“Clear and Convincing”: The New Evidentiary Standard for Reinstatement of Disbarred Attorneys in West Virginia

Introduction

In In re Petition for Reinstatement of Edward Raymond Kohout, the Supreme Court of Appeals of West Virginia refused to reinstate a disbarred practitioner and, in doing so, articulated a significant clarification of the burden of proof that applies in attorney-reinstatement proceedings. While the denial of Mr. Kohout’s petition turned largely on fact-intensive considerations of his misconduct and lack of rehabilitation, the decision’s enduring value lies in its new syllabus point: a disbarred lawyer must satisfy the five Brown factors “by clear and convincing evidence.” This commentary unpacks the judgment, the reasoning that undergirds it, the precedents relied upon, and its anticipated ripple effects across lawyer-disciplinary jurisprudence.

Summary of the Judgment

• Outcome: Petition for reinstatement DENIED.
• Key Holding: A disbarred attorney bears the burden of proving, by clear and convincing evidence, that he meets the Brown criteria for reinstatement. (Syllabus pt. 4).
• Conditions for Future Petitions: (1) Full reimbursement of costs in both the underlying disciplinary and the instant reinstatement proceedings; (2) submission of an affidavit from a supervising attorney with any new petition.
• Practical Rationale: Mr. Kohout’s long-standing pattern of dishonesty, failure to take meaningful rehabilitative steps, delayed restitution, and open hostility toward the disciplinary system made it impossible for the Court to conclude that his return would not undermine public confidence.

Analysis

a. Precedents Cited and Their Influence

1. Brown v. State Bar (1980) – Brown I & Brown II
   Originally created the five-factor test for reinstatement: (1) nature of offense, (2) character, maturity, experience, (3) post-disbarment conduct, (4) passage of time, (5) present competence. The Kohout Court re-affirmed these factors but strengthened their evidentiary threshold.
2. Committee on Legal Ethics v. McCorkle (1994)
   Supplies the dual review standard: de novo on law and sanctions; deference to the HPS on facts. The Court reiterated this framework, emphasizing its independent judgment in reinstatement matters.
3. In re Reinstatement of Wheaton (2021)
   Recently restated that the Court is “final arbiter of legal ethics” and introduced a modern gloss on “rehabilitation.” Kohout extends the logic by aligning the evidentiary burden in reinstatement cases with that used in original disciplinary prosecutions.
4. Lawyer Disciplinary Bd. v. Hess (1997) & related conversion cases
   Provides the rule that misappropriation of client funds ordinarily warrants disbarment. The Court’s discussion of Kohout’s underlying conversion misconduct relied heavily on the Hess line.
5. Administrative-suspension cases (Pitts 2000; Rule 3.24(a))
   These decisions require clear-and-convincing proof to lift a disability or administrative suspension; the Court used their logic to justify elevating reinstatement petitions to the same standard.

b. Legal Reasoning

1. Evidentiary Gap: Prior jurisprudence did not expressly state what quantum of proof a disbarred lawyer must meet. Given that disciplinary prosecution requires clear and convincing evidence (Rule 3.7), and reinstatement after administrative suspension also uses that metric (Rule 3.24), the Court found a symmetric standard necessary for annulment cases.
2. Application of Brown Factors: The Court marched through each factor, concluding that virtually all weighed against Kohout—particularly the nature of his multi-client dishonesty, his minimal efforts toward restitution, and his aggressive attacks on the disciplinary process.
3. Protection of Public Confidence: Echoing professional-responsibility doctrine nationwide, the Court held that “respect for the profession is diminished with every deceitful act.” Because Kohout’s post-disbarment conduct included online vitriol toward the ODC and allegations that the system is “corrupt,” the Court could not certify that reinstatement would preserve public trust.

c. Impact of the Decision

• State-wide Uniformity: The decision closes the doctrinal gap between administrative-disability cases and annulment reinstatement cases, ensuring that all avenues back to practice now demand the same persuasive quantum of proof.
• Guidance to Hearing Panels: HPS bodies now have explicit instruction on the level of proof they should look for, streamlining future evidentiary rulings.
• Bargaining Chips Removed: Disbarred attorneys can no longer hope for a mere preponderance of evidence; the higher bar will likely encourage earlier, substantive rehabilitation efforts (e.g., CLE, counseling, restitution) before petitions are filed.
• Comparative Influence: Aligns West Virginia with jurisdictions such as Colorado, Minnesota, and New York that already require clear and convincing evidence for readmission, fostering greater interstate consistency.

Complex Concepts Simplified

• Disbarment vs. Annulment: In West Virginia the two words are interchangeable; “annulment” refers to the license, “disbarment” to the individual.
• Clear and Convincing Evidence: More rigorous than “preponderance” but less than “beyond a reasonable doubt.” The fact-finder must reach a firm belief or conviction in the truth of the allegations.
• Hearing Panel Subcommittee (HPS): A three-lawyer arm of the Lawyer Disciplinary Board that conducts hearings and makes recommendations to the Supreme Court.
• Rule 3.28 Notification: A mandatory affidavit that disbarred/suspended attorneys must file within 20 days, proving they informed all clients and opposing counsel of their ineligibility to practice.
• “Pattern of Dishonesty”: A disciplinary aggravator signifying repeated acts of deceit, making rehabilitation more difficult to prove; often deemed more serious than a single isolated lapse.

Conclusion

By denying Mr. Kohout’s petition and formalizing the clear-and-convincing standard, the Court re-emphasised two cornerstone ideals of the legal profession: (1) honesty is non-negotiable, and (2) the privilege of practice can be restored only after robust, verifiable rehabilitation. Future petitioners now have unequivocal guidance: they must deliver persuasive, documented, and sustained proof of integrity, competence, and restitution. Mere passage of time, sporadic payments, or self-serving assertions of remorse will no longer suffice. Ultimately, the judgment strengthens public confidence in West Virginia’s disciplinary regime by ensuring that readmission is reserved for those who can meet the same demanding evidentiary threshold that is used to remove unethical lawyers from practice in the first place.