| Thomas W. Smith, Esq.
Charleston, West Virginia
Attorney for Appellant Mark L. McMillian
| John M. Hedges, Esq.
Byrne & Hedges
Morgantown, West Virginia
Attorney for Appellee West Virginia Board of Law Examiners
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.
Syllabus Point 2, Matter of Dortch, 199 W. Va. 571, 486 S.E.2d 311
In this proceeding, Mark L.
McMillian prays that this Court reject a recommendation of the West Virginia
Board of Law Examiners and admit him to the practice of law in the State of
Mr. McMillian's application
for admission disclosed that in 1995, he was convicted and imprisoned for a
federal felony arising out of illegal electronic eavesdropping. Further, it
appeared that in 1987, Mr. McMillian had been discharged from his position as
deputy sheriff of Kanawha County for seeking reimbursement from public funds
for taking an unofficial guest on an extradition assignment, in violation of
the statutory law of the State. The facts of Mr. McMillian's discharge had been
previously discussed by this Court in McMillian v. Ashley, 193 W. Va.
269, 455 S.E.2d 921 (1995), a civil action growing out of the dismissal. Those
facts showed that Mr. McMillian, as a deputy sheriff, was assigned to proceed to the State of Florida to assume custody of a felony fugitive, and
return the fugitive to West Virginia. He was accompanied on the trip by a secretary
in the Kanawha County Sheriff's Department. Upon arriving in Tampa, Florida,
Mr. McMillian elected to spend the first night, along with the secretary, at
a luxury resort in St. Petersburg, Florida. The following night, they stayed
in a Holiday Inn in Seabring, Florida. Upon his return to West Virginia, Mr.
McMillian sought reimbursement for his personal expenses from his employer,
the Kanawha County Sheriff's Department, including reimbursement for the secretary's
meals, as well as for the additional costs incurred in securing a double occupancy
When Mr. McMillian appeared
before the 8th District Character Committee, he openly answered questions relating
to his background, including the conviction, and the Committee found that he
was morally fit to practice law unless the felony conviction per se rendered
him morally unfit. The District Character Committee's findings were transmitted
to the West Virginia Board of Law Examiners, and the Board interviewed Mr. McMillian
on November 11, 1999. After the interview, the Board scheduled a further hearing
before John Fowler, Esquire, a hearing examiner. At the hearing, evidence was
taken regarding Mr. McMillian's 1995 conviction, on his discharge as a deputy
sheriff, and on the question of whether he had intentionally absented himself
from the United States when it appeared that he would be prosecuted on the eavesdropping
charge. Extensive character and other evidence was also introduced. After the
conclusion of the hearing, Mr. Fowler, on March 28, 2000, issued a lengthy written opinion in which he found that Mr. McMillian
possessed the requisite character to practice law and recommended that he be
admitted to practice in the State of West Virginia.
In spite of Mr. Fowler's recommendation,
the West Virginia Board of Law Examiners, on May 12, 2000, issued a final recommendation
to this Court in which the majority of the Board recommended against Mr. McMillian's
admission to the practice of law. Among the factors leading to its conclusion
were Mr. McMillian's wiretapping conviction and the facts surrounding his discharge
as a deputy sheriff of Kanawha County in 1987.
In the present proceeding,
Mr. McMillian prays that this Court disregard the recommendation of the Board
of Law Examiners and admit him to the practice of law. He argues that while
he was convicted of the federal felony, that matter has been concluded and that
he has readily admitted that his conduct was inexcusable. He also argues that
the circumstances surrounding his discharge as a deputy sheriff should not be
taken as reflecting on his moral fitness to practice law and that the overall
circumstances of his case suggest that he is morally fit to practice law.
In Syllabus Point 2 of Matter
of Dortch, 199 W. Va. 571, 486 S.E.2d 311 (1997), this Court discussed
the review of an individual's application for admission to the practice of law
in the State of West Virginia. The Court stated:
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.
In the present case, the Board
of Law Examiners made certain findings of fact relating to the applicant's eavesdropping
conviction. The Board found:
The conviction is of relatively recent vintage. By your own admission, you knew that you were engaged in criminal activity. This did not occur during your youth, but when you were approximately forty years old, and presumably were of sufficient maturity to understand the consequences of your actions. Not only did you knowingly violate the law, you did so for financial compensation. The wire-tapping was undertaken in conjunction with ongoing litigation and involved, or potentially involved, the interception of confidential attorney/client communications.
The Board of Law Examiners
also focused on the facts surrounding Mr. McMillian's earlier dismissal as a
deputy sheriff of Kanawha County. The Board found that the acts leading to the
dismissal constituted seriously wrongful conduct. The Board also found: [Y]ou
committed these acts while occupying a position of public trust, not unlike
a lawyer, and when by training, experience, and maturity, you should have known
Finally, the Board indicated
that it was troubled by Mr. McMillian's absence from the country while the federal
felony charges were pending against him. The Board stated:
The testimony has differed regarding whether one purpose of such extended absence, which you have conceded was not initially planned, was to gain an advantage in plea negotiations with the federal authorities. In any event, as it appears to the Board that plea negotiations were conducted during your extended absence, which resulted in a reduction of charges in exchange for your testimony, it causes the Board concern regarding your ability to conform your future conduct to the requirements of law.
The Court has examined the
record in the present case and has found that it supports the findings of the
Board of Law Examiners relating to Mr. McMillian's felony conviction. The conviction
did grow out of intentional, illegal eavesdropping which occurred when Mr. McMillian was of mature years and did involve ongoing litigation
and the interception of confidential attorney-client communications. Similarly,
Mr. McMillian did participate in the activity which lead to his discharge as
a deputy sheriff. The Court characterized that conduct as follows McMillian
v. Ashley, supra:
A deputy sheriff who takes an unofficial guest on an official assignment and then seeks reimbursement for public funds for additional expenses occasioned thereby, violates the statutory law of West Virginia. Such act is, by its very nature and for obvious reasons, seriously wrongful conduct, potentially damaging to the rights and interests of the public, and justifies his dismissal.
193 W. Va. at 273, 455 S.E.2d at 925.
On the other hand, evidence
was introduced showing that Mr. McMillian is now remorseful about his prior
wrongdoing, that he was candid and made full disclosure in the filing and the
proceedings relating to his application, and that he has lived a relatively
constructive life since released from incarceration. Further, a number of character
witnesses have expressed the opinion that he is morally fit to be admitted to
the practice of law. Finally, in this Court's view, the evidence on whether
Mr. McMillian intentionally absented himself from this country to avoid prosecution
on the eavesdropping charge, is somewhat equivocal.
Although in Matter of Dortch,
supra, the Court indicated that 11 factors should be considered in assessing
an applicant's fitness for practice of law, the purpose of examining those factors
is to determine whether there is a likelihood that an applicant will conduct himself
in a manner beneficial to the public interest, and in a manner which will inspire
public confidence in the integrity of the legal profession.
In the present case, Mr. McMillian,
as a mature adult, twice engaged in conduct which has thrown into question his
respect for the law, conduct of a type which, if committed by a practicing lawyer
would inevitably diminish seriously the public's confidence in the legal profession.
The repetition of the conduct suggests the possibility that similar conduct
could occur again. Its nature, its gravity, and the fact that in each case it
reflected a lack of concern or respect for the law suggests that the recommendation
of the Board of Law Examiners was supported by reliable, probative, and substantial
In light of this, the Court
believes that, in spite of the fact that Mr. McMillian has introduced evidence
that he is remorseful, that he has been open, that many consider him fit to
practice law, and that there are more positive than negative factors among the
11 mentioned in Matter of Dortch, supra, Mr. McMillian has failed
to show that it is likely that his conduct will be beneficial to the public
interest or will inspire confidence in the integrity of the judicial profession. In short, the Court believes that Mr. McMillian
has failed to show that he is sufficiently morally fit to practice law in the
State of West Virginia.
For the reasons stated, the
petition of Mr. McMillian to practice law in the State of West Virginia is denied.