Saturday, June 11, 2022

A Felony Conviction, A Private Sanction

An interesting reciprocal discipline issue has been remanded by the West Virginia Supreme Court of Appeals.

The Respondent had been privately disciplined in Pennsylvania for a DUI conviction.

On October 5, 2011, he was involved in a DUI-related motor vehicle accident in Pennsylvania in which his vehicle crossed the center line of a roadway and collided with a motorcycle traveling in the oncoming direction. On January 23, 2013, he was convicted in the Court of Common Pleas of Allegheny County, Pennsylvania of (1) aggravated assault by motor vehicle while driving under the influence; (2) driving under the influence of alcohol or controlled substance; (3) driving under the influence of alcohol, high rate of alcohol; (4) driving under the influence of alcohol or controlled substance, and (5) failure to keep right. By letter dated February 13, 2013, Mr. Doheny self-reported his convictions to the ODC.

Apparently the conviction was on appeal until 2018; by then, the Pennsylvania private discipline had been imposed.

When reciprocal discipline was sought 

Because Respondent’s discipline in Pennsylvania was a Private Reprimand, the [Hearing Panel Subcommittee]  concluded that it and this Court are “without subject-matter jurisdiction to hear this matter.” For that reason, the HPS recommended that this action be dismissed and that the record in this matter be sealed.

Wrong

Because the HPS determined that it lacked jurisdiction to address this matter as a reciprocal disciplinary action, it did not proceed with consideration of the matter on the merits pursuant to Rule 3.20 of the Rules of LDP. Accordingly, having determined that both the HPS and this Court do, in fact, have jurisdiction over this reciprocal matter, we remand the case to the HPS to proceed with the reciprocal disciplinary process set forth in the Rules of LDP.

No sealing

we believe that Mr. Doheny has failed to provide justification in this matter to overcome the public’s right of access to court proceedings, including lawyer disciplinary matters.

Justice Walker concurred

The misconduct—the criminal convictions—warrants discipline different than the private reprimand issued by Pennsylvania because private reprimands violate the West Virginia Constitution.  The [Office of Disciplinary Counsel]  may also wish to “assert and establish” a substantially different sanction in this case because—according to Respondent—the Pennsylvania Office of Disciplinary Counsel only agreed to a private reprimand because they “faced possible embarrassment” if they had a hearing on the merits of the underlying misconduct:

30. . . . [b]ecause Pennsylvania’s Office of Disciplinary Counsel was arguably derelict in its duty to prosecute the attorneys whose misconduct had contributed to the convictions that were the subject of Respondent’s disciplinary proceedings, Pennsylvania’s disciplinary counsel (as well as the attorneys who committed the misconduct during the underlying criminal proceedings) faced possible embarrassment during a public hearing before a Hearing Committee, where Respondent’s full case for mitigation would have brought these actions to light.

...Respondent challenges the validity of his convictions, the necessity of disciplinary proceedings against him, and casts blame on others despite Pennsylvania’s disciplinary adjudication establishing several convictions arising from Respondent’s drunk driving that inflicted serious bodily injuries upon an innocent person.

Given the proven conduct, the HPS may choose to conduct a hearing or take action without one. 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.”

Justice Wooten dissented, noting that the ODC had initiated proceedings based on the felony conviction but chose to pusue a reciprocal sanction

Recognizing that the plain language of Rule 3.20 limits reciprocal discipline proceedings to public discipline received elsewhere, the Hearing Panel Subcommittee correctly found this matter could not proceed against respondent who was privately reprimanded. Before this Court, counsel for the Lawyer Disciplinary Board effectively conceded as much. Yet the majority concludes that despite Rule 3.20 and Rule 4.4’s references tying reciprocal proceedings to only “public” discipline, the subsections of Rule 3.20 operate independently. It finds that while a lawyer may only have a duty to notify the Office of Disciplinary Counsel of public discipline, it may still proceed with reciprocal proceedings based upon private discipline.

...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 our Rules of Disciplinary Procedure. The proper mechanism was the one chosen and then abandoned by Office of Disciplinary Counsel: Rule 3.19. It is simply unnecessary to torturously read our own Rules of Disciplinary Procedure in order to hold respondent to account in West Virginia. 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.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2022/06/an-interesting-reciprocal-discipline-issue-has-been-remanded-by-the-west-virginia-supreme-court-of-appeals-the-respondent-h.html

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