         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                              January 2020 Term
                              _______________                          FILED
                                                                     April 3, 2020
                                No. 18-0582                            released at 3:00 p.m.

                              _______________                      EDYTHE NASH GAISER, CLERK
                                                                   SUPREME COURT OF APPEALS
                                                                        OF WEST VIRGINIA




       IN RE: PETITION FOR REINSTATEMENT OF C. CRADY SWISHER


      ____________________________________________________________

                        Lawyer Disciplinary Proceeding


                         REINSTATEMENT DENIED

      ____________________________________________________________




                         Submitted: February 19, 2020
                             Filed: April 3, 2020




Mark W. Kelley, Esq.                   Rachael L. Fletcher Cipoletti, Esq.
RAY, WINTON & KELLEY, PLLC             Jessica H. Donahue Rhodes, Esq.
Charleston, West Virginia              Office of Disciplinary Counsel
Counsel for Petitioner                 Charleston, West Virginia
                                       Counsel for Respondent




CHIEF JUSTICE ARMSTEAD delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT


              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.” Syllabus Point 3, Committee on Legal Ethics of the West Virginia

State Bar 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 [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 consideration to the [Board’s] recommendations while ultimately exercising its

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

[Board’s] findings of fact, unless such findings are not supported by reliable, probative,

and substantial evidence on the whole record.” Syllabus Point 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 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




                                              i
important consideration.” Syllabus Point 1, In re Brown, 166 W. Va. 226, 273 S.E.2d 567

(1980).

              4.      “Rehabilitation 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 unprofessional conduct.”

Syllabus Point 2, In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980).




                                               ii
Armstead, Chief Justice:

              C. Crady Swisher’s license to practice law in West Virginia was suspended

in 1998 for violating two rules of professional conduct. Specifically, Mr. Swisher was

determined by this Court to have violated Rules of Professional Conduct 8.4(d) and 8.1.

See Lawyer Disciplinary Bd. v. Swisher, 203 W. Va. 603, 509 S.E.2d 884 (1998). Before

seeking reinstatement, this Court required the following conditions be met:

              1) Mr. Swisher demonstrates to the satisfaction of the West
              Virginia ODC that he has satisfied in total the judgment and
              interest thereon entered against him in the United States
              District Court;

              2) Mr. Swisher successfully completes the Multistate
              Professional Responsibility Examination; and

              3) Mr. Swisher pays all costs incurred in the investigation and
              hearing of this matter.

Id., 203 W. Va. 603, 606, 509 S.E.2d 884, 887. The parties agree that Mr. Swisher has met

all of the specific conditions for reinstatement established in Swisher.



              At the time Mr. Swisher was suspended by this Court, he was also admitted

to practice before the Pennsylvania Bar. Four years after his suspension in West Virginia,

Mr. Swisher was disbarred by consent in Pennsylvania. Following his disbarment, Mr.

Swisher never informed the West Virginia Office of Disciplinary Counsel (“WVODC”) of

Pennsylvania’s actions. See W. Va. R. Disciplinary P., Rule 3.20(b). He has also failed to

make restitution to the Pennsylvania Office of Disciplinary Counsel (“PODC”) for the

costs of those disciplinary proceedings, failed to reimburse the Pennsylvania Lawyers Fund


                                              1
for Client Security for payments to clients affected by his actions, and failed to resolve a

federal tax lien. Now, Mr. Swisher petitions this Court for reinstatement of his West

Virginia law license.



              In light of the nature of the underlying offense, his failure to inform the West

Virginia Bar of Pennsylvania’s actions, and the lack of effort to make restitution to those

damaged by his actions in Pennsylvania, the Hearing Panel Subcommittee (“HPS”) of the

Lawyer Disciplinary Board and the WVODC recommend that we deny Mr. Swisher’s

petition for reinstatement. For the reasons stated below, we agree.



                  I. FACTUAL AND PROCEDURAL BACKGROUND

              This Court suspended C. Crady Swisher’s law license in 1998 for violating

the provisions of Rules 8.4(d) 1 and 8.1 2 of the Rules of Professional Conduct. The facts


              1
                Rule 8.4(d) provides, “It is professional misconduct for a lawyer to: engage
in conduct that is prejudicial to the administration of justice.”
              2
                  Rule 8.1 states:

                     An applicant for admission to the bar, or a lawyer in
              connection with a bar admission application or in connection
              with a disciplinary matter, shall not:

                      (a)     knowingly make a false statement of material
              fact; or

                    (b)   fail to disclose a fact necessary to correct a
              misapprehension known by the person to have arisen in the
                                                                       (continued . . .)

                                              2
leading to Mr. Swisher’s suspension, and the requirements established by this Court for his

reinstatement, are more fully discussed in Lawyer Disciplinary Bd. v. Swisher, 203 W. Va.

603, 509 S.E.2d 884 (1998). In that matter, Mr. Swisher reached a settlement prior to trial

in a legal malpractice claim filed against him. Id., 203 W. Va. 603, 604, 509 S.E.2d 884,

885. He failed to timely pay the full amount of the settlement, and his former client was

forced to file a motion to enforce the settlement, which resulted in a judgment order against

Mr. Swisher in the amount of $15,000.00, plus interest. Id. He then failed to respond to

the ethics complaint filed against him. Id., 203 W. Va. 603, 605, 509 S.E.2d 884, 886.



              At the time Mr. Swisher’s West Virginia law license was suspended, he was

admitted in good standing before the Pennsylvania Bar. 3 However, that good standing was

short-lived. On or about June 13, 2000, PODC filed a Petition for Discipline against Mr.

Swisher relating to a complaint involving his client, Client E.C., 4 and thereafter placed Mr.

Swisher’s Pennsylvania license on emergency temporary suspension on May 9, 2001. On


              matter, or knowingly fail to respond to a lawful demand for
              information from an admissions or disciplinary authority,
              except that this Rule does not require disclosure of information
              otherwise protected by Rule 1.6.
              3
               Pennsylvania declined to proceed on reciprocal charges stemming from
West Virginia’s suspension.
              4
                Consistent with our long-standing practice in cases with sensitive facts, we
use initials where necessary to protect the identities of those involved in this case. See In
re K.H., 235 W. Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W. Va.
731, 742 S.E.2d 419 (2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005);
State v. Edward Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).

                                              3
August 30, 2001, PODC filed another Petition for Discipline against Mr. Swisher for

violations relating to two additional clients, Client J.J.D. and Client H.S..



               The facts of the individual client relationships giving rise to the Pennsylvania

Petition for Discipline are as follows:



               a. Client E.C.

               Client E.C. had a medical malpractice matter and retained Mr. Swisher who

agreed to represent her in April 1992, in exchange for a contingency fee. That arrangement

was never placed in writing, and Mr. Swisher thereafter sought and obtained a retainer from

Client E.C. in the amount of $1,000.00. In May 1993, Mr. Swisher brought lawsuits on

behalf of Client E.C., with one of those lawsuits resulting in a judgment entered against

Client E.C..    Mr. Swisher never informed his client of that judgment and did not

communicate with her from January 1994 through August 1996.



               After judgment was entered in the one matter, Mr. Swisher performed work

on the remaining case he filed on behalf of Client E.C., but the Court granted a Motion for

Judgment on the Pleadings against Client E.C. in that matter on August 6, 1996, thereby

dismissing the remaining action. During that month, Mr. Swisher spoke with Client E.C.

and told her he was not enthusiastic about the cases he had filed. Client E.C. insisted upon

pursuing the matters. Mr. Swisher agreed to continue his representation, but he never

informed Client E.C. that every matter he had brought on her behalf had been dismissed.

                                               4
              Mr. Swisher failed to contact Client E.C. for almost another year and a half,

even though Client E.C. repeatedly attempted to reach him. Finally, in spring 1998, Client

E.C. successfully connected with Mr. Swisher, but he failed to fully inform Client E.C. of

the status of the matters. Thereafter, Client E.C. sought recourse from the Pennsylvania

Lawyers Fund for Client Security, and she was able to recover the $1,000.00 retainer she

had paid to Mr. Swisher. As a result of his actions, Mr. Swisher was charged on June 13,

2000, by the PODC with violations of Pennsylvania Rules of Professional Conduct, Rules

1.4(a), 1.4(b), 1.5(c), 1.15(b), and 1.16(d).



              b. Client J.J.D.

              In November 1995, Client J.J.D. was involved in a work-related motor

vehicle accident, resulting in the amputation of his left leg. Client J.J.D. retained Mr.

Swisher to represent him under a one-third contingency fee contract. A settlement of that

matter was reached in June 1996 for $150,000.00. Mr. Swisher took his $50,000.00 fee

and retained the remaining $100,000.00 in his client trust account pending a determination

of any subrogation rights of the Pennsylvania State Workers’ Insurance Fund. While the

subrogation issue was pending, Mr. Swisher withdrew the $100,000.00 for his own use.



              When the subrogation issue was resolved in September 1998, Mr. Swisher

never informed Client J.J.D. that the case was resolved but instead told Client J.J.D. that

the matter was still on appeal and that the funds were in an account drawing interest. When

                                                5
Client J.J.D. learned in fall 2000 that no appeals were pending, he retained another attorney

to recover the funds. As a result of his actions, Mr. Swisher was charged by the PODC on

August 30, 2001, with violations of Pennsylvania Rules of Professional Conduct, Rules

1.15(a), 1.15(b), 8.4(b), and 8.4(c).




              c. Client H.S.

              In July 1995, Client H.S. suffered injuries when he was knocked down.

Thereafter, he entered into a one-third contingency fee arrangement for Mr. Swisher to

represent him in pursuing certain legal remedies. Mr. Swisher filed a lawsuit on Client

H.S.’s behalf in July 1997. In October 1999, Mr. Swisher reached a settlement of the

lawsuit in the amount of $85,000.00. During that same month, Mr. Swisher was contacted

by Client H.S.’s medical providers about payment of outstanding medical bills.



              In November 1999, when Mr. Swisher disbursed his $28,333.33 fee to

himself, the balance on his client trust account was $56,593.79, an amount that was $72.88

less than the amount he was entrusted to keep for Client H.S.. For the next year, Mr.

Swisher did not pay any of Client H.S.’s outstanding medical bills or liens, and the amount

in his client trust account dipped well below the amount he was required to hold in trust

for Client H.S.. At times, there was a negative balance in the account. In December 2000,

Mr. Swisher finally paid the outstanding balance on the medical bills, and provided Client

H.S. the remaining balance due to him. As a result of his actions, Mr. Swisher was charged


                                             6
by the PODC on August 30, 2001, with violations of Pennsylvania Rules of Professional

Conduct, Rules 1.15(a), 1.15(b), 8.4(b), and 8.4(c).



              Thereafter, on January 24, 2003, Mr. Swisher filed a petition for retroactive

disbarment on consent, and the Pennsylvania Supreme Court entered an order accepting

his petition, making Mr. Swisher’s disbarment effective retroactively to June 8, 2001.

Following his disbarment by the Pennsylvania Supreme Court, the United States District

Court for the Western District of Pennsylvania also disbarred Mr. Swisher by consent in

an order dated July 22, 2003.



              As a result of the actions taken by the Pennsylvania Bar, Mr. Swisher owes

$8,509.91 to the PODC for the costs of the proceeding against him and $127,004.44 (as of

November 2018) to the Pennsylvania Lawyers Fund for Client Security for payments made

to five different clients who were harmed by Mr. Swisher’s actions. Additionally, Mr.

Swisher owes the Internal Revenue Service approximately $3,800.00 from 2010.



              In his petition for reinstatement, Mr. Swisher disputes the total amounts owed

to the Pennsylvania authorities. He claims that the total amount owed to the PODC is less

because there is case law that precludes PODC’s recovery of expert fees. He also disagrees

with the amount the Pennsylvania Lawyers Fund for Client Security claims is owed.

Notably, however, Mr. Swisher has made no effort in Pennsylvania to either challenge the

amounts owed, or to begin payment of such amounts. In fact, in his petition to this Court,

                                             7
Mr. Swisher says that he will begin to make payments to Pennsylvania, “if made as a

condition of reinstatement” to the West Virginia Bar.



              Following these events, Mr. Swisher was unemployed until April 2005, when

he began work as a part-time law clerk for a lawyer in Harrisburg, Pennsylvania. He

continued working as a part-time law clerk for that lawyer until that lawyer retired from

the active practice of law in 2018. Mr. Swisher has also performed part-time law clerk

duties since September 2006 for another lawyer in Harrisburg, Pennsylvania, and continues

to do so. Finally, Mr. Swisher worked as a Court Appointed Special Advocate for abused

and neglected children in the Court of Common Pleas of Allegheny County, Pennsylvania,

until he moved to a different county that did not have that program. Mr. Swisher has also

regularly attended continuing legal education (“CLE”) programs in West Virginia.



              Mr. Swisher filed his petition for reinstatement with this Court on June 28,

2018, which was referred to the WVODC pursuant to Rule 3.32(a) 5 of the Rules of Lawyer

Disciplinary Procedure. WVODC then filed its report with the HPS of the Lawyer

Disciplinary Board on December 10, 2018. A hearing was held before the HPS on March

15, 2019, during which Mr. Swisher and numerous witnesses testified. The HPS concluded



              5
               This rule provides, in pertinent part, “[a]t the time of filing such petition
and questionnaire with the Clerk of the Supreme Court, the petitioner shall file a copy of
each with the Office of Disciplinary Counsel, which shall investigate the same and
determine whether a hearing is necessary.” W. Va. R. Disciplinary P., Rule 3.32(a).

                                             8
that Mr. Swisher’s reinstatement would have a “justifiable and substantial adverse effect

of the public confidence in the administration of justice” and that he had not demonstrated

that he had been fully rehabilitated.             The WVODC consented to the HPS’s

recommendation. On November 22, 2019, Mr. Swisher filed his request for a hearing

before this Court pursuant to Rule 3.33(c) 6 of the Rules of Lawyer Disciplinary Procedure.




                              II. STANDARD OF REVIEW

              “This Court is the final arbiter of legal ethics problems and must make the

ultimate decisions about public reprimands, suspension or annulments of attorneys’

licenses to practice law.” Syllabus Point 3, Comm. on Legal Ethics v. Blair, 174 W. Va.

494, 327 S.E.2d 671 (1984). As the final arbiter, this Court exercises its own independent

judgment when considering a petition for reinstatement:

                      A de novo standard applies to a review of the
              adjudicatory record made before the [LDB] as to the questions
              of law, questions of application of the law to the facts, and
              questions of appropriate sanctions; this Court gives respectful
              consideration to the [LDB’s] recommendations while
              ultimately exercising its own independent judgment. On the
              other hand, substantial deference is given to the [LDB’s]
              findings of fact, unless such findings are not supported by
              reliable, probative, and substantial evidence on the whole
              record.



              6
                 Rule 3.33(c) states, in pertinent part, “[w]ithin 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.” W. Va. R. Disciplinary P., Rule 3.33(c).
                                              9
Syllabus Point 3, Comm. on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377

(1994).



                                     III. ANALYSIS

              In Swisher, this Court set forth specific conditions, noted above, that all

parties to this matter agree were fully met by Mr. Swisher. Thus, the issue here is not

whether Mr. Swisher met those conditions, but rather, whether he has satisfied the

following requirement:

              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.

Syllabus Point 1, in part, In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980). We have

held that:

                      Rehabilitation 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
              unprofessional conduct.

Id., Syllabus Point 2. To weigh whether a lawyer has been rehabilitated, we have

previously used a five-prong test that considers:

              (1) the nature of the of the original offense for which the
              petitioner was disbarred; (2) the petitioner’s character,
              maturity, and experience at the time of disbarment; (3) the

                                             10
              petitioner’s occupations and conduct in the time since his
              disbarment; (4) the time elapsed since the disbarment; and (5)
              the petitioner’s present competence in legal skills.

In re Smith, 214 W. Va. 83, 85, 585 S.E.2d 602, 604 (1980). We have also clearly stated

that “the more serious the nature of the underlying offense, the more difficult the task

becomes to show a basis for reinstatement,” In re Brown, 166 W. Va. 226, 234, 273 S.E.2d

567, 571, and that “[m]isappropriation of funds by an attorney involves moral turpitude; it

is an act infected with deceit and dishonesty.” Comm. on Legal Ethics v. Hess, 186 W. Va.

514, 517, 413 S.E.2d 169, 172 (1991)(quoting Att’y Grievance Commission. v. Ezrin, 312

Md. 603, 609, 541 A.2d 966, 969 (1988)). Mr. Swisher’s burden is necessarily high, and

we do not believe he has met this burden.



              In applying the five Smith factors to this matter, we believe the record

demonstrates that Mr. Swisher has satisfied factors four – the time period elapsed since his

suspension – and five – his present competence in legal skills. He has regularly attended

West Virginia CLE programs since his suspension in 1998, twenty-two years ago. He has

also worked for law offices in Pennsylvania for most of the period of his suspension.

Indeed, a long period of time has elapsed since his suspension, he has worked in the law,

and he has kept abreast of West Virginia law.



              However, the application of factors one, two and three as set forth in Smith

demonstrate that Mr. Swisher has not been rehabilitated. As to factors one and two, this

Court found that Mr. Swisher had “dishonor[ed] the practice of law[,] because [his]

                                            11
misconduct [was] prejudicial to the administration of justice.” Swisher, 203 W. Va. 603,

606, 509 S.E.2d 884, 887. After his West Virginia suspension, Mr. Swisher proceeded to

engage in conduct in Pennsylvania similar to that which resulted in the suspension of his

West Virginia license, namely misappropriation of client funds. These actions would have

made him subject to disbarment in this State, had he informed WVODC of the actions

taken by Pennsylvania authorities. Continually lying and taking funds from clients cannot

be attributed to a “rookie mistake.” In re Reinstatement of Drake, 242 W. Va. 65, ___, 829

S.E.2d 267, 272 (2019). Thus, applying factor one outlined in Smith, relating to the nature

of the offense, we find that such factor weighs against Mr. Swisher’s reinstatement.

Likewise, factor two, which calls upon us to consider the Petitioner’s character, maturity,

and experience at the time of his suspension, leads us to the conclusion that Mr. Swisher’s

reinstatement is not appropriate. Indeed, he continued to engage in similar conduct adverse

to the interests of his clients in Pennsylvania, including the misappropriation of client

funds, even after his West Virginia suspension.         This conduct continued until the

Pennsylvania Supreme Court intervened. Mr. Swisher clearly engaged in a long-term

pattern of deceit toward his clients.



              If factors one and two of Smith were not enough to cause this Court great

pause when considering this petition, factor three – “the petitioner’s occupations and

conduct in the time since his disbarment” – make it clear that Mr. Swisher should not be

reinstated. Although Mr. Swisher has worked as a part-time law clerk in Pennsylvania

since his suspension, his overall conduct since his suspension in West Virginia, specifically

                                             12
his failure to notify the WVODC of Pennsylvania’s actions and his failure to make

restitution in Pennsylvania, weigh against his reinstatement.



       a.     Notification to West Virginia Office of Disciplinary Counsel

              Mr. Swisher argues that he did not inform the WVODC about the actions

taken in Pennsylvania regarding his law license “because he did not realize that he had to

so notify them.” We find no merit in this argument and agree with the WVODC’s position

that Mr. Swisher’s disbarment in Pennsylvania and subsequent failure to inform West

Virginia authorities of that disbarment simply cannot be ignored.



              After a long process, Mr. Swisher voluntarily surrendered his Pennsylvania

law license when he was disbarred in that State by consent. That action took place four

years after his West Virginia license had been suspended by this Court. See Swisher, 203

W. Va. 603, 509 S.E.2d 884. Our rules are clear:

                     A final adjudication in another jurisdiction, whether
              state or federal, of misconduct constituting grounds for
              discipline of a lawyer or a voluntary surrender of a license to
              practice in connection with a disciplinary proceeding shall, for
              the purposes of proceedings pursuant to these rules
              conclusively establish such conduct. Accordingly, a Hearing
              Panel Subcommittee may take action without conducting a
              formal hearing.

W. Va. R. Disciplinary P., Rule 3.20(a).         Until Mr. Swisher filed his Petition for

Reinstatement, the WVODC was unaware of the actions taken in Pennsylvania. This is

because Mr. Swisher never informed WVODC of Pennsylvania’s action. Regardless of


                                            13
the fact that Mr. Swisher’s license to practice in West Virginia was suspended, we deem

Mr. Swisher’s decision to not inform WVODC of the disciplinary action in Pennsylvania

to be a violation of Rule 3.20(b), which provides:

                      Any lawyer who is a member, active or inactive, of The
              West Virginia State Bar against whom any form of public
              discipline has been imposed by the authorities of another
              jurisdiction, whether state or federal, or who voluntarily
              surrenders his or her license to practice law in connection with
              disciplinary proceedings in another jurisdiction, whether state
              or federal, shall notify the Office of Disciplinary Counsel of
              such action in writing within ten days thereof. Failure to notify
              the Office of Disciplinary Counsel shall constitute an
              aggravating factor in any subsequent disciplinary proceeding.

W. Va. R. Disciplinary P., Rule 3.20(b). Mr. Swisher’s failure to timely inform WVODC

deprived WVODC of its ability to investigate the actions taken in Pennsylvania and

determine whether West Virginia should take reciprocal action:

                      Upon receiving notice that a lawyer who is a member,
              active or inactive, has been publicly disciplined or has
              voluntarily surrendered his or her license to practice law in
              another jurisdiction, whether state or federal, Disciplinary
              Counsel shall, following an investigation pursuant to these
              rules, refer the matter to a Hearing Panel Subcommittee for
              appropriate action.

W. Va. R. Disciplinary P., Rule 3.20(c).



              Mr. Swisher argues that he had no duty to report Pennsylvania’s actions to

West Virginia as his West Virginia license was suspended at the time Pennsylvania acted.

In other words, Mr. Swisher contends that the suspension of his West Virginia license also

suspended the application of West Virginia’s Rules of Disciplinary Procedure. However,


                                             14
by their very language, many of our rules of Lawyer Disciplinary Procedure expressly

apply to lawyers whose law licenses have been annulled or suspended, as well as to those

who have been disbarred. See, e.g., W. Va. R. Disciplinary P., Rules 3.17 (effect of

suspension or annulment); 3.28 (duties of disbarred or suspended lawyers); 3.30

(requirements for reinstatement); 3.31 (automatic reinstatement following suspension);

3.32 (reinstatement procedure following suspension); 3.33 (reinstatement procedure

following annulment).     Additionally, this Court has applied the Rules of Lawyer

Disciplinary Procedure to suspended lawyers who have failed to comply with the rules

following their suspension:

                      A suspended attorney who fails to comply with the
              provisions of [Rule 3.28 of the Rules of Lawyer Disciplinary
              Procedure] may have his or her license to practice law annulled
              upon proof by the [Lawyer Disciplinary Board] by full,
              preponderating and clear evidence that the suspended attorney
              failed to comply with the provisions.

Syllabus Point 3, Comm. on Legal Ethics v. Keenan, 192 W. Va. 90, 450 S.E.2d 787 (1994).

Likewise, in Lawyer Disciplinary Bd. v. Viewig, 194 W. Va. 554, 557, 461 S.E.2d 60, 63

(1995), this Court annulled a suspended lawyer’s law license following that lawyer’s felony

guilty plea. See also Lawyer Disciplinary Bd. v. Hart, 241 W. Va. 69, 89, 818 S.E.2d 895,

915 (2018)(failing to comply with Rule 3.28 of the Rules of Lawyer Disciplinary Procedure

warrants annulment of suspended lawyer’s law license). Thus, the Rules clearly apply to

suspended lawyers, thereby requiring Mr. Swisher to inform WVODC of the disciplinary

actions taken in Pennsylvania. His failure to do so weighs against his argument that he




                                            15
possesses the “requisite integrity and moral character to resume the practice of law.”

Comm. on Legal Ethics v. Pence, 171 W. Va. 68, 73, 297 S.E.2d 843, 848 (1982).



       b.      Payment of Restitution

               Most troubling to this Court is Mr. Swisher’s contention that he will enter

into a payment plan to satisfy his outstanding debts to Pennsylvania, “if made a condition

of his reinstatement.” Mr. Swisher directs this Court to a number of cases he maintains

support his contention that his willingness to pay restitution in the future warrant his

reinstatement. However, none of the cases cited by Mr. Swisher overcome the fact that he

has made no effort to remedy the adverse consequences of his prior actions by actually

beginning to pay the restitution he owes.



               First, Mr. Swisher cites Lawyer Disciplinary Bd. v. Viewig, 194 W. Va. 554,

461 S.E.2d 60, for the proposition that this Court has made the repayment of prior debts a

condition of reinstatement.      However, in Viewig, this Court made “the continue[d]

repay[ment] of past debts” a condition of reinstatement. Id., 194 W. Va. 554, 560, 461

S.E.2d 60, 66 (emphasis added). Mr. Viewig had already begun repaying his past debts

when he sought reinstatement by this Court. The same cannot be said for Mr. Swisher. He

only offers to satisfy his debts if he is reinstated.



               Mr. Swisher also cites Lawyer Disciplinary Bd. v. Pence, 194 W. Va. 608,

461 S.E.2d 114 (1995), to demonstrate that he has met the requisite standard for

                                               16
reinstatement. Again, we do not see how that case bolsters his position. Indeed, in Pence,

the reasons cited by this Court for denying one of Mr. Pence’s petitions for reinstatement

was the fact that he, like Mr. Swisher, had not yet paid the amounts he owed as a result of

his prior conduct. In Pence, this Court found:

                     On August 7, 1985, Mr. Pence filed his third petition for
              reinstatement. We summarily dismissed that petition when we
              learned that Mr. Pence had not yet paid the $22,210.52 in costs
              and expenses that the Committee had incurred during certain
              prior proceedings. We instructed Mr. Pence that he could not
              file another petition for reinstatement until he had reimbursed
              the amount of costs and expenses owing.

Id., 194 W. Va. 608, 610, 461 S.E.2d 114, 116. Thus, Pence actually undermines Mr.

Swisher’s position.



              This Court recently decided In re: Reinstatement of Drake, 242 W. Va. 65,

829 S.E.2d 267 (2019), a case similar in material respects to the present matter. In that

matter, Mr. Drake had entered an Alford/Kennedy plea to the crime of embezzlement. See

id., 242 W. Va. 65, ___, 829 S.E.2d 267, 269. Thereafter, Mr. Drake’s law license was

annulled. See id. Following the five-year mandatory waiting period, he filed a petition for

reinstatement.   See id., 242 W. Va. 65, ___, 829 S.E.2d 267, 269-270.              The HPS

recommended the request be denied and the WVODC agreed with that recommendation.

See id., 242 W. Va. 65, ___, 829 S.E.2d 267, 270.



              On these facts, this Court found “that Mr. Drake did not prioritize restitution

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

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before this Court seeking reinstatement of his law license.” Id., 242 W. Va. 65, ___, 829

S.E.2d 267, 273.    This is precisely the situation here. Mr. Swisher has made no effort to

make the restitution in Pennsylvania he was ordered to make, and he gives no assurance to

this Court he will do so unless this Court makes such restitution a condition of

reinstatement.



              It is undeniable that Mr. Swisher’s actions have harmed many clients who

placed their trust in him to represent them. Perhaps the most convincing step Mr. Swisher

could have taken to demonstrate that his reinstatement is warranted would have been to

have made a good faith effort to begin making restitution for such harm. This he has not

done and his conduct simply does not establish that he is entitled to reinstatement under

the Smith factors. Further, his reinstatement would not fulfill the primary goal of the lawyer

disciplinary process, namely “the protection of the public and the reassurance of the public

as to the reliability and integrity of attorneys.” Pence, 161 W. Va. 240, 253, 240 S.E.2d

668, 675 (1977). Accordingly, we deny his petition for reinstatement.



                                   IV. CONCLUSION

              We adopt the recommendation of the HPS and deny the petition for

reinstatement. The costs of this proceeding are to be assessed against Mr. Swisher.



                                                            Petition denied. Costs assessed.



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