SER Olen L. York III v. W.Va. Office of Disciplinary Counsel & W.Va. Lawyer Disciplinary Board
231 W. Va. 183
| W. Va. | 2013Background
- Perry, not WV bar member, worked as a patent attorney before the PTO and affiliated with Waters Law Group in Huntington, WV.
- Perry’s practice was federal-focused (PTO) and did not involve WV state court appearances.
- ODC and LDB charged Perry with WV Rules of Professional Conduct violations arising from patent work in WV.
- Perry sought a writ of prohibition mandamus to halt the ODC/LDB proceedings, arguing lack of WV jurisdiction and federal preemption.
- Court denied Perry’s petition, concluding WV disciplinary authority applies to attorneys who practice in WV or provide WV services, even if not WV-admitted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WV disciplinary authorities have jurisdiction over Perry | Perry lacks WV license and did not practice WV law | ODC/LDB regulate attorneys providing services in WV, including non-WV-admitted patent practice | Yes, WV rules apply; jurisdiction exists |
| Whether federal preemption limits WV disciplinary authority | Federal law preempts state regulation of his patent practice | Federal and state authority can co-exist; no preemption shown | No preemption; state authority stands |
| Definition of practicing law in WV for disciplinary purposes | Focusing on WV admission and local practice is necessary | Practice includes providing legal services in WV even if not WV-admitted | State may regulate out-of-state practices conducted in WV under Rule 1 |
| Whether out-of-state patent practice in WV constitutes practicing law in WV | Activity is federal, not WV practice | Activity constitutes practice of law in WV for disciplinary purposes | Yes; the conduct falls within the definition and falls under WV disciplinary rules |
| Relief sought and standard for mandamus/prohibition | Writs should halt proceedings | Writs inappropriate absent lack of jurisdiction | Writs denied; court retains jurisdiction to regulate legal practice in WV |
Key Cases Cited
- State ex rel. Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982) (1982) (exclusive authority to define regulate practice of law vested in the Supreme Court)
- Lane v. West Virginia State Bd. of Law Examiners, 170 W.Va. 583, 295 S.E.2d 670 (1982) (1982) (constitutional basis for court’s regulatory power over practice of law)
- State ex rel. East End Ass’n v. McCoy, 198 W.Va. 458, 481 S.E.2d 764 (1996) (1996) ( three mandamus elements; right, duty, no adequate remedy)
- State ex rel. Frieson v. Isner, 168 W.Va. 758, 285 S.E.2d 641 (1981) (1981) (practice of law includes services outside courts)
- Lawyer Disciplinary Bd. v. Allen, 198 W.Va. 18, 479 S.E.2d 317 (1996) (1996) (out-of-state attorneys can be disciplined for conduct in WV authorities)
- Kroll v. Finnerty, 242 F.3d 1359 (Fed. Cir. 2001) (2001) (federal preemption limits; state can discipline where not preempted)
- Gadda v. Ashcroft, 377 F.3d 934 (9th Cir. 2004) (2004) (state regulation of lawyers in federal matters not preempted)
- Sperry v. Florida, 373 U.S. 379 (1963) (1963) (federal authorization to practice before PTO may limit state licensing)
- In re Desilets, 291 F.3d 925 (6th Cir. 2002) (2002) (federal regulation vs. state disciplinary authority)
- Allen, Lawyer Disciplinary Bd. v. Allen, 198 W.Va. 18, 479 S.E.2d 317 (1996) (1996) (state can discipline out-of-state lawyers practicing in WV parlance)
- S. ex rel. Valley Distrib., Inc. v. Oakley, 153 W.Va. 94, 168 S.E.2d 532 (1969) (1969) (prohibition scope and jurisdictional limits)