CHARLESTON, W.Va. — Logan Circuit Judge Eric O’Briant has received a public reprimand from the state Judicial Investigation Commission for allowing the cousin of his son-in-law to handle cases in magistrate court without a license.
The commission filed its decision in a 7-0 decision on July 5, following a complaint that was issued by state Senator Richard Ojeda, a Democrat from Logan County who has a history of animosity with O’Briant and his family.
The ruling, signed by Judicial Investigation Commission chairman Ronald Wilson, who is a circuit judge in Hancock County, says Judge O’Briant should have known better.
The commission concluded that O’Briant was outside the bounds in several areas of the code of judicial conduct.
“The commission further determined that formal discipline was not appropriate under the circumstances. However, the commission found the violations were serious enough to warrant a public admonishment.”
MORE: Read the admonishment of Judge O’Briant.
Both O’Briant’s judgment and, to a lesser degree, his family relationships came under scrutiny within the context of the Logan County legal system:
O’Briant has been a circuit judge in Logan County since 1987.
His daughter is Shana O’Briant Thompson, an assistant prosecutor in Logan County.
Her husband’s first cousin is Joshua T. Thompson, who had graduated from law school in 2016 at the University of Connecticut but had not yet passed the bar when he wound up providing legal services in Logan Magistrate Court.
The Code of Judicial Conduct gives pretty broad status to nepotism, as indicated in the footnotes of the public reprimand. Nepotism is defined as ‘the appointment or hiring of any relative within the third degree of relationship of either the judge or the judge’s spouse or domestic partner or the spouse or domestic partner of such a relative.
Although the definition of third-degree relationship includes almost everything — including grandparent, uncle, aunt, brother, sister, child, grandchild, great grandchild, nephew and niece — it does not include cousins.
So even though there was a family relationship, what wound getting Judge O’Briant in trouble was whether he should have signed off on anyone without a law license representing clients.
Thompson was still planning to take the bar exam this July and had been working as a paralegal since late 2016 at the Logan County law firm of Wolfe, White and Associates, which specializes in personal injury and criminal defense, among other legal services.
Last September, Judge O’Briant signed off on an order giving Thompson permission to “appear and advocate for clients of Wolfe, White and Associates before the Magistrate of Logan County.”
Later, after an investigation was launched, O’Briant stated the whole situation started when he was approached in late August or September 2016 by one of the lawyers at the firm, Steven Wolfe.
“I told Mr. Wolfe that if he, meaning his firm, and Mr. Thompson wanted to have Mr. Thompson appear on behalf of ‘court appointed lawyer’ cases in magistrate court, Mr. Wolfe would have to obtain permission of the West Virginia Supreme Court of Appeals,” the judge recalled in a letter.
Thompson actually wrote the judge’s order, Wolfe reviewed it, and the judge signed it, according to the Judicial Investigation Commission.
The judge wrote: “I believed Mr. Thompson had obtained the limited permission of the West Virginia Supreme Court of Appeals pursuant to Rule 10.0, and I signed the order and gave it to Mr. Wolfe to file in the circuit clerk’s office.
“I told him at the time that either he or Mr. White would have to personally be present in the courtroom to appear with Mr. Thompson if Mr. Thompson was appearing on behalf of a client.”
The Judicial Investigation Commission, in the footnotes of its admonishment, notes that Wolfe, White and Thompson denied in sworn statements that they ever discussed with O’Briant the parameters under which Thompson could practice in magistrate court.
The order the judge signed noted that Thompson had earned his law degree but had not yet passed the bar. As the commission noted, Rule 10 of the Rules of Admission is applicable only to students who are still in law school or who have graduated within the prior six months.
As the Judicial Investigation Commission mentions in the footnotes of its admonishment, Thompson took the bar exam in North Carolina in July 2016 and February 2017. His intention to take the West Virginia Bar exam this July would have been 14 months after his graduation from law school.
In the order he signed, Judge O’Briant said his authority came from the state Constitution and state code. The Judicial Investigation Commission disputes that those legal sources provide such authority to state judges.
The commission cited a related 1981 state Supreme Court case, Frieson vs. Isner, that dealt with issues of unauthorized legal representation. “This section does not purport to authorize laymen to represent parties in magistrate court on a regular basis or to engage in such activity as a business or for pay.”
Nevertheless, Thompson spent the three months after the order was signed representing defendants in criminal cases in Logan magistrate court, according to the Judicial Investigation Commission. In most cases, Wolfe, one of the namesakes of the firm, was present.
But on at least two occasions, according to the commission, Thompson appeared in court by himself and represented defendants in plea hearings. Thompson also signed pleadings as an attorney, including — twice — motions to continue criminal cases.
WOWK-TV earlier this year interviewed one of the defendants.
“He said no my name is Josh Thompson I will be representing you. Told me he had my case continued and I had no clue I even had a court date. I feel like I was set up for failure from the beginning,” defendant Beth Earnest told the television station.
“I was just shocked. I felt like I was violated. How do you even be defended by somebody that isn’t even a lawyer. I’m going to be accused of something and he had no right to represent me.”
That Dec. 5, the counsel for the Judicial Investigation Commission, Teresa Tarr, called Judge O’Briant on the telephone and stated her belief that his order from two months earlier allowing Thompson to represent defendants in court was improper.
The conversation is discussed in the footnotes of the public reprimand order:
“Counsel told respondent that if he entered an order that same day countermanding the September 12, 2016, complaint she would not file an ethics complaint against him.
“Counsel also informed respondent that if a member of the public subsequently filed a complaint it would be investigated, and the commission would be free to take whatever action it deemed appropriate. The conversation was memorialized in a Dec. 5, 2016 email to Respondent.”
Later on Dec. 5, Judge O’Briant entered an administrative order retracting Thompson’s permission to advocate on behalf of clients in magistrate court, saying in part that the earlier permission had been based upon a misinterpretation of the law.
“Respondent (the judge) hand-delivered the order to Mr. Thompson and attorneys Wolfe and White on the same day. He also spoke to attorneys about notifying clients that Mr. Thompson was not licensed to represent them, and they agreed to do so in a timely manner.”
By this past April 21, an ethics complaint was filed against O’Briant.
The senator who filed the complaint, Ojeda, has his own history with Judge O’Briant and his daughter, Shana O’Briant Thompson.
Ojeda had earlier said he planned to sue Shana Thompson over allegations that she improperly released copies of his taxes to people who were running against him as he campaigned. At the time, Shana Thompson was working as a lawyer for the county board of education.
And O’Briant initially was the judge assigned to the trial of a man who had been accused of beating Ojeda at a political cookout. O’Briant wound up recusing himself.
Ojeda, who last year won election to the Senate seat representing District 7, covering Logan, Boone, Lincoln, parts of Wayne, and parts of Mingo counties, wound up at odds with O’Briant and his family again when he filed the complaint with the Judicial Investigation Commission.
The Judicial Investigation Commission is set up to determine whether probable cause exists to charge a judge with a violation of the Code of Judicial Conduct, to watch over the ethical conduct of judges and to determine if a judge, in a state of diminished mental or physical ability, should not be allowed to continue to serve.
In the case that got Judge O’Bryant a public reprimand, the Commission concluded that the judge never should have let matters progress so far.
“In this case, respondent clearly abrogated his duty in signing the order which improperly allowed Mr. Thompson to practice in Logan Magistrate Court.
“A review of the law by Respondent would have revealed Mr. Thompson was not able to practice law without a license. That examination of the law would also have made the judge aware that he did not have the authority to confer such a privilege upon Mr. Thompson. Thus it is evident to the commission that the respondent failed use due diligence when he failed to conduct an adequate research and analysis before signing the order.
“Respondent is a respected judge with 30 years of experience on the bench, and he should know better than to take such an order at face value.”
O’Briant has 14 days from the date the public admonishment order was issued to decide whether to contest it. A woman who answered the telephone Friday at his judicial office said he had no comment.