Tuesday, June 15, 2021

The Second Time Around

A second effort to seek reinstatement after a 2005 license annulment has succeeded in the West Virginia Supreme Court of Appeals

For the second time, Keith L. Wheaton petitions this Court for reinstatement of his license to practice law in West Virginia, which was annulled in 2005 as a result of several, serious acts of misconduct. When we denied his first petition for reinstatement in 2011, we concluded that Mr. Wheaton had failed to satisfy any of the requirements for reinstatement that we enumerated in the order annulling his license. And, we determined that he had neither demonstrated a record of rehabilitation nor shown that he possessed the integrity, moral character, and legal competence to resume the practice of law. In stark contrast to his first petition for reinstatement, Mr. Wheaton now presents evidence of his rehabilitation and that he has complied with, or is in the process of complying with, the requirements we set for his reinstatement. The Hearing Panel Subcommittee (HPS) found that Mr. Wheaton’s license should be reinstated with conditions. While the Office of Disciplinary Counsel (ODC) does not join in that recommendation because Mr. Wheaton has not “fully satisfied” the reinstatement requirements set in 2005, it also does not oppose Mr. Wheaton’s reinstatement.

The misconduct

from 1997 to 2002, Mr. Wheaton committed a series of misdeeds that included misappropriation and conversion of client funds; making material misrepresentations to clients, a bankruptcy trustee, bankruptcy court, and counsel for the ODC; failing to communicate with clients; and failing to diligently pursue claims on behalf of clients.

The reinstatement is subject to a number of conditions.

Justice Armstead dissented'

Despite this large outstanding debt, the majority opinion concludes that “Mr. Wheaton has made great strides in satisfying the requirements for reinstatement we set in 2005.” I strongly disagree with this conclusion. Mr. Wheaton’s misconduct resulted in substantial financial harm, and this Court justifiably required that he satisfy the various resulting debts prior to seeking reinstatement. He has not done so. In fact, while Mr. Wheaton has now entered into one or more repayment agreements to pay the remaining amounts he owes, the fact remains that in the many years since he was directed to make such payments, he has made little, if any, effort to fulfill such obligations. Significantly, he had made no payments toward the largest of these debts, including the $45,000 assessed by the federal bankruptcy court.

...The harm that may result from the majority’s ruling is twofold. First, under syllabus point three of Vieweg, we must consider whether Mr. Wheaton’s reinstatement will have a “justifiable and substantial adverse effect on the public confidence in the administration of justice.” The number of clients that have filed complaints against Mr. Wheaton was immense—at least twenty-two. Should Mr. Wheaton engage in misconduct upon being reinstated, these twenty-two clients, and the general public, may justifiably ask why this Court would allow Mr. Wheaton to practice law again despite causing substantial harm in the past, and despite his failure to follow through with the requirements for reinstatement this Court set forth in Wheaton I.

Second, an attorney who is currently disbarred and is required to repay a large sum of money prior to seeking reinstatement may assume that such requirement is not mandatory. Instead, relying on the majority opinion in this case, such an attorney may assume that they can be reinstated by only repaying a minimal fraction of such debt and waiting several years to reapply. This sends an unfortunate message both to members of the State Bar, as well as to the general public.

Matters such as these are often difficult for this Court. We truly want to see attorneys rehabilitated and restored to the practice of law when it is appropriate. It is undeniable that Mr. Wheaton has made significant progress in his efforts toward rehabilitation and it is clear to see that the attorney that seeks reinstatement today is essentially a different person than the one who previously sought reinstatement so many years ago. I wholeheartedly commend him on this progress. However, due to the seriousness and sheer number of his prior offenses, his lack of effort over the past several years to fulfill the restitution that he was ordered to pay in Wheaton I to gain reinstatement,
and the need for this Court to be consistent in our treatment of applicants who are similarly situated, I am unable to agree that his reinstatement is warranted at this time. Therefore, while I strongly disagree with the majority’s ruling, I wish Mr. Wheaton success upon his reinstatement and urge him to make all reasonable and diligent efforts to continue to repay the outstanding debt that this Court ordered him to repay in Wheaton I.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/06/a-second-effort-to-seek-reinstatement-after-a-2005-license-annulment-has-succeeded-in-the-west-virginia-supreme-court-of-appe.html

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