No. 16-0869–In re Petition for Reinstatement of L. Dante diTrapano
                                                                                    FILED
                                                                                 June 5, 2018
                                                                                  released at 3:00 p.m.
                                                                              EDYTHE NASH GAISER, CLERK
                                                                              SUPREME COURT OF APPEALS
Loughry, J., dissenting:                                                           OF WEST VIRGINIA


              I commend the petitioner for the many improvements he has made in his life

in recent years.     According to the testimony presented before the Hearing Panel

Subcommittee, he is now sober, employed, and a benefit to both his family and his

community. Nonetheless, I believe the petitioner’s prior professional misconduct–including

serious misconduct against a client that is conspicuously absent from the majority’s

discussion–dictates that he should not be readmitted to the practice of law. In accordance

with the recommendation of the Office of Disciplinary Counsel, I would deny this petition

for reinstatement.



              The petitioner was not simply suspended from the practice of law for a

specified period of time; he was disbarred. Our law requires that if a disbarred attorney seeks

readmission, this Court must take into account, inter alia, the lawyer’s prior misconduct.

See, e.g., In re Smith, 214 W.Va. 83, 85, 585 S.E.2d 602, 604 (1980) (noting necessity of

looking to “the nature of the original offense for which the petitioner was disbarred”)

(internal citation omitted); Syl. Pt. 1, in part, In re Brown, 166 W.Va. 226, 273 S.E.2d 567

(1980) (stating “the seriousness of the conduct leading to disbarment is an important

consideration”). Indeed, “the seriousness of the underlying offense leading to the disbarment


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may, as a threshold matter, preclude reinstatement such that further inquiry as to

rehabilitation is not warranted.” Id. at 240, 273 S.E.2d at 574. Moreover, the review

pursuant to a petition for readmission is not limited solely to the conduct that formed the

specific basis for the disbarment: “[W]e do not view the inquiry on reinstatement as limited

to the single issue of the precise offense that triggered disbarment. Most courts have

concluded that [the] applicant’s prior and present record of infractions can be considered.”

Id. at 239, 273 S.E.2d at 574 (citations omitted); accord In re Reinstatement of Wiederholt,

24 P.3d 1219, 1226 (Alaska 2001) (considering, as part of proceedings on petition for

readmission, wrongful conduct that had not formed basis for disbarment).



              Here, the petitioner’s prior misconduct was both egregious and dishonest. As

this Court explained in its opinion denying the petitioner’s prior petition for reinstatement,

                      [our] precedent obliges this Court to proceed by first
              considering the nature of the offenses leading to Mr.
              [d]iTrapano’s disbarment and other relevant wrongdoings. His
              misconduct includes a prior admonishment; illegal drug use;
              multiple arrests, some of which were related to his possession of
              illegal drugs; knowingly possessing various firearms in and
              affecting interstate commerce while being an unlawful user of
              and addicted to a controlled substance, a crime for which he
              received a felony conviction; knowingly making a false
              statement and representation to a licensed dealer of firearms
              regarding his dependence on a controlled substance; knowingly
              making a false statement for the purpose of influencing the
              actions of a bank, a crime for which he received a second felony
              conviction; and “misappropriating” client funds.



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In re Reinstatement of diTrapano, 233 W.Va. 754, 766, 760 S.E.2d 568, 580 (2014).

Critically, with the exception of his federal felony conviction for illegal possession of

firearms by a person using and addicted to controlled substances, the petitioner’s most

serious misconduct was directed toward one of his clients. Knowing that the client, who was

also a business partner, wanted to use liquid assets for a joint business venture instead of

obtaining a bank loan, the petitioner nevertheless forged the client’s name on bank

documents to obtain a $500,000 loan. He then lied to bank officials, stating that the client

had personally signed the loan documents. Possibly to conceal his actions, the petitioner

listed his personal address as the address for the bank account in which the loan proceeds

were deposited. This conduct formed the basis for the petitioner’s second federal felony

conviction: knowingly making a false statement for the purpose of influencing the actions

of a bank. Further, while most of the loan proceeds were ultimately used for the business

venture, the petitioner kept $35,000 of the loan money for himself.



              The petitioner’s misconduct toward this client did not stop with the bank loan.

The petitioner also wrongfully used the same client’s power of attorney to open a margin

loan against the client’s investment accounts at a different financial institution. Then, over

a series of transactions, the petitioner stole $1.4 million from the margin account. When his

then-law partners discovered this theft, in order to protect both the client and the law firm’s

reputation, the partners paid restitution to the client and attributed this sum as income to the


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petitioner. These acts of conversion and dishonesty with regard to a client must be

considered for purposes of his petition for reinstatement.



                The unauthorized use of the client’s power of attorney to steal $1.4 million

was, understandably, a major concern for this Court in the 2014 opinion denying the

petitioner’s first petition for reinstatement.1 Inexplicably, however, the majority’s opinion

today is entirely devoid of any mention of this wrongdoing–even when reaching the

conclusion that the public’s confidence in the administration of justice would not be

adversely affected by readmitting the petitioner to the practice of law. Instead, the majority’s

analysis focuses entirely upon the two felony convictions2 and the petitioner’s recovery from

drug addiction.



                While recovery from drug abuse is laudable, it should not be a mitigating factor

when the lawyer’s misconduct involved dishonesty. The Court’s opinion denying the


       1
           See diTrapano, 233 W.Va. at 768-69, 760 S.E.2d at 582-83.
       2
        While turning a blind eye to the conversion of client funds, the majority also grossly
misrepresents the position of the Office of Disciplinary Counsel (“ODC”). It is not “the
ODC’s position that a convicted felon may never be reinstated to practice law in West
Virginia[,]” as the majority claims. Rather, the ODC argues that the petitioner’s two felony
convictions in conjunction with his other misbehavior warrant the denial of this petition. The
ODC points out that, “[t]o date, this Honorable Court has not reinstated the law license of
any twice convicted felon in recovery from addiction who also misappropriated client funds.”
The misappropriation of huge sums of a client’s money, using deceitful methods, should be
central to this Court’s consideration.

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petitioner’s earlier petition for reinstatement provides several reasons for this position. For

example, unlike alcohol addiction, cocaine and other illicit substances are illegal,“[t]hus any

attorney who embarks on the use of an illegal substance in the first instance is knowingly

violating the law.” diTrapano, 233 W.Va. at 767, 760 S.E.2d at 581 (quoting Lawyer

Disciplinary Board v. Brown, 223 W.Va. 554, 561, 678 S.E.2d 60, 67 (2009)). Moreover,

in this Court’s leading case treating alcoholism as a mitigating factor, “the gravaman” of that

lawyer’s actions “show[ed] a pattern of neglect or inattention to the needs of his clients, lack

of communication with clients, and failure to pursue his clients’ cases and meet deadlines.”

diTrapano, 233 W.Va. at 769, 760 S.E.2d at 583 (quoting Lawyer Disciplinary Board v.

Hardison, 205 W.Va. 344, 351, 518 S.E.2d 101, 108 (1999)). This Court has already

concluded that the petitioner’s misconduct “was not passive like the conduct in Hardison;

Mr. [d]iTrapano affirmatively acted in a deceitful and dishonest manner.” diTrapano, 233

W.Va. at 769, 760 S.E.2d at 583. The four-year passage of time since the denial of the

petitioner’s earlier request for readmission does not change these facts.



              The majority’s focus in this matter should have been upon the petitioner’s

forgery of a client’s name to loan documents, the theft of a portion of the loan proceeds, the

unauthorized use of the client’s power of attorney to steal an additional $1.4 million, and how




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this misconduct would impact the public’s perception of the administration of justice.3 For

the reasons set forth herein, I respectfully dissent.4




       3
       Furthermore, the majority provides no explanation for why it is taking the
unprecedented step of issuing the mandate contemporaneously with its opinion. There is
simply no reason to override the thirty-day provision of Rule 26(b) of the Rules of Appellate
Procedure, and the Court has not expedited the mandate in other lawyer reinstatement cases.
Moreover, although the majority imposes a condition of supervised practice, expediting the
mandate deprives the ODC of any time to ensure that a proper plan of supervision is in place.
       4
        Although I disagree with the majority’s decision to grant this petition for
reinstatement, I do agree with their rejection, albeit without explanation, of one particular
recommendation of the Hearing Panel Subcommittee–the recommendation that the petitioner
“be reinstated without further petition or hearings after he has honored his commitment to
the West Virginia State Bar by successfully completing the terms of his December 1, 2016
WV[J]LAP monitoring agreement/contract. The date of completion in the contract is
November 30, 2021.” (emphasis added).

        This recommendation would be ill-advised for several reasons. First, if other addicted
lawyers think that their law licenses may be suspended, or their reinstatements delayed, based
upon requirements imposed by the West Virginia Judicial and Lawyer Assistance Program
(“WVJLAP”), those lawyers may be discouraged from voluntarily participating in this
valuable program. Second, imposing such a requirement would create a strong motive for
the petitioner to be dishonest with program officials for fear that any non-compliance would
endanger his reinstatement. Third, ordering this condition would have the practical effect
of shifting to Mr. Albury, the WVJLAP director, the ultimate decision-making authority on
whether the petitioner is eligible for readmission. When deciding whether the petitioner had
successfully completed the program, Mr. Albury would also be deciding whether the
petitioner would receive a law license. Such a procedure would run contrary to this Court’s
authority as the final arbiter of all legal ethics matters. See Syl. Pt. 3, Comm. on Legal Ethics
of W.Va. State Bar v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984) (“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.”).

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