Rules of Lawyer Disciplinary Procedure

Rule 1. Lawyer Disciplinary Board

The standard of professional ethics and conduct of the bench and bar is of the highest importance to the people of the State of West Virginia and to the members of the legal profession. Every member of the legal profession shall observe the highest standards of professional conduct. In furtherance of this goal, the Supreme Court of Appeals does hereby establish a Lawyer Disciplinary Board (Board) to investigate complaints of violations of the Rules of Professional Conduct promulgated by the Supreme Court of Appeals to govern the professional conduct of those admitted to the practice of law in West Virginia or any individual admitted to the practice of law in another jurisdiction who engages in the practice of law in West Virginia and to take appropriate action in accordance with the provisions of the Rules of Lawyer Disciplinary Procedure. The Board shall be exempt from the payment of filing fees in all proceedings. (Amended by order entered December 6, 1994, effective January 1, 1995 and by order entered May 6, 1999, effective July 1, 1999.)

Rule 1.1. Membership

The Board shall consist of twenty-two members, fifteen of whom shall be active members of The West Virginia State Bar and seven of whom shall be members of the public. Initially, the membership of the Board shall consist of the current members of the Committee on Legal Ethics of The West Virginia State Bar. (Amended by order entered November 26, 2013.)

Rule 1.2. Terms

The members of the Board shall serve staggered terms of three years. The appointment date of the terms shall be filed with the Clerk of the Supreme Court. All members of the Board currently serving as members of the Committee on Legal Ethics of The West Virginia State Bar shall serve the remainder of their terms. The term and authority of any member of the Board shall be extended to allow such member to participate in any matter in which the member has participated prior to expiration of the member’s term.

Rule 1.3. Appointment

The members of the Board shall be appointed by the Board of Governors of The West Virginia State Bar at its annual meeting. Members of the Board shall attend an orientation program conducted by the Office of Disciplinary Counsel within six months of appointment.

Rule 1.4. Eligibility

When an active member of The West Virginia State Bar ceases to become an active member of The West Virginia State Bar or whenever any member becomes otherwise ineligible to hold office, his or her membership on the Board shall terminate. A member of the Board may be removed by the concurrence of a majority of the Board for an unreasonable failure to perform the member’s duties.

Rule 1.5. Vacancies

Whenever a vacancy is to occur due to the expiration of the term of a member of the Board, the Chairperson shall notify the Board of Governors of The West Virginia State Bar sixty days prior to the expiration of the term. Whenever a vacancy occurs on the Board for any other reason, the Chairperson shall notify the Board of Governors of The West Virginia State Bar within thirty days of the vacancy. If the Board of Governors of The West Virginia State Bar does not fill a vacancy within sixty days of the date of the written notice of vacancy, it shall be filled by the Supreme Court of Appeals. A vacancy on the Board shall be filled for the unexpired portion of the term for which the original appointment was made. All persons appointed shall continue to serve until their successors are appointed and qualified.

Rule 1.6. Reappointment

A member of the Board who has completed one full term of service shall be eligible for a single reappointment after completion of the member’s term. Any member appointed to fill a vacancy who has served less than one year shall be eligible for two reappointments.

Rule 1.7. Election of officers

The members of the Board shall annually elect a Chairperson and a Vice-Chairperson. The Chairperson, and in the Chairperson’s absence the Vice-Chairperson, shall perform the duties normally associated with that office and shall preside over all meetings of the full Board, ruling on all motions, objections, and evidence. The Chairperson may serve, as his or her discretion, as the Chairperson of the Investigative Panel or the Hearing Panel, and the Vice-Chairperson shall serve as Chairperson of the other panel.

Rule 1.8. Quorum

Ten members of the Board shall constitute a quorum. The Board shall act only with the concurrence of a majority of those present and voting.

Rule 1.9. Compensation and expenses

Members of the Board shall be eligible for reimbursement for travel and other expenses incidental to the performance of their duties.

Rule 1.10. Disqualification

A member of the Board may not participate as such in any proceeding involving a charge against such member, such member’s spouse, or a person within the third degree of relationship to either the member or the member’s spouse. The appropriate appointing authority may make temporary appointments to fill a disqualified member’s position in a given proceeding. Board members shall disqualify themselves in any proceeding in which a judge, similarly situated, would be required to disqualify himself or herself.

Rule 1.11. Authority

The Board shall have the authority to (1) propose rules of procedure for lawyer disciplinary proceedings for promulgation by the Supreme Court of Appeals; (2) file an annual report with the Supreme Court of Appeals on the operation of the lawyer disciplinary system; (3) inform the public about the existence and operation of the lawyer disciplinary system, the filing of formal charges, and the discipline imposed or recommended on formal charges; (4) delegate, in its discretion, to the Chairperson or Vice-Chairperson the authority to act for the Board on administrative and procedural matters; (5) nominate, for selection by the Supreme Court of Appeals, candidates for the position of Chief Lawyer Disciplinary Counsel; (6) appoint an Investigative Panel of seven members, at least two of whom must be members of the public, and designate the Chairperson for the Investigative Panel; (7) appoint a Hearing Panel of twelve members, at least four of whom must be members of the public, and designate a Chairperson for each Hearing Panel; (8) appoint Hearing Panel Subcommittees of three members each, two of whom must be members of The West Virginia State Bar and one of whom must be a member of the public; (9) issue formal ethics opinions; and (10) engage in such other activities related to lawyer discipline as it deems appropriate.

Rule 2. Investigative Panel

The Investigative Panel of the Lawyer Disciplinary Board shall determine whether probable cause exists to formally charge a lawyer with a violation of the Rules of Professional Conduct.

Rule 2.1. Membership

The Investigative Panel shall consist of seven members, with five members of The West Virginia State Bar and two members of the public.

Rule 2.2. Quorum

Four members of an Investigative Panel shall constitute a quorum. An Investigative Panel, however, shall act only with the concurrence of a majority of those present and voting. The Chairperson of the Board may appoint alternate members to an Investigative Panel as necessary to meet the requirements of this rule. No member of an Investigative Panel may participate as a member of a Hearing Panel in any case in which such member has served as a member of the Investigative Panel. Investigative panels may deliberate and issue decisions in person, by telephone conference, or by written correspondence. (Amended by order entered June 15, 1995, effective July 1, 1995.)

Rule 2.3. Form of complaints

The form of complaints shall be determined by the Board. It may require that complaints other than those initiated by the Office of Disciplinary Counsel shall be in writing and verified by the complainant.

Rule 2.4. Evaluation and Investigation of complaints

(a) The Office of Disciplinary Counsel shall evaluate all information coming to its attention by complaint or from other sources alleging lawyer misconduct or incapacity. The Office of Disciplinary Counsel may refer matters to committees of The West Virginia State Bar for resolution or attempt to informally resolve the matter without docketing a complaint. If the information alleges facts that, if true, would constitute a violation of the Rules of Professional Conduct, the Office of Disciplinary Counsel shall also conduct such investigations as may be directed by the Investigative Panel of the Lawyer Disciplinary Board. The Office of Disciplinary Counsel may initiate investigations on its own. The Office of Disciplinary Counsel may obtain from the Chairperson of the Investigative Panel or the Clerk of the Supreme Court of Appeals a subpoena for evidence and the testimony of witnesses and the production of documents for the investigation of docketed complaints. The Chairperson of the Investigative Panel or the Clerk of the Supreme Court of Appeals shall issue a subpoena requiring such person to appear before the Office of Disciplinary Counsel to produce all documents and give evidence on the matters in question. Any failure to obey such subpoena may be punished by contempt.

(b) Upon conclusion of the investigation of a docketed complaint, the complaint shall be:

(1) dismissed by the Chief Lawyer Disciplinary Counsel if there is no evidence of a violation of the Rules of Professional Conduct. The complainant and respondent shall be notified in writing of the dismissal. The complainant may file a written objection which shall be reviewed by the Investigative Panel; or

(2) reported by the Office of Disciplinary Counsel to the Investigative Panel, pursuant to Rule 2.8 herein.

(c) Chief Lawyer Disciplinary Counsel shall make a monthly report to the Investigative Panel Chairperson of all matters not docketed and all complaints dismissed. The Chairperson may:

(1) direct that any matter not previously docketed be docketed as a complaint and investigated; and

(2) direct that any dismissed docketed complaint be reported to the Investigative Panel pursuant to rule 2.8 herein for review upon notice to the complainant and respondent. (Amended by order entered May 6, 1999, effective July 1, 1999.)

Rule 2.5. Response to complainants

Prior to filing a report with the Investigative Panel or closing a complaint with the approval of the Investigative Panel Chairperson or his or her designee, the Office of Disciplinary Counsel shall notify the respondent involved in writing of the nature of the complaint. the respondent shall have twenty days after the date of the written notice to file a written response to the complaint. For good cause shown, the Office of Disciplinary Counsel may extend the time for filing such pleadings. The response shall be verified by the respondent. (Amended by order entered May 6, 1999, effective July 1, 1999.)

Rule 2.6. Confidentiality

The details of complaints filed with or investigations conducted by the Office of Disciplinary Counsel shall be confidential, except that when a complaint has been filed or an investigation has been initiated, the Office of Disciplinary Counsel or the lawyer may release information confirming or denying the existence of a complaint or investigation, explaining the procedural aspects of the complaint or investigation, or defending the right of the lawyer to a fair hearing. Prior to the release of information confirming or denying the existence of a complaint or investigation by the Office of Disciplinary Counsel, reasonable notice shall be provided to the lawyer. (Amended by order entered May 6, 1999, effective July 1, 1999.)

Rule 2.7. Privilege and immunity

All information provided, documents filed or testimony given with respect to any complaint, investigation or proceeding under these rules shall be privileged in any action for defamation. All members of the Board, of the Lawyer Committee on Assistance and Intervention, Disciplinary Counsel, and their employees, shall be absolutely immune from civil suit in the same manner as members of the judiciary in this State for any conduct in the course of their official duties.

Rule 2.8. Report on complaints

(a) When it is evident on the face of a complaint that it is frivolous or patently unfounded or if, after investigation, the complaint is unfounded or does not state proper or sufficient grounds for the exercise of the jurisdiction of the Lawyer Disciplinary Board, the Office of Disciplinary Counsel may, with the approval of the Chairperson of the Investigative Panel or his or her designee, issue a brief explanatory statement in support of its decision to close the complaint. If issued, a copy of the brief explanatory statement shall be provided to the respondent.

(b) As to all other complaints received and investigations conducted by the Office of Disciplinary Counsel, a written report may be filed with the Investigative Panel. The report may recommend whether the Office of Disciplinary Counsel believes there is probable cause to formally charge the lawyer with a violation of the Rules of Professional Conduct. The report may include a copy of any written response by the lawyer, together with a list of documents, affidavits, or other material that has been collected or submitted in connection with the complaint or investigation. (Amended by order entered May 6, 1999, effective July 1, 1999.)

Rule 2.9. Review of complaints

(a) Within sixty days after the date of a report by the Office of Disciplinary Counsel, the Investigative Panel shall file a written decision regarding whether it believes there is probable cause to formally charge the lawyer with a violation of the Rules of Professional Conduct, whether the matter should be investigated further by the Office of Disciplinary Counsel, or whether the matter should be referred for mediation in accordance with the Rules of Procedure for Court-Annexed Mediation (see Editor’s Note).

(b) When it has been determined that probable cause does not exist, the Investigative Panel shall issue a brief explanatory statement in support of its decision to close the complaint. This statement, and a copy of the initial complaint, shall be made available to the public.

(c) When it has been determined that probable cause does exist, but that formal discipline is not appropriate under the circumstances, the Investigative Panel shall issue a written admonishment to the respondent, who has fourteen days after its receipt to object. The written admonishment shall be available to the public, but shall not be reported to any other jurisdiction in which the respondent is licensed to practice law. If the Office of Disciplinary Counsel or the respondent files a timely objection to the written admonishment, the Investigative Panel shall file a formal charge with the Clerk of the Supreme Court of Appeals. Admonishment shall not be administered if

(1) the misconduct involves the misappropriation of funds;

(2) the misconduct resulted or will likely result in substantial prejudice to a client or other person;

(3) the respondent has been disciplined by the Supreme Court of Appeals in the last three years;

(4) the misconduct is of the same nature as misconduct for which the respondent has been disciplined by the Supreme Court of Appeals in the last five years;

(5) the misconduct involves dishonesty, deceit, fraud, or misrepresentation by the respondent;

(6) the misconduct constitutes a crime that adversely reflects on the respondent’s honesty, trustworthiness, or fitness as a lawyer; or

(7) the misconduct is part of a pattern of similar misconduct.

(d) When it has been determined that probable cause does exist, and that formal discipline is appropriate, the Investigative Panel shall file a formal charge with the Clerk of the Supreme Court of Appeals. After the filing and service of formal charges, all documents filed with the Clerk of the Supreme Court of Appeals and the Hearing Panel Subcommittee shall be available to the public. (Amended by order entered May 6, 1999, effective July 1, 1999.)

Rule 2.10. Filing of formal charges

After reasonable notice to the Office of Disciplinary Counsel and the lawyer, the formal charge shall be filed by the Investigative Panel with the Clerk of the Supreme Court of Appeals. The formal charge shall inform the lawyer of the right to file a written response within thirty days of the date of service of the charge as set forth in Rule 2.11. (Amended by order entered May 6, 1999, effective July 1, 1999.)

Rule 2.11. Service of formal charges

Service of a formal charge shall be made by the Clerk of the Supreme Court by certified mail, return receipt requested, to the lawyer at his or her office, or at his or her last known address or, in the alternative, service may be made in a manner consistent with the rules for service of process under the West Virginia Rules of Civil Procedure. Return of service shall be directed to the Clerk of the Supreme Court of Appeals.

Rule 2.12. Response to formal charges

The respondent may file responsive pleadings as provided in the West Virginia Rules of Civil Procedure. An Answer shall be verified by the respondent. Any such pleadings shall be filed by the respondent with the Clerk of the Supreme Court of Appeals and the Office of Disciplinary Counsel not more than thirty days after service of the formal charges. For good cause shown, the Office of Disciplinary Counsel may extend the time for filing such pleadings. (Amended by order entered May 6, 1999, effective July 1, 1999.)

Rule 2.13. Failure to file response

The failure to file a response to the formal charges shall be deemed an admission of the factual allegations contained therein. A Hearing Panel Subcommittee may proceed to issue a recommended disposition based upon such admission upon motion made by the Office of Disciplinary Counsel and heard telephonically or in person by the Hearing Panel Subcommittee. In its discretion, the Hearing Panel Subcommittee may proceed with a hearing, pursuant to Rule 3.6. (Amended by order entered May 6, 1999, effective July 1, 1999.)

Rule 2.14. Limitation of complaints

Any complaint filed more than two years after the complainant knew, or in the exercise of reasonable diligence should have known, of the existence of a violation of the Rules of Professional Conduct, shall be dismissed by the Investigative Panel.

Rule 2.15. Informal advisory opinions or ethics advice

(a) A lawyer may by written request seek an informal advisory opinion or by telephonic inquiry seek informal ethics advice from Disciplinary Counsel as to whether specific actions may constitute a violation of the Rules of Professional Conduct.

(b) Unless extraordinary circumstances are present which require an expedited response, Disciplinary Counsel shall file a report on each request for an informal advisory opinion with the Investigative Panel of the Lawyer Disciplinary Board. If extraordinary circumstances are present which require an expedited response, Disciplinary Counsel may render an informal advisory opinion without reference to the Investigative Panel. All such informal advisory opinions rendered by Disciplinary Counsel shall be in writing and a copy shall be forwarded to the Chairperson of the Lawyer Disciplinary Board and the requesting lawyer. Disciplinary Counsel may render informal ethics advice by telephone; provided that the requesting lawyer shall memorialize the advice by letter and obtain Disciplinary Counsel’s signature attesting to the accuracy of the memorialization.

(c) The Investigative Panel may render in writing such informal advisory opinion as it may deem appropriate or may return the report to Disciplinary Counsel for further review. The Investigative Panel shall forward a copy of every informal advisory opinion to the Chairperson of the Lawyer Disciplinary Board, the Office of Disciplinary Counsel, and the requesting lawyer. If approved by Disciplinary Counsel, a signed copy of memorialized ethics advice shall be forwarded to the Chairperson of the Investigative Panel and the requesting lawyer.

(d) An informal advisory opinion or memorialized ethics advice is not binding on the Hearing Panel of the Lawyer Disciplinary Board or the Court, but shall be admissible in any subsequent disciplinary proceeding involving the requesting lawyer. An informal advisory opinion shall not be accorded the same weight in any subsequent disciplinary proceeding as a formal advisory opinion rendered pursuant to Rule 2.16. Memorialized ethics advice shall be admissible, but shall be accorded only such weight in any subsequent disciplinary proceeding involving the requesting lawyer as deemed appropriate by the Hearing Panel Subcommittee. Informal ethics advice that has not been memorialized in accordance with this rule shall be inadmissible and shall not be accorded any weight in any subsequent disciplinary proceeding involving the requesting lawyer.

(e) No member of the Investigative Panel rendering an advisory opinion may serve on the Hearing Panel in a proceeding involving a complaint or charge arising from conduct which was the subject of the advisory opinion. (Amended by order entered June 15, 1995, effective July 1, 1995.)

Rule 2.16. Formal advisory opinions

(a) A lawyer may by written request of the Disciplinary Counsel seek an formal advisory opinion as to whether certain specific actions contemplated may constitute a violation of the Rules of Professional Conduct.

(b) Disciplinary Counsel shall file a report on each request with the Lawyer Disciplinary Board.

(c) The Lawyer Disciplinary Board may render in writing such formal advisory opinion as it may deem appropriate or may return the report to Disciplinary Counsel for further review. The Lawyer Disciplinary Board shall forward a copy of every formal advisory opinion to the Clerk of the Supreme Court of Appeals, Disciplinary Counsel, and the requesting lawyer. Every formal advisory opinion shall be published in The West Virginia Lawyer.

(d) A formal advisory opinion is binding on the Hearing Panel of the Lawyer Disciplinary Board in any subsequent disciplinary proceeding involving the requesting lawyer, but is not binding upon the Supreme Court of Appeals.

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 the 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, 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 of the denial of any petition for rehearing.

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.

(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.

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 from 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.

(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.

Rule 4. Office of Disciplinary Counsel

The Supreme Court of Appeals does hereby establish an Office of Disciplinary Counsel to prosecute violations of the Code of Judicial Conduct and the Rules of Professional Conduct. The Office of Disciplinary Counsel shall consist of separate Lawyer Disciplinary Counsel and Judicial Disciplinary Counsel. Lawyer Disciplinary Counsel shall be primarily responsible for the investigation of complaints of ethical violations by lawyers. Judicial Disciplinary Counsel shall be primarily responsible for the investigation of complaints of ethical violations by judges. Notwithstanding these primary responsibilities, when circumstances warrant, Lawyer Disciplinary Counsel shall have the authority to investigate and prosecute complaints of ethical violations by judges and Judicial Disciplinary Counsel shall have the authority to investigate and prosecute complaints of ethical violations by lawyers. The Office of Disciplinary Counsel shall be exempt from the payment of filing fee in all proceedings. (Amended by order entered May 6, 1999, effective July 1, 1999.)

Rule 4.1. Appointment

Chief Lawyer Disciplinary Counsel and Assistant Lawyer Disciplinary Counsel employed on the effective date of these rules shall continue to serve in those positions. Judicial Investigations Commission Counsel employed on the effective date of these rules shall continue to serve as Judicial Disciplinary counsel. The Lawyer Disciplinary Board shall nominate three candidates for selection by the Supreme Court of Appeals of any successor to the current Chief Lawyer Disciplinary Counsel. The Chief Lawyer Disciplinary Counsel shall select any successors to current Assistant Lawyer Disciplinary Counsel. The Judicial Disciplinary Board shall nominate three candidates for selection by the Supreme Court of Appeals of any successor to the current Judicial Disciplinary Counsel.

Rule 4.2. Removal

Chief Lawyer Disciplinary Counsel shall not be removed except upon concurrence of the Lawyer Disciplinary Board and the Supreme Court of Appeals. Assistant Lawyer Disciplinary Counsel may be removed by Chief Lawyer Disciplinary Counsel. Judicial Disciplinary Counsel shall not be removed except upon concurrence of the Judicial Investigation Commission and the Supreme Court of Appeals.

Rule 4.3. Practice of law

Disciplinary Counsel shall be admitted to the practice of law in the State of West Virginia upon the effective date of his or her appointment. Disciplinary Counsel shall not engage in the private practice of law.

Rule 4.4. Authority

Disciplinary Counsel shall perform all prosecutorial functions and have the authority to

(1) receive complaints concerning violations of the Code of Judicial Conduct and the Rules of Professional Conduct;

(2) review all complaints concerning violations of the Code of Judicial Conduct and the Rules of Professional Conduct;

(3) investigate information concerning violations of the Code of Judicial Conduct and Rules of Professional Conduct;

(4) prosecute violations of the Code of Judicial Conduct and Rules of Professional Conduct before the Lawyer Disciplinary Board, the Judicial Investigation Commission, the Judicial Hearing Board, and the Supreme Court of Appeals;

(5) employ and supervise staff necessary for the performance of prosecutorial functions;

(6) notify promptly the complainant and the respondent of the disposition of each matter;

(7) notify each jurisdiction in which a lawyer is admitted of the transfer to or from disability, reinstatement, or any public discipline imposed in the State of West Virginia;

(8) seek reciprocal discipline when informed of any public discipline imposed in any other jurisdiction;

(9) forward a certified copy of the order or judgment of conviction in each jurisdiction in which a lawyer is admitted when the lawyer is convicted of crime reflecting adversely on a lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;

(10) maintain permanent records of discipline and disability matters and compile statistics to aid in the administration of the system, including but not limited to a single log of all complaints received, investigative files, statistical summaries of docket processing and case dispositions, transcripts of all proceedings or audiotapes if not transcribed, and other records as the Lawyer Disciplinary Board, Judicial Investigation Commission, Judicial Hearing Board or the Supreme Court of Appeals require to be maintained; and

(11) undertake, pursuant to information provided by the Lawyer Disciplinary Board, Judicial Investigation Commission or the Supreme Court of Appeals, whatever investigations are deemed appropriate.

Rule 4.5. Expenses

The salaries of Disciplinary Counsel and staff, their expenses, administrative costs, and the expenses of the members of the Lawyer Disciplinary Board, the Judicial Investigation Commission, and Judicial Hearing Board shall be paid from funds contributed by the Supreme Court of Appeals and The West Virginia State Bar. The proportion of funds contributed by the Supreme Court of Appeals and The West Virginia State Bar shall approximate the proportion of judicial disciplinary complaints to lawyer disciplinary complaints. The Office of Disciplinary Counsel shall submit an annual budget to Lawyer Disciplinary Board and the Administrative Director of the Courts detailing the projected revenues and expenses for approval by the Supreme Court of Appeals. An independent audit shall be conducted annually by a certified public accountant of the funds entrusted to the Office of Disciplinary Counsel and a copy of such audit shall be filed with the Lawyer Disciplinary Board and the Administrative Director of the Courts.

Rule 4.6. Statistical reporting

Chief Lawyer Disciplinary Counsel and Judicial Disciplinary Counsel shall each make a separate monthly report to the Clerk of the Supreme Court of Appeals regarding

(1) the number of complaints under investigation;

(2) the number of complaints pending a probable cause decision;

(3) the number of complaints pending a hearing;

(4) the number of complaints pending a recommended decision;

(5) the number of complaints pending before the Supreme Court of Appeals;

(6) the number of complaints filed to date in the current calendar year;

(7) the number of complaints closed to date in the current calendar year;

(8) the number of complaints in which formal charges have been filed to date in the current calendar year;

(9) the number of complaints pending less than six months;

(10) the number of complaints pending more than six months, but less than twelve months;

(11) the number of complaints pending more than twelve months, but less than eighteen months;

(12) the number of complaints pending more than eighteen months, but less than twenty-four months; and

(13) the number of complaints pending more than twenty-four months.

Rule 5. Lawyer committee on Assistance and Intervention.