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In re Petition for Reinstatement of diTrapano

Supreme Court of West Virginia

June 5, 2018

IN RE: PETITION FOR REINSTATEMENT OF L. DANTE DITRAPANO

          Submitted: April 24, 2018

          Lawyer Disciplinary Proceeding

          L. Dante diTrapano Pro Se Charleston, West Virginia Petitioner

          Charles Bagley, Esq. Huntington, West Virginia W. Bradley Sorrells, Esq. Charleston, West Virginia Counsel for Amicus Curiae West Virginia Judicial and Lawyer Assistance Program

          Joanne M. Vella Kirby, Esq. Office of Disciplinary Counsel Charleston, West Virginia Counsel for Respondent

         SYLLABUS

         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');">192 W.Va. 286, 452 S.E.2d 377 (1994).

         3. "The general rule for reinstatement is that a disbarred attorney in order to regain admission to the practice of law bears the burden of showing that he presently possesses the integrity, moral character and legal competence to resume the practice of law. To overcome the adverse effect of the previous disbarment[, ] he must demonstrate a record of rehabilitation. In addition, the court must conclude that such reinstatement will not have a justifiable and substantial adverse effect on the public confidence in the administration of justice and in this regard the seriousness of the conduct leading to disbarment is an important consideration." Syllabus Point 1, In re Brown, 166 W.Va. 226');">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');">166 W.Va. 226, 273 S.E.2d 567 (1980).

          OPINION

          WALKER, JUSTICE

         For the second time, L. Dante diTrapano petitions this Court for reinstatement of his license to practice law in West Virginia, which was suspended in 2006 and later annulled as a result of multiple, serious acts of misconduct and two felony convictions. When we denied his first petition four years ago, we concluded that Mr. diTrapano did not satisfy his burden of showing that he possessed the integrity and moral character to resume the practice of law. He now presents evidence that he has maintained sobriety and employment, served his criminal sentence, entered into a voluntary five-year monitoring agreement with the West Virginia Judicial and Lawyer Assistance Program (WVJLAP), accepted responsibility for his actions, mentored other lawyers struggling with addiction, and made full restitution. The Hearing Panel Subcommittee (HPS) found that his law license should be reinstated with conditions upon completion of his WVJLAP monitoring agreement. The Office of Disciplinary Counsel (ODC), however, urges us to find that Mr. diTrapano's two felony convictions altogether preclude his reinstatement, regardless of his demonstrated rehabilitation. Based upon the commendable record of rehabilitation and actions since his first petition, we now reinstate Mr. diTrapano's law license, but with conditions, including two years of supervised practice and continued compliance with his five-year WVJLAP monitoring agreement.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Mr. diTrapano began abusing illegal drugs as a teenager in Charleston, West Virginia, and was arrested several times in his early twenties for both possession of illegal drugs and driving under the influence. In 1988, Mr. diTrapano began in-patient treatment for addiction and on February 22, 1989, he gained sobriety. Over the next fifteen years, Mr. diTrapano earned an undergraduate degree, then graduated summa cum laude from John Marshall Law School. He was admitted to practice law in both West Virginia and Georgia. Following law school, Mr. diTrapano returned to Charleston and worked at the law firm of DiTrapano, Barrett, & DiPiero. But he stopped regularly attending twelve-step meetings, as had been his habit since 1989.

         In 2004, Mr. diTrapano sought medical care for a cough with chest pain and wheezing, but did not inform his treating physician of his history of substance abuse. The physician prescribed him a cough syrup containing hydrocodone and Mr. diTrapano became addicted to the cough syrup and abused it for the next year. Following the accidental drowning of a five-year-old child in his family's pool, Mr. diTrapano began abusing oxycodone and, eventually, crack cocaine.

         In 2006, Mr. diTrapano traveled to Florida for a drug rehabilitation program. However, rather than entering treatment, he engaged in additional drug use and was arrested for possession of cocaine. Three weeks later, a federal search warrant was executed on his home in Charleston. Officers seized several loaded firearms, ammunition, and crack cocaine. Mr. diTrapano was arrested again shortly thereafter in Georgia and charged with driving on a suspended license and possession of cocaine. Then, approximately two months later, Mr. diTrapano was arrested in West Virginia for, among other things, driving on a suspended license and having no motor vehicle insurance.

         On June 14, 2006, Mr. diTrapano was indicted in the United States District Court for the Southern District of West Virginia on two separate felony counts: (1) knowingly possessing various firearms in and affecting interstate commerce while being an unlawful user of and addicted to a controlled substance, in violation of 18 U.S.C. § 922(g)(3) and 18 U.S.C. § 924(a)(2); and (2) knowingly making a false statement and representation to a licensed dealer of firearms regarding his dependence on a controlled substance in violation of 18 U.S.C. § 924(a)(1)(A). Mr. diTrapano was arrested the following day pursuant to a federal arrest warrant.

         Later that month, the ODC filed a petition seeking the immediate temporary suspension of Mr. diTrapano's license to practice law. That same day, he pleaded guilty to one count of the federal indictment, after which he was released on bond and ordered to report to the Prestera Center in Huntington, West Virginia to complete a twenty-eight day substance abuse treatment program. Following this program, Mr. diTrapano was released on conditional home confinement pending sentencing. But Mr. diTrapano violated the terms of his release and, as a result, it was revoked in September of 2006. Right away, the ODC supplemented its petition to this Court seeking immediate temporary suspension of Mr. diTrapano's law license. We granted the ODC's petition on September 14, 2006.

          In August of 2006, Mr. diTrapano was sentenced in federal court to a term of imprisonment of six months and a term of three years supervised release with a recommendation that he participate in a substance abuse treatment program. After serving his sentence but while still on supervised release, Mr. diTrapano was again arrested on April 1, 2007, and charged with simple possession of methamphetamine. Nine days later, he tested positive for cocaine and morphine. The federal court revoked Mr. diTrapano's supervised release and ordered that he be imprisoned for two years without any subsequent supervised release.

         On November 16, 2006, the ODC filed an amended petition seeking the annulment of Mr. diTrapano's law license based upon Rule 3.18 as a result of his felony conviction of a crime involving moral turpitude and professional unfitness. The petition also alleged that Mr. diTrapano violated Rule 8.4(b) of the Rules of Professional Conduct, which states that it is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." On May 10, 2007, this Court annulled Mr. diTrapano's law license. His Georgia law license was annulled the following year.

         In 2009, following his release from federal prison, the United States Attorney filed an information charging that in 2005, Mr. diTrapano violated 18 U.S.C. § 1014 (2001) by making false representations to a federally-insured bank to obtain a $500, 000 loan. The following month, Mr. diTrapano pleaded guilty to the felony charge based on stipulated facts. Relevant here, those stipulated facts recite that Mr. diTrapano and his client intended to invest in a $500, 000 project together at $225, 000 each, but that Mr. diTrapano forged his client's signature to obtain the full $500, 000 loan in his client's name. The stipulated facts further stated, however, that Mr. diTrapano used only $35, 000 of the total $500, 000 loan for non-loan related purposes.

         The court accepted the plea and sentenced Mr. diTrapano to one day of imprisonment, five years supervised release, and 1, 000 hours of community service. In 2012, the federal district court denied Mr. diTrapano's motion for early termination of his supervised release. Mr. diTrapano completed supervised release on January 14, 2015.

         A. Mr. diTrapano's First Reinstatement Petition

         On June 1, 2012, pursuant to Rules 3.30 and 3.33 of the Rules of Lawyer Disciplinary Procedure, Mr. diTrapano filed a petition for reinstatement of his law license in West Virginia. The ODC commenced an investigation and held two hearings to address the matter, during which numerous witnesses appeared to testify on behalf of Mr. diTrapano. Upon its review, the HPS concluded that Mr. diTrapano had "presented an impressive array of witnesses who testified at the hearing, and individuals who provided letters in support" which "clearly support [Mr. diTrapano's] reinstatement." Further, the HPS determined that Mr. diTrapano's "addictions were a major mitigating factor" to the "egregious" nature of his two felony convictions. But the HPS was cautious. Despite finding that Mr. diTrapano "has proved a record of rehabilitation by clear and convincing evidence, " the HPS noted that a lengthy period of sobriety had preceded Mr. diTrapano's 2004 relapse. As a result, the HPS "recommend[ed] strong support and monitoring to be included in any conditions for reinstatement."

         Additionally, the HPS concluded that even though Mr. diTrapano's federal sentence of supervised release was intended to be "rehabilitative rather than punitive, " it could not conclude "that the reinstatement of [Mr. diTrapano's] law license [would] not have a substantial adverse effect on the public in the administration of justice so long as [Mr. diTrapano] [was] serving his sentence of supervised release." Ultimately, the HPS recommended that Mr. diTrapano's "law license be reinstated without further petition or hearings beginning at the end of [Mr. diTrapano's] satisfactory completion and termination of his sentence of supervised release, " subject to additional conditions.

         Following the HPS's recommendation, this Court granted the ODC's request to consider this matter and on June 18, 2014, we declined Mr. diTrapano's request to reinstate his law license. We found that he had not then satisfied his burden of showing that he possessed the integrity and moral character to resume the practice of law. We further concluded that reinstatement at that time would have a justifiable and substantial adverse effect on the public's confidence in the administration of justice.

          B. Mr. diTrapano's Current Reinstatement Petition

         Two years later, on September 16, 2016, Mr. diTrapano filed a second petition for reinstatement. The ODC investigated and filed an initial report with the HPS on June 26, 2017 and an amended report on July 28, 2017. The HPS held hearings on September 19-20, 2017. In addition to Mr. diTrapano's own testimony, the HPS heard testimony on Mr. diTrapano's behalf from William Stuart Calwell (lawyer and Mr. diTrapano's employer), W. Brad Sorrells (lawyer and Mr. diTrapano's peer mentor in WVJLAP), Dwaine Osborne (friend of Mr. diTrapano), George Daughtery (lawyer and former Executive Director of WVLAP), Teri diTrapano (Mr. diTrapano's wife), ...


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