In re Petition for Reinstatement of C. Crady Swisher

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2020 Term
_______________ FILED
April 3, 2020
No. 18-0582 released at 3:00 p.m.
_______________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
IN RE: PETITION FOR REINSTATEMENT OF C. CRADY SWISHER
____________________________________________________________
Lawyer Disciplinary Proceeding
REINSTATEMENT DENIED
____________________________________________________________
Submitted: February 19, 2020
Filed: April 3, 2020
Mark W. Kelley, Esq. Rachael L. Fletcher Cipoletti, Esq.
RAY, WINTON & KELLEY, PLLC Jessica H. Donahue Rhodes, Esq.
Charleston, West Virginia Office of Disciplinary Counsel
Counsel for Petitioner Charleston, West Virginia
Counsel for Respondent
CHIEF JUSTICE ARMSTEAD delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “This Court is the final arbiter of legal ethics problems and must make
the ultimate decisions about public reprimands, suspensions or annulments of attorneys’
licenses to practice law.” Syllabus Point 3, Committee on Legal Ethics of the West Virginia
State Bar v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984).
2. “A de novo standard applies to a review of the adjudicatory record
made before the [Lawyer Disciplinary Board] as to the questions of law, questions of
application of the law to the facts, and questions of appropriate sanctions; this Court gives
respectful consideration to the [Board’s] recommendations while ultimately exercising its
own independent judgment. On the other hand, substantial deference is given to the
[Board’s] findings of fact, unless such findings are not supported by reliable, probative,
and substantial evidence on the whole record.” Syllabus Point 3, Committee on Legal
Ethics of the West Virginia State Bar v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994).
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
of justice and in this regard the seriousness of the conduct leading to disbarment is an
i
important consideration.” Syllabus Point 1, In re Brown, 166 W. Va. 226, 273 S.E.2d 567
(1980).
4. “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.”
Syllabus Point 2, In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980).
ii
Armstead, Chief Justice:
C. Crady Swisher’s license to practice law in West Virginia was suspended
in 1998 for violating two rules of professional conduct. Specifically, Mr. Swisher was
determined by this Court to have violated Rules of Professional Conduct 8.4(d) and 8.1.
See Lawyer Disciplinary Bd. v. Swisher, 203 W. Va. 603, 509 S.E.2d 884 (1998). Before
seeking reinstatement, this Court required the following conditions be met:
1) Mr. Swisher demonstrates to the satisfaction of the West
Virginia ODC that he has satisfied in total the judgment and
interest thereon entered against him in the United States
District Court;
2) Mr. Swisher successfully completes the Multistate
Professional Responsibility Examination; and
3) Mr. Swisher pays all costs incurred in the investigation and
hearing of this matter.
Id., 203 W. Va. 603, 606, 509 S.E.2d 884, 887. The parties agree that Mr. Swisher has met
all of the specific conditions for reinstatement established in Swisher.
At the time Mr. Swisher was suspended by this Court, he was also admitted
to practice before the Pennsylvania Bar. Four years after his suspension in West Virginia,
Mr. Swisher was disbarred by consent in Pennsylvania. Following his disbarment, Mr.
Swisher never informed the West Virginia Office of Disciplinary Counsel (“WVODC”) of
Pennsylvania’s actions. See W. Va. R. Disciplinary P., Rule 3.20(b). He has also failed to
make restitution to the Pennsylvania Office of Disciplinary Counsel (“PODC”) for the
costs of those disciplinary proceedings, failed to reimburse the Pennsylvania Lawyers Fund
1
for Client Security for payments to clients affected by his actions, and failed to resolve a
federal tax lien. Now, Mr. Swisher petitions this Court for reinstatement of his West
Virginia law license.
In light of the nature of the underlying offense, his failure to inform the West
Virginia Bar of Pennsylvania’s actions, and the lack of effort to make restitution to those
damaged by his actions in Pennsylvania, the Hearing Panel Subcommittee (“HPS”) of the
Lawyer Disciplinary Board and the WVODC recommend that we deny Mr. Swisher’s
petition for reinstatement. For the reasons stated below, we agree.
I. FACTUAL AND PROCEDURAL BACKGROUND
This Court suspended C. Crady Swisher’s law license in 1998 for violating
the provisions of Rules 8.4(d) 1 and 8.1 2 of the Rules of Professional Conduct. The facts
1
Rule 8.4(d) provides, “It is professional misconduct for a lawyer to: engage
in conduct that is prejudicial to the administration of justice.”
2
Rule 8.1 states:
An applicant for admission to the bar, or a lawyer in
connection with a bar admission application or in connection
with a disciplinary matter, shall not:
(a) knowingly make a false statement of material
fact; or
(b) fail to disclose a fact necessary to correct a
misapprehension known by the person to have arisen in the
(continued . . .)
2
leading to Mr. Swisher’s suspension, and the requirements established by this Court for his
reinstatement, are more fully discussed in Lawyer Disciplinary Bd. v. Swisher, 203 W. Va.
603, 509 S.E.2d 884 (1998). In that matter, Mr. Swisher reached a settlement prior to trial
in a legal malpractice claim filed against him. Id., 203 W. Va. 603, 604, 509 S.E.2d 884,
885. He failed to timely pay the full amount of the settlement, and his former client was
forced to file a motion to enforce the settlement, which resulted in a judgment order against
Mr. Swisher in the amount of $15,000.00, plus interest. Id. He then failed to respond to
the ethics complaint filed against him. Id., 203 W. Va. 603, 605, 509 S.E.2d 884, 886.
At the time Mr. Swisher’s West Virginia law license was suspended, he was
admitted in good standing before the Pennsylvania Bar. 3 However, that good standing was
short-lived. On or about June 13, 2000, PODC filed a Petition for Discipline against Mr.
Swisher relating to a complaint involving his client, Client E.C., 4 and thereafter placed Mr.
Swisher’s Pennsylvania license on emergency temporary suspension on May 9, 2001. On
matter, or knowingly fail to respond to a lawful demand for
information from an admissions or disciplinary authority,
except that this Rule does not require disclosure of information
otherwise protected by Rule 1.6.
3
Pennsylvania declined to proceed on reciprocal charges stemming from
West Virginia’s suspension.
4
Consistent with our long-standing practice in cases with sensitive facts, we
use initials where necessary to protect the identities of those involved in this case. See In
re K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va.
731, 742 S.E.2d 419 (2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005);
State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
3
August 30, 2001, PODC filed another Petition for Discipline against Mr. Swisher for
violations relating to two additional clients, Client J.J.D. and Client H.S..
The facts of the individual client relationships giving rise to the Pennsylvania
Petition for Discipline are as follows:
a. Client E.C.
Client E.C. had a medical malpractice matter and retained Mr. Swisher who
agreed to represent her in April 1992, in exchange for a contingency fee. That arrangement
was never placed in writing, and Mr. Swisher thereafter sought and obtained a retainer from
Client E.C. in the amount of $1,000.00. In May 1993, Mr. Swisher brought lawsuits on
behalf of Client E.C., with one of those lawsuits resulting in a judgment entered against
Client E.C.. Mr. Swisher never informed his client of that judgment and did not
communicate with her from January 1994 through August 1996.
After judgment was entered in the one matter, Mr. Swisher performed work
on the remaining case he filed on behalf of Client E.C., but the Court granted a Motion for
Judgment on the Pleadings against Client E.C. in that matter on August 6, 1996, thereby
dismissing the remaining action. During that month, Mr. Swisher spoke with Client E.C.
and told her he was not enthusiastic about the cases he had filed. Client E.C. insisted upon
pursuing the matters. Mr. Swisher agreed to continue his representation, but he never
informed Client E.C. that every matter he had brought on her behalf had been dismissed.
4
Mr. Swisher failed to contact Client E.C. for almost another year and a half,
even though Client E.C. repeatedly attempted to reach him. Finally, in spring 1998, Client
E.C. successfully connected with Mr. Swisher, but he failed to fully inform Client E.C. of
the status of the matters. Thereafter, Client E.C. sought recourse from the Pennsylvania
Lawyers Fund for Client Security, and she was able to recover the $1,000.00 retainer she
had paid to Mr. Swisher. As a result of his actions, Mr. Swisher was charged on June 13,
2000, by the PODC with violations of Pennsylvania Rules of Professional Conduct, Rules
1.4(a), 1.4(b), 1.5(c), 1.15(b), and 1.16(d).
b. Client J.J.D.
In November 1995, Client J.J.D. was involved in a work-related motor
vehicle accident, resulting in the amputation of his left leg. Client J.J.D. retained Mr.
Swisher to represent him under a one-third contingency fee contract. A settlement of that
matter was reached in June 1996 for $150,000.00. Mr. Swisher took his $50,000.00 fee
and retained the remaining $100,000.00 in his client trust account pending a determination
of any subrogation rights of the Pennsylvania State Workers’ Insurance Fund. While the
subrogation issue was pending, Mr. Swisher withdrew the $100,000.00 for his own use.
When the subrogation issue was resolved in September 1998, Mr. Swisher
never informed Client J.J.D. that the case was resolved but instead told Client J.J.D. that
the matter was still on appeal and that the funds were in an account drawing interest. When
5
Client J.J.D. learned in fall 2000 that no appeals were pending, he retained another attorney
to recover the funds. As a result of his actions, Mr. Swisher was charged by the PODC on
August 30, 2001, with violations of Pennsylvania Rules of Professional Conduct, Rules
1.15(a), 1.15(b), 8.4(b), and 8.4(c).
c. Client H.S.
In July 1995, Client H.S. suffered injuries when he was knocked down.
Thereafter, he entered into a one-third contingency fee arrangement for Mr. Swisher to
represent him in pursuing certain legal remedies. Mr. Swisher filed a lawsuit on Client
H.S.’s behalf in July 1997. In October 1999, Mr. Swisher reached a settlement of the
lawsuit in the amount of $85,000.00. During that same month, Mr. Swisher was contacted
by Client H.S.’s medical providers about payment of outstanding medical bills.
In November 1999, when Mr. Swisher disbursed his $28,333.33 fee to
himself, the balance on his client trust account was $56,593.79, an amount that was $72.88
less than the amount he was entrusted to keep for Client H.S.. For the next year, Mr.
Swisher did not pay any of Client H.S.’s outstanding medical bills or liens, and the amount
in his client trust account dipped well below the amount he was required to hold in trust
for Client H.S.. At times, there was a negative balance in the account. In December 2000,
Mr. Swisher finally paid the outstanding balance on the medical bills, and provided Client
H.S. the remaining balance due to him. As a result of his actions, Mr. Swisher was charged
6
by the PODC on August 30, 2001, with violations of Pennsylvania Rules of Professional
Conduct, Rules 1.15(a), 1.15(b), 8.4(b), and 8.4(c).
Thereafter, on January 24, 2003, Mr. Swisher filed a petition for retroactive
disbarment on consent, and the Pennsylvania Supreme Court entered an order accepting
his petition, making Mr. Swisher’s disbarment effective retroactively to June 8, 2001.
Following his disbarment by the Pennsylvania Supreme Court, the United States District
Court for the Western District of Pennsylvania also disbarred Mr. Swisher by consent in
an order dated July 22, 2003.
As a result of the actions taken by the Pennsylvania Bar, Mr. Swisher owes
$8,509.91 to the PODC for the costs of the proceeding against him and $127,004.44 (as of
November 2018) to the Pennsylvania Lawyers Fund for Client Security for payments made
to five different clients who were harmed by Mr. Swisher’s actions. Additionally, Mr.
Swisher owes the Internal Revenue Service approximately $3,800.00 from 2010.
In his petition for reinstatement, Mr. Swisher disputes the total amounts owed
to the Pennsylvania authorities. He claims that the total amount owed to the PODC is less
because there is case law that precludes PODC’s recovery of expert fees. He also disagrees
with the amount the Pennsylvania Lawyers Fund for Client Security claims is owed.
Notably, however, Mr. Swisher has made no effort in Pennsylvania to either challenge the
amounts owed, or to begin payment of such amounts. In fact, in his petition to this Court,
7
Mr. Swisher says that he will begin to make payments to Pennsylvania, “if made as a
condition of reinstatement” to the West Virginia Bar.
Following these events, Mr. Swisher was unemployed until April 2005, when
he began work as a part-time law clerk for a lawyer in Harrisburg, Pennsylvania. He
continued working as a part-time law clerk for that lawyer until that lawyer retired from
the active practice of law in 2018. Mr. Swisher has also performed part-time law clerk
duties since September 2006 for another lawyer in Harrisburg, Pennsylvania, and continues
to do so. Finally, Mr. Swisher worked as a Court Appointed Special Advocate for abused
and neglected children in the Court of Common Pleas of Allegheny County, Pennsylvania,
until he moved to a different county that did not have that program. Mr. Swisher has also
regularly attended continuing legal education (“CLE”) programs in West Virginia.
Mr. Swisher filed his petition for reinstatement with this Court on June 28,
2018, which was referred to the WVODC pursuant to Rule 3.32(a) 5 of the Rules of Lawyer
Disciplinary Procedure. WVODC then filed its report with the HPS of the Lawyer
Disciplinary Board on December 10, 2018. A hearing was held before the HPS on March
15, 2019, during which Mr. Swisher and numerous witnesses testified. The HPS concluded
5
This rule provides, in pertinent part, “[a]t 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.” W. Va. R. Disciplinary P., Rule 3.32(a).
8
that Mr. Swisher’s reinstatement would have a “justifiable and substantial adverse effect
of the public confidence in the administration of justice” and that he had not demonstrated
that he had been fully rehabilitated. The WVODC consented to the HPS’s
recommendation. On November 22, 2019, Mr. Swisher filed his request for a hearing
before this Court pursuant to Rule 3.33(c) 6 of the Rules of Lawyer Disciplinary Procedure.
II. STANDARD OF REVIEW
“This Court is the final arbiter of legal ethics problems and must make the
ultimate decisions about public reprimands, suspension or annulments of attorneys’
licenses to practice law.” Syllabus Point 3, Comm. on Legal Ethics v. Blair, 174 W. Va.
494, 327 S.E.2d 671 (1984). As the final arbiter, this Court exercises its own independent
judgment when considering a petition for reinstatement:
A de novo standard applies to a review of the
adjudicatory record made before the [LDB] as to the questions
of law, questions of application of the law to the facts, and
questions of appropriate sanctions; this Court gives respectful
consideration to the [LDB’s] recommendations while
ultimately exercising its own independent judgment. On the
other hand, substantial deference is given to the [LDB’s]
findings of fact, unless such findings are not supported by
reliable, probative, and substantial evidence on the whole
record.
6
Rule 3.33(c) states, in pertinent part, “[w]ithin 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.” W. Va. R. Disciplinary P., Rule 3.33(c).
9
Syllabus Point 3, Comm. on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377
(1994).
III. ANALYSIS
In Swisher, this Court set forth specific conditions, noted above, that all
parties to this matter agree were fully met by Mr. Swisher. Thus, the issue here is not
whether Mr. Swisher met those conditions, but rather, whether he has satisfied the
following requirement:
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 of justice and in this regard
the seriousness of the conduct leading to disbarment is an
important consideration.
Syllabus Point 1, in part, In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980). 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.
Id., Syllabus Point 2. To weigh whether a lawyer has been rehabilitated, we have
previously used a five-prong test that considers:
(1) the nature of the of the original offense for which the
petitioner was disbarred; (2) the petitioner’s character,
maturity, and experience at the time of disbarment; (3) the
10
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.
In re Smith, 214 W. Va. 83, 85, 585 S.E.2d 602, 604 (1980). We have also clearly stated
that “the more serious the nature of the underlying offense, the more difficult the task
becomes to show a basis for reinstatement,” In re Brown, 166 W. Va. 226, 234, 273 S.E.2d
567, 571, and that “[m]isappropriation of funds by an attorney involves moral turpitude; it
is an act infected with deceit and dishonesty.” Comm. on Legal Ethics v. Hess, 186 W. Va.
514, 517, 413 S.E.2d 169, 172 (1991)(quoting Att’y Grievance Commission. v. Ezrin, 312
Md. 603, 609, 541 A.2d 966, 969 (1988)). Mr. Swisher’s burden is necessarily high, and
we do not believe he has met this burden.
In applying the five Smith factors to this matter, we believe the record
demonstrates that Mr. Swisher has satisfied factors four – the time period elapsed since his
suspension – and five – his present competence in legal skills. He has regularly attended
West Virginia CLE programs since his suspension in 1998, twenty-two years ago. He has
also worked for law offices in Pennsylvania for most of the period of his suspension.
Indeed, a long period of time has elapsed since his suspension, he has worked in the law,
and he has kept abreast of West Virginia law.
However, the application of factors one, two and three as set forth in Smith
demonstrate that Mr. Swisher has not been rehabilitated. As to factors one and two, this
Court found that Mr. Swisher had “dishonor[ed] the practice of law[,] because [his]
11
misconduct [was] prejudicial to the administration of justice.” Swisher, 203 W. Va. 603,
606, 509 S.E.2d 884, 887. After his West Virginia suspension, Mr. Swisher proceeded to
engage in conduct in Pennsylvania similar to that which resulted in the suspension of his
West Virginia license, namely misappropriation of client funds. These actions would have
made him subject to disbarment in this State, had he informed WVODC of the actions
taken by Pennsylvania authorities. Continually lying and taking funds from clients cannot
be attributed to a “rookie mistake.” In re Reinstatement of Drake, 242 W. Va. 65, ___, 829
S.E.2d 267, 272 (2019). Thus, applying factor one outlined in Smith, relating to the nature
of the offense, we find that such factor weighs against Mr. Swisher’s reinstatement.
Likewise, factor two, which calls upon us to consider the Petitioner’s character, maturity,
and experience at the time of his suspension, leads us to the conclusion that Mr. Swisher’s
reinstatement is not appropriate. Indeed, he continued to engage in similar conduct adverse
to the interests of his clients in Pennsylvania, including the misappropriation of client
funds, even after his West Virginia suspension. This conduct continued until the
Pennsylvania Supreme Court intervened. Mr. Swisher clearly engaged in a long-term
pattern of deceit toward his clients.
If factors one and two of Smith were not enough to cause this Court great
pause when considering this petition, factor three – “the petitioner’s occupations and
conduct in the time since his disbarment” – make it clear that Mr. Swisher should not be
reinstated. Although Mr. Swisher has worked as a part-time law clerk in Pennsylvania
since his suspension, his overall conduct since his suspension in West Virginia, specifically
12
his failure to notify the WVODC of Pennsylvania’s actions and his failure to make
restitution in Pennsylvania, weigh against his reinstatement.
a. Notification to West Virginia Office of Disciplinary Counsel
Mr. Swisher argues that he did not inform the WVODC about the actions
taken in Pennsylvania regarding his law license “because he did not realize that he had to
so notify them.” We find no merit in this argument and agree with the WVODC’s position
that Mr. Swisher’s disbarment in Pennsylvania and subsequent failure to inform West
Virginia authorities of that disbarment simply cannot be ignored.
After a long process, Mr. Swisher voluntarily surrendered his Pennsylvania
law license when he was disbarred in that State by consent. That action took place four
years after his West Virginia license had been suspended by this Court. See Swisher, 203
W. Va. 603, 509 S.E.2d 884. Our rules are clear:
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.
W. Va. R. Disciplinary P., Rule 3.20(a). Until Mr. Swisher filed his Petition for
Reinstatement, the WVODC was unaware of the actions taken in Pennsylvania. This is
because Mr. Swisher never informed WVODC of Pennsylvania’s action. Regardless of
13
the fact that Mr. Swisher’s license to practice in West Virginia was suspended, we deem
Mr. Swisher’s decision to not inform WVODC of the disciplinary action in Pennsylvania
to be a violation of Rule 3.20(b), which provides:
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.
W. Va. R. Disciplinary P., Rule 3.20(b). Mr. Swisher’s failure to timely inform WVODC
deprived WVODC of its ability to investigate the actions taken in Pennsylvania and
determine whether West Virginia should take reciprocal action:
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.
W. Va. R. Disciplinary P., Rule 3.20(c).
Mr. Swisher argues that he had no duty to report Pennsylvania’s actions to
West Virginia as his West Virginia license was suspended at the time Pennsylvania acted.
In other words, Mr. Swisher contends that the suspension of his West Virginia license also
suspended the application of West Virginia’s Rules of Disciplinary Procedure. However,
14
by their very language, many of our rules of Lawyer Disciplinary Procedure expressly
apply to lawyers whose law licenses have been annulled or suspended, as well as to those
who have been disbarred. See, e.g., W. Va. R. Disciplinary P., Rules 3.17 (effect of
suspension or annulment); 3.28 (duties of disbarred or suspended lawyers); 3.30
(requirements for reinstatement); 3.31 (automatic reinstatement following suspension);
3.32 (reinstatement procedure following suspension); 3.33 (reinstatement procedure
following annulment). Additionally, this Court has applied the Rules of Lawyer
Disciplinary Procedure to suspended lawyers who have failed to comply with the rules
following their suspension:
A suspended attorney who fails to comply with the
provisions of [Rule 3.28 of the Rules of Lawyer Disciplinary
Procedure] may have his or her license to practice law annulled
upon proof by the [Lawyer Disciplinary Board] by full,
preponderating and clear evidence that the suspended attorney
failed to comply with the provisions.
Syllabus Point 3, Comm. on Legal Ethics v. Keenan, 192 W. Va. 90, 450 S.E.2d 787 (1994).
Likewise, in Lawyer Disciplinary Bd. v. Viewig, 194 W. Va. 554, 557, 461 S.E.2d 60, 63
(1995), this Court annulled a suspended lawyer’s law license following that lawyer’s felony
guilty plea. See also Lawyer Disciplinary Bd. v. Hart, 241 W. Va. 69, 89, 818 S.E.2d 895,
915 (2018)(failing to comply with Rule 3.28 of the Rules of Lawyer Disciplinary Procedure
warrants annulment of suspended lawyer’s law license). Thus, the Rules clearly apply to
suspended lawyers, thereby requiring Mr. Swisher to inform WVODC of the disciplinary
actions taken in Pennsylvania. His failure to do so weighs against his argument that he
15
possesses the “requisite integrity and moral character to resume the practice of law.”
Comm. on Legal Ethics v. Pence, 171 W. Va. 68, 73, 297 S.E.2d 843, 848 (1982).
b. Payment of Restitution
Most troubling to this Court is Mr. Swisher’s contention that he will enter
into a payment plan to satisfy his outstanding debts to Pennsylvania, “if made a condition
of his reinstatement.” Mr. Swisher directs this Court to a number of cases he maintains
support his contention that his willingness to pay restitution in the future warrant his
reinstatement. However, none of the cases cited by Mr. Swisher overcome the fact that he
has made no effort to remedy the adverse consequences of his prior actions by actually
beginning to pay the restitution he owes.
First, Mr. Swisher cites Lawyer Disciplinary Bd. v. Viewig, 194 W. Va. 554,
461 S.E.2d 60, for the proposition that this Court has made the repayment of prior debts a
condition of reinstatement. However, in Viewig, this Court made “the continue[d]
repay[ment] of past debts” a condition of reinstatement. Id., 194 W. Va. 554, 560, 461
S.E.2d 60, 66 (emphasis added). Mr. Viewig had already begun repaying his past debts
when he sought reinstatement by this Court. The same cannot be said for Mr. Swisher. He
only offers to satisfy his debts if he is reinstated.
Mr. Swisher also cites Lawyer Disciplinary Bd. v. Pence, 194 W. Va. 608,
461 S.E.2d 114 (1995), to demonstrate that he has met the requisite standard for
16
reinstatement. Again, we do not see how that case bolsters his position. Indeed, in Pence,
the reasons cited by this Court for denying one of Mr. Pence’s petitions for reinstatement
was the fact that he, like Mr. Swisher, had not yet paid the amounts he owed as a result of
his prior conduct. In Pence, this Court found:
On August 7, 1985, Mr. Pence filed his third petition for
reinstatement. We summarily dismissed that petition when we
learned that Mr. Pence had not yet paid the $22,210.52 in costs
and expenses that the Committee had incurred during certain
prior proceedings. We instructed Mr. Pence that he could not
file another petition for reinstatement until he had reimbursed
the amount of costs and expenses owing.
Id., 194 W. Va. 608, 610, 461 S.E.2d 114, 116. Thus, Pence actually undermines Mr.
Swisher’s position.
This Court recently decided In re: Reinstatement of Drake, 242 W. Va. 65,
829 S.E.2d 267 (2019), a case similar in material respects to the present matter. In that
matter, Mr. Drake had entered an Alford/Kennedy plea to the crime of embezzlement. See
id., 242 W. Va. 65, ___, 829 S.E.2d 267, 269. Thereafter, Mr. Drake’s law license was
annulled. See id. Following the five-year mandatory waiting period, he filed a petition for
reinstatement. See id., 242 W. Va. 65, ___, 829 S.E.2d 267, 269-270. The HPS
recommended the request be denied and the WVODC agreed with that recommendation.
See id., 242 W. Va. 65, ___, 829 S.E.2d 267, 270.
On these facts, this Court found “that Mr. Drake did not prioritize restitution
and did not exercise reasonable and diligent efforts to fulfill these obligations until he came
17
before this Court seeking reinstatement of his law license.” Id., 242 W. Va. 65, ___, 829
S.E.2d 267, 273. This is precisely the situation here. Mr. Swisher has made no effort to
make the restitution in Pennsylvania he was ordered to make, and he gives no assurance to
this Court he will do so unless this Court makes such restitution a condition of
reinstatement.
It is undeniable that Mr. Swisher’s actions have harmed many clients who
placed their trust in him to represent them. Perhaps the most convincing step Mr. Swisher
could have taken to demonstrate that his reinstatement is warranted would have been to
have made a good faith effort to begin making restitution for such harm. This he has not
done and his conduct simply does not establish that he is entitled to reinstatement under
the Smith factors. Further, his reinstatement would not fulfill the primary goal of the lawyer
disciplinary process, namely “the protection of the public and the reassurance of the public
as to the reliability and integrity of attorneys.” Pence, 161 W. Va. 240, 253, 240 S.E.2d
668, 675 (1977). Accordingly, we deny his petition for reinstatement.
IV. CONCLUSION
We adopt the recommendation of the HPS and deny the petition for
reinstatement. The costs of this proceeding are to be assessed against Mr. Swisher.
Petition denied. Costs assessed.
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