Daily Gazette Co., Inc. v. Committee on Legal Ethics of the West Virginia State Bar

• Citation: 326 S.E.2d 705,174 W.Va. 359
• Decision Date: 11 December 1984
• Docket Number: No. 16403,16403
• Parties: , 11 Media L. Rep. 1722 The DAILY GAZETTE CO., INC., Petitioner, v. The COMMITTEE ON LEGAL ETHICS OF THE WEST VIRGINIA STATE BAR, Respondent.
• Court: Supreme Court of West Virginia

Page 705

326 S.E.2d 705

174 W.Va. 359, 11 Media L. Rep. 1722

The DAILY GAZETTE CO., INC., Petitioner, v. The COMMITTEE ON LEGAL ETHICS OF THE WEST VIRGINIA STATE BAR, Respondent.

No. 16403.

Supreme Court of Appeals of

West Virginia.

Dec. 11, 1984.

Rehearing Refused Jan. 10, 1985.

Dissenting Opinion Feb. 15, 1985.

Syllabus by the Court

1. Under West Virginia Constitution art. VIII, § 3, which provides that "The court shall have power to promulgate rules ... for all of the courts of the State relating to ... practice and procedure, which shall have the force and effect of law," and under West Virginia Constitution art. V, § 1, which provides that "The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others," the Supreme Court of Appeals is vested with the exclusive authority to regulate and control the practice of law in this State.

2. The West Virginia State Bar, as an administrative arm of the Supreme Court of Appeals, is subject to the exclusive control and supervision of the Supreme Court of Appeals, including the approval of all regulatory and adjudicatory activities regarding attorney disciplinary proceedings.

3. The principle purpose of attorney disciplinary proceedings is to safeguard the public's interest in the administration of justice.

4. Under West Virginia Constitution art. III, § 17, which provides that "The courts of this State shall be open," there is a right of public access to attorney disciplinary proceedings.

5. Where formal disciplinary charges in an attorney disciplinary proceeding are filed, following a determination that probable cause exists to substantiate allegations of an ethical violation, the hearing on such charges shall be open to the public, who shall be entitled to all reports, records, and nondeliberative materials introduced at such hearing, including the record of the final action taken.

6. Once a complaint of unethical conduct in an attorney disciplinary proceeding is dismissed for lack of probable cause, the public has a right of access to the complaint and the findings of fact and conclusions of law which are presented in support of such dismissal.

7. The right of public access to attorney disciplinary proceedings precludes utilization of private reprimand as a permissible sanction.

8. By-Laws and Rules and Regulations of the West Virginia State Bar which govern public disclosure of lawyer disciplinary matters are unconstitutional under West Virginia Constitution art. III, § 17, when they fail to protect and vindicate the public's interest in the integrity of the judicial system by unreasonably restricting access to information concerning formal disciplinary actions against lawyers, integral parts of the judicial system.

DiTrapano & Jackson, Rudolph L. DiTrapano, Rebecca A. Baitty, Charleston, for petitioner.

Robert H. Davis, Jr., John A. Rogers, Charleston, for respondent.

McGRAW, Justice:

This mandamus action arises from a disciplinary action against Weirton attorney Leonard Z. Alpert. The petitioner, The Daily Gazette Company, Inc., sought to compel the respondent, the Committee on Legal Ethics of the West Virginia State Bar, to release information concerning its investigation of Alpert made pursuant to this disciplinary action. Because Alpert agreed, however, on July 5, 1984, to the release of the record in his disciplinary proceeding, the petitioner's request is rendered moot. Nevertheless, important issues raised by the petitioner remain concerning the confidentiality of records relating to attorney disciplinary proceedings conducted by the respondent. Essentially, as phrased by the petitioner, the greater issue in the present proceeding is whether the respondent must "open its disciplinary procedures to public scrutiny." Although the issue of public access to the record in Alpert's disciplinary proceeding is now moot, a brief discussion of the facts surrounding his case is warranted to illuminate the impetus behind the petitioner's request for prospective relief and to provide a context for analysis of the issue of public access.

I

On February 6, 1979, Alpert was indicted on federal racketeering charges. Alpert's trial, involving charges that he had paid the Hancock County sheriff $2,500 in exchange for the return of six slot machines which had been confiscated and were to be destroyed pursuant to court order, received extensive publicity through the State of West Virginia. Eventually, Alpert was acquitted of all charges. In March 1981, however, the federal district judge who presided over Alpert's case released evidence concerning Alpert to the Committee on Legal Ethics, which was conducting its own investigation of whether disciplinary action should be taken in response to potential ethical violations incident to the allegations of criminal misconduct.

Following the transmittal of evidence to the Committee on Legal Ethics, the petitioner requested information on numerous occasions concerning the disposition of any ethical charges against Alpert. Not only did the Ethics Committee steadfastly refuse to disclose such information, it would not even confirm or deny that an investigation had been initiated. This refusal was based upon article VI, § 30 of the West Virginia State Bar By-Laws, which provides that, except in certain circumstances, ¹ all information regarding attorney disciplinary proceedings is confidential.

As a result of Alpert's voluntary waiver of confidentiality, the respondent has released the information sought by the petitioner regarding his disciplinary action. What remains, however, is the fundamental issue of the right of public access to information regarding attorney disciplinary proceedings conducted by the Committee on Legal Ethics of the West Virginia State Bar. ²

II

Under West Virginia Constitution art. VIII, § 3, which provides that "The court shall have power to promulgate rules ... for all of the courts of the State relating to ... practice and procedure, which shall have the force and effect of law," ³ and under West Virginia Constitution art. V, § 1, which provides that "The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others," the Supreme Court of Appeals is vested with the exclusive authority to regulate and control the practice of law in this State. ⁴ See e.g., State ex rel. Quelch v. Daugherty, 306 S.E.2d 233 (W.Va.1983); Lane v. State Board of Law Examiners, 295 S.E.2d 670 (W.Va.1982); State ex rel. Askin v. Dostert, 295 S.E.2d 271 (W.Va.1982); Committee of Legal Ethics v. Graziani, 157 W.Va. 167, 200 S.E.2d 353 (1973); West Virginia State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959). To assist in the execution of this regulatory function, the Legislature has created "an administrative agency of the supreme court of appeals of West Virginia, which shall be known as 'the West Virginia State bar.' " ⁵ West Virginia Code § 51-1-4a(b) (1981 Replacement Vol.). Although a creature of an antique statute enacted prior to the Judicial Reform Amendment of 1974, the West Virginia State Bar is an agency of the Supreme Court of Appeals, and not an independent agency. In State ex rel. Quelch v. Daugherty, 306 S.E.2d at 235, this Court restated the well established principle that, "The Judicial Branch may honor legislative enactments in aid of judicial power, but is clearly not bound to do so." (Citations omitted). Although we value the guidance of statutory enactments with regard to the exercise of judicial power, we are clearly not bound by statute. The statute, however, does provide some guidance with respect to further duties of West Virginia State Bar. Specifically, the West Virginia State Bar is charged with "enforcing such rules as may be prescribed, adopted and promulgated by the court from time to time under this section." Id. One area of rulemaking contemplated by this statute is "[p]rescribing procedure for disciplining, suspending, and disbarring attorneys-at-law." West Virginia Code § 51-1-4a(c) (1981 Replacement Vol.). Therefore, the West Virginia State Bar, as an administrative arm of the Supreme Court of Appeals, is subject to the exclusive control and supervision of the Supreme Court of Appeals, including the approval of all regulatory and adjudicatory activities regarding attorney disciplinary proceedings.

Under article VI, § 30 of the West Virginia State Bar By-Laws:

All proceedings involving allegations of misconduct by or the disability of an attorney shall be kept confidential until and unless a recommendation for the imposition of public discipline is filed with the court by the committee on legal ethics, or the respondent attorney requests that the matter be public, or the investigation is predicated upon a conviction of the respondent attorney for a crime. All participants in the proceeding shall conduct themselves so as to maintain the confidentiality of the proceeding. Any person who violates the provisions of this section shall be guilty of contempt of the supreme court of appeals. Any committee member or any employee of the committee who violates this provision may be removed by the board.

Therefore, unless the Legal Ethics Committee recommends public discipline, the existence of charges against an attorney and the ultimate disposition of those charges are generally never made a matter of public record, but are forever cloaked in a veil of secrecy. ⁶

The respondent defends this confidentiality rule on several grounds. First, the respondent notes that confidentiality discourages attempts to use the process as a threat in order to obtain an advantage in some collateral dispute. Second, the respondent states that confidentiality protects lawyers from unwarranted injury to their professional reputations resulting from frivolous or fabricated complaints. Third,...