Committee on Legal Ethics of West Virginia State Bar v. Folio, 19698

• Decision Date: 20 December 1990
• Docket Number: No. 19698,19698
• Court: West Virginia Supreme Court
• Parties: The COMMITTEE ON LEGAL ETHICS OF The WEST VIRGINIA STATE BAR v. John S. FOLIO, a Member of the West Virginia State Bar.

Page 248

401 S.E.2d 248

184 W.Va. 503

The COMMITTEE ON LEGAL ETHICS OF The WEST VIRGINIA STATE BAR v. John S. FOLIO, a Member of the West Virginia State Bar.

No. 19698.

Supreme Court of Appeals of West Virginia.

Dec. 20, 1990.

Rehearing Denied Feb. 6, 1991.

Syllabus by the Court

1. " 'Where 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.' Syllabus Point 2, Committee on Legal Ethics v. Six, --- W.Va. ----, 380 S.E.2d 219 (1989)." Syl. Pt. 1, Committee on Legal Ethics v. Boettner, Jr., --- W.Va. ----, 394 S.E.2d 735 (1990).

2. "A license to practice law is a valuable right, such that its withdrawal must be accompanied by appropriate due process procedures. Where annulment of an attorney's license is sought based on a felony conviction under Article VI, Section 23 of the Constitution, By-laws, and Rules and Regulations of the West Virginia State Bar, due process requires the attorney be given the right to request an evidentiary hearing. The purpose of such a hearing is not to attack the conviction collaterally, but to introduce mitigating factors which may bear on the disciplinary punishment to be imposed." Syl. Pt. 2, Committee on Legal Ethics v. Boettner, Jr., --- W.Va. ----, 394 S.E.2d 735 (1990).

3. The cases in which a mitigation hearing will be appropriate are the exception rather than the rule. Whether a mitigation hearing is appropriate in a particular instance will depend upon a variety of factors, including but not limited to, the nature of the attorney's misconduct, surrounding facts and circumstances, previous ethical violations, the wilfulness of the conduct, and the adequacy of the attorney's previous opportunity to present evidence sufficient for a determination of appropriate sanctions.

Cynthia Santoro Gustke, Sherri D. Goodman, The West Virginia State Bar, Charleston, for Committee on Legal Ethics of The WV State Bar.

John Lewis Marks, Jr., Clarksburg, for John S. Folio.

WORKMAN, Justice:

In this disciplinary proceeding, the Committee on Legal Ethics of the West Virginia State Bar ("the Committee") recommends that we annul the license to practice law of John S. Folio. Mr. Folio was convicted in the United States District Court for the Northern District of West Virginia of conspiracy to obstruct justice. The Committee maintains that the respondent is guilty of professional misconduct and has violated Rule 8.4(b) to (d) of the West Virginia Rules of Professional Conduct. ¹ The respondent contends that the facts surrounding his conviction do not warrant annulment of his license to practice law and further contends that he is entitled to an evidentiary hearing in which mitigating factors may be developed. We disagree with the respondent and hereby order the annulment of the respondent's license to practice law in the State of West Virginia.

The respondent has engaged in the practice of law in Clarksburg, West Virginia, since his admission to practice law on June 1, 1971. He was indicted on January 31, 1984, in the United States District Court for the Northern District of West Virginia and charged with five counts of criminal conduct. ² During a trial conducted from June 4 through 12, 1984, a judgment of acquittal was entered on one count of obstruction of justice by the district court at the close of the government's case. The jury subsequently found the respondent not guilty of three obstruction of justice counts. The jury did, however, find the respondent guilty of one felony count of conspiracy to obstruct justice ("conspiracy to violate 18 U.S.C. § 1512 (1985) by using intimidation, physical force, and threats and by engaging in misleading conduct with intent to influence and attempt to influence testimony in an official proceeding, in violation of 18 U.S.C. § 371 (1966)"). ³

On October 23, 1984, the Honorable Robert Maxwell of the United States District Court for the Northern District of West Virginia granted the respondent's Motion for Judgment of Acquittal on the conspiracy to obstruct justice charge, reasoning that insufficient evidence had been presented to sustain a guilty verdict. Upon appeal, the United States Court of Appeals for the Fourth Circuit reinstated the guilty verdict, by order dated July 11, 1985. See U.S. v. Folio, 767 F.2d 914 (4th Cir.1985) (unpublished opinion). After evidentiary hearings which revealed that exculpatory evidence known to the government had not been disclosed, the district court granted the respondent's motion for a new trial. Again, the government appealed to the Fourth Circuit, and the Fourth Circuit reversed the district court's award of a new trial. See U.S. v. Folio, 851 F.2d 357 (4th Cir.1988) (unpublished opinion). The respondent's application for a writ of certiorari from the judgment of the Fourth Circuit to the United States Supreme Court was denied by order dated November 7, 1988.

On May 29, 1990, the respondent was sentenced by Judge Maxwell to a term of probation for a period of two years, was fined $1,000.00, and was ordered to perform 100 hours of community service. Judge Maxwell also entered an order suspending the respondent's license to practice law for a period of ten days.

The Committee on Legal Ethics has instituted this disciplinary proceeding and contends that the respondent's license to practice law should be annulled based upon his conviction and his violation of Rule 8.4(b) to (d) of the West Virginia Rules of Professional Conduct.

" 'Where 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.' Syllabus Point 2, Committee on Legal Ethics v. Six, --- W.Va. ----, 380 S.E.2d 219 (1989)." Syl. Pt. 1, Committee on Legal Ethics v. Boettner, Jr., --- W.Va. ----, 394 S.E.2d 735 (1990). However, as we recognized in Syllabus Point 2 of Boettner,

[a] license to practice law is a valuable right, such that its withdrawal must be accompanied by appropriate due process procedures. Where annulment of an attorney's license is sought based on a felony conviction under Article VI, Section 23 of the Constitution, By-laws, and Rules and Regulations of the West Virginia State Bar, due process requires the attorney be given the right to request an evidentiary hearing. The purpose of such a hearing is not to attack the conviction collaterally, but to introduce mitigating factors which may bear on the disciplinary punishment to be imposed. (emphasis added)

In the present case, the respondent filed a "Petition for Evidentiary Hearing in Mitigation of Disciplinary Action" with this Court on June 19, 1990. In his petition, the respondent requests an evidentiary hearing in order to introduce mitigating factors and circumstances which may bear on the disciplinary punishment to be imposed, including transcripts, exhibits, and testimony offered at his sentencing.

Although the Boettner case established the procedure for obtaining a mitigation hearing, no absolute right to a mitigation hearing in every disciplinary proceeding was created. A determination regarding the entitlement to an evidentiary hearing will be made by this Court on a case-by-case basis.

In Boettner, we granted the request for an evidentiary mitigation hearing because we believed that "a further hearing with a developed record [would] be beneficial in determining the appropriate disciplinary punishment." 394 S.E.2d at 739. In that case, Mr. Boettner had pled guilty to violation of 26 U.S.C. § 7201, making it a felony to wilfully evade the payment of federal taxes. Mr. Boettner, a member of the West Virginia Senate and its majority leader during the time period in question, obtained a bank loan through the assistance of a lobbyist. The lobbyist and another individual made several interest payments on Mr. Boettner's loan directly to the bank. Mr. Boettner's failure to report these payments, qualifying as constructive income under the Internal Revenue Code, constituted income tax evasion. The unreported income would have increased his income tax liability from $8,456.00 to $10,033.00.

In Mr. Boettner's request for a mitigation hearing, he asserted that his financial situation...