“Embrace The Miracle” West Virginia Does Not Bar Reinstatement Of Felons

An attorney whose substance abuse issues led to federal felony convictions and disbarment has been reinstated with conditions by the West Virginia Supreme Court of Appeals.

After a long period of sobriety

In 2004, Mr. diTrapano sought medical care for a cough with chest pain and wheezing, but did not inform his treating physician of his history of substance abuse. The physician prescribed him a cough syrup containing hydrocodone and Mr. diTrapano became addicted to the cough syrup and abused it for the next year. Following the accidental drowning of a five-year-old child in his family’s pool, Mr. diTrapano began abusing oxycodone and, eventually, crack cocaine.

In 2006, Mr. diTrapano traveled to Florida for a drug rehabilitation program. However, rather than entering treatment, he engaged in additional drug use and was arrested for possession of cocaine. Three weeks later, a federal search warrant was executed on his home in Charleston. Officers seized several loaded firearms, ammunition, and crack cocaine. Mr. diTrapano was arrested again shortly thereafter in Georgia and charged with driving on a suspended license and possession of cocaine. Then, approximately two months later, Mr. diTrapano was arrested in West Virginia for, among other things, driving on a suspended license and having no motor vehicle insurance.

On June 14, 2006, Mr. diTrapano was indicted in the United States District Court for the Southern District of West Virginia on two separate felony counts: (1) knowingly possessing various firearms in and affecting interstate commerce while being an unlawful user of and addicted to a controlled substance, in violation of 18 U.S.C. § 922(g)(3) and 18 U.S.C. § 924(a)(2); and (2) knowingly making a false statement and representation to a licensed dealer of firearms regarding his dependence on a controlled substance in violation of 18 U.S.C. § 924(a)(1)(A). Mr. diTrapano was arrested the following day pursuant to a federal arrest warrant.

The Office of Disciplinary Counsel contended that the convictions barred reinstatement

we first consider this threshold question of whether Mr. diTrapano’s two felony offenses preclude his reinstatement to practice law. The HPS concluded that Mr. diTrapano’s misconduct does not altogether preclude his reinstatement given his record of rehabilitation from addiction. The ODC, however, argues that this Court has repeatedly denied the reinstatement petitions of convicted felons such as Mr. diTrapano and should likewise deny reinstatement in this case.

First, we have never held that a convicted felon is barred from the reinstatement of his license to practice law. Such a rule would run counter to the fact-intensive reinstatement inquiry mandated by Syllabus Point 1 of In re Brown, which demands analysis of current attributes (integrity, moral character, and legal competence), the record of rehabilitation, and the impact reinstatement would have on our profession. Moreover, it would unduly constrain the “independent judgment” that this Court must exercise as the final arbiter of lawyer disciplinary matters.  Second, upon hearing Mr. diTrapano’s 2012 petition for reinstatement, we did not find that his prior felony convictions preclude him from reinstatement. In sum, although the seriousness of Mr. diTrapano’s underlying offenses serves as the backdrop to our consideration of whether or not his license should be reinstated, we decline to adopt the ODC’s position that a convicted felon may never be reinstated to practice law in West Virginia.

On the merits

In December 2016, Mr. diTrapano voluntarily entered a five-year monitoring agreement with the WVJLAP. This program requires Mr. diTrapano to log-in daily, attend three support group meetings each week, attend a monthly counseling session, submit to random drug screens, and meet with a mentor monthly. In addition, he has timely submitted monthly reports detailing his compliance with these requirements. Mr. Albury testified that Mr. diTrapano has been completely compliant with all of the terms and conditions of his WVJLAP monitoring agreement. We find the comprehensive and long term nature of this monitoring agreement to be significant. Mr. diTrapano praises the WVJLAP program and even serves as a mentor for another lawyer. Also, unlike the last time he petitioned for reinstatement, Mr. diTrapano has now completed his five years of federal supervised release. During this period, he was subject to random drug testing and, therefore, we find it important that he completed the full term without incident.

Mr. diTrapano has been gainfully employed for the vast majority of the time following his release from prison. His current employer, Mr. Calwell, testified that he has been abundantly pleased with Mr. diTrapano’s work, having promoted him from paralegal to executive assistant. In fact, Mr. Calwell has tasked Mr. diTrapano with handling all of the firm’s finances due to the “integrity and high moral character he has displayed during his employment.”

We likewise find that length of the passage of time since disbarment is favorable to Mr. diTrapano’s reinstatement request. In a matter of three short years, Mr. diTrapano’s entire life was damaged as a result of his drug addiction. Since then, however, Mr. diTrapano has regained and maintained sobriety. For eleven years, Mr. diTrapano has worked daily on overcoming addiction and served the sentence bestowed upon him for the criminal acts committed. Unlike the last time he petitioned this Court for reinstatement, he has taken full responsibility for his actions, has completed his term of federal supervised release, and voluntarily taken on the comprehensive monitoring requirements of his WVJLAP agreement. Simply put, we cannot think of one single action Mr. diTrapano could have taken on his path to recovery that he has not taken. Likewise, we are convinced that his commitment to practicing law again is surpassed only by his commitment to maintaining sobriety.

As to public perception

We see no reason the public confidence in the administration of justice would be adversely affected by the reinstatement of Mr. diTrapano’s law license when he has served the sentences imposed upon him in the criminal proceedings and has shown an exemplary record of rehabilitation through WVJLAP and other addiction counseling. He has been consistently and gainfully employed with his current employer—an attorney who testified on behalf of Mr. diTrapano in these proceedings. Critically, unlike the last time Mr. diTrapano petitioned this Court for reinstatement, he has completed his federal sentence of five years supervised release, fully accepted responsibility for his actions, and made full restitution. Therefore, we do not find that the public perception of the administration of justice would be harmed by reinstating Mr. diTrapano’s license to practice law.

Chief Justice Workman concurs

I write separately to emphasize that our decision today sends the message that there is hope in the battle against the disease of addiction that so many families are facing; and to make clear that West Virginia’s legal profession, including our disciplinary system, supports the recovery and rehabilitation of impaired lawyers. The Amici Curiae Brief of the LAP aptly describes this matter as the opportunity for this Court to “embrace the miracle of a colleague who is one of our own.”

Mr. diTrapano’s father, Rudolph di Trapano, one of West Virginia’s most outstanding lawyers, who died last year, made a statement about his son, which, in part, reads: “I believe that when Dante’ is reinstated he will flourish as a lawyer, and he will make the members of this Court proud that they took the appropriate action on his license.”

In oral argument in support of his petition for reinstatement before this Court, Mr. diTrapano said that if his license to practice law is restored, he will treasure it. I sincerely believe that he will. And I hope and believe that he will also treasure, preserve, and continue his remarkable lifelong journey of recovery. He has the potential to make major contributions not only to our legal system, but also to the recovery community by continuing to share his time, his energy, and his life experience to help others on the difficult road to recovery.

Justice Loughry dissented. 

The unauthorized use of the client’s power of attorney to steal $1.4 million was, understandably, a major concern for this Court in the 2014 opinion denying the petitioner’s first petition for reinstatement. Inexplicably, however, the majority’s opinion  today is entirely devoid of any mention of this wrongdoing–even when reaching the conclusion that the public’s confidence in the administration of justice would not be adversely affected by readmitting the petitioner to the practice of law. Instead, the majority’s analysis focuses entirely upon the two felony convictions and the petitioner’s recovery from  drug addiction.

While recovery from drug abuse is laudable, it should not be a mitigating factor when the lawyer’s misconduct involved dishonesty. The Court’s opinion denying the petitioner’s earlier petition for reinstatement provides several reasons for this position. 

(Mike Frisch)