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No. 18-0363 – Lawyer Disciplinary Board v. Doheny

WOOTON, J., dissenting:

As the majority correctly observes, this Court declared private discipline of 

attorneys in West Virginia unconstitutional in 1984 as a violation of the open courts 

provision of the West Virginia Constitution art. III, § 17. See Daily Gazette Co. v. Comm. 

on Legal Ethics of the W. Va. State Bar, 174 W. Va. 359, 326 S.E.2d 705 (1984). 

Accordingly, when thereafter crafting the Rules of Lawyer Disciplinary Procedure, the 

Court authorized only forms of public discipline against members of the State Bar. See

Rule 3.15 (outlining permissible sanctions). Commensurately, the Court crafted its 

“Reciprocal discipline” Rule 3.20 to authorize mutual discipline in this State upon

notification of “any form of public discipline” rendered against a Bar member elsewhere. 

See Rule 3.20(b) (emphasis added); see also Rule 4.4 (authorizing Disciplinary Counsel to 

“seek reciprocal discipline when informed of any public discipline imposed in any other 

jurisdiction” (emphasis added)). This was plainly a deliberate and common sensical

limitation; the same Rule requires, as its name suggests, that “the same discipline be 

imposed” in West Virginia, absent extenuating circumstances. Simply stated, since West 

Virginia permits only public discipline, West Virginia can only reciprocally impose “the 

same discipline” where the discipline received elsewhere is likewise public. Because the 

majority fails to observe the plain language of this Court’s procedural Rules in this regard, 

I respectfully dissent.

FILED

June 10, 2022

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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I take no issue with the majority’s conclusion that this Court maintains 

jurisdiction over every lawyer admitted in the State and that procedural violations do not 

necessarily serve to strip the Court of disciplinary “jurisdiction.” Further, it is clear that 

respondent Doheny’s Pennsylvania convictions could have properly formed the basis of 

disciplinary action under Rule 3.19 (providing for charges based upon conviction of 

felony), as was initially instituted. Therefore, any concern that a strict construction of the 

reciprocal discipline rules would allow sanctionable misconduct to elude the disciplinary 

process is entirely unwarranted. The Office of Disciplinary Counsel properly initiated 

proceedings under Rule 3.19; had it simply followed through with that action without then

seeking the abridged procedures permitted through reciprocal discipline, respondent’s

felony conviction would have been afforded proper treatment under our Rules of Lawyer 

Disciplinary Procedure.1

However, by choosing to institute reciprocal discipline under Rule 3.20, the 

Office of Disciplinary Counsel relegated this matter to the construct and limitations placed 

upon that truncated disciplinary process in our Rules of Lawyer Disciplinary Procedure. 

As per Rule 3.20(a) and (d), in reciprocal proceedings the Hearing Panel Subcommittee is 

permitted to take action without a formal hearing and the respondent may only challenge 

the validity of the disciplinary order in the foreign jurisdiction. Further, reciprocal 

1 In fact, since that proceeding was stayed, no party offers any rationale why that 

proceeding could not simply recommence, affording a procedural remedy to this errant 

reciprocal proceeding that serves all interests and circumvents the majority’s tortured 

interpretation of our own disciplinary rules.
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discipline under Rule 3.20 makes no provision for a mitigation hearing as in Rules 3.18 

and 3.19. Very clearly, the procedural protections afforded under Rules 3.18 and 3.19 

differ meaningfully from the abbreviated proceedings outlined in Rule 3.20.

Recognizing that the plain language of Rule 3.20 limits reciprocal discipline

proceedings to public discipline received elsewhere, the Hearing Panel Subcommittee 

correctly found this matter could not proceed against respondent who was privately

reprimanded. Before this Court, counsel for the Lawyer Disciplinary Board effectively 

conceded as much. Yet the majority concludes that despite Rule 3.20 and Rule 4.4’s

references tying reciprocal proceedings to only “public” discipline, the subsections of Rule 

3.20 operate independently. It finds that while a lawyer may only have a duty to notify the 

Office of Disciplinary Counsel of public discipline, it may still proceed with reciprocal 

proceedings based upon private discipline.2

 However, to read the various subsections—all 

of which exist under the umbrella of the “Reciprocal discipline” rule—as being unrelated 

runs afoul of any reasonable concepts of construction: “The rule concerning construction 

of statutory provisions in pari materia applies with at least as much force to subsections of 

2 The majority fails to explain how the Office of Disciplinary Counsel would even 

become aware of private discipline. The voluntary reporting of private discipline in this 

case would certainly not be expected to be the norm. If rendering discipline in West 

Virginia for private discipline elsewhere is of such paramount importance that we must 

distort our Rules to allow it, it would seem the Rule would have required notification of 

any discipline rendered elsewhere.
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one section as it does to more than one section of statutory provisions.” Courtney v. State 

Dep’t of Health of W. Va., 182 W. Va. 465, 470 n.6, 388 S.E.2d 491, 496 n.6 (1989).3

 

More to the point, the requirement that reciprocal discipline procedures be 

limited to public discipline rendered elsewhere is a simple matter of practicality: because 

West Virginia does not recognize private discipline, rendering reciprocal, identical

discipline in West Virginia is an impossibility. This Court has repeatedly held in reciprocal 

discipline cases that “[t]he provisions of Rule 3.20 of the West Virginia Rules of Lawyer 

Disciplinary Procedure require the imposition of the identical sanction imposed by the 

3 The majority not only untethers the various subsections from each other but 

extends subsection (a) beyond the context of reciprocal proceedings. Isolating subsection 

(a)’s provision that final adjudication conclusively establishes conduct for purposes of

proceedings under “these rules,” it extrapolates that phrase to mean that reciprocal 

proceedings are not limited by the Rule’s language generally. However, this Court has 

previously held just the opposite, expressly limiting subsection (a) to the context of 

reciprocal proceedings: “Pursuant to Rule 3.20 of the West Virginia Rules of Lawyer 

Disciplinary Procedure, a final adjudication of professional misconduct in another 

jurisdiction conclusively establishes the fact of such misconduct for purposes of reciprocal 

disciplinary proceedings in this state.” Syl. Pt. 1, Law. Disciplinary Bd. v. Post, 219 W. 

Va. 82, 631 S.E.2d 921 (2006) (emphasis added).

Further, any suggestion that subsection (a)—which contains no “public” 

restriction— is the authorizing and governing provision for reciprocal discipline misreads 

the Rule altogether. Subsection (a) is fairly described as making simply an evidentiary 

allowance, i.e. where the misconduct is proven elsewhere, it is proven here. Subsection 

(b) is the notice provision, limited only to “public discipline.” (Emphasis added). 

Subsection (c), if any, is the enabling provision for reciprocal discipline, stating that upon 

notice that an attorney has been “publicly disciplined” the Office of Disciplinary Counsel

“shall” refer the matter to the Hearing Panel Subcommittee. (Emphasis added). Nowhere 

does the Rule allow, much less mandate, action under the reciprocal discipline rule upon 

notification of private discipline. However, as indicated supra, notification of respondent’s 

felony conviction alone permits discipline under Rule 3.19.
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foreign jurisdiction unless one of the four grounds provided for challenging the discipline 

imposed by a foreign jurisdiction is both asserted and established.” Syl. Pt. 4, Law. 

Disciplinary Bd. v. Post, 219 W. Va. 82, 631 S.E.2d 921 (2006) (emphasis added); see also

Comm. on Legal Ethics of the W. Va. State Bar v. Battistelli, 185 W. Va. 109, 116, 405 

S.E.2d 242, 249 (1991) (finding that discipline initiated under the reciprocal discipline 

procedures “requires imposition of the identical sanction imposed by the other jurisdiction 

in the absence of one of the enumerated exceptions” and collecting cases). As indicated 

above, at the time the Rules of Lawyer Disciplinary Procedure were adopted, this Court 

had long since held that private discipline was unconstitutional. It is no surprise therefore 

that the Rule permitting a “short-cut,” reciprocal proceeding designed to simply mirror the 

discipline issued elsewhere must be limited to discipline which this Court can mimic under 

its disciplinary authority.

Further, the exceptions to the imposition of “the same discipline” under Rule 

3.20(e) provide no escape hatch to impose reciprocal discipline which differs from the 

other jurisdiction in respondent’s case. Exceptions (1) through (3) to imposition of “the 

same discipline” are designed to mitigate any unfairness to a respondent attorney through

strict application of the same discipline imposed in the other jurisdiction. If the procedure

in the other jurisdiction did not comply with due process, if the proof was “infirm,” or the 

same discipline here would result in a “grave injustice,” the same discipline need not be 

recommended by the Hearing Panel Subcommittee. See Rule 3.20(e). Only the final 

exception—where “the misconduct proved warrants [] a substantially different type of 
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discipline be imposed”—may the Hearing Panel Subcommittee recommend anything other 

than identical discipline. Here, the Lawyer Disciplinary Board sought an enhanced 

discipline—public reprimand, rather than private—not because the “misconduct . . . 

warrant[ed]” it, but because our Court simply has not authorized a private reprimand. 

(Emphasis added). 

Because West Virginia has no disciplinary measure “identical” to the private 

reprimand issued by the Pennsylvania Disciplinary Board, it cannot effectuate reciprocal 

discipline pursuant to and as authorized by our Rules of Disciplinary Procedure. The 

proper mechanism was the one chosen and then abandoned by Office of Disciplinary 

Counsel: Rule 3.19. It is simply unnecessary to torturously read our own Rules of 

Disciplinary Procedure in order to hold respondent to account in West Virginia.

Accordingly, I respectfully dissent to the majority’s remand for further proceedings and 

would adopt the Hearing Panel Subcommittee’s recommendation to dismiss the 

proceedings.