Mark Plants didn't appeal last year's decision by a three-judge panel removing him as Kanawha County prosecuting attorney, but he made it clear last week he plans to fight to keep his law license.
In a response filed Wednesday to the ethics charges made against him by the West Virginia Office of Disciplinary Counsel, Plants accuses the ODC of revealing information about his case before it was made public.
He also accuses his ex-wife of conspiring with an assistant prosecuting attorney, who he fired two years ago, to have him charged by police with violating a domestic violence protective order.
Attorneys with the ODC argue that although a magistrate dismissed the misdemeanor charges Plants was facing earlier this year, the allegations surrounding those charges amount to violations of the State Bar's Code of Professional Conduct. The ODC has taken the same position on other allegations brought against Plants during a hearing to remove him as prosecutor.
The filing, made public last month, accuses the ex-prosecutor of violating three rules of professional conduct: a rule dealing with conflicts of interest; a rule that says, "a lawyer shall not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;" and a rule regarding misconduct, which states that it is misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects" and "engage in conduct that is prejudicial to the administration of justice."
Jim Cagle, Plants' attorney, who authored the response, asks for the ethics charges to be dismissed and says Plants never violated any of the rules lawyers in the state are required to follow. Instead, Cagle argues, it's the ODC who hasn't followed its own rules for disciplinary proceedings.
A panel of attorneys will hear the case before making recommendations to the West Virginia Supreme Court about the future of Plants' license to practice law.
The ODC, according to Plants' filing, "has routinely leaked information to individuals outside its office regarding [Plants'] case." Plants began receiving phone calls from the media regarding the ethics charges filed against him before he was served with them and before they had been made public, Cagle wrote.
"The Rules of Disciplinary Proceedings require that reasonable notice be provided before such information is disseminated," Plants' response states.
Joanna Vella Kirby, an attorney with the ODC, said Thursday that the office didn't want to comment on Plants' response.
Plants believes employees of the ODC told assistant Kanawha prosecutor Maryclaire Akers about the filing, and then she informed members of the media.
Plants fired Akers from the prosecutor's office in 2013. But after Charles Miller was appointed last year to replace Plants, he rehired Akers.
Cagle writes that Akers is a "formerly disgruntled employee" and accuses Plants' ex-wife, Allison Plants, of conspiring with her to report him to police.
Before Allison Plants called the police to accuse her ex-husband of violating a domestic violence protective order that barred him from contact with her and their two sons, Cagle wrote that she called Plants' father to let her sons wish their grandfather a happy birthday. Allison Plants then talked to Akers on the phone four times before calling police, according to Cagle.
According to Plants, while he was preparing to leave Fruth Pharmacy on Oakwood Road in March 2014, he saw his children in a car waiting for their mother to come out of the store.
He waited with them until Allison Plants came out of the store. He says it was for their protection because it was dark outside in a bad neighborhood and he had reason to believe Allison Plants might have been inebriated.
According to the criminal complaint filed against him at the time, Allison Plants told West Virginia State Police that she was scared of her ex-husband and that she would be staying with a friend the night of the incident at Fruth.
In response to the ODC, Cagle wrote that Allison Plants waited four hours after leaving the store before she called police "concerning her 'safety.'"
Allison Plants had obtained a domestic violence protective order against Plants after noticing a bruise on their then-11-year-old son's thigh. State Police began an investigation into child abuse allegations and eventually charged Mark Plants with battery for leaving a six-to seven-inch bruise on the boy's thigh with a leather belt.
Plants' response also states that he had been on good terms with Allison Plants, despite their divorce, until he remarried on Dec. 27, 2013. Plants married his former secretary, Sarah Foster.
"Two months after he re-married, [Plants'] ex-wife initiated a criminal investigation regarding excessive discipline," Cagle wrote, adding Allison Plants had always before agreed that corporal punishment was an acceptable way to discipline their children.
Allison Plants said last week she did not want to comment about Plants' response to the ethics charges.
When asked about being mentioned in Plants' response, Akers said Plants is trying to distract from the order filed by a three-judge panel that removed him from office.
"I will not engage in the sideshow the response attempts to create," Akers said. "This is merely an attempt to distract from the order of a panel of three independent circuit judges from across the state."
Neither Plants or Cagle responded to requests for comment about the filing.
The charges filed by the ODC stem from a complaint attorney Melissa Foster Bird filed. Bird represented Kanawha commissioners in their petition to remove Plants from office.
The three judges who were appointed by the state Supreme Court to hear the petition and ultimately ordered Plants removed from office, said they would forward transcripts of the removal hearing to the ODC.
The judges also told Bird that issues she raised about Plants during the hearing should be brought to the disciplinary counsel's attention. For example, judges said they found it troubling that Plants was accused of trying to use his position as prosecutor to have his wife arrested during an argument at John Adams Middle School. Plants has maintained he told police not to arrest his ex-wife, who he said violated a court order by locking her son in her car during Plants' visitation time.
Cagle wrote that he offered video evidence of the incident to the ODC but that they never requested a copy.
Kanawha commissioners filed the petition to remove Plants, citing the rising costs of paying special prosecutors to work on cases containing charges similar to the ones Plants faced.
Soon after the battery charge was filed against Plants, Cagle, who also represented him in the criminal case, filed a motion asking that a magistrate dismiss the charge. Cagle argued that Plants had a constitutional right to discipline his child by spanking him. But that argument created a conflict of interest with his job as prosecutor, the ODC said and a Kanawha judge agreed.
In response to the conflict, Circuit Judge Duke Bloom appointed a special prosecutor and a team of assistants to handle cases that involved allegations similar to those Plants had faced.
Cagle wrote to the ODC in the response last week that Plants had every right to defend himself in the criminal matter and his defense was that he had asserted his parental rights to reasonably discipline his child using corporal punishment.
"The premise that [Plants] violated the Rules of Professional Conduct because his attorney filed a motion is absurd," Cagle wrote.
The criminal charges were dismissed against Plants after he completed a 32-week domestic violence program.
Reach Kate White at kate.white@wvgazettemail.com, 304-348-1723 or follow @KateLWhite on Twitter.