State ex rel. Blake v. Hatcher, 32747.

• Decision Date: 18 November 2005
• Docket Number: No. 32747.,32747.
• Citation: 624 S.E.2d 844
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Paul M. Blake, Jr., Prosecuting Attorney, Petitioner v. The Honorable John W. HATCHER, Jr., Judge of the Circuit Court of Fayette County and Robert Eugene Carroll, Respondents.

Page 844

624 S.E.2d 844

STATE of West Virginia ex rel. Paul M. Blake, Jr., Prosecuting Attorney, Petitioner v. The Honorable John W. HATCHER, Jr., Judge of the Circuit Court of Fayette County and Robert Eugene Carroll, Respondents.

No. 32747.

Supreme Court of Appeals of West Virginia.

Submitted September 14, 2005.

Decided November 18, 2005.

COPYRIGHT MATERIAL OMITTED

Syllabus by the Court

1. "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

2. "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." Syllabus Point 1, Garlow v. Zakaib, 186 W.Va. 457, 413 S.E.2d 112 (1991).

3. The State of West Virginia, through a prosecuting attorney, has standing to move for disqualification of defense counsel in a criminal proceeding in limited circumstances where there appears to be an actual conflict of interest or where there is a significant potential for a serious conflict of interest involving defense counsel's former (or current) representation of a State witness.

4. Where the State moves for disqualification of a criminal defendant's counsel of choice due to counsel's former representation of a State witness, the State bears a heavy burden of proving disqualification is necessary and justified. A presumption in favor of a defendant's choice of counsel exists. However, this presumption may be overcome where the State demonstrates that an actual conflict of interest exists or that there exists a significant potential for a serious conflict of interest. In determining whether a conflict of interest should overcome the presumption in favor of defendant's choice of counsel, the circuit court must balance: (1) the defendant's right to be represented by counsel of choice; (2) the defendant's right to a defense conducted by an attorney who is free of conflicts of interest; (3) the court's interest in the integrity of its proceedings; (4) the witness's interest in protection of confidential information; (5) the public's interest in the proper administration of justice; (6) the probability that continued representation by counsel of choice will provide grounds for overturning a conviction; and (7) the likelihood that the State is attempting to create a conflict in order to deprive the defendant of his counsel of choice. Factors which the circuit court should weigh in conducting this balance include, but are not limited to: (1) the potential for use of confidential information by defendant's counsel when cross-examining the State's witness; (2) the potential for a less than zealous cross-examination by defendant's counsel of the State's witness; (3) the defendant's interest in having the undivided loyalty of his or her counsel; (4) the State's right to a fair trial; and (5) the appearance of impropriety should the jury learn of the conflict. These factors are to be considered in light of the individual facts and circumstances of each case.

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." Syllabus Point 5, Garlow v. Zakaib, 186 W.Va. 457, 413 S.E.2d 112 (1991).

6. A circuit court presented with a motion by the State to disqualify a criminal defense counsel due to a conflict of interest arising from counsel's former representation of a State witness shall hold a hearing to afford the State, the defendant and the State's witness an opportunity to present evidence regarding their competing interests. The circuit court shall not require the client to disclose confidential information during the hearing, but may, in appropriate circumstance where there is a significant question regarding the possibility of disclosure of confidential information at trial, conduct an in camera review of the purported confidential information. The circuit court shall set forth the findings in a manner adequate for review.

Brian D. Parsons, Fayette County Assistant Prosecuting Attorney, Fayetteville, for Petitioner.

Michael T. Clifford, Bayliss & Phalen, PLLC, Montgomery, for Intervenor Charles G. Keenan.

BENJAMIN, Justice:

Paul M. Blake, Jr.,¹ Prosecuting Attorney of Fayette County, West Virginia, invokes the original jurisdiction of this Court seeking an Order reversing the Circuit Court of Fayette County, West Virginia's March 25, 2005 Order denying the State's motion to disqualify defense counsel, John R. Mitchell, Sr., in the matter of State v. Robert Eugene Carroll, Indictment No. 05-F-12. The basis of the State's motion before the circuit court was a claimed conflict of interest arising from defense counsel's prior representation of a State's witness and the witness's relatives in various criminal and civil proceedings. The circuit court denied the State's motion, finding the State did not have standing to seek to disqualify defense counsel. Upon our review of this matter, we find that the State may be afforded standing to seek disqualification of a criminal defense counsel. We also order that a writ of prohibition shall issue prohibiting the Circuit Court of Fayette County from further proceeding in the matter of State v. Robert Eugene Carroll, Indictment Number 05-F-12, until such time as a hearing is held in the matter and the circuit court determines whether or not John R. Mitchell, Sr. should properly be disqualified from serving as defense counsel in the underlying matter in light of the guidance provided herein.

I. FACTS AND PROCEDURAL HISTORY

During its January 2005 term, the Fayette County grand jury returned Indictment Number 05-F-12 against Respondent Robert Eugene Carroll charging him with the crimes of Murder in the First Degree and Sexual Assault in the First Degree. The charges arise from the 1986 attack and murder of Cathy Faye Carroll, Respondent's estranged wife, and the sexual assault of her fifteen year old daughter.

Following John R. Mitchell, Sr.'s appearance as counsel for Mr. Carroll, the State filed a motion to disqualify Mr. Mitchell and his law firm as counsel for Mr. Carroll due to an alleged conflict of interest. The alleged conflict of interest arises from Mr. Mitchell's prior representation of Charles G. Keenan and Mr. Keenan's relatives.² Mr. Keenan has been designated as a material fact witness relative to the charges brought against Mr. Carroll. Neither party disputes that Mr. Mitchell's representation of Mr. Keenan ceased shortly before the Carroll indictment.³ The State's motion asserted that Mr. Mitchell's representation of Mr. Keenan "presents a real and substantial conflict of interest, making his further representation of Robert Eugene Carroll improper and unethical and give[s] the appearance of impropriety."

At the direction of the circuit court, Mr. Mitchell obtained an informal legal ethics opinion from the Office of Disciplinary Counsel. In a letter dated February 15, 2005, the Office of Disciplinary Counsel stated that the "situation appears to create an appearance of impropriety." The informal opinion expressed concern regarding Mr. Mitchell's ability to cross-examine Mr. Keenan without the disclosure of confidential information. It also questioned whether the earlier representation of Mr. Keenan could result in a material limitation of the scope of Mr. Keenan's cross-examination to the detriment of Mr. Carroll. Following a February 28, 2005 hearing on the State's motion, the circuit court entered an Order on March 25, 2005 denying the State's motion for lack of standing.

The Fayette County Prosecuting Attorney filed his Petition for Writ of Prohibition with this Court on May 24, 2005. On June 9, 2005, after consideration of the matters raised in the Petition and in Mr. Carroll's response thereto, this Court issued a rule to show cause why the requested writ should not be awarded. Subsequently, on June 22, 2005, Charles G. Keenan filed a Motion to Intervene in this matter, requesting both the disqualification of Mr. Mitchell from Mr. Carroll's...