3.1. Membership.
3.2 Quorum.
3.3. Hearings on formal charges.
3.4. Prehearing Discovery and Time and place of hearing.
3.5. Notice of hearing.
3.6. Conduct of hearing.
3.7. Standard of proof.
3.8. Subpoena and contempt power.
3.9. Record of hearings.
3.10. Recommended disposition by Hearing Panel.
3.11. Response to recommended disposition.
3.12. Consent to recommended disposition.
3.13. Objection to recommended disposition.
3.14. Grounds for discipline.
3.15. Permissible sanctions.
3.16. Factors to be considered in imposing sanctions.
3.17. Effect of suspension or annulment.
3.18. Conviction of crime that reflects adversely on a lawyer’s honesty, trustworthiness or fitness.
3.19. Conviction of felony that does not reflect adversely on a lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.
3.20. Reciprocal discipline.
3.21. Judicial determination of incompetency.
3.22. Reinstatement from administrative suspension for incompetency.
3.23. Complaint alleging disability.
3.24. Reinstatement following administrative suspension for disability.
3.25. Disbarment by consent.
3.26. Voluntary resignation or inactive status.
3.27. Extraordinary proceedings.
3.28. Duties of disbarred or suspended lawyers.
3.29. Appointment of Trustee.
3.30. Requirements for reinstatement.
3.31. Automatic reinstatement.
3.32. Reinstatement procedure following suspension.
3.33. Reinstatement procedure following annulment.
Rule 3. Hearing Panel.
The Hearing Panel of the Lawyer Disciplinary Board shall conduct hearings and make findings of fact, conclusions of law, and recommendations of lawyer discipline to the Supreme Court of Appeals on formal charges filed by the Investigative Panel.
Rule 3.1. Membership.
The Hearing Panel shall consist of fifteen members, with ten members of The West Virginia State Bar and five members of the public. The Hearing Panel shall be divided into five Hearing Panel Subcommittees, with two members of The West Virginia State Bar and one member of the public. Each Hearing Panel Subcommittee shall designate one of its lawyer members to act as Subcommittee Chairperson for a specific disciplinary matter. (Amended by order entered November 26, 2013.)
Rule 3.2. Quorum.
Three members of a Hearing Panel Subcommittee shall constitute a quorum. A Hearing Panel Subcommittee shall act only with the concurrence of a majority of those present and voting, with the exception that the Hearing Panel Subcommittee Chairperson may hear all dispositive motions and render an initial decision which must be confirmed by a majority of the other members of the Hearing Panel Subcommittee. Hearing Panel Subcommittees may deliberate and issue decisions in person, by telephone conference, or by written correspondence. (Amended by order entered May 6, 1999, effective July 1, 1999.)
Rule 3.3. Hearings on formal charges.
Unless the Hearing Panel Subcommittee, the Office of Disciplinary Counsel, and the respondent otherwise agree, hearings on formal charges shall be conducted by a Hearing Panel Subcommittee of the Lawyer Disciplinary Board. The Hearing Panel Subcommittee, the Office of Disciplinary Counsel, and the respondent may agree to designate a hearing examiner for purposes of conducting a hearing.
Rule 3.4. Prehearing Discovery and Time and place of hearing.
Within 20 days from the date of service of the Statement of Charges, or at least 60 days prior to the date of the scheduled hearing, whichever is sooner, the Office of Disciplinary Counsel shall (a) provide the respondent with the complete identity, address and telephone number of any person with knowledge about the facts of any of the charges; provide a copy of any statements of any such person in the possession or under the control of Disciplinary Counsel or which can be reasonably obtained by Disciplinary Counsel; provide a list of the proposed witnesses to be called at the hearing, including their addresses, telephone numbers, and a summary of their anticipated testimony; provide a disclosure of any trial expert pursuant to the requirements of Rule 26(b)(4) of the West Virginia Rules of Civil Procedure; provide inspection and copying of the results of any reports of physical or mental examinations or scientific tests or experiments; and provide a list and copy of any proposed exhibit to be used at the hearing. Disciplinary Counsel shall not be required to furnish or produce any material which would contain opinion work product information or which would be violative of the attorney/client privilege between the Office of Disciplinary and the Investigative Panel; and (b) Disciplinary Counsel shall be required to disclose any exculpatory evidence within 20 days from the date of service of the Statement of Charges, with a continuing duty to do so throughout the disciplinary process, which information would in any way bear on the issue of the charges or the recommended discipline. Any documents or information not disclosed by Disciplinary Counsel under a claim of privilege shall be listed and sufficiently described so that the opposing party can determine whether to contest such claim of privilege.
Within 30 days after receiving Disciplinary counsel’s mandatory discovery, the respondent shall provide the Office of Disciplinary Counsel with the complete identity, address and telephone number of any person with knowledge about the facts of any of the charges; provide a list of the proposed witnesses to be called at the hearing, including their addresses, telephone numbers, and a summary of their anticipated testimony; provide a disclosure of any trial expert pursuant to the requirements of Rule 26(b)(4) of the West Virginia Rules of Civil Procedure; provide inspection and copying of the results of any reports of physical or mental examinations or scientific tests or experiments; and provide a list and copy of any proposed exhibit to be used at the hearing.
The respondent shall be entitled to depose the complainant or complainants on any charge. No other depositions or other method of discovery shall be permitted except upon motion to the Chairperson of the Hearing Panel Subcommittee and only upon a showing of good cause for such additional discovery. The Chairperson of the Hearing Panel Subcommittee shall have authority to hear and resolve objections to discovery. Unless otherwise ordered by the Hearing Panel Subcommittee, discovery materials shall not be filed with the Clerk of the Supreme Court of Appeals, but shall be retained by the parties and delivered to the Subcommittee if necessary for any prehearing matters.
The Hearing Panel Subcommittee shall set a hearing on formal charges to be conducted within one hundred twenty days of the service of formal charges. The Chairperson of a Hearing Panel Subcommittee may also set a prehearing conference prior to the hearing. The Chairperson of a Hearing Panel Subcommittee may extend or shorten periods contained in this rule for good cause shown. Any motion for continuance shall be filed with the Clerk of the Supreme Court of Appeals and the Chairperson of the Hearing Panel Subcommittee no later than fourteen days, other than in the case of emergency, prior to the date of the hearing. The Hearing Panel Subcommittee may conduct hearings at such place or places in the State as it shall be determined will best serve the public interest, not inconsistent with the interests of the complainant and the respondent. (Amended by order entered December 6, 1994, effective January 1, 1995 and by order entered May 6, 1999, effective July 1, 1999.)
Rule 3.5. Notice of hearings.
Within thirty days of service of the formal charges, notice of the date, time, and place of the hearing shall be served by the Office of Disciplinary Counsel on the lawyer or any counsel designated by the lawyer. The Hearing Panel may extend this period for good cause shown. (Amended by order entered May 6, 1999, effective July 1, 1999.)
Rule 3.6. Conduct of hearing.
Except where otherwise provided for by these rules, the provisions of the West Virginia Rules of Evidence shall govern proceedings before the Hearing Panel. Hearings conducted by a Hearing Panel Subcommittee shall be open to the public. (Amended by order entered May 6, 1999, effective July 1, 1999.)
Rule 3.7. Standard of proof.
In order to recommend the imposition of discipline of any lawyer, the allegations of the formal charge must be proved by clear and convincing evidence.
Rule 3.8. Subpoena and contempt power.
(a) Hearing Panel Subcommittees of the Lawyer Disciplinary Board shall have power to issue subpoenas or any other lawful process through their Chairperson or the Clerk of the Supreme Court of Appeals. The Chairperson of a Hearing Panel Subcommittee or the Clerk of the Supreme Court of Appeals shall prepare and have available for issuance at the request of any party, subpoenas returnable before the Hearing Panel Subcommittee, or the parties in the case of a deposition, for attendance of witnesses or for the production of documentary evidence. Subpoenas and other process of Hearing Panel Subcommittees of the Lawyer Disciplinary Board may be served in accordance with the West Virginia Rules of Civil Procedure. The failure of any person without adequate excuse to obey a subpoena or other process of a Hearing Panel Subcommittee shall constitute contempt of the Board. All witnesses, including complainants, shall be entitled to such witness fees and expenses as in any civil proceeding in this State.
(b) Whenever a subpoena is sought in this State pursuant to the law of another jurisdiction for use in lawyer disciplinary or disability proceedings, whether during the investigative or hearing state, and where issuance of the subpoena has been duly approved under the law of the other jurisdiction, the Chairperson or the Vice-Chairperson of the Lawyer Disciplinary Board, the Chairperson of a Hearing Panel Subcommittee or the Clerk of the Supreme Court of Appeals may issue a subpoena as provided in this Rule or in Rule 2.4 to compel the attendance of witnesses and production of documents in West Virginia.
(c) A Hearing Panel Subcommittee of the Lawyer Disciplinary Board may punish breaches of order and unprofessional conduct in its presence by censure or exclusion from the hearing or may invoke the aid of any circuit court in keeping order. Such court, in case of refusal of any person to maintain order before a Hearing Panel Subcommittee of the Lawyer Disciplinary Board, shall issue an order requiring such person to maintain order. Any failure to obey such order of the court may be punished by such court as contempt thereof. A Hearing Panel Subcommittee may, in its discretion, designate a person to serve as bailiff. (Amended by order entered December 6, 1994, effective January 1, 1995 and by order entered May 6, 1999, effective July 1, 1999.)
Rule 3.9. Record of hearings.
Hearings before a Hearing Panel Subcommittee of the Lawyer Disciplinary Board shall be recorded by stenographic, mechanical, or electronic means. Upon request, the lawyer shall be entitled, at the lawyer’s expense, to a copy of a videotape, audiotape, or transcript of the hearing.
Rule 3.10. Recommended disposition by Hearing Panel.
Within sixty days after the final hearing or the filing of post-hearing briefs, whichever comes later, the Hearing Panel Subcommittee shall file a written recommended decision with the Clerk of the Supreme Court of Appeals. If the hearing was conducted by agreement before a hearing examiner, the examiner shall file a written recommended decision with the hearing Panel Subcommittee within thirty days after the final hearing or the filing of post- hearing briefs, whichever comes later, and the Hearing Panel Subcommittee shall then, within thirty days after the date of the examiner’s recommended decision, file its written recommended decision with the Clerk of the Supreme Court of Appeals. The decision shall contain findings of fact, conclusions of law, and a recommended disposition. Prior to the release of information regarding the recommended disposition, the Clerk of the Supreme Court of Appeals or the Hearing Panel Subcommittee shall provide reasonable notice to the Office of Disciplinary Counsel and the lawyer of the nature of the decision. (Amended by order entered May 6, 1999, effective July 1, 1999.)
Rule 3.11. Response to recommended disposition.
The Office of Disciplinary Counsel and the lawyer shall have thirty days after the date of the report within which to file written consent or objection with the Clerk of the Supreme Court of Appeals to the disposition of the formal charge recommended by the Hearing Panel Subcommittee. If neither the Office of Disciplinary Counsel nor the lawyer files an objection within such thirty day period and an order is entered by the Supreme Court of Appeals adopting the disposition of the formal charge recommended by the Hearing Panel Subcommittee, a motion for relief from such order, if filed within four months of the date of the report by the Hearing Panel Subcommittee, may be made pursuant to Rule 60(b)(I), (2), (3) or (6) of the Rules of Civil Procedure. (Amended by order entered July 10, 1996, effective September 1, 1996.)
Rule 3.12. Consent to recommended disposition.
If the parties consent to the recommended disposition, the matter shall be filed with the Supreme Court of Appeals for entry of an order consistent with the recommended disposition. If the Court does not concur with the recommended disposition, the Clerk of the Supreme Court of Appeals shall promptly establish a briefing schedule and notify the parties of the date and time of oral argument or submission of the case without oral argument before the Supreme Court of Appeals. Whenever the Office of Disciplinary Counsel advocates any position before the Supreme Court of Appeals which differs from the findings of fact, conclusions of law, or recommended disposition of the Hearing Panel Subcommittee, it shall provide notice to the Hearing Panel Subcommittee, whether by service of a copy of its brief or otherwise, and the Hearing Panel Subcommittee shall be permitted, if it so desires, to file, within thirty days of receipt of such notice, its own brief before the Supreme Court of Appeals, in support of its findings of fact, conclusions of law, and recommended disposition. Following oral argument or submission of the case without oral argument, the Court will file an opinion or order disposing of the case. Unless otherwise provided in the Court’s opinion or order, any sanction will not take effect until after expiration of the rehearing period or the denial of any petition for rehearing. (Amended by order entered July 10, 1996, effective September 1, 1996.)
Rule 3.13. Objection to recommended disposition.
The filing of any objection to the report of the Hearing Panel Subcommittee shall constitute commencement of proceedings to disposition before the Supreme Court of Appeals. The Clerk of the Supreme Court of Appeals shall promptly establish a briefing schedule and notify the parties of the date and time of oral argument or submission of the case without oral argument before the Supreme Court of Appeals. Whenever the Office of Disciplinary Counsel advocates any position before the Supreme Court of Appeals which differs from the findings of fact, conclusions of law, or recommended disposition of the Hearing Panel Subcommittee, it shall provide notice to the Hearing Panel Subcommittee, whether by service of a copy of its brief or otherwise, and the Hearing Panel Subcommittee shall be permitted, if it so desires, to file, within thirty days of receipt of such notice, its own brief before the Supreme Court of Appeals, in support of its findings of fact, conclusions of law, and recommended disposition. Following oral argument or submission of the case without oral argument, the Court will file an opinion or order disposing of the case. Unless otherwise provided in the Court’s opinion or order, any sanction will not take affect until after expiration of the rehearing period or the denial of any petition for rehearing. (Amended by order entered July 10, 1996, effective September 1, 1996.)
Rule 3.14. Grounds for discipline.
It shall be a ground for discipline for a lawyer to (1) violate or attempt to violate the Rules of Professional Conduct or any other rules of this jurisdiction regarding professional conduct of lawyers; (2) engage in conduct violating applicable rules of professional conduct of another jurisdiction; (3) knowingly fail to respond to a lawful demand from an investigative or Hearing Panel Subcommittee of the Lawyer Disciplinary Board, except that this rule does not require the disclosure of information otherwise protected by applicable rules relating to confidentiality; or (4) willfully violate a valid order of the Lawyer Disciplinary Board or the Supreme Court of Appeals imposing discipline.
Rule 3.15. Permissible sanctions.
A Hearing Panel Subcommittee may recommend or the Supreme Court of Appeals may impose any one or more of the following sanctions for a violation of the Rules of Professional Conduct or pursuant to Rule 3.14: (1) probation; (2) restitution; (3) limitation on the nature or extent of future practice; (4) supervised practice; (5) community service; (6) admonishment; (7) reprimand; (8) suspension; or (9) annulment. When a sanction is imposed, the Hearing Panel Subcommittee or the Court shall order the lawyer to reimburse the Lawyer Disciplinary Board for the costs of the disciplinary proceeding unless the panel or the Court finds the reimbursement will pose an undue hardship on the lawyer. Willful failure to reimburse the Board may be punished as contempt of the Court.
Rule 3.16. Factors to be considered in imposing sanctions.
In imposing a sanction after a finding of lawyer misconduct, unless otherwise provided in these rules, the Court or Board shall consider the following factors: (1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; (2) whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and (4) the existence of any aggravating or mitigating factors.
Rule 3.17. Effect of suspension or annulment.
Any suspension or annulment of a license to practice law shall operate and be effective throughout the State of West Virginia. The Office of Disciplinary Counsel shall publish a notice of any suspension or annulment in The West Virginia Lawyer and in newspapers of general circulation in each judicial circuit of this State in which the disciplined lawyer maintained an office for the practice of law.
Rule 3.18. Conviction of crime that reflects adversely on a lawyer’s honesty, trustworthiness or fitness.
(a) A lawyer who has been convicted of a crime that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall, within thirty days of entry of the order of judgment of conviction, forward a copy of the order or judgment to the Office of Disciplinary Counsel. Failure to forward a copy shall constitute an aggravating factor in any subsequent disciplinary proceeding.
(b) Any court in which any lawyer shall be convicted of any crime that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall, as part of the judgment, direct its clerk to forward a certified copy of the order or judgment of conviction to the office of Disciplinary Counsel.
(c) A plea or verdict of guilty or a conviction after a plea of nolo contendere shall be deemed to be a conviction within the meaning of this rule.
(d) A lawyer shall be deemed to have been convicted within the meaning of this rule upon the entry of the order or judgment of conviction and such lawyer’s license may be suspended or annulled thereupon notwithstanding the pendency of an appeal from such conviction.
(e) Upon receipt of the order or judgment, which shall be conclusive evidence of the guilt of the crime or crimes of which the lawyer has been convicted, the Office of Disciplinary Counsel shall prepare formal charges to be filed with the Clerk of the Supreme Court of Appeals, with a copy provided to the Chairperson of the Hearing Panel of the Lawyer Disciplinary Board. The formal charge shall inform the lawyer of the right to file a written request with the Chairperson of the Hearing Panel of the Lawyer Disciplinary Board for a mitigation hearing within thirty days of the date of the charge. Service of the formal charge shall be made in accordance with Rule 2.11.
(f) The Chairperson of the Hearing Panel of the Lawyer Disciplinary Board shall determine whether a mitigation hearing is warranted. Whether a mitigation hearing is warranted in a particular instance will depend upon a variety of factors, including but not limited to, the nature of the respondent’s misconduct, surrounding facts and circumstances, previous ethical violations, the willfulness of the conduct, and the adequacy of the respondent’s previous opportunity to present evidence for a determination of appropriate sanctions. If the Chairperson determines a mitigation hearing is not warranted, a written ruling on the request for a mitigation hearing shall be filed with the Clerk of the Supreme Court of Appeals. The lawyer may file written objections to this ruling with the Clerk of the Supreme Court of Appeals within ten days, and the Supreme Court of Appeals will review the decision.
(g) When the Chairperson of the Hearing Panel of the Lawyer Disciplinary Board determines a mitigation hearing is warranted, or the Supreme Court of Appeals reverses the Chairperson’s decision not to conduct a mitigation hearing and remands the matter to the Hearing Panel, a Hearing Panel Subcommittee of the Lawyer Disciplinary Board shall be appointed to conduct the hearing. The procedure for such hearings shall be in accordance with the rules governing other lawyer disciplinary hearings. The Office of Disciplinary Counsel may introduce evidence of aggravating factors at any mitigation hearing. The matter will be referred to the Supreme Court of Appeals for disposition upon the report of a Hearing Panel Subcommittee of the Lawyer Disciplinary Board in accordance with the rules governing other disciplinary matters. (Amended by order entered May 6, 1999, effective July 1, 1999.)
Rule 3.19. Conviction of felony that does not reflect adversely on a lawyer’s honesty trustworthiness or fitness as a lawyer in other respects.
(a) A lawyer who has been convicted of a felony not reflecting adversely on a lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall, within thirty days of entry of the order of judgment of conviction, forward a copy of the order or judgment to the Office of Disciplinary Counsel. Failure to forward a copy shall constitute an aggravating factor in any subsequent disciplinary proceeding.
(b) Any court in which any lawyer shall be convicted of a felony not reflecting adversely on a lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall, as part of the judgment, direct its clerk to forward a certified copy of the order or judgment of conviction to the Office of Disciplinary Counsel.
(c) A plea or verdict of guilty or a conviction after a plea of nolo contendere shall be deemed to be a conviction within the meaning of this rule.
(d) A lawyer shall be deemed to have been convicted within the meaning of this rule upon the entry of the order or judgment of conviction and such lawyer’s license may be suspended or annulled thereupon notwithstanding the pendency of all appeal from such conviction.
(e) Upon receipt of the order or judgment, which shall be conclusive evidence of the guilt of the crime or crimes of which the lawyer has been convicted, the Office of Disciplinary Counsel shall prepare formal charges to be filed with the Clerk of the Supreme Court of Appeals, with a copy provided to the Chairperson of the Hearing Panel of the Lawyer Disciplinary Board. The formal charge shall inform the lawyer of the right to file a written request with the Chairperson of the Hearing Panel of the Lawyer Disciplinary Board for a mitigation hearing within thirty days of the date of the charge. Service of the formal charge shall be made in accordance with Rule 2.11.
(f) The Chairperson of the Hearing Panel of the Lawyer Disciplinary Board shall determine whether a mitigation hearing is warranted. Whether a mitigation hearing is warranted in a particular instance will depend upon a variety of factors, including but not limited to, the nature of the respondent’s misconduct, surrounding facts and circumstances, previous ethical violations, the wilfulness of the conduct, and the adequacy of the respondent’s previous opportunity to present evidence for a determination of appropriate sanctions. If the Chairperson determines a mitigation hearing is not warranted, a written ruling on the request for a mitigation hearing shall be filed with the Clerk of the Supreme Court of Appeals. The lawyer may file written objections to this ruling with the Clerk of the Supreme Court of Appeals within ten days, and the Supreme Court of Appeals will review the decision.
(g) When the Chairperson of the Hearing Panel of the Lawyer Disciplinary Board determines a mitigation hearing is warranted, or the Supreme Court of Appeals reverses the Chairperson’s decision not to conduct a mitigation hearing and remands the matter to the Hearing Panel, a Hearing Panel Subcommittee of the Lawyer Disciplinary Board shall be appointed to conduct the hearing. The procedure for such hearings shall be in accordance with the rules governing other lawyer disciplinary hearings. The Office of Disciplinary Counsel may introduce evidence of aggravating factors at any mitigation hearing. The matter will be referred to the Supreme Court of Appeals for disposition upon the report of a Hearing Panel Subcommittee of the Lawyer Disciplinary Board in accordance with the rules governing other disciplinary matters.
Rule 3.20. Reciprocal discipline.
(a) A final adjudication in another jurisdiction, whether state or federal, of misconduct constituting grounds for discipline of a lawyer or a voluntary surrender of a license to practice in connection with a disciplinary proceeding shall, for the purposes of proceedings pursuant to these rules conclusively establish such conduct. Accordingly, a Hearing Panel Subcommittee may take action without conducting a formal hearing.
(b) Any lawyer who is a member, active or inactive, of The West Virginia State Bar against whom any form of public discipline has been imposed by the authorities of another jurisdiction, whether state or federal, or who voluntarily surrenders his or her license to practice law in connection with disciplinary proceedings in another jurisdiction, whether state or federal, shall notify the Office of Disciplinary Counsel of such action in writing within ten days thereof. Failure to notify the Office of Disciplinary Counsel shall constitute an aggravating factor in any subsequent disciplinary proceeding.
(c) Upon receiving notice that a lawyer who is a member, active or inactive, has been publicly disciplined or has voluntarily surrendered his or her license to practice law in another jurisdiction, whether state or federal, Disciplinary Counsel shall, following an investigation pursuant to these rules, refer the matter to a Hearing Panel Subcommittee for appropriate action.
(d) If the lawyer intends to challenge the validity of the disciplinary order entered in the foreign jurisdiction with a disciplinary proceeding, the lawyer must request a formal hearing and file with the Office of Disciplinary Counsel a full copy of the record of the disciplinary proceedings which resulted to imposition of the disciplinary order or the voluntary surrender of a license to practice law.
(e) At the conclusion of proceedings brought under this section, the Hearing Panel Subcommittee shall refer the matter to the Supreme Court of Appeals with the recommendation that the same discipline be imposed as was imposed by the foreign jurisdiction unless it is determined by the Hearing Panel Subcommittee that (1) the procedure followed in the foreign jurisdiction did not comport with the requirements of due process of law; (2) the proof upon which the foreign jurisdiction based its determination of misconduct is so infirm that the Supreme Court of Appeals cannot, consistent with its duty, accept as final the determination of the foreign jurisdiction; (3) the imposition by the Supreme Court of Appeals of the same discipline imposed in the foreign jurisdiction would result in grave injustice; or (4) the misconduct proved warrants that a substantially different type of discipline be imposed by the Supreme Court of Appeals.
Rule 3.21. Judicial determination of incompetency.
Where a lawyer has been judicially declared incompetent or involuntarily committed to a mental hospital, the Supreme Court of Appeals, upon receipt of a certified copy of such order, shall enter an order imposing an immediate administrative suspension of the attorney from the practice of law until further order of the Court. A copy of the order of administrative suspension shall be served upon the lawyer, the lawyer’s committee, and/or the director of the mental hospital in such manner as the Court may direct.
Rule 3.22. Reinstatement from administrative suspension for incompetency.
When a lawyer administratively suspended pursuant to the provisions of Rule 3.21. is later judicially declared to be competent, the Court may dispense with the proceedings applicable to reinstatement from suspension for incapacity and may direct reinstatement upon such terms as are deemed proper and advisable.
Rule 3.23. Complaint alleging disability.
(a) Whenever the Office of Disciplinary Counsel receives a complaint or, after conducting an appropriate investigation, concludes that a lawyer is disabled from continuing the practice of law by reason of mental infirmity or illness or because of addiction to drugs or alcohol, a report shall be filed with the Supreme Court of Appeals to take or direct such action as it deems necessary or proper to determine whether the lawyer is so disabled, including examination of the lawyer by such qualified medical experts as the Court shall designate. If, upon due consideration of the matter, the Court concludes that the lawyer is disabled form continuing to practice law, it shall enter an order imposing an administrative suspension on the lawyer on the ground of such disability until further order of the Court and any pending disciplinary proceedings against the lawyer shall be held in abeyance. The Court may provide for such notice to the lawyer of the proceedings under this subdivision as is deemed proper and advisable and may appoint counsel to represent the lawyer if he or she is without adequate representation.
(b) If during the course of a disciplinary proceedings, a lawyer contends that he or she is suffering from a disability by reason of mental or physical infirmity or illness, or because of addiction of drugs or alcohol, which makes it impossible for the lawyer to adequately defend the charges against the lawyer, the Court may enter an order, following such further proceedings as the Court shall deem necessary or proper, including examination of the lawyer by such qualified medical experts as the Court shall designate, imposing an administrative suspension on the lawyer from the practice of law until a determination is made pursuant to this rule that the lawyer is capable of practicing law. any proceedings held in abeyance pursuant to this subdivision upon administrative suspension for disability shall be resumed following an order of reinstatement. Entry of an order of administrative suspension for disability under this subdivision shall not preclude proceedings under Rule 3.23(a).
Rule 3.24. Reinstatement following administrative suspension for disability.
(a) Any lawyer administratively suspended under the provisions of Rule 3.23 shall be entitled to petition for reinstatement once a year or at such shorter intervals as the Court may direct in the order of administrative suspension or any modification thereof. Such petition shall be granted by the Court upon a showing by clear and convincing evidence that the lawyer’s disability has been removed and that the lawyer is fit to resume the practice of law. Upon such petition, the Court may take or direct such action as it deems necessary and proper to a determination of whether the lawyer’s disability has been removed, including a direction for an examination of the lawyer by such qualified experts as the Court shall designate. In its discretion, the Court may direct that the expenses of such an examination shall be paid by the lawyer.
(b) The filing of a petition for reinstatement by a lawyer administratively suspended for disability shall be deemed to constitute a waiver of any physician-patient privilege with respect to any treatment of the lawyer during the period of the lawyer’s disability. The lawyer shall be required to disclose the name of every psychiatrist, psychologist, counselor, physician, and health facility by whom or in which the lawyer has been examined or treated since the lawyer’s administrative suspension and the lawyer shall furnish to the Court written consent to each to divulge such information and records as requested by experts appointed by the Court.
Rule 3.25. Disbarment by consent.
A lawyer who is the subject of an investigation into or a pending proceeding involving allegations of misconduct may consent to disbarment, but only by delivering to the Board an affidavit stating that he or she desires to consent to disbarment and that (1) the lawyer’s consent is freely and voluntarily given; (2) the lawyer is not being subjected to coercion or duress; (3) the lawyer is fully aware of the implications of submitting consent; (4) the lawyer is aware that there is presently pending an investigation into, or proceedings involving, allegations that there exists grounds for the lawyer’s discipline, the nature of which the lawyer shall specifically set forth; (5) the lawyer acknowledges that the material facts so alleged are true; and (6) the lawyer submits his or her consent because the lawyer knows that if the charges were predicated upon the matters under investigation, or if the proceedings were prosecuted, the lawyer could not successfully defend the charges. Upon receipt of the required affidavit, the Lawyer Disciplinary Board shall file the same with the Supreme Court of Appeals which shall enter an order disbarring the lawyer by consent. The order disbarring the lawyer by consent shall be a matter of public record, but the affidavit required under the provisions of this rule shall not be publicly disclosed or made available for use in any other proceedings except upon order of the Court.
Rule 3.26. Voluntary resignation or inactive status.
(a) Any member of the state bar may file in the Supreme Court of Appeals a verified petition stating that such member desires to voluntarily resign as a member of the state bar and to have his or her name stricken from the rolls thereof. Such petition shall fully state the reasons for the prayer thereof and whether any disciplinary or criminal charges or proceedings are then pending against the petitioner or whether the petitioner apprehends the pendency of any such charges or proceedings. Knowing failure to disclose this information may constitute grounds for initiation of a separate disciplinary proceeding.
(b) At the time of filing a petition for voluntary resignation with the Clerk of the Supreme Court of Appeals, the petitioner shall file a copy of the petition with the Office of Disciplinary Counsel, which shall conduct such investigation as may be deemed necessary and proper. At the conclusion of the investigation, Disciplinary Counsel shall file a report with the Investigative Panel, including a recommendation regarding whether the petition should be granted or denied.
(c) The Investigative Panel shall promptly prepare a written report on the petition for voluntary resignation, including a recommendation regarding whether it should be granted or denied, and shall transmit its report to the Court. The Investigative Panel’s report shall become a part of the record in the case. The Investigative Panel shall mail a copy of its report to the petitioner’s last known address.
(d) Within ten days after such report has been filed, either the petitioner or Disciplinary Counsel shall have the right to make written request of the Court for a hearing upon the matters arising on the petition. If such request be made, the Court shall set the matter for hearing upon a day certain to be specified by the Court, which shall be within thirty days from the date of the expiration of the ten-day period for making a written request for a hearing. The hearing shall be held in such manner as the Court may direct. After such hearing, or after the expiration of the time for requesting a hearing without request therefor being made, the Court shall, by order entered of record, grant or refuse the prayer of the petition upon such terms and conditions as it may deem advisable.
(e) If the Court grants the prayer of the petition, the petitioner shall comply with the client notification requirements of Rule 3.28.
(f) If a member of the state bar not under suspension enrolls as an inactive member pursuant to Article II, section 4 of the By-Laws of The West Virginia State Bar while an ethics complaint or other disciplinary proceeding is pending before the Lawyer Disciplinary Board or the Supreme Court of Appeals, the member shall comply with the client notification requirements of Rule 3.28.
Rule 3.27. Extraordinary proceedings.
(a) Upon receipt of sufficient evidence demonstrating that a lawyer (1) has committed a violation of the Rules of Professional Conduct or is under a disability and (2) poses a substantial threat of irreparable harm to the public, the Office of Disciplinary Counsel shall conduct an immediate investigation.
(b) Upon completion of such investigation, the Office of Disciplinary Counsel shall promptly file a report with the Supreme Court of Appeals indicating whether, in the opinion of Disciplinary Counsel, the lawyer’s commission of a violation of the Rules of Professional Conduct or disability poses a substantial threat of irreparable harm to the public. The Office of Disciplinary Counsel shall attempt to provide reasonable notice to the lawyer prior to the filing of this report.
(c) Upon receipt of this report, the Supreme Court, upon determining the existence of good cause, shall provide notice of the charges to the lawyer with the right to a hearing in not less than thirty days before the Court. The Supreme Court may appoint a trustee to protect the interest of the lawyer’s clients during the pendency of these proceedings. After such hearing, the Supreme Court may temporarily suspend the lawyer or may order such other action as it deems appropriate until underlying disciplinary proceedings before the Lawyer Disciplinary Board have been completed.
(d) Unless otherwise provided, interim suspension of a lawyer pursuant to this rule shall take effect immediately upon entry of the order by the Supreme Court. A hearing on formal charges against the suspended lawyer shall be conducted by a Hearing Panel Subcommittee, unless continued for good cause shown, within ninety days after the effective date of suspension.
Rule 3.28. Duties of disbarred or suspended lawyers.
(a) A disbarred or suspended lawyer shall promptly notify by registered or certified mail, return receipt requested, or by first-class mail with the prior consent of the Office of Disciplinary Counsel, all clients being represented in pending matters, other than litigated or administrative matters or proceedings pending in any court of agency, of the lawyer’s inability to act as a lawyer after the effective date of disbarment or suspension and shall advise said clients to seek legal advice elsewhere. Failure of a disbarred or suspended lawyer to notify all clients of his or her inability to act as a lawyer shall constitute an aggravating factor in any subsequent disciplinary proceeding.
(b) A disbarred or suspended lawyer shall promptly notify by registered or certified mail, return receipt requested, or by first-class mail with the prior consent of the Office of Disciplinary Counsel, each of the lawyer’s clients who is involved in litigated or administrative matters or proceedings pending, of the lawyer’s inability to act as a lawyer after the effective date of disbarment or suspension and shall advise said client to promptly substitute another lawyer in his or her place. In the event the client does not obtain substitute counsel before the effective date of the disbarment or suspension, it shall be the responsibility of the disbarred or suspended lawyer to move pro se in the court or agency in which the proceeding is pending for leave to withdraw as counsel. The notice to be given to the lawyer for any adverse party shall state the place of residence of the client of the disbarred or suspended lawyer.
(c) The disbarred or suspended lawyer, after entry of the disbarment or suspension order, shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. During the period from the entry date of the order to its effective date, however, the lawyer may wind up and complete, on behalf of any client, all matters which were pending on the entry date. Within twenty days after the effective date of the disbarment or suspension order, the lawyer shall file under seal with the Supreme Court of Appeals an affidavit showing (1) the names of each client being represented in pending matters who were notified pursuant to subsections (a) and (b); (2) a copy of each letter of notification which was sent; (3) a list of fees and expenses paid by each client and whether escrowed funds have been or need to be reimbursed; and (4) an accounting of all trust money held by the lawyer on the date the disbarment or suspension order was issued. Such affidavit shall also set forth the residence or other address of the disbarred or suspended lawyer where communications may thereafter be directed and a list of all other courts and jurisdictions in which the disbarred or suspended lawyer is admitted to practice. A copy of this report shall also be filed with the Office of Disciplinary Counsel.
Rule 3.29. Appointment of Trustee.
(a) Appointment. The Supreme Court of Appeals, upon written request by Disciplinary Counsel, may authorize the chief judge in the circuit in which the lawyer maintained his or her practice, to appoint a lawyer or lawyers to serve as a trustee when there is evidence that:
(1) The lawyer is unable to properly discharge the lawyer’s responsibilities to clients due to disability, disappearance or death, and no partner, executor, or other responsible party capable of conducting the lawyer’s affairs is known to exist, or
(2) the lawyer failed to comply with Rule 3.28 after disbarment or suspension.
(b) Notice of Appointment. Notice of trustee’s appointment shall be provided to the Office of Disciplinary Counsel by the appointing judge which shall monitor and assist the work of the trustee as necessary and appropriate.
(c) Duties of Trustee. The trustee shall take whatever action seems indicated to protect the interests of the lawyer, and the lawyer’s clients and other affected parties, including, but not limited to the following:
(1) Inventory active files and make reasonable efforts to distribute them to clients;
(2) Inventory closed client files and make reasonable efforts to distribute them to former clients;
(3) Take possession of and review the lawyer trust and business accounts;
(4) Make reasonable efforts to distribute identified trust funds to clients or other parties (other than the lawyer);
(5) After obtaining an order of the circuit court, dispose of any remaining funds and assets as directed by the court; and
(6) Take any other action as seems necessary to protect the interests of the lawyer and the lawyer’s clients.
(d) Duties of Lawyer. The lawyer, to the extent possible, shall cooperate and promptly respond to reasonable requests for information from the trustee.
(e) Protection of Client Information. Any lawyer so appointed shall not be permitted to disclose any information contained in any files so inventoried without the informed, written consent of the client to whom such file relates, except as necessary to carry out the order of the court which appointed the lawyer to take such an inventory and to comply with any request from an appropriate disciplinary authority. The trustee shall report professional misconduct on the part of the lawyer as required by Rule 8.3.
(f) Reports to the Court. The trustee shall file written reports with the Office of Disciplinary Counsel and the clerk of the appointing court judge:
(1) Within 120 days of appointment;
(2) Prior to being discharged if later than 120 days of appointment; and
(3) At such other times as directed by the appointing court. The reports shall describe the nature and scope of the work accomplished and to be accomplished under this Rule 3.29 and the significant activities of the trustee in meeting the obligations under this Rule 3.29. The final report must include accountings for any trust and business accounts, the disposition of active and closed case files, and any requests for disposition of remaining files and property. The trustee may apply to the appointing court and/or Disciplinary Counsel for instructions whenever necessary to carry out or conclude the duties and obligations imposed by this Rule 3.29.
(g) Immunity. All trustees appointed pursuant to this Rule 3.29 shall be immune from liability for conduct in the performance of their official duties in accordance with Rule 3.29.
(h) Legal Responsibility of Lawyer. The lawyer for whom a trustee has been appointed or the estate of a deceased lawyer for whom a trustee has been appointed is liable to the trustee for all reasonable fees, costs, and expenses incurred by the trustee as approved by the appointing court. To the extent that the approved trustee’s fees, costs, and expenses are paid by the disciplinary authority or other third party, the lawyer or the estate shall be liable to make reimbursement to the disciplinary authority or other third party for such payment.
(i) Fees, Costs, and Expenses. Application for allowance of fees, costs, and expenses shall be made by affidavit to the appointing court, which may enter a judgment in favor of the trustee and against the attorney or the estate of a deceased attorney for whom a trustee has been appointed. Notice of the application for fees, costs, and expenses shall also be made to the Office of Disciplinary Counsel, the lawyer or, if deceased, to the lawyer’s personal representative, or heirs. For good cause shown, an interim application for fees, costs, and expenses may be made. As approved by the appointing court, the trustee shall be entitled to reimbursement from the lawyer or the deceased lawyer’s estate for:
(1) Reasonable expenses incurred by the trustee for costs, including, but not limited to, clerical, paralegal, legal, accounting, telephone, postage, moving, and storage expenses, and
(2) Reasonable attorneys’ fees. In the absence of other funding sources, the Office of Disciplinary Counsel may pay the approved fees, costs, and expenses.
Rule 3.30. Requirements for reinstatement.
When for any reason, other than for nonpayment of membership fees, the license of any person to practice law has been or shall be suspended or annulled, whether or not for a limited time or until requirements as to restitution, conditions, or some other act shall be satisfied, such person shall not become entitled to engage in the practice of law in this State, whether such time as elapsed or such other requirements as to restitution, conditions, or some other act have been satisfied, until such person shall have been restored to good standing as a member of the West Virginia State Bar as provided herein. Any conviction for false swearing, perjury or any felony, and the person’s prior and subsequent conduct shall be considered in the determination of good moral character and fitness.
Rule 3.31. Automatic reinstatement.
When a lawyer has been suspended for a period of three months or less, and all other requirements as to restitution, conditions, or some other act shall be satisfied, the lawyer’s reinstatement to the practice of law in this State shall be automatic, unless otherwise provided in the order of suspension, upon satisfaction of all membership requirements of The West Virginia State Bar, including fees and mandatory continuing legal education, unless otherwise provided in the order of suspension. Failure to comply with all requirements as to restitution, conditions, or some other act incident to the suspension, shall constitute an aggravating factor in any subsequent disciplinary proceeding. The lawyer shall provide written documentation to the Office of Disciplinary Counsel no later than fourteen days prior to the effective date of reinstatement that all terms and conditions imposed by the Supreme Court of Appeals have been satisfied. Thereafter, if the Office of Disciplinary Counsel shall determine that all terms and conditions of reinstatement have not been satisfied, it shall inform the Supreme Court of Appeals prior to the effective date of reinstatement in order that compliance with its directives can be compelled.
Rule 3.32. Reinstatement procedure following suspension.
(a) A person whose license to practice law has been or shall be suspended in this State for a period of more than three months and who shall desire reinstatement of such license, shall file a verified petition in the Supreme Court of Appeals reciting what he or she shall have done in satisfaction of requirements as to restitution, conditions, or other acts incident to the suspension, by reason of which the lawyer believes he or she should be reinstated as a member of the state bar and should have his or her license to practice law restored. The petitioner shall also file a completed reinstatement questionnaire provided by the Office of Disciplinary Counsel. At the time of filing such petition and questionnaire with the Clerk of the Supreme Court, the petitioner shall file a copy of each with the Office of Disciplinary Counsel, which shall investigate the same and determine whether a hearing is necessary.
(b) If Disciplinary Counsel determines that a hearing is not necessary, a written report shall be filed with the Supreme Court within thirty days of the filing of the petition, asking a recommendation regarding the request for reinstatement. Within ten days of after the filing of the report, either the petitioner or Disciplinary Counsel shall have a right to make a written request for a hearing before the Court.
(c) If Disciplinary Counsel determines that a hearing is necessary, a Hearing Panel Subcommittee shall schedule a hearing on the petition within sixty days of its receipt of the report of Disciplinary Counsel, or upon a later date upon a showing of good cause by Disciplinary Counsel or the petitioner. The Hearing Panel Subcommittee shall promptly prepare a written report on the petition, including a recommendation with respect to the grant or denial of the petition, to the Supreme Court of Appeals. The Hearing Panel Subcommittee shall mail a copy of the report to the petitioner’s last known mailing address. Within ten days after the report has been filed with the Court, either the petitioner or Disciplinary Counsel shall have the right to make a written request for a hearing on the petition.
(d) If a request for hearing before the Court is made on a petition for reinstatement, it shall be scheduled within thirty days from the date of expiration of the ten-day period for making a written request. The hearing shall be held in such manner as the Court may direct.
(e) After a hearing on a petition for reinstatement, or after the expiration of the time for requesting a hearing without request therefor being made, the Court shall, by order entered of record, grant or refuse the petition for reinstatement.
(f) If a petition for reinstatement is granted, it may be subject to such terms and conditions as the court may prescribe, and thereupon the Court may authorize or order that the petitioner’s license to practice law be reinstated and that petitioner be restored as a member in good standing of the state bar, subject to satisfaction of requirements as to payment of state bar membership fees and mandatory continuing legal education, unless otherwise provided in the order of suspension.
(g) If the petition is withdrawn or denied, the Court may enter an order of judgment requiring the petitioner to reimburse the Office of Disciplinary Counsel for the ordinary and necessary costs expended in connection with the petition for reinstatement. The Court may include in any order denying reinstatement any terms and conditions concerning subsequent petitions, including time restrictions concerning filing, as the Court may deem just.
Rule 3.33. Reinstatement procedure following annulment.
(a) The annulment of a license to practice law shall revoke and terminate such license, and shall constitute a disbarment.
(b) After the expiration of five years from the date of disbarment, a person whose license to practice law has been or shall be annulled in this State and who shall desire reinstatement of such license may file a verified petition in the Supreme Court of Appeals reciting the cause of such annulment and what the person shall have done in satisfaction of requirements as to rehabilitation, restitution, conditions or other acts incident thereto, by reason of which the person should be reinstated as a member of the state bar and his or her license to practice law restored. The petitioner shall also file a completed reinstatement questionnaire provided by the Office of Disciplinary Counsel. At the time of filing the petition and questionnaire with the Clerk of the Supreme Court of Appeals, the petitioner shall also file a copy of each with the Office of Disciplinary Counsel, which shall conduct a prompt investigation thereof and shall file a report with a Hearing Panel Subcommittee of the Lawyer Disciplinary Board.
(c) The Hearing Panel Subcommittee shall schedule a hearing within sixty days of its receipt of the report of Disciplinary Counsel, or upon a later date upon a showing of good cause by the petitioner or Disciplinary Counsel. Following the hearing, the Hearing Panel Subcommittee shall promptly prepare a written report, including a recommendation with reference to action on the petition, and shall transmit the report to the Court. The report shall become part of the record in the case. The Hearing Panel Subcommittee shall mail, by registered or certified mail, a copy of the report to the petitioner at his or her last known address. Within ten days after the filing of the report of the Hearing Panel Subcommittee, either the petitioner or Disciplinary Counsel shall have the right to make written request of the Court for a hearing upon the matters arising on the petition.
(d) If a request for hearing before the Court is made on a petition for reinstatement, it shall be scheduled within thirty days from the date of expiration of the ten-day period for making a written request. The hearing shall be held in such manner as the Court may direct.
(e) After a hearing on a petition for reinstatement, or after the expiration of the time for requesting a hearing without request therefor being made, the Court shall, by order entered of record, grant or refuse the petition for reinstatement.
(f) If a petition for reinstatement is granted, it may be subject to such terms and conditions as the Court may prescribe, and thereupon the Court may authorize or order that the petitioner’s license to practice law be reinstated and that petitioner be restored as a member in good standing of the state bar, subject to satisfaction of requirements as to payment of state bar membership fees and mandatory continuing legal education, unless otherwise provided in the order of suspension.
(g) If the petition is withdrawn or is denied, the Court may enter an order of judgment requiring the petitioner to reimburse the Office of Disciplinary Counsel for the ordinary and necessary costs expended in connection with the petition for reinstatement. The Court may include in any order denying reinstatement any terms and conditions concerning subsequent petitions, including time restrictions concerning filing, as the Court may deem just.