829 S.E.2d 267
W. Va.2019Background
- Thomas J. Drake’s law license was voluntarily annulled in 2012 after he entered an Alford/Kennedy plea to one count of felony embezzlement for withdrawing approximately $104,853.43 from a court-appointed trust and converting about $70,798.67 to personal use.
- The circuit court initially ordered restitution of $56,906.39 to the trust’s subrogee, Great American; Drake later filed bankruptcy and negotiated a $27,500 settlement with Great American, but has made no restitution payments since that settlement.
- The appointing court removed Drake as trustee after discovering unauthorized withdrawals and falsified trust ledgers; the State Police investigated and referred findings to prosecutors.
- After a five-year waiting period, Drake petitioned for reinstatement in May 2018; the Hearing Panel Subcommittee (HPS) held a hearing, found reinstatement would harm public confidence, and recommended denial; the Office of Disciplinary Counsel (ODC) agreed.
- The Supreme Court reviewed de novo the recommendation (with factual findings given deference), considered Drake’s rehabilitation under established five-factor criteria, and denied reinstatement due to the seriousness of the offense, lack of restitution, and insufficient proof of rehabilitation.
Issues
| Issue | Drake's Argument | ODC / HPS Argument | Held |
|---|---|---|---|
| Whether a felony conviction for embezzlement automatically bars reinstatement | A felony conviction does not automatically preclude reinstatement; he has shown remorse and mitigation (health issues, bankruptcy) | The felony involves moral turpitude (misappropriation of client funds) and is so serious it should preclude reinstatement | Court: Conviction does not automatically bar reinstatement, but severity makes reinstatement unlikely absent strong rehabilitation evidence |
| Whether Drake demonstrated rehabilitation sufficient for reinstatement | Claims treatment, employment as paralegal, community service, and passage of time show rehabilitation | Points to lack of restitution payments, civil complaints, attempts to excuse conduct, and insufficient causal link between mental health treatment and misconduct | Court: Drake failed to show clear and convincing evidence of rehabilitation; lack of restitution and other conduct weigh against reinstatement |
| Whether failure to make restitution is excused by bankruptcy court delay in entering dismissal order | Bankruptcy court’s failure to enter dismissal order prevents triggering repayment; thus payments excused until dismissal | Drake’s lack of diligence and delay in pursuing the dismissal order shows he did not prioritize restitution | Court: Bankruptcy delay does not excuse Drake’s failure to make restitution; his inaction undermines credibility and rehabilitation claims |
| Whether reinstatement would adversely affect public confidence in administration of justice | Reinstatement would restore his career and he has supportive testimony regarding competence | Public confidence would be harmed because of the embezzlement, nonpayment of restitution, and insufficient acceptance of responsibility | Court: Reinstatement would have a justifiable and substantial adverse effect on public confidence; petition denied |
Key Cases Cited
- Committee on Legal Ethics v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984) (Court is final arbiter of legal ethics and attorney discipline)
- Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994) (de novo review of law and sanction issues with deference to factual findings)
- In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980) (standard for reinstatement: integrity, moral character, competence, and record of rehabilitation)
- In re Reinstatement of diTrapano, 240 W. Va. 612, 814 S.E.2d 275 (2018) (distinguishes successful reinstatement where full restitution and acceptance of responsibility occurred)
- Committee on Legal Ethics v. Hess, 186 W. Va. 514, 413 S.E.2d 169 (1991) (misappropriation of funds involves moral turpitude)
- Lawyer Disciplinary Bd. v. Vieweg, 194 W. Va. 554, 461 S.E.2d 60 (1995) (letters and general supportive statements have limited evidentiary value in reinstatement)
- In re Smith, 214 W. Va. 83, 585 S.E.2d 602 (2003) (seriousness of underlying offense may preclude reinstatement)
- Comm. on Legal Ethics v. Six, 181 W. Va. 52, 380 S.E.2d 219 (1989) (definition of moral turpitude as conduct contrary to justice, honesty, and good morals)