State v. W. Va. Office of Disciplinary Counsel, No. 12–1410.

• Court: Supreme Court of West Virginia
• Writing for the Court: WORKMAN
• Citation: 231 W.Va. 183,744 S.E.2d 293
• Parties: STATE of West Virginia ex rel. Olen L. YORK, III, Petitioner v. WEST VIRGINIA OFFICE OF DISCIPLINARY COUNSEL and West Virginia Lawyer Disciplinary Board, Respondents.
• Docket Number: No. 12–1410.
• Decision Date: 05 June 2013

231 W.Va. 183
744 S.E.2d 293

STATE of West Virginia ex rel. Olen L. YORK, III, Petitioner
v.
WEST VIRGINIA OFFICE OF DISCIPLINARY COUNSEL and West Virginia Lawyer Disciplinary Board, Respondents.

No. 12–1410.

Supreme Court of Appeals of
West Virginia.

Submitted April 24, 2013.
Decided June 5, 2013.

[744 S.E.2d 295]

Syllabus by the Court

1. “A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va.Code 53–1–1.” Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).

2. “ ‘ “ ‘Before this Court may properly issue a writ of mandamus three elements must coexist: (1) the existence of a clear right in the petitioner to the relief sought; (2) the existence of a legal duty on the part of the respondent to do the thing the petitioner seeks to compel; (3) the absence of another adequate remedy at law.’ Syllabus Point 3, Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981).” Syl. pt. 1, Meadows v. Lewis, 172 W.Va. 457, 307 S.E.2d 625 (1983).' Syl. pt. 2, State ex rel. Blankenship v. Richardson, 196 W.Va. 726, 474 S.E.2d 906 (1996).” Syl. Pt. 1, State ex rel. East End Ass'n v. McCoy, 198 W.Va. 458, 481 S.E.2d 764 (1996).

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. “This Court retains the inherent power to regulate the practice of law in this State, and under Rule 1 of the Rules of Lawyer Disciplinary Procedure, as amended by this court on December 6, 1994, a lawyer is subject to discipline in this State for violating the West Virginia Rules of Professional Conduct if he or she engages in the practice of law in this State, whether or not he or she is formally admitted to practice by this Court.” Syl. Pt. 6, Lawyer Disciplinary Bd. v. Allen, 198 W.Va. 18, 479 S.E.2d 317 (1996).

5. Pursuant to Rule 1 of the West Virginia Rules of Lawyer Disciplinary Procedure, the West Virginia Rules of Professional Conduct govern the conduct of an attorney who practices law in this state or provides or offers to provide legal services in this state, even where such attorney's practice consists entirely of federal matters. In such circumstances, the West Virginia Office of Disciplinary Counsel and the West Virginia Lawyer Disciplinary Board have jurisdiction to investigate the alleged misconduct and recommend

[744 S.E.2d 296]

disciplinary action against the attorney regardless of whether the attorney is a member of the West Virginia State Bar.

Lonnie C. Simmons, Esq., DiTrapano, Barrett & DiPiero, PLLC, Charleston, WV, and Robert B. Kuenzel, II, Esq., Kuenzel & Associates, PLLC, Chapmanville, WV, for Petitioner.

Renee N. Frymyer, Esq., Lawyer Disciplinary Counsel, Office of Disciplinary Counsel, Charleston, WV, for Respondents.

WORKMAN, Justice:

Mr. Olen York (hereinafter “the petitioner”) seeks a writ of prohibition to prevent the West Virginia Office of Disciplinary Counsel (hereinafter “ODC”) and the West Virginia Lawyer Disciplinary Board (hereinafter “LDB”) from proceeding against him in an attorney disciplinary matter. During the relevant time period, the petitioner was registered to practice as a patent attorney before the United States Patent and Trademark Office (hereinafter “PTO”) and was affiliated with the Waters Law Group in Huntington, West Virginia. The petitioner contends that the ODC and LDB lack jurisdiction over him because he was not a licensed member of the West Virginia State Bar and was not practicing law in West Virginia. Upon a thorough review of the briefs, arguments of counsel Joint appendix, and applicable precedent, we deny the relief sought by the petitioner.

I. Factual and Procedural History

The petitioner, the ODC, and the LDB stipulate to certain pertinent facts, including the petitioner's admission as a licensed member of the Ohio Bar in July 2002 and his admission to practice law before the PTO ¹ in January 2003. The parties also stipulate that the petitioner is a resident of Milton, West Virginia, and was associated as an independent contractor with the Waters Law Group in Huntington, West Virginia, during the relevant time period. As also stipulated by the parties, the petitioner is not a member of the West Virginia State Bar, and his practice was limited to patent and trademark issues before the PTO while associated with the Waters Law Group. The petitioner represented clients from West Virginia, but he did not appear in the state courts of West Virginia.

On September 24, 2012, a Statement of Charges was issued against the petitioner by the Investigative Panel of the LDB. The LDB alleged that the petitioner violated Rules 1.15(a), 1.15(b), 1.15(d), 8.4(c), and 8.4(d) of the West Virginia Rules of Professional Conduct² by improperly processing payments for patent work performed for clients in Poca, West Virginia, and Spencer, West Virginia, while associated with the Waters Law Group. This Statement alleged that the petitioner failed to maintain a separate client account; failed to notify the Waters Law Group of funds received from clients; failed to maintain an IOLTA ³ account; and commingled, misappropriated, and converted funds for his own use.⁴

[744 S.E.2d 297]

On November 29, 2012, the petitioner filed a writ of prohibition with this Court, contending that the ODC and LDB lack jurisdiction to prosecute the alleged violations against him, under Rule 1 of the West Virginia Rules of Lawyer Disciplinary Procedure and federal preemption principles, because he was not licensed to practice law in the State of West Virginia and was not practicing law in this state.⁵

II. Standard of Review

In addressing this Court's obligations in response to a request for a writ of prohibition, we have explained that “[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va.Code 53–1–1.” Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).⁶ A writ of prohibition “lies as a matter of right whenever the inferior court (a) has not jurisdiction or (b) has jurisdiction but exceeds its legitimate powers and it matters not if the aggrieved party has some other remedy adequate or inadequate.” State ex rel. Valley Distrib., Inc. v. Oakley, 153 W.Va. 94, 99, 168 S.E.2d 532, 535 (1969).

With regard to a writ of mandamus, this Court has explained that the function of mandamus is to enforce “an established right” and a “corresponding imperative duty created or imposed by law.” State ex rel. Ball v. Cummings, 208 W.Va. 393, 398, 540 S.E.2d 917, 922 (1999). In syllabus point one of State ex rel. East End Association v. McCoy, 198 W.Va. 458, 481 S.E.2d 764 (1996), this Court held as follows:

Before this Court may properly issue a writ of mandamus three elements must coexist: (1) the existence of a clear right in the petitioner to the relief sought; (2) the existence of a legal duty on the part of respondent to do the thing the petitioner seeks to compel; (3) the absence of another adequate remedy at law.

198 W.Va. at 460, 481 S.E.2d at 766, syl. pt. 1 (internal citations and quotation marks omitted). Utilizing those standards as guidance, we examine the petitioner's requests.

III. Discussion

The sole issue in this case is whether the ODC and LDB have jurisdiction to investigate and potentially prosecute the petitioner for alleged violations of the West Virginia Rules of Professional Conduct. The petitioner presents two primary arguments: first, he contends that the ODC and LDB lack jurisdiction under the rules and precedent of this state; second, he contends that federal law preempts state law regulation of this disciplinary matter. There is convergence of those two issues within the decisions addressed herein; to the extent possible, however, this Court evaluates those two arguments independently.

A. The Authority of this Court to Control the Practice of Law in this State

With specific reference to this Court's ultimate authority to regulate the practice of law in this state, we noted in syllabus point one of

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State ex rel. Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982), that “[t]he exclusive authority to define, regulate and control the practice of law in West Virginia is vested in the Supreme Court of Appeals.” We also explained as follows in Shenandoah Sales & Service, Inc. v. Assessor of Jefferson County, 228 W.Va. 762, 724 S.E.2d 733 (2012):

The West Virginia Constitution provides that this Court has “the power to promulgate rules for all cases and proceedings, civil and criminal, for all of the courts of the State relating to writs, warrants, process, practice and procedure, which shall have the force of law.” W. Va. Const. art. 8, § 3. The power embodied in this constitutional provision extends to supervision of the practice of law, as directly stated in Syllabus Point 1 of Lane v. West Virginia State Board of Law Examiners, 170 W.Va. 583, 295 S.E.2d 670 (1982), “[a]rticle eight, section one et seq. of the West Virginia Constitution vests in the Supreme Court of Appeals the authority to define, regulate and control the practice of law in West Virginia.”

228 W.Va. at 770, 724 S.E.2d at 741.

The obligation of this state's disciplinary authorities to investigate issues of alleged attorney misconduct is enunciated in Rule 1 of the West Virginia Rules of Lawyer Disciplinary Procedure, providing that the LDB shall

investigate complaints of violations of the Rules of Professional Conduct promulgated by the Supreme Court of Appeals to govern the professional conduct of those admitted to the practice of law in West Virginia or any individual admitted to...