CHARLESTON — A former candidate for House of Delegates from the 22nd District has had her law license suspended for two years.
The State Supreme Court of Appeals late Thursday afternoon upheld a part of the recommendation by the Hearing Panel Subcommittee of the West Virginia Lawyer Disciplinary Board that the law license of Wendolyn A. Elswick be suspended.
The subcommittee had recommended that Elswick’s license be suspended for three years but the Court ruled that mitigating circumstances should reduce the term to two. The subcommittee had earlier found that “clear and convincing evidence” caused the committee to believe allegations made regarding Elswick’s violation of the West Virginia Rules of Professional Conduct. Elswick disputed those findings and argued that she be permitted to keep her law license at a September 11 hearing in Charleston. She was represented before the court by Charleston lawyer Lonnie Simmons.
The Court upheld additional sanctions recommended by the Disciplinary Board as well.
When Lincoln County Democrat Josh Stowers resigned his seat as a member of the House of Delegates two months ago, Elswick was one of three candidates recommended to Governor Earl Ray Tomblin as Stowers’ replacement. Elswick, the wife of Lincoln County Family Court Judge Scott Elswick, did not disclose her legal problems to the District Democrat Executive Committee that nominated her. Within hours of the nomination, Elswick and/or her husband apparently telephoned the Governor’s Office to ask that her name be withdrawn.
Some had complained that Scott Elswick campaigned for his wife’s nomination, in apparent violation of ethics standards for judges. Scott Elswick said at the time that the ethics rules were “somewhat relaxed.”
Until now, Wendy Elswick has remained on the staff of State Attorney General Patrick Morrisey. A Morrisey spokesperson could not be reached Thursday evening and did not immediately return phone messages. Earlier, before the Supreme Court decision was announced, the spokesperson had said the Attorney General would wait until a final outcome of the matter became clear.
The allegations against Elswick center upon her representation of Dana December Smith while Elswick was employed in the office of the Kanawha County Public Defender. Elswick was assigned to work on the case in February 2004.
Elswick began looking into Smith’s assertion of newly-discovered evidence that Tommy Lee Sells, a Texas death row inmate, had confessed to the murder of the two women for which Smith had been convicted.
The lawyer received permission to speak with Sells on death row and allegations have been made that she developed a romantic relationship with the inmate. Regardless, the Court has now ruled that Elswick failed to provide proper representation to Smith and actually jeopardized his appeal by her relationship and misreporting of interviews with Sells.
Ultimately, Sells and Elswick exchanged approximately 60 letters. “The letters by Sells were rambling and often contained obscenities,” the Court wrote. “In her responses, Elswick encouraged Sells’ drawing and poetry writing. Elswick’s responses, however, tended to be on a personal rather than a professional level and could be viewed as promoting a ‘pen pal’ relationship with Sells. In some instances, Elswick provided Sells with details of her private and professional life.”
Elswick maintains that she engaged in the letter-writing with Sells on a personal level after being encouraged to do so by Texas authorities who told her that if she could maintain rapport with Sells, she might get additional information from him.
Elswick was relieved of the case at her request in 2005. She continued to insist, according to the Court, that Sells and Smith did not know each other although notes taken by both Elswick and Jane Brumfield of the Public Defender’s Office revealed that they did. On January 31, 2006, Elswick resigned from the Public Defender’s Office.
Public Defender Director George Castelle actually filed the initial ethics complaint against Elswick when he discovered files that contained notes showing that Smith and Sells did, in fact, know each other. Castelle also found the lengthy series of letters between Elswick and the inmate.
Although Sells did confess to the murder for which Smith had been convicted, he recanted that confession after Elswick severed her relationship with him, the Court ruled.
The mitigating factors used to reduce the time of Elswick’s suspension included: lack of previous legal ethics violations; cooperative attitude toward Disciplinary Council; youth and inexperience in the practice of law; evidence of good character and reputation; and expression of remorse.
The Court ruled that prior to being reinstated to practice law, Elswick must be evaluated by a licensed mental health provider and follow any protocol, if any, as directed by the mental health provider. In addition, Elswick is required to complete 12 hours of Continuing Legal Education with a focus on ethics prior to being reinstated. The lawyer will also have to pay the cost of the proceedings against her.
Scott Elswick serves as Family Court Judge in the district that includes Lincoln and Boone counties. He is a former Boone County resident. The 22nd Delegate District includes parts of Boone, Logan, Lincoln and Putnam counties.
— Ron Gregory can be reached at firstname.lastname@example.org