In re Wheaton

Decision Date14 June 2021
Docket NumberNo. 18-0836,18-0836
Parties IN RE: Petition for REINSTATEMENT OF Keith L. WHEATON
CourtWest Virginia Supreme Court

Keith L. Wheaton, Self-Represented Litigant, Laurel, Maryland, Petitioner.

Rachael L. Fletcher Cipoletti, Esq., Chief Lawyer Disciplinary Counsel, Office of Disciplinary Counsel, Charleston, West Virginia, Counsel for Respondent.

WALKER, Justice:

For the second time, Keith L. Wheaton petitions this Court for reinstatement of his license to practice law in West Virginia, which was annulled in 2005 as a result of several, serious acts of misconduct. When we denied his first petition for reinstatement in 2011, we concluded that Mr. Wheaton had failed to satisfy any of the requirements for reinstatement that we enumerated in the order annulling his license. And, we determined that he had neither demonstrated a record of rehabilitation nor shown that he possessed the integrity, moral character, and legal competence to resume the practice of law. In stark contrast to his first petition for reinstatement, Mr. Wheaton now presents evidence of his rehabilitation and that he has complied with, or is in the process of complying with, the requirements we set for his reinstatement. The Hearing Panel Subcommittee (HPS) found that Mr. Wheaton's license should be reinstated with conditions. While the Office of Disciplinary Counsel (ODC) does not join in that recommendation because Mr. Wheaton has not "fully satisfied" the reinstatement requirements set in 2005, it also does not oppose Mr. Wheaton's reinstatement.

Based upon his demonstrated rehabilitation, and his compliance with the requirements for reinstatement, we now reinstate Mr. Wheaton's law license, but with conditions, including: (1) supervision for a period of three years by a supervising attorney who will file monthly reports with the ODC; (2) annual auditing of all accounts associated with his practice by a certified public accountant (CPA) for a period of three years; (3) continued payment of the outstanding balances on the Mason judgment and the costs owed to the Lawyer Disciplinary Board (LDB) in compliance with the now-executed payment plans; (4) payment of all dues to the West Virginia State Bar; and (5) reimbursement to the LDB of the costs of the reinstatement proceedings pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Wheaton was admitted to the practice of law on May 1, 1995. He initially worked for a year in the criminal investigation division at the State Tax Department in Charleston. In May 1996, he moved to Martinsburg, opened his own practice, and almost immediately started engaging in the misconduct that would lead to his disbarment. Specifically, from 1997 to 2002, Mr. Wheaton committed a series of misdeeds that included misappropriation and conversion of client funds; making material misrepresentations to clients, a bankruptcy trustee, bankruptcy court, and counsel for the ODC; failing to communicate with clients; and failing to diligently pursue claims on behalf of clients.1 As a result of this conduct, several complaints were filed with the LDB, and the ODC conducted an investigation, ultimately finding that Mr. Wheaton had committed 31 separate violations of the Rules of Professional Conduct. The HPS recommended annulment of Mr. Wheaton's license, and this Court agreed. In so doing, we adopted the LDB's recommendation that

should Mr. Wheaton seek reinstatement after the prescribed five-year period under Rule 3.33 of the Rules of Lawyer Disciplinary Procedure, he should be required to: (1) reimburse clients who were injured by his misconduct and who he never repaid as follows: Ms. Christensen in the amount of $450.00, Mr. Pruden in the amount of $300.00, and Ms. Mason in the amount of $500.00; (2) fully satisfy the judgment assessed against him by the federal bankruptcy court due to his misconduct in the underlying case of his client, Ms. Mason; (3) demonstrate that he has an understanding of the Rules of Professional Conduct and that he undertake an additional eighteen hours of ethics and office management continuing legal education; (4) submit to supervised practice for a period of at least two years; and (5) reimburse the [LDB] for the costs of [the disciplinary] proceedings pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure.[2 ]

A. The First Petition for Reinstatement

Mr. Wheaton, pursuant to Rules 3.30 and 3.33 of the Rules of Lawyer Disciplinary Procedure, first sought reinstatement to the practice of law on January 20, 2010. The ODC investigated, and the HPS conducted a two-day hearing on the petition. Apart from Mr. Wheaton, thirteen witnesses testified at the hearing, and, while several testified to Mr. Wheaton's rehabilitation and good moral character, others opposed Mr. Wheaton's reinstatement to the practice of law. Several months later the HPS recommended this Court deny the petition for reinstatement.

In making this recommendation, the HPS considered not only Mr. Wheaton's pre-annulment misconduct, but also evidence of his actions in the years since his disbarment. The HPS found that, in 2005, Mr. Wheaton had discharged approximately fifteen actual or potential legal malpractice suits totaling $85,000 in bankruptcy. He also had tens of thousands of dollars in child support arrearages in both West Virginia and North Carolina. And, he pled guilty to a misdemeanor in North Carolina involving the unauthorized use of a vehicle. He was also the subject of a default judgment in the Commonwealth of Virginia for a $2,000.00 unpaid personal loan, as well as a $4,831.93 judgment resulting from a vehicle repossession. Finally, Mr. Wheaton had been the subject of two worthless check warrants.3

During oral argument on the first petition for reinstatement, Mr. Wheaton conceded that he had failed to satisfy any of the enumerated requirements for reinstatement set by this Court. He contended that he was unable to pay restitution to his former clients or to reimburse the LDB because he was unable to obtain steady employment in order to earn sufficient funds to satisfy those obligations. Ultimately, this Court concluded that Mr. Wheaton had failed to: (1) satisfy the requirements for reinstatement set forth in Wheaton I ; (2) demonstrate that he possessed the "integrity, moral character and legal competence to resume the practice of law"; (3) establish that, if reinstated, he would not engage in future unprofessional conduct; and (4) show that his reinstatement to the practice of law would not have a "justifiable and substantial adverse effect on the public confidence in the administration of justice." So, we denied his petition for reinstatement by memorandum decision on November 17, 2011.4

B. The Present Petition for Reinstatement

Seven years later, on September 26, 2018, Mr. Wheaton filed a second petition for reinstatement. The ODC performed an investigation and filed its report with the HPS on February 19, 2020. The HPS held hearings on June 26, 2020, and September 1, 2020.5 In addition to his own testimony, Mr. Wheaton presented three witnesses who testified on his behalf: Paul Taylor, Esq.; Manuel Washington; and Jay Mullen. The HPS further admitted sixteen exhibits from the ODC.

Based upon the testimony and evidence presented, the HPS made numerous findings illustrating a marked change from Mr. Wheaton's first petition for reinstatement. Since the denial of his first petition, Mr. Wheaton has been employed in several jobs, both in and out of the legal field. Of particular note, in 2018, he obtained a position as a paralegal for the Office of Wage and Hour Department of Employment Services for the city government of Washington, D.C. Mr. Wheaton remains in that position and has recently had his employment contract renewed. As a result of this steady employment, Mr. Wheaton is making timely child support payments and is working to pay off his remaining arrearage in that regard.

And, the HPS found that Mr. Wheaton paid full restitution to Ms. Christensen, Mr. Pruden, and Ms. Mason. While Mr. Wheaton has not fully satisfied the $45,000.00 bankruptcy judgment in the Mason matter, he expressed a willingness to execute a payment plan in order to do so. The HPS similarly determined that Mr. Wheaton had not reimbursed the LDB for its costs in investigating and litigating the disciplinary proceedings against him, but that he was also willing to execute a payment plan to begin satisfying that obligation. Finally, the HPS determined that, for the 2018-2020 reporting period, Mr. Wheaton had reported a total of 34.80 hours of continuing legal education (CLE), including 19.30 hours in legal ethics and law office management.

On January 26, 2021, the HPS issued its Recommended Decision based on these findings, recommending that Mr. Wheaton's license to practice law be reinstated on the following conditions:

1. [Mr. Wheaton] must execute payment plans for all outstanding restitution, with the Mason judgment receiving priority, and begin making payments prior to any decision regarding reinstatement; and
2. [Mr. Wheaton] shall be returned to probation with supervised practice and, if in private practice, shall have all accounts associated with his law practice audited by a certified public accountant for a period of two years.

The ODC did not endorse this recommendation because Mr. Wheaton has not fully satisfied the Mason judgment or reimbursed the costs owed to the LDB. However, the ODC stated that it would not oppose Mr. Wheaton's reinstatement if he executed payment plans to satisfy those obligations and began making payments prior to his reinstatement.

On February 18, 2021, the ODC filed a motion to supplement the appendix record in this matter with documents indicating that Mr. Wheaton had executed the following payment plans: (1) a monthly payment of $250.00 toward the $45,000.00 Mason judgment; and (2) a monthly payment of...

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