Garlow v. Zakaib

• Decision Date: 17 December 1991
• Docket Number: 20205,Nos. 20204,s. 20204
• Citation: 186 W.Va. 457,413 S.E.2d 112
• Court: West Virginia Supreme Court
• Parties: Charles G. GARLOW, Petitioner, v. Honorable Paul ZAKAIB, Jr., Judge of the Circuit Court of Kanawha County, Respondent. David L. GRUBB, Petitioner, v. Honorable Paul ZAKAIB, Jr., Judge of the Circuit Court of Kanawha County, Respondent.

Page 112

413 S.E.2d 112

186 W.Va. 457

Charles G. GARLOW, Petitioner, v. Honorable Paul ZAKAIB, Jr., Judge of the Circuit Court of

Kanawha County, Respondent.

David L. GRUBB, Petitioner, v. Honorable Paul ZAKAIB, Jr., Judge of the Circuit Court of

Kanawha County, Respondent.

Nos. 20204, 20205.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 10, 1991.

Decided Dec. 17, 1991.

Syllabus by the Court

1. A circuit court, upon motion of a party, by its inherent power to do what is reasonably necessary for the administration of justice, may disqualify a lawyer from a case because the lawyer's representation in the case presents a conflict of interest where the conflict is such as clearly to call in question the fair or efficient administration of justice. Such motion should be viewed with extreme caution because of the interference with the lawyer-client relationship.

2. "Rule 3.7 of the Rules of Professional Conduct state[s] that it is unethical for a lawyer representing a client to appear as a witness on behalf of the client except under very limited conditions." Syl. pt. 1, in part, Smithson v. United States Fidelity & Guaranty Co., 186 W.Va. 195, 411 S.E.2d 850 (1991).

3. " 'When counsel for a party to a cause finds that he is required to be a material witness for his client he should immediately so advise his client and retire as counsel in the case.' Syllabus Point 8, Edmiston v. Wilson, 146 W.Va. 511, 120 S.E.2d 491 (1961)." Syl. pt. 2, Smithson v. United States Fidelity & Guaranty Co., 186 W.Va. 195, 411 S.E.2d 850 (1991).

4. "When an attorney is sought to be disqualified from representing his client because an opposing party desires to call the attorney as a witness, the motion for disqualification should not be granted unless the following factors can be met: First, it must be shown that the attorney will give evidence material to the determination of the issues being litigated; second, the evidence cannot be obtained elsewhere; and, third, the testimony is prejudicial or may be potentially prejudicial to the testifying attorney's client." Syl. pt. 3, Smithson v. United States Fidelity & Guaranty Co., 186 W.Va. 195, 411 S.E.2d 850 (1991).

5. Before a circuit court disqualifies a lawyer in a case because the lawyer's representation may conflict with the Rules of Professional Conduct, a record must be made so that the circuit court may determine whether disqualification is proper. Furthermore, this Court will not review a circuit court's order disqualifying a lawyer unless the circuit court's order is based upon an adequately developed record. In the alternative, if the circuit court's order disqualifying a lawyer is based upon an inadequately developed record, this Court, under appropriate circumstances, may remand a case to the circuit court for development of an adequate record.

Elizabeth A. Pyles, Pyles & Auvil, Parkersburg, for the petitioners.

No appearance for respondent.

Kenneth E. Knopf, Cleek, Pullin & Bibb, Charleston, for Charles G. Brown, real party in interest in No. 20204.

David P. Cleek, Cleek, Pullin & Bibb, Charleston, for Charles G. Brown, real party in interest in No. 20205.

McHUGH, Justice:

These original proceedings are before the Court upon the petitions of Charles G. Garlow and David L. Grubb. The respondent in both cases is the Honorable Paul Zakaib, Judge of the Circuit Court of Kanawha County. The petitioners seek a writ of prohibition restraining enforcement of the November 19, 1990 orders of the circuit court.

I.

Civil proceedings were instituted by the petitioners against Charles G. Brown, former attorney general, in the circuit court. ¹ On August 22, 1990, Brown filed a motion to disqualify the law firm of Pyles & Auvil, and individual attorneys Elizabeth Pyles and Walt Auvil, from representing the petitioners in the underlying action because Auvil had been employed in the Office of Attorney General during the time Brown served as attorney general.

Factual stipulations before this Court indicate that in these cases, Elizabeth Pyles, as a sole practitioner, filed the underlying actions prior to forming a partnership with Walt Auvil. ²

The underlying actions are primarily based upon allegations of retaliatory discharge of the petitioners by the defendant Brown. It is alleged by the defendant Brown that the petitioner Garlow was dismissed for failure to file an appeal in a timely fashion, and that the petitioner Grubb was dismissed for a number of reasons, primarily, though, for inherent conflicts with respect to Grubb's involvement with an organization that filed a lawsuit against the State of West Virginia.

The petitioners, on the other hand, claim that Grubb was dismissed for raising questions with respect to Brown allegedly soliciting political campaign contributions illegally. ³ Furthermore, the petitioners claim that Garlow was dismissed for his close association with Grubb and the controversy surrounding Grubb's dismissal.

It is also alleged by Brown, that Auvil, who worked in the Anti-Trust Division of the Attorney General's Office, worked closely with the Consumer Protection Division on various cases. Both petitioners worked in the Consumer Protection Division. Brown further alleges that the physical proximity of Auvil's office to the petitioners' offices was close. Therefore, Brown maintains that Auvil is intimately acquainted with issues related directly to the underlying actions, specifically, the petitioners' ability to carry out the duties of their employment.

The defendant Brown also contends that Auvil is a potential witness concerning the events leading to the petitioners' dismissals. It is stipulated that Auvil has already testified before the grand jury which indicted Brown for the alleged illegal campaign practices.

On November 19, 1990, the circuit court granted the defendant Brown's motion, nunc pro tunc August 22, 1990. In granting the defendant's motion, the circuit court found that "continued representation of plaintiff[s] by either Walt Auvil or his law partner, Elizabeth Pyles, would create an appearance of impropriety, the likelihood of a potential conflict of interest in the future, and is otherwise inconsistent with the West Virginia Rules of Professional Conduct."

Accordingly, the circuit court disqualified the attorneys in their individual capacities, as well as their firm, from further representation of the petitioners. It is enforcement of this order which the petitioners seek to prohibit.

The petitioners allege that Rule 1.8 of the Rules of Professional Conduct, discussed infra, is the only authority contained therein under which a court may order the withdrawal of counsel from a particular case based upon a claim of conflict of interest. Moreover, the petitioners contend that the circuit court's ruling fails to establish that an existing conflict is present, or what potential conflict might arise. The circuit court's ruling, the petitioners maintain, appears to be predicated upon the mere possibility of conflict which might exist in the future. ⁴

Although the petitioners allege that Rule 1.8 is the "only" authority by which a court can order withdrawal of counsel, it is apparent that other provisions of the Rules of Professional Conduct may be implicated in this case.

II.

Before we address the specific Rules which may be implicated in this case, we first address an issue raised by Charles Brown, the defendant in the underlying action. Specifically, that issue is whether a circuit court judge has the authority to disqualify a lawyer from a case because that lawyer's representation may be in violation of the Rules of Professional Conduct. ⁵

This Court has not directly addressed this issue. In Carey v. Dostert, 170 W.Va. 334, 294 S.E.2d 137 (1982), we held that a circuit court judge has neither statutory nor common-law authority to suspend or annul a lawyer's license to practice law. In Carey, we relied upon syllabus point 1 of State ex rel. Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982), which states: "The exclusive authority to define, regulate and control the practice of law in West Virginia is vested in the Supreme Court of Appeals." (emphasis supplied)

However, the cases now before us do not involve the practice of law in general, nor do they involve disciplinary proceedings. Rather, they deal with the possibility of a violation of the Rules of Professional Conduct due to representation by a lawyer or the lawyer's firm.

In United States v. Clarkson, 567 F.2d 270 (4th Cir.1977), the United States Court of Appeals for the Fourth Circuit set forth a test for determining whether disqualification by the trial court is proper where a potential conflict of interest exists.

In determining whether to disqualify counsel for conflict of interest, the trial court is not to weigh the circumstances 'with hair-splitting nicety' but, in the proper exercise of its supervisory power over the members of the bar and with a view of preventing 'the appearance of impropriety,' it is to resolve all doubts in favor of disqualification.

Id. at 273 n. 3. Accord, Stitz v. Bethlehem Steel Corp., 650 F.Supp. 914, 916 (D.Md.1987).

Although, as pointed out, it is this Court, and not the trial court, that has the authority to define, regulate, and control the practice of law, the trial court " 'has inherent power to do all things that are reasonably necessary for the administration of justice within the scope of its jurisdiction.' " Syl. pt. 3, in part, Shields v. Romine, 122 W. Va. 639, 13 S.E.2d 16 (1940) (internal citation omitted). Accord, syl. pt. 2, F.S. & P. Coal Co. v. Inter-Mountain Coals, Inc., 179 W.Va. 190, 366 S.E.2d 638 (1988).

W.Va.R.Prof.Cond. 1.7 sets forth the general rules pertaining to conflicts of interest. The Comment to this Rule, in part, suggests that it is appropriate for a trial court to at least raise the question of a possible conflict. ⁶

Resolving questions of conflict of interest is...