IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2025 Term FILED May 22, 2025 released at 3:00 p.m. No. 23-71 C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA
IN RE: PETITION FOR REINSTATEMENT OF C. MICHAEL SPARKS
Lawyer Disciplinary Proceeding
REINSTATEMENT DENIED
Submitted: April 23, 2025 Filed: May 22, 2025
Lonnie C. Simmons, Esq. Rachael L. Fletcher Cipoletti, Esq. DiPiero Simmons McGinley & Bastress, Chief Lawyer Disciplinary Counsel PLLC Lauren Hall Knight, Esq. Charleston, West Virginia Lawyer Disciplinary Counsel Counsel for Petitioner Office of Lawyer Disciplinary Counsel and Charleston, West Virginia C. Michael Sparks Counsel for Lawyer Disciplinary Board Williamson, West Virginia Petitioner
CHIEF JUSTICE WOOTON delivered the Opinion of the Court. JUSTICE BUNN, deeming herself disqualified, did not participate in the decision of this case. JUDGE JACOB REGER sitting by temporary assignment. JUSTICE TRUMP and JUSTICE WALKER dissent and reserve the right to file dissenting opinions. SYLLABUS BY THE COURT
1. “A de novo standard applies to a review of the adjudicatory record
made before the [Hearing Panel Subcommittee] as to questions of law, questions of
application of the law to the facts, and questions of appropriate sanctions; this Court gives
respectful consideration to the [Hearing Panel Subcommittee’s] recommendations while
ultimately exercising its own independent judgment. On the other hand, substantial
deference is given to the [Hearing Panel Subcommittee’s] findings of fact, unless such
findings are not supported by reliable, probative, and substantial evidence on the whole
record.” Syl. Pt. 3, Comm. on Legal Ethics of W. Va. State Bar v. McCorkle, 192 W.Va.
286, 452 S.E.2d 377 (1994).
2. “Absent a showing of some mistake of law or arbitrary assessment of
the facts, recommendations made by the [Hearing Panel Subcommittee] in regard to
reinstatement of an attorney are to be given substantial consideration.” Syl. Pt. 3, In re
Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980).
3. “The general rule for reinstatement is that a disbarred attorney in order
to regain admission to the practice of law bears the burden of showing that he presently
possesses the integrity, moral character and legal competence to resume the practice of law.
To overcome the adverse effect of the previous disbarment he must demonstrate a record
of rehabilitation. In addition, the court must conclude that such reinstatement will not have
a justifiable and substantial adverse effect on the public confidence in the administration i of justice and in this regard the seriousness of the conduct leading to disbarment is an
important consideration.” Syl. Pt. 1, In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980).
4. “Ethical violations by a lawyer holding a public office are viewed as
more egregious because of the betrayal of the public trust attached to the office.” Syl. Pt.
3, Comm. on Legal Ethics of W. Va. State Bar v. Roark, 181 W. Va. 260, 382 S.E.2d 313
(1989).
5. “Rehabilitation is demonstrated by a course of conduct that enables
the court to conclude there is little likelihood that after such rehabilitation is completed and
the applicant is readmitted to the practice of law he will engage in unprofessional conduct.”
Syl. Pt. 2, In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980).
ii WOOTON, Chief Justice:
This matter arises from the recommendation of the Hearing Panel
Subcommittee (“HPS”) that petitioner C. Michael Sparks (“petitioner”) be reinstated to the
practice of law with a two-year period of supervision, following his disbarment by consent
in October 2013. Petitioner’s consent to disbarment was an express term of his agreement
to plead guilty to a federal misdemeanor arising from an investigation into political and
judicial corruption in Mingo County, West Virginia. Despite opposing his reinstatement
before the HPS due to inconsistencies regarding his role in the crime, the Office of
Disciplinary Counsel (“ODC”) now consents to the HPS’s recommendation of
reinstatement.
This Court has before it all matters of record, including the exhibits and a
transcript of the evidentiary hearing conducted by the HPS, as well as the briefs and
arguments of petitioner and ODC. Upon our independent review, we conclude that
petitioner has failed to meet his requisite burden to warrant reinstatement at this time and
therefore reject the HPS’s recommendation and deny the petition for reinstatement.
I. FACTS AND PROCEDURAL HISTORY
Petitioner, who was admitted to the West Virginia State Bar in 1996, was
originally elected Mingo County Prosecuting Attorney in 2004. He was thereafter twice
reelected and resigned in 2013 as part of a federal plea deal for his role in a political and
judicial corruption scandal in Mingo County involving former Judge Michael Thornsbury
1 (“Thornsbury”). Petitioner pled guilty to violating 18 U.S.C. § 242 (1996), aiding and
abetting deprivation of a constitutional right under color of law, a misdemeanor, for his
role in a scheme to entice a criminal defendant to discharge his counsel, who was believed
to be providing the press and/or FBI with information damaging to the then-Mingo County
Sheriff. As part of his plea agreement, petitioner was required to surrender his law license,
which was annulled by consent on October 11, 2013, pursuant to Rule 3.25 of the West
Virginia Rules of Lawyer Disciplinary Procedure. This is his first petition for
By way of background, when running for prosecutor petitioner affiliated
himself with a slate of political candidates headed by Thornsbury and referred to as “Team
Mingo.” Eugene Crum, former magistrate and Mingo County Sheriff (“Sheriff Crum”),
who was murdered in early 2013, and County Commissioner David Baisden (“Baisden”)
were also part of this slate. Those who affiliated themselves with a slate of candidates led
by former Senator Truman Chafin were perceived by Team Mingo to be political
adversaries and included Attorney Charles “Butch” West (“West”), who ran against
petitioner in his final bid for prosecutor.
In 2013, a federal investigation into political and judicial corruption in Mingo
County was launched. Following the April 2013 murder of Sheriff Crum, petitioner began
cooperating with the FBI in May and viewed himself as a “collaborator” in the federal
investigation. The scandal was publicly brought to light through an August 2013,
2 indictment against Thornsbury alleging crimes of corruption stemming from his vendetta
against the husband of his assistant, with whom he was allegedly having an extramarital
affair (the “Thornsbury indictment”). Although he was not charged in the Thornsbury
indictment, petitioner was specifically named and implicated in certain of its allegations.
Petitioner was instead charged in an October, 2013, information and pled
guilty to a crime involving George White (“White”), discussed infra. Thornsbury was also
charged separately by information in this incident and likewise pled guilty, resulting in the
dismissal of the initial indictment against him.1
THE WHITE ALLEGATIONS
According to the federal information filed against petitioner, after the 2013
election, newly elected Sheriff Crum owed approximately $3,000 to White for political
signs. When White began requesting payment, Sheriff Crum allegedly sent a confidential
informant to conduct a controlled drug buy from White, resulting in the filing of five
criminal charges against White in February 2013. In March 2013, Sheriff Crum
approached petitioner, concerned that White had retained West as counsel, and advised that
both White and West were speaking to the press and possibly the FBI, claiming that Sheriff
1 For his role in this incident, Thornsbury was charged with violation of 18 U.S.C. § 241 (1996)—felony conspiracy against rights—and sentenced to fifty months’ imprisonment. 3 Crum also purchased drugs from White. The information against Thornsbury alleges that
petitioner was a “close associate and political ally” of Sheriff Crum’s.
According to the information, Baisden—who was a good friend of White’s
brother—later approached petitioner and advised that “they” would “seek to coerce [White]
into firing [West] in order to prevent [them] from further providing information about
criminal conduct by the Sheriff.” The information alleges that White was enticed to fire
West with an offer of a “more favorable plea agreement” in which petitioner agreed to
allow White to plead guilty to two of the five charges, surrender a lesser monetary
forfeiture, and petitioner would recommend concurrent, rather than consecutive, sentences
and/or probation. The information states that petitioner “entered into a plea agreement
more favorable that [sic] he otherwise would have[] . . . knowing that a more favorable
plea agreement for [White] was a necessary part of the scheme to coerce [White] into firing
[West] in order to protect the Sheriff.” As indicated, petitioner was charged in the
information with the misdemeanor offense of deprivation of a constitutional right, i.e.
White’s right to counsel of his choice, under color of law.
Petitioner agreed to plead guilty to this charge and the plea agreement
required petitioner to “voluntarily surrender his license to practice law in every state in
which he holds such a license[,]” withdraw his opposition to the immediate suspension of
his license, and refrain from contesting disbarment proceedings. The plea agreement
executed by petitioner expressed his agreement to certain predicate facts as contained in an
4 attached “Stipulation of Facts” (“stipulation”)—also executed by petitioner—and was
relied upon at both petitioner’s plea and sentencing hearings. The stipulation reiterates the
pertinent portions of the information quoted above and further provides that petitioner
“knowingly associated himself with the scheme to deprive [White] of his right to counsel
of his choice, participated in that scheme, and did so with the intention to assist Baisden,
the Sheriff, and others in depriving [White] of his right to counsel of his choice.”
At the sentencing hearing, United States District Court Judge Thomas
Johnston allowed Assistant United States Attorney Steven R. Ruby (“AUSA Ruby”) to
make a proffer consistent with the above, but inquired further to obtain clarification about
whether petitioner knew of the scheme to coerce White before he made the more favorable
plea offer. After consultation with petitioner’s lawyer, AUSA Ruby represented to the
district court that petitioner “was advised of and [assented] to the plan to deprive [White]
of counsel before the proposal was made to [White.]” The court then specifically inquired
whether “before the proposal was made to [White], [petitioner] had a conversation with
[Baisden] in which he assented to the arrangement[] . . . . with the understanding that the
arrangement would include . . . a more favorable plea agreement[?]” AUSA Ruby replied:
“That’s correct, Your Honor[]”; petitioner’s counsel likewise agreed and quickly
confirmed that petitioner “granted a better plea agreement[.]”
Critically, after this exchange, the district court addressed petitioner—who
had been placed under oath at the outset of the proceedings—stating:
5 THE COURT: . . . You’ve heard the representations made, factual representations[] . . . . Do you agree that those representations are true?
THE DEFENDANT: Yes.2
(footnote added).
However, petitioner’s counsel also remarked during this exchange that
petitioner merely “omitted from trying to stop [the change of attorneys]”; in petitioner’s
statement before sentencing, he similarly characterized his role as a “failure to intervene
when others convinced [White] to change lawyers” and that he “neglect[ed] [his] duty to
stop it[.]” As a result, just before announcing petitioner’s sentence, the district court stated:
[I]n your remarks, and . . . at least in one written submission, it was asserted that your part in this was to stand by and not do something about it, but that’s inconsistent with the proffer that was made today and I don’t for a minute believe that you were—simply took a passive role in not doing something to stop this and I—I’m giving you the benefit of the doubt on that by not placing at issue your acceptance of responsibility for making a statement like that.
(Emphasis added). The court then sentenced petitioner to twelve months in prison,
followed by twelve months supervised release; the court remarked that it believed the
sentence—although the maximum allowable under the crime charged—was the bare
2 The district court later again addressed the clarification of the “temporal issue” regarding petitioner’s “assent in advance of the—or agreement in advance of the proposal.” The court inquired “to the extent that I rely on that fact with regard to my factual basis . . . is there any objection[?]” After counsel indicated he had no objection, the court then posed that same question to petitioner, asking if he “underst[ood] that question” or had any objection; petitioner replied, “No. No, Your Honor.” 6 minimum petitioner should receive for his “crime against our system of justice itself and a
serious affront to the United States Constitution.”
THE PETITION FOR REINSTATEMENT
Ten years later, in 2023, petitioner filed the instant petition for
reinstatement.3 In both his sworn statement and subsequent testimony before the HPS,
petitioner took a similar position regarding his role in the crime as that which concerned
the district court: that he simply failed to intervene in the scheme to deprive White of his
counsel. Petitioner further took the newly-established position that he offered White no
better plea deal than he would have any other defendant—in stark contrast to the factual
predicate upon which the district court accepted his guilty plea. Petitioner characterized
his conduct as a “failure to act more proactively and to protect [White’s] right to counsel
of choice[]” and that he utilized his customary graduated plea negotiation strategy.
With regard to his role in facilitating the scheme that was specifically probed
by the district court, petitioner testified that any knowledge of the scheme was largely
intuition. Petitioner testified that when he was advised White was changing counsel, “I
should have done something, because, you know, I was aware that—that the judge—” and
“I knew—at least had reason to believe that there was great bigger—there was other things
at play here.” When petitioner was asked why Baisden would want West off the case,
3 West Virginia Rule of Lawyer Disciplinary Procedure 3.33 governing reinstatement following annulment prohibits a petition for reinstatement until five years after disbarment. 7 petitioner replied: “[I]t had that stench to it that, you know, ‘Here we go.’ . . . . I should
have said, you know, ‘Hey, guys, this is—you know, I know what’s going on here. This is
no good.’” (Emphasis added). Petitioner admitted that “from talking to [Baisden] . . .
[petitioner] knew that part of this thing that was going on, they were . . . going to make
sure [White] got a different lawyer[.]”
Regarding the plea offer made to White, petitioner testified extensively that
he offered White plea terms consistent with his customary practice of reducing more than
three charges to two, typically reserving a counteroffer to run sentences concurrently as
plea negotiations continued. According to petitioner, he offered to drop three of the five
counts while West still represented White. Baisden thereafter approached him and asked
if he could “do better” than the offer on the table; later, Baisden approached him again and
stated “‘we’re getting rid of—[White] is going to get a new attorney.’” However, petitioner
emphasizes that he had already made an initial offer to reduce the charges to West, who
then withdrew as counsel without “[coming] back to me[.]” After White obtained new
counsel, petitioner then negotiated the charges as running concurrently with White’s
substitute counsel, a friend of Thornsbury’s. Petitioner further testified that he later became
aware that Thornsbury had advised Baisden that White would not get probation with West
as his attorney and that at White’s sentencing, he recommended probation. Petitioner
excused his “failure to act” to prevent the coercion to change counsel by reasoning, “‘He’s
going to get the same deal he’s going to get anyway,’ you know, so I did nothing about it.”
8 To that end, petitioner testified that the underlying events “may have not 100
percent happened the way the stipulation of facts [indicated],” outright denying that he was
a “conspirator” with Thornsbury and Baisden or that he “knowingly . . . [did] this as part
of an agreement with them[.]” While denying that the plea agreement was “negotiated at
[Baisden’s] behest or direction[]” petitioner nevertheless conceded that Baisden “was
involved in everything[.]” As to the specific correlation between the change of counsel
and Sheriff Crum’s concerns about West and White speaking to the press or authorities,
petitioner admitted to no overt awareness, but testified that “recalling that conversation
[with Sheriff Crum], that he was angry . . . there’s . . . easily drawn inferences that I should
have made and—and—and didn’t.” (Emphasis added).
Upon questioning by ODC before the HPS about why he agreed to and pled
guilty based on the facts contained in the stipulation, petitioner testified that his attorney
initially “accepted [the plea deal] without knowing what I was going to plead to” but that
petitioner was unwilling to “roll the dice” against threats of stiffer charges by AUSA
Ruby.4 When directly confronted with the contradictions in his testimony, the predicate
facts upon which the district court accepted his guilty plea, and the suggestion that the
4 Petitioner also seemingly alluded to other potential crimes stating, “I thought there’s one thing that I was comfortable pleading to[] [but] [t]hey didn’t want that. They wanted something to do with Thornsbury[.]” With regard to his cooperation with the FBI in May, petitioner stated he “could have done it earlier than May, you know, because there’s some other things that . . . had happened.” 9 stipulation “may not accurately portray your involvement[,]” petitioner attempted to walk
back his inconsistency:
I would just say that whatever the—I accepted responsibility under the stipulation of facts. . . . These facts are required to . . . provide a factual basis for the conviction that I had. . . . If I did not stipulate to these facts as written, then I would not have been able to—the judge would have rejected the plea. . . . So I accept, you know, whatever facts that they—they wrote there. . . . [T]o the extent that my testimony here today is different from the stipulation of facts, then—then it’s a mistake on my part, and I accept the stipulation of facts as written.
(Emphasis added).
This disparity between the stipulation—as a necessary factual basis for the
district court’s acceptance of his plea—and his current testimony prompted ODC to oppose
petitioner’s reinstatement, as per its proposed recommended findings to the HPS. In those
proposed findings, ODC argued that based on the seriousness of the underlying conduct
and because petitioner had not shown the requisite rehabilitation by virtue of his
equivocation about his role, he should not be reinstated. ODC noted that petitioner had
been practicing for seventeen years at the time of the misconduct and argued that his current
repackaging of his role in the crime was a poor reflection on his character and integrity,
deeming his equivocation “striking and troublesome.”
As indicated above, however, after issuance of the HPS’s recommended
decision granting reinstatement, ODC filed its consent to reinstatement with this Court and
10 its brief now likens petitioner’s case to those in which reinstatement has been granted.
ODC has offered no explanation for its reversal of position on petitioner’s reinstatement.
THE HPS’S RECOMMENDATION
In recommending reinstatement, the HPS accepted petitioner’s proposed
findings and conclusions justifying the “perceived” disparity between his stipulation and
present testimony; in fact, its recommendation goes so far as to conclude that petitioner’s
“statements and testimony have remained consistent.” (Emphasis added). Specifically,
the HPS’s findings deem it significant—for reasons that are not well articulated—that
petitioner did not negotiate directly with Baisden, nor did the federal information claim
that he did; rather, a “known messenger,” who was not petitioner, conveyed the plea offer.
The recommendation found that by simply negotiating with White’s new counsel,
petitioner engaged in conduct sufficient to provide a basis for his guilty plea. The HPS
further focused on the fact that petitioner offering a “more favorable” plea deal was not
necessary to establish the elements of the crime.
Further, the HPS heavily emphasized petitioner’s early cooperation with the
federal government, which was characterized as “substantial” and critical to its success in
obtaining the convictions stemming from its investigation. The HPS noted that petitioner
cooperated without demands for immunity and further emphasized his “unwavering
acceptance of responsibility” as well as the absence of any benefit to him to participate in
the crime. (Emphasis added). It found that his integrity and moral character was shown
11 through his assistance to the government and commented heavily on his demonstrated
remorse.
Finally, in recommending reinstatement, the HPS emphasized petitioner’s
record of post-annulment conduct, which is relatively undisputed. Before he served his
prison term, petitioner obtained employment working at a local movie theater and has
worked as a paralegal at various Williamson law firms. Petitioner touted his work assisting
a high-profile client in his defamation suit and his wide variety of civil work since working
as a paralegal. His testimony indicates he is a dedicated family man, church-going, and
active in his community. After publication of his reinstatement petition, ODC received no
letters in opposition to his reinstatement. Both petitioner and his character witness claimed
that if returned to the practice of law in his community, petitioner would be warmly
welcomed as many in the community believe he was “done wrong.”
PETITIONER’S DISCIPLINARY RECORD
At the time of his disbarment, petitioner had three prior admonishments: a
March 1999 admonishment for violation of West Virginia Rule of Professional Conduct
1.9(b) (conflict of interest with former client), a May 2007 admonishment for violation of
Rule 5.3 (failure to supervise nonlawyer), and a June 2009 admonishment for another
violation of Rule 1.9(b) (conflict of interest with former client). Significantly, at the time
of petitioner’s consent to disbarment, he also had five open disciplinary complaints, all of
which were closed as a result.
12 We note that two of the five complaints closed as a result of petitioner’s
consent to disbarment make similar allegations of politically-motivated corruption—chief
among which is ODC’s complaint against petitioner for misconduct as outlined in the
Thornsbury indictment.5 As alleged in the August 2013 indictment, in 2008 Thornsbury
began an extra-marital affair with his assistant, K.W.; by mid-2008 K.W. had terminated
the relationship and Thornsbury began attempting to have K.W.’s husband, R.W.,
criminally prosecuted through various schemes. Petitioner’s participation in and/or
knowledge of certain of these schemes was expressly referenced in the indictment and he
offered testimony in that regard below. His admissions indicate that he “should have”
investigated and/or reported Thornsbury’s conduct with regard to several incidents.6 In its
5 In addition to ODC’s complaint regarding petitioner’s misconduct alleged in the Thornsbury indictment, a complaint filed by a member of the Mingo County bar alleges that petitioner—accompanied by “a county commissioner”—pressured her clients to waive their preliminary hearings outside of her presence. The complainant also alleged that in a separate matter, Thornsbury and petitioner approached her about a recently convicted client, offering habeas grounds to assert because “they” believed he was innocent and guaranteeing his release. Petitioner filed no response to this complaint before it was closed.
Of the remaining three complaints, one alleges a conflict of interest in petitioner’s prosecution of a former co-worker of his wife; a civil suit filed in this regard was apparently dismissed as against petitioner on the grounds of prosecutorial immunity. The two remaining complaints involve general allegations of dissatisfaction regarding petitioner’s dismissal of a charge and disclosure of information in discovery. 6 In particular, the Thornsbury indictment alleges that Thornsbury conspired to have R.W. prosecuted for stealing mine bits from his employer despite R.W. being expressly permitted to salvage the mine bits, which were of little value. Petitioner disqualified himself from the matter on the basis that he interacted with K.W. on a daily basis through his duties as prosecutor, but when asked before the HPS whether he was “aware that the charges against R.W. were improper[]” petitioner replied that he “[p]robably” should have 13 petition for immediate suspension of petitioner, ODC alleged seven Rule violations for
petitioner’s misconduct in regard to White and five Rule violations for petitioner’s
involvement in and knowledge of the matters outlined in the Thornsbury indictment, citing
it as part of petitioner’s “pattern of egregious misconduct under the color of his position as
the Prosecuting Attorney of Mingo County[.]”7 The closure document of each open
complaint states:
“looked into it[.]” The Thornsbury indictment specifically alleges that petitioner “recognized that the criminal charges against R. W. were improper[]”; ODC’s closure of the complaint indicates that petitioner’s response to the complaint conceded he was “suspicious of the charges, based on the rumors circulating regarding Thornsbury and K.W.’s relationship.”
In a second scheme alleged in the Thornsbury indictment, Thornsbury assembled— of his own volition—a grand jury and appointed his friend and business partner as foreperson for purposes of investigating a “large theft ring” allegedly involving R.W. and his family members. The indictment alleges that Thornsbury personally prepared subpoenas duces tecum which were issued by the grand jury and petitioner testified that he fielded inquiries regarding procedural issues surrounding the subpoenas. Regarding this scheme, petitioner testified he “should have reported it[]” and that “it was completely wrong to have a grand jury without, you know, a prosecutor.” The Thornsbury indictment specifically alleges that petitioner “declined to participate in” the grand jury scheme.
Finally, the Thornsbury indictment alleges that Thornsbury facilitated R.W.’s arrest for an altercation with family members at a convenience store; witnesses indicated that R. W. was not the aggressor and acted in self-defense as confirmed by surveillance video. Thornsbury allegedly had an ally approach petitioner to instruct that R. W. should receive six months in jail for the offense. Petitioner confirmed that he “believed at that time that Thornsbury actually [sent] him,” that Thornsbury was “trying to get [him] to send a guy to jail for six months[,]” because “he was trying to get [K.W.’s] husband out of the way.” 7 ODC asserted that petitioner’s conduct in regard to the White matter violated Rule 8.3(b) (requiring reporting professional misconduct); Rule 3.8 (regarding special responsibilities of prosecutor); Rule 8.4(a) (prohibiting violating or assisting another in violating Rules); Rule 8.4(b) (prohibiting criminal act reflecting on honesty/trustworthiness or fitness); Rule 8.4(c) (prohibiting conduct involving dishonesty/fraud/deceit/misrepresentation); Rule 8.4(d) (prohibiting conduct prejudicial to 14 On or about October 11, 2013, the Supreme Court of Appeals of West Virginia entered an order which annulled [petitioner’s] license to practice law pursuant to his Consent to Disbarment. In light of the annulment of [petitioner’s] license, this matter will be closed. The Office of Disciplinary Counsel will establish a reinstatement file on [petitioner] and will place these records therein, so should [petitioner] seek reinstatement at any time in the future, the allegations contained within this complaint may be considered at that time.
(Emphasis added). The closure document expressly allows petitioner to file a written
objection to the closing within forty-five days; there is no indication petitioner filed any
such objection.
II. STANDARD OF REVIEW
Generally, “[a] de novo standard applies to a review of the adjudicatory
record made before the [Hearing Panel Subcommittee] . . . . [and] substantial deference is
given to the [Hearing Panel Subcommittee’s] findings of fact, unless such findings are not
supported by reliable, probative, and substantial evidence on the whole record.” Syl. Pt. 3,
Comm. on Legal Ethics of W. Va. State Bar v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377
(1994). With respect to reinstatement specifically, we have held that “[a]bsent a showing
of some mistake of law or arbitrary assessment of the facts, recommendations made by the
[HPS] in regard to reinstatement of an attorney are to be given substantial consideration.”
Syl. Pt. 3, In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980). Nevertheless, we have
administration of justice) and 8.4(f) (prohibiting knowingly assisting judge in conduct that violates Rules of Judicial Conduct). ODC asserted that petitioner’s conduct in regard to the allegations in the Thornsbury indictment violated Rules 8.3(b), 3.8, 8.4(c), 8.4(d), and 8.4(f). 15 further reminded that “[w]hile we give respectful consideration to the recommendations of
the HPS, this Court ultimately exercises its own independent judgement regarding
reinstatement[.]” In re Reinstatement of DiTrapano, 240 W. Va. 612, 616, 814 S.E.2d 275,
279 (2018) (“DiTrapano II”).
III. DISCUSSION
As is well-established from our jurisprudence regarding petitions for
reinstatement following disbarment,
[t]he general rule for reinstatement is that a disbarred attorney in order to regain admission to the practice of law bears the burden of showing that he presently possesses the integrity, moral character and legal competence to resume the practice of law. To overcome the adverse effect of the previous disbarment he must demonstrate a record of rehabilitation.
In re Brown, 166 W.Va. at 226, 273 S.E.2d at 567, syl. pt. 1, in part. Moreover, “the court
must conclude that such reinstatement will not have a justifiable and substantial adverse
effect on the public confidence in the administration of justice and in this regard the
seriousness of the conduct leading to disbarment is an important consideration.” Id. To
aid in evaluation of the above considerations, the Court has frequently utilized a non-
exclusive, five-factor analysis to ascertain whether reinstatement is appropriate:
(1) the nature of the original offense for which the petitioner was disbarred, (2) the petitioner’s character, maturity, and experience at the time of his disbarment, (3) the petitioner’s occupations and conduct in the time since his disbarment, (4) the time elapsed since the disbarment, and (5) the petitioner’s present competence in legal skills.
16 In re Smith, 214 W. Va. 83, 85, 585 S.E.2d 602, 604 (1980).8
With regard to the nature of the original offense, the Court has observed that
“there will be cases where the original transgression is so threatening to the integrity of the
entire legal system that no brief period of even the most exemplary conduct can provide
satisfactory assurance to the Court that the public will be adequately protected.” Id. at 88,
585 S.E.2d at 607. We explained that in those instances, the gravity of the misconduct
undermines any confidence the petitioner is “sufficiently rehabilitated that the public will
be adequately protected” and that such instances commonly occur “where the underlying
offense was directly related to the practice of law.” Id. at 87, 585 S.E.2d at 606. In contrast,
we have granted reinstatement following misconduct that was “reprehensible, but . . .
completely unrelated to the petitioner’s law practice or activities as an officer of the Court.”
Id. at 88, 585 S.E.2d at 607.
8 Although we find other factors determinative, we note that as to factors two through five, there is little dispute. Petitioner had been practicing law for seventeen years—nine as prosecuting attorney—at the time of the underlying misconduct; therefore, he was by no means inexperienced. And while petitioner makes much of the fact that he intentionally waited twice the requisite amount of time provided in Rule 3.33 before petitioning for reinstatement, we have noted that “the mere passage of time alone is insufficient to warrant reinstatement.” In re Brown, 166 W. Va. at 235, 273 S.E.2d at 572. That said, however, petitioner’s post-annulment conduct is, by all accounts, exemplary: he has maintained gainful employment, conducted himself respectably, and ostensibly maintained legal competence to resume the practice of law through his work at various firms. We encourage his continued dedication to these efforts. 17 We therefore find it necessary to first evaluate the nature of petitioner’s
specific misconduct, particularly given his insistence that the factual predicate to which he
agreed during his sentencing hearing “may have not 100 percent” reflected his
involvement. Based upon the documents and proceedings before the district court,
petitioner expressly agreed—under oath—that he was aware of and assented to the scheme
to deprive White of counsel and that, to facilitate that scheme, granted a more favorable
plea deal than he otherwise would have—all for the purpose of protecting the sheriff. For
purposes of reinstatement however, petitioner maintains that he made White the same plea
offer he would have otherwise and was only passively aware of an attempt to coerce White
to change attorneys. He outright denies participating for purposes of protecting the sheriff.
As outlined in our above discussion of his guilty plea, there is no question
that petitioner expressly agreed to being a necessary part of a scheme to coerce White to
change attorneys and offered him more favorable plea terms than he otherwise would have,
with full knowledge of the scheme and for the purpose of protecting the sheriff. These
specific admissions of his knowledge and active participation are not assumptions or
unchallenged issues buried within a cold record. The district court vigorously and
specifically probed into the precise issue of petitioner’s knowledge, role, and motivations
before accepting his guilty plea and required petitioner to affirmatively agree to its
characterization of those matters. Moreover, the district court took petitioner to task for
merely insinuating the full-throated argument he now offers this Court, i.e., that he was a
simple bystander to corruption. The court stated that this suggestion jeopardized its
18 consideration of petitioner’s “acceptance of responsibility” for sentencing purposes and
expressly found that this contention was “inconsistent with the [factual] proffer that was
made” in support of his guilty plea. We agree.
Despite offering expected expressions of remorse and acceptance of
responsibility, petitioner’s reinstatement testimony is clearly designed to significantly
downplay his involvement in the corruption in Mingo County. There is simply no question
that petitioner’s testimony for purposes of reinstatement differs in every material way from
the facts to which he agreed for purposes of securing a simple misdemeanor conviction. If
petitioner made admissions that were not true for purposes of leniency from the
government or sentencing court, he bears the consequences of those admissions before this
Court.
With the specifics of petitioner’s adjudicated misconduct established, we
consider its gravity. The Court has expressly held that “[e]thical violations by a lawyer
holding a public office are viewed as more egregious because of the betrayal of the public
trust attached to the office.” Syl. Pt. 3, Comm. on Legal Ethics of W. Va. State Bar v.
Roark, 181 W. Va. 260, 382 S.E.2d 313 (1989); see also Off. of Law. Disciplinary Couns.
v. Plants, 233 W. Va. 477, 485, 759 S.E.2d 220, 228 (2014) (observing that prosecutor
holds “position of public trust and must be held to a heightened standard of ethical
behavior”). For that reason, we have found the seriousness of underlying misconduct
virtually outcome determinative for reinstatement purposes where the lawyer is also a
19 public official whose misconduct intersects with or denigrates the legal system. See, e.g.,
In re Brown, 166 W. Va. at 239, 273 S.E.2d at 574 (denying reinstatement where
underlying crimes were “directed . . . to the core of the legal system and the integrity of
governmental institutions”).
In contrast, we have distinguished misconduct that stems from personal
challenges such as drug or alcohol addiction, even where the conduct gives rise to federal
criminal charges. See Roark, 181 W. Va. at 260, 382 S.E.2d at 313 (three-year suspension
following mayor/prosecutor’s plea to drug-related federal misdemeanors); Comm. on Legal
Ethics of the W. Va. State Bar v. White, 189 W. Va. 135, 428 S.E.2d 556 (1993) (two-year
suspension following prosecutor’s plea to drug-related federal misdemeanors); DiTrapano
II, 240 W. Va. at 616-18, 814 S.E.2d at 279-81 (granting reinstatement after completion of
“comprehensive and long-term” drug rehabilitation and acceptance of “full responsibility”
for misconduct); see also Law. Disciplinary Bd. v. Busch, 233 W. Va. 43, 754 S.E.2d 729
(2014) (three-year suspension following prosecutor’s discovery violations where personal
problems and mental health disorder contributed).
In this case, petitioner was not merely a lawyer who also happened to hold
public office, committing misconduct only tangentially related to his professional and
public obligations. Petitioner’s failures were not purely personal, nor was his conduct
borne of negligence or indifference to professional duties—or even the type of intentional
misconduct resulting in monetary or other prejudice to client interests. Instead, petitioner’s
20 misconduct leveraged the power and trust placed in him by the electorate to affect the
constitutional rights of a private citizen, all for the protection of fellow corrupt public
officials. It was petitioner’s position as an elected official and the county’s chief law
enforcement officer that provided him the opportunity and power to engage in his
intentional misconduct—against the very citizens he swore to protect in that position.
With the certainty and gravity of petitioner’s misconduct in little doubt, we
find that the position he has taken in the instant proceedings reflects poorly on his current
rehabilitation, fitness, and integrity. We have held that rehabilitation is “demonstrated by
a course of conduct that enables the court to conclude there is little likelihood that after
such rehabilitation is completed and the applicant is readmitted to the practice of law he
will engage in unprofessional conduct.” In re Brown, 166 W. Va. at 226-27, 273 S.E.2d at
567, syl. pt. 2, in part. Rehabilitation, by its nature, requires an attorney’s
acknowledgement of his wrongdoing and we have therefore tied the rehabilitation analysis
to the generalized integrity and fitness requirements for reinstatement. See In re
Reinstatement of DiTrapano, 233 W. Va. 754, 772, 760 S.E.2d 568, 586 (2014)
(“DiTrapano I”) (finding attorney’s “unwillingness to accept responsibility for his
actions[] . . . compels us to question his integrity and moral character, [and] weighs against
finding that he is rehabilitated.” (footnote omitted)).
Although ODC has silently retreated from its opposition to petitioner’s
reinstatement, it has previously opposed reinstatement where a lawyer’s testimony is
21 inconsistent regarding the underlying misconduct, as reflecting a lack of sufficient
rehabilitation. In DiTrapano I, the Court considered the petition for reinstatement of a
lawyer disbarred after pleading guilty to federal charges relating to controlled substances
and firearms. Subsequent to his disbarment, DiTrapano pled guilty to an information
charging him with making false statements for purposes of influencing a bank. Id. at 759,
760 S.E.2d at 573. In considering reinstatement, the Court acknowledged that the record
was replete with DiTrapano’s expressions of remorse and acceptance of responsibility,
wherein he called his conduct “categorically wrong[.]” Id. at 761, 760 S.E.2d at 575.
Notwithstanding these statements, the Court emphasized that the record was equally filled
with the caveat that there were “‘explanations for some of this conduct,’” as well as
DiTrapano’s position that he “‘lacked the requisite intent to commit any crime.’” Id.
In this regard, the Court focused on DiTrapano’s conviction for knowingly
making a false statement to the bank and his position that the loan at issue was paid in full,
he “thought” he had authority to execute the loan documents, and the client was not
ultimately harmed by his actions. Id. at 762, 760 S.E.2d at 576. The Court rejected these
explanations as an “attempt[] to minimize his dishonest conduct” and noted specifically
that “[t]he gravity of Mr. DiTrapano's misconduct cannot be minimized by the lack of
harm[.]” Id. at 768, 760 S.E.2d at 582. In addition—and highly similar to petitioner’s
retreat from the predicate facts upon which he pled guilty—the DiTrapano I Court found
that the
22 inconsistencies between his statements to the HPS, the Questionnaire, and the [Stipulation] of Facts . . . lead us to question his appreciation of the wrongfulness of his misconduct and his ability to conform his behavior to the Rules of Professional Conduct at this time. Because of these inconsistencies, we do not believe that Mr. DiTrapano has demonstrated adequate rehabilitation with regard to his honesty and integrity.
Id. at 771, 760 S.E.2d at 585 (emphasis added).
Like petitioner, DiTrapano presented a record of commendable post-
annulment conduct; in particular, DiTrapano demonstrated sobriety, gainful employment,
and professions of acceptance of responsibility and remorse. However, the Court found
that despite this record, the inconsistencies and attempts to minimize his misconduct
undermined the superficial appearance of adequate rehabilitation: “More compelling are
the falsehoods[] . . . . [that] indicate that Mr. DiTrapano's inclinations regarding the truth
have not been amended to an extent that would overcome the nature of his prior dishonest
conduct.” Id. at 772, 760 S.E.2d at 586.
Similarly, we acknowledge petitioner’s exemplary post-annulment conduct
and commend him for these efforts. We further acknowledge petitioner’s repeated
concessions about the gravity of his actions, the impropriety of his conduct, and even his
attempt to retreat from the lack of accountability his current testimony suggests. But
rehabilitation sufficient to warrant reinstatement is not demonstrated solely by falling on
one’s sword and thereafter avoiding personal or professional missteps—that is the bare
23 minimum expected from a disbarred attorney before seeking reinstatement. Accountability
must be more than superficial; it must be thorough and consistently reflected in a lawyer’s
words and actions. See In re Reinstatement of Drake, 242 W. Va. 65, 70, 829 S.E.2d 267,
272 (2019) (denying reinstatement where attorney “continued attempts to qualify
[misconduct] . . . with excuses ranging from an alleged lack of experience to downplaying
[the misconduct.]”).
In this case, we cannot ignore petitioner’s unjustifiable position that although
he admitted, under oath, to facts for the purpose of avoiding more serious criminal
exposure, he should now be permitted to minimize his “actual” involvement and be granted
the favor of leniency as a result. And while we do not presume to wholly dismiss
petitioner’s stated regret, this posturing makes his acceptance of responsibility appear more
expedient than sincere. As Justice Workman noted in DiTrapano I, denial of reinstatement
is well justified where “statements in the proceedings below and . . . to this Court suggest
that . . . acceptance of responsibility is disingenuous.” 233 W. Va. at 773, 760 S.E.2d at
587 (Workman, J., concurring). Of a similar tenor, when asked why he consented to
disbarment, petitioner testified that he did so because he had “pled guilty to a federal
offense, and . . . I disgraced my profession, and just that’s—I thought that’s what I needed
to do.” Much to the contrary, petitioner’s consent to disbarment was a specific term of the
plea agreement into which he entered with the government, rather than a voluntary gesture
of penitence.
24 To put a finer point on it, petitioner has now offered two contradictory
accounts of his misconduct—both under oath. His current willingness to demean the oaths
he took prior to each piece of testimony provides little reassurance that he now possesses
the inviolate respect for the legal system which he previously lacked. See Law.
Disciplinary Bd. v. Moore, 214 W. Va. 780, 793, 591 S.E.2d 338, 351 (2003) (discussing
requirement to “address[] the attitudes and circumstances that led to . . . misconduct”).
Moreover, petitioner’s attempt to mitigate his conduct by characterizing it as a mere
“failure to intervene” is cold comfort to the victims of Mingo County corruption. We are
mindful of the message that would be sent not only to the citizens of Mingo County, but
the State and bar at large, were this Court to so easily permit petitioner to recast his role in
a period of Mingo County politics that remains a stain on the county and State. See Syl.
Pt. 2, in part, White, 189 W. Va. at 136, 428 S.E.2d at 557 (requiring lawyer discipline to
both “serve as an effective deterrent to other members of the Bar” and “restore public
confidence in the ethical standards of the legal profession.”).
We therefore reject the fundamental premise underlying the HPS’s
recommendation of reinstatement: that petitioner has demonstrated “unwavering” remorse
and maintained consistency regarding his role in the underlying misconduct. The HPS’s
attempt to rationalize the blatant discrepancies in petitioner’s testimony are neither
reasonable, persuasive, nor warranted. Petitioner’s self-serving attempt to distance himself
from his own sworn admissions militates against a finding of sufficient rehabilitation; the
rationale expressed by the HPS fails to persuade us otherwise.
25 In recommending reinstatement the HPS placed substantial emphasis on
petitioner’s cooperation with the federal investigation. However, petitioner himself
admitted he viewed himself as a “collaborator” with the government at the outset of the
investigation—well before he perceived himself to be a target—and therefore his
cooperation cannot be viewed primarily as an act of contrition. Petitioner’s subsequent
cooperation was duly credited by the sentencing court, but given his broader implication
in the Thornsbury indictment, this cooperation—like his guilty plea—could be reasonably
construed as an attempt to limit criminal exposure rather than repentance.9 See White, 189
9 In this regard, despite ODC and the HPS’s seeming indifference to them, we cannot ignore petitioner’s admissions regarding the serious allegations against him as outlined in the Thornsbury indictment and commensurate disciplinary complaint. The Court has admonished that “we do not view the inquiry on reinstatement as limited to the single issue of the precise offense that triggered disbarment. Most courts have concluded that [an] applicant’s prior and present record of infractions can be considered.” In re Brown, 166 W. Va. at 239, 273 S.E.2d at 574; DiTrapano I, 233 W. Va. at 766, 760 S.E.2d at 580 (same); In re Reinstatement of Wheaton, 245 W. Va. 199, 210, 858 S.E.2d 662, 673 (2021) (Armstead, J., dissenting) (opposing reinstatement in part where “sixteen additional complaints were filed against Mr. Wheaton and not pursued because he was disbarred.”).
ODC indicated during oral argument that, due to the passage of time and the lack of public opposition to petitioner’s reinstatement, it did not reopen, investigate, or evaluate the five disciplinary complaints closed upon petitioner’s consent to disbarment. Nevertheless, at least as pertains to the Thornsbury indictment allegations and accompanying disciplinary complaint, the record contains petitioner’s response to that complaint and testimony before the HPS, as discussed supra. Petitioner’s testimony unquestionably indicates that several of the Rule violations asserted by ODC in that regard would likely have been substantiated had he not consented to the closure of those matters as part of his disbarment, resulting in an enhanced disciplinary record against which his petition for reinstatement would have been evaluated.
And while petitioner may also theoretically have been exonerated as to some of those allegations, we caution lawyers who consent to disbarment regarding the potential impact of permitting closure of pending matters without objection. We decline to tacitly encourage lawyers to voluntarily consent to disbarment, allow the closure of open 26 W. Va. at 138, 428 S.E.2d at 559 (“While these actions are commendable, they can also be
viewed as a prudent realization of the substantiality of the government’s case.”); Law.
Disciplinary Bd. v. Busch, 233 W. Va. 43, 56 n.11, 754 S.E.2d 729, 742 n.11 (2014)
(finding prosecutor’s resignation “was not an act of remorse. Rather, we view it as an
attempt to avoid reprimand and to keep his digressions out of the public spotlight.”).
A lawyer who offers continued “rationalizations, extenuating circumstances,
absence of thorough memory, or evasiveness” while seeking reinstatement only diminishes
otherwise compelling evidence of rehabilitation. DiTrapano I, 233 W. Va. at 775, 760
S.E.2d at 589 (Workman, J., concurring). Accordingly, we find that in the course of this
proceeding petitioner has failed to presently demonstrate the requisite rehabilitation,
integrity, and fitness to be returned to the practice of law.
disciplinary matters without objection, only to seek reinstatement later with the unwarranted assumption of a clean slate. We likewise caution ODC to ensure that its investigation into and position on petitions for reinstatement adequately account for such complaints. 27 IV. CONCLUSION
For the foregoing reasons, we deny the petition for reinstatement to the
practice of law.
Petition Denied.