          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                  September 2016 Term

                                                                       FILED

                                                                   October 14, 2016

                                      No. 14-1119                      released at 3:00 p.m.
                                                                     RORY L. PERRY, II CLERK

                                                                   SUPREME COURT OF APPEALS

                                                                        OF WEST VIRGINIA




                         LAWYER DISCIPLINARY BOARD,

                                  Petitioner,

                                       v.


                                 KEVIN E. MCCLOSKEY,

                                      Respondent.




                            Lawyer Disciplinary Proceeding

                                   No. 14-03-152


                     PUBLIC REPRIMAND, PROHIBITION ON

                        APPLICATION FOR ADMISSION,

                           AND OTHER SANCTIONS




                            Submitted: September 21, 2016
                               Filed: October 14, 2016


Joanne M. Vella Kirby, Esq.                   Kevin E. McCloskey
Lawyer Disciplinary Counsel                   Morgantown, West Virginia
Office of Disciplinary Counsel                Pro Se Respondent
Charleston, West Virginia
Attorney for Petitioner



JUSTICE LOUGHRY delivered the Opinion of the Court.

JUSTICE BENJAMIN concurs and reserves the right to file a concurring opinion.

                              SYLLABUS BY THE COURT


              1. “A de novo standard applies to a review of the adjudicatory record made

before 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 [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.” Syl. Pt. 3, Comm. on Legal Ethics 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).



              3. “‘This Court retains the inherent power to regulate the practice of law in this

State, and under Rule 1 of the Rules of Lawyer Disciplinary Procedure, as amended by this

Court on December 6, 1994, a lawyer is subject to discipline in this State for violating the

West Virginia Rules of Professional Conduct if he or she engages in the practice of law in

this State, whether or not he or she is formally admitted to practice by this Court.’ Syl. Pt. 6,


                                                i
Lawyer Disciplinary Bd. v. Allen, 198 W.Va. 18, 479 S.E.2d 317 (1996).” Syl. Pt. 4, State

ex rel. York v. W.Va. Office of Disciplinary Counsel, 231 W.Va. 183, 744 S.E.2d 293 (2013).



              4. “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.’” Syl. Pt. 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513

S.E.2d 722 (1998).



              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 Board v. Scott, 213 W.Va. 209, 579 S.E.2d 550

(2003).




                                               ii
LOUGHRY, Justice:

              A Hearing Panel Subcommittee (“HPS”) of the Lawyer Disciplinary Board has

determined that the respondent, Kevin E. McCloskey, a lawyer who is not admitted to the

West Virginia Bar, violated the West Virginia Rules of Professional Conduct by engaging

in the unauthorized practice of law in this state, committing acts of professional misconduct

in this state, and failing to respond to the Office of Disciplinary Counsel’s (“ODC”) requests

for information in response to an ethics complaint.



              After a thorough review of the record developed before the HPS, and upon a

consideration of the ODC’s brief and oral argument,1 we adopt the HPS’s findings of fact and

conclusions of law.     However, exercising our exclusive authority to determine the

appropriate sanction in lawyer disciplinary matters, this Court imposes a different sanction

than that recommended by the HPS. Our review compels this Court to impose a public

reprimand; a five year prohibition on the respondent’s opportunity to apply for admission to

practice law in West Virginia, including pro hac vice admission; a five year prohibition on

the respondent’s appearance in any court in West Virginia; a requirement that if the

respondent should ever seek admission to the West Virginia State Bar, he first obtain twelve




       1
       The respondent disputed the allegations before the HPS, but he did not file a brief to
this Court or appear for oral argument.

                                              1

hours of continuing legal education in the areas of law office management and/or legal

ethics; and a requirement that he pay the costs of these disciplinary proceedings.



                         I. Factual and Procedural Background

              The respondent was a licensed member of the Pennsylvania Bar. In 2013 and

early 2014, he worked as an attorney employed by the Law Offices of Karen L. Hughes, a

GEICO captive insurance defense firm in Pittsburgh, Pennsylvania. The respondent is not,

and never has been, a licensed member of the West Virginia State Bar, and he has never been

admitted pro hac vice in any West Virginia court.



              Pursuant to the filing of formal lawyer disciplinary statement of charges, the

HPS held an evidentiary hearing on November 17, 2015. The respondent appeared by

telephone to dispute the charges. After considering the evidence and argument, the HPS

made several findings of fact and conclusions of law set forth in a report filed with this Court

on March 21, 2016.



              The HPS found that although the respondent was not licensed to practice law

in West Virginia, on or about December 10, 2013, he entered his appearance on behalf of the

defendant in a case pending in the Circuit Court of Ohio County styled Sneddon v. Jasper,

civil action 13-C-385. The record reflects that he signed and filed a “Praecipe for Entry of


                                               2

Appearance” and the accompanying certificate of service in this case. Moreover, in the

praecipe, he falsely represented that he was a West Virginia-licensed attorney: The

document identified him as “Kevin McCloskey, Esquire, WVATTY I.D. No. 11529.” West

Virginia State Bar number 11529 is assigned to a lawyer who was not in the respondent’s

firm and was not involved in the Sneddon case. In addition, attorney Brent Wear, who was

counsel for the plaintiff in Sneddon, testified that he received an answer to the complaint that

was signed by the respondent as defense counsel.



              The HPS further found that on or about February 10, 2014, the respondent

entered his appearance on behalf of the defendants in Fisher v. Matics, civil action 14-C-19,

a case pending in the Circuit Court of Hancock County. The record includes a “Praecipe for

Entry of Appearance,” a certificate of service, and a cover letter that the respondent signed

and filed in Fisher. In the praecipe, the respondent identified himself as “Kevin McCloskey,

Esquire, PA I.D. NO. 95072,” which is his Pennsylvania Bar number.



              For his conduct in these two cases, the HPS concluded that the respondent

violated the following West Virginia Rules of Professional Conduct: two violations of Rule

5.5(a) for engaging in the unauthorized practice of law; a violation of Rule 8.4(b) for

committing a criminal act, inasmuch as practicing law without a license is a misdemeanor

pursuant to West Virginia Code § 30-2-4 (1923); a violation of Rule 8.4(c) for conduct


                                               3

involving dishonesty, fraud, deceit or misrepresentation; and a violation of Rule 8.4(d) for

conduct prejudicial to the administration of justice.2



                 Although the Sneddon and Fisher matters were the basis for the rule violations

alleged in the statement of charges, upon conducting the evidentiary hearing, the HPS learned

that the respondent’s unethical conduct was not limited to those two cases. The HPS found

that the respondent also signed and filed pleadings in the Circuit Court of Brooke County for

Corbin v. Tustin, No. 13-C-165; in the Circuit Court of Marion County for Smith v. Huffman,

No. 13-C-361; and in the Circuit Court of Ohio County for Stephenson v. Pasqualia, No. 13­

C-411. The record reflects that in each of these three West Virginia cases, the respondent

filed documents as counsel for the defendant(s). Moreover, a civil case information sheet

filed by the respondent in Stephenson contains the name “Kevin McCloskey, Esquire,

WVSB,” thus falsely representing that he was a member of the West Virginia State Bar.



                 The evidentiary hearing also revealed that the respondent has received prior

professional discipline for engaging in the unauthorized practice of law. The Disciplinary

Board of the Supreme Court of Pennsylvania admonished the respondent in 2007 because he

had held himself out as an attorney in the spring and summer of 2005, a time when he was

not licensed to practice law in Pennsylvania. That same board issued a public reprimand to


       2
           The statute and rules are quoted in section III of this opinion.

                                                 4

the respondent in October 2013 because, in January 2012, the respondent represented a client

even though he was administratively suspended from the practice of law for his failure to

comply with Pennsylvania rules regarding obtaining continuing legal education. Based upon

all of the West Virginia cases and the two Pennsylvania sanctions, the HPS concluded that

the respondent has engaged in a pattern and practice of unethical conduct.



              The HPS’s report to this Court also described the ODC’s investigation of this

matter that led to the filing of the formal charges, including the respondent’s repeated failure

to respond to the ODC’s requests for information. Upon learning in March 2014 that the

respondent had entered his appearance in a West Virginia case, the ODC opened a complaint

and initiated an investigation into whether the respondent was engaged in the unauthorized

practice of law in this state. On March 12, 2014, the ODC sent the respondent a letter at his

Pittsburgh firm’s address instructing him to file a verified response within twenty days

pursuant to Rule 2.5 of the Rules of Lawyer Disciplinary Procedure. When the respondent

failed to respond, the ODC sent a second letter on April 10, 2014, warning that if he did not

respond the ODC would subpoena him to appear and give a statement or the allegations

would be deemed admitted. These letters were returned to the ODC unopened on or about




                                               5

April 13, 2014, with a notation on the envelopes that the respondent was no longer employed

at the law firm.3



               Mary E. “Besty” Casto, a legal assistant employed by the ODC, testified that

the respondent left a telephone voice mail message with the ODC on April 14, 2014,

reporting that he was no longer employed at the Pittsburgh law firm and providing his new

telephone number. Ms. Casto testified that on April 17, 2014, the respondent again called

the ODC, providing an address in McMurray, Pennsylvania, where he could receive

correspondence. That same day, the ODC re-sent its previous letters to the Respondent at

the McMurray address with directions that he file a verified response to the complaint within

twenty days.



               The respondent failed to respond to the complaint or make any further contact

with the ODC, prompting the ODC to obtain a subpoena duces tecum for his appearance and

sworn testimony at the ODC’s office on September 30, 2014. This subpoena was personally

served upon the respondent on September 8. The respondent provided the process server

with a new address in Morgantown, West Virginia.




       3
       The respondent testified that his employment at the Law Offices of Karen L. Hughes
was terminated in February 2014.

                                             6

                 On September 29, at 2:35 p.m., the ODC received a letter that the respondent

sent via facsimile acknowledging receipt of the subpoena but stating he would be unable to

appear. This letter did not provide any response to the complaint, and the respondent did not

file a motion to quash the subpoena. The HPS found that at approximately 4:50 p.m. on

September 29, counsel for the ODC, Joanne Vella Kirby, telephoned the number the

respondent had previously provided and left a voice mail message informing him that he was

not released from the subpoena. The respondent failed to appear on September 30. On

October 1, Ms. Kirby sent the respondent a letter via regular mail and electronic mail

confirming the contents of her earlier voice mail message and noting the respondent’s failure

to comply with the subpoena. On October 6, the ODC received a letter from the respondent

in which he denied he had received a telephone call or voice mail message from Ms. Kirby.

This letter did not provide any response to the allegation that he was practicing law in West

Virginia without a license.



                 The respondent never responded to the ODC, and the matter proceeded to the

filing of a formal statement of charges and an HPS evidentiary hearing. Although the

respondent provided an answer to the statement of charges and appeared via telephone at the

HPS hearing, the HPS concluded that the respondent violated Rule 8.1(b) for knowingly

failing to comply with the ODC’s requests for information during the investigation.4


       4
           This rule is quoted in section III of this opinion.

                                                  7

              In its report, the HPS recommends that this Court impose the following

sanctions: prohibit the respondent from admission to the West Virginia State Bar, including

admission pro hac vice, for no less than three years; prohibit the respondent from making any

appearance in any court in West Virginia for no less than three years; should the respondent

ever seek admission to the West Virginia State Bar in the future, require that he first obtain

twelve hours of continuing legal education with a focus on law office management and/or

legal ethics; and order the respondent to pay the costs of these disciplinary proceedings

pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure. The ODC has filed

a notice with this Court indicating its agreement with the HPS’s findings of fact and

conclusions of law, but urging this Court to impose a harsher sanction. The ODC suggests

that this Court should prohibit the respondent’s possible future admission in this state for a

period of five years. The respondent did not file any objections to the HPS report and has

not participated in the proceedings before this Court.



                                 II. Standards of Review

              The following standards apply to our consideration of lawyer disciplinary

matters:

                     A de novo standard applies to a review of the
              adjudicatory record made before 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 [Board’s]
              recommendations while ultimately exercising its own

                                              8

              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.

Syl. Pt. 3, Comm. on Legal Ethics v. McCorkle, 192 W.Va. 286, 452 S.E.2d 377 (1994).

While we respectfully consider the HPS’s recommendations on the appropriate sanction to

impose, “[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). Finally, we are mindful that “Rule 3.7 of the Rules of Lawyer

Disciplinary Procedure . . . requires the Office of Disciplinary Counsel to prove the

allegations of the formal charge by clear and convincing evidence.” Syl. Pt. 1, in part,

Lawyer Disciplinary Bd. v. McGraw, 194 W.Va. 788, 461 S.E.2d 850 (1995). With these

considerations in mind, we address the issues raised in this matter.



                                      III. Discussion

          A. Violations of the West Virginia Rules of Professional Conduct

              Although the respondent is not licensed to practice law in West Virginia, he

is nonetheless subject to professional discipline in this State for violations of the West

Virginia Rules of Professional Conduct.

                     “This Court retains the inherent power to regulate the
              practice of law in this State, and under Rule 1 of the Rules of
              Lawyer Disciplinary Procedure, as amended by this Court on

                                              9

              December 6, 1994, a lawyer is subject to discipline in this State
              for violating the West Virginia Rules of Professional Conduct
              if he or she engages in the practice of law in this State, whether
              or not he or she is formally admitted to practice by this Court.”
              Syl. Pt. 6, Lawyer Disciplinary Bd. v. Allen, 198 W.Va. 18, 479
              S.E.2d 317 (1996).

Syl. Pt. 4, State ex rel. York v. W.Va. Office of Disciplinary Counsel, 231 W.Va. 183, 744

S.E.2d 293 (2013). The type of law practice in which an unlicensed lawyer is engaged is

irrelevant to the analysis:

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

Id. at 185-86, 744 S.E.2d at 295-96, syl. pt. 5. Rule 1 of the Rules of Lawyer Disciplinary

Procedure, as amended in 1999, provides, in pertinent part, that this Court established the

Lawyer Disciplinary Board to conduct disciplinary proceedings against “those admitted to

the practice of law in West Virginia or any individual admitted to the practice of law in

another jurisdiction who engages in the practice of law in West Virginia[.]” The respondent




                                             10

was licensed to practice law in the Commonwealth of Pennsylvania at the time of the

offenses described herein.5



              Moreover, “[t]he exclusive authority to define, regulate and control the practice

of law in West Virginia is vested in the Supreme Court of Appeals.” Syl. Pt. 1, State ex rel.

Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982). “This includes the authority to

define, sanction, enjoin, and otherwise address the unauthorized practice of law. West

Virginia State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959).” McMahon v.

Advanced Title Services Co. of West Virginia, 216 W.Va. 413, 418, 607 S.E.2d 519, 524

(2004). “It is essential to the administration of justice and the proper protection of society

that only qualified persons duly licensed be permitted to engage in the practice of law.”

Michie’s West Virginia Code Annotated State Court Rules, Definition of the Practice of

Law, in part, at 965 (2016).



              Turning to the specific allegations in this case, for his conduct in the Sneddon

and Fisher cases the HPS concluded that the respondent violated Rules 5.5(a), 8.4(b), 8.4(c),

and 8.4(d) of the Rules of Professional Conduct.6 Rule 5.5 provides, in pertinent part:


       5
       By the time of the hearing on the formal charges, the respondent was administratively
suspended from the Pennsylvania Bar.
       6
       Amendments to the Rules of Professional Conduct took effect in 2015, but the
respondent’s conduct was governed by the prior version of the rules as quoted herein.

                                             11

“Unauthorized practice of law. A lawyer shall not: (a) practice law in a jurisdiction where

doing so violates the regulation of the legal profession in that jurisdiction[.]” W.Va. R. Prof.

Conduct, Rule 5.5(a) (1989). Rule 8.4 states,

              Misconduct. It is professional misconduct for a lawyer to: . . .
              (b) commit a criminal act that reflects adversely on the lawyer’s
              honesty, trustworthiness or fitness as a lawyer in other respects;
              (c) engage in conduct involving dishonesty, fraud, deceit or
              misrepresentation; [or]
              (d) engage in conduct that is prejudicial to the administration of
              justice.

W.Va. R. Prof. Conduct, Rule 8.4 (1995), in part.



              It is beyond cavil that the filing of legal documents with a circuit court on

behalf of another person or entity, while identifying one’s self as a lawyer representing that

other person or entity, constitutes the practice of law. This Court’s long-standing “Definition

of the Practice of Law” expressly states that the practice of law includes “undertak[ing], with

or without compensation and whether or not in connection with another activity, to prepare

for another legal instruments of any character” or “represent[ing] the interest of another

before any judicial tribunal or officer[.]” Michie’s West Virginia Code Annotated State

Court Rules, Definition of the Practice of Law, in part, at 965; accord Shenandoah Sales &

Service, Inc. v. Assessor of Jefferson Co., 228 W.Va. 762, 724 S.E.2d 733 (2012)

(recognizing that non-lawyer corporate official engaged in unauthorized practice of law when

filing documents in court). Indeed, during the evidentiary hearing the respondent did not


                                              12

dispute that the actions attributed to him would constitute the unauthorized practice of law.

Instead, he denied ever signing or filing the aforementioned West Virginia documents.



              The respondent suggested that someone in his law firm must have forged his

name and filed the documents without his authorization, knowledge, or participation. A

review of the record shows that the HPS correctly rejected this self-serving and speculative

claim. Notably, the respondent failed to assert this defense during the ODC’s investigation,

waiting instead to raise it during the HPS hearing nineteen months after he was aware of the

ODC’s investigation and thirteen months after the filing of the statement of charges. The

respondent presented no witnesses to support this assertion, and he never reported anyone

in the firm to disciplinary authorities in Pennsylvania or West Virginia.



              To support his claim of forgery, the respondent testified that his practice is to

always use his full name, “Kevin Edward McCloskey,” on professional documents. He

argued that if he had signed and filed the aforementioned documents, he would have used

his full name. The name on some of the documents filed in West Virginia is set forth as

“Kevin McCloskey,” omitting his middle name.7 The respondent’s credibility on this

assertion is severely undermined, however, by the fact that in these very disciplinary



       7
      The record reflects that some of the documents filed in West Virginia used “Kevin
Edward McCloskey,” while others used “Kevin McCloskey.”

                                             13

proceedings, he submitted documents as “Kevin McCloskey” in both his typed signature line

and his letterhead.8 In addition, the ODC presented the expert testimony of a forensic

document examiner, Kenneth Wayne Blake, who reviewed the disputed documents and

compared the signatures thereon with known exemplars of the respondent’s signature. Mr.

Blake opined with certainty that all of the signatures were made by the same person–the

respondent. Having reviewed the record, we agree that there is clear and convincing

evidence proving respondent’s violation of the unauthorized practice rule, Rule 5.5(a).



              We also agree with the HPS’s conclusions that the respondent violated Rules

8.4(b), (c), and (d). Rule 8.4(b) prohibits a lawyer from committing a criminal act that

reflects adversely on his or her honesty or fitness as a lawyer, and West Virginia Code § 30­

2-4 (1923) criminalizes the unlicensed practice of law in this State.9 In addition, the

       8
         The respondent used the name “Kevin McCloskey,” without a middle name or initial,
on two letters to the ODC that were admitted into the record and are described in section I
of this opinion, supra, and on a cover letter filed with this Court accompanying his answer
to the statement of charges. The respondent acknowledged during the evidentiary hearing
that he sent these particular letters.
       9
        Although West Virginia Code § 30-2-4 has since been amended, the 1923 version in
effect at the time of the respondent’s unauthorized practice of law provided, in part:

              It shall be unlawful for any natural person to practice or appear
              as an attorney-at-law for another in a court of record in this
              State, . . . or to hold himself out to the public as being entitled to
              practice law, or in any other manner to assume, use, or advertise
              the title of lawyer, or attorney and counselor-at-law, or
              counselor, or attorney and counselor, or equivalent terms in any
              language, in such manner as to convey the impression that he is

                                               14

respondent’s repeated instances of falsely holding himself out as a lawyer authorized to

practice law in West Virginia, and most particularly his use of a false Bar number on the

Sneddon pleading, were acts involving dishonesty, fraud, deceit and/or misrepresentation

contrary to Rule 8.4(c). Furthermore, the respondent’s conduct was contrary to the

administration of justice in violation of Rule 8.4(d). He allowed circuit courts, opposing

counsel, and parties to believe that he was authorized to practice law in West Virginia. When

his true status was discovered, new defense counsel had to be retained and substituted into

the cases. Attorney Mark Kepple, the attorney who assumed the representation of the

defendants, testified that that respondent’s actions caused delay and placed clients at risk for

default judgment because pleadings were not filed by properly-licensed counsel.



              Finally, the HPS concluded that the respondent violated Rule 8.1(b):

              Bar admission and disciplinary matters. 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: . . . (b) . . . 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.

W.Va. R. Prof. Conduct, Rule 8.1(b) (1989). This Court explained that




              a legal practitioner of law . . . without first having been duly and
              regularly licensed and admitted to practice law in a court of
              record of this State . . . . Any person violating the provisions of
              this section shall be guilty of a misdemeanor[.]

                                              15

                     [a]n attorney violates West Virginia Rule of Professional
              Conduct 8.1(b) by failing to respond to requests of the West
              Virginia State Bar concerning allegations in a disciplinary
              complaint. Such a violation is not contingent upon the issuance
              of a subpoena for the attorney, but can result from the mere
              failure to respond to a request for information by the Bar in
              connection with an investigation of an ethics complaint.

Syl. Pt. 1, Committee on Legal Ethics v. Martin, 187 W.Va. 340, 419 S.E.2d 4 (1992).



              The record shows that the respondent violated Rule 8.1(b). Although he may

not have received the initial letters sent to him, by April 2014 the respondent knew that the

ODC was investigating him inasmuch as he telephoned the ODC office to provide his new

contact information. As a non-West Virginia licensed attorney, there would have been no

reason for him to contact the West Virginia ODC but for the existence of a pending

investigation. Moreover, on April 17, 2014, the ODC re-sent its letters to the respondent at

the new address he provided. Pursuant to Rule 2.5 of the Rules of Lawyer Disciplinary

Procedure, the respondent was permitted twenty days in which to file a verified response to

the ODC. Despite the passage of several months, the respondent failed to respond to the

ODC’s requests for information. In addition, on September 30, 2014, he ignored the ODC’s

subpoena duces tecum, neither appearing in person as commanded nor moving to quash the

subpoena. Accordingly, we conclude that all of the HPS’s findings of fact and conclusions

of law in this disciplinary matter are supported by the record, and we accordingly adopt the

same.


                                             16

                                        B. Sanction

              Although we give respectful consideration to the HPS’s recommendation on

sanctions, this Court makes the ultimate decision on all attorney discipline. McCorkle, 192

W.Va. at 287, 452 S.E.2d at 378, syl. pt. 3; see also Blair, 174 W.Va. at 494-95, 327 S.E.2d

at 672, syl. pt. 3. “The principle purpose of attorney disciplinary proceedings is to safeguard

the public’s interest in the administration of justice.” Syl. Pt. 3, Daily Gazette v. Committee

on Legal Ethics, 174 W.Va. 359, 326 S.E.2d 705 (1984). A sanction should also be geared

toward the goal of effective deterrence. Syl. Pt. 3, Committee on Legal Ethics v. Walker, 178

W.Va. 150, 358 S.E.2d 234 (1987). This Court takes into account the following factors when

deciding upon an appropriate sanction:

                     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.”

Syl. Pt. 4, Office of Lawyer Disciplinary Counsel v. Jordan, 204 W.Va. 495, 513 S.E.2d 722

(1998).




                                              17

                 It is clear that the respondent violated duties owed to his clients, the legal

system, and the profession. Lawyers are officers of the court who must act honestly and

abide by the rules. The respondent represented clients in courts in which he was not licensed

to practice law, falsely portrayed himself as being authorized to do so, tried to deceive the

court and others by providing a false West Virginia State Bar number, and failed to respond

to the ODC’s requests for information in response to the ethics complaint. Inasmuch as the

ODC proved by clear and convincing evidence that it was the respondent’s own signature on

the documents filed with the circuit courts in Sneddon and Fisher, we must conclude that the

respondent acted intentionally and knowingly.



                 Moreover, the respondent put his clients at risk of suffering adverse rulings and

delays. Upon learning that the responsive pleading in Stephenson was signed and filed by

an unlicensed lawyer, the circuit court struck the answer and granted a liability judgment

against GEICO.10 In addition, the Sneddon case was temporarily stayed upon the circuit

court’s discovery that the respondent was unlicensed.



                 A mitigating factor in a lawyer disciplinary proceeding is any consideration or

factor that may justify a reduction in the discipline to be imposed. Syl. Pt. 2, Lawyer




       10
            Subsequent defense counsel testified that Stephenson was ultimately settled.

                                                18

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

factors are set forth in the Scott opinion:

                     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 or 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, syl. pt. 3. The HPS found no mitigating factors present in this

case. Our review of the record has similarly revealed nothing in mitigation, and the

respondent has failed to file a brief to illuminate this issue.



              Several of the factors listed in Scott point us toward the need to impose a harsh

sanction. “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.” Id. at 210,

579 S.E.2d at 551, syl. pt. 4. The respondent has a prior disciplinary record in Pennsylvania

for committing the same conduct–the unauthorized practice of law–on two separate

occasions. See Syl. Pt. 5, Comm. on Legal Ethics v. Tatterson, 177 W.Va. 356, 352 S.E.2d

107 (1986) (“Prior discipline is an aggravating factor in a pending disciplinary proceeding


                                               19

because it calls into question the fitness of the attorney to continue to practice a profession

imbued with a public trust.”). Furthermore, by failing to respond to the ODC’s requests for

information in the investigation, the respondent did not make a full and free disclosure nor

did he exhibit a cooperative attitude. The respondent has exhibited no remorse in this matter.

Rather than exhibiting remorse, he urged the HPS to adopt his unsupported claim that

someone falsified his Bar number and forged his signature to multiple court documents.



              The ODC proved that the respondent engaged in a pattern and practice of

committing the unauthorized practice of law. In addition to the Sneddon and Fisher cases,

and the two separate unauthorized practice of law matters for which the respondent was

disciplined in Pennsylvania, the ODC presented evidence of three additional cases for which

the respondent filed pleadings on behalf of clients in West Virginia courts. A pattern and

practice of misconduct is an aggravating factor for purposes of determining what sanction

to impose. See, e.g., Scott, 213 W.Va. at 217, 579 S.E.2d at 558; Lawyer Disciplinary Bd.

v. Sims, 212 W.Va. 463, 469, 574 S.E.2d 795, 801 (2002); accord ABA Standards for

Imposing Lawyer Sanctions, Standard 9.22(c) (2012).



              Cases from this and other jurisdictions indicate that when a lawyer commits

the unauthorized practice of law in a state in which he or she is not licensed, an appropriate

sanction includes a prohibition on seeking admission to the bar of that state for a period of


                                              20

time.   In Lawyer Disciplinary Board v. York, No. 12-1149 (W.Va. Oct. 15, 2014)

(unreported), a lawyer not licensed in West Virginia handled patent and trademark cases on

behalf of several West Virginia clients while he was associated with a West Virginia firm.

There were several factors in mitigation of sanction in York, including that this Court’s

jurisdiction over the lawyer’s practice had been a matter of first impression for our Court,11

the lawyer had no prior disciplinary record, and the lawyer also received discipline from

another licensing authority for this particular conduct. We adopted the recommendation of

the HPS to impose a sanction that included, inter alia, a one year prohibition on the lawyer’s

opportunity to seek admission to the West Virginia State Bar, including admission pro hac

vice, or appear in any West Virginia court.



                  In In re Cortigene, 144 So.3d 915 (La. 2014), a lawyer who was licensed in

other states, but was not admitted to the Louisiana Bar, represented a client in a case being

litigated in the United States District Court for the Eastern District of Louisiana. At the

conclusion of lawyer disciplinary proceedings, the Supreme Court of Louisiana enjoined the

lawyer from seeking admission to the Louisiana bar, including admission pro hace vice, for

a period of three years. In In re Van Son, 742 S.E.2d 660 (S.C. 2013), the Supreme Court

of South Carolina prohibited an unlicensed lawyer from admission for five years because he

engaged in lawyer advertising and the solicitation of clients in that state. In Iowa Supreme


        11
             See York, 231 W.Va. 183, 744 S.E.2d 293.

                                               21

Court Attorney Disciplinary Board v. Carpenter, 781 N.W.2d 263 (Iowa 2010), a lawyer who

was on administrative suspension in another state and who was not licensed in Iowa

nonetheless maintained an office in Iowa while representing clients in federal immigration

matters. For this and other violations, the Supreme Court of Iowa prohibited him from

seeking admission to the Iowa Bar for at least two years. Id. Additionally, the Court of

Appeals of Maryland “disbarred” an unlicensed attorney who was untruthful and who

engaged in the unauthorized practice of law in that state. Attorney Grievance Comm’n of

Maryland v. Barneys, 805 A.2d 1040 (Md. 2002).



              Moreover, we recognize that Rule of Professional Conduct 8.4 encompasses

some of the most egregious conduct that a lawyer can commit: criminal acts; acts of

dishonesty, fraud, deceit, or misrepresentation; and conduct prejudicial to the administration

of justice. Although the discipline imposed in any disciplinary case necessarily turns on the

facts of the particular case, violations of Rule 8.4 have often resulted in the disbarment of

licensed attorneys. See, e.g., Lawyer Disciplinary Bd. v. Askin, 203 W.Va. 320, 507 S.E.2d

683 (1998) (annulment for criminal contempt conviction); Lawyer Disciplinary Bd. v.

Blevins, 222 W.Va. 653, 671 S.E.2d 658 (2008) (misconduct including encouraging

convicted felon to intimidate former clients warranted disbarment); Lawyer Disciplinary Bd.

v. McCorkle, 219 W.Va. 245, 633 S.E.2d 1 (2006) (disbarment for making

misrepresentations and diverting client monies). The American Bar Association recommends


                                             22

that “[d]isbarment is generally appropriate when . . . a lawyer engages in . . . intentional

conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely

reflects on the lawyer’s fitness to practice.” ABA Standards for Imposing Lawyer Sanctions,

§ 5.11(b). In addition, “[d]isbarment is generally appropriate when a lawyer knowingly

engages in conduct that is a violation of a duty owed as a professional with the intent to

obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to

a client, the public, or the legal system.” Id. at § 7.1. As recounted above, the respondent

demonstrated a pattern of misconduct including misrepresenting himself as a West Virginia-

licensed attorney and providing false information. These actions benefitted him in that he

and his law firm were retained for the cases. Unfortunately, his conduct placed his clients

at serious risk of harm, as evidenced by the default judgement entered in one case.



              Finally, the failure to respond to ODC’s requests for information is also a

sanctionable offense. In Martin, where the failure to respond to a disciplinary complaint was

the only conduct for which a sanction was imposed, this Court concluded that a public

reprimand was appropriate. Martin, 187 W.Va. 340, 419 S.E.2d 4. Because the legal

profession is self-regulating, for the protection of the public it is paramount that lawyers

comply with their obligations under the Rules of Lawyer Disciplinary Procedure.




                                              23

                 After carefully considering all of the respondent’s conduct, rule violations, and

aggravating factors in this matter, we conclude that the sanction recommended by the HPS12

is not sufficient. The centerpiece of the recommended sanction is a three year prohibition

on the respondent’s opportunity to seek admission to the West Virginia State Bar, but there

is no indication in the record that the respondent intends to seek a West Virginia law

license.13 Moreover, given the extent of the respondent’s deception and misconduct, and the

extensive aggravating factors, a three-year prohibition period would not adequately protect

the public. As set forth above, licensed lawyers who commit misconduct in violation of Rule

8.4 are often subject to disbarment.14 Disbarred lawyers must wait five years before seeking

reinstatement of their law license.        See W.Va. R. Lawyer Disciplinary Pro. 3.33(b)

(permitting disbarred lawyer to petition for reinstatement after five years).



                 Accordingly, in exercising our exclusive authority to determine the appropriate

sanction in a lawyer disciplinary matter, we conclude that a public reprimand should be



       12
            The HPS’s recommended sanction is set forth in detail at the end of section I of this
opinion.
       13
        The respondent testified that he voluntarily resigned his Pennsylvania law license
in July 2015. However, the HPS noted that the website for Disciplinary Board of the
Supreme Court of Pennsylvania lists the respondent’s status as “administrative suspension.”
       14
         This Court has long held that “‘[d]isbarment of an attorney to practice law is not
used solely to punish the attorney but is for the protection of the public and the profession.’
Syl. Pt. 2, In re Daniel, 153 W.Va. 839, 173 S.E.2d 153 (1970).” Syl. Pt. 10, Lawyer
Disciplinary Bd. v. Scotchel, 234 W.Va. 627, 768 S.E.2d 730 (2014).

                                                24
added to the sanction recommended by the HPS. In addition, the period of restriction on the

respondent’s opportunity to seek admission to the West Virginia State Bar, including

admission pro hac vice, and to appear in any court in West Virginia, should be five years.

We agree with the HPS’s recommendations regarding continuing legal education and the

payment of costs.



                                     IV. Conclusion

              For the foregoing reasons, this Court imposes the following discipline on the

respondent:

              (1) a public reprimand;

              (2) a five year prohibition on the respondent’s opportunity to
              apply for admission to practice law in West Virginia, including
              pro hac vice admission;

              (3) a five year prohibition on the respondent’s appearance in any
              court in West Virginia;

              (4) a requirement that if the respondent should ever seek
              admission to the West Virginia State Bar, he first obtain twelve
              hours of continuing legal education in the areas of law office
              management and/or legal ethics; and

              (5) a requirement that the respondent pay the costs of these
              disciplinary proceedings.15

                                               Public reprimand, prohibition on application
                                               for admission, and other sanctions imposed.

       15
        The Clerk of Court is directed to forward a copy of this opinion to the Disciplinary
Board of the Supreme Court of Pennsylvania.

                                             25
