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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2013 Term FILED 

June 17, 2013 

released at 3:00 p.m. No. 12-0195 RORY L. PERRY II, CLERK 

____________ SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

OFFICE OF DISCIPLINARY COUNSEL,
 

Petitioner
 

v.
 

H. JOHN ROGERS,
 

Respondent
 

LAWYER DISCIPLINARY PROCEEDING 

LICENSE ANNULLED 

Submitted: June 4, 2013 

Filed: June 17, 2013 

Andrea J. Hinerman, Esq. George A. Daugherty, Esq. 

Senior Lawyer Disciplinary Counsel Dunbar, West Virginia 

Office of Disciplinary Counsel Attorney for Respondent 

Charleston, West Virginia 

Attorney for Petitioner 

The Opinion of the Court was delivered PER CURIAM. 

CHIEF JUSTICE BENJAMIN, deeming himself disqualified, did not participate. 

JUSTICE MCHUGH, sitting by temporary assignment. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT
 

1. “A de novo standard applies to a review of the adjudicatoryrecord made 

before the Committee on Legal Ethics of the West Virginia State Bar [currently, the Hearing 

Panel Subcommittee of the Lawyer Disciplinary Board] 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 Committee’s recommendations while ultimately exercising 

its own independent judgement. On the other hand, substantial deference is given to the 

Committee’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). 

2. “In deciding on the appropriate disciplinaryaction for ethical violations, 

this Court must consider not only what steps would appropriately punish the respondent 

attorney, but also whether the discipline imposed is adequate to 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.” Syllabus Point 3, Committee on Legal Ethics of the 

West Virginia State Bar v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Per curiam: 

This is a lawyer disciplinary proceeding brought against H. John Rogers by the 

Office of Disciplinary Counsel (“the ODC”) on behalf of the Lawyer Disciplinary Board 

(“the Board”). The ethical violations against Mr. Rogers stem from his nolo contendere plea 

to one count of “false swearing” in violation of W.Va. Code §§ 61-5-2 [1923] and 61-5-3 

[1923] and one count of “malicious application to declare a person mentally ill or inebriate” 

in violation of W.Va. Code § 27-12-1 [2010]. A Hearing Panel Subcommittee of the Board 

determined that Mr. Rogers violated three Rules of Professional Conduct and recommended 

a number of sanctions including the annulment of his law license. 

Having considered all matters of record, we agree with the Panel’s 

recommendations, conclusions of law and recommended sanctions. We therefore annul Mr. 

Rogers’s license to practice law and impose the other sanctions recommended by the Panel. 

I.
 

Standard of Review: Disciplinary Actions
 

In Committee on Legal Ethics of the West Virginia State Bar v. McCorkle, 192 

W.Va. 286, 289, 452 S.E.2d 377, 380 (1994), this Court took the opportunity to “resolve any 

doubt as to the applicable standard of judicial review” in lawyer disciplinary cases. Syllabus 

Point 3 of McCorkle holds: 

A de novo standard applies to a review of the 

adjudicatory record made before the Committee on Legal Ethics 

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of the West Virginia State Bar [currently, the Hearing Panel 

Subcommittee of the Lawyer DisciplinaryBoard] 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 Committee’s recommendations while 

ultimately exercising its own independent judgment. On the 

other hand, substantial deference is given to the Committee’s 

findings of fact, unless such findings are not supported by 

reliable, probative, and substantial evidence on the whole 

record. 

The above standard of review is consistent with this Court’s ultimate authority 

with regard to legal ethics matters. Syllabus Point 3 of Committee on Legal Ethics of the 

West Virginia State Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984), states “[t]his 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.” 

Rule 3.7 of the West Virginia Rules of Lawyer Disciplinary Procedure provides 

that, in order to recommend the imposition of discipline of a lawyer, “the allegations of the 

formal charge must be proved by clear and convincing evidence.” See also Syllabus Point 

2, Lawyer Disciplinary Bd. v. Cunningham, 195 W.Va. 27, 464 S.E.2d 181 (1995). The 

various sanctions which may be recommended to this Court are set forth in Rule 3.15.1 

1 Rule 3.15 of the West Virginia Rules of Lawyer Disciplinary Procedure provides: 

A Hearing Panel Subcommittee mayrecommend or the Supreme 

Court of Appeals may impose any one or more of the following 

sanctions for a violation of the Rules of Professional Conduct . 

. . (1) probation; (2) restitution; (3) limitation on the nature or 

extent of future practice; (4) supervised practice; (5) community 

service; (6) admonishment; (7) reprimand; (8) suspension; or (9) 

annulment. When a sanction is imposed the Hearing Panel 

(continued...) 

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With this background in mind, we proceed to examine the present case. 

II.
 

Factual Background, Charged Violations and Analysis
 

Mr. Rogers is a member of the West Virginia State Bar who practices law in 

New Martinsville, West Virginia. He was admitted to the West Virginia State Bar in 1966. 

On February 16, 2012, the ODC filed a petition seeking the annulment of Mr. Rogers’s law 

license. In this opinion we will review the factual circumstances giving rise to the ethical 

violations filed against Mr. Rogers, consider the aggravating and mitigating factors that are 

applicable, and review the Hearing Panel Subcommittee’s recommended sanctions. 

A. Factual Background & Charged Violations2 

On the morning of July 27, 2009, Mr. Rogers entered Baristas Cafe in New 

Martinsville, West Virginia and began yelling, using profanityand gesturing to JeffreyShade 

(“Mr. Shade”), one of the owners of the cafe. Mr. Shade testified that Mr. Rogers “had come 

from the Court Restaurant and he came in and he was saying ‘I showed those motherfuckers 

1

(...continued) 

Subcommittee may recommend and the Court may order the 

lawyer to reimburse the Lawyer Disciplinary Board for the costs 

of the proceeding. Willful failure to reimburse the Board may 

be punished as contempt of the Court. 

2

The factual information comes from the Hearing Panel Subcommittee’s March 29, 

2013, report and the record presented for our review. 

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down at the courthouse this morning.’” According to Mr. Shade, Mr. Rogers then pointed 

at him and said “[a]nd you’re next on my list.”3 Mr. Shade told Mr. Rogers that he would 

not tolerate that behavior in his cafe. Mr. Shade testified that he had previously asked Mr. 

Rogers not to harass his customers “because there had been a short history of him saying 

things to our customers and using profanity, which isn’t good for local business.” Mr. 

Rogers left the cafe shortly after this incident occurred. 

A second incident occurred later that day at approximately 5:00 p.m. when Mr. 

Rogers returned to the cafe. Upon entering the cafe the second time, Mr. Rogers began 

yelling and gesturing at the cafe’s customers and employees. During this incident, Mr. 

Rogers said “hear no evil, see no evil,” and then pointed at Mr. Shade and said “pure evil.” 

Mr. Shade stated that he told Mr. Rogers he had “crossed the line” and told him “I don’t want 

you to ever come back again.” Mr. Rogers responded by asking Mr. Shade to step outside. 

Mr. Shade agreed and met Mr. Rogers on the cafe’s front porch. Mr. Shade testified that Mr. 

Rogers 

3

Jill Shade, a co-owner of the cafe and ex-wife of Mr. Shade, was also present that 

morning. She stated 

[t]he first time he [Mr. Rogers] came in in the morning, 

he came in ranting and raving about something down at the 

court, used some derogatory words to talk about the people at 

the Court Restaurant, and I wasn’t paying a whole lot of 

attention, but he pointed over at Jeff, who was standing on the 

stairs, and he said “And you’re next.” . . . . And Jeff basically 

told him he needed to stop his stuff or get out, that we didn’t 

need that kind of talk or energy in the shop. 

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was angry on the front porch, he was angry and he said “You’re 

messing with the wrong motherfucker. I’ll bust a cap in your 

ass.” And at that point, I became angry and I said, “Off, out 

now, you’re out of here.” And as he walked down the steps, I 

recall him saying “You’ll be hearing from me,” and then a 

couple days later, I heard from him via the local police 

department. 

Mr. Shade reported this threat to the New Martinsville Police Department. 

One day after Mr. Shade told Mr. Rogers not to return to the cafe, Mr. Rogers 

filed a notarized Application for Involuntary Custody for Mental Health Examination 

(“involuntary mental hygiene petition”) against Mr. Shade. In this notarized document, Mr. 

Rogers alleged that Mr. Shade was suicidal, that he was on drugs and that Mr. Shade had 

physically assaulted him twice on July 27, 2009, “with no provocation.” After the 

involuntary mental hygiene petition was filed, Mr. Shade was walking with his son, who had 

just performed in a play at a local theater, when he was picked up by the Wetzel County 

Sheriff’s Department and taken to the Hillcrest Behavioral Health Center.4 Mr. Shade 

described his arrival at the facility as follows, 

First, they stripped me down and put a robe on me, and then they 

sent me down the hallway to pee in a cup, and then I recall that 

they called in a couple more security guards. So I had three 

security guards outside of my emergency room . . . . And that’s 

where I was at for six hours in the middle of the night. 

4

Hillcrest is a secure in-patient facility which offers behavioral health services for 

people needing psychiatric, behavioral or chemical dependancy care. Hillcrest is a part of 

Ohio Valley Medical Center Hospital in Wheeling, West Virginia. 

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Mr. Shade spent the night at Hillcrest. He was examined by medical staff and underwent 

medical tests, including a drug screen and a psychiatric evaluation. The drug screen was 

negative. The psychologist who examined Mr. Shade called the mental hygiene 

commissioner and stated that he believed the petition filed against Mr. Shade was fraudulent. 

After the results of these tests were examined and considered by the mental hygiene 

commissioner, the petition against Mr. Shade was dismissed for lack of probable cause. Mr. 

Shade was released from Hillcrest on the afternoon of July 29, 2009. 

While Mr. Shade was undergoing his mental hygiene evaluation, Mr. Rogers 

filed a complaint against Mr. Shade with the Massage Therapy Licensing Board.5 In this 

complaint, Mr. Rogers swore under oath that Mr. Shade “physically assaulted me twice . . 

. on July 27 with no provocation.” Mr. Rogers later moved to dismiss this complaint after 

an investigator from the Massage Therapy Licensing Board traveled to New Martinsville to 

interview Mr. Shade and Mr. Rogers. 

On January 25, 2010, a Wetzel County Grand Jury issued a two-count 

indictment against Mr. Rogers, charging him with one count of “malicious application to 

declare a person mentally ill or inebriate” in violation of W.Va. Code § 27-12-1, and one 

count of “false swearing” in violation of W.Va. Code §§ 61-5-2 and 61-5-3. Count one of 

the indictment charged that Mr. Rogers “unlawfully, wilfully and maliciously made 

5

In addition to being a co-owner of Baristas Cafe, Mr. Shade is a licensed massage 

therapist. 

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application . . . seeking the involuntary hospitalization of one Jeffrey Shade, and to thereby 

declare said Jeffrey Shade to be mentally ill, or an inebriate, in violation of [W.Va. Code § 

27-12-1].” Count two of the indictment charged that Mr. Rogers 

did unlawfully, knowinglyand intentionally, but not feloniously, 

swear falsely, under oath or affirmation lawfully administered, 

concerning a matter or thing in a petition and application for 

involuntary custody for mental health examination of one 

Jeffrey Shade . . . . that the said Herbert John Rogers did swear 

falsely in paragraph 12 therein as follows: “He physically 

assaulted me twice, at 9:30 a.m. and 5:00 p.m. on July 27 with 

no provocation.” 

On November 30, 2011, Mr. Rogers pled nolo contendere to both counts contained in the 

indictment. On January 23, 2012, the magistrate court entered its sentencing order. It 

ordered Mr. Rogers to pay a fine and gave him a ninety day suspended jail sentence for count 

one. Mr. Rogers was ordered to pay a fine and sentenced to ninety days in jail, with eighty 

days suspended, for count two.6 Mr. Rogers appealed his criminal conviction to the Circuit 

Court of Wetzel County. By order entered on August 28, 2012, the Circuit Court of Wetzel 

County denied Mr. Rogers’s appeal and ordered that his ten-day jail sentence be served 

through home incarceration.7 Mr. Rogers thereafter filed a Notice of Appeal with this Court 

on September 27, 2012, and a scheduling order was entered on October 12, 2012. By order 

6

Mr. Rogers was effectively sentenced to spend ten days in the regional jail. 

7

The ODC failed to include the circuit court’s August 28, 2012, order in the appendixrecord. This Court takes judicial notice of the circuit court’s order pursuant to Rule 201 of 

the West Virginia Rules of Evidence. 

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entered on February 8, 2013, this Court dismissed Mr. Rogers’s appeal of his criminal 

convictions because it was not timely filed.8 

On February 16, 2012, the ODC filed a petition with this Court seeking the 

annulment of Mr. Rogers’s law license. Mr. Rogers requested and received a mitigation 

hearing before a Hearing Panel Subcommittee of the Lawyer Disciplinary Board. At this 

mitigation hearing, Mr. Rogers told the Panel that Mr. Shade was the physical aggressor 

during both incidents in the cafe on July 27, 2009. Mr. Rogers stated that Mr. Shade put a 

“bear hug” on him and shoved him out the front door. Mr. Rogers also stated that his 

purpose in filing the mental hygiene petition against Mr. Shade was to assist Mr. Shade in 

his recovery from drug addiction. 

Mr. Shade offered an entirely different version of his interaction with Mr. 

Rogers. Mr. Shade testified that there was no physical altercation between the two men on 

July 27, 2009. He also testified that he did not have any suicidal thoughts and was not 

addicted to drugs. Mr. Shade’s drug screen at Hillcrest was negative for all drugs tested. 

James Long, a patron at the cafe on July 27, 2009, testified before the Panel that he did not 

8

The deadline for perfecting the appeal, in accord with the jurisdictional four-month 

appeal period, was set forth in the scheduling order as December 31, 2012. Mr. Rogers 

appeal was not perfected on or before December 31, 2012. On January 2, 2013, Mr. Rogers 

submitted a brief that was returned to him on January 16, 2013, as not being in compliance 

with the Rules and being untimely filed. At that time, Mr. Rogers was directed to properly 

perfect the appeal within ten days and directed to include a motion to perfect the appeal out 

of time, citing good cause for the untimeliness. This Court concluded that Mr. Rogers failed 

to show good cause for extending the time period to perfect his appeal and dismissed his 

appeal on February 8, 2013. 

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see Mr. Shade touch Mr. Rogers. Similarly, Jill Shade testified that Mr. Shade did not 

physically assault Mr. Rogers at the cafe on July 27, 2009. 

At the conclusion of the mitigation hearing, the Hearing Panel Subcommittee 

found that 

because he knowingly and intentionally entered a plea of nolo 

contendere to the crimes of false swearing and of unlawfully, 

wilfully and maliciously making an application, or caused an 

application to be made to the Circuit Court of Wetzel County, 

and the Mental Hygiene Commissioner of said Court which 

sought and did result in the involuntary hospitalization of Mr. 

Shade, and has been convicted of the same, Respondent [Mr. 

Rogers] has violated Rule 8.4(b), Rule 8.4(c) and Rule 8.4(d) of 

the Rules of Professional Conduct[.] 

Rules 8.4(b), 8.4(c) and 8.4(d) of the Rules of Professional Conduct are as follows: 

Rule 8.4 Misconduct
 

It is professional misconduct for a lawyer to: . . . .
 

b) commit a criminal act that reflects adversely on the lawyer’s
 

honesty, trustworthiness or fitness as a lawyer in other respects;
 

c) engage in conduct involving dishonesty, fraud, deceit or
 

misrepresentation;
 

d) engage in conduct that is prejudicial to the administration of
 

justice.
 

The record before us overwhelmingly supports the Panel’s conclusion that Mr.
 

Rogers violated Rules 8.4(b), 8.4(c) and 8.4(d) of the Rules of Professional Conduct.

9 Under 

9

Under our disciplinary rules, the ODC must prove its case by clear and convincing 

evidence. Syllabus Point 1, in part, Lawyer Disciplinary Bd. v. McGraw, 194 W.Va. 788, 461 

S.E.2d 850 (1995) (“Rule 3.7 of the Rules of Lawyer Disciplinary Procedure . . . requires the 

Office of Disciplinary Counsel to prove the allegations of the formal charge by clear and 

(continued...) 

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Rule 3.18(c) of our Rules of Lawyer Disciplinary Procedure, “[a] plea or verdict of guilty 

or a conviction after a plea of nolo contendere shall be deemed to be a conviction within the 

meaning of this rule.”10 Syllabus Point 2 of Committee on Legal Ethics of the West Virginia 

State Bar v. Six, 181 W.Va. 52, 380 S.E.2d 219 (1989), states “[w]here there has been a final 

criminal conviction, proof on the record of such conviction satisfies the Committee on Legal 

Ethics’ burden of proving an ethical violation arising from such conviction.” Thus, the nolo 

contendere plea provides a sufficient basis to support the Panel’s finding that Mr. Rogers 

violated Rules 8.4(b), 8.4(c) and 8.4(d) of the Rules of Professional Conduct. In addition to 

Mr. Rogers’s nolo contendere plea, the testimony of Mr. Shade, Jill Shade and James Long 

supports the Panel’s conclusion that Mr. Rogers violated Rules 8.4(b), 8.4(c) and 8.4(d) of 

the Rules of Professional Conduct. 

B. Sanctions 

After finding that Mr. Rogers violated three Rules of Professional Conduct, the 

Hearing Panel Subcommittee recommended the following sanctions: (1) that Mr. Rogers’s 

law license be annulled; (2) that prior to any petition for reinstatement of his law license, Mr. 

9

(...continued) 

convincing evidence.”). However, in keeping with our established standard of review, the 

evidentiary findings of the Hearing Panel Subcommittee are afforded substantial deference. 

10Rule 3.18(d) of our Rules of Lawyer Disciplinary Procedure provides that “[a] 

lawyer shall be deemed to have been convicted within the meaning of this rule upon the entry 

of the order or judgment of conviction and such lawyer’s license may be suspended or 

annulled thereupon notwithstanding the pendency of an appeal from such conviction.” 

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Rogers shall undergo a comprehensive psychological examination by an independent 

licensed psychiatrist to determine if he is fit to practice law; (3) that Mr. Rogers fully comply 

with any and all treatment protocol expressed by this licensed psychiatrist; (4) that prior to 

petitioning for reinstatement, Mr. Rogers paythe costs of the lawyer disciplinaryproceedings 

pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure; and (5) that upon 

reinstatement, Mr. Rogers’s practice be supervised for a period of one year. 

In reviewing the sanctions recommended by the Hearing Panel Subcommittee, 

the factors this Court typically considers include 

(1) whether the lawyer has violated a duty owed to a client, to 

the public, to the legal system, or to the profession; (2) whether 

the lawyer acted intentionally, knowingly, or negligently; (3) the 

amount of the actual or potential injury caused by the lawyer’s 

misconduct; and (4) the existence of any aggravating or 

mitigating factors. 

Syllabus Point 4, in part, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 

513 S.E.2d 722 (1998). We are also mindful that 

[i]n deciding on the appropriate disciplinary action for ethical 

violations, this Court must consider not only what steps would 

appropriately punish the respondent attorney, but also whether 

the discipline imposed is adequate to 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. 

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Syllabus Point 3, Committee on Legal Ethics of the West Virginia State Bar v. Walker, 178 

W.Va. 150, 358 S.E.2d 234 (1987).11 

Our first inquiry is whether Mr. Rogers has violated a duty owed to a client, 

to the public, to the legal system, or to the profession. The Hearing Panel Subcommittee 

found that “[a]s a duly licensed attorney and an officer of the Court, [Mr. Rogers] has an 

affirmative duty to comport his actions to that of the laws of this State and has therefore . . 

. . violated his duties to the public, the legal system and the profession.” We agree. In 

Lawyer Disciplinary Board v. Stanton, 225 W.Va. 671, 678, 695 S.E.2d 901, 908 (2010), the 

Court discussed the ethical standards a lawyer is expected to maintain: 

The public expects lawyers to exhibit the highest standards [of] 

integrity and honesty. Lawyers have a duty not to engage in 

conduct involving dishonesty, fraud, or interference with the 

administration of justice. Lawyers are officers of the court and 

must operate within the bounds of the law and act in a manner 

to maintain the integrity of the Bar. 

Mr. Rogers pled nolo contendere to the misdemeanor crimes of false swearing and filing a 

malicious application to declare a person mentally ill or inebriate. These acts of dishonesty 

resulted in Mr. Shade being detained by a police officer in front of his son and being 

deprived of his personal freedom. Additionally, Mr. Shade testified to his belief that Mr. 

11 “[A]ttorney disciplinary proceedings are primarily designed to protect the public, 

to reassure it as to the reliability and integrity of attorneys and to safeguard its interest in the 

administration of justice.” Committee on Legal Ethics of the West Virginia State Bar v. 

Keenan, 192 W.Va. 90, 94, 450 S.E.2d 787, 791 (1994). Accord, Lawyer Disciplinary Bd. 

v. Sims, 212 W.Va. 463, 469, 574 S.E.2d 795, 801 (2002) (per curiam) (Davis, J., concurring, 

in part, and dissenting, in part). 

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Rogers was able to perpetrate these illegal actions against him because he was a lawyer. Mr. 

Shade stated, “I just thought, you know, I need to maybe go to law school and become part 

of the gang, otherwise, you’re subject to these kind of tactics.” We find that Mr. Rogers’s 

conduct in this matter falls woefully short of the obligations a lawyer owes to the public, to 

the legal system and to the profession. 

We next consider whether Mr. Rogers acted intentionally, knowingly or 

negligently. The Panel found, and we agree, that Mr. Rogers knowingly and voluntarily filed 

the fraudulent involuntary mental hygiene petition against Mr. Shade. The panel also found 

that Mr. Rogers knowingly and voluntarily pled nolo contendere to the misdemeanor crimes 

of false swearing and filing a malicious application to declare a person mentally ill or 

inebriate. While Mr. Rogers has offered a variety of reasons explaining why he entered this 

plea, there is no dispute that it was made voluntarily. 

Next, we consider the amount of the actual or potential injury caused by Mr. 

Rogers’s misconduct. In this case, Mr. Rogers filed a baseless involuntary mental hygiene 

petition against Mr. Shade that resulted in Mr. Shade being detained by a police officer in 

front of his child. Mr. Shade was also forced to undergo drug and psychological testing and 

was forced to spend the night in a mental health facility. In addition to depriving Mr. Shade 

of his personal freedom, Mr. Rogers attempted to revoke Mr. Shade’s message therapy 

license by filing a complaint against him with the Massage Therapy Licensing Board. 

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Along with the significant injury suffered by Mr. Shade, the Hearing Panel 

Subcommittee also found that Mr. Rogers’s misconduct “wasted the time and the valuable 

resources of both the medical and judicial systems of Wetzel County and the State of West 

Virginia.” We agree. Mr. Rogers’s misconduct resulted in actual injury to Mr. Shade and 

to the medical and judicial systems of Wetzel County. We find Mr. Rogers’s conduct to be 

reprehensible. 

The next determination in our review is the existence of any aggravating or 

mitigating factors. This Court has held that “[a]ggravating factors in a lawyer disciplinary 

proceeding are any considerations or factors that may justify an increase in the degree of 

discipline to be imposed.” Syllabus Point 4, Lawyer Disciplinary Bd. v. Scott, 213 W.Va. 

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

The Hearing Panel Subcommittee found the existence of the following 

aggravating factors: (1) dishonest or selfish motive, (2) refusal to acknowledge the wrongful 

nature of conduct, (3) substantial experience in the practice of law, and (4) illegal conduct. 

We agree with the Hearing Panel Subcommittee’s determination that these four aggravating 

factors are present in this case. We find it troubling that Mr. Rogers has refused to 

acknowledge the wrongful nature of his conduct. Mr. Rogers continues to assert that he was 

attempting to help Mr. Shade overcome a drug problem, despite Mr. Shade’s negative drug 

test. Further, Mr. Rogers continues to insist that he is the victim in this matter and that Mr. 

Shade physically assaulted him on July 27, 2009. Mr. Rogers fails to offer any rational 

14
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

explanation as to why he pled nolo contendere to the two criminal charges filed against him 

in light of his argument that he was the victim in this matter. 

Mr. Rogers argues that his nolo contendere plea was “uncounseled” and 

suggests that he was unaware of the consequences of such a plea. Mr. Rogers is a lawyer 

who has practiced law for over four decades. His nolo contendere plea was entered 

approximately two years after the criminal proceedings against him began. Mr. Rogers filed 

numerous motions during the underlying criminal matter. He offers no support for his 

position that his “uncounseled” plea was somehow hastily entered into and that he was 

unaware of the consequences resulting from this plea. 

Substantial experience is deemed to be an aggravating factor, while lack of 

experience as a lawyer is considered to be a mitigating factor. This distinction is made in 

recognition of the fact that “a youthful and inexperienced attorney may have [engaged in 

misconduct] as a result of inexperience rather than as a result of deliberate calculation.” In 

re Brown, 166 W.Va. 226, 235, 273 S.E.2d 567, 572 (1980). Mr. Rogers was admitted to the 

practice of law in this state in 1966. At the time of his misconduct in this case he had been 

practicing law for over forty years. Thus, Mr. Rogers has substantial experience as a lawyer 

and the Hearing Panel correctly found this to be an aggravating factor. 

We next consider whether any mitigating factors are present. We have 

previously held that “[m]itigating factors in a lawyer disciplinary proceeding are any 

15
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

considerations or factors that may justify a reduction in the degree of discipline to be 

imposed.” Syllabus Point 2, Scott, supra. In Scott, we further explained: 

Mitigating factors which may be considered in 

determining the appropriate sanction to be imposed against a 

lawyer for violating the Rules of Professional Conduct include: 

(1) absence of a prior disciplinary record; (2) absence of a 

dishonest or selfish motive; (3) personal or emotional problems; 

(4) timely good faith effort to make restitution or to rectify 

consequences of misconduct; (5) full and free disclosure to 

disciplinary board or cooperative attitude toward proceedings; 

(6) inexperience in the practice of law; (7) character or 

reputation; (8) physical or mental disability or impairment; (9) 

delay in disciplinary proceedings; (10) interim rehabilitation; 

(11) imposition of other penalties or sanctions; (12) remorse; 

and (13) remoteness of prior offenses. 

Syllabus Point 3, Scott, supra. 

The Hearing Panel Subcommittee found that Mr. Rogers’s testimony 

suggested12 that the following mitigating factors could apply: (1) absence of a dishonest or 

selfish motive; (2) full and free disclosure to the Disciplinary Board or cooperative attitude 

toward proceedings; (3) character or reputation; (4) imposition of other penalties and 

sanctions and (5) remorse. These mitigating factors are based, in part, on Mr. Rogers’s 

testimony before the Panel that his purpose for filing the involuntary mental hygiene petition 

was to assist Mr. Shade in his recovery from drug addiction. As discussed throughout this 

opinion, Mr. Rogers’s testimony before the Panel is at odds with the testimony of other 

12The Panel did not conclude that these mitigating factors are present in this case. 

Instead, the Panel simply stated “Respondent’s [Mr. Rogers’s] statements would suggest the 

following mitigating factors[.]” 

16
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

witnesses and with the medical evidence in the record showing that Mr. Shade’s drug test 

was negative.13 

The Panel found that “remorse” was a possible mitigating factor in this case. 

We find nothing in the record or Mr. Rogers’s brief to this Court that supports this finding. 

Mr. Rogers continues to argue that he was physically assaulted by Mr. Shade and that he filed 

the involuntary mental hygiene petition out of concern for Mr. Shade’s well-being. These 

arguments are not supported by the record before us. Mr. Rogers has failed to demonstrate 

any appreciation for the considerable harm he has caused to Mr. Shade. 

Based on all of the above, we find that the aggravating factors outweigh the 

mitigating factors suggested by Mr. Rogers. 

13During oral argument in this matter, counsel for Mr. Rogers argued that the 

involuntary mental hygiene petition was an attempt by Mr. Rogers to stage an “intervention” 

for Mr. Shade. Similarly, Mr. Rogers asserts in his brief that he has engaged in numerous 

“interventions over the years,” and that he has a “decades long history of working with 

addicts, alcoholics, and their families.” Mr. Rogers’s claim that he filed the petition against 

Mr. Shade for altruistic reasons is belied by the fact that Mr. Rogers pled nolo contendere 

to the two criminal charges filed against him. Similarly, if Mr. Rogers had spent decades 

staging interventions for addicts by working with the addicts and their families, he fails to 

explain why he did not contact Mr. Shade’s family prior to filing the involuntary mental 

hygiene petition in this case. There is no evidence in the record that Mr. Rogers made any 

attempt to work with Mr. Shade’s family, friends, or any substance abuse counselor to stage 

an “intervention” for Mr. Shade. Instead, the record shows that after having two 

confrontations with Mr. Shade at the cafe, Mr. Rogers hastily filed both an involuntary 

mental hygiene petition and a complaint with the massage therapy licensing board against 

Mr. Shade. 

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When weighing all of the factors to be considered in imposing sanctions, we 

find that the annulment of Mr. Rogers’s license to practice law is appropriate. In devising 

suitable sanctions for attorney misconduct, we have recognized that “[a]ttorney disciplinary 

proceedings are not designed solely to punish the attorney, but rather to protect the public, 

to reassure it as to the reliability and integrity of attorneys and to safeguard its interest in the 

administration of justice.” Lawyer Disciplinary Bd. v. Taylor, 192 W.Va. 139, 144, 451 

S.E.2d 440, 445 (1994). Similarly, in Syllabus Point 2 of In re Daniel, 153 W.Va. 839, 173 

S.E.2d 153 (1970), we stated “[d]isbarment of an attorney to practice law is not used solely 

to punish the attorney but is for the protection of the public and the profession.” Because Mr. 

Rogers exploited his knowledge of the law and our legal system to carry out a personal 

vendetta that resulted in a citizen of this state being involuntarily confined in a mental health 

care facility, we must send a strong message to the bar and to the public that this conduct will 

not be tolerated. This Court has recognized that 

[w]oven throughout our disciplinary cases involving attorneys 

is the thought that they occupy a special position because they 

are actively involved in administering the legal system whose 

ultimate goal is the evenhanded administration of justice. 

Integrity and honor are critical components of a lawyer’s 

character as are a sense of duty and fairness. Because the legal 

system embraces the whole of society, the public has a vital 

expectation that it will be properly administered. From this 

expectancy arises the concept of preserving public confidences 

in the administration of justice by disciplining those lawyers 

who fail to conform to professional standards. 

In re Brown, 166 W.Va. 226, 232, 273 S.E.2d 567, 570 (1980) (footnote omitted). 

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Annulling Mr. Rogers’s law license is also consistent with standards 5.11 and 

6.11 of the ABA Model Standards for Imposing Lawyer Sanctions which state: 

Standard 5.11. Disbarment is generallyappropriate when 

. . . . (a) a lawyer engages in serious criminal conduct a 

necessary element of which includes intentional interference 

with the administration of justice, false swearing, 

misrepresentation, fraud . . . . or (b) a lawyer engages in any 

other intentional conduct involving dishonesty, fraud, deceit, or 

misrepresentation that seriously adversely reflects on the 

lawyer’s fitness to practice. 

Standard 6.11. Disbarment is generallyappropriate when 

a lawyer, with the intent to deceive the court, makes a false 

statement, submits a false document, or improperly withholds 

material information, and causes serious or potentially serious 

injury to a party, or causes a significant or potentially significant 

adverse effect on the legal proceeding. 

We believe that annulling Mr. Rogers’s law license will accomplish the goals 

of our disciplinarysystem bypunishing Mr. Rogers, restoring public confidence in the ethical 

standards of our profession and serving as a deterrent to other members of the bar. 

IV.
 

Conclusion
 

For the foregoing reasons, we impose the following sanctions: (1) that Mr. 

Rogers’s law license be annulled; (2) that prior to any petition for reinstatement of his law 

license, Mr. Rogers shall undergo a comprehensive psychological examination by an 

independent licensed psychiatrist to determine if he is fit to practice law; (3) that Mr. Rogers 

fully comply with any and all treatment protocol expressed by this licensed psychiatrist; (4) 

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that prior to petitioning for reinstatement, Mr. Rogers pay the costs of the lawyer disciplinary 

proceedings pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure; and (5) 

that upon reinstatement, Mr. Rogers’s practice be supervised for a period of one year. The 

Clerk of this Court is ordered to issue the mandate forthwith. 

Law license annulled and other sanctions imposed. 

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