          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                               September 2013Term
                                                                FILED
                                                            October 4, 2013
                                                              released at 3:00 p.m.
                                     No. 12-0608              RORY L. PERRY II, CLERK
                                                            SUPREME COURT OF APPEALS
                                                                OF WEST VIRGINIA




                        LAWYER DISCIPLINARY BOARD,

                                 Petitioner


                                         v.

                MICHAEL S. SANTA BARBARA, a member of the

                           West Virginia State Bar

                                Respondent




                     LAWYER DISCIPLINARY PROCEEDING


          LICENSED SUSPENDED AND OTHER SANCTIONS IMPOSED



                           Submitted: September 10, 2013

                              Filed: October 4, 2013


Andrea J. Hinerman, Esq.                           Robert H. Davis, Jr., Esq.
Senior Lawyer Disciplinary Counsel                 Harrisburg, Pennsylvania
Office of Disciplinary Counsel                     Attorney for the Respondent
Attorney for the Petitioner




The Opinion of the Court was delivered PER CURIAM.
                              SYLLABUS BY THE COURT




              1.     “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 of the whole record.” Syl. Pt. 3, Comm. on Legal Ethics of the W.

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



              2.     “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, Comm. on Legal Ethics of the W. Va. State Bar v. Blair,

174 W. Va. 494, 327 S.E.2d 671 (1984), cert denied, 470 U.S. 1028 (1985).



              3.     “Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary Procedure

enumerates factors to be considered in imposing sanctions and provides as follows: ‘In

imposing a sanction after a finding of lawyer misconduct, unless otherwise provided in these


                                              i
rules, the Court [West Virginia Supreme Court of Appeals] or Board [Lawyer Disciplinary

Board] shall consider the following factors: (1) whether the lawyer has violated a duty owed

to a client, to the public, to the legal system, or to the profession; (2) whether the lawyer

acted intentionally, knowingly, or negligently; (3) the amount of the actual or potential injury

caused by the lawyer’s misconduct; and (4) the existence of any aggravating or mitigating

factors.” Syl. Pt. 4, Office of lawyer Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513

S.E.2d 722 (1998).



              4.      “Where there has been a final criminal conviction, proof on the record

of such conviction satisfies the Committee on Legal Ethics’ burden of proving an ethical

violation arising from such conviction.” Syl. Pt. 2, Comm. on Legal Ethics of the W. Va. State

Bar v. Six, 181 W. Va. 52, 380 S.E.2d 219 (1989).



              5.      “Aggravating factors in a lawyer disciplinary proceeding are any

considerations or factors that may justify an increase in the degree of discipline to be

imposed.” Syl. Pt. 4, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550

(2003).



              6.      “Mitigating factors in a lawyer disciplinary proceeding are any

considerations or factors that may justify a reduction in the degree of discipline to be


                                               ii
imposed.” Syl. Pt. 2, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550

(2003).



              7.     “Mitigating factors which may be considered in determining the

appropriate sanction to be imposed against a lawyer for violating the Rules of Professional

Conduct include: (1) absence of a prior disciplinary record; (2) absence of a dishonest of

selfish motive; (3) personal or emotional problems; (4) timely good faith effort to make

restitution or to rectify consequences of misconduct; (5) full and free disclosure to

disciplinary board or cooperative attitude toward proceedings; (6) inexperience in the

practice of law; (7) character or reputation; (8) physical or mental disability or impairment;

(9) delay in disciplinary proceedings; (10) interim rehabilitation; (11) imposition of other

penalties or sanctions; (12) remorse; and (13) remoteness of prior offenses.” Syl. Pt. 3,

Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003).



              8.     “In deciding on the appropriate disciplinary action for ethical violations,

this Court must consider not only what steps would appropriately punish the respondent

attorney, but also whether the discipline imposed is adequate to service as an effective

deterrent to other members of the Bar and at the same time restore public confidence in the

ethical standard of the legal profession.” Syl. Pt. 3, Comm. on Legal Ethics of the W. Va.

State Bar v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987).


                                              iii
Per Curiam:

              This lawyer disciplinary proceeding was brought against the Respondent

Michael S. Santa Barbara by the Office of Disciplinary Counsel (“ODC”) on behalf of the

Lawyer Disciplinary Board (“LDB”). The ethical violations charged against Mr. Santa

Barbara arose out of his no contest plea to one count of brandishing and one count of

carrying a concealed weapon in the Magistrate Court of Berkeley County, West Virginia.1

The Hearing Panel Subcommittee (“HPS”) of the LDB determined, based upon stipulations

offered by both parties, that Mr. Santa Barbara violated Rule 8.4(b)2 and 8.4(d)3 of the West

Virginia Rules of Professional Conduct. The HPS recommended that this Court adopt the

following discipline in this matter:

              A.	    That Respondent be suspended from the practice of law
                     for a period of three (3) months. Further, that if this
                     three (3) month period of suspension should commence
                     while Respondent is still serving any part of his one (1)
                     year suspension period in Supreme Court Case No. 10­



       1
       The ODC also charged Mr. Santa Barbara with a violation of West Virginia Rule of
Profession Conduct 8.4(c), alleging that Mr. Santa Barbara engaged in “conduct involving
honesty, fraud, deceit or misrepresentation . . . . ” The ODC and Mr. Santa Barbara jointly
moved to dismiss this charge.
       2
        Rule 8.4(b) of the West Virginia Rules of Professional Conduct provides that it is
professional misconduct for an attorney to “commit a criminal act that reflects adversely on
the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects[.]”
       3
         West Virginia Rule of Professional Conduct 8.4(d) provides that it is professional
misconduct for an attorney to “engage in conduct that is prejudicial to the administration of
justice[.]”


                                             1

                     4011,4 then this three (3) month suspension shall [begin
                     to] run concurrently with said suspension from Supreme
                     Court No.10-4011, provided that Respondent shall not
                     petition for reinstatement until he has completed the
                     three (3) month suspension assessed in the proceeding.
              B.	    That Respondent shall continue with counseling as
                     ordered in Supreme Court No. 10-4011 during this three
                     (3) month suspension and that the treating counselor is
                     directed to submit at least one (1) progress report to the
                     Office of Disciplinary Counsel during this three (3)
                     month period; and
              C.	    That prior to petitioning to be reinstated to the practice of
                     law that Respondent be required to pay the costs of these
                     proceedings pursuant to Rule 3.15 of the Rules of
                     Disciplinary Procedure.

(Footnote added).

              The Court did not concur with the HPS’s recommended sanctions and the



       4
          Mr. Santa Barbara’s professional conduct was also at issue in Lawyer Disciplinary
Board v. Santa Barbara, 229 W. Va. 344, 729 S.E.2d 179 (2012) (“Santa Barbara I”).
Unlike the instant case, which does not involve any misconduct regarding clients, in Santa
Barbara I, three complaints had been brought against the Respondent by clients and one
complaint was filed by the ODC regarding a client. Id. at 346, 729 S.E.2d at 181. The
allegations involved violations of the West Virginia Rules of Professional Conduct requiring
attorneys to act with reasonable diligence, to communicate with clients, to keep clients
reasonably informed and to properly oversee and manage client trust accounts. Id. at 345-49,
729 S.E.2d at 180-84. We ordered the following sanctions in Santa Barbara I: (1)
suspension from the practice of law for a period of one year; (2) participation in
psychological and/or psychiatric counseling during the period of suspension until such time
that it is determined by the treating psychologist or psychiatrist that treatment is no longer
necessary, with reports regarding the same submitted to ODC every six months; (3)
completion of eight hours of continuing legal education in office management and office
practice within the next twenty-four months with satisfactory proof of completion provided
to the ODC; (4) supervised practice for one year upon reinstatement; and (5) reimbursement
to the Board for costs incurred in the proceeding. Id. at 352-53, 729 S.E.2d at 187-88.


                                              2

parties were ordered to file briefs. This matter was set for oral argument. Having considered

the HPS’s recommended sanctions, the stipulated findings of fact, conclusions of law and

recommended discipline agreed to by both parties and adopted by the HPS, the additional

findings made by the HPS, the parties’ briefs and oral arguments, as well as all other matters

of record, we agree with the recommended sanctions; however, we modify the three-month

suspension of Mr. Santa Barbara’s license to practice law so that it runs consecutive to the

one-year suspension previously imposed by the Court in Santa Barbara I, a separate and

distinct disciplinary action from the instant matter. See note 4 supra. In imposing a

consecutive three-month suspension, the time for the three-month suspension began to run

immediately following the conclusion of Mr. Barbara’s one-year suspension, which was July

9, 2013, one year after this Court issued the mandate in Santa Barbara I. We further modify

the recommended sanction regarding Mr. Santa Barbara’s continued counseling by directing

his treating counselor to submit at least one progress report to the ODC concerning

counseling provided during the three-month suspension period.



                                  I. Standard of Review

              In Committee on Legal Ethics of the West Virginia State Bar v. McCorkle,

192 W. Va. 286 452S.E.2d 377 (1994), this Court held in syllabus point three that

                     [a] de novo standard applies to a review of the
              adjudicatory record made for the Committee on Legal Ethics of
              the West Virginia State Bar [currently, the Hearing Panel
              Subcommittee of the Lawyer Disciplinary Board] as to questions

                                              3

             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
             finding of fact, unless such findings are not supported by
             reliable, probative, and substantial evidence on the whole
             record.


             The foregoing standard of review recognizes that “[t]his 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,

Comm. on Legal Ethics of the W. Va. State Bar v. Blair, 174 W. Va. 494, 327 S.E.2d 671

(1984), cert denied, 470 U.S. 1028 (1985). Keeping the standard of review in mind, we

proceed with an examination of the present case.



                                II. Factual Background

             Mr. Santa Barbara is a suspended member of the West Virginia Bar, who

practiced in Martinsburg, West Virginia. He was admitted to The West Virginia State Bar

on January 15, 1991.5 He resided in the Whiting’s Neck Subdivision in Berkeley County,

West Virginia, and served as vice-president of the homeowners association for the



      5
       The facts are taken from the HPS’s March 1, 2013, Order, as well as the Court’s
review of the record in this case. See Order of Hearing Panel Subcommittee in Mitigation
Hearing Recommending Adoption of Stipulations of Findings of Fact, Conclusions of Law
and Recommended Discipline.

                                            4

subdivision. The subdivision included a recreational area along the Potamac River with a

pavilion for private parties for community residents, as well as privately owned boat docks.



                 The subdivision had been beset by recurrent vandalism, destruction of property,

and burglaries6 over several years prior to the incident at issue in this case and had been

subjected to its highest level of crime in 2011.7 The residents of the subdivision had become

quite concerned about their own safety and the safety of their children and had been regularly

communicating through an email network system in their homeowners association about the

criminal activity. The residents had started a community watch system as a result of the

increased criminal activity.



                 On the night of August 14 and the early morning hours of August 15, 2011, Mr.

Santa Barbara and his family had just returned from vacation8 and the electricity in much of


       6
       The criminal activities that the subdivision and its property owners had experienced
included mailbox vandalism, automobile break-ins, and destruction or damage to gated areas.
       7
        Shortly before the incident giving rise to this disciplinary proceeding, strangers in a
Jeep approached and frightened children who were immediate neighbors and friends of Mr.
Santa Barbara and his family. The incident occurred in August, 2011, while the parents of
the children were at work. The occupants of the Jeep drove onto common property of the
subdivision where tennis courts and trash dumpsters are located and started screaming at the
young children and telling the children to get off the property. A special homeowners
association meeting was called on August 12, 2011, to address the incident. Mr. Santa
Barbara did not attend this meeting as he was on vacation.
       8
           While on vacation, the motion detection security device on the Santa Barbaras’ home
                                                                                  (continued...)

                                                5

the subdivision had been lost for reasons that are not apparent in record, including in the area

where Mr. Santa Barbara resided. A resident in the subdivision, who lived near the riverfront

area, called Mr. Santa Barbara seeking his assistance. The resident reported to Mr. Santa

Barbara that a large crowd of unauthorized persons were at the riverfront area and that he

heard loud conversation, girls screaming and what the resident thought were multiple

gunshots. The resident had tried to reach other homeowners prior to calling Mr. Santa

Barbara.



                 After receiving the call from the resident, Mr. Santa Barbara grabbed a

handgun, placed it in the central glove compartment of his car, and drove to the riverfront

area.9 Once there, he took the handgun and a flashlight and went towards the crowd. Mr.

Santa Barbara encountered a large group of individuals10 in their late teens and early

twenties, who were having a party.11 A smaller group of men began to encircle Mr. Santa



       8
       (...continued)
was activated and Mr. Santa Barbara was alerted to the alarm on his cell phone. Mr. Santa
Barbara contacted a neighbor who went to their home to investigate the alarm, but nothing
was found.
       9
        Mr. Santa Barbara’s then sixteen-year-old daughter got into the vehicle with him.
According to the testimony, she went with her father because she thought she might be able
to identify some of the individuals.
       10
      All but one of the group were trespassers and the party was not authorized by the
homeowners association.
       11
            Mr. Santa Barbara testified that approximately seventy youth were present.

                                               6

Barbara and he testified that it was at that time, when the crowd was surrounding him in a

threatening manner, that he raised the handgun over his head. He only displayed the handgun

as a warning, but he did not aim it at anyone or fire any shots.12



              The morning after this incident, Mr. Santa Barbara apologized to the

homeowners association and resigned from his position as vice-president. He also fully

cooperated with the police in the investigation.



              As a result of the incident, on September 13, 2011, Mr. Santa Barbara was

charged with five misdemeanor counts of brandishing a deadly weapon and one misdemeanor

count of battery. On April 16, 2012, he pleaded no contest to one count of brandishing and

one count of carrying a concealed weapon. Mr. Santa Barbara was sentenced to thirty days

in jail on the brandishing count, but was given an alternative sentence of fifty hours of

community service to be served in lieu of serving jail time. He was also fined $500 and

ordered to pay court costs. He was ordered to pay court costs on the concealed weapon



       12
          The original Order of Hearing Panel Subcommittee in Mitigation Hearing
Recommending Adoption of Stipulations of Findings of Fact, Conclusions of Law and
Recommended Discipline, initially had provided that Mr. Santa Barbara, “discharged the
handgun as a warning, but did not aim the gun at anyone or shoot anyone.” This finding was
amended by a Stipulated Agreed Order entered by the HPS on March 19, 2013, to indicate
that Mr. Santa Barbara only displayed the handgun, but did not aim the weapon at anyone or
fire the weapon at anyone. The order noted that the original finding was not supported by the
record.

                                              7

charge.



              On May 16, 2012, as a result of Mr. Santa Barbara’s no contest plea, the ODC

filed a Petition Seeking Suspension of Respondent’s Law License Pursuant to Rule 3.18 of

the Rules of Disciplinary Procedure.13 On June 8, 2012, Mr. Santa Barbara answered the

ODC’s petition and requested a mitigation hearing. In September 2012, prior to the

mitigation hearing, the parties entered into “Stipulations Regarding Findings of Fact,

Conclusions of Law and Recommendation as to Discipline,” in which Mr. Santa Barbara

admitted to violating the West Virginia Rules of Professional Conduct. A mitigation hearing

was held on October 10, 2012.



              As a result of the hearing, the HPS found that Mr. Santa Barbara

              did not forward to the Office of Disciplinary Counsel, as
              required by Rule 3.18(a) of the Rules of Professional Conduct,
              a copy of the order of judgment within thirty (30) days of the
              entry of the same. Rule 3.18(a) of the Rules of Professional
              Conduct further provides that “Failure to forward a copy shall
              constitute an aggravating factor in any subsequent disciplinary
              proceeding.” However, Respondent’s criminal counsel had been
              in contact with the Office of Disciplinary Counsel regarding the


       13
        Rule 3.18 provides that “[a] plea or verdict of guilty or a conviction after a plea of
nolo contendere shall be deemed to be a conviction within the meaning of this rule.” Id.
Additionally, “[a] lawyer shall be deemed to have been convicted within the meaning of this
rule upon the entry of the order or judgment of conviction and such lawyer’s license may be
suspended or annulled thereupon notwithstanding the pendency of an appeal from such
conviction.” Id.

                                              8

             criminal charges prior to the date of his conviction.

The HPS further stated that

             [w]ith respect to aggravating facts, the HPS acknowledges that
             Respondent, within the month before the instant events, had
             been disciplined by the Supreme Court of Appeals of West
             Virginia for prior violations of the Rules of Professional
             Conduct involving his law practice and his clients, for which the
             Respondent had received a one year suspension and other
             conditions which he must meet before applying for readmission.
             He was an experienced lawyer at the time of the events in the
             current matter.



             Regarding mitigating facts, the HPS found that it was

             of the opinion that he [referring to Mr. Santa Barbara] very
             likely would have been acquitted had he chosen to contest the
             charges given the background of events leading up to his
             confrontation with the young people at the party, because he was
             acting out of concern for his safety and property and that of the
             others in the subdivision, not for a criminal purpose.

The HPS added:

                     In fact, the Respondent’s actions that night were
             generally appreciated because the vandalism and criminal
             activity in Whiting’s Neck stopped after the incident and the
             media publicity which followed. At a minimum, the public
             opinion in his subdivision about lawyers certainly was not
             adversely affected by Respondent’s behavior, although the
             media accounts of the story may have had some adverse effect
             in the wider community area where the story was circulated.
             ODC offered no rebuttal testimony to controvert the evidence of
             the impact Respondent’s actions may have had on the public’s
             perception about lawyers not Respondents’ fitness to practice
             law.


                                            9

             Based upon the legal conclusions stipulated by the parties, as well as the

additional legal conclusions made by the HPS, the HPS determined that

                    [t]he facts surrounding the Respondent’s violations of the
             Rules of Professional Conduct which are detailed above mitigate
             against greater discipline than that to which the parties have
             stipulated. Respondent was contrite, immediately resigned from
             his position as an officer with the owners’ association, fully
             cooperated with law enforcement, and did not contest the
             criminal charges against him, even though he likely would have
             been acquitted by a jury. Furthermore, the evidence adduced at
             the hearing established that Respondent is fully cooperating with
             the mandate issued in the prior disciplinary proceeding and is
             receiving the required counseling. A three month suspension
             running concurrently with the previous disciplinary order will
             suffice in balancing the interests of the public with the need for
             discipline for violations committed by the Respondent.

Because this Court did not concur with the recommended discipline made by the HPS, the

matter is now before us.



                                     III. Discussion

             The only issue before the Court concerns the appropriate sanction for Mr. Santa

Barbara’s conduct. The ODC requests that the Court uphold the sanctions recommended by

the HPS, including a three-month concurrent suspension and continued counseling as ordered

by the Court in Santa Barbara I. See 229 W. Va. at 352-53, 729 S.E.2d at 187-88. Mr. Santa

Barbara, however, argues that because his one-year suspension in Santa Barbara I is

complete, a reprimand is the more appropriate sanction. See id.


                                            10

              In reviewing what sanctions are warranted in this matter, we rely on our prior

holding in syllabus point four of Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.

Va. 495, 513 S.E.2d 722 (1998):

                     Rule 3.16 of the West Virginia Rules of Lawyer
              Disciplinary Procedure enumerates factors to be considered in
              imposing sanctions and provides as follows: ‘In imposing a
              sanction after a finding of lawyer misconduct, unless otherwise
              provided in these rules, the Court [West Virginia Supreme Court
              of Appeals] or Board [Lawyer Disciplinary Board] shall
              consider the following factors: (1) whether the lawyer has
              violated a duty owed to a client, to the public, to the legal
              system, or to the profession; (2) whether the lawyer acted
              intentionally, knowingly, or negligently; (3) the amount of the
              actual or potential injury caused by the lawyer’s misconduct;
              and (4) the existence of any aggravating or mitigating factors.



              We first examine whether Mr. Santa Barbara violated a duty owed to a client,

the public, to the legal system or to the profession. Jordan, 204 W. Va. at 497, 513 S.E.3d

at 724. Mr. Santa Barbara pleaded no contest to brandishing and carrying a concealed

weapon. “Where there has been a final criminal conviction, proof on the record of such

conviction satisfies the Committee on Legal Ethics’ burden of proving an ethical violation

arising from such conviction.” Syl. Pt. 2, Comm. on Legal Ethics of the W. Va. State Bar

v. Six, 181 W. Va. 52, 380 S.E.2d 219 (1989). He, therefore, has violated his duty to the

public and the profession by being convicted for committing a criminal act. See Jordan, 204

W. Va. at 497, 513 S.E.2d at 724. Thus, the HPS was correct in its finding that Mr. Santa

Barbara “did not violate any duty to clients in this matter. However, he violated his duty to

                                             11

the public and the profession in that he committed a criminal act and has been convicted of

a criminal act.”



              The second factor considered by the Court is whether Mr. Santa Barbara acted

intentionally, knowingly or negligently. See id. We readily dispense with this factor as Mr.

Santa Barbara stipulated that he “acted in an intentional manner.”



              The third factor we examine involves that amount of the actual or potential

injury caused by the lawyer’s misconduct. See id. The HPS adopted the following

stipulation by the parties on this issue: “Respondent’s misconduct did not cause any actual

injury to any clients but his actions had the potential to injure the reputation and integrity of

the profession.” The HPS also found that “[a]lthough no injuries resulted from Respondent

brandishing the handgun, there certainly was the potential that someone may have been

harmed or seriously injured if the situation accelerated that evening.” We agree that there

existed a very great risk not only of bodily injury or death, but of injury to the reputation and

integrity of the profession as a result of Mr. Santa Barbara’s actions.



              Finally, we consider the existence of any aggravating or mitigating factors. See

id. “Aggravating factors in a lawyer disciplinary proceeding are any considerations or factors

that may justify an increase in the degree of discipline to be imposed.” Syl. Pt. 4, Lawyer


                                               12

Disciplinary Bd. v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003). Conversely, “[m]itigating

factors in a lawyer disciplinary proceeding are any considerations or factors that may justify

a reduction in the degree of discipline to be imposed.” Id., Syl. Pt. 2. In syllabus point three

of Scott, we held

                     Mitigating factors which may be considered in
              determining the appropriate sanction to be imposed against a
              lawyer for violating the Rules of Professional Conduct include:
              (1) absence of a prior disciplinary record; (2) absence of a
              dishonest of selfish motive; (3) personal or emotional problems;
              (4) timely good faith effort to make restitution or to rectify
              consequences of misconduct; (5) full and free disclosure to
              disciplinary board or cooperative attitude toward proceedings;
              (6) inexperience in the practice of law; (7) character or
              reputation; (8) physical or mental disability or impairment; (9)
              delay in disciplinary proceedings; (10) interim rehabilitation;
              (11) imposition of other penalties or sanctions; (12) remorse;
              and (13) remoteness of prior offenses.

Id. at 210, 579 S.E.2d at 551.



              The aggravating factors in Mr. Santa Barbara’s case included his failure to

report his conviction in magistrate court in a timely manner, his prior disciplinary action for

which he was suspended for a year from the practice of law, and his substantial experience

in the practice of law. As we stated in Office of Disciplinary Counsel v. Rogers, 231 W. Va.

445, 745 S.E.2d 483 (2013):

                      [s]ubstantial experience is deemed to be an aggravating
              factor, while lack of experience as a lawyer is considered to be
              a mitigating factor. The distinction is made in recognition of the
              fact that “a youthful and inexperienced attorney may have

                                              13

              [engaged in misconduct] as a result of inexperience rather than
              as a result of deliberate calculation.” In re Brown, 166 W. Va.
              226, 235, 273 S.E.2d 567, 572 (1980).

Rogers, 231 W. Va. at 452, 745 S.E.2d at 491.



              The mitigating factors included Mr. Santa Barbara’s compliance with the

sanctions issued by this Court in Santa Barbara I. Further, the HPS found that he was

“contrite, immediately resigned from his position as an officer with the owner’s association,

fully cooperated with law enforcement, and did not contest the criminal charges against him,

even though he likely would have been acquitted by a jury.”



              The HPS found that the facts in this case “mitigate against greater discipline

than to which the parties have stipulated.” Consequently, the HPS recommended to the Court

              that some discipline is warranted under the facts giving rise to
              this proceeding, but the HPS concludes that the mitigating
              factors outweigh the aggravating facts in this matter and it urges
              the Supreme Court to adopt in its entirety the recommended
              discipline set forth in the Stipulation of the parties.



              As the Court previously held:

                     In deciding on the appropriate disciplinary action for
              ethical violations, this Court must consider not only what steps
              would appropriately punish the respondent attorney, but also
              whether the discipline imposed is adequate to serve as an
              effective deterrent to other members of the Bar and at the same
              time restore public confidence in the ethical standards of the

                                              14

              legal profession.

Syl. Pt. 3, Comm. on Legal Ethics of the W. Va. State Bar v. Walker, 178 W. Va. 150, 358

S.E.2d 234 (1987). Based upon our review of all the factors, we find that the recommended

sanctions made to the Court by the HPS in its March 1, 2013, order are appropriate in this

case. We, however, modify the three-month suspension of Mr. Santa Barbara’s license to

practice law so that the suspension runs consecutive to Mr. Santa Barbara’s one-year

suspension previously imposed by the Court in Santa Barbara I.14 See 229 W. Va. at 352-53,

729 S.E.2d 187-88. This sanction will accomplish the goals of punishing the conduct

engaged in by Mr. Santa Barbara, deterring other lawyers from engaging in similar conduct,

as well as restoring public confidence in the standards of our profession. See Walker, 178

W. Va. at 150, 358 S.E.2d. at 234, Syl. Pt. 3.



                                      IV. Conclusion

              For the foregoing reasons, the Court adopts the recommendations made by the

HPS, as modified, and imposes the following sanctions in this matter: 1) that Mr. Santa

Barbara is suspended from the practice of law for a period of three months, with the period

of three months commencing at the conclusion of the prior one-year suspension, which was

July 9, 2013, one year after this Court’s mandate in Santa Barbara I issued, see 229 W. Va.



       14
        Additionally, we modify the condition for Mr. Santa Barbara’s treating counselor
to submit a progress report to the ODC as set forth infra in section IV. of this opinion.

                                             15

344, 729 S.E.2d 179; 2) that Mr. Santa Barbara shall not petition for reinstatement until he

has completed the three-month suspension assessed in this proceeding; 3) that Mr. Santa

Barbara shall continue with counseling as ordered in Santa Barbara I during the three-month

suspension and that the treating counselor is directed to submit at least one progress report

to the ODC concerning counseling provided during the three-month period; and 4) that prior

to petitioning to be reinstated to the practice of law, Mr. Santa Barbara is required to pay the

costs of these proceedings pursuant to Rule 3.15 of the West Virginia Rules of Disciplinary

Procedure.

                The Clerk of the Court is directed to issue the mandate forthwith, thereby

shortening the time for issuance of the mandate in accordance with Rule 26(b) of the West

Virginia Rules of Appellate Procedure and eliminating the opportunity for any petition for

rehearing to be filed in this matter in accordance with West Virginia Rules of Appellate

Procedure 25.



                                       Law license suspended and other sanctions imposed.




                                              16

