WV Supreme Court: disciplinary board can pursue violations again - Beckley, Bluefield & Lewisburg News, Weather, Sports

WV Supreme Court: disciplinary board can pursue violations against patent lawyer

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The Office of Disciplinary Counsel and the West Virginia Lawyer Disciplinary Board have jurisdiction to prosecute alleged state code violations against a patent lawyer who is not a West Virginia State Bar member, West Virginia Supreme Court justices recently ruled.

Milton patent lawyer Olen York filed the petition for writ of mandamus seeking the West Virginia Office of Disciplinary Counsel to stop its investigation and also filed a writ of prohibition seeking to prohibit the West Virginia Lawyer Disciplinary Board from prosecuting alleged violations.

In his petition, York said he is admitted as a licensed member of the Ohio Bar and he also was admitted to practice law before the U.S. Patent and Trademark Office.

Additionally, York said he performed patent and trademark work as an independent contractor for the Waters Law Firm. York said he only handled these types of issues before the U.S. Patent and Trademark Office, representing clients from Kentucky, Ohio, Texas, California and West Virginia.

He said he never appeared in any West Virginia court.

However, the disciplinary board and the disciplinary counsel disagree, asserting they could pursue the charges because York practiced law in West Virginia.

Robert Waters, head of the Waters Law Group, initiated a complaint against York and a statement of charges was issued against York in September 2012.

The charges stemmed from a dispute between the two over fees York earned for work he did for the firm. The statement alleged York left the Waters Law Group to work for a Charleston law firm, receiving payments for legal work he performed for two patent clients he had represented while associated with the Waters Law Group.

The statement also asserts York violated rules of professional conduct for failing to have a separate client account, failing to notify the Waters Law Group of money received by a client and failing to have an IOLTA account.

The statement of charges alleged York commingled, misappropriated and converted funds for his own use.

York says neither entity — the disciplinary board nor the disciplinary counsel — has jurisdiction because his practice was limited to patent and trademark issues before the U.S. Patent and Trademark Office.

"When the regulation of the practice of law by a state court conflicts with federal courts, the state court regulation is preempted by federal law, pursuant to the Supremacy Clause of the United States Constitution," York argues in his petition. "In this case, because (York) was authorized by the USPTO to represent clients before that federal agency, he was authorized to take whatever actions were necessary to represent his clients, even if such actions occurred in West Virginia."

However, the disciplinary board and disciplinary counsel say they do have jurisdiction because "the practice of law in West Virginia is not limited to actions that can only be filed before a West Virginia court or tribunal, but encompasses any instance a party provides another with advice or service under circumstance which imply the possession or use of legal knowledge or skill."

Both entities say he engaged in the practice of law in the Mountain State. Thus, the court has authority to regulate and control the practice of law within state lines, the response asserts.  

"Such jurisdiction is necessary to protect the public, to reassure the public as to the reliability and integrity of attorneys, to safeguard the public interest in the administration of justice, to deter other attorneys from engaging in similar misconduct and is not in conflict with or preempted by federal law," their response asserts.

In the June 5 opinion, authored by Justice Margaret Workman, justices denied the writ of prohibition, saying the West Virginia Rules of Professional Conduct govern attorneys regardless of whether they are West Virginia state bar members and even when they practice in federal matters.

The opinion noted that the court has not decided until now whether the practice of patent law falls under the "practice of law in West Virginia" as it is used in the West Virginia Rules of Lawyer Disciplinary Procedure.

"Rule 1 of the Rules of Lawyer Disciplinary Procedure clearly provides that this state's disciplinary authorities have jurisdiction over an ‘individual admitted to the practice of law in another jurisdiction who engages in the practice of law in West Virginia'" the opinion states.