Allen, In re

• Decision Date: 06 February 1997
• Docket Number: 96-1601 and 96-1652,Nos. 96-1464,s. 96-1464
• Citation: Allen, In re, 106 F.3d 582 (4th Cir. 1997)
• Parties: In re Barbara H. ALLEN, Appellant. BETTER GOVERNMENT BUREAU, INCORPORATED, an Ohio Corporation, Plaintiff-Appellee, v. Darrell V. McGRAW, Jr., Attorney General, State of West Virginia, Personally and in his Official Capacity; Better Government Bureau Office of the Attorney General State of West Virginia, A Body Politic, A Corporate Instrumentality of Government with Limited Agency and Quasi-Sovereign Capacity; Ken Hechler, Secretary of State, in his Official Capacity, Defendants, v. Donna WILLIS, Party in Interest. BETTER GOVERNMENT BUREAU, INCORPORATED, an Ohio Corporation, Plaintiff-Appellee, v. Darrell V. McGRAW, Jr., Attorney General, State of West Virginia, Personally and in his Official Capacity, Defendant-Appellant. BETTER GOVERNMENT BUREAU OFFICE OF THE ATTORNEY GENERAL STATE OF WEST VIRGINIA, A Body Politic, A Corporate Instrumentality of Government with Limited Agency and Quasi-Sovereign Capacity; Ken Hechler, Secretary of State, in his Official Capacity, Defendants, v. Barbara H. ALLEN; Donna Willis, Parties in Interest. BETTER GOVERNMENT BUREAU, INCORPORATED, an Ohio Corporation, Plaintiff-Appellee, v. Darrell V. McGRAW, Jr., Attorney General, State of West Virginia, Personally and in his Official Capacity, Defendant-Appellant. BETTER GOVERNMENT BUREAU OFFICE OF THE ATTORNEY GENERAL STATE OF WEST VIRGINIA, A Body Politic, A Corporate Instrumentality of Government with Limited Agency and Quasi-Sovereign Capacity; Ken Hechler, Secretary of State, in his Official Capacity, Defendants, v. Barbara H. ALLEN; Donna Willis, Parties in Interest.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 582

106 F.3d 582

36 Fed.R.Serv.3d 1196

In re Barbara H. ALLEN, Appellant.

BETTER GOVERNMENT BUREAU, INCORPORATED, an Ohio Corporation, Plaintiff-Appellee, v. Darrell V. McGRAW, Jr., Attorney General, State of West

Virginia, Personally and in his Official Capacity; Better

Government Bureau Office of the Attorney General State of

West Virginia, A Body Politic, A Corporate Instrumentality

of Government with Limited Agency and Quasi-Sovereign

Capacity; Ken Hechler, Secretary of State, in his Official

Capacity, Defendants, v. Donna WILLIS, Party in Interest.

BETTER GOVERNMENT BUREAU, INCORPORATED, an Ohio Corporation, Plaintiff-Appellee, v. Darrell V. McGRAW, Jr., Attorney General, State of West

Virginia, Personally and in his Official Capacity,

Defendant-Appellant.

BETTER GOVERNMENT BUREAU OFFICE OF THE ATTORNEY GENERAL

STATE OF WEST VIRGINIA, A Body Politic, A Corporate

Instrumentality of Government with Limited Agency and Quasi-Sovereign Capacity; Ken Hechler, Secretary of State, in his Official Capacity, Defendants, v. Barbara H. ALLEN; Donna Willis, Parties in Interest.

BETTER GOVERNMENT BUREAU, INCORPORATED, an Ohio Corporation, Plaintiff-Appellee, v. Darrell V. McGRAW, Jr., Attorney General, State of West

Virginia, Personally and in his Official Capacity,

Defendant-Appellant.

BETTER GOVERNMENT BUREAU OFFICE OF THE ATTORNEY GENERAL

STATE OF WEST VIRGINIA, A Body Politic, A Corporate

Instrumentality of Government with Limited Agency and Quasi-Sovereign Capacity; Ken Hechler, Secretary of State, in his Official Capacity, Defendants, v. Barbara H. ALLEN; Donna Willis, Parties in Interest.

Nos. 96-1464, 96-1601 and 96-1652.

United States Court of Appeals Fourth Circuit.

Argued July 9, 1996.

Decided Feb. 6, 1997.

ARGUED: David Paul Cleek, McQueen, Harmon, Potter & Cleek, Charleston, WV; James Anthony McKowen, Allen & Allen, L.C., Charleston, WV, for Appellants. Roger Patrick Furey, Arter & Hadden, Washington, D.C., for Appellees. ON BRIEF: Marilyn T. McClure, Cleek, Pullin, Knopf & Fowler, Charleston, West Virginia, for Appellants. Michael B. Adlin, Arter & Hadden, Washington, D.C.; E. Joseph Buffa, Charleston, WV, for Appellees.

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

No. 96-1652 affirmed and No. 96-1464 and No. 96-1601 reversed and remanded by published opinion. Judge MOTZ wrote the majority opinion, in which Judge MICHAEL concurred. Judge NIEMEYER wrote an opinion concurring in part and dissenting in part.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Against a background of drama and intrigue, the Attorney General of West Virginia claims qualified immunity and his outside counsel asserts, on the Attorney General's behalf, attorney-client privilege. We affirm the district court's refusal to grant qualified immunity to the Attorney General, because he engaged in activity a reasonable official in his position would have known was clearly established to be beyond the scope of his authority. However, because the Attorney General's outside counsel properly relied on the opinion work product doctrine and, at her client's behest, the attorney-client privilege, in refusing to answer certain deposition questions and produce certain documents, we reverse the district court's order finding outside counsel in contempt.

I.

A.

The first major question raised in these consolidated cases, the qualified immunity question, revolves around a non-profit organization known as the Better Government Bureau, Inc. (BGB) and its efforts to incorporate under that name in the State of West Virginia.

BGB has been incorporated in the State of Ohio since August 1993, and in the State of Washington since early 1994. A government "watchdog" association, BGB's members include approximately forty-seven businesses and 304 individuals from various states. In addition, BGB works with various advocacy groups, including the Heritage Foundation, the National Vietnam Veteran's Coalition, and the Christian Coalition. BGB's mission is "to make government more efficient, responsive and less corrupt" by working for lower taxes, fewer restrictions on free enterprise, and less bureaucracy. BGB monitors and investigates government activities, and disseminates information about government policies affecting businesses, focussing particularly on complaints from its members.

In August 1994, Suarez Corporation Industries (SCI) lodged a complaint with BGB regarding West Virginia Attorney General Darrell McGraw and his Office. SCI is one of BGB's most active members and its largest source of membership dues. The Attorney General's Office had filed suit against one of SCI's subsidiaries for fraudulent activities and violations of West Virginia's Consumer Credit and Protection Act, W. Va.Code §§ 46A-1-101 to 46A-8-102. SCI asserted that the investigation and prosecution of these violations were improper and raised questions about abuse of power. BGB attempted to investigate this complaint by requesting information from the Attorney General under the West Virginia Freedom of Information Act, W. Va.Code §§ 29B-1-1 to 29B-1-7. The Attorney General assertedly refused to provide the requested information.

In the face of what it considered stonewalling, BGB decided to go public with its dispute with the Attorney General. BGB broadcast the following announcement on three area radio stations on September 8, 1994:

THIS IS AN IMPORTANT ANNOUNCEMENT

The Better Government Bureau is investigating the actions of Attorney's [sic ] General Darrell McGraw and [Assistant Attorney General] Tom Rodd.

Voters already removed McGraw from the State Supreme Court because of his poor performance.

Now we are trying to obtain public information about the Attorney General under the "Freedom of Information Act", but it has been denied. What are McGraw and Rodd trying to hide?

If you have any information about Darrell McGraw, Tom Rodd or anyone in the Attorney General's office, please contact the Better Government Bureau toll free at 1-800-807-9881. The number again is 1-800-807-9881.

PAID FOR BY THE BETTER GOVERNMENT BUREAU.

Subsequently, an article about BGB appeared in the Charleston Gazette. The article paraphrased a BGB newsletter's criticism of McGraw and Rodd, and indicated that BGB intended to "open a West Virginia office and possibly start a West Virginia chapter." The newspaper quotes BGB's president, Kenneth Nickalo, as saying "[w]e're sick of the state government of West Virginia.... We think we can crack politics in West Virginia, use what we do in West Virginia as a model, and do what we'll do in West Virginia in other states."

A week after this article appeared in the Charleston Gazette, Attorney General McGraw instructed an employee, Lila Hill, to reserve the corporate name, "Better Government Bureau," with the West Virginia Secretary of State's Office pursuant to W. Va.Code § 31-1-12 (allowing reservation of the "exclusive right to the use of a corporate name"). When Hill attempted to reserve the name "Better Government Bureau," she was informed that anyone seeking to reserve that name had to see Mr. Wilkes, the Director of the Corporations Division of the Secretary of State's Office. Wilkes, who had placed an "administrative flag" on the name because Secretary of State Ken Hechler "had an interest in" it, was unavailable. Hill returned to the Attorney General's office and informed McGraw that she had been unable to see Wilkes or to reserve the name. McGraw instructed Hill to return to the Secretary of State's Office and to see Secretary of State Hechler personally about reserving the Better Government Bureau name.

Hill returned and met with Secretary of State Hechler, who personally escorted her back to the Corporations Division; Hill then reserved the name "Better Government Bureau." Later that same day, Hill and McGraw completed the necessary forms, and Hill went to the office of the County Clerk to file articles of incorporation for a new corporation with the name, "Better Government Bureau, State of West Virginia, a Government Agency Corporation." McGraw used personal funds to pay for the incorporation fee.

About a month later, BGB followed through on its plans to open a West Virginia chapter and applied for certification as a foreign corporation doing business in West Virginia. The Secretary of State's Office rejected BGB's application, however, because another entity (the Attorney General's) had already incorporated in West Virginia using "Better Government Bureau" as part of its name.

Nickalo, BGB's president, sent letters to both McGraw and Hechler requesting that they take appropriate steps to eliminate the obstacles to BGB's incorporation. Although McGraw did amend his corporation's articles of incorporation to modify its name slightly, he did not remove the words "Better Government Bureau" from the name. ¹ Thus BGB remained unable to incorporate or register to do business as a foreign corporation in West Virginia under its chosen name.

At the same time BGB was attempting to incorporate in West Virginia, Attorney General McGraw wrote to other state attorneys general about BGB. On October 4, 1994, he sent a letter to the attorneys general of all forty-nine other states, in which he advised them:

If your office becomes involved in a sweepstakes probe, you will encounter this corporation. To foreclose the possibility of such a corporation operating in your State, you may want to register the name of the Better Government Bureau as an agent for the Attorney General's Office with the Secretary of State's Office or take other preventative measures.

Two days later, McGraw sent another letter to the same recipients, this time by facsimile. This letter alleged that an SCI attorney had "threatened violence" upon Deputy Attorney General Rodd, and advised:

When you come up against these people, you should know that there is a possibility that their modus operandi might include a proclivity to violence.

Please recall my recent letter, in...