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McFall v. West Virginia Board of Law Examiners

Supreme Court of West Virginia

February 11, 2019

MARK W. MCFALL, Petitioner
v.
WEST VIRGINIA BOARD OF LAW EXAMINERS, Respondent

          MEMORANDUM DECISION

         The petitioner Mark W. McFall, by counsel Cheryl E. LaNasa, filed exceptions before the Court to the West Virginia Board of Law Examiners' (hereinafter "the Board") April 13, 2018, decision denying his application for admission without examination, otherwise referred to as by reciprocity, to the West Virginia Bar. The reason for the denial is that the petitioner failed to produce a certificate of good standing from each state in which he has been admitted to the practice of law, as is required pursuant to Rule 4.2(a) of the West Virginia Rules for Admission to the Practice of Law (hereinafter" W.Va. R. Admission Prac. Law"). The Board, by counsel Teresa J. Lyons, filed a response in support of its decision.

         After review and consideration of the pleadings, together with the appendix record, it is determined that this case does not involve a substantial question of law, and the Court does not disagree with the decision of the Board as to the question of law. Therefore, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure. We agree with the finding of the Board that petitioner is not eligible for admission without examination to the practice of law in West Virginia.

         The petitioner is a graduate of the Cumberland School of Law of Samford University. In November of 1988, the petitioner was admitted to the practice of law by successful bar examination in the State of Texas. In April of 1990, the petitioner was admitted to the practice of law by successful bar examination in the State of Florida. The petitioner's law practice in both Texas and Florida was primarily focused on various types of litigation. The petitioner's Texas law license was suspended as a result of nonpayment of bar dues on September 1, 2001.

          On April 26, 2002, the Supreme Court of Florida entered an emergency suspension of the petitioner's license to practice law following an allegation that the petitioner misappropriated client funds while serving as an escrow agent. Following the emergency suspension, a formal disciplinary complaint was filed against the petitioner. The Supreme Court of Florida then suspended the petitioner's license to practice law for three years, to be followed by a three-year probationary period. Following his suspension, the petitioner did not apply for reinstatement of his Florida law license.

         While suspended from the practice of law in Florida, the petitioner was admitted to the practice of law by successful bar examination in the State of Tennessee in October of 2010. Following his admission to the Tennessee Bar, the petitioner again primarily focused his law practice on various types of litigation.

         On March 31, 2017, the petitioner submitted his application to the Board for bar admission without examination pursuant to Rule 4.0 of the W.Va. R. Admission Prac. Law. As part of his application materials, he submitted only a certificate of good standing from Tennessee. After participating in an interview conducted by the 12th District Character Committee, the bar admissions administrator informed the petitioner that the Board determined that he does not qualify for admission without examination to the practice of law in West Virginia because he failed to produce a certificate of good standing from each state in which he has been admitted to the practice of law, pursuant to Rule 4.2(a).

         Following the Board's denial of admission without examination, the petitioner timely requested an administrative hearing pursuant to Rule 6.0. An administrative hearing was held on February 12, 2018. During the hearing, the petitioner presented evidence in support of his character and fitness to engage in the practice of law.

         The hearing examiner issued findings and conclusions in a report dated March 22, 2018. The hearing examiner noted that the sole issue for determination was the petitioner's compliance with the provisions of Rule 4.2(a). The hearing examiner then concluded that the petitioner failed to produce a certificate of good standing from each state in which he has been admitted to the practice of law, pursuant to Rule 4.2(a), and, therefore, recommended that the Board's denial of the petitioner's application for admission without examination be affirmed.

         The Board reviewed the hearing examiner's report, together with the transcript of the hearing, the briefs filed by both parties, and the petitioner's application file. The Board voted to deny the petitioner's application for admission without examination based upon his failure to satisfy the provisions of Rule 4.2(a). He could not produce a certificate of good standing from each state in which he has been admitted to the practice of law as required by Rule 4.2(a).

         This Court is vested with the authority under article VIII, section one of the West Virginia Constitution "to define, regulate and control the practice of law in West Virginia." Syl. Pt. 1, Lane v. W.Va. State Bd. of Law Examiners, 170 W.Va. 583, 295 S.E.2d 670 (1982). Pursuant to this authority, this Court has promulgated the Rules.

         Pursuant to Rule 6(e), the petitioner filed exceptions with this Court to the Board's decision. We consider this matter under the following standard of review:

This Court reviews de novo the adjudicatory record made before the West Virginia Board of Law Examiners with regard to questions of law, questions of application of the law to the facts, and questions of whether an applicant should or should not be admitted to the practice of law. Although this Court gives respectful consideration to the Board of Law Examiners' recommendations, it ultimately exercises its own independent judgment. On the other hand, this Court gives substantial deference to the Board of Law Examiners' findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record.

Syl. Pt. 2, Matter of Dortch, 199 W.Va. 571, 486 S.E.2d 311 (1997).

         The petitioner argues that Rule 4.2(a) requires that an applicant for admission without examination only submit a certificate of good standing for each jurisdiction in which he has been admitted to practice law and currently maintains an active status. Therefore, the petitioner asserts that because he submitted a certificate of good standing from Tennessee, which is the only other jurisdiction in which he currently maintains an active law license, he has complied with the provisions of Rule 4.2(a). The petitioner asks the Court to find that he has satisfied the requirements set forth in Rule 4.2(a), ...


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