1

Walker, J., concurring: 

I agree with our decision to reject the Hearing Panel Subcommittee’s (HPS) 

recommendation and write separately to emphasize that this Court’s authority in lawyer

disciplinary matters is broad and that we established the West Virginia Office of 

Disciplinary Counsel to zealously prosecute attorney misconduct.

1

 Only after such 

prosecution can we efficiently perform our role as “the final arbiter of legal ethics problems 

and . . . make the ultimate decisions about public reprimands, suspensions or annulments 

of attorneys’ licenses to practice law.”2

The ODC opened an ethics complaint against Respondent after he reported 

his felony convictions to it, as Rule 3.19 of the West Virginia Rules of Lawyer Disciplinary 

Procedure obligated him to do. The West Virginia Lawyer Disciplinary Board issued a 

stay of the proceedings pending the resolution of Pennsylvania’s disciplinary proceedings 

against Respondent for the same conduct and convictions. After Pennsylvania adjudicated 

1

 See W. Va. R. Law. Disciplinary P. 4. 

2 LDB v. Lusk, 212 W. Va. 456, 461, 574 S.E.2d 788, 793 (2002) (quoting Syl. Pt. 

2, LDB v. Barber, 211 W. Va. 358, 566 S.E.2d 245 (2002)). 

FILED

June 10, 2022

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

him for violating its rules of professional conduct, the ODC initiated reciprocal disciplinary 

procedures under Rule 3.20 of the West Virginia Rules of Lawyer Disciplinary Procedure. 

Rule 3.20, among other things, recognizes the effect of another jurisdiction’s professional 

misconduct adjudication, permits the HPS to “take action” on the conduct without a formal 

hearing, and requires the HPS recommend the same or, depending on the circumstances, 

“substantially different” sanctions than those imposed by the other jurisdiction. 

Pennsylvania issued a private reprimand against Respondent, and the ODC 

pursued a public reprimand as reciprocal discipline because West Virginia recognizes no 

private lawyer discipline. Rule 3.20 required the HPS to determine whether Respondent’s 

misconduct warranted the public reprimand, or any other sanction. But instead of making 

the required findings, it suggests that this Court lacks subject matter jurisdiction and 

recommends we dismiss the action. 

The HPS concluded that it and “the West Virginia Supreme Court of Appeals 

are without subject-matter jurisdiction to hear this matter[,]” despite this Court refusing 

two of Respondent’s prior motions to dismiss the reciprocal discipline action based on

Respondent’s same arguments about our jurisdiction.

3

 As a practical matter, this Court 

3

 We denied the motions by orders dated October 4, 2018, and January 28, 2021. 
3 

created the Hearing Panel and its subcommittees to “conduct hearings and make findings 

of fact, conclusions of law, and recommendations of lawyer discipline to the Supreme 

Court of Appeals . . . [,]”4 but we possess “the exclusive authority to regulate and control 

the practice of law in this State.”5 In other words, the HPS acts “as an administrative arm 

of this Court” but yields to our authority.6 So, I find it perplexing that the HPS effectively 

recommends we grant Respondent’s motion to dismiss after we denied it twice. 

Even so, the HPS supports its recommendation with flawed reasoning. For 

one, the HPS found that “in the very first instance, the Respondent in this case was not 

required to report the private reprimand he received from Pennsylvania and ODC was not 

authorized to act because it had not received a notice of public discipline imposed by 

Pennsylvania against Respondent.”7 But Respondent had a duty to report the outcome of 

4

 W. Va. R. Law. Disciplinary P. 3. 

5

 Syl. Pt. 1, in part, Daily Gazette Co. Inc., v. Comm. on Legal Ethics, 174 W. Va. 

359, 326 S.E.2d 705 (1984). 

6

 See LDB v. Farber, 200 W. Va. 185, 189, 488 S.E.2d 460, 464 (1997) (quoting 

LDB v. Vieweg, 194 W. Va. 554, 558, 461 S.E.2d 60, 64 (1995)). 

7

 Emphasis in original. 
4 

Pennsylvania’s proceedings because the ODC demanded that he do so.8 While Rule 

3.20(b) may not have required him to report the private discipline, ODC’s demand 

obligated him to do so, and the HPS erroneously found that Respondent had no duty to 

report Pennsylvania’s private reprimand. Likewise, the HPS’s conclusion that ODC lacked 

authority under Rule 3.20 rests on its erroneous and unprecedented belief that Rule 3.20 

(b) and (c) represent subject matter jurisdiction parameters. The HPS found that the 

subsections create “specific limitations” on jurisdiction but cited no authority supporting 

the proposition or showing that the ODC may not proceed under 3.20(a) and (e) absent 

reported public discipline. Instead, as the majority Opinion states, subsections (b) and (c) 

impose duties on West Virginia lawyers and the ODC regarding public discipline.

9

 And 

8

 The ODC stayed its proceedings on the criminal convictions to prevent 

Respondent from “defending himself in parallel disciplinary proceedings” and intended to 

use Pennsylvania’s disciplinary adjudication to proceed under W. Va. R. Law. Disciplinary 

P. 3.20 after Respondent reported the outcome. The ODC sent him at least one letter 

demanding that he report the outcome of Pennsylvania’s disciplinary proceedings. 

9

 Subsection (b) provides that “[a]ny lawyer . . . against whom any form of public 

discipline has been imposed . . . shall notify the [ODC] . . . [,]” and subsection (c) provides 

that “[u]pon receiving [such] notice . . . Disciplinary Counsel shall, following an 

investigation pursuant to these rules, refer the matter to a Hearing Panel Subcommittee for 

appropriate action.” (Emphasis added). See also Syl. Pt. 2, LDB v. Post, 219 W. Va. 82, 

631 S.E.2d 921 (2006) (“Rule 3.20 of the West Virginia Rules of Lawyer Disciplinary 

Procedure imposes an affirmative duty on a lawyer to report the fact that he has been 

publicly disciplined or has voluntarily surrendered his license to practice in a foreign 

jurisdiction.”). 
5 

by imposing those duties, we did not limit the HPS’s jurisdiction to decide matters brought 

under 3.20(a). As we have long-held, “‘[j]urisdiction’ relates to the power of a . . . board . 

. . to hear and determine a controversy presented to it . . . .”10 Rule 3.20(a), which 

empowers the HPS to “take action,” omits the word public when it says that “[a] final 

adjudication in another jurisdiction . . . of misconduct constituting grounds for discipline . 

. . shall, for purposes of proceeding pursuant to these rules conclusively establish such 

conduct.”11 As the HPS noted in its conclusions of law, “we are obligated not to add to 

[Rules] something [this Court] purposely omitted.”12 No other part of the Rule speaks to 

the HPS’s power, and giving Rule 3.20(a) its plain meaning, any lawyer disciplinary 

adjudication in another jurisdiction giving rise to discipline—public or private—

conclusively establishes the underlying conduct and empowers the HPS to take action on 

it.13 So, if Rule 3.20 contains any subject matter jurisdiction trigger, an adjudication of 

10 Syl. Pt. 1, in part, Fraga v. State Comp. Comm’n, 125 W. Va. 107, 23 S.E.2d 641 

(1942). 

11 W. Va. R. Law. Disciplinary P. 3.20(a). 

12 See generally Syl. Pt. 11, in part, Brooke B. v. Ray C., 230 W. Va. 355, 738 

S.E.2d 21 (2013). 

13 Respondent also insists that the ODC lacked the authority under W. Va. R. Law. 

Disciplinary P. 4.4 because subsection (8) of the Rule authorizes the ODC to “seek 

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

jurisdiction[.]” While the Rule grants the ODC the authority to seek reciprocal discipline 

based on reported public discipline, that does not limit the ODC’s authority in other 
6 

attorney misconduct in another jurisdiction that constitutes grounds for any discipline 

satisfies it. 

In this case, Pennsylvania adjudicated Respondent of violating Pennsylvania 

Rule of Disciplinary Enforcement 203(b)(1), the conduct underlying the violation being 

his criminal convictions of (1) aggravated assault by motor vehicle while driving under the 

influence, (2) driving under the influence of alcohol or controlled substance, (3) driving 

under the influence of alcohol, high rate of alcohol, (4) driving under the influence of 

alcohol or controlled substance, and (5) failure to keep right.

14 Rule 3.20(a) recognizes the 

existence of the convictions and authorized the HPS to proceed with or without a hearing. 

And it is the HPS’s duty to consider, make findings related to, and recommend the 

appropriate sanctions for the misconduct when the ODC or the respondent attorney request 

different sanctions than those imposed the other jurisdiction: the HPS “shall refer the 

respects. For instance, in subsection (4) of the Rule, we authorize the ODC to “prosecute 

violations of . . . the Rules of Professional Conduct[,]” which Respondent’s criminal 

convictions—proven under 3.20(a)—violate. Also, W. Va. R. Law. Disciplinary P. 3.14 

provides that “[i]t shall be a ground for discipline for a lawyer to . . . engage in conduct 

violating applicable rules of professional conduct on another jurisdiction[,]” as 

Pennsylvania sanctioned him for doing. 

14 Pennsylvania Rule of Disciplinary Enforcement 203(b)(1) provides that 

conviction of a crime shall be grounds for discipline. 
7 

matter to the Supreme Court of Appeals with the recommendation that the same discipline 

be imposed as was imposed by the foreign jurisdiction unless it is determined by the [HPS] 

that . . . (4) the misconduct proved warrants that a substantially different type of discipline 

be imposed by the Supreme Court of Appeals.”15 In this instance, the ODC implicated 

subsection (e) by pursuing substantially different discipline in the form of a public 

reprimand under West Virginia Rule of Lawyer Disciplinary Procedure 3.15(7).16 The

misconduct—the criminal convictions—warrants discipline different than the private 

reprimand issued by Pennsylvania because private reprimands violate the West Virginia 

Constitution.17 The ODC may also wish to “assert and establish” a substantially different 

sanction in this case because—according to Respondent—the Pennsylvania Office of 

Disciplinary Counsel only agreed to a private reprimand because they “faced possible 

embarrassment” if they had a hearing on the merits of the underlying misconduct: 

30. . . . [b]ecause Pennsylvania’s Office of Disciplinary 

Counsel was arguably derelict in its duty to prosecute the 

attorneys whose misconduct had contributed to the convictions 

15 Rule 3.20(e) (emphasis added). 

16 See Syl. Pt. 4, Post, 219 W. Va. 82, 631 S.E.2d 921 (Requiring an exception 

under subsection (e) to be “asserted and established” before HPS can recommend a 

different sanction than a foreign jurisdiction.). 

17 Daily Gazette Co. Inc.,174 W. Va. at 367, 326 S.E.2d at 713-14 (“private 

reprimands . . . as a method of official discipline is in direct contravention with the ‘open 

courts’ provision of West Virginia Constitution art. III, § 17.”). 
8 

that were the subject of Respondent’s disciplinary proceedings, 

Pennsylvania’s disciplinary counsel (as well as the attorneys 

who committed the misconduct during the underlying criminal 

proceedings) faced possible embarrassment during a public 

hearing before a Hearing Committee, where Respondent’s full 

case for mitigation would have brought these actions to light. 

31. Accordingly, prior to the public hearing in 

Respondent’s Pennsylvania disciplinary proceedings, 

Respondent and Pennsylvania’s Office of Disciplinary 

Counsel agreed, in consultation with the Chair of the appointed 

Hearing Committee . . . to recommend that Respondent be 

issued a private reprimand . . . .[18] 

Respondent seems to suggest that external pressures placed the Pennsylvania Office of 

Disciplinary counsel under duress, causing it to agree to a private reprimand. And 

following his logic, the HPS may determine that his misconduct warrants different 

sanctions in West Virginia since ODC faces no external pressures and can proceed with a 

public hearing. Aggravating factors may also constitute grounds for substantially different 

sanctions.19 “Aggravating factors ‘are any considerations or factors that may justify an 

increase in the degree of discipline to be imposed.’”20 And we have reiterated that a 

lawyer’s denial of responsibly for their misconduct can constitute an aggravating factor in 

18 Resp’t’s May 25, 2018, Mot. to Dismiss, 9, ¶¶ 30-31. 

19 LDB v. Downes, 239 W.Va. 671, 679-80, 805 S.E.2d 432, 440-41 (2017). 

20 Id. at 680, 805 S.E.2d at 441 (quoting Syl. Pt. 4, in part, LDB v. Scott, 213 W. 

Va. 209, 579 S.E.2d 550 (2003)). 
9 

disciplinary proceedings.

21 The ODC and the HPS should consider whether Respondent 

has taken responsibility for his actions since, among other things, he claims (1) the 

convictions underlying Pennsylvania’s disciplinary adjudication resulted from 

prosecutorial misconduct,

22 (2) “the commencement of these . . . disciplinary proceedings, 

was precipitated by a form of ‘bait-and-switch’ fraud perpetrated by [ODC] . . . [,]”23 (3) 

ODC counsel lacks “the basic minimal competence and ethical compass usually found in 

even first-year lawyers . . .[,]”24 (4) ODC extorted him,

25 (5) “[t]he danger that [he] poses 

to the general public and legal profession . . . is so non-existent that [ODC] . . . proceeded 

to sit on its proverbial hands and do absolutely nothing . . . [,]26 (6) “the impairment 

evidence submitted by the Commonwealth at his [criminal] trial . . . had been manufactured

21 LDB v. Nace, 232 W. Va. 661, 676, 753 S.E.2d 618, 633 (2013) (“Of the 

aggravating factors in this case, most notable is [the] refusal to accept any hint of

responsibility . . . .”); LDB v. Aleshire, 230 W. Va. 70, 79, 736 S.E.2d 70, 76 (2012) (“We 

find it particularly troubling that [the lawyer] has refused to acknowledge the wrongful 

nature of his conduct.”). 

22 Resp’t’s May 25, 2018, Mot. to Dismiss, 9, ¶¶ 30-31. 

23 Resp’t’s October 8, 2020, Mot. to Dismiss, 2, ¶ 3. 

24 Id. at 6, ¶ 15. 

25 Id. at 8, ¶ 19. 

26 Id. at 10, ¶ 27. 
10 

. . . [,]”27 and (7) “if discipline is ultimately imposed upon [him], he may have grounds to 

petition the Supreme Court of the United States for review.”28 Respondent challenges the 

validity of his convictions, the necessity of disciplinary proceedings against him, and casts 

blame on others despite Pennsylvania’s disciplinary adjudication establishing several 

convictions arising from Respondent’s drunk driving that inflicted serious bodily injuries 

upon an innocent person.29 

Given the proven conduct, the HPS may choose to conduct a hearing or take 

action without one. Either way, it should explain whether substantially different sanctions 

are warranted to achieve the goal of disciplinary proceedings in West Virginia which is to 

“appropriately punish the respondent attorney, . . . serve as an effective deterrent to other 

members of the Bar and at the same time restore public confidence in the ethical standards 

of the legal profession.”30 Where the misconduct proven warrants a different sanction than 

27 Id. at 17, ¶ 50. 

28 Id. at 44, ¶ 138. 

29 Commonwealth v. Doheny, No. 28 WDA 2014, 2015 WL 7283340 at *1-3 (Pa. 

Super. Ct. April 9, 2015). 

30 Syl. Pt. 3, in part, Comm. on Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 

234 (1987). 
11

another jurisdiction’s sanction, it is the ODC’s duty to pursue them and the HPS’s duty to 

make findings explaining whether they are warranted.