State ex rel. McClanahan v. Hamilton

• Decision Date: 23 April 1993
• Docket Number: No. 21523,21523
• Citation: 189 W.Va. 290,430 S.E.2d 569
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Angela McCLANAHAN, Relator, v. Honorable John HAMILTON, Judge of the Circuit Court of Pendleton County, Respondent.

Page 569

430 S.E.2d 569

189 W.Va. 290

STATE of West Virginia ex rel. Angela McCLANAHAN, Relator, v. Honorable John HAMILTON, Judge of the Circuit Court of Pendleton County, Respondent.

No. 21523.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 2, 1993.

Decided April 23, 1993.

Syllabus by the Court

1. "Prosecutorial disqualification can be divided into two major categories. The first is where the prosecutor has had some attorney-client relationship with the parties involved whereby he obtained privileged information that may be adverse to the defendant's interest in regard to the pending criminal charges. A second category is where the prosecutor has some direct personal interest arising from animosity, a financial interest, kinship, or close friendship such that his objectivity and impartiality are called into question." Syllabus Point 1, Nicholas v. Sammons, 178 W.Va. 631, 363 S.E.2d 516 (1987).

2. Rule 1.9(a) of the Rules of Professional Conduct, precludes an attorney who has formerly represented a client in a matter from representing another person in the same or a substantially related matter that is materially adverse to the interests of the former client unless the former client consents after consultation.

3. Under Rule 1.9(a) of the Rules of Professional Conduct, determining whether an attorney's current representation involves a substantially related matter to that of a former client requires an analysis of the facts, circumstances, and legal issues of the two representations.

4. Once a former client establishes that the attorney is representing another party in a substantially related matter, the former client need not demonstrate that he divulged confidential information to the attorney as this will be presumed.

5. Rule 1.9(a) of the Rules of Professional Conduct recognizes that even though an attorney may have a conflict of interest with regard to a former client, the attorney may continue the representation if the former client, after consultation, consents to the representation. During this consultation, the attorney must make a full disclosure to the former client so that an intelligent decision may be made on the consent.

6. "In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, the Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." Syllabus Point 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

James Paul Geary, Geary & Geary, Petersburg, for relator.

Jerry D. Moore, Pros. Atty. of Pendleton County, Franklin, for respondent.

MILLER, Justice:

In this original proceeding in prohibition, Angela McClanahan, the relator, seeks to prevent the respondent judge from proceeding in the criminal action against her until Jerry Moore, the Prosecuting Attorney of Pendleton County, is disqualified from the case. The relator asserts that Mr. Moore should be prohibited from participating in the prosecution because he previously represented her in a civil action involving a substantially related matter. We agree, and, accordingly, we grant a writ of prohibition.

I.

On November 4, 1992, Angela McClanahan was indicted by a Pendleton County grand jury for the malicious assault of her husband, Steven McClanahan. Jerry Moore undertook to prosecute the case. The relator immediately filed a motion to disqualify Mr. Moore because of a conflict of interest.

In the motion, the relator explained that she had separated from her husband in April of 1990 and had retained Mr. Moore to represent her in a divorce proceeding. During the time Mr. Moore represented her, she alleges that she divulged confidential information to him regarding her husband's abusive conduct. Thereafter, Mr. Moore filed a complaint on behalf of Mrs. McClanahan seeking a divorce from her husband on the ground of cruel and inhuman treatment. The couple later reconciled, and the divorce proceedings were dismissed in December of 1990.

The relator contended that Mr. Moore should be disqualified from prosecuting the charge against her because her defenses of self-defense and "battered wife syndrome" are substantially related to the facts and confidential information she divulged to Mr. Moore when he represented her in the divorce action. Mr. Moore admitted that he represented the relator in the divorce proceeding. Nonetheless, he argued that he should not be disqualified because the relator never divulged confidential information or information that could be used against her in the criminal prosecution.

On December 9, 1992, after hearing arguments of counsel, the respondent judge denied the motion for disqualification. Subsequently, the relator filed this petition for a writ of prohibition. On December 29, 1992, we issued a rule to show cause why the writ should not issue.

II.

In Syllabus Point 1 of Nicholas v. Sammons, 178 W.Va. 631, 363 S.E.2d 516 (1987), we established this general rule with regard to the disqualification of a prosecuting attorney:

"Prosecutorial disqualification can be divided into two major categories. The first is where the prosecutor has had some attorney-client relationship with the parties involved whereby he obtained privileged information that may be adverse to the defendant's interest in regard to the pending criminal charges. A second category is where the prosecutor has some direct personal interest arising from animosity, a financial interest, kinship, or close friendship such that his objectivity and impartiality are called into question."

In Nicholas, the defendant had been indicted for obtaining money by false pretenses from a bank. The defendant moved to disqualify the prosecuting attorney because he had occasionally represented the bank in title work and collecting delinquent accounts. The prosecuting attorney argued that he should not be disqualified because the representation was ad hoc and he had not been generally retained by the bank. Moreover, the prosecuting attorney asserted that he had never represented the bank in connection with any transaction involving the defendant. We held that the prosecutor was not disqualified.

A.

At the time Nicholas was decided, the Code of Professional Responsibility was in effect in this jurisdiction and did not contain a counterpart to Rule 1.9 of the Rules of Professional Conduct, which governs conflicts of interest between an attorney and a former client. ¹ Consequently, we did not discuss the ramifications of Rule 1.9. ² Rule 1.9 places two general restrictions on attorneys:

"A lawyer who has formerly represented a client in a matter shall not thereafter:

"(a) represent another person in the same or substantially related matter in which that person's interest are materially adverse to the interests of the former client unless the former client consents after consultation; or

"(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client or when the information has become generally known."

In this case, we deal with Rule 1.9(a) of the Rules of Professional Conduct, which precludes an attorney who has formerly represented a client in a matter from representing another person in the same or a substantially related matter that is materially adverse to the interests of the former client unless the former client consents after consultation. The principle underlying Rule 1.9(a) is based not only upon the attorney's duty of fidelity and loyalty to his client, but also upon the attorney-client privilege, which precludes the attorney from disclosing or adversely utilizing information confidentially disclosed by his client.

B.

The substantial relationship test, which is the beginning point of any conflict-of-interest analysis, was developed before the Rules of Professional Conduct were drafted. This test was first articulated in the case of T.C. Theatre Corp. v. Warner Brothers Pictures, 113 F.Supp. 265, 268 (S.D.N.Y.1953):

"[T]hat the former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client."

See, e.g., Kevlik v. Goldstein, 724 F.2d 844 (1st Cir.1984); Government of India v. Cook Indus., Inc., 569 F.2d 737 (2d Cir.1978); Evans v. Artek Sys. Corp., 715 F.2d 788 (2d Cir.1983); Duncan v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 646 F.2d 1020 (5th Cir.), cert. denied, 454 U.S. 895, 102 S.Ct. 394, 70 L.Ed.2d 211 (1981); Freeman v. Chicago Musical Instrument Co., 689 F.2d 715 (7th Cir.1982); Gas-A-Tron of Ariz. v. Union Oil Co. of Cal., 534 F.2d 1322 (9th Cir.), cert. denied sub nom. Shell Oil Co. & Exxon Corp. v. Gas-A-Tron of Ariz., 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976); Smith v. Whatcott, 757 F.2d 1098 (10th Cir.1985); Cox v. American Cast Iron Pipe Co., 847 F.2d 725 (11th Cir.1988); Koch v. Koch Indus., 798 F.Supp. 1525 (D.Kan.1992); Derrickson v. Derrickson, 541 A.2d 149 (D.C.App.1988); Northeastern Okla. Community Dev. Corp. v. Adams, 510 P.2d 939 (Okla.1973); Howard v. Texas Dep't of Human Servs., 791 S.W.2d 313 (Tex.Civ.App.1990); Berg v. Marine Trust Co., N.A., 141 Wis.2d 878, 416 N.W.2d 643 (App.1987); Carlson v. Langdon, 751 P.2d 344 (Wyo.1988).

There are two distinct approaches to what is meant by a "substantially...