposes the sanctions recommended by the 

Board. 

I. Factual and Procedural History 

Mr. Hall was admitted to The West Virginia State Bar on November 20, 1996. 

He serves as the financial aid officer for the Charleston Academy of Beauty Culture 

(hereinafter “CABC”) and does not regularly practice law. Ms. Tyleemah Edwards and Mr. 

Harry Walter Robinson filed complaints with the West Virginia Human Rights Commission 

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(hereinafter “WVHRC”) asserting that the CABC, Judy Hall, and Cherie Bishop had 

discriminated against them on the basis of race. The CABC is owned and operated by Mr. 

Hall’s mother, Judy Hall. Mr. Hall represented the CABC, Judy Hall, and Cherie Bishop1 

in the proceedings before the WVHRC. 

The complainants in the underlying matter, Ms. Edwards and Mr. Robinson, 

were African-American students of the CABC.2 In their complaints before the WVHRC, 

they alleged racial discrimination, a racially hostile environment, and segregation. Ms. 

Edwards also alleged reprisal and retaliation, allegedly occurring after she had complained 

about racial discrimination. Their cases were consolidated for hearing before the WVHRC. 

The Honorable Phyllis H. Carter (hereinafter “ALJ Carter”) served as Chief 

Administrative Law Judge during the proceedings at issue before the WVHRC. ALJ Carter 

held a public hearing from April 23 to 26, 2007, and issued a Final Decision on May 29, 

2009, finding by a preponderance of evidence that the CABC, Judy Hall, and Cherie Bishop 

had illegally discriminated against the complainants on the basis of their race. The 109-page 

decision included extensive citations to exhibits and the hearing transcript. 

1

Cherie Bishop was an instructor at the CABC.
 

2

Mr. Robinson is now deceased.
 

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On June 29, 2009, Mr. Hall filed a Petition of Appeal with the WVHRC on 

behalf of his clients, the CABC, Judy Hall, and Cherie Bishop.3 A significant portion of the 

appellate brief was devoted to ALJ Carter’s alleged racial bias and predisposition toward the 

complainants’ position, based upon the fact that ALJ Carter was also an African American.4 

Specifically, the Petition of Appeal contained the following statements:5 

Phyllis H. Carter failed to execute her duties as ALJ for the 

HRC in a fair an (sic) impartial manner by, and in direct conflict 

with the Code of Judicial Conduct, exhibiting clear bias and 

having personal knowledge of the matters appearing before her; 

refusing to disclose the same; and ruling against that which she 

personally knew to be false. 

The ALJ based her Decision upon a large number of misstated 

and judicially fabricated facts, as well as misrepresenting and 

lying about the history of the case and the issues involved in the 

case, in direct violation of the case law precedent of the 

Supreme Court of Appeals of the State of West Virginia. 

On May 29th, 2009, Phyllis H. Carter, the ALJ in the present 

cases, did unlawfully purport to exercise the function of a public 

official, employee and tribunal without legal authority to do so 

and with the intent to induce the Respondents to submit to the 

3

According to the record, the underlying matter was Mr. Hall’s first and only 

experience practicing law before ALJ Carter. ALJ Carter is now deceased. 

4

One of Mr. Hall’s primary contentions was that ALJ Carter knew the allegations of 

CABC’s discriminatory practice of steering white students to white customers and black 

students to black customers were false because she had personally visited the CABC and had 

received services from a white student. This Court observes that Mr. Hall could have filed 

a motion to recuse, pursuant to West Virginia 77 C.S.R. 2-7.4.b, if he had believed this issue 

to constitute bias on the part of ALJ Carter. 

5

These statements are excerpts from the 122-page and 124-page petitions filed by Mr. 

Hall with the WVHRC and in the Kanawha County Circuit Court. 

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fraudulent authority of Phyllis H. Carter. . . . Phyllis H. Carter 

impersonated a public official, a clear criminal violation of 

W.Va. Code §61-5-27a(e). Phyllis H. Carter criminally violated 

the law when she caused to be filed, recorded and delivered said 

fraudulent Decision. 

The glaring fact that this presents is not merely that Phyllis 

Carter, (sic) flaunted her disdain for ethical obligations, but that 

knowing the allegations to be false, openly displayed her bias by 

deciding against the Respondents personally knowing the 

allegations to be fraudulent. It is apparent from the context of 

these proceedings that the explanation for Phyllis H. Carter’s 

unethical behavior can only be that the individual Respondents 

are white, while Ms. Carter is black. Counsel can think of no 

other explanation but that Phyllis H. Carter is engaging in the 

most heinous of racial bigotry against the Respondents. 

The ALJ’s Decision explicitly relied on this fraudulent incident 

in finding for the Complainants knowing the incident to be 

fraudulent. The ALJ refused to follow the Rules of Procedure 

even-handedly, but showed favoritism towards the AG’s 

[Attorney General’s] Office even knowing that the testimony 

supporting new allegations was fraudulent, and that the AG’s 

Office had participated in perpetrating the fraud. 

In the Decision, the ALJ lied and stated that counsel for 

Respondent would not accept service of process. 

In an outlandish display of tyrannical inclination, ALJ Carter 

found that Respondents discriminated because they were unable 

to force other companies and trade groups to provide instruction 

and product knowledge at the Respondents’ school. . . . ALJ 

Carter basing her Decision upon the absence of such an 

outlandish forced coercion, as she obviously did, indicates not 

only that ALJ Carter is deluded into thinking that this is a 

Communist country where companies are forced to perform 

services for others, but is under the deluded impression that 

Respondents have the power and authority to compel others to 

do its bidding. For the foregoing reasons, Respondents 

recommend that ALJ Carter seek professional psychiatric help, 

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or be required to attend a forced reeducation camp . . . oops . .
 

. wrong country.
 

The ALJ refers to the child as ‘the only non-white party goer.’
 

The child was allegedly, according to Complainant Edwards,
 

mixed. That the ALJ ascribes racist motives to Respondent
 

Bishop and pointedly denies the child’s white heritage speaks
 

more of the ALJ’s racism than Respondents. (sic)
 

ALJ Carter relies on her absolute unquestionable power as sole
 

determinant of who is to be given the halo of credibility.
 

Apparently this practice is routine for the HRC, the AG’s Office
 

and ALJ Carter as the ubiquitous appearance of the word
 

credible, or variations thereof, attests.
 

These are plainly stupid reasons for the ALJ to ignore Ms.
 

Davis’ testimony, and more reflection upon Phyllis Carter’s
 

bias.
 

Corroboration is only important to ALJ Carter if it favors her
 

predetermined outcome of the case.
 

Former Chief ALJ Carter states numerous lies and falsehoods in
 

her Decision, which, while not by themselves constituting a
 

legal error, demonstrate the pervasiveness of the ALJ’s bias,
 

disdain for the facts and lack of judicial temperament.
 

This appeal could go on and on concerning the seemingly
 

perpetual lies and misrepresentations by ALJ Carter about the
 

actual evidence in the present cases.
 

The WVHRC affirmed ALJ Carter’s Final Decision and incorporated by
 

reference the factual findings and conclusions of law set forth by ALJ Carter into a Final 

Order of the agency. Mr. Hall thereafter filed an appeal on behalf of his clients with the 

Circuit Court of Kanawha County on October 8, 2009. In that appeal, Mr. Hall included the 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

same statements about ALJ Carter that he had made in the prior appeal, as quoted above. On 

August 8, 2011, the Circuit Court of Kanawha County affirmed the WVHRC decision. This 

Court affirmed the circuit court on May 25, 2012. See Charleston Academy of Beauty 

Culture, Inc. v. West Virginia Human Rights Comm’n, No. 11-1286, 2012 WL 3129142 

(W.Va. May 25, 2012) (Memorandum Decision). 

Based on Mr. Hall’s statements concerning ALJ Carter in his petitions for 

appeal, the ODC charged Mr. Hall with violating Rule 8.2(a), 8.4(c), and Rule 8.4(d) of the 

West Virginia Rules of Professional Conduct. Rule 8.2(a) provides: “A lawyer shall not 

make a statement that the lawyer knows to be false or with reckless disregard as to its truth 

of falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public 

legal officer, or of a candidate for election or appointment to judicial or legal office.” Rule 

8.4 provides that “[i]t is professional misconduct for a lawyer to . . . (c) engage in conduct 

involving dishonesty, fraud, deceit, or misrepresentation; (d) engage in conduct that is 

prejudicial to the administration of justice.” A Statement of Charges was issued against Mr. 

Hall and filed with this Court on February 26, 2013.6 Mr. Hall was served with the Statement 

of Charges on February 27, 2013, and he filed a timely response on March 25, 2013. 

6

The Investigative Panel of the Board issued a written admonishment on December 

14, 2012. By letter dated December 28, 2012, Mr. Hall objected to the issuance of the 

admonishment. 

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A hearing was held by the HPS on September 26, 2013. The HPS heard 

testimony from ALJ Carter, attorney Paul Sheridan,7 and Mr. Hall. On March 13, 2014, the 

HPS issued its decision, and the Report and Recommendation of the HPS was filed with this 

Court on March 26, 2014. The HPS found clear and convincing evidence that Mr. Hall 

violated Rules 8.2(a) and 8.4(d) of the West Virginia Rules of Professional Conduct. 

Specifically, the HPS found that Mr. Hall made statements with reckless disregard as to truth 

or falsity concerning the integrity of a judicial officer, in violation of Rule 8.2(a) of the Rules 

of Professional Conduct. Further, the HPS found that Mr. Hall engaged in conduct that is 

prejudicial to the administration of justice, in violation of Rule 8.4(d).8 

The HPS recommended that Mr. Hall’s law license be suspended for a period 

of three months; that Mr. Hall be ordered to complete an additional three hours of continuing 

legal education during the 2014-2016 reporting period, specifically in ethics, over and above 

that already required; and that Mr. Hall be ordered to reimburse the Board the costs of the 

proceedings pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure. 

7

Paul Sheridan testified that he served as an assistant attorney general in the civil 

rights division from 1990 to 2013. He represented the WVHRC in the underlying matter 

wherein Mr. Hall’s clients were adverse parties. According to Mr. Sheridan, ALJ Carter’s 

Final Decision did not contain any lies or misrepresentations. 

8

The HPS did not find that Mr. Hall’s statements constituted fraud, dishonesty, deceit 

or misrepresentation and consequently recommended the dismissal of the charged violation 

of Rule 8.4(c). 

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On April 15, 2014, Mr. Hall filed an “Objection made pursuant to Rule 3.11 

of the Rules of Lawyer Disciplinary Procedure.” By Order entered April 17, 2014, this Court 

ordered the parties to submit written briefs. Oral argument was heard on September 3, 2014. 

II. Standard of Review 

In Committee on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 

(1994), this Court addressed the applicable standard of review in lawyer disciplinary cases. 

Syllabus point three of McCorkle provides: 

A de novo standard applies to a review of the 

adjudicatory record made before the [Lawyer Disciplinary 

Board] as to questions of law, questions of application of the 

law to the facts, and questions of appropriate sanctions; this 

Court gives respectful consideration to the [Board’s] 

recommendations while ultimately exercising its own 

independent judgment. On the other hand, substantial deference 

is given to the [Board’s] findings of fact, unless such findings 

are not supported byreliable, probative, and substantial evidence 

on the whole record. 

Id. at 289, 452 S.E.2d at 380; see also In re L.E.C., 171 W.Va. 670, 672, 301 S.E.2d 627, 629 

(1983) (finding that absent mistake of law or arbitrary factual assessment, recommended 

sanctions in lawyer disciplinary matters are given substantial consideration). 

The standard of review enunciated above is consistent with this Court’s 

ultimate authority on issues of legal ethics. Syllabus point three of Committee on Legal 

Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984), provides that “‘[t]his Court is the 

8
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

final arbiter of legal ethics problems and must make the ultimate decisions about public 

reprimands, suspensions or annulments of attorneys’ licenses to practice law.” This Court 

is also mindful that, pursuant to Rule 3.7 of the Rules of Lawyer Disciplinary Procedure, 

“the allegations of the formal charge must be proved by clear and convincing evidence.” 

With these standards as guidance, we address the issues raised in this matter. 

III. Discussion 

A. Applicability of Rule 8.2(a) to Administrative Law Judges 

In response to the Board’s recommended sanctions, Mr. Hall contends that ALJ 

Carter was not an “adjudicatory officer” as contemplated by Rule 8.2(a). The rule, as quoted 

above, provides that “[a] lawyer shall not make a statement that the lawyer knows to be false 

or with reckless disregard as to its truth of falsity concerning the qualifications or integrity 

of a judge, adjudicatory officer or public legal officer, or of a candidate for election or 

appointment to judicial or legal office.” (Emphasis supplied). In analyzing the applicability 

of that rule to the present situation, the HPS found that ALJ Carter was an “adjudicatory 

officer” as contemplated by the rule. As the HPS observed, an administrative law judge is 

authorized by statute to conduct hearings, determine legal and factual questions, and render 

final decisions within the context of proceedings pursuant to the West Virginia Human 

Rights Act. See W.Va. Code § 5-11-8(d)(3) (2013). The rule does not exclude any particular 

types of judges or adjudicatory officers, and the comment to the rule specifically references 

9
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the attorney general, prosecuting attorney, and public defender as examples of legal officials 

to which the rule applies. 

While Mr. Hall contends that Rule 8.2 prohibits false or reckless statements 

only against elected or appointed judicial officers, we find such argument meritless. He 

presents no legal authority for his assertions, and his perception that only elected or 

appointed judicial officers are entitled to the protections of Rule 8.2 is unfounded. While 

there is no direct precedent in this state, other jurisdictions have disciplined attorneys for 

violations of rules concerning statements made by attorneys about administrative law judges. 

In The Florida Bar v. Ray, 797 So.2d 556 (Fla. 2001), cert. denied, 535 U.S. 930 (2002), for 

instance, an attorney was disciplined for violating Florida Rule of Professional Conduct 

4-8.2(a), identical to our Rule 8.2(a), based upon statements made regarding an 

administrative law judge in the United States Executive Office for Immigration Review. It 

is undisputed that ALJ Carter possessed explicit authority to adjudicate cases before the 

WVHRC, and this Court finds that the HPC was correct to hold that ALJ Carter was an 

adjudicatory officer, as contemplated by Rule 8.2(a). This Court holds that administrative 

law judges are adjudicatory officers within the meaning of Rule 8.2(a) of the West Virginia 

Rules of Professional Conduct. 

B. Applicability of Rule 8.2 to Statements Made in Legal Writings 

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Mr. Hall also contends that Rule 8.2(a) should not apply to his statements 

because they were made in the context of a written legal appeal. The HPS rejected this 

argument, noting that Mr. Hall failed to cite to any authority consistent with his position. 

The HPS relied upon this Court’s holding in Lawyer Disciplinary Board v. Turgeon, 210 

W.Va. 181, 557 S.E.2d 235 (2000), in which this Court found a violation of Rule 8.2(a) for 

statements made by an attorney in a motion to recuse. Other jurisdictions have disciplined 

attorneys for making statements in pleadings impugning the integrity of judges. See The 

Florida Bar v. Kleinfeld, 648 So.2d 698 (Fla. 1994); In re Cobb, 838 N.E.2d 1197 (Mass. 

2005); Smith v. Pace, 313 S.W.3d 124 (Mo. 2010); Board of Prof. Resp. v. Davidson, 205 

P.3d 1008 (Wyo. 2009). In Kentucky Bar Association v. Waller, 929 S.W.2d 181 (Ky. 1996), 

an attorney was suspended for six months for calling a judge a “lying incompetent a[–]hole” 

in a document entitled “Legal Authorities Supporting the Motion to Dismiss.” Id. at 181. 

The reviewing court stated: 

There can never be a justification for a lawyer to use such 

scurrilous language with respect to a judge in pleadings or in 

open court. The reason is not that the judge is of such delicate 

sensibilities as to be unable to withstand the comment, but rather 

that such language promotes disrespect for the law and for the 

judicial system. 

Id. at 183 (emphasis supplied). Based upon the precedent of this Court and other 

jurisdictions, we find that the HPS correctly concluded that Rule 8.2(a) applies to pleadings 

filed by lawyers. 

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C. An Attorney’s Freedom of Speech and the Appropriate Standard for Determining
 

Violations of Rule 8.2(a) of the West Virginia Rules of Professional Conduct
 

Mr. Hall also raises an issue regarding his freedom of speech, contending that 

the First Amendment to the United States Constitution permits him to express his opinions 

without fear of sanction through the West Virginia Rules of Professional Conduct. The HPS 

rejected Mr. Hall’s argument that his right to freedom of speech prohibits the imposition of 

sanctions under Rule 8.2(a). The HPS references this Court’s holding in syllabus point one 

of Committee on Legal Ethics v. Douglas, 179 W.Va. 490, 370 S.E.2d 325 (1988), in which 

this Court explained that although the First Amendment permits criticism of judges, such 

protection is not absolute. 

The Free Speech Clause of the First Amendment protects 

a lawyer’s criticism of the legal system and its judges, but this 

protection is not absolute. A lawyer’s speech that presents a 

serious and imminent threat to the fairness and integrity of the 

judicial system is not protected. When a personal attack is made 

upon a judge or other court official, such speech is not protected 

if it consists of knowingly false statements or false statements 

made with a reckless disregard of the truth. Finally, statements 

that are outside of any community concern, and are merely 

designed to ridicule or exhibit contumacy toward the legal 

system, may not enjoy First Amendment protection. 

179 W.Va. at 490-91, 370 S.E.2d at 325-26. 

This Court, however, has not previously had the opportunity to consider the 

appropriate standard for determining whether statements by an attorney regarding a judicial 

officer enjoy constitutional protection. Recognizing an absence of precedent in this state 

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on the precise standard to be employed, the HPS sought guidance from the methods utilized 

in other jurisdictions and ultimately applied the standard of whether there is an objectively 

reasonable factual basis for the statements made by the attorney. The Supreme Judicial Court 

of Massachusetts engaged in an illuminating discussion of this issue when it addressed the 

“question of the standard to be applied in disciplinary proceedings where an attorney invokes 

the First Amendment protection of free speech when defending against charges that he 

impugned the integrity of a judge, without basis, during a pending case.” Cobb, 838 N.E.2d 

at 1211. The Cobb court noted that at least three states9 have held that an actual malice 

standard, such as that utilized in a defamation action regarding a public official, should be 

employed in the attorney discipline setting. Id.; see New York Times Co. v. Sullivan, 376 

U.S. 254, 279-81 (1964) (holding, in defamation context, that First Amendment protects 

speech regarding a public official unless made with actual malice). The Cobb court further 

explained, however, that a majority of jurisdictions have concluded that the interests sought 

to be protected by the attorney disciplinary system require a less stringent standard than the 

actual malice standard. 838 N.E.2d at 1212; see also Standing Comm. on Discipline v. 

Yagman, 55 F.3d 1430, 1437 n.12 (9th Cir. 1995); Office of Disciplinary Counsel v. Gardner, 

793 N.E.2d 425, 431 (Ohio 2003). The majority of state courts that have considered the issue 

of appropriate discipline for an attorney criticizing a judge have determined that “the 

9

See Matter of Green, 11 P.3d 1078, 1084 (Colo. 2000); Oklahoma Bar Ass’n v. 

Porter, 766 P.2d 958, 969 (Okla.1988); Ramsey v. Board of Prof. Resp., 771 S.W.2d 116, 

121-22 (Tenn.), cert. denied, 493 U.S. 917 (1989). 

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standard is whether the attorney had an objectively reasonable basis for making the 

statements.” Cobb, 838 N.E.2d at 1212.10 

The rationale for employing the objectivelyreasonable standard rather than the 

actual malice test of New York Times was also persuasively explained by the Minnesota 

Supreme Court in In re Disciplinary Action Against Graham, 453 N.W.2d 313 (Minn.1990). 

The court stated: 

This court certifies attorneys for practice to protect the public 

and the administration of justice. That certification implies that 

the individual admitted to practice law exhibits a sound capacity 

for judgment. Where an attorney criticizes the bench and bar, 

the issue is not simply whether the criticized individual has been 

harmed, but rather whether the criticism impugning the integrity 

of judge or legal officer adversely affects the administration of 

justice and adverselyreflects on the accuser’s capacityfor sound 

judgment. An attorney who makes critical statements regarding 

10See also U.S. Dist. Court for the E. Dist. of Washington v. Sandlin, 12 F.3d 961 (9th 

Cir. 1993) (applied objective standard to attorney disciplinary proceedings, requiring court 

to determine “what the reasonable attorney, considered in light of all his professional 

functions, would do in the same or similar circumstances[.]”); Mississippi Bar v. Lumumba, 

912 So.2d 871 (Miss. 2005) (attorney had no “objectively reasonable factual basis” for 

making statements impugning judge’s integrity and qualifications); Office of Disciplinary 

Counsel v. Price, 732 A.2d 599 (Pa. 1999) (found violation where attorney relied upon 

rumors, innuendo, and perceptions rather than conducting reasonably diligent inquiry); In re 

Disciplinary Proceedings Against Sommers, 811 N.W.2d 387 (Wis. 2012) (finding violation 

where record devoid of credible evidence to support attorney’s statements regarding judge’s 

credibility). Generally, these cases have involved the application of a rule similar or identical 

to Rule 8.2 in West Virginia. See, e.g., Idaho State Bar v. Topp, 925 P.2d 1113 (Idaho 1996), 

cert. denied, 520 U.S. 1155 (1997); In re Frerichs, 238 N.W.2d 764 (Iowa 1976); In re 

Westfall, 808 S.W.2d 829 (Mo.), cert. denied, 502 U.S. 1009 (1991); In re Holtzman, 577 

N.E.2d 30 (NY), cert. denied, 502 U.S. 1009 (1991). 

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judges and legal officers with reckless disregard as to their truth 

or falsity and who brings frivolous actions against members of 

the bench and bar exhibits a lack of judgment that conflicts with 

his or her position as “an officer of the legal system and a public 

citizen having special responsibility for the quality of justice.” 

. . . . 

Because of the interest in protecting the public, the 

administration of justice and the profession, a purely subjective 

standard is inappropriate. The standard applied must reflect that 

level of competence, of sense of responsibility to the legal 

system, of understanding of legal rights and of legal procedures 

to be used only for legitimate purposes and not to harass or 

intimidate others, that is essential to the character of an attorney 

practicing in Minnesota. Thus, we hold that the standard must be 

an objective one dependent on what the reasonable attorney, 

considered in light of all his professional functions, would do in 

the same or similar circumstances. 

Id. at N.W.2d at 322 (quoting Minn. R. Prof’l Conduct, Preamble). 

This majority approach was also succinctly articulated in In re Terry, 394 

N.E.2d 94 (Ind. 1979), cert. denied sub nom. Terry v. Indiana Supreme Court Disciplinary 

Comm’n, 444 U.S. 1077 (1980), as follows: 

The Respondent is charged with professional misconduct, not 

defamation. The societal interests protected by these two bodies 

of law are not identical. Defamation is a wrong directed against 

an individual and the remedy is a personal redress of this wrong. 

On the other hand, the Code of Professional Responsibility 

encompasses a much broader spectrum of protection. 

Professional misconduct, although it may directly affect an 

individual, is not punished for the benefit of the affected person; 

the wrong is against society as a whole, the preservation of a 

fair, impartial judicial system, and the system of justice as it has 

evolved for generations. . . . Unwarranted public suggestion by 

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an attorney that a judicial officer is motivated by criminal 

purposes and considerations does nothing but weaken and erode 

the public’s confidence in an impartial adjudicatory process. 

394 N.E.2d at 95-96. 

As the Cobb court accurately perceived, judges are not immune from criticism, 

and an attorney’s rights to freedom of speech are not eviscerated by rules of professional 

conduct such as Rule 8.2(a). 838 N.E.2d at 1214. An attorney “may make statements critical 

of a judge . . . [and] may even be mistaken. What is required by the rules of professional 

conduct is that he have a reasonable factual basis for making such statements before he 

makes them.” Id. While this requirement may arguably “be inconsistent with the manner in 

which one generally may engage in free and public debate in our society, . . . it is essential 

to the orderly and judicious presentation of cases in a court room.” Id. 

Decisions made in the forum of public debate, unlike those 

made in the court room, are not constrained by principles of due 

process and the rule of law, or by the application of logic and 

common sense to objective facts dispassionately determined 

from competent and relevant evidence. When an attorney 

speaks in a court room, he is not seeking political converts 

whose vote properly may be cast without regard to motive or 

basis. Rather, he seeks to persuade an impartial judicial officer 

to direct the force of government against a particular third 

person. If the judicial system is to operate fairly, rationally, and 

impartially, as it must, and if the administration of justice is to 

proceed in an orderly manner, judges and attorneys alike must 

act with responsibility toward these principles. Attorneys must 

conduct themselves conformably with the legal and ethical 

requirements that their factual assertions in the court room that 

are critical of judges have an objective basis. 

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Id. The Cobb court identified the significant State interests of “protecting the public, the 

administration of justice, and the legal profession” as compelling factors in the use of the 

objectively reasonable standard in attorney discipline matters. Id.

11 

As the Court of Appeals of New York observed in Matter of Holtzman, 577 

N.E.2d 30 (N.Y. 1991), employing the actual malice standard “would immunize all 

accusations, however reckless or irresponsible, from censure as long as the attorney uttering 

them did not actually entertain serious doubts as to their truth.” Id. at 34. “A system that 

permits an attorney without objective basis to challenge the integrity, and thereby the 

authority, of a judge presiding over a case elevates brazen and irresponsible conduct above 

competence and diligence, hallmarks of professional conduct.” Cobb, 838 N.E.2d at 1214. 

Upon evaluation of the methodology of other jurisdictions, as outlined above, 

we find that the rationale underlying the application of an objectively reasonable standard in 

cases involving criticism of judicial officers is sound and persuasive. We consequently hold 

that within the context of assessing an alleged violation of Rule 8.2(a) of the West Virginia 

Rules of Professional Conduct, a statement by an attorney that such attorney knows to be 

false or with reckless disregard as to its truth or falsity concerning the qualifications or 

11As recognized in Yagman, prohibiting false or reckless accusations of judicial 

misconduct is not intended “to shield judges from unpleasant or offensive criticism, but to 

preserve the public confidence in the fairness and impartiality of our system of justice.” 55 

F.3d at 1437. 

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integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election 

or appointment to judicial or legal office is not protected by the First Amendment as public 

speech on a matter of public concern where such statement is not supported by an objectively 

reasonable factual basis. The State’s interest in protecting the public, the administration of 

justice, and the legal profession supports use of the objectively reasonable standard in 

attorney discipline proceedings involving disparagement of the credibility of the 

aforementioned judicial officers. 

Employing the objectively reasonable standard in considering whether Mr. 

Hall’s statements concerning ALJ Carter are sanctionable, the HPS exhaustively evaluated 

every statement made by Mr. Hall concerning the integrity of ALJ Carter. The HPS found 

clear and convincing evidence that Mr. Hall had made the statements with reckless disregard 

of their truth or falsity. The HPS further found, by clear and convincing evidence, that Mr. 

Hall made these statements disparaging the integrity of ALJ Carter without an objectively 

reasonable factual basis for such statements. Specifically, the HPS found that the following 

statements by Mr. Hall lacked an objectively reasonable factual basis: ALJ Carter failed to 

be fair and impartial; she exhibited clear bias; she had personal knowledge of the matters 

before her; she lied, misrepresented, misstated, and fabricated facts about the history of the 

case; and she personally knew that the allegations of discrimination were false. Likewise, 

the HPS found no objectively reasonable factual basis for Mr. Hall’s statements that ALJ 

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Carter was unethical; that her finding that CABC had engaged in steering customers based 

upon race could only be explained because “the individual Respondents are white, while Ms. 

Carter is black[;]” and that ALJ Carter had engaged “in the most heinous of racial bigotry[.]” 

The evidence in this case satisfied the clear and convincing standard as 

required by the Rules of Lawyer Disciplinary Procedure. Mr. Hall’s conduct violated Rule 

8.2(a) because the statements made by Mr. Hall in legal pleadings were unsubstantiated, 

made with a reckless disregard as to their truth or falsity, and impugned the integrity of a 

presiding adjudicatory officer. Mr. Hall’s conduct also violated Rule 8.4(d) by engaging “in 

conduct that is prejudicial to the administration of justice.” His statements threatened the 

integrity and fairness of the judicial system, were knowingly false or made with reckless 

disregard of the truth, and were designed to ridicule or exhibit contumacy toward the legal 

system. As referenced above, an attorney’s inflammatory, unprofessional, and disrespectful 

comments concerning the integrity of a judicial officer, without any objectively reasonable 

basis for such statements, cannot be tolerated and constitute a clear violation of Rule 8.4(d). 

Mr. Hall’s conduct unquestionably promoted disrespect for the legal system and clearly 

impugned the integrity of a judicial officer. Mr. Hall indicated that his comments were all 

made in good faith, that hyperbole was appropriate to “express a sense of outrage,” and that 

calling ALJ Carter’s psychiatric well-being into question was a valid argument. We 

vehemently disagree. Mr. Hall’s vitriolic tirade was replete with accusations that had no 

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objectively reasonable basis, and his comments reflected poorly upon the entire legal 

profession. 

D. Imposition of Sanctions 

This Court has consistently stated that “[a]ttorney disciplinary proceedings are 

not designed solely to punish the attorney, but rather to protect the public, to reassure it as 

to the reliability and integrity of attorneys and to safeguard its interest in the administration 

of justice.” Lawyer Disciplinary Bd. v. Taylor, 192 W.Va. 139, 144, 451 S.E.2d 440, 445 

(1994). In syllabus point three 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. 

As articulated in In re Brown, 166 W.Va. 226, 273 S.E.2d 567 (1980), attorneys are held to 

an elevated standard of behavior, and this Court has consistently expressed the requirement 

of adherence to strict ethical standards in the practice of law. As the Brown court stated: 

Woven throughout our disciplinary cases involving attorneys is 

the thought that they occupy a special position because they are 

actively involved in administering the legal system whose 

ultimate goal is the evenhanded administration of justice. 

Integrity and honor are critical components of a lawyer’s 

character as are a sense of duty and fairness. Because the legal 

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system embraces the whole of society, the public has a vital 

expectation that it will be properly administered. From this 

expectancy arises the concept of preserving public confidence 

in the administration of justice by disciplining those lawyers 

who fail to conform to professional standards. 

Id. at 232-33, 273 S.E.2d at 570. 

In assessing sanctions recommended by the Board, this Court stated as follows 

in syllabus point four of Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 

513 S.E.2d 722 (1998): 

Rule 3.16 of the West Virginia Rules of Lawyer 

Disciplinary Procedure enumerates factors to be considered in 

imposing sanctions and provides as follows: “In imposing a 

sanction after a finding of lawyer misconduct, unless otherwise 

provided in these rules, the Court [West Virginia Supreme Court 

of Appeals] or Board [Lawyer Disciplinary Board] shall 

consider the following factors: (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 of the 

actual or potential injury caused by the lawyer’s misconduct; 

and (4) the existence of any aggravating or mitigating factors. 

In addressing the first factor identified above, this Court finds that the HPS 

properly concluded that Mr. Hall violated duties to his client, to the public, to the legal 

system, and to the profession. An attorney is obligated to present the most effective 

argument for his client within the Rules of Professional Conduct and to pursue his client’s 

interests in a lawful manner. Attorneys are encouraged to present zealous advocacy and to 

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pursue all available avenues of relief on the client’s behalf. Dissatisfaction with adverse 

rulings, however, does not justify unwarranted attacks upon the credibility and personal 

values of the adjudicatory officer. Such irresponsible behavior is injurious to the client’s 

interests and to the attorney’s obligation to the legal system. 

The HPS also properly ruled upon the second factor under the Rule 3.16 

analysis. Mr. Hall acted intentionally and knowingly; his violations were made in writing 

after deliberation. Moreover, he presented his statements in two separate appeals and has 

remained steadfast in his assertion that his statements regarding ALJ Carter were justified. 

The third factor, an assessment of the degree of actual or potential injury 

caused by the misconduct, was also thoroughly analyzed by the HPS. Reckless statements 

regarding the integrity of a presiding judicial officer, such as those made by Mr. Hall, serve 

to significantlyundermine the integrityand public confidence in the administration of justice. 

Such statements diminish the public’s confidence in a fair and impartial administration of 

justice. Mr. Hall also imposed an intangible injury upon ALJ Carter, through the attacks 

upon her judicial integrity and her fitness for her position. 

The existence of aggravating or mitigating factors is the final consideration 

under Rule 3.16. This Court has held that “[a]ggravating factors in a lawyer disciplinary 

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

discipline to be imposed.” Syl. Pt. 4, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 209, 579 

S.E.2d 550 (2003). This Court agrees with the HPS finding that Mr. Hall’s repetition of the 

same comments in the Petition of Appeal to the WVHRC and the appeal to the Circuit Court 

of Kanawha County was an aggravating factor. The HPS also noted that Mr. Hall’s 

continued assertion of the accusations against ALJ Carter in the disciplinary hearing 

demonstrates his lack of understanding of the effects of his reckless disregard for the truth 

upon the integrity of the judicial system. 

Mitigating factors were also considered by the HPS. In syllabus point two of 

Scott, this Court held that “[m]itigating factors in a lawyer disciplinary proceeding are any 

considerations or factors that may justify a reduction in the degree of discipline to be 

imposed.” 213 W.Va. at 209, 579 S.E.2d at 550. In syllabus point three of Scott, we further 

explained: 

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; 

(11) imposition of other penalties or sanctions; (12) remorse; 

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and (13) remoteness of prior offenses. 

Id. at 210, 579 S.E.2d at 551. The HPS found that the following mitigating factors were 

present in this case: absence of a prior disciplinary record for Mr. Hall, cooperative attitude 

toward proceedings, and inexperience in the practice of law. This Court agrees with the HPS 

findings regarding mitigating circumstances, and our analysis of the four factors set forth in 

Rule 3.16 compels the conclusion that the sanctions recommended by the Board are proper 

and accomplish the primary goals of our disciplinary proceedings by punishing Mr. Hall, 

serving as a deterrent to other attorneys, and ensuring public confidence in the ethical 

standards of the legal profession. 

IV. Conclusion 

Based upon the foregoing, this Court adopts the recommendation of the Board 

and imposes the following sanctions: Mr. Hall’s license to practice law shall be suspended 

for a period of three months; Mr. Hall shall be ordered to complete an additional three hours 

of continuing legal education during the 2014-2016 reporting period, specifically in the area 

of ethics, over and above that already required; and Mr. Hall shall be ordered to reimburse 

the Board for costs of these disciplinary proceedings, pursuant to Rule 3.15 of the Rules of 

Lawyer Disciplinary Procedure. 

Law License Suspended and Other Sanctions. 

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