CHARLESTON — The West Virginia Supreme Court of Appeals rejected the recommendations by the Lawyer Disciplinary Board regarding the reciprocal law license of a Pennsylvania attorney.
Justice Tim Armstead authored the majority opinion. Justice Beth Walker concurred but filed a separate opinion. Justice Bill Wooton dissented and authored a separate opinion.
"Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we reject the recommendations of the HPS and remand this matter for further proceedings consistent with this opinion," Armstead wrote in the June 10 opinion.
Patrick Doheny was involved in a DUI-related car accident on Oct. 5, 2011, in which his vehicle crossed the center line of a roadway and collided with a motorcycle in the oncoming direction.
Doheny was convicted on Jan. 23, 2013, of aggravated assault, driving under the influence and failure to keep right. He self-reported the convictions to the Office of Disciplinary Counsel.
On Jan. 5, 2017, Doheny was issued a private reprimand by a three-member panel of Pennsylvania's Disciplinary Board and on Jan. 10, 2017, Doheny notified the ODC of the reprimand.
On April 24, 2018, the ODC filed a notice against Doheny and advised him that it would request the Hearing Panel Subcommittee to impose sanctions similar to the sanction imposed in Pennsylvania.
Doheny filed a motion to dismiss the notice of reciprocal disciplinary action for lack of jurisdiction and to seal the record of proceedings on May 25, 2018.
On July 12, 2021, the ODC filed a brief, arguing that Doheny's disciplinary order from Pennsylvania established jurisdiction for the HPS to take action. Doheny filed a brief maintaining a lack of jurisdiction.
The HPS then issued a recommendation on Oct. 4, 2021, concluding that it and the court were "without subject-matter jurisdiction" to hear the matter and recommended the action be dismissed. The ODC objected.
The Supreme Court rejected the HPS's recommendation that the record be sealed and determined that the HPS and the Supreme Court have jurisdiction over the reciprocal matter. It remanded the case to the HPS to proceed with the reciprocal disciplinary process.
Wooton disagreed, finding that because Pennsylvania's discipline was private, West Virginia couldn't impose discipline since West Virginia does not impose private discipline and because of that the rule stating that "the same discipline be imposed" wouldn't be possible.
"Because the majority fails to observe the plain language of this Court's procedural Rules in this regard, I respectfully dissent," Wooton wrote.
Because West Virginia has no disciplinary measure “identical” to the private reprimand issued by the Pennsylvania Disciplinary Board, it cannot effectuate reciprocal discipline pursuant to and as authorized by the Rules of Disciplinary Procedure.
"It is simply unnecessary to torturously read our own Rules of Disciplinary Procedure in order to hold respondent to account in West Virginia," Wooton wrote. "Accordingly, I respectfully dissent to the majority’s remand for further proceedings and would adopt the Hearing Panel Subcommittee’s recommendation to dismiss the proceedings."
Walker noted in her concurring opinion that while she agreed with the decision to reject the HPS's recommendations, she wanted to emphasize that the court's authority in lawyer disciplinary matters is broad.
"Given the proven conduct, the HPS may choose to conduct a hearing or take action without one," Walker wrote. "Either way, it should explain whether substantially different sanctions are warranted to achieve the goal of disciplinary proceedings in West Virginia which is to 'appropriately punish the respondent-attorney...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.'"
West Virginia Supreme Court of Appeals case number: 18-0363
