CHARLESTON – After a lengthy disciplinary battle, the state Supreme Court has ordered an admonishment of a Pennsylvania attorney following a felony DUI conviction.
Patrick Doheny reported to the Office of Lawyer Disciplinary Counsel in January 2017 that he had been privately reprimanded by the Disciplinary Board of the Supreme Court of Pennsylvania. The West Virginia Office of Disciplinary Counsel then filed a notice seeking reciprocal discipline, but it said it would seek a different discipline because West Virginia does not allow for private discipline of attorneys.
Doheny sought to dismiss the ODC move because he said the Pennsylvania sanction was private and because neither the Hearing Panel Subcommittee of the Lawyer Disciplinary Board nor the West Virginia Supreme Court had jurisdiction to proceed in a reciprocal disciplinary action against him.
The Justices then said both the HPS and the court do have jurisdiction and remanded the matter back to the HPS to proceed with the discipline. The HPS then recommended Doheny be publicly admonished and directed to pay the costs of the reciprocal disciplinary proceeding.
Doheny was admitted to the West Virginia Bar in 2001. In October 2011, he was involved in a DUI-related accident in Allegheny County, Pennsylvania, when his vehicle crossed the center line and collided with a motorcycle. The cyclist sustained serious injuries, and the commonwealth instituted criminal proceedings against Doheny.
Doheny was convicted in 2013 of aggravated assault by a motor vehicle while DUI and other offenses, and he self-reported to the ODC. The LDB then initiated an investigation. But the chair of the LDB issued a stay in September 2015 pending the criminal charges and Pennsylvania disciplinary proceedings.
Doheny challenged his convictions at all stages of appeal, and the criminal matter became final in March 2016. In January 2017, the Pennsylvania Board issued Doheny the private reprimand. Doheny immediately informed the ODC he received a private reprimand and enclosed the reprimand and related disciplinary documents.
On April 24, 2018, the ODC filed its notice of reciprocal disciplinary action.
“Doheny twice moved this court to dismiss the reciprocal disciplinary proceeding,” the majority opinion states. “In his motions, Mr. Doheny argued that the HPS, and ultimately this court, lacked jurisdiction over the proceeding because West Virginia does not have an exact corresponding private discipline and Rule 3.20 only allows for reciprocal discipline for public discipline from a foreign jurisdiction.”
The ODC responded, and the state Supreme Court refused both motions. The HPS then issued a recommended decision agreeing with Doheny and concluding that both it and the Supreme Court lacked jurisdiction in the reciprocal disciplinary matter. The HPS recommended the Supreme Court dismiss the matter and seal the underlying record, but the ODC objected.
The Supreme Court then ruled it and the HPS have jurisdiction and “authority to impose reciprocal discipline regardless of whether the underlying discipline imposed by the foreign jurisdiction is private or public.” The court also denied Doheny’s request to seal the record and remanded the matter to the HPS.
The ODC then requested the HPS recommend a public admonishment as the appropriate discipline. On July 25, 2023, the HPS issued its recommended decision that the private reprimand order from the Pennsylvania Board “conclusively establishes (Doheny’s) misconduct for the purposes of this reciprocal disciplinary proceeding.” It also found Doheny failed to show that the proceeding in Pennsylvania violated due process requirements or that the “proof upon which (his Pennsylvania) disciplinary action was based was so infirm so as to taint the final disposition of the case.”
The HPS recommended Doheny be publicly admonished and directed to pay the costs of the disciplinary proceeding, noting it was the closest discipline to a private reprimand allowed by West Virginia law. The ODC consented to the recommended discipline, but Doheny objected.
“Doheny’s professional misconduct in Pennsylvania has been conclusively proven,” Justice Haley Bunn wrote in the majority 4-1 opinion. “While we respectfully consider the HPS’s recommendations, ‘[t]his 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.’ …
“Furthermore, we also find sua sponte that the underlying criminal misconduct itself requires a substantially different type of discipline. The Pennsylvania Board based Mr. Doheny’s private reprimand on several criminal convictions — including at least one felony.
“Mr. Doheny caused a very serious motor vehicle accident while he was intoxicated which resulted in significant injuries to the other driver, including multiple fractured bones and permanent limited range of motion in the individual’s elbow. Imposing a different form of discipline is consistent with our previous decisions involving disciplinary sanctions based on criminal convictions. … Furthermore, other jurisdictions have found similar criminal conduct to support discipline more severe than a private reprimand.”
Bunn wrote that the Justices found Doheny’s underlying criminal convictions involving DUI causing serious bodily injury require a “substantially different type of discipline” from a private reprimand.
“Considering the unique circumstances of this case and the seriousness of the underlying criminal convictions on which the Pennsylvania Board based Mr. Doheny’s discipline, we adopt the HPS’s recommendation that Mr. Doheny be publicly admonished and required to pay the costs of these proceedings.”
Justice Bill Wooton dissented and issued a separate opinion, saying the majority improperly finds that the ODC had authority to impose reciprocal discipline based on Doheny’s private reprimand in another jurisdiction.
“The process by which the ODC proceeded with Doheny’s discipline is fatally flawed,” Wooton wrote. “It chose to forego the procedural protections provided under that rule and, instead, purported to institute reciprocal discipline under the abbreviated proceedings. …
“ODC offers no reasonable explanation for choosing this process, despite the fact that the discipline imposed elsewhere cannot be imposed in West Virginia. …
“Despite Mr. Doheny’s irresponsible criminal acts, I cannot sit idly by while the court contorts its own rules. In a veiled attempt to justify the abandonment of our rules the majority opinion places significant emphasis on the injuries sustained by Mr. Doheny’s victim.
“Make no mistake – I do not condone Mr. Doheny’s criminal behavior, nor do I minimize the injuries or the impact those injuries have had on his victim; however, neither of those justify the ODC’s calculated decision to invoke the abridged disciplinary procedures.”
West Virginia Supreme Court of Appeals case number 18-0363
