In Re McMillian

557 S.E.2d 319, 210 W. Va. 265
CourtWest Virginia Supreme Court
DecidedDecember 13, 2001
Docket27866
StatusPublished
Cited by8 cases

This text of 557 S.E.2d 319 (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, 557 S.E.2d 319, 210 W. Va. 265 (W. Va. 2001).

Opinions

PER CURIAM:

This case is before this Court for review of the Board of Law Examiners’ recommendation that Mark L. McMillian not be admitted to the practice of law.

I.

Mr. McMillian’s application for the admission to the practice of law in the State of West Virginia was received by the West Virginia Board of Law Examiners (“the Board”) on March 25, 1999. Based on the information contained in Mi-. McMillian’s application and additional information obtained during the Board’s character and fitness investigation, the Board requested that Mr. McMillian appear for an interview with the Board on November 11,1999.

On November 12, 1999, Mi*. McMillian was informed by letter of the Board’s unanimous [267]*267vote to deny his application for admission. The denial was based on concerns arising from Mr. McMillian’s discharge from the Ka-nawha County Sheriffs Department in 1987 and the circumstances surrounding his 1995 federal felony conviction for illegal wiretapping.

After being notified of the Board’s initial denial of his application, Mr. McMillian requested an administrative hearing, pursuant to Rule 6.0 of the West Virginia Rules for the Admission to the Practice of Law. An administrative hearing before a Board Hearing Examiner was held on January 11 and 12, 2000. On March 28, 2000, the hearing examiner recommended that the Board approve Mr. McMillian’s application for admission.

In accordance with the procedure established under Rule 6.0 of the Rules for Admission, the Board reconsidered Mr. McMil-lian’s application in light of the evidence presented during the administrative hearing and the recommendation of the hearing examiner.

On May 12, 2000, the Board informed Mr. McMillian that it would not recommend his admission to the practice of law. The Board gave several reasons for its decision. The Board expressed concern for various aspects of Mr. McMillian’s wiretapping conviction, noting that the 1995 felony conviction was of a relatively “recent vintage.” The Board noted that when he committed the felonious activity, Mr. McMillian was approximately 40 years old, and that he knowingly violated the law for financial compensation. The Board was also concerned about Mr. MeMillian’s absence from this country while federal wiretapping charges were pending against him. Another basis for the Board’s concern was the conduct that led to Mr. MeMillian’s discharge from employment by the Kanawha County Sheriffs Department in 1987. See McMillian v. Ashley, 193 W.Va. 269, 455 S.E.2d 921 (1995).

Following the Board’s final action on his application for admission, Mr. McMillian filed exceptions with this Court on June 21, 2000.

In our prior opinion filed on December 5, 2000, this Court denied Mr. McMillian’s application for admission to the practice of law. On January 4, 2001, Mr. McMillian filed a petition for rehearing. In his petition, he asked this Court to reconsider its prior opinion, alleging (1) that there were inaccuracies and omissions in the Board of Law Examiner’s report and (2) that denying him admission to the practice of law contradicts established principles governing how the integrity of the legal profession is maintained.

On January 11, 2001, this Court granted Mr. McMillian’s petition for rehearing, and after reviewing the legal briefs and the arguments contained therein, we deliver the instant opinion and decision.

II.

“Article eight, section one et seq. of the West Virginia Constitution vests in the Supreme Court of Appeals the authority to define, regulate and control the practice of law in West Virginia.” Syllabus Point 1, Lane v. West Virginia State Board of Law Examiners, 170 W.Va. 583, 295 S.E.2d 670 (1982); W.Va.Code, 30-2-1 [1981] (granting Supreme Court power to grant or deny an applicant’s license to practice law).

When reviewing the findings and recommendations of the Board, this Court has plenary authority.

This Court reviews de novo the adjudicatory record made before the West Virginia Board of Law Examiners with regal’d 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.

Syllabus Point 2, Matter of Dortch, 199 W.Va. 571, 486 S.E.2d 311 (1997).

There are six general requirements for admission to practice law in West Virginia. R%des for Admission to the Practice of [268]*268the Law, Rule 2.0 [1992]. Chief among the requirements for admission to the practice of law is that the applicant possess “good moral character.” Rules for Admission to the Practice of the Law, Rule 2.0(2) [1992]. “Indeed, [g]ood moral conduct has always been considered a qualification essential to admission to the Bar.” Matter of Dortch, 199 W.Va. at 577, 486 S.E.2d at 317 (1997) quoting In Re Eary, 134 W.Va. 204, 207-08, 58 S.E.2d 647, 650 (1950).

The burden is on the applicant to prove that she or he has good moral character. “Pursuant to Rules 4.2(b), 5.0 and 5.2(b) of the Rules for Admission to the Practice of Law, in order to be eligible for admission to the practice of law in this State, an applicant must prove that he or she possesses good moral character.” Syllabus Point 3, Matter of Dortch, supra.

Syllabus Point 4 of Dortch provides guidance for examining the moi*al character of an applicant.

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 disclosui'e 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 illusti’ative rather than exhaustive.

199 W.Va. 571, 486 S.E.2d 311 (1997).

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Bluebook (online)
557 S.E.2d 319, 210 W. Va. 265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mcmillian-wva-2001.