## Facts

- Henry Clay Hart, Jr., a West Virginia attorney, was charged by federal information in the U.S. District Court for the Southern District of California with violating 26 U.S.C. § 7206(2) for willfully aiding and assisting the preparation and presentation of a materially false federal income tax return.
- The information alleged Hart helped prepare Robert G. Brown’s 1984 return by claiming a partnership operating loss and tax credit tied to a windmill partnership investment that Hart allegedly knew Brown was not entitled to claim.
- Hart waived indictment, pled guilty to the § 7206(2) felony, and was sentenced to eighteen months’ imprisonment.
- The Committee on Legal Ethics instituted disciplinary proceedings and recommended annulment of Hart’s West Virginia law license based on the final criminal conviction.
- Hart appeared pro se and asserted he had a substantive defense to the criminal allegations; he sought to contest the underlying facts and requested an evidentiary mitigation hearing before annulment.

## Issues

1. Whether proof of Hart’s final federal felony conviction, without relitigation of the criminal conduct, satisfied the Committee’s burden to prove an ethical violation.
2. Whether Hart was entitled as a matter of right to an evidentiary mitigation hearing before the court imposed the sanction of annulment.

## Decision

- The court held that the record of Hart’s final federal conviction satisfied the Committee’s burden of proving an ethical violation arising from that conviction.
- The court rejected Hart’s attempt to collaterally attack or retry the factual basis of his guilty plea within the disciplinary proceeding.
- The court held Hart was not entitled to an evidentiary mitigation hearing as a matter of right; such hearings are granted only in exceptional circumstances.
- The court ordered annulment of Hart’s license to practice law in West Virginia.

## Legal Principles

- In West Virginia attorney discipline, proof on the record of a final criminal conviction conclusively establishes an ethical violation arising from the conviction.
- A lawyer may not use the disciplinary process to relitigate the underlying facts of a final criminal conviction resolved by guilty plea or adjudication.
- An evidentiary mitigation hearing is discretionary and “the exception rather than the rule,” evaluated by factors including the nature of the misconduct, surrounding circumstances, prior ethical violations, willfulness, and the adequacy of prior opportunities to present evidence relevant to sanction.
- Felony conduct involving willful dishonesty and misuse of professional skills can warrant the most severe professional sanction to protect the public and preserve confidence in the bar.

## Conclusion

The court treated Hart’s final felony conviction for willfully assisting the filing of a materially false tax return as conclusive proof of professional misconduct, declined to provide an evidentiary mitigation hearing absent exceptional justification, and annulled his license to practice law.


Comm. on Legal Ethics of W. Va. State Bar v. Hart, 186 W. Va. 75, 410 S.E.2d 163 (1991)