Roark v. Lawyer Disciplinary Board
Annotate this Case
IN THE SUPREME COURT OF APPEALS OF WEST
VIRGINIA
September 1997 Term
___________
No. 23935
___________
JAMES E. ROARK,
a suspended member of the West Virginia State Bar,
Petitioner,
v.
LAWYER DISCIPLINARY BOARD,
Respondent.
________________________________________________________
Lawyer Disciplinary Proceeding
REINSTATED SUBJECT TO CONDITIONS
________________________________________________________
Submitted: September 9, 1997
Filed: October 24, 1997
James B. McIntyre,
Esq. Amie
L. Johnson, Esq.
McIntyre &
Collias
Lawyer Disciplinary Board
Charleston, West
Virginia Charleston,
West Virginia
Attorney for
Petitioner Attorney
for Respondent
The Opinion of the Court was delivered PER
CURIAM.
CHIEF JUSTICE WORKMAN, deeming herself
disqualified, did not participate in the decision.
SYLLABUS BY THE COURT
1. "A
de novo standard applies to a review of the adjudicatory
record made before the [Lawyer Disciplinary Board] as to
questions of law, questions of application of the law to the
facts, and questions of appropriate sanctions; this Court gives
respectful consideration to the [Board's] recommendations while
ultimately exercising its own independent judgment. . . ."
Syllabus Point 3, Committee on Legal Ethics v. McCorkle,
192 W.Va. 286, 452 S.E.2d 377 (1994).
2. "This
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." Syllabus
Point 3, Committee on Legal Ethics v. Blair, 174 W.Va.
494, 327 S.E.2d 671 (1984).
3. "In
deciding on the appropriate disciplinary action for ethical
violations, this Court must consider not only what steps would
appropriately punish the . . . attorney, but also
whether the discipline imposed is adequate to 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." Syllabus Point 3, Committee on Legal
Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987).
Per Curiam:
This is a
petition by a suspended attorney for reinstatement of his license
to practice law pursuant to Rule 3.32 of the Rules of Lawyer
Disciplinary Procedure [1996]. The petitioner was suspended
in 1989 for three years following a guilty plea to criminal
charges.
After submitting
his petition for reinstatement in December 1996, it was learned
that the petitioner had been arrested in North Carolina in 1991,
and that he had not informed the Lawyer Disciplinary Board
("Board") of this arrest in the reinstatement
questionnaire nor did he include it in his petition for
reinstatement. Initially the Board had not opposed petitioner's
reinstatement. However, upon learning of the 1991 arrest, and
upon further investigation by the Office of Disciplinary Counsel
("ODC"), the ODC recommended that the petitioner be
suspended for an additional year.
Based upon our
review of the petition, all matters of record, the briefs, and
the argument of counsel, we order that the petitioner's license
continue to be suspended until January 1, 1998, at which time the
license may be reinstated after the payment of costs for these
proceedings, and that the petitioner be subject to one year of
supervised practice.
I.
On June 8, 1989, the petitioner, James E. Roark, had his license to practice law in the State of West Virginia suspended for a period of three years. The suspension followed his pleading guilty to six counts of federal misdemeanor charges of possession of cocaine.
See Committee on Legal Ethics v.
Roark, 181 W.Va. 260, 382 S.E.2d 313 (1989). Following these
events, Mr. Roark moved to North Carolina where he was employed
in several executive positions, including a position with the
North Carolina Institute of Justice.
In November 1996,
Mr. Roark submitted a reinstatement questionnaire to the Board,
and in December 1996, he filed a petition for reinstatement in
this Court in which he set forth his employment history, his
civic activities and other pertinent events which had occurred
following his suspension. The ODC filed its report with the Court
in which it recommended that the petitioner's law license be
reinstated without a hearing before the Board. However, several
months after the report was filed, the ODC learned that the
petitioner had been arrested in 1991 in North Carolina on charges
of misdemeanor larceny and obstructing a police officer. The
charges were later dismissed following the completion of
community service hours. The petitioner failed to include this
information in his application for reinstatement.
After learning of
these events, the ODC filed with the Court a supplemental report
and requested that the Court suspend its consideration of the
petition until the ODC completed a more thorough background check
of the petitioner within North Carolina. The ODC did confirm the
1991 incident but found nothing further. Because of petitioner's
failure to provide the information relating to the 1991 incident
in his petition for reinstatement, the ODC, in its oral argument,
recommended that the Court suspend petitioner's license to
practice law for an additional year.
II.
The
authority of the Supreme Court of Appeals to regulate and control
the practice of law in West Virginia, including the lawyer
disciplinary process, is constitutional in nature. West
Virginia Constitution, Article VIII, section 3 [1974]
provides, in part, that "[t]he court shall have power to
promulgate rules . . . for all of the courts of the State
relating to . . . practice and procedure, which shall
have the force and effect of law."
The standard of
review applicable to the discipline of lawyers is set forth in
Syllabus Point 3 of Lawyer Disciplinary Bd. v. Cunningham,
195 W.Va. 27, 464 S.E.2d 181 (1995), in which we stated in part:
"'A de
novo standard applies to a review of the adjudicatory record
made before the [Lawyer Disciplinary Board] as to questions of
law, questions of application of the law to the facts, and
questions of appropriate sanctions; this Court gives respectful
consideration to the [Board's] recommendations while ultimately
exercising its own independent judgment. . . .' Syl. Pt. 3, Committee
on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377
(1994). " Syl. Pt. 2, Lawyer Disciplinary Bd. v. McGraw,
194 W.Va. 788, 461 S.E.2d 850 (1995).
We have previously held that "[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." Syllabus Point 3, Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984). This decision-making power in regard to suspensions and annulments is also exercised in cases where a suspended attorney seeks to have his or her license reinstated. In reviewing attorney discipline, and "'[i]n deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the . . . attorney, but also whether
the discipline imposed is adequate to 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.' Syllabus Point 3, Committee on Legal
Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987)."
Syllabus Point 5, in part, Committee on Legal Ethics v. Roark,
181 W.Va. 260, 382 S.E.2d 313 (1989).
III.
The
record indicates that Mr. Roark was suspended for a period of
three years, after which he was free to petition for
reinstatement. Mr. Roark did not elect to file for reinstatement
of his license until seven years after he was suspended. During
the time while his license was suspended he held positions of
trust and authority, mostly in the State of North Carolina. In
the information provided to the ODC and in his petition for
reinstatement to this Court, Mr. Roark suggested that he had been
rehabilitated and that the facts warranted the reinstatement of
his license to practice law. Further, the ODC did make such a
recommendation.
However, during
the pending reinstatement process it was discovered that less
than two years after being suspended, Mr. Roark was arrested in
North Carolina for two misdemeanor offenses. While both charges
were eventually dismissed, this information was not included in
his reinstatement questionnaire provided to the Board, or in his
petition for reinstatement filed with this Court. Even though the
matter had been dismissed, he was
required to provide the information on the
questionnaire.See footnote 1
1 However, following the 1991 arrest, Mr. Roark
waited for over five years before petitioning for the
reinstatement of his license to practice law, during which time
Mr. Roark conducted himself in a professional manner.
The Court is
satisfied there is sufficient evidence that the petitioner has
demonstrated a course of conduct that enables the Court to
conclude there is little likelihood the petitioner will engage in
unlawful or unprofessional conduct once his license to practice
law has been reinstated. However, this Court cannot allow
individuals seeking admission or reinstatement to the Bar of West
Virginia to avoid providing required information or to
misrepresent the truth on their applications without sanction.See footnote 2 2
The
Court, therefore, imposes upon James E. Roark the following
conditions to the reinstatement of his license to practice law in
West Virginia:
1. Mr.
Roark's license to practice law in the State of West Virginia
shall remain suspended until January 1, 1998, at which time the
license may be reinstated subject to the following additional
conditions;
2. Mr.
Roark, upon reinstatement to the West Virginia State Bar, shall
be supervised for a period of one year by an attorney in good
standing with the State Bar, subject to the approval of such
attorney by the Subcommittee Hearing Panel of the Lawyer
Disciplinary Board;
3. Mr.
Roark must comply with the appropriate continuing legal education
requirements prior to reinstatement; and
4. Mr.
Roark shall pay all costs incurred in the investigation and
hearing of this
matter.
Continued suspension;
reinstatement with supervised practice;
and payment of costs.
Footnote:
1 1
Question number fourteen of the Questionnaire requests applicant
to:
Provide a
statement showing the dates, general nature and ultimate
disposition of every matter involving the issuance or pendency of
a warrant, arrest or prosecution of the petitioner in any
jurisdiction during the period of disbarment or suspension and
the six (6) months preceding such period for any crime, whether
felony or misdemeanor, together with the names and addresses of
complaining witnesses, prosecutors and trial judges.
Footnote:
2 2
Rule 8.1 of the Rules of Professional Conduct [1989]
provides:
An applicant for
admission to the bar, or a lawyer in connection with a bar
admission application or in connection with a disciplinary
matter, shall not:
(a) knowingly
make a false statement of material fact; or
(b) fail to
disclose a fact necessary to correct a mis- apprehension known by
the person to have arisen in the matter, or knowingly fail to
respond to a lawful demand for information from an admissions or
disciplinary authority, except
that this rule does not require disclosure of information otherwise protected by Rule 1.6.
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