STATE OF WEST VIRGINIA

At a Regular Term of the Supreme Court of Appeals continued and held at Charleston, Kanawha County, on the 6th day of May, 1999, the following order was made and enetered:

IN RE: AMENDMENTS TO RULES 1, 2.4, 2.5, 2.6, 2.8, 2.9,
2.10, 2.12, 2.13, 3.1, 3.2, 3.4, 3.5, 3.6, 3.8, 3.10, 3.18, 3.19, 3.26, 3.28
AND 4 OF THE RULES OF LAWYER DISCIPLINARY PROCEDURE

On this day came the Court and proceeded to consider amendments to Rules 1, 2.4, 2.5, 2.6, 2.8, 2.9, 2.10, 2.12, 2.13, 3.1, 3.2, 3.4, 3.5, 3.6, 3.8, 3.10, 3.18, 3.19, 3.26, 3.28 and 4 of the Rules of Lawyer Disciplinary Procedure, and upon consideration thereof, doth hereby approve the amendments, effective July 1, 1999. The amended rules will apply to all matters pending before the Lawyer Disciplinary Board on the effective date. Deletions are indicated by strike-throughs and additions are indicated by underscoring.

Rule 1. Lawyer Disciplinary Board.

The standard of professional ethics and conduct of the bench and bar is of the highest importance to the people of the State of West Virginia and to the members of the legal profession. Every member of the legal profession shall observe the highest standards of professional conduct. In furtherance of this goal, the Supreme Court of Appeals does hereby establish a Lawyer Disciplinary Board [Board] to investigate complaints of violations of the Rules of Professional Conduct promulgated by the Supreme Court of Appeals to govern the professional conduct of those admitted to the practice of law in West Virginia or any individual admitted to the practice of law in another jurisdiction who engages in the practice of law in West Virginia and to take appropriate action in accordance with the provisions of the Rules of Lawyer Disciplinary Procedure. The Board shall be exempt from the payment of filing fees in all proceedings.

Rule 2.4. Evaluation and investigation of complaints.

(a) The Office of Disciplinary Counsel shall evaluate all information coming to its attention by complaint or from other sources alleging lawyer misconduct or incapacity investigate all complaints of violations of the Rules of Professional Conduct made against lawyers. The Office of Disciplinary Counsel may refer matters to committees of The West Virginia State Bar for resolution or attempt to informally resolve the matter without docketing a complaint. If the information alleges facts that, if true, would constitute a violation of the Rules of Professional Conduct, the Office of Disciplinary Counsel shall docket a complaint and conduct an investigation. The Office of Disciplinary Counsel shall also conduct such investigations as may be directed by the Investigative Panel of the Lawyer Disciplinary Board. The Office of Disciplinary Counsel may initiate investigations on its his or her own. The Office of Disciplinary Counsel may obtain from the Chairperson of the Investigative Panel or the Clerk of the Supreme Court of Appeals a subpoena for evidence and the testimony of witnesses and the production of documents for the investigation of docketed complaints. The Chairperson of the Investigative Panel or the Clerk of the Supreme Court of Appeals shall issue a subpoena requiring such person to appear before the Office of Disciplinary Counsel to produce all documents and give evidence on the matters in question. Any failure to obey such subpoena may be punished by contempt.

(b) Upon conclusion of the investigation of a docketed complaint, the complaint shall be:

(1) dismissed by Chief Lawyer Disciplinary Counsel if there is no evidence of a violation of the Rules of Professional Conduct. The complainant and respondent shall be notified in writing of the dismissal. The complainant may file a written objection which shall be reviewed by the Investigative Panel; or

(2) reported by the Office of Disciplinary Counsel to the Investigative Panel, pursuant to Rule 2.8 herein.

(c) Chief Lawyer Disciplinary Counsel shall make a monthly report to the Investigative Panel Chairperson of all matters not docketed and all complaints dismissed. The Chairperson may:

(1) direct that any matter not previously docketed be docketed as a complaint and investigated; and

(2) direct that any dismissed docketed complaint be reported to the Investigative Panel pursuant to Rule 2.8 herein for review upon notice to the complainant and respondent.

Rule 2.5. Response to complaints.

Prior to filing a report with the an Investigative Panel or closing a complaint with the approval of the Investigative Panel Chairperson or his or her designee, the Office of Disciplinary Counsel shall notify the respondent involved in writing of the nature of the complaint. The respondent shall have ten twenty days after the date of the written notice to file a written response to the complaint. For good cause shown, the Office of Disciplinary Counsel may extend the time for filing such pleadings. The response shall be verified by the respondent.

Rule 2.6. Confidentiality.

The details of complaints filed with or investigations conducted by the Office of Disciplinary Counsel shall be confidential, except that when a complaint has been filed or an investigation has been initiated, the Office of Disciplinary Counsel or the lawyer may release information confirming or denying the existence of a complaint or investigation, explaining the procedural aspects of the complaint or investigation, or defending the right of the lawyer to a fair hearing. Prior to the release of information confirming or denying the existence of a complaint or investigation by the Office of Disciplinary Counsel, reasonable notice shall be provided to the lawyer.

Rule 2.8. Report on complaints.

(a) When it is evident on the face of a complaint that it is frivolous or patently unfounded or if, after investigation, the complaint is unfounded or does not state proper or sufficient grounds for the exercise of the jurisdiction of the Lawyer Disciplinary Board, the Office of Disciplinary Counsel may, with the approval of the Chairperson of the Investigative Panel or his or her designee, issue a brief explanatory statement in support of its decision to close the complaint. If issued, a copy of the brief explanatory statement shall be provided to the respondent.

(b) As to all other each complaints received and investigations conducted by the Office of Disciplinary Counsel, a written report may shall be filed with the Investigative Panel. The report may shall recommend whether the Office of Disciplinary Counsel believes there is probable cause to formally charge the lawyer with a violation of the Rules of Professional Conduct. The report may shall include a copy of any written response by the lawyer, together with a list of documents, affidavits, or other material that has been collected or submitted in connection with the complaint or investigation.

Rule 2.9. Review of complaints.

(a) Within sixty days after the date of a report by the Office of Disciplinary Counsel, the Investigative Panel shall file a written decision regarding whether it believes there is probable cause to formally charge the lawyer with a violation of the Rules of Professional Conduct; whether the matter should be investigated further by the Office of Disciplinary Counsel; or whether the matter should be referred for mediation in accordance with the Rules of Procedure for Court-Annexed Mediation.

(b) When it has been determined that probable cause does not exist, the Investigative Panel shall issue a brief explanatory statement in support of its decision to close the complaint. This statement, and a copy of the initial complaint, shall be made available to the public.

(c) When it has been determined that probable cause does exist, but that formal discipline is not appropriate under the circumstances, the Investigative Panel shall issue a written admonishment to the respondent, who has fourteen days after its receipt to object. The written admonishment shall be available to the public, but shall not be reported to any other jurisdiction in which the respondent is licensed to practice law. If the Office of Disciplinary Counsel or the respondent files a timely objection to the written admonishment, the Investigative Panel shall file a formal charge with the Clerk of the Supreme Court of Appeals. Admonishment shall not be administered if (1) the misconduct involves the misappropriation of funds; (2) the misconduct resulted or will likely result in substantial prejudice to a client or other person; (3) the respondent has been disciplined by the Supreme Court of Appeals in the last three years ; (4) the misconduct is of the same nature as misconduct for which the respondent has been disciplined by the Supreme Court of Appeals in the last five years; (5) the misconduct involves dishonesty, deceit, fraud, or misrepresentation by the respondent; (6) the misconduct constitutes a crime that adversely reflects on the respondent's honesty, trustworthiness, or fitness as a lawyer; or (7) the misconduct is part of a pattern of similar misconduct.

(d) When it has been determined that probable cause does exist, and that formal discipline is appropriate, the Investigative Panel shall file a formal charge with the Clerk of the Supreme Court of Appeals. After the filing and service of formal charges, all documents filed files with the Clerk of the Supreme Court of Appeals and the Hearing Panel Subcommittee shall be available to the public.

Rule 2.10. Filing of formal charges.

After reasonable notice to the Office of Disciplinary Counsel and the lawyer, the formal charge shall be filed by the Investigative pPanel with the Clerk of the Supreme Court of Appeals. The formal charge shall inform the lawyer of the right to file a written response within thirty days of the date of the charge service of the charge as set forth in Rule 2.11.

Rule 2.12. Response to formal charges.

The respondent may file responsive pleadings as provided in the West Virginia Rules of Civil Procedure. An answer The response shall be verified by the respondent. Any such pleadings shall be filed by the respondent with the Clerk of the Supreme Court of Appeals and the Office of Disciplinary Counsel not more than thirty days after service of the formal charges. For good cause shown, the Office of Disciplinary Counsel may extend the time for filing such pleadings.

Rule 2.13. Failure to file response.

The failure to file a response to the complaint formal charges shall be deemed an admission of the factual allegations contained therein. A Hearing Panel Subcommittee may proceed to issue a recommended disposition based upon such admission upon motion made by the Office of Disciplinary Counsel and heard telephonically or in person by the Hearing Panel Subcommittee. Notwithstanding the failure of the lawyer to file a responsive pleading, a In its discretion, the Hearing Panel Subcommittee may proceed with a hearing, pursuant to Rule 3.6. provided that all evidence in support of the charge shall be heard by the Hearing Panel in a public hearing or filed in the course of a public hearing.

Rule 3.1. Membership.

The Hearing Panel shall consist of twelve members, with eight members of The West Virginia State Bar and four members of the public. The Hearing Panel shall be divided into four Hearing Panel Subcommittees, with two members of The West Virginia State Bar and one member of the public. Each Hearing Panel Subcommittee shall designate one of its lawyer members to act as Subcommittee Chairperson for a specific disciplinary matter.

Rule 3.2. Quorum.

Three members of a Hearing Panel Subcommittee shall constitute a quorum. A Hearing Panel Subcommittee shall act only with the concurrence of a majority of those present and voting, with the exception that the Hearing Panel Subcommittee Chairperson may conduct all prehearing conferences and individually rule upon all nondispositive motions. The Subcommittee Chairperson may hear all dispositive motions and render an initial decision which must be confirmed by a majority of the other members of the Hearing Panel Subcommittee. Hearing Panel Subcommittees may deliberate and issue decisions in person, by telephone conference, or by written correspondence.

Rule 3.4. Prehearing Discovery and Time and place of hearing.

All discovery matters shall be governed by the Rules of Civil Procedure and shall be completed within ninety days from the date of the filing of formal charges. Within 20 days from the date of service of the Statement of Charges, or at least 60 days prior to the date of the scheduled hearing, whichever is sooner, the Office of Disciplinary Counsel shall (a) provide the respondent with the complete identity, address and telephone number of any person with knowledge about the facts of any of the charges; provide a copy of any statements of any such person in the possession or under the control of Disciplinary Counsel or which can be reasonably obtained by Disciplinary Counsel; provide a list of the proposed witnesses to be called at the hearing, including their addresses, telephone numbers, and a summary of their anticipated testimony; provide a disclosure of any trial expert pursuant to the requirements of Rule 26(b)(4) of the West Virginia Rules of Civil Procedure; provide inspection and copying of the results of any reports of physical or mental examinations or scientific tests or experiments; and provide a list and copy of any proposed exhibit to be used at the hearing. Disciplinary Counsel shall not be required to furnish or produce any materials which would contain opinion work product information or which would be violative of the attorney/client privilege between the Office of Disciplinary Counsel and the Investigative Panel; and (b) Disciplinary Counsel shall be required to disclose any exculpatory evidence within 20 days from the date of service of the Statement of Charges, with a continuing duty to do so throughout the disciplinary process, which information would in any way bear on the issue of the charges or the recommended discipline. Any documents or information not disclosed by Disciplinary Counsel under a claim of privilege shall be listed and sufficiently described so that the opposing party can determine whether to contest such claim of privilege.

Within 30 days after receiving Disciplinary Counsel's mandatory discovery, the respondent shall provide the Office of Disciplinary Counsel with the complete identity, address and telephone number of any person with knowledge about the facts of any of the charges; provide a list of the proposed witnesses to be called at the hearing, including their addresses, telephone numbers, and a summary of their anticipated testimony; provide a disclosure of any trial expert pursuant to the requirements of Rule 26(b)(4) of the West Virginia Rules of Civil Procedure; provide inspection and copying of the results of any reports of physical or mental examinations or scientific tests or experiments; and provide a list and copy of any proposed exhibit to be used at the hearing.

The respondent shall be entitled to depose the complainant or complainants on any charge. No other depositions or other method of discovery shall be permitted except upon motion to the Chairperson of the Hearing Panel Subcommittee and only upon a showing of good cause for such additional discovery. The Chairperson of the Hearing Panel Subcommittee shall have authority to hear and resolve objections to discovery. Unless otherwise ordered by the Hearing Panel Subcommittee, discovery materials shall not be filed with the Clerk of the Supreme Court of Appeals, but shall be retained by the parties and delivered to the Subcommittee if necessary for any prehearing matters.

The Hearing Panel Subcommittee Clerk of The Supreme Court of Appeals shall set a hearing before a Hearing Panel Subcommittee on formal charges to be conducted within one hundred twenty days of the service filing of formal charges. The Chairperson of a Hearing Panel Subcommittee may also set a prehearing conference prior to the hearing. The Chairperson of a Hearing Panel Subcommittee may extend or shorten periods contained in this rule for good cause shown. Any motion for continuance shall be filed with the Clerk of the Supreme Court of Appeals and the Chairperson of the Hearing Panel Subcommittee no later than fourteen days, other than in the case of emergency, prior to the date of the hearing. The Hearing Panel Subcommittee, with the approval of the Administrative Director of the Courts, may conduct hearings at such place or places in the State as it shall be determined will best serve the public interest, not inconsistent with the interests of the complainant and the respondent.

Rule 3.5. Notice of hearings.

Within thirty days of service filing of the formal charges, notice of the date, time, and place of the hearing shall be served by the Office of Disciplinary Counsel Clerk of the Supreme Court of Appeals on the lawyer or and any counsel designated by the lawyer unless otherwise agreed to by the parties and the Hearing Panel. The Hearing Panel may extend this period for good cause shown.

Rule 3.6. Conduct of hearing.

Except where otherwise provided for by these rules, the provisions of the West Virginia Rules of Civil Procedure and West Virginia Rules of Evidence shall govern proceedings before the Hearing Panel. Hearings conducted by a Hearing Panel Subcommittee shall be open to the public.

Rule 3.8. Subpoena and contempt power.

(a) Hearing Panel Subcommittees of the Lawyer Disciplinary Board shall have power to issue subpoenas or any other lawful process through their Chairperson or the Clerk of the Supreme Court of Appeals. The Chairperson of a Hearing Panel Subcommittee or the Clerk of the Supreme Court of Appeals shall prepare and have available for issuance at the request of any party, subpoenas returnable before the Hearing Panel Subcommittee, or the parties in the case of a deposition, for attendance of witnesses or for the production of documentary evidence. Subpoenas and other process of Hearing Panel Subcommittees of the Lawyer Disciplinary Board may be served in accordance with the West Virginia Rules of Civil Procedure. The failure of any person without adequate excuse to obey a subpoena or other process of a Hearing Panel Subcommittee shall constitute contempt of the Board. All witnesses, including complainants, shall be entitled to such witness fees and expenses as in any civil proceeding in this State.

(b) Whenever a subpoena is sought in this state pursuant to the law of another jurisdiction for use in lawyer disciplinary or disability proceedings, whether during the investigative or hearing stage, and where issuance of the subpoena has been duly approved under the law of the other jurisdiction, the Chairperson or the Vice-Chairperson of the Lawyer Disciplinary Board, the Chairperson of a Hearing Panel Subcommittee or the Clerk of the Supreme Court of Appeals may issue a subpoena as provided in this Rule or in Rule 2.4 to compel the attendance of witnesses and production of documents in West Virginia.

(c) A Hearing Panel Subcommittee of the Lawyer Disciplinary Board may punish breaches of order and unprofessional conduct in its presence by censure or exclusion from the hearing or may invoke the aid of any circuit court in keeping order. Such court, in case of refusal of any person to maintain order before a Hearing Panel Subcommittee of the Lawyer Disciplinary Board, shall issue an order requiring such person to maintain order. Any failure to obey such order of the court may be punished by such court as contempt thereof. A Hearing Panel Subcommittee may, in its discretion, designate a person to serve as bailiff.

Rule 3.10. Recommended disposition by Hearing Panel.

Within sixty days after the final hearing or the filing of post-hearing briefs, which in no case shall be permitted more than thirty days after the final hearing, whichever comes later, the Hearing Panel Subcommittee shall file a written recommended decision with the Clerk of the Supreme Court of Appeals. If the hearing was conducted by agreement before a hearing examiner, the examiner shall file a written recommended decision with the Hearing Panel Subcommittee within thirty days after the final hearing or the filing of post-hearing briefs, which in no case shall be permitted more than thirty days after the final hearing, whichever comes later, and the Hearing Panel Subcommittee shall then, within thirty days after the date of the examiner's recommended decision, file its written recommended decision with the Clerk of the Supreme Court of Appeals. The decision shall contain findings of fact, conclusions of law, and a recommended disposition. Prior to the release of information regarding the recommended disposition, the Clerk of the Supreme Court of Appeals or the Hearing Panel Subcommittee shall provide reasonable notice to the Office of Disciplinary Counsel and the lawyer of the nature of the decision.

Rule 3.18. Conviction of crime that reflects adversely on a lawyer's honesty, trustworthiness or fitness.

(a) A lawyer who has been convicted of crime that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall, within thirty days of entry of the order of judgment of conviction, forward a copy of the order or judgment to the Office of Disciplinary Counsel. Failure to forward a copy shall constitute an aggravating factor in any subsequent disciplinary proceeding.

(b) Any court in which any lawyer shall be convicted of any crime that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall, as part of the judgement, direct its clerk to forward a certified copy of the order or judgment of conviction with to the Office of Disciplinary Counsel.

(c) A plea or verdict of guilty or a conviction after a plea of nolo contendere shall be deemed to be a conviction within the meaning of this rule.

(d) A lawyer shall be deemed to have been convicted within the meaning of this rule upon the entry of the order or judgment of conviction and such lawyer's license may be suspended or annulled thereupon notwithstanding the pendency of an appeal from such conviction.

(e) Upon receipt of the order or judgment, which shall be conclusive evidence of the guilt of the crime or crimes of which the lawyer has been convicted, the Office of Disciplinary Counsel shall prepare formal charges to be filed with the Clerk of the Supreme Court of Appeals, with a copy provided to the Chairperson of the Hearing Panel of the Lawyer Disciplinary Board. The formal charge shall inform the lawyer of the right to file a written request with the Chairperson of the Hearing Panel of the Lawyer Disciplinary Board for a mitigation hearing within thirty days of the date of the charge. Service of the formal charge shall be made in accordance with Rule 2.11.

(f) Mitigation hearings on formal charges of a conviction of crime reflecting adversely on a lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall be conducted by a Hearing Panel Subcommittee of the Lawyer Disciplinary Board. The Chairperson of the Hearing Panel of the Lawyer Disciplinary Board shall determine whether a mitigation hearing is warranted. Whether a mitigation hearing is warranted in a particular instance will depend on a variety of factors, including but not limited to, the nature of respondent's misconduct, surrounding facts and circumstances, previous ethical violations, the wilfulness of the conduct, and the adequacy of the respondent's previous opportunity to present evidence for a determination of appropriate sanctions. If the Chairperson determines a mitigation hearing is not warranted, a written ruling on the request for a mitigation hearing shall be filed with the Clerk of the Supreme Court of Appeals. The lawyer may file written objections to this ruling with the Clerk of the Supreme Court of Appeals within ten days, and the Supreme Court of Appeals will review the decision.

(g) When the Chairperson of the Hearing Panel of the Lawyer Disciplinary Board determines a mitigation hearing is warranted, or the Supreme Court of Appeals reverses the Chairperson's decision not to conduct a mitigation hearing and remands the matter to the Hearing Panel, a Hearing Panel Subcommittee of the Lawyer Disciplinary Board shall be appointed to conduct the hearing. The procedure for such hearings shall be in accordance with the rules governing other lawyer disciplinary hearings. The Office of Disciplinary Counsel may introduce evidence of aggravating factors at any mitigation hearing. Unless the parties agree to annulment of the lawyer's license to practice law, tThe matter will be referred to the Supreme Court of Appeals for disposition upon the report of a Hearing Panel Subcommittee of the Lawyer Disciplinary Board in accordance with the rules governing other disciplinary matters.

Rule 3.19. Conviction of felony that does not reflect adversely on a lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.

(a) A lawyer who has been convicted of a felony not reflecting adversely on a lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall, within thirty days of entry of the order of judgment of conviction, forward a copy of the order or judgment to the Office of Disciplinary Counsel. Failure to forward a copy shall constitute an aggravating factor in any subsequent disciplinary proceeding.

(b) Any court in which any lawyer shall be convicted of a felony not reflecting adversely on a lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall, as part of the judgment, direct its clerk to forward a certified copy of the order or judgment of conviction with to the Office of Disciplinary Counsel.

(c) A plea or verdict of guilty or a conviction after a plea of nolo contendere shall be deemed to be a conviction within the meaning of this rule.

(d) A lawyer shall be deemed to have been convicted within the meaning of this rule upon the entry of the order or judgment of conviction and such lawyer's license may be suspended or annulled thereupon notwithstanding the pendency of an appeal from such conviction.

(e) Upon receipt of the order or judgment, which shall be conclusive evidence of the guilt of the crime or crimes of which the lawyer has been convicted, the Office of Disciplinary Counsel shall prepare formal charges to be filed with the Clerk of the Supreme Court of Appeals, with a copy provided to the Chairperson of the Hearing Panel of the Lawyer Disciplinary Board. The formal charge shall inform the lawyer of the right to file a written request with the Chairperson of the Hearing Panel of the Lawyer Disciplinary Board for a mitigation hearing within thirty days of the date of the charge. Service of the formal charge shall be made in accordance with Rule 2.11.

(f) Mitigation hearings on formal charges of a conviction of a felony not reflecting adversely on a lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall be conducted by a Hearing Panel Subcommittee of the Lawyer Disciplinary Board. The Chairperson of the Hearing Panel of the Lawyer Disciplinary Board shall determine whether a mitigation hearing is warranted. Whether a mitigation hearing is warranted in a particular instance will depend on a variety of factors, including but not limited to, the nature of respondent's misconduct, surrounding facts and circumstances, previous ethical violations, the wilfulness of the conduct, and the adequacy of the respondent's previous opportunity to present evidence for a determination of appropriate sanctions. If the Chairperson determines a mitigation hearing is not warranted, a written ruling on the request for a mitigation hearing shall be filed with the Clerk of the Supreme Court of Appeals. The lawyer may file written objections to this ruling with the Clerk of the Supreme Court of Appeals within ten days, and the Supreme Court of Appeals will review the decision.

(g) When the Chairperson of the Hearing Panel of the Lawyer Disciplinary Board determines a mitigation hearing is warranted, or the Supreme Court of Appeals reverses the Chairperson's decision not to conduct a mitigation hearing and remands the matter to the Hearing Panel, a Hearing Panel Subcommittee of the Lawyer Disciplinary Board shall be appointed to conduct the hearing. The procedure for such hearings shall be in accordance with the rules governing other lawyer disciplinary hearings. The Office of Disciplinary Counsel may introduce evidence of aggravating factors at any mitigation hearing. The matter will be referred to the Supreme Court of Appeals for disposition upon the report of a Hearing Panel Subcommittee of the Lawyer Disciplinary Board in accordance with the rules governing other disciplinary matters.

Rule 3.26. Voluntary resignation or inactive status.

(a) Any member of the state bar may file in the Supreme Court of Appeals a verified petition stating that such member desires to voluntarily resign as a member of the state bar and to have his or her name stricken from the rolls thereof. Such petition shall fully state the reasons for the prayer thereof and whether any disciplinary or criminal charges or proceedings are then pending against the petitioner or whether the petitioner apprehends the pendency of any such charges or proceedings. Knowing failure to disclose this information may constitute grounds for initiation of a separate disciplinary proceeding.

(b) At the time of filing a petition for voluntary resignation with the Clerk of the Supreme Court of Appeals, the petitioner shall file a copy of the petition with the Office of Disciplinary Counsel, which shall conduct such investigation as may be deemed necessary and proper. At the conclusion of the investigation, Disciplinary Counsel shall file a report with the an Investigative Panel, including a recommendation regarding whether the petition should be granted or denied.

(c) The Investigative Panel shall promptly prepare a written report on the petition for voluntary resignation, including a recommendation regarding whether it should be granted or denied, and shall transmit its report to the Court. The Investigative Panel's report shall become a part of the record in the case. The Investigative Panel shall mail a copy of its report to the petitioner's last known address.

(d) Within ten days after such report has been filed, either the petitioner or Disciplinary Counsel shall have the right to make written request of the Court for a hearing upon the matters arising on the petition. If such request be made, the Court shall set the matter for hearing upon a day certain to be specified by the Court, which shall be within thirty days from the date of the expiration of the ten-day period for making a written request for a hearing. The hearing shall be held in such manner as the Court may direct. After such hearing, or after the expiration of the time for requesting a hearing without request therefor being made, the Court shall, by order entered of record, grant or refuse the prayer of the petition upon such terms and conditions as it may deem advisable.

(e) If the Court grants the prayer of the petition, the petitioner shall comply with the client notification requirements of Rule 3.28.

(f) If a member of the state bar not under suspension enrolls as an inactive member pursuant to Article II, section 4 of the By-Laws of The West Virginia State Bar while an ethics complaint or other disciplinary proceeding is pending before the Lawyer Disciplinary Board or the Supreme Court of Appeals, the member shall comply with the client notification requirements of Rule 3.28.

Rule 3.28. Duties of disbarred or suspended lawyers.

(a) A disbarred or suspended lawyer shall promptly notify by registered or certified mail, return receipt requested, or by first-class mail with the prior consent of the Office of Disciplinary Counsel, all clients being represented in pending matters, other than litigated or administrative matters or proceedings pending in any court or agency, of the lawyer's inability to act as a lawyer after the effective date of disbarment or suspension and shall advise said clients to seek legal advice elsewhere. Failure of a disbarred or suspended lawyer to notify all clients of his or her inability to act as a lawyer shall constitute an aggravating factor in any subsequent disciplinary proceeding.

(b) A disbarred or suspended lawyer shall promptly notify by registered or certified mail, return receipt requested, or by first-class mail with the prior consent of the Office of Disciplinary Counsel, each of the lawyer's clients who is involved in litigated or administrative matters or proceedings pending, of the lawyer's inability to act as a lawyer after the effective date of disbarment or suspension and shall advise said client to promptly substitute another lawyer in his or her place. In the event the client does not obtain substitute counsel before the effective date of the disbarment or suspension, it shall be the responsibility of the disbarred or suspended lawyer to move pro se in the court or agency in which the proceeding is pending for leave to withdraw as counsel. The notice to be given to the lawyer for any adverse party shall state the place of residence of the client of the disbarred or suspended lawyer.

(c) The disbarred or suspended lawyer, after entry of the disbarment or suspension order, shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature. During the period from the entry date of the order to its effective date, however, the lawyer may wind up and complete, on behalf of any client, all matters which were pending on the entry date. Within ten twenty days after the effective date of the disbarment or suspension order, the lawyer shall file under seal with the Supreme Court of Appeals an affidavit showing (1) that the lawyer has fully complied with the provisions of the order and with this rule the names of each client being represented in pending matters who were notified pursuant to subsections (a) and (b);and (2) that the lawyer has served a copy of such affidavit upon the secretary-treasurer of The West Virginia State Bar. a copy of each letter of notification which was sent; (3) a list of fees and expenses paid by each client and whether escrowed funds have been or need to be reimbursed; and (4) an accounting of all trust money held by the lawyer on the date the disbarment or suspension order was issued. Such affidavit shall also set forth the residence or other address of the disbarred or suspended lawyer where communications may thereafter be directed and a list of all other courts and jurisdictions in which the disbarred or suspended lawyer is admitted to practice. A copy of this report shall also be filed with the Office of Disciplinary Counsel.

Rule 4. Office of Disciplinary Counsel.

The Supreme Court of Appeals does hereby establish an Office of Disciplinary Counsel to prosecute violations of the Code of Judicial Conduct and the Rules of Professional Conduct. The Office of Disciplinary Counsel shall consist of separate Lawyer Disciplinary Counsel and Judicial Disciplinary Counsel. Lawyer Disciplinary Counsel shall be primarily responsible for the investigation of complaint of ethical violations by lawyers. Judicial Disciplinary Counsel shall be primarily responsible for the investigation of complaints of ethical violations by judges. Notwithstanding these primary responsibilities, when circumstances warrant, Lawyer Disciplinary Counsel shall have the authority to investigate and prosecute complaints of ethical violations by judges and Judicial Disciplinary Counsel shall have the authority to investigate and prosecute complaints of ethical violations by lawyers. The Office of Disciplinary Counsel shall be exempt from the payment of filing fees in all proceedings.

A True Copy

Deborah L. McHenry, Clerk