Farber v. Strickler, Nos. 16699

• Court: Supreme Court of West Virginia
• Citation: 332 S.E.2d 629,175 W.Va. 328
• Decision Date: 12 July 1985
• Docket Number: 16718,Nos. 16699
• Parties: Michael C. FARBER v. Elmer D. STRICKLER, etc., et al. Michael C. FARBER v. Elmer D. STRICKLER, etc.

Page 629

332 S.E.2d 629 175 W.Va. 328 Michael C. FARBER
v.
Elmer D. STRICKLER, etc., et al.
Michael C. FARBER
v.
Elmer D. STRICKLER, etc. Nos. 16699, 16718. Supreme Court of Appeals of West Virginia. Submitted June 4, 1985.
Decided July 9, 1985.
Dissenting Opinion July 12, 1985.

Jolyon W. McCamic, McCamic & McCamic, Wheeling, for petitioner.

Robert B. King, King Betts & Allen, Charleston, Gary L. Johnson, Pros. Atty., Summersville, for respondent.

McGRAW, Justice, dissenting.

Fundamental disagreement with the majority in this case ¹ compels my dissent.

Page 630

[175 W.Va. 329] From the tone of the majority opinion, proper courtroom behavior is portrayed as but a one-way street. Our Judicial Code of Ethics, however, indicates otherwise. Canon 3A(3) of the Judicial Code of Ethics expressly provides, "A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity." Furthermore, as the commentary to this canon observes, "The duty to hear all proceedings fairly and with patience is not inconsistent with the duty to dispose promptly of the business of the court. Courts can be efficient and business-like while being patient and deliberate." Finally, Canon 2A of the Judicial Code of Ethics provides that, "A judge ... should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." In contrast to a judge's duty of impartiality, our Code of Professional Responsibility provides that, "The duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law." Ethical Consideration 7-1. As noted by the court in Gallagher v. Municipal Court, 31 Cal.2d 784, 796, 192 P.2d 905, 913 (1948), "An attorney has the

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duty to protect the interests of his client. He has a right to press legitimate argument and to protest an erroneous ruling."

Given the conflicting roles of judges and lawyers, it is inevitable that disagreements will arise with respect to line of demarcation between zealous and overzealous representation. The key becomes the identification of the common ground between these conflicting roles. First, there is the qualification on a lawyer's duty of zealous representation that it be "within the bounds of law." Illumination of this concept is provided by the prohibition in Disciplinary Rule 7-102 of the Code of Professional Responsibility against "[k]nowingly advanc[ing] a claim or defense that is unwarranted under existing law, except that [a lawyer] may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law." Second, there is Ethical Consideration 7-23 of the Code of Professional Responsibility, which provides [175 W.Va. 330] that, "The complexity of law often makes it difficult for a tribunal to be fully informed unless the pertinent law is presented by the lawyers in the case. A tribunal that is fully informed on the applicable law is better able to make a fair and accurate determination of the matter before it."

Clearly, the judge in the instant proceeding should have given the attorney an opportunity to support his advice to his client with pertinent authority. A brief recess for this purpose is a frequently utilized tool to afford counsel the chance to locate the law on a disputed issue. This mechanism furthers two interests. First, it avoids escalation of the confrontation between the parties concerned. Second, it supplies the tribunal with the applicable law in order that a fair and accurate determination of the disputed matter be reached....