IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2022 Term

 

No. 20-1027

 

LAWYER DISCIPLINARY BOARD, 

Petitioner

v. 

DAVID R. TYSON, 

A Member of the West Virginia State Bar, 

Respondent.

 

Lawyer Disciplinary Proceeding 

LAW LICENSE SUSPENDED AND OTHER SANCTIONS IMPOSED

________________________________________________________

AND 

__________________

No. 22-0342

__________________

OFFICE OF LAWYER DISCIPLINARY COUNSEL, 

Petitioner,

v.

DAVID R. TYSON, 

A Member of the West Virginia State Bar, 

Respondent. 

 

Lawyer Disciplinary Proceeding

LAW LICENSE ANNULLED

 

FILED

November 3, 2022

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
Submitted: October 4, 2022

Filed: November 3, 2022

Rachael L. Fletcher Cipoletti, Esq. Tyler C. Haslam, Esq. 

Chief Lawyer Disciplinary Counsel Haslam Law Firm LLC

Renee N. Frymyer, Esq. Huntington, West Virginia 

Lawyer Disciplinary Counsel Counsel for Respondent

Office of Lawyer Disciplinary Counsel 

Charleston, West Virginia 

Counsel for Petitioner

JUSTICE ARMSTEAD delivered the Opinion of the Court. 
i

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.” Syl. Pt. 3, Committee on Legal Ethics 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 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’srecommendations 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.” Syl. Pt. 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 exclusive authority to define, regulate and control the practice 

of law in West Virginia is vested in the Supreme Court of Appeals.” Syl. Pt. 1, State ex 

rel. Askin v. Dostert, 170 W. Va. 562, 295 S.E.2d 271 (1982). 

4. “Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary 

Procedure enumerates factors to be considered in imposing sanctions and provides as 
ii

follows: ‘In imposing a sanction after a finding of lawyer misconduct, unless otherwise 

provided in these rules, the Court [West Virginia Supreme Court of Appeals] or Board 

[Lawyer Disciplinary Board] shall consider the following factors: (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.” Syl. Pt. 4, Office of Lawyer Disciplinary Counsel 

v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998). 

5. As a general rule, the annulment of a lawyer’s license to practice law 

does not moot or void sanctions imposed in relation to a prior or concurrent disciplinary 

matter unless the subsequent or concurrent annulment contains language specifically 

voiding other properly imposed sanctions. 
1

ARMSTEAD, Justice:

This matter involves two lawyer disciplinary actions brought against 

Respondent David R. Tyson (hereinafter “Mr. Tyson”), a member of the West Virginia 

State Bar. In Case No. 20-1027, the Office of Lawyer Disciplinary Counsel (hereinafter 

“ODC”) filed formal charges against Mr. Tyson regarding alleged overbilling of the Public 

Defender Services Corporation (hereinafter “PDS”) as well as complaints from Mr. 

Tyson’s former clients.1

 As a result of stipulations entered into in Case No. 20-1027, the 

parties agreed to certain proposed sanctions including a two (2) year suspension. The 

Hearing Panel Subcommittee (hereinafter “HPS”) adopted most of the recommended 

sanctions but increased the length of Mr. Tyson’s recommended suspension.2

 The HPS 

1 We use initials herein when referring to specific clients of Mr. Tyson to protect 

their identities. See Lawyer Disciplinary Board v. White, 240 W. Va. 363, 366 n. 1, 811 

S.E.2d 893, 896 n.1 (2018).

2 In addition to not adopting the recommendation regarding the length of Mr. 

Tyson’s suspension, the HPS also included an additional sanction addressing Count V in 

the Statement of Charges as the parties had not entered into any stipulation regarding that 

count. Specifically, the HPS recommended:

a. That Mr. Tyson’s law license be suspended for a period of three (3) years, which 

Mr. Tyson would voluntarily begin to serve on January 1, 2022; 

b. That upon suspension, Mr. Tyson must comply with the mandates of Rule 3.28 

of the Rules of Lawyer Disciplinary Procedure; 

c. That Mr. Tyson be required to petition for reinstatement pursuant to Rule 3.32 

of the Rules of Lawyer Disciplinary Procedure; 

d. That based upon an analysis completed by PDS, Mr. Tyson shall allow PDS to 

withhold $58,812.46 in unpaid vouchers as restitution for prior overpayments;

(continued . . .)
2

recommended that Mr. Tyson’s law license be suspended for a period of three (3) years. A 

few months following the issuance of the HPS’s recommendations in Case No. 20-1027, 

the Office of Lawyer Disciplinary Counsel filed a petition, Case No. 22-0342, requesting 

that this Court accept, with the voluntary consent of Mr. Tyson, the annulment of Mr. 

Tyson’s license to practice law in the State of West Virginia pursuant to Rule 3.25 of the 

Rules of Lawyer Disciplinary Procedure. 

Upon careful review of the briefs, the appendix record, the arguments of the 

parties, and the applicable legal authority, we adopt the recommendations of the HPS in 

Case No. 20-1027. In addition, we grant the Petition for Disbarment in Case No. 22-0342 

and order that Mr. Tyson’s license to practice law in the State of West Virginia is annulled 

by voluntary consent. 

I. FACTS AND PROCEDURAL HISTORY

Mr. Tyson is an attorney admitted to the West Virginia State Bar. 3 On 

December 21, 2020, formal charges were filed against him by and through a Statement of 

Charges (Case No. 20-1027). Thereafter, on May 3, 2022, ODC filed a Petition for 

Disbarment for Mr. Tyson (Case No. 22-0342). By Order dated June 2, 2022, this Court 

e. That Mr. Tyson be required to refund A.R. $3,225.00, which includes $225.00 

for court costs, that she was charged and paid as it was determined to be an 

unreasonable fee for work that was not completed; and 

f. That Mr. Tyson be ordered to pay the costs of the proceedings pursuant to Rule 

3.15 of the Rules of Lawyer Disciplinary Procedure. 

 3 Respondent was admitted to the West Virginia State Bar on September 30, 1980. 
3 

consolidated the two cases for purposes of briefing, oral argument, consideration, and 

decision. 

Case No. 20-1027

The Statement of Charges filed against Mr. Tyson on December 21, 2020, 

contained five separate counts. Counts I and II were opened in the name of the ODC as a 

result of a review of billing vouchers Mr. Tyson submitted to the PDS on multiple 

occasions. Counts III, IV and V resulted from complaints filed against Mr. Tyson by 

former clients. 

On September 27, 2021, this case proceeded to hearing before the HPS. On 

the day of the hearing, the parties executed “Stipulations Regarding Findings of Fact, 

Conclusions of Law and Recommendation as to Discipline,” which contained stipulations 

regarding Counts I-IV of the Statement of Charges and requested that the HPS adopt certain 

recommended sanctions, including the suspension of Mr. Tyson’s law license for a period 

of two (2) years. Mr. Tyson was to voluntarily begin to serve such suspension on January 

1, 2022.4

 

4 In addition to the suspension of Mr. Tyson’s law license, the parties requested that 

the HPS adopt the following sanctions:

a. That upon suspension, Mr. Tyson must comply with the mandates of Rule 3.28 

of the Rules of Lawyer Disciplinary Procedure; 

b. That Mr. Tyson be required to petition for reinstatement pursuant to Rule 3.32 

of the Rules of Lawyer Disciplinary Procedure; 

(continued . . .)
4

With respect to Count I, on or about July 31, 2017, the ODC informed Mr. 

Tyson that it had opened a complaint against him based upon a review of multiple billing 

vouchers he had submitted for payment to the PDS. Initially, Mr. Tyson was asked to 

review and address forty-eight (48) vouchers submitted between August 17, 2015, and 

February 24, 2017. After reviewing those vouchers, Mr. Tyson indicated that some of the 

vouchers contained billing errors, but he asserted that the billing errors were unintentional. 

On or about December 14, 2017, Mr. Tyson sent correspondence to Dana Eddy, Esquire, 

Executive Director of the PDS, requesting information as to how to amend vouchers and 

the procedure to repay the PDS for errors in his vouchers. After receiving additional 

information from the PDS, ODC requested that Mr. Tyson explain nine additional vouchers 

submitted in 2017 and 2018.5

 Pursuant to the stipulations entered into with the ODC, Mr. 

Tyson admitted that by charging over 24 hours on each of four different days along with 

charging 15 hours or more each day on an additional eleven days, he violated Rule 1.5(a) 

of the Rules of Professional Conduct.6 Mr. Tyson also admitted that he violated Rule 

c. That based upon an analysis completed by PDS, Mr. Tyson agreed to allow PDS 

to withhold $58,812.46 in unpaid vouchers as restitution for prior overpayments; 

and 

d. That Mr. Tyson be ordered to pay the costs of the proceedings pursuant to Rule 

3.15 of the Rules of Lawyer Disciplinary Procedure. 

5 Four of the vouchers each billed over 24 hours during a single day. The remaining 

five vouchers each billed 18 hours or more in a single day. 

6 Rule 1.5(a) of the Rules of Professional Conduct provides:

(continued . . .)
5

3.3(a)(1) of the Rules of Professional Conduct 7 by submitting billing vouchers which 

misrepresented the time expended for services performed before circuit judges and/or 

appointing tribunals, which resulted in overpayments of fees from the PDS. Mr. Tyson 

also admitted that because he engaged in improper and/or unsubstantiated billing with 

(a) A lawyer shall not make an agreement for, charge, or 

collect an unreasonable fee or an unreasonable amount 

for expenses. The factors to be considered in 

determining the reasonableness of a fee include the 

following:

(1) the time and labor required, the novelty and difficulty 

of the questions involved, and skill requisite to 

perform the legal service properly; 

(2) the likelihood that the acceptance of the particular 

employment will preclude other employment by the 

lawyer; 

(3) the fee customarily charged in the locality for similar 

legal services; 

(4) the amount involved and results obtained; 

(5) the time limitations imposed by the client or by the 

circumstances; 

(6) the nature and length of the professional relationship 

with the client; 

(7) the experience, reputation, and ability of the lawyer 

or lawyers performing the services; and 

(8) whether the fee is fixed or contingent. 

7 Rule 3.3(a)(1) of the Rules of Professional Conduct provides:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false 

statement of material fact or law previously made to the tribunal by the 

lawyer[.]
6

regard to cases in which he was appointed to represent indigent clients on behalf of the 

PDS, he violated Rule 8.4(c) and (d) of the Rules of Professional Conduct.8

With respect to Count II, Mr. Tyson admitted to violating Rule 1.5(a) of the 

Rules of Professional Conduct by charging over 24 hours each day on three different days 

as well as charging 15 hours or more each day on an additional 25 days. Further, he 

admitted that by his submission of incorrect billing vouchers from January 1, 2019, through 

June 30, 2019, he violated Rule 3.3(a)(1) of the Rules of Professional Conduct. Mr. Tyson 

also admitted that by engaging in improper and/or unsubstantial billing in cases in which 

he was appointed to represent indigent clients on behalf of the PDS, he violated Rule 8.4(c) 

and (d) of the Rules of Professional Conduct. 

The ODC declined to pursue a violation of Rule 1.5(a) of the Rules of 

Professional Conduct with respect to Count III. With respect to Count IV, Mr. Tyson 

admitted that he failed to communicate the scope of his representation and the basis or rate 

of the fee with his client, J.B., and because he had not represented J.B. previously, he 

admitted to violating Rule 1.5(b) of the Rules of Professional Conduct.9

 

8 Rule 8.4(c) and (d) of the Rules of Professional Conduct provides: 

It is professional misconduct for a lawyer to:

***

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; 

(d) engage in conduct that is prejudicial to the administration of justice[.]

9 Rule 1.5(b) of the Rules of Professional Conduct provides:

(continued . . .)
7

Count V involved a complaint made by A.R. against Mr. Tyson. A.R. alleged 

that she paid Mr. Tyson a total of $3,225.00 to represent her in a divorce, but Mr. Tyson 

failed to file the divorce case. Mr. Tyson attributed his failure to file a divorce action on 

A.R.’s behalf to her alleged indecision, which he described as a “back and forth” in relation 

to her desire to proceed. The HPS heard testimony from A.R., Mr. Tyson’s office manager 

and Mr. Tyson regarding these allegations and determined that Mr. Tyson failed to abide 

by A.R.’s decisions concerning the objectives of representation in this matter. For that 

reason, the HPS determined that Mr. Tyson violated Rule 1.2(a) of the Rules of 

Professional Conduct.10 Due to his failure to act with promptness, the HPS found that he 

also violated Rule 1.3 of the Rules of Professional Conduct, which requires a lawyer to 

“act with reasonable diligence and promptness in representing a client.” By failing to keep 

A.R. reasonably informed about the status of the matter, it was also determined that Mr. 

(b) The scope of the representation and the basis or rate of the fee and expenses for 

which the client will be responsible shall be communicated to the client in 

writing, before or within a reasonable time after commencing the representation, 

except when the lawyer will charge a regularly represented client on the same 

basis or rate. Any changes in the basis or rate of the fee or expenses shall also 

be communicated to the client in writing. 

10 Rule 1.2(a) of the Rules of Professional Conduct provides, in part:

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions 

concerning the objectives of representation and, as required by Rule 1.4, shall 

consult with the client as to the means by which they are to be pursued. A lawyer 

may take such action on behalf of the client as is impliedly authorized to carry 

out the representation. 
8 

Tyson violated Rule 1.4(a)(3) of the Rules of Professional Conduct, which requires a 

lawyer to “keep the client reasonably informed about the status of the matter.” 

On or about February 16, 2022, the HPS filed its “Report of the Hearing 

Panel Subcommittee” (hereinafter “Report”). The Report found that Mr. Tyson violated 

the rules to which he stipulated as well as Rules 1.2(a), 1.3, and 1.4(a)(3).

11 The HPS 

adopted the sanctions recommended by the parties with the following exceptions: (1) the 

HPS recommended that Mr. Tyson’s law license be suspended for a period of three (3) 

years; and (2) the HPS recommended that Mr. Tyson be required to refund A.R. $3,225.00 

that she was charged and paid as it was determined to be an unreasonable fee since the

work was not completed. 

On February 23, 2022, following a hearing, the ODC filed its consent to the 

HPS’s recommendations. In his subsequent response to this Court’s entry of a scheduling 

Order, Mr. Tyson also consented to the HPS’s recommendations.

Case No. 22-0342

On or about March 30, 2022, Mr. Tyson executed an Affidavit for Consent 

to Disbarment in disciplinary proceedings that were separate and distinct from those in 

11Rule 1.3 of the Rules of Professional Conduct provides that “[a] lawyer shall act 

with reasonable diligence and promptness in representing a client.” 

 Rule 1.4(a)(3) of the Rules of Professional Conduct provides that “[a] lawyer shall 

... keep the client reasonably informed about the status of the matter.” 
9

Case No. 20-1027.12 Thereafter, Lawyer Disciplinary Counsel provided a copy of the 

Affidavit to the Chair of the Lawyer Disciplinary Board along with a motion to accept the 

consent to disbarment. The Chairperson issued an order directing Chief Lawyer 

Disciplinary Counsel, upon receipt of the original Affidavit, to file the same, under seal, as 

an attachment to a petition for disbarment filed pursuant to Rule 3.25 of the Rules of 

Lawyer Disciplinary Procedure. 

On May 3, 2022, Chief Lawyer Disciplinary Counsel filed a Petition for 

Disbarment, identified as Case No. 22-0342, requesting that this Court grant the Petition 

and accept Mr. Tyson’s “Affidavit for Consent to Disbarment” under seal. 

II. STANDARD OF REVIEW

“The exclusive authority to define, regulate and control the practice of law 

in West Virginia is vested in the Supreme Court of Appeals.” Syl. Pt. 1, State ex rel. Askin 

v. Dostert, 170 W. Va. 562, 295 S.E.2d 271 (1982). It is well-established that “[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.” Syl. 

12 The complaints at issue in Case No. 22-0342 were docketed with identification 

numbers 20-06-299, 20-06-303, and 20-06-306 and were pending against Respondent and 

under investigation by the ODC. Pursuant to Rule 3.25 of the Rules of Lawyer Disciplinary 

Procedure, the affidavit executed by Mr. Tyson regarding these complaints “shall not be 

publicly disclosed or made available for use in any other proceedings except upon order of 

the Court.” 
10

Pt. 3, Committee on Legal Ethics v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984). With 

respect to the HPS’s findings: 

A de novo standard applies to a review of the 

adjudicatory record 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 judgment. On 

the other hand, substantial deference is given to the 

Committee’s finding of fact, unless such findings are not 

supported by reliable, probative, and substantial evidence on 

the whole record. 

Syl. Pt. 3, Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994). 

With these standards in mind, we consider the HPS’s findings and recommended discipline

in Case No. 20-1027 and the Chief Lawyer Disciplinary Counsel’s Petition for Disbarment 

in Case No. 22-0342. 

III. DISCUSSION

Mr. Tyson was admitted to the West Virginia State Bar on September 30, 

1980, and therefore, he is subject to the disciplinary jurisdiction of this Court. The two 

cases involved in this consolidated case are distinct, and the ODC urges this Court to 

“address the unique circumstances of each case to preserve the discipline therein.” In 

essence, the ODC seeks to have this Court sanction Mr. Tyson in Case No. 20-1027 and 

annul his law license in Case No. 22-0342. We agree that the requested relief in each case 

should be granted and discipline should be imposed in both cases. 
11

A. CASE NO. 20-1027

The parties in Case No. 20-1027 stipulated to certain findings of fact and 

conclusions of law and requested the HPS adopt the following sanctions:

a. That Mr. Tyson’s law license be suspended for a period of two (2) years

b. That upon suspension, Mr. Tyson must comply with the mandates of Rule 3.28 

of the Rules of Lawyer Disciplinary Procedure; 

c. That Mr. Tyson be required to petition for reinstatement pursuant to Rule 3.32 

of the Rules of Lawyer Disciplinary Procedure; 

d. That based upon an analysis completed by PDS, Mr. Tyson agreed to allow 

PDS to withhold $58,812.46 in unpaid vouchers as restitution for prior 

overpayments; and 

e. That Mr. Tyson be ordered to pay the costs of the proceedings pursuant to Rule 

3.15 of the Rules of Lawyer Disciplinary Procedure. 

Following the hearing in this matter, the HPS filed its Report, which adopted 

the proposed sanctions with two modifications. First, the HPS recommended that Mr. 

Tyson’s law license be suspended for a period of three (3) years instead of the two-year 

suspension stipulated by the parties. Secondly, the HPS recommended that Mr. Tyson be 

required to refund A.R. $3,225.00. 

The ODC filed its consent to the HPS’s recommendation, but Mr. Tyson did 

not initially file a consent or an objection to this recommendation. 

However, following entry of this Court’s order on June 2, 2022, which set a 

briefing schedule, Mr. Tyson filed his brief indicating that he did not object to the

recommendations of the HPS with respect to Case No. 20-1027. Mr. Tyson also asked this 
12

Court to consider his participation in the proceedings, including the stipulations, which we 

have done. 

Although the parties stipulated to a two (2) year suspension, the HPS 

recommended a three (3) year suspension, to which the parties have subsequently 

consented. The sanctions imposed in this, as in all lawyer disciplinary cases, must be 

designed to “serve as a deterrent to other attorneys.” Committee on Legal Ethics v. 

McCorkle, 192 W. Va. 286, 291, 452, S.E.2d 377, 382 (1994). When analyzing sanctions, 

we are guided by the well-settled principle that:

Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary 

Procedure enumerates factors to be considered in imposing 

sanctions and provides as follows: “In imposing a sanction 

after a finding of lawyer misconduct, unless otherwise 

provided in these rules, the Court [West Virginia Supreme 

Court of Appeals] or Board [Lawyer Disciplinary Board] shall 

consider the following factors: (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.” 

Syl. Pt. 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 

722 (1998). 

In support of its recommended sanctions, the HPS analyzed the required 

factors and determined that a three-year suspension in addition to other sanctions was 

warranted. We agree. Mr. Tyson stipulated to facts that support a finding that the first 
13

three factors of Rule 3.16 weigh in favor of the discipline recommended by the HPS. In 

addition, his prior discipline was an aggravating factor.13 

As the HPS noted, this Court has concluded that suspensions are the normal 

course of discipline in cases of fraudulent PDS billing. See Lawyer Disciplinary Board v. 

Cooke, 239 W. Va. 40, 799 S.E.2d 117 (2017) (two-year suspension for overbilling PDS); 

Lawyer Disciplinary Board v. Hassan, 241 W. Va. 298, 824 S.E.2d 224 (2019) (six-month 

suspension for value billing); and Lawyer Disciplinary Board v. Grindo, 243 W. Va. 130, 

842 S.E.2d 683 (2020) (two-year suspension for intentional errors in PDS billing as well 

as failure to be truthful about self-reporting misconduct along with prior discipline). “This 

Court considers the protection of the public and the State coffers of paramount importance, 

particularly as pertains to lawyer disciplinary matters.” Cooke, 239 W. Va. at 55, 799 

S.E.2d at 132. Accordingly, we adopt the sanctions recommended by the HPS in relation 

to Case No. 20-1027.

B. CASE NO. 22-0342

On March 30, 2022, Mr. Tyson executed an Affidavit for Consent to 

Disbarment in disciplinary proceedings that were separate and distinct from those in Case 

13 Mr. Tyson was admonished for a violation of Rule 1.5 of the Rules of Professional 

Conduct in 2005, and he was publicly reprimanded for a violation of Rule 1.16(d) and 

8.1(b) of the Rules of Professional Conduct in 2019. 
14

No. 20-1027.14 Thereafter, on May 3, 2022, Chief Lawyer Disciplinary Counsel filed a 

Petition for Disbarment requesting that this Court grant the Petition and accept Mr. Tyson’s 

“Affidavit for Consent to Disbarment” under seal. 

Rule 3.25 of the Rules of Lawyer Disciplinary Procedure permits a lawyer 

“who is the subject of an investigation into or a pending proceeding involving allegations 

of misconduct” to consent to disbarment. However, the only mechanism by which this can 

be accomplished is for the lawyer to deliver to the Board:

an affidavit stating that he or she desires to consent to 

disbarment and that (1) the lawyer’s consent is freely and 

voluntarily given; (2) the lawyer is not being subjected to 

coercion or duress; (3) the lawyer is aware that there is 

presently pending an investigation into, or proceedings 

involving, allegations that there exists grounds for the lawyer’s 

discipline, the nature of which the lawyer shall specifically set 

forth; (5) the lawyer acknowledges that the material facts so 

alleged are true; and (6) the lawyer submits his or her consent 

because the lawyer knows that if the charges were predicated 

upon the matters under investigation, or if the proceedings 

were prosecuted, the lawyer could not successfully defend the 

charges. 

Rule 3.25 of the Rules of Lawyer Disciplinary Procedure. 

Rule 3.25 further requires the Board to file the affidavit with this Court and 

directs this Court to “enter an order disbarring the lawyer by consent.” As the parties have 

complied with Rule 3.25, and the Affidavit meets the requirements outlined above for 

14 See supra, note 12. 
15

consent to disbarment, we hereby annul Mr. Tyson’s license to practice law in the State of 

West Virginia by voluntary consent.

15 

C. IMPOSITION OF DISCIPLINE

As we noted earlier, the ODC seeks to have this Court sanction Mr. Tyson in 

Case No. 20-1027 and annul his law license in Case No. 22-0342, and we agree that this is 

the proper disposition. The sanctions in Case No. 20-1027 are important to this State as 

the PDS will be able to withhold $58,812.46 in unpaid vouchers as restitution for prior 

overpayments, and A.R. will be entitled to a refund of $3,225.00. 

This Court has previously disbarred a lawyer under Rule 3.25 in distinct 

matters although the lawyer had been suspended. See Lawyer Disciplinary Board v. Thorn, 

236 W. Va. 681, 783 S.E.2d 321 (2016) (one year suspension followed by an Order 

annulling Mr. Thorn’s license by voluntary consent in No. 17-0469 (6/6/2017) 

(unpublished)). In addition, in 2020, this Court granted a petition to annul the law license 

of Timothy M. Sirk despite the fact that Mr. Sirk’s license was suspended at the time such 

request was made. In so doing, this Court did not void or moot Mr. Sirk’s prior suspension. 

See Lawyer Disciplinary Board v. Sirk, 240 W. Va. 274, 810 S.E.2d 276 (2018) and No. 

19-0996 (1/9/2020) (unpublished). As a general rule, the annulment of a lawyer’s license 

to practice law does not moot or void sanctions imposed in relation to a prior or concurrent 

15 Pursuant to Rule 3.33(a) of the Rules of Lawyer Disciplinary Procedure, “[t]he 

annulment of a license to practice law shall revoke and terminate such license, and shall 

constitute a disbarment.” 
16

disciplinary matter unless the subsequent or concurrent annulment contains language 

specifically voiding other properly imposed sanctions. Due to the gravity of the conduct

involved in Case No. 20-1027, we wish to make it clear that our decision to annul Mr. 

Tyson’s license to practice law in the State of West Virginia does not moot or nullify, in 

any way, the sanctions that we are imposing in Case No. 20-1027. 16 Moreover, the 

imposition of the sanction of suspension of Mr. Tyson’s law license, and the additional 

sanctions imposed in Case No. 20-1027, are in addition to, and do not in any way abrogate 

or nullify, the annulment of his law license in Case 22-0342.

IV. CONCLUSION

For the reasons set forth herein, we order the following sanctions:

Case No. 20-1027 

(1) Mr. Tyson’s law license is suspended for a period of three (3) years. 

(2) Upon suspension, Mr. Tyson must comply with the mandates of Rule 

3.28 of the Rules of Lawyer Disciplinary Procedure. 

(3) Mr. Tyson will be required to petition for reinstatement pursuant to Rule 

3.32 of the Rules of Lawyer Disciplinary Procedure.17 

(4) Mr. Tyson shall allow the PDS to withhold $58,812.46 in unpaid 

vouchers as restitution for prior overpayments. 

(5) Mr. Tyson is required to refund A.R. $3,225.00, (which includes the 

$225.00 for court costs), that she was charged and paid as it was 

16 We have imposed the requirement that any reinstatement pursuant to Case. No. 

20-1027 must be by petition rather than automatic reinstatement merely because that was 

consented to in Case No. 20-1027, and because it is a condition of the suspension imposed 

in that case. However, because Mr. Tyson’s license to practice law has also been annulled, 

any opportunity to petition for reinstatement pursuant to Rule 3.32 in Case No. 20-1027, 

has been foreclosed and superseded by the annulment by voluntary consent imposed 

pursuant to Case. No. 22-0342. 

17 See supra, note 16. 
17

determined to be an unreasonable fee because the work was not 

completed. 

(6) Mr. Tyson is ordered to pay the costs of the proceedings pursuant to Rule 

3.15 of the Rules of Lawyer Disciplinary Procedure. 

Case No. 22-0342

Mr. Tyson’s license to practice law in the State of West Virginia is hereby 

annulled by voluntary consent. 

No. 20-1027: Law License Suspended and Other Sanctions Imposed. 

 

No. 22-0342: Law License Annulled.