Lawyer Disciplinary Bd. v. Doheny, 18-0363

CourtSupreme Court of West Virginia
Writing for the CourtARMSTEAD, J.
PartiesLAWYER DISCIPLINARY BOARD, Petitioner v. PATRICK DOHENY, A Member of the West Virginia State Bar, Respondent.
Decision Date10 June 2022
Docket Number18-0363

LAWYER DISCIPLINARY BOARD, Petitioner
v.

PATRICK DOHENY, A Member of the West Virginia State Bar, Respondent.

No. 18-0363

Supreme Court of Appeals of West Virginia

June 10, 2022


Submitted: May 18, 2022

Lawyer Disciplinary Proceeding

Rachael L. Fletcher Cipoletti, Esq. Chief Lawyer Disciplinary Counsel.

Andrea J. Hinerman, Esq. Senior Lawyer Disciplinary Counsel.

Office of Lawyer Disciplinary Counsel Charleston, West Virginia Counsel for Petitioner.

Patrick J. Doheny, Jr., Esq. Self-Represented Litigant Pittsburgh, Pennsylvania Respondent.

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SYLLABUS

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's recommendations 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. "The authority of the Supreme Court to regulate and control the practice of law in West Virginia, including the lawyer disciplinary process, is constitutional

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in origin. W.Va. Const. art. VIII, § 3." Syl. Pt. 2, Lawyer Disciplinary Board v. Kupec, 202 W.Va. 556, 505 S.E.2d 619 (1998).

5. "The principle [sic] purpose of attorney disciplinary proceedings is to safeguard the public's interest in the administration of justice." Syl. Pt. 3, Daily Gazette Co., Inc. v. Committee on Legal Ethics of the West Virginia State Bar, 174 W.Va. 359, 326 S.E.2d 705 (1984).

6. "Under West Virginia Constitution art. III, § 17, which provides that 'The courts of this State shall be open,' there is a right of public access to attorney disciplinary proceedings." Syl. Pt. 4, Daily Gazette Co., Inc. v. Committee on Legal Ethics of the West Virginia State Bar, 174 W.Va. 359, 326 S.E.2d 705 (1984).

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OPINION

ARMSTEAD, J.

This matter involves a reciprocal lawyer disciplinary action against Respondent Patrick Doheny (hereinafter "Mr. Doheny"), a member of the West Virginia State Bar, pursuant to Rule 3.20 of the West Virginia Rules of Lawyer Disciplinary Procedure. The Office of Lawyer Disciplinary Counsel (hereinafter "ODC") filed a "Notice of Reciprocal Disciplinary Action Pursuant to Rule 3.20 of the Rules of Lawyer Disciplinary Procedure" (hereinafter "Notice") as a result of discipline imposed upon Mr. Doheny by the Disciplinary Board of the Supreme Court of Pennsylvania. Mr. Doheny sought dismissal of the ODC's reciprocal disciplinary action on the basis that the discipline he received in Pennsylvania was private, not public. The Hearing Panel Subcommittee of the Lawyer Disciplinary Board (hereinafter "HPS") found that Rules 3.20(b) and 3.20(c) of the Rules of Lawyer Disciplinary Procedure (hereinafter "Rules of LDP") require a lawyer to be publicly disciplined in a foreign jurisdiction in order for proceedings to be instituted under our state's rule regarding reciprocal discipline, and therefore determined that both HPS and this Court are without subject matter jurisdiction to hear this matter. Accordingly, the HPS recommended that this matter be dismissed for lack of subject matter jurisdiction and that the record be sealed.

Upon careful review of the briefs, the appendix record, the arguments of the parties, and the applicable legal authority, we reject the recommendations of the HPS and remand this matter for further proceedings consistent with this opinion.

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I. FACTS AND PROCEDURAL HISTORY

Respondent is an attorney admitted to the bar of the Commonwealth of Pennsylvania and the West Virginia State Bar.[1] On October 5, 2011, he was involved in a DUI-related motor vehicle accident in Pennsylvania in which his vehicle crossed the center line of a roadway and collided with a motorcycle traveling in the oncoming direction. On January 23, 2013, he was convicted in the Court of Common Pleas of Allegheny County, Pennsylvania of (1) aggravated assault by motor vehicle while driving under the influence; (2) driving under the influence of alcohol or controlled substance; (3) driving under the influence of alcohol, high rate of alcohol; (4) driving under the influence of alcohol or controlled substance, and (5) failure to keep right.[2] By letter dated February 13, 2013, Mr. Doheny self-reported his convictions to the ODC. Following this notification, the ODC began investigating this matter under a complaint identified as I.D. No. 13-01-081. According to Mr. Doheny, between February 2013 and April 2018, he provided the ODC with periodic updates regarding his "ultimately-unsuccessful appeal of his DUI-related criminal convictions, as well as disciplinary proceedings that Pennsylvania's disciplinary authorities later commenced on the basis of [his] DUI convictions."[3] According to the

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ODC, on September 23, 2015, the Chair of the Investigative Panel issued a stay on I.D. No. 13-01-081 pending the resolution of Mr. Doheny's underlying criminal charges and Pennsylvania disciplinary proceedings.

On or about January 5, 2017, Respondent was issued a Private Reprimand by a three-member panel of Pennsylvania's Disciplinary Board. By letter dated January 10, 2017, Respondent notified the ODC that he had been issued a Private Reprimand and provided copies of related documents to the ODC. On April 24, 2018, the ODC filed its Notice against Respondent. Because the West Virginia Rules of Lawyer Disciplinary Procedure do not provide for a private reprimand, the ODC advised Respondent that it would request that the Hearing Panel Subcommittee (hereinafter "HPS") impose a sanction similar to, but not identical to, the sanction that was imposed in Pennsylvania. Specifically, paragraph 9 of the Notice provides:

9. In the instant case, Senior Lawyer Disciplinary Counsel will request that the Hearing Panel Subcommittee refer this matter to [sic] Supreme Court of Appeals with a recommendation of a reprimand. The West Virginia Rules of Lawyer Disciplinary Procedure do not provide for a private reprimand as a permissible sanction. Rule
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3.15 of the Rules of Lawyer Disciplinary Procedure [Permissible Sanctions] provides as follows:
A Hearing Panel Subcommittee may recommend or the Supreme Court of Appeals may impose any one or more of the following sanctions for a violation of the Rules of Professional Conduct or pursuant to Rule 3.14: (1) probation; (2) restitution; (3) limitation on the nature or extent of future practice; (4) supervised practice; (5) community service; (6) admonishment; (7) reprimand; (8) suspension; or (9) annulment. When a sanction is imposed, the Hearing Panel Subcommittee or the Court shall order the lawyer to reimburse the Lawyer Disciplinary Board for the costs of the disciplinary proceeding unless the panel or the Court finds the reimbursement will pose an undue hardship on the lawyer. Willful failure to reimburse the Board may be punished as contempt of the Court.
Furthermore, the Supreme Court of Appeals of West Virginia has held that "[u]nder the [West Virginia Constitution] art. III, § 17, which provides that 'The courts of this state shall be open," there is a right of public access to attorney disciplinary proceedings." Daily Gazette Co. v. Committee on Legal Ethics, 174 W.Va. 359, 365, 326 S.E.2d 704, 711 (1984). Finally, Disciplinary Counsel will seek reimbursement of any costs associated with this proceeding.

In its Notice, the ODC also advised Respondent of his right to request a formal hearing. Paragraph 10 of the Notice provides that "[i]f Respondent intends to request a formal hearing, Respondent must do so within thirty days of the date of this notice by filing the same with the Office of Lawyer Disciplinary Counsel and provide a full copy of the Pennsylvania disciplinary proceedings."

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On or about May 25, 2018, Respondent filed a "Motion to Dismiss Notice of Reciprocal Disciplinary Action for Lack of Jurisdiction and to Seal Record of Proceedings" with this Court. The ODC responded to the motion, and by order issued on October 4, 2018, this Court refused Respondent's motion. On September 14, 2020, the ODC filed a "Motion for Reciprocal Discipline" (hereinafter "Motion"). On or about October 8, 2020, Respondent filed a "Response to [the ODC's] Motion for Reciprocal Discipline and Request to Dismiss Notice of Reciprocal Disciplinary Action and to Seal Record of Pleadings." By order issued on January 28, 2021, this Court again refused Respondent's motions to dismiss and seal the record.

Subsequent to this Court's January 28, 2021 order, the HPS entered a Scheduling Order, but at a pre-hearing on May 26, 2021, the HPS determined that the Scheduling Order had been improvidently entered.

The HPS also determined that an evidentiary hearing was not necessary in this matter but requested that the parties submit briefs on the "sole issue of subject matter jurisdiction to hear this matter based upon a claim advanced by the Respondent that under Rules 3.20(b) and 3.20(c)...

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