IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2021 Term FILED
_______________ June 14, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 18-0836 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
_______________
IN RE: PETITION FOR REINSTATEMENT OF KEITH L. WHEATON
____________________________________________________________
Lawyer Disciplinary Proceeding
REINSTATED SUBJECT TO CONDITIONS
____________________________________________________________
Submitted: May 5, 2021
Filed: June 14, 2021
Keith L. Wheaton Rachael L. Fletcher Cipoletti, Esq.
Self-Represented Litigant Chief Lawyer Disciplinary Counsel
Laurel, Maryland Office of Disciplinary Counsel
Petitioner Charleston, West Virginia
Counsel for Respondent
JUSTICE WALKER delivered the Opinion of the Court.
JUSTICE ARMSTEAD dissents and reserves the right to file a separate opinion.
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, Comm. on Legal Ethics 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 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, Comm. on Legal Ethics
v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994).” Syllabus Point 2, In re
Reinstatement of diTrapano, 240 W. Va. 612, 814 S.E.2d 275 (2018).
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
i
of justice and in this regard the seriousness of the conduct leading to disbarment is an
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
WALKER, Justice:
For the second time, Keith L. Wheaton petitions this Court for reinstatement
of his license to practice law in West Virginia, which was annulled in 2005 as a result of
several, serious acts of misconduct. When we denied his first petition for reinstatement in
2011, we concluded that Mr. Wheaton had failed to satisfy any of the requirements for
reinstatement that we enumerated in the order annulling his license. And, we determined
that he had neither demonstrated a record of rehabilitation nor shown that he possessed the
integrity, moral character, and legal competence to resume the practice of law. In stark
contrast to his first petition for reinstatement, Mr. Wheaton now presents evidence of his
rehabilitation and that he has complied with, or is in the process of complying with, the
requirements we set for his reinstatement. The Hearing Panel Subcommittee (HPS) found
that Mr. Wheaton’s license should be reinstated with conditions. While the Office of
Disciplinary Counsel (ODC) does not join in that recommendation because Mr. Wheaton
has not “fully satisfied” the reinstatement requirements set in 2005, it also does not oppose
Mr. Wheaton’s reinstatement.
Based upon his demonstrated rehabilitation, and his compliance with the
requirements for reinstatement, we now reinstate Mr. Wheaton’s law license, but with
conditions, including: (1) supervision for a period of three years by a supervising attorney
who will file monthly reports with the ODC; (2) annual auditing of all accounts associated
with his practice by a certified public accountant (CPA) for a period of three years; (3)
continued payment of the outstanding balances on the Mason judgment and the costs owed
1
to the Lawyer Disciplinary Board (LDB) in compliance with the now-executed payment
plans; (4) payment of all dues to the West Virginia State Bar; and (5) reimbursement to the
LDB of the costs of the reinstatement proceedings pursuant to Rule 3.15 of the Rules of
Lawyer Disciplinary Procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Wheaton was admitted to the practice of law on May 1, 1995. He
initially worked for a year in the criminal investigation division at the State Tax
Department in Charleston. In May 1996, he moved to Martinsburg, opened his own
practice, and almost immediately started engaging in the misconduct that would lead to his
disbarment. Specifically, from 1997 to 2002, Mr. Wheaton committed a series of misdeeds
that included misappropriation and conversion of client funds; making material
misrepresentations to clients, a bankruptcy trustee, bankruptcy court, and counsel for the
ODC; failing to communicate with clients; and failing to diligently pursue claims on behalf
of clients. 1 As a result of this conduct, several complaints were filed with the LDB, and
the ODC conducted an investigation, ultimately finding that Mr. Wheaton had committed
31 separate violations of the Rules of Professional Conduct. The HPS recommended
annulment of Mr. Wheaton’s license, and this Court agreed. In so doing, we adopted the
LDB’s recommendation that
The facts surrounding these instances of misconduct are more fully set forth in
1
Lawyer Disciplinary Board v. Wheaton, 216 W. Va. 673, 610 S.E.2d 8 (2004) (hereinafter
Wheaton I).
2
should Mr. Wheaton seek reinstatement after the prescribed
five-year period under Rule 3.33 of the Rules of Lawyer
Disciplinary Procedure, he should be required to: (1) reimburse
clients who were injured by his misconduct and who he never
repaid as follows: Ms. Christensen in the amount of $450.00,
Mr. Pruden in the amount of $300.00, and Ms. Mason in the
amount of $500.00; (2) fully satisfy the judgment assessed
against him by the federal bankruptcy court due to his
misconduct in the underlying case of his client, Ms. Mason; (3)
demonstrate that he has an understanding of the Rules of
Professional Conduct and that he undertake an additional
eighteen hours of ethics and office management continuing
legal education; (4) submit to supervised practice for a period
of at least two years; and (5) reimburse the [LDB] for the costs
of [the disciplinary] proceedings pursuant to Rule 3.15 of the
Rules of Lawyer Disciplinary Procedure.[2]
A. The First Petition for Reinstatement
Mr. Wheaton, pursuant to Rules 3.30 and 3.33 of the Rules of Lawyer
Disciplinary Procedure, first sought reinstatement to the practice of law on January 20,
2010. The ODC investigated, and the HPS conducted a two-day hearing on the petition.
Apart from Mr. Wheaton, thirteen witnesses testified at the hearing, and, while several
testified to Mr. Wheaton’s rehabilitation and good moral character, others opposed Mr.
Wheaton’s reinstatement to the practice of law. Several months later the HPS
recommended this Court deny the petition for reinstatement.
In making this recommendation, the HPS considered not only Mr. Wheaton’s
pre-annulment misconduct, but also evidence of his actions in the years since his
disbarment. The HPS found that, in 2005, Mr. Wheaton had discharged approximately
2
Wheaton I, 216 W. Va. at 680 n. 30, 610 S.E.2d at 15 n. 30.
3
fifteen actual or potential legal malpractice suits totaling $85,000 in bankruptcy. He also
had tens of thousands of dollars in child support arrearages in both West Virginia and North
Carolina. And, he pled guilty to a misdemeanor in North Carolina involving the
unauthorized use of a vehicle. He was also the subject of a default judgment in the
Commonwealth of Virginia for a $2,000.00 unpaid personal loan, as well as a $4,831.93
judgment resulting from a vehicle repossession. Finally, Mr. Wheaton had been the subject
of two worthless check warrants. 3
During oral argument on the first petition for reinstatement, Mr. Wheaton
conceded that he had failed to satisfy any of the enumerated requirements for reinstatement
set by this Court. He contended that he was unable to pay restitution to his former clients
or to reimburse the LDB because he was unable to obtain steady employment in order to
earn sufficient funds to satisfy those obligations. Ultimately, this Court concluded that Mr.
Wheaton had failed to: (1) satisfy the requirements for reinstatement set forth in Wheaton
I; (2) demonstrate that he possessed the “integrity, moral character and legal competence
to resume the practice of law”; (3) establish that, if reinstated, he would not engage in
future unprofessional conduct; and (4) show that his reinstatement to the practice of law
would not have a “justifiable and substantial adverse effect on the public confidence in the
3
The record indicates that both of those warrants were dismissed prior to our
decision on Mr. Wheaton’s first petition for reinstatement.
4
administration of justice.” So, we denied his petition for reinstatement by memorandum
decision on November 17, 2011. 4
B. The Present Petition for Reinstatement
Seven years later, on September 26, 2018, Mr. Wheaton filed a second
petition for reinstatement. The ODC performed an investigation and filed its report with
the HPS on February 19, 2020. The HPS held hearings on June 26, 2020, and September
1, 2020. 5 In addition to his own testimony, Mr. Wheaton presented three witnesses who
testified on his behalf: Paul Taylor, Esq.; Manuel Washington; and Jay Mullen. The HPS
further admitted sixteen exhibits from the ODC.
Based upon the testimony and evidence presented, the HPS made numerous
findings illustrating a marked change from Mr. Wheaton’s first petition for reinstatement.
Since the denial of his first petition, Mr. Wheaton has been employed in several jobs, both
in and out of the legal field. Of particular note, in 2018, he obtained a position as a
paralegal for the Office of Wage and Hour Department of Employment Services for the
city government of Washington, D.C. Mr. Wheaton remains in that position and has
recently had his employment contract renewed. As a result of this steady employment, Mr.
4
Wheaton v. Lawyer Disciplinary Board, No. 35462, 2011 WL 8186639 (November
17, 2011) (memorandum decision) (hereinafter Wheaton II).
5
The record indicates this significant gap resulted from Mr. Wheaton’s request for
a continuance so that he could secure the attendance of witnesses who had been unable to
appear due to the difficulties posed by the COVID-19 pandemic.
5
Wheaton is making timely child support payments and is working to pay off his remaining
arrearage in that regard.
And, the HPS found that Mr. Wheaton paid full restitution to Ms.
Christensen, Mr. Pruden, and Ms. Mason. While Mr. Wheaton has not fully satisfied the
$45,000.00 bankruptcy judgment in the Mason matter, he expressed a willingness to
execute a payment plan in order to do so. The HPS similarly determined that Mr. Wheaton
had not reimbursed the LDB for its costs in investigating and litigating the disciplinary
proceedings against him, but that he was also willing to execute a payment plan to begin
satisfying that obligation. Finally, the HPS determined that, for the 2018-2020 reporting
period, Mr. Wheaton had reported a total of 34.80 hours of continuing legal education
(CLE), including 19.30 hours in legal ethics and law office management.
On January 26, 2021, the HPS issued its Recommended Decision based on
these findings, recommending that Mr. Wheaton’s license to practice law be reinstated on
the following conditions:
1. [Mr. Wheaton] must execute payment plans for all
outstanding restitution, with the Mason judgment receiving
priority, and begin making payments prior to any decision
regarding reinstatement; and
2. [Mr. Wheaton] shall be returned to probation with
supervised practice and, if in private practice, shall have all
accounts associated with his law practice audited by a certified
public accountant for a period of two years.
6
The ODC did not endorse this recommendation because Mr. Wheaton has not fully
satisfied the Mason judgment or reimbursed the costs owed to the LDB. However, the
ODC stated that it would not oppose Mr. Wheaton’s reinstatement if he executed payment
plans to satisfy those obligations and began making payments prior to his reinstatement.
On February 18, 2021, the ODC filed a motion to supplement the appendix
record in this matter with documents indicating that Mr. Wheaton had executed the
following payment plans: (1) a monthly payment of $250.00 toward the $45,000.00 Mason
judgment; and (2) a monthly payment of $100.00 toward the $13,353.39 in costs owed to
the LDB. That supplement also includes a letter from Mr. Wheaton indicating that he
intends to increase the amounts of those payments upon the improvement of his financial
circumstances. In addition, the record contains copies of two money orders reflecting Mr.
Wheaton’s first payments on the executed payment plans. 6
II. STANDARD OF REVIEW
We have long held that “[t]his Court is the final arbiter of legal ethics
problems and must make the ultimate decision about public reprimands, suspension or
annulments of attorneys’ licenses to practice law.” 7 While we give respectful consideration
6
Mr. Wheaton informed the Court of these payments by letter dated February 9,
2021. He informed the ODC of the payment plans on February 10, 2021, as evidenced by
the supplemental appendix the ODC supplied to this Court on February 18, 2021.
7
Syl. Pt. 3, Comm. on Legal Ethics v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984).
7
to the recommendations of the HPS, this Court ultimately exercises its own independent
judgment regarding reinstatement:
A de novo standard applies to a review of the
adjudicatory record made before the [Lawyer Disciplinary
Board] as to 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.[8]
As the parties do not dispute the HPS’s findings of fact, we proceed to review
de novo the HPS’s recommendation regarding reinstatement.
III. ANALYSIS
In reinstatement proceedings, the party seeking reinstatement has the burden
of showing that he or she should be permitted to resume the practice of law in West
Virginia. This Court has held
[t]he general rule for reinstatement is that a disbarred attorney
in order to regain admission to the practice of law bears the
burden of showing that he presently possesses the integrity,
moral character and legal competence to resume the practice of
law. To overcome the adverse effect of the previous
disbarment, he must demonstrate a record of rehabilitation. In
addition, the court must conclude that such reinstatement will
not have a justifiable and substantial adverse effect on the
8
Syl. Pt. 2, In re Reinstatement of diTrapano, 240 W. Va. 612, 814 S.E.2d 275
(2018) (quoting Syl. Pt. 3, Comm. on Legal Ethics v. McCorkle, 192 W. Va. 286, 452
S.E.2d 377 (1994)).
8
public confidence in the administration of justice and in this
regard the seriousness of the conduct leading to disbarment is
an important consideration.[9]
And, “in assessing an application for reinstatement[,] consideration must be given to the
nature of the original offense for which the applicant was disbarred. Obviously, the more
serious the nature of the underlying offense, the more difficult the task becomes to show a
basis for reinstatement.” 10
Our first task is to examine the offenses leading to Mr. Wheaton’s
disbarment. While there were several offenses, they can generally be summarized as
follows: (1) misappropriation and conversion of client funds; (2) making material
misrepresentations to clients, courts, and counsel for the ODC; (3) failing to communicate
with clients; and (4) failing to diligently pursue cases on behalf of clients. Undeniably,
each of these offenses is serious and must serve as a backdrop in our analysis of whether
to reinstate Mr. Wheaton’s license to practice law. With that in mind, we now address
whether Mr. Wheaton has demonstrated a record of rehabilitation sufficient to “overcome
the adverse effect” of his misconduct.
We have held that “[r]ehabiliation is demonstrated by a course of conduct
that enables the court to conclude there is little likelihood that[,] after such rehabilitation is
9
Syl. Pt. 1, In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980).
10
Id. at 234, 273 S.E.2d at 571.
9
completed and the applicant is readmitted to the practice of law[,] he will engage in
unprofessional conduct.” 11 We have set out a five-factor test to evaluate a petitioner’s
rehabilitation, stating that we must consider:
(1) the nature of the original offense for which the petitioner
was disbarred, (2) the petitioner’s character, maturity, and
experience at the time of his disbarment, (3) the 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.[12]
Having just explained the seriousness of the conduct leading to Mr.
Wheaton’s disbarment, we need not address the first factor. We turn, then, to the second
factor—his character, maturity, and experience at the time of disbarment in 2005. As set
forth above, Mr. Wheaton was admitted to the bar in 1995. He worked for a single year
for the State Tax Department, and then moved to the Eastern Panhandle in 1996 to open a
solo practice. His misconduct began almost immediately upon the opening of that practice,
spanning a five-year period from 1997 through 2002. We previously expressed in Wheaton
I that “there is no dispute that [Mr. Wheaton] was inexperienced in the practice of law” at
the time his misconduct began. 13 But we found that his inexperience was tempered by the
substantial duration of the misconduct, and the egregious dishonesty involved in the
11
Syl. Pt. 2, Brown, 166 W. Va. at 226-27, 273 S.E.2d at 567.
In re Smith, 214 W. Va. 83, 85, 585 S.E.2d 602, 604 (1980) (quoting Brown, 164
12
W. Va. at 237-38, 262 S.E.2d at 446).
13
Wheaton I, 216 W. Va. at 682, 610 S.E.2d at 17.
10
continued violations. We once again find that, while Mr. Wheaton was an inexperienced
lawyer when his misconduct began, his inexperience does not justify the serious
misconduct he committed, nor does it justify the lengthy duration of the offenses.
Turning to the third factor, we must consider Mr. Wheaton’s conduct and
occupations since the time of his disbarment. As set forth above, Mr. Wheaton had a rough
start in the years immediately following the annulment of his license in 2005. From 2005
to the filing of the first petition for reinstatement in 2010, Mr. Wheaton failed to maintain
steady or gainful employment, engaged in a series of behaviors that called into doubt
whether he had been rehabilitated, and failed to satisfy any of the enumerated requirements
for his reinstatement. Those considerations formed the basis of our denial of his first
petition for reinstatement.
But, a decade has passed since Wheaton II, and the record reflects a marked
improvement in Mr. Wheaton’s conduct. Since 2011, Mr. Wheaton has been steadily
employed, though in multiple different occupations. 14 While some of those positions were
14
The ODC report indicates that Mr. Wheaton has been a program manager for a
company in Roanoke, Virginia; a corporate trainer for BrownGreer, PLC, in Richmond,
Virginia; a small business owner; and a document review professional for a company in
Richmond, Virginia. Further, at oral argument, Mr. Wheaton stated that he has held several
part time jobs, including as a delivery driver for an autoparts company. While we are
mindful that Mr. Wheaton has held numerous different positions, we commend his
continued efforts to ensure that he was consistently employed such that he could meet his
financial obligations.
11
outside of the legal field, since 2018 he has been employed as a paralegal for the city
government of Washington, D.C.
Turning to Mr. Wheaton’s conduct outside of employment, we take care to
note that Mr. Wheaton spent two years as a caregiver for his mother while she battled
leukemia, and he served in a fiduciary capacity as a trustee at his church in Roanoke,
Virginia. Further, in contrast to his last appearance before this Court in 2011, Mr. Wheaton
is now making timely child support payments and is actively working to deplete any
remaining arrearages.
Perhaps most compelling, Mr. Wheaton has made great strides in satisfying
the requirements for reinstatement we set in 2004. To reiterate, at the time of his
disbarment, we ordered that prior to reinstatement, Mr. Wheaton must: (1) pay full
restitution to Ms. Christenson, Mr. Pruden, and Ms. Mason; (2) fully satisfy the bankruptcy
judgment in the Mason matter; (3) reimburse the LDB for the costs of the disciplinary
proceedings; and (4) take an additional eighteen hours of CLE in ethics and law office
management. At this time, Mr. Wheaton has paid full restitution to his former clients, he
has entered into payment plans to satisfy the Mason judgment and to reimburse the LDB
and made payments on the same, and he has logged 19.30 hours of CLE in ethics and law
office management for the 2018-2020 reporting term. However, we are cognizant that in
Wheaton I, we specifically stated that, before Mr. Wheaton could seek reinstatement, he
was to fully satisfy the Mason judgment and that he was to have reimbursed the LDB. So,
12
the question remains whether the execution of payment plans is sufficient to satisfy those
requirements. In answering this question, we examine several of our prior opinions that
addressed the payment of restitution prior to reinstating a previously annulled license to
practice law.
First, in Lawyer Disciplinary Board v. Vieweg, 15 we reinstated a petitioner’s
law license while he was in the process of repaying substantial debts. This Court annulled
Mr. Vieweg’s law license in 1989 after it became clear he had engaged in several instances
of misconduct involving the misappropriation of client funds and conversion of other
monies. 16 As a result of those misdeeds, Mr. Vieweg owed significant debts to both former
clients and banking institutions. He petitioned for reinstatement in 1993, but began
repaying those debts prior to filing the petition. Among other things, including his
treatment for alcoholism, we considered his having taken the initiative to repay his debts
in determining whether to reinstate his license. Further, in granting the petition, we
conditioned Mr. Vieweg’s reinstatement on the “continuation of payment of past debts.” 17
15
194 W. Va. 554, 461 S.E.2d 60 (1995).
16
Id. at 556-57, 461 S.E.2d at 62-63. In fact, Mr. Vieweg initially surrendered his
license in 1988, but this Court converted his voluntary resignation to an annulment after he
pled guilty to the felony offense of knowingly submitting a false financial statement to a
bank concerning a loan in the United States District Court for the Northern District of West
Virginia.
17
Id. at 561, 461 S.E.2d at 67.
13
We recently addressed Vieweg in In re Reinstatment of Swisher. 18 This Court
suspended Mr. Swisher’s license to practice law in 1998 following two violations of the
Rules of Professional Conduct. We conditioned his reinstatement on his demonstration
that “he has satisfied in total the judgment [entered against him by a United States District
Court]” and that he pay “all costs incurred in the investigation and hearing of [the
disciplinary] matter.” 19 Mr. Swisher was also licensed to practice law in Pennsylvania,
where he was disbarred four years later. 20 As a result of his disbarment, Mr. Swisher owed
restitution to the Pennsylvania Office of Disciplinary Counsel and to the Pennsylvania
Lawyers Fund for Client Security for payments to clients affected by his misconduct, but
he failed to pay either. 21 Upon petitioning this Court for reinstatement, Mr. Swisher
contended that he would enter into a payment plan to satisfy the outstanding debts in
Pennsylvania “if made a condition of his reinstatement.” 22 He cited Vieweg to support his
position that his willingness to pay restitution in the future warranted reinstatement, but we
distinguished that case from Mr. Swisher’s by noting that “Mr. Vieweg had already begun
paying his past debts when he sought reinstatement by this Court. The same cannot be said
18
243 W. Va. 483, 845 S.E.2d 258 (2020).
19
Id. at 484, 845 S.E.2d at 259.
20
Id. at 485, 845 S.E.2d at 260.
21
Id. at 487, 845 S.E.2d at 262.
22
Id. at 490, 845 S.E.2d at 265.
14
for Mr. Swisher. He only offers to satisfy his debts if he is reinstated.” 23 We then
concluded that “[p]erhaps 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[.]” 24
Similarly, in In re Reinstatement of Drake, 25 we declined to reinstate the
license of a petitioner who had made no effort to pay the restitution he owed to former
clients. Mr. Drake had entered into an Alford/Kennedy plea to the crime of embezzlement
after he converted funds from a trust, and was ordered to make restitution to the subrogee
of that trust in the amount of approximately $57,000.00. 26 When Mr. Drake later petitioned
for reinstatement, he had made no restitution payments, nor had he even attempted to
ascertain where to send those payments, until just a few weeks before the oral argument on
his petition for reinstatement. 27 We declined to reinstate his license, and based that
23
Id.
24
Swisher, 243 W. Va. at 491, 845 S.E.2d at 266.
25
242 W. Va. 65, 829 S.E.2d 267 (2019).
26
Id. at 67, 829 S.E.2d at 269.
27
Id. at 71, 829 S.E.2d at 273. Mr. Drake argued to this Court that he had not made
restitution payments yet because, by the terms of his agreement with the trust subrogee, his
obligation to pay was only triggered upon the entry of an order of dismissal from
bankruptcy court. As the bankruptcy court had not entered that order, the obligation had
not been triggered. We were not convinced by this argument, as Mr. Drake made little
effort to ensure the entry of that order and admitted that he was not focused on the issue
until just before argument in his reinstatement matter.
15
decision in part upon our finding that he “did not prioritize restitution and did not exercise
reasonable and diligent efforts to fulfill these obligations until he came before this Court
seeking reinstatement of his law license.” 28
Mr. Wheaton’s case falls in the middle of those outlined above. First, we
reiterate that as of February 2021, he has entered into payment plans to satisfy the
$45,000.00 Mason judgment and to reimburse the LDB the $13,353.39 in costs he owed
from the underlying disciplinary proceedings. And, he has begun making payments on
both of those plans and expressed his intention to increase the amounts of those payments
in the future. So, Mr. Wheaton’s case is somewhat similar to that of Mr. Vieweg in that he
is currently making payments on his outstanding financial obligations. Second, Mr.
Wheaton’s case is not quite like Mr. Swisher’s, as Mr. Wheaton does not attempt to argue
that he will only repay his debts if he is essentially forced to do so. But, as we noted in
Swisher, making a good faith effort to begin paying restitution may be useful in establishing
that reinstatement is warranted. In that vein, this case shares some characteristics of Mr.
Drake’s petition for reinstatement. Specifically, we are cognizant that Mr. Wheaton has
only begun paying his debts relatively late in the process, so we could justifiably infer that,
like Mr. Drake, Mr. Wheaton did not “prioritize restitution.”
28
Id.
16
Nonetheless, we are persuaded that Mr. Wheaton’s efforts in making
restitution are satisfactory. The HPS and the ODC made clear that Mr. Wheaton readily
expressed his willingness to enter into payment plans on these substantial debts. That
willingness, coupled with his actually having executed payment plans for the Mason
judgment and for the costs owed to the LDB, as well as his having already begun making
payments on those plans, leads us to find that Mr. Wheaton has made a good faith effort to
begin repaying the obligations we set out in Wheaton I. Therefore, the fact that Mr.
Wheaton has not “fully satisfied” all outstanding financial obligations does not preclude
his reinstatement under these facts. That said, any reinstatement will necessarily be
conditioned on the continued repayment of those debts.
Returning to the Smith factors, we must next consider how much time has
elapsed between the time of disbarment and the current petition for reinstatement. Mr.
Wheaton was disbarred on January 20, 2005, and he filed the current petition for
reinstatement on September 26, 2018. Thirteen years have passed between the time of
disbarment and the filing of the second petition for reinstatement, and the passage of time
has certainly proven helpful in Mr. Wheaton’s case. In the first years after his disbarment,
his prospects for reinstatement were bleak, as clearly shown by our denial of his first
petition for reinstatement. But in the decade since that denial, Mr. Wheaton has made
marked improvements in his employment, his conduct, and his understanding of the duties
and responsibilities that come with being a member of the bar.
17
The last factor for our consideration of Mr. Wheaton’s rehabilitation is
whether he has present competence in legal skills. As stated throughout this opinion, Mr.
Wheaton has held several jobs since his disbarment, and many of those have been in the
legal field, including his current position as a paralegal. He indicates to the Court that
some of his duties in his current position are comparable to those performed by an attorney.
Specifically, he drafts legal memoranda, briefs, and court documents, and he engages in
regular consultation with attorneys and other legal professionals. In addition, Mr. Wheaton
logged 34.80 hours of CLE in the 2018-2020 term, 19.30 of which were in ethics and law
office management, so he has attempted to maintain competence in current legal
development. We conclude that this is sufficient to demonstrate that Mr. Wheaton has
maintained competence in legal skills such that he could resume the practice of law.
For all of these reasons, we conclude that Mr. Wheaton has demonstrated to
this Court a record of rehabilitation that indicates there is little likelihood he will engage in
future unprofessional conduct. With that in mind, we turn to the final question: whether
Mr. Wheaton’s reinstatement will have a “justifiable and substantial adverse effect on the
public confidence in the administration of justice.” We find that it would not. The ODC
does not argue that such adverse effects would result, nor do we have evidence before us
indicating that Mr. Wheaton’s return to practice would pose such a threat to the public
confidence in the administration of justice. Mr. Wheaton has demonstrated his
rehabilitation to this Court, and he has satisfied—or is in the process of satisfying—the
requirements we set forth for his reinstatement in 2004. Unlike the last time Mr. Wheaton
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petitioned this Court for reinstatement, he has clearly improved his circumstances, taken
responsibility for his misconduct, and been humbled by these experiences. Therefore, we
find that the public perception of the administration of justice would be unharmed by
reinstating Mr. Wheaton’s license to practice law.
IV. CONCLUSION
We reinstate Keith L. Wheaton’s license to practice law in West Virginia,
effective immediately, on the following conditions: (1) supervision for a period of three
years by a supervising attorney who will file monthly reports with the ODC; (2) annual
auditing of all accounts associated with his practice, if in private practice, by a certified
public accountant for a period of three years; (3) continued payment of the outstanding
balances on the Mason judgment and the costs already owed to the LDB, prioritizing the
Mason judgment in compliance with the now-executed payment plans; (4) payment of all
dues to the West Virginia State Bar; and (5) reimbursement to the LDB of the costs of the
reinstatement proceedings pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary
Procedure. The Clerk is directed to issue the mandate contemporaneously herewith.
Petition granted.
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