In Re: Petition for Reinstatement of Thomas Jason Drake | West Virginia Supreme Court | 06-11-2019 | www.anylaw.com (2023)

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2019 Term _______________

No. 18-0430 _______________

IN RE: PETITION FOR REINSTATEMENT OF THOMAS JASON DRAKE ____________________________________________________________

Lawyer Disciplinary Proceeding

REINSTATEMENT DENIED ____________________________________________________________

Submitted: May 15, 2019 Filed: June 11, 2019

CHIEF JUSTICE WALKER delivered the Opinion of the Court. Thomas Jason Drake Pro Se Elkview, West Virginia Petitioner Renee N. Frymyer, Esq. Office of Disciplinary Counsel Charleston, West Virginia Counsel for Respondent FILED June 11, 2019 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA SYLLABUS BY THE COURT

1. Committee on Legal Ethics v. Blair, 174 W.

Va. 494, 327 S.E.2d 671 (1984).

2. de novo standard applies to a review of the adjudicatory record

made before the [Lawyer Disciplinary Board] as to the questions of law, questions of

application of the law to the facts, and questions of appropriate sanctions; this Court gives

own independent judgment. On the other hand, substantial deference is given to the

orted by reliable, probative,

Committee on Legal

Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994).

3. to regain admission to the practice of law bears the burden of showing that he presently

possess the integrity, moral character and legal competence to resume the practice of law.

To overcome the adverse effect of the previous disbarment, he must demonstrate a record

of rehabilitation. In addition, the court must conclude that such reinstatement will not have

a justifiable and substantial adverse effect on the public confidence in the administration of justice and in this regard the seriousness of the conduct leading to disbarment is an

In re Brown, 166 W. Va. 226, 273 S.E.2d 567

(1980).

4.

the court to conclude there is little likelihood that after such rehabilitation is completed and

the applicant is readmitted to the practice of law[,] he will engage in unprofessional

In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980). WALKER, Chief Justice: annulled in 2012 after he entered an Alford/Kennedy plea 1

to felony embezzlement on

charges related to his conduct while serving as trustee of a settlement fund. Specifically,

Mr. Drake unlawfully withdrew $104,853.53 from the settlement fund, $70,798.67 of

entered a restitution order requiring Mr. Drake Great American, Mr. Drake later filed bankruptcy and reached a settlement with Great

American for about one-half that amount ($27,500). But, in the nearly two years since

settling with Great American, Mr. Drake has failed to make any restitution payments.

Now, Mr. Drake petitions this Court for reinstatement of his license. In light of the serious

nature of the underlying offense, along with the lack of restitution payments, the Hearing

Panel Subcommittee (HPS) and the Office of Disciplinary Counsel (ODC) recommend that

I. FACTUAL AND PROCEDURAL BACKGROUND

In April of 2007, the circuit court appointed Mr. Drake and Rhonda Miller

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as co-trustees of the trust established in Timothy Urbanic, et al. v. Appalachian Timber

1 An Alford/Kennedy and understandingly consent to the imposition of a prison sentence even though he is

unwilling to admit participation in the crime, if he intelligently concludes that his interests require a g (Syl. Pt. 1, in part, Kennedy v. Frazier, 178 W. Va. 10, 357 S.E.2d 43 (1987). Services, Inc. 2 The trust was established to fund medical monitoring for class members

and, if necessary, attic inspection and clean-up. The trust also funds inspections of a

creosote plant to ensure compliance with environmental standards.

requiring that any disbursements and expenditures from the trust be made only after the

y 2009, Mr. Drake and Ms. Miller followed

the proper protocol by submitting itemized fees and expenses and waiting for court

approval. Even after Ms. Miller relocated and the circuit court made Mr. Drake the sole

trustee, Mr. Drake continued to submit fees and expenses properly for the next five months.

From May 2009 until August 2011, however, Mr. Drake wrote checks to his law office

Mr. Drake alleges that, in 2011, the Elk River Water Trail Project approached

him seeking $28,000 from the trust. Mr. Drake claims that he converted the full sum from

the trust to his IOLTA account fully expecting the circuit court to approve the transfer.

Because the circuit court only approved $7,000, Mr. Drake claims that he returned the

remaining $21,000 to the trust.

2 Braxton County Civil Action No. 03-C-58 When he learned that Mr. Drake had withdrawn substantial amounts from

the trust without court approval, the appointing circuit court judge removed him as trustee

and notified the ODC who referred the matter to the West Virginia State Police. The State

Police determined that Mr. Drake, while acting as sole trustee, withdrew approximately

$104,853.43 from the trust and converted approximately $70,798.67 of those funds to his

personal use. The State Police also determined that Mr. Drake created false ledgers for the

In September of 2012, Mr. Drake entered an Alford/Kennedy plea by way of

information to one felony count of embezzlement and was sentenced to two years of

supervised probation. The following month, his law license was annulled with his consent.

Upon the successful completion of his probationary period in May of 2014, Mr. Drake was

ordered to make restitution to Great American, the subrogee of the trust, in the amount of

$56,906.39 to be paid in monthly installments of $2,371.10. Mr. Drake claims that there

is no accounting or itemization showing how the court arrived at this figure.

Mr. Drake filed bankruptcy in December of 2014 claiming $390,900.04 in

liabilities, including the amount owed to Great American. Notably, Mr. Drake failed to

make any payments to Great American during the seven-month period between the

restitution order being entered and the automatic stay being triggered by the bankruptcy proceedings. Great American sued Mr. Drake and Ms. Miller, 3 but the suit against him

was stayed pending the resolution of the bankruptcy. During the bankruptcy proceeding,

Great American settled its claim with Mr. Drake in July of 2017 for $27,500 and agreed

that it would be paid in monthly installments after the bankruptcy court entered a dismissal

order. Although the circuit court entered an agreed order to the new amount, relieving Mr.

Drake of any obligation under the June 2014 restitution order, the bankruptcy court has not

the order is sufficient to excuse his failure to make restitution payments.

Then, in May 2018, after satisfying the five-year waiting period and pursuant

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to Rules 3.30 4 and 3.33(b) 5 of the West Virginia Rules of Lawyer Disciplinary Procedure,

3 Great American and Ms. Miller reached an early settlement agreement. 4 Rule 3.30 provides:

When for any reason, other than for nonpayment of membership fees, the license of any person to practice law has been or shall be suspended or annulled, whether or not for a limited time or until requirements as to restitution, conditions, or some other act shall be satisfied, such person shall not become entitled to engage in the practice of law in this State, whether such time has elapsed or such other requirements as to restitution, conditions, or some other act have been satisfied, until such person shall have been restored to good standing as a member of the West Virginia State Bar as provided herein. Any conviction for false swearing, perjury or any felony, and e considered in the determination of good moral character and fitness. 5 Rule 3.33(b) provides, in relevant part: Mr. Drake filed this petition for reinstatement of his law license. The ODC investigated

and the HPS held a hearing to address the matter on September 27, 2018, during which

numerous witnesses and Mr. Drake appeared to testify.

and substantial adverse effect on the public confidence in the administration of justice and

underlying criminal conduct, his current financial obligations, and his failure to pay

restitution. The HPS found that Mr. Drake had not shown, by clear and convincing

evidence the likelihood that, if reinstated, he would not engage in unprofessional conduct

February of 2019, Mr. Drake filed his request for a hearing before the Court pursuant to

Rule 3.33(c) 6 of the West Virginia Rules of Lawyer Disciplinary Procedure.

After the expiration of five years from the date of disbarment, a person whose license to practice law has been or shall be annulled in this State and who shall desire reinstatement of such license may file a verified petition in the Supreme Court of Appeals reciting the cause of such annulment and what the person shall have done in satisfaction of requirements as to rehabilitation, restitution, conditions or other acts incident thereto, by reason of which the person should be reinstated as a member of the state bar and his or her license to practice law restored. 6 Rule 3.33(c) provides:

The Hearing Panel Subcommittee shall schedule a hearing within sixty days of its receipt of the report of II. STANDARD OF REVIEW

problems and must make the ultimate decisions about public reprimands, suspension or

7 While we give respectful consideration

to the recommendations of the HPS, this Court ultimately exercises its own independent

judgment regarding reinstatement:

A de novo standard applies to a review of the adjudicatory record made before the [Lawyer Disciplinary Board] as to the questions of law, questions of application of the law to the facts, and questions of appropriate sanctions; this Court gives respectful considera recommendations while ultimately exercising its own

independent judgment. On the other hand, substantial

findings are not supported by reliable, probative, and substantial evidence on the whole record. [8]

Disciplinary Counsel, or upon a later date upon a showing of good cause by the petitioner or Disciplinary Counsel. Following the hearing, the Hearing Panel Subcommittee shall promptly prepare a written report, including a recommendation with reference to action on the petition, and shall transmit the report to the Court. The report shall become part of the record in the case. The Hearing Panel Subcommittee shall mail, by registered or certified mail, a copy of the report to the petitioner at his or her last known address. Within ten days after the filing of the report of the Hearing Panel Subcommittee, either the petitioner or Disciplinary Counsel shall have the right to make written request of the Court for a hearing upon the matters arising on the petition. 7 Syl. Pt. 3, Comm. on Legal Ethics v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984). 8 Syl. Pt. 3, Comm. on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994). III. DISCUSSION

In reinstatement proceedings, the party seeking reinstatement has a heavy

burden of showing that he should be permitted to practice law again. We have held that

[t]he general rule for reinstatement is that a disbarred attorney in order to regain admission to the practice of law bears the burden of showing that he presently possesses the integrity, moral character and legal competence to resume the practice of law. To overcome the adverse effect of the previous disbarment, he must demonstrate a record of rehabilitation. In addition, the court must conclude that such reinstatement will not have a justifiable and substantial adverse effect on the public confidence in the administration of justice and in this regard the seriousness of the conduct leading to disbarment is an important consideration. [9]

application for reinstatement[,] consideration must be given to the

nature of the original offense for which the applicant was disbarred. Obviously, the more

serious the nature of the underlying offense, the more difficult the task becomes to show a

basis 10 9

Syl. Pt. 1, In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980). 10 Id. at 234, 273 S.E.2d at 571. leading to disbarment may, as a threshold matter, preclude reinstatement such that further

11

We first consider this thresho offense of embezzlement of client funds altogether precludes his reinstatement to the

practice of law. Referring to the underlying crime as one of moral turpitude 12 reflecting

adversely on his honesty, trustworthiness, and fitness to practice law, the HPS concluded

him from practicing law.

We first reiterate that we have never held that a convicted felon is altogether

barred from the reinstatement of his license to practice law. 13 Instead, we analyze a

of rehabilitation, and the impact that reinstatement would have on our profession as

mandated in Syllabus Point 1 of In re Brown. 14

11 Id. at 240, 273 S.E.2d at 574 (citing In re Smith, 214 W. Va. 83, 585 S.E.2d 602 (1980)). 12 justice, Comm. on Legal Ethics v. Six, 181 W. Va. 52, 54, 380 S.E.2d 219, 221 (1989) (quoting In re Smith, 158 W. Va. 13, 17, 206 S.E.2d 920, 923 (1974). 13 In re Reinstatement of diTrapano, 240 W. Va. 612, 617, 814 S.E.2d 275, 280 (2018) (diTrapano II). 14 166 W. Va. 226, 273 S.E.2d 567. underlying offense serves as the backdrop to our consideration of whether or not his license

should be reinstated, we again decline to adopt the position that a convicted felon may

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more serious the nature of the underlying offense, the more difficult the task becomes to

show a basis for reinstatement. 15 And, we have previously stated tha of funds by an attorney involves moral turpitude; it is an act infected with deceit and

16 For that reason, Mr. Drake must clear a high burden to overcome the

implications of his felony conviction for embezzlement and the major violation of his duty

as an officer of the Court.

We now turn to the question of whether Mr. Drake has overcome the adverse

effect of his admitted and serious misconduct by demonstrating a record of rehabilitation.

tation is demonstrated by a course of conduct that

enables the court to conclude there is little likelihood that[,] after such rehabilitation is

completed and the applicant is readmitted to the practice of law[,] he will engage in

17 We have implemented a five-factor test in evaluating

rehabilitation, stating that it is necessary to consider:

(1) the nature of the of the original offense for which the

15 Id. at 234, 273 S.E.2d at 571. 16 Comm. on Legal Ethics v. Hess, 186 W. Va. 514, 517, 413 S.E.2d 169, 172 (1991). 17 Syl. Pt. 2, Brown, 166 W. Va. 226, 273 S.E.2d 567. maturity, and experience at the time of disbarment; (3) the disbarment; (4) the time elapsed since the disbarment; and (5)

[18]

Having already discussed the severity of M the second factor his character, maturity, and experience at the time of his voluntary

annulment in 2012. Mr. Drake had practiced law for over a decade at the time he

committed the acts that led to the annulment of his law license, operating his own firm for

a portion of that time. Mr. Drake asks us to take into consideration that he had little

experience in operating his own law firm and no experience whatsoever in trust

mpt to couch felony embezzlement

experience and his crimes were not the innocent missteps of a novice solo practitioner.

Rather, Mr. Drake admittedly moved money from the trust into his personal IOLTA

Because Mr. Drake successfully managed the trust during the first several years he served

as trustee, we can only assume that he possessed the requisite knowledge to do so.

occupation and conduct in the period following disbarment, as well as the amount of time

that has passed. Mr. Drake had difficulty finding work after the annulment of his law

18 Smith, 214 W. Va. at 85, 585 S.E.2d at 604. license, and we recognize that hardship. Nonetheless, he secured employment with various

companies, earning the title of Chief Operating Officer and then Estimator and Project

Manager. Three years after his disbarment, he returned to the legal field in a paralegal

capacity under the supervision and direction of Travis A. Griffith, Esq. (Mr. Griffith).

From December of 2017 through March of 2018, however, Mr. Drake was unable to work

due to an illness. He has since returned to his job as a paralegal. Likewise, we commend

Mr. Drake for his volunteer work and flood relief efforts following the devastating floods

in the Elk River communities in 2016.

In further support of his improved conduct since his 2012 disbarment, Mr.

Drake notes that he sought treatment from a psychiatrist and was diagnosed with certain

mental illnesses. But Mr. Drake has failed to produce any correlation between the actions

leading up to his disbarment and these medical conditions. So, while we commend Mr.

Drake for seeking help, without a direct correlation, we are unable to say to a sufficient

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degree that his psychiatric treatment will prevent further misconduct upon reinstatement.

Turning to the fourth factor, we agree with Mr. Drake that seven years is a

In the seven years since his disbarment, Mr. Drake has failed to pay any restitution. We

but he is obviously not

remorseful to the point of repaying his debt. We are also concerned that Mr. Drake has

had two civil worthless check complaints lodged against him during this period. While we recognize that Mr. Drake pleaded to the crime of embezzlement,

we are concerned by his continued attempts to qualify the money taken from the trust with

excuses ranging from an alleged lack of experience to downplaying the amount owed in

forensic accounting and legal fees to ascertain how much was taken from the trust. We

need not rehash these attempted justifications because even if true, they do not change the

fact that Mr. Drake intentionally made unauthorized withdrawals from the trust and has

failed to make restitution for costs stemming from his dishonest and deceitful actions.

failure to enter a dismissal order to excuse his failure to make restitution payments.

Because the order is required by the terms of the agreement with Great American to trigger

repayment, Mr. Drake argues that its absence excuses him from his failure to make

restitution for purposes of these proceedings. In support of his position, Mr. Drake has

submitted an email he recently sent to an attorney for Great American:

I am again writing to you regarding the Dismissal Order in the above-styled matter. I once again left a voicemail for you, as well. I had inquired about this issue in November, 2017 and you indicated that you had no information on the Dismissal Order. Approximately two weeks later, I suffered a sudden- onset illness that had me in ICU for over 3 weeks and hospitalized for over two months. Following that, I underwent a substantial amount of therapy and missed a great deal of work. To be honest, I was focused on my recovery and did not think of the Dismissal Order.

Now, I am attempting to get my law license reinstated and I have oral argument on May 15. I am going to have to inform the Court that not only have I not made restitution payments, but that I have never received the Order and, . Could you please provide me with some information on the issue? 19

It is evident from this communication that Mr. Drake did not prioritize restitution and did

not exercise reasonable and diligent efforts to fulfill these obligations until he came before

this Court seeking reinstatement of his law license.

As to the fifth factor regarding Mr. Dr

Mr. Drake that his work as a paralegal for over three years and his completion of the

requisite Continuing Legal Education weigh in his favor. Likewise, to the limited extent

we are permitted by our precedent, 20 we have taken into consideration the favorable

quality of his work. We are similarly impressed with the testimony of Mr. Timothy Meyer

e and involvement and Ms. Carolyn Long

none of those who testified had a full understanding of the underlying offense.

Our final consideration then is whether Mr. Drake 19

(Emphasis added). 20 Lawyer Disciplinary Bd. v. Vieweg, 194 W. Va. 554, 559, 461 S.E.2d 60, 65 behalf of a petitioner in a reinstatement proceeding are of li 21

decision in diTrapano II 22 is misplaced. As we concluded in diTrapano II, the relevant

accepted responsibility for his actions, and made 23

Unlike Mr.

diTrapano and for the reasons set forth above we are not convinced that Mr. Drake has

fully accepted responsibility for his actions.

license. Mr. Drake has failed to carry his heavy burden of proving to this Court that he

currently possesses the integrity and moral character necessary to resume the practice of

law. We conclude that reinstatement would have a justifiable and substantial adverse effect

steps to better position himself for reinstatement in the future.

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21 Syl. Pt. 1, in part, Brown, 166 W. Va. at 226, 273 S.E.2d at 567. 22 240 W. Va. at 612, 814 S.E.2d at 275. 23 Id. at 619, 814 S.E.2d at 282. IV. CONCLUSION

law license at this time.

Petition denied.

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