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No. 27866 -- In Re Mark L. McMillian
Starcher, J., concurring:
I concur with the majority opinion's
refusal to approve Mr. McMillian's admission to the practice of law at this
time. I write separately to point out that nothing in the majority's per
curiam opinion, in which I fully join, would preclude Mr. McMillian, after
a period of time, from reapplying for the privilege of practicing law in West
Virginia. Allowing a longer period to pass before reapplying for admission may
give Mr. McMillian the opportunity to demonstrate that he has been rehabilitated.
Rehabilitation is at the heart
of our American judicial system. 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). This same principle
of rehabilitation applies to an applicant seeking initial admission to the practice
A felony is a strong negative
to overcome, but, depending on the gravity of the felony, one that may be overcome
with time and exemplary behavior. Time provides the applicant an opportunity
to build a record of good character and integrity. In Re Brown,
166 W.Va. at 235, 273 S.E.2d at 572. In accord, Matter of Hiss, 368 Mass.
447, 460 n.19, 333 N.E.2d 429, 437 n.19 (1975) ([A] long time span between disbarment
and petition for reinstatement, during which the petitioner's conduct was
exemplary, reinforces his claim to rehabilitation.).
If Mr. McMillian hopes to
ever be admitted to the West Virginia State Bar sometime in the future, he
might be wise to put his legal education to use in both his employment and
private life -- e.g., working as a paralegal and volunteering at a
legal aid office. In this way, Mr. McMillian might demonstrate his rehabilitation
through his commitment to the law. See In Re Brown, 166 W.Va.
at 235, 273 S.E.2d at 572 (A further important area of inquiry is the
applicant's activity and conduct since the date of his disbarment, since it
is upon this objective record that good character must be judged.).
In addressing Mr. McMillian's
concern that this Court is holding him to a higher standard than we hold disbarred
lawyers, I note that Mr. McMillian is different from most other applicants
seeking admission or reinstatement to the practice law. His misconduct was
not the result of a youthful indiscretion, but rather was the act of a former
law enforcement officer who certainly should have known better. See
In Re Brown, 166 W.Va. at 235, 273 S.E.2d at 572 (Another factor
to be considered on reinstatement is the maturity and experience of the practitioner
at the time of his disbarment -- a recognition that a youthful and inexperienced
attorney may have blundered as a result of inexperience rather than as a result
of deliberate calculation.).
Lawyers and those who wish
to be lawyers are held to a high standard because of the unique position that they
hold in our society. Woven throughout our disciplinary cases involving
attorneys is the thought that they occupy a special position because they
are actively involved in administering the legal system whose ultimate goal
is the evenhanded administration of justice. Integrity and honor are critical
components of a lawyer's character as are a sense of duty and fairness.
In Re Brown, 166 W.Va. at 232, 273 at 570. By not admitting Mr. McMillian
to the practice of law at this time, we are merely holding him to the same
high standard that we hold others who wish to practice law in West Virginia.
Considering the offenses that
Mr. McMillian committed, as a former law enforcement officer, he should be
grateful that this Court is simply denying his admission to practice law at
this time, as opposed to making an explicit holding that he may never practice
law in the State of West Virginia.