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In re Petition For Reinstatement of Drake

Supreme Court of West Virginia

June 11, 2019

IN RE: PETITION FOR REINSTATEMENT OF THOMAS JASON DRAKE

          Submitted: May 15, 2019

         Lawyer Disciplinary Proceeding

          Thomas Jason Drake Pro Se

          Elkview, West Virginia Petitioner

          Renee N. Frymyer, Esq. Office of Disciplinary Counsel Charleston, West Virginia Counsel for Respondent

         SYLLABUS BY THE COURT

         1. "This Court is the final arbiter of legal ethics problems and must make the ultimate decisions about publics reprimands, suspension or annulments of attorneys' licenses to practice law." Syllabus Point 3, Committee on Legal Ethics v. Blair, 174 W.Va. 494');">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 the 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, Committee 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 possess 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).

          WALKER, CHIEF JUSTICE.

         Thomas J. Drake's license to practice law in West Virginia was voluntarily annulled in 2012 after he entered an Alford/Kennedy plea[1] to felony embezzlement on charges related to his conduct while serving as trustee of a settlement fund. Specifically, Mr. Drake unlawfully withdrew $104, 853.53 from the settlement fund, $70, 798.67 of which he converted to his law firm's banking account. After the circuit court initially entered a restitution order requiring Mr. Drake to pay $56, 906.39 to the trust's subrogee, Great American, Mr. Drake later filed bankruptcy and reached a settlement with Great American for about one-half that amount ($27, 500). But, in the nearly two years since settling with Great American, Mr. Drake has failed to make any restitution payments. Now, Mr. Drake petitions this Court for reinstatement of his license. In light of the serious nature of the underlying offense, along with the lack of restitution payments, the Hearing Panel Subcommittee (HPS) and the Office of Disciplinary Counsel (ODC) recommend that we deny Mr. Drake's petition for reinstatement. We agree.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In April of 2007, the circuit court appointed Mr. Drake and Rhonda Miller as co-trustees of the trust established in Timothy Urbanic, et al. v. Appalachian Timber Services, Inc.[2] The trust was established to fund medical monitoring for class members and, if necessary, attic inspection and clean-up. The trust also funds inspections of a creosote plant to ensure compliance with environmental standards.

         At the time of Mr. Drake's appointment, the circuit court entered an order requiring that any disbursements and expenditures from the trust be made only after the court's approval. From May 2008 until January 2009, Mr. Drake and Ms. Miller followed the proper protocol by submitting itemized fees and expenses and waiting for court approval. Even after Ms. Miller relocated and the circuit court made Mr. Drake the sole trustee, Mr. Drake continued to submit fees and expenses properly for the next five months. From May 2009 until August 2011, however, Mr. Drake wrote checks to his law office from the trust fund's account without seeking court approval for any of the payments.

         Mr. Drake alleges that, in 2011, the Elk River Water Trail Project approached him seeking $28, 000 from the trust. Mr. Drake claims that he converted the full sum from the trust to his IOLTA account fully expecting the circuit court to approve the transfer. Because the circuit court only approved $7, 000, Mr. Drake claims that he returned the remaining $21, 000 to the trust.

         When he learned that Mr. Drake had withdrawn substantial amounts from the trust without court approval, the appointing circuit court judge removed him as trustee and notified the ODC who referred the matter to the West Virginia State Police. The State Police determined that Mr. Drake, while acting as sole trustee, withdrew approximately $104, 853.43 from the trust and converted approximately $70, 798.67 of those funds to his personal use. The State Police also determined that Mr. Drake created false ledgers for the trust to conceal, alter, and omit banking entries in order to skirt the court's oversight.

         In September of 2012, Mr. Drake entered an Alford/Kennedy plea by way of information to one felony count of embezzlement and was sentenced to two years of supervised probation. The following month, his law license was annulled with his consent. Upon the successful completion of his probationary period in May of 2014, Mr. Drake was ordered to make restitution to Great American, the subrogee of the trust, in the amount of $56, 906.39-to be paid in monthly installments of $2, 371.10. Mr. Drake claims that there is no accounting or itemization showing how the court arrived at this figure.

         Mr. Drake filed bankruptcy in December of 2014 claiming $390, 900.04 in liabilities, including the amount owed to Great American. Notably, Mr. Drake failed to make any payments to Great American during the seven-month period between the restitution order being entered and the automatic stay being triggered by the bankruptcy proceedings. Great American sued Mr. Drake and Ms. Miller, [3] but the suit against him was stayed pending the resolution of the bankruptcy. During the bankruptcy proceeding, Great American settled its claim with Mr. Drake in July of 2017 for $27, 500 and agreed that it would be paid in monthly installments after the bankruptcy court entered a dismissal order. Although the circuit court entered an agreed order to the new amount, relieving Mr. Drake of any obligation under the June 2014 restitution order, the bankruptcy court has not yet entered a dismissal order. Mr. Drake argues that the bankruptcy court's failure to enter the order is sufficient to excuse his failure to make restitution payments.

         Then, in May 2018, after satisfying the five-year waiting period and pursuant to Rules 3.30[4] and 3.33(b)[5] of the West Virginia Rules of Lawyer Disciplinary Procedure, Mr. Drake filed this petition for reinstatement of his law license. The ODC investigated and the HPS held a hearing to address the matter on September 27, 2018, during which numerous witnesses and Mr. Drake appeared to testify.

         The HPS concluded that Mr. Drake's reinstatement would have a justifiable and substantial adverse effect on the public confidence in the administration of justice and is, therefore, not appropriate. The HPS was troubled by the nature of Mr. Drake's underlying criminal conduct, his current financial obligations, and his failure to pay restitution. The HPS found that Mr. Drake had not shown, by clear and convincing evidence the likelihood that, if reinstated, he would not engage in unprofessional conduct again. The ODC consented to the HPS's recommendation to deny reinstatement. In February of 2019, Mr. Drake filed his request for a hearing before the Court pursuant to Rule 3.33(c)[6] of the West Virginia Rules of Lawyer Disciplinary Procedure.

         II.STANDARD OF ...


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