Lawyer Disciplinary Board v. Moore

• Decision Date: 12 December 2003
• Docket Number: No. 25794.,25794.
• Citation: 591 S.E.2d 338,214 W.Va. 780
• Parties: LAWYER DISCIPLINARY BOARD, Respondent, v. Arch A. MOORE, Jr., a former member of The West Virginia State Bar, Petitioner.
• Court: West Virginia Supreme Court

591 S.E.2d 338

214 W.Va. 780

LAWYER DISCIPLINARY BOARD, Respondent, v. Arch A. MOORE, Jr., a former member of The West Virginia State Bar, Petitioner.

No. 25794.

Supreme Court of Appeals of West Virginia.

Submitted November 18, 2003.

Decided December 12, 2003.

Lawrence J. Lewis, Esq., Office of Disciplinary Counsel, Charleston, for Respondent.

Rudolph L. DiTrapano, Esq., Sean P. McGinley, Esq., DiTrapano, Barrett & DiPiero, Charleston, for Petitioner.

PER CURIAM.

The petitioner, Arch A. Moore, Jr., ("the petitioner") has filed a Petition for Reinstatement seeking reinstatement of his license to practice law in West Virginia. The petition, materials related thereto gathered and submitted by the Office of Disciplinary Counsel and a report from that Office were considered by a Hearing Panel Subcommittee ("the Hearings Panel") of the Supreme Court of Appeals of West Virginia Lawyer Disciplinary Board ("the Board"). We have before us the written Recommendation of the Hearing Panel,¹ briefs from the petitioner and the Board, and voluminous materials that comprise the record below.

I.

The petitioner was born on April 16, 1923. He served in the United States Military during World War II and was wounded in combat, earning the Purple Heart and Bronze Star for valor. This Court wishes to acknowledge and state its heartfelt appreciation for the petitioner's courageous service to his country.

Following his military service, the petitioner married in 1949 and graduated from the West Virginia University College of Law. He was admitted to practice law in the State of West Virginia in 1951.

The petitioner served in the West Virginia House of Delegates, six terms as a Congressman in the United States House of Representatives, and three terms as Governor of the State of West Virginia. The Hearing Panel concluded and this Court agrees that the petitioner is an astute politician with a charismatic persona and an uncanny ability to reach across gender and income lines, all as reflected by his elected political history.

Prior to the 1990 charges that led to the loss of his law license, the petitioner had been the subject of other criminal investigations. While the factual basis for those underlying allegations was not considered by the Hearing Panel or this Court, these investigations are relevant to the present matter because they establish that the petitioner had significant experience in dealing with federal investigations, including both tax and criminal investigations, experience which can and should be considered in evaluating the petitioner's contentions about the reasons that he pled guilty to a five-count federal criminal indictment in 1990, which plea and conviction led to his disbarment.²

II.

A. The Misconduct that Led to Petitioner's Disbarment

The specifics of the petitioner's plea and conviction are as follows. On May 8, 1990, the petitioner entered a guilty plea to a five-count federal indictment charging him with mail fraud, filing false tax returns, extortion and obstruction of justice. Subsequently, the petitioner attempted to withdraw his guilty plea. His initial motion to set aside the guilty plea in the criminal proceeding was denied by the Honorable Walter E. Hoffman, United States District Judge. Subsequently the petitioner filed two post-conviction proceedings seeking to set aside the plea. These were both denied by the Honorable Richard L. Williams, United States District Judge.

As a result of his conviction, the petitioner served a period of thirty-three months incarcerated in federal prison.

The State of West Virginia also instituted a civil action against the petitioner in 1990 in the United States District Court for the Southern District of West Virginia. After discovery, motions, and partial summary judgment orders, the case was settled without an admission of liability in January 1996. The petitioner paid the State of West Virginia the sum of $750,000.00 to settle the claims.

Following his conviction, the petitioner was disbarred by Order of the Supreme Court of Appeals of West Virginia on October 31, 1991. Committee on Legal Ethics of the West Virginia State Bar v. Moore, 186 W.Va. 127, 411 S.E.2d 452 (1991).

In the instant reinstatement proceedings, the petitioner has claimed that he was factually and legally innocent of the federal charges against him, and he asserts that he erroneously or mistakenly pled guilty, based on the advice of counsel.

The Hearing Panel's Recommendation has thoroughly reviewed, in exacting detail, the factual record relating to the underlying charges to which the petitioner pled guilty, and the Recommendation states the following regarding the petitioner's guilty plea:

Moore was, at the time of his plea, a knowledgeable attorney who had previously been personally involved in an IRS investigation and a federal criminal trial. Moreover, when he agreed to plead guilty, he had the benefit of an experienced attorney with whom he had worked before and a substantial opportunity to consider the consequences of his action. Before he pled, he was interviewed by representatives of the United States Attorney. During those interviews, Moore had the opportunity to learn, from the questions he was asked, the areas the United States Attorney was investigating and some of the information that it had learned. His counsel was allowed to review recorded and incriminating conversations involving Moore and communicated the substance of those recordings to Moore who, having been present at the original event, knew that the recordings were accurate and true.

* * * * * *

The Government's factual basis for the charges to which Moore pleaded, as presented to Judge Hoffman, is found at ODC Exhibit 3, pages 24 through 30. That summary includes:

MR. CAMPBELL: As to count one ... [t]he proof of this charge would have centered around activities engaged in during the 1984 campaign for governorship of the State of West Virginia. Specifically, the government's proof would center on one hundred thousand dollars ($100,000) in cash that the defendant, Arch Moore, personally and illegally obtained and used in a secret—what he called underground campaign for the governorship. The cash that he used and caused to be used was obtained in violation of state law. It was not reported to the Secretary of State, in violation of state law. And it was used in violation of state law, both because it was not reported which violates state law and because it was used for purposes that are illegal under the West Virginia Code, namely, to influence voters in improper ways. The mailings that were employed in furtherance of this scheme were the mailings of campaign finance reports to the West Virginia Secretary of State that omitted to mention and to record the receipt of this one hundred thousand dollars ($100,000) in cash. Those mailings occurred in December of 1984, July of 1985 following the election, and finally in April of 1987 well after the election.

As to count two, Your Honor, which charges the defendant with extortion, in violation of the Hobbs Act, 18, United States Code, Section 1951, the government would have proved that the defendant extorted under color of official right over half a million dollars between late 1984 and October of 1985 from one Paul Kizer, who is an operator of a coal mining business in West Virginia. This occurred while the defendant was governor-elect of this state and in fact governor of this state. He obtained this money, this half a million dollars, from Mr. Kizer in return for his assistance or his promise of assistance in obtaining a refund of over two million dollars ($2,000,000) for Mr. Kizer's companies from the state pneumoconiosis fund, the black lung fund. The defendant also covered up the receipt of this money—the illegal receipt of this money through the mechanism of a fake contingent fee agreement that he had putatively with Mr. Kizer. Mr. Moore, the defendant, while governor, did assist Mr. Kizer in obtaining the refund by intervening on his behalf with the state Department of Natural Resources to prevent certain environmental action from being taken against Mr. Kizer's companies or one of his companies. The refund was in fact granted, Your Honor, in October of 1985, and the defendant, Mr. Moore, received personally five hundred and twenty-three thousand, seven hundred twenty-one dollars and forty-seven cents ($523,721.47) as a result of that action. The money that he received came from a business account of Maben Energy Corporation, Your Honor, one of Mr. Kizer's companies, which does business in interstate commerce, and therefore affected interstate commerce.

Counts three and four, Your Honor, charge the defendant with violating Title 26, United States Code, Section 7206(1), in that he filed false tax returns for tax years 1984 and 1985. The government would prove as to 1984 that the tax return was knowingly subscribed by Mr. Moore on April 15, 1985, and that the tax return contained material false information, and that it omitted certain substantial sources of income to Mr. Moore, including approximately ten thousand dollars ($10,000) in cash obtained from Samuel D'Annunzio and approximately ten thousand dollars ($10,000) in cash obtained from Talmadge Mosely. These sums were income to the defendant. They were not reported by him, and the government would have proved that, that he did that knowingly and willfully. The government would have proved similar things as to 1985. That the defendant filed that false return on August 15, 1986, and that it omitted to mention substantial sources of income to him, including fifty thousand dollars ($50,000) in cash obtained from agents of Marrowbone Development Company and two thousand, five hundred dollars ($2,500) in cash obtained from one Robert Gilliam. Those sums of cash we would have proved were income to him and were willfully and knowingly not reported and omitted from his returns, making those returns

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