In re McMillian

578 S.E.2d 339, 213 W. Va. 145, 2000 W. Va. LEXIS 142
CourtWest Virginia Supreme Court
DecidedDecember 5, 2000
DocketNo. 27866
StatusPublished
Cited by2 cases

This text of 578 S.E.2d 339 (In re McMillian) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re McMillian, 578 S.E.2d 339, 213 W. Va. 145, 2000 W. Va. LEXIS 142 (W. Va. 2000).

Opinions

PER CURIAM:

In this proceeding, Mark L. McMillian prays that this Court reject a recommendation of the West Virginia Board of Law Ex[146]*146aminers and admit him to the practice of law in the State of West Virginia.

I.

FACTS

In May 1999, Mark L. MeMillian, graduated from the Thomas Jefferson School of Law, an ABA accredited law school. Subsequently, he took and passed the West Virginia bar examination and sought admission to the practice of law in West Virginia.

Mr. McMillian’s application for admission disclosed that in 1995, he was convicted and imprisoned for a federal felony arising out of illegal electronic eavesdropping. Further, it appeared that in 1987, Mr. MeMillian had been discharged from his position as deputy sheriff of Kanawha County for seeking reimbursement from public funds for taking an unofficial guest on an extradition assignment, in violation of the statutory law of the State. The facts of Mr. McMillian’s discharge had been previously discussed by this Court in McMillian v. Ashley, 193 W.Va. 269, 455 S.E.2d 921 (1995), a civil action growing out of the dismissal. Those facts showed that Mr. McMillian, as a deputy sheriff, was assigned to proceed to the State of Florida to assume custody of a felony fugitive, and return the fugitive to West Virginia. He was accompanied on the trip by a secretary in the Kanawha County Sheriffs Department. Upon arriving in Tampa, Florida, Mr. McMil-lian elected to spend the first night, along with the secretary, at a luxury resort in St. Petersburg, Florida. The following night, they stayed in a Holiday Inn in Seabring, Florida. Upon his return to West Virginia, Mr. MeMillian sought reimbursement for his personal expenses from his employer, the Kanawha County Sheriffs Department, including reimbursement for the secretary’s meals, as well as for the additional costs incurred in seeming a double occupancy room.

When Mr. MeMillian appeared before the 8th District Character Committee, he openly answered questions relating to his background, including the conviction, and the Committee found that he was morally fit to practice law unless the felony conviction per se rendered him morally unfit. The District Character Committee’s findings were transmitted to the West Virginia Board of Law Examiners, and the Board interviewed Mr. McMillian on November 11, 1999. After the interview, the Board scheduled a further hearing before John Fowler, Esquire, a hearing examiner. At the hearing, evidence was taken regarding Mr. McMillian’s 1995 conviction, on his discharge as a deputy sheriff, and on the question of whether he had intentionally absented himself from the United States when it appeared that he would be prosecuted on the eavesdropping charge. Extensive character and other evidence was also introduced. After the conclusion of the hearing, Mr. Fowler, on March 28, 2000, issued a lengthy written opinion in which he found that Mr. MeMillian possessed the requisite character to practice law and recommended that he be admitted to practice in the State of West Virginia.

In spite of Mr. Fowler’s recommendation, the West Virginia Board of Law Examiners, on May 12, 2000, issued a final recommendation to this Court in which the majority of the Board recommended against Mr. McMil-lian’s admission to the practice of law. Among the factors leading to its conclusion were Mr. McMillian’s wiretapping conviction and the facts surrounding his discharge as a deputy sheriff of Kanawha County in 1987.

In the present proceeding, Mr. MeMillian prays that this Court disregard the recommendation of the Board of Law Examiners and admit him to the practice of law. He argues that while he was convicted of the federal felony, that matter has been concluded and that he has readily admitted that his conduct was inexcusable. He also argues that the circumstances surrounding his discharge as a deputy sheriff should not be taken as reflecting on his moral fitness to practice law and that the overall circumstances of his case suggest that he is morally fit to practice law.

II.

STANDARD OF REVIEW

In Syllabus Point 2 of Matter of Dortch, 199 W.Va. 571, 486 S.E.2d 311 (1997), [147]*147this Court discussed the review of an individual’s application for admission to the practice of law in the State of West Virginia. The Court stated:

This Court reviews de novo the adjudicatory record made before the West Virginia Board of Law Examiners with regard to questions of law, questions of application of the law to the facts, and questions of whether an applicant should or should not be admitted to the practice of law. Although this Court gives respectful consideration to the Board of Law Examiners’ recommendations, it ultimately exercises its own independent judgment. On the other hand, this Court gives substantial deference to the Board of Law Examiners’ findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.

III.

DISCUSSION

In Syllabus Point 4 of Matter of Dortch, id., the Court outlined the factors which it would consider in assessing the moral character of an applicant to the practice of law in West Virginia whose background includes a criminal conviction. The Court stated:

When assessing the moral character of an applicant whose background includes a criminal conviction, the following factors should be considered: (1) The nature and character of the offenses committed; (2) The number and duration of offenses; (3) The age and maturity of the applicant when the offenses were committed; (4) The social and historical context in which the offenses were committed; (5) The sufficiency of the punishment undergone and restitution made in connection with the offenses; (6) The grant or denial of a pardon for offenses committed; (7) The number of years that have elapsed since the last offense was committed, and the presence or absence of misconduct during that period; (8) The applicant’s current attitude about the prior offenses (e.g., acceptance of responsibility for and renunciation of past wrongdoing, and remorse); (9) The applicant’s candor, sincerity and full disclosure in the filings and proceedings on character and fitness; (10) The applicant’s constructive activities and accomplishments subsequent to the criminal convictions; and (11) The opinions of character witnesses about the applicant’s moral fitness. These factors are intended to be illustrative rather than exhaustive.

In Matter of Dortch, the Court also indicated that a principal concern of the Court in assessing an applicant’s admission was the preservation of public confidence in the administration of justice. In taking this position, the Court echoed the importance of public confidence in the administration of justice as discussed in In Re: Brown, 166 W.Va. 226, 273 S.E.2d 567 (1980).

In the present case, the Board of Law Examiners made certain findings of fact relating to the applicant’s eavesdropping conviction. The Board found:

The conviction is of relatively recent vintage. By your own admission, you knew that you were engaged in criminal activity.

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578 S.E.2d 339, 213 W. Va. 145, 2000 W. Va. LEXIS 142, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mcmillian-wva-2000.