State ex rel. Michael AP v. Miller

• Decision Date: 24 March 2000
• Docket Number: No. 26851.,26851.
• Citation: 207 W.Va. 114,529 S.E.2d 354
• Parties: STATE of West Virginia ex rel. MICHAEL A.P., Petitioner, v. Honorable Lawrance S. MILLER, Jr., Judge of the Circuit Court of Preston County, the West Virginia Department of Health and Human Resources and the Monongalia County Youth Services Center, Respondents.
• Court: West Virginia Supreme Court

529 S.E.2d 354

207 W.Va. 114

STATE of West Virginia ex rel. MICHAEL A.P., Petitioner, v. Honorable Lawrance S. MILLER, Jr., Judge of the Circuit Court of Preston County, the West Virginia Department of Health and Human Resources and the Monongalia County Youth Services Center, Respondents.

No. 26851.

Supreme Court of Appeals of West Virginia.

Submitted February 15, 2000.

Decided March 24, 2000.

Virginia Jackson Hopkins, Kingwood, West Virginia, Attorney for the Petitioner.

Melvin C. Snyder III, Prosecuting Attorney for Preston County, Kingwood, West Virginia, Attorney for Respondent, Honorable Lawrance S. Miller. DAVIS, Justice:

In this original proceeding in prohibition, Michael A.P.,¹ a juvenile, seeks to prohibit the Circuit Court of Preston County, acting in its juvenile court capacity, from enforcing its order of November 18, 1999. By that order, the court disqualified Michael's court-appointed counsel from further representing him due to the appearance of impropriety arising from her former representation of another juvenile who is expected to be called as a witness for the State in the proceedings against Michael. Michael contends that, because the parties concerned have waived any potential conflict of interest, the disqualification order should not be enforced. We hold that the decision whether to disqualify counsel, even when any conflict has been waived, is within the discretion of the trial court. In addition, we conclude that no appropriate grounds for issuing a writ of prohibition were presented in this case. Therefore, the writ is denied.

I. FACTUAL AND PROCEDURAL HISTORY

On September 27, 1999, the Preston County Prosecutor filed a juvenile delinquency petition against Michael A.P., the petitioner, alleging various offenses including possessing a deadly weapon on school property.² Michael, a student, was allegedly found to have brought a knife to school with him. During a preliminary hearing in this matter, Virginia Jackson Hopkins was appointed to represent Michael. In addition, the principal of the school testified at the hearing. He stated that another student, Daniel B., who had also been found to have a knife on school property, alerted him that Michael had a knife at school. Following the preliminary hearing, Michael was placed in the legal custody of the West Virginia Department of Health and Human Resources and, and in the physical custody of the Monongalia County Youth Services Center.

Subsequent to Michael's preliminary hearing, Ms. Hopkins was appointed to represent Daniel B. in connection with charges against him for having a knife on school property. However, at a preliminary hearing on the charges against Daniel, the assistant prosecuting attorney moved that Ms. Hopkins be disqualified due to the conflicting interests of the two boys, who were both being represented by Ms. Hopkins. Although Ms. Hopkins objected to being disqualified, the circuit court granted the prosecutor's motion and appointed other counsel for Daniel.

Meanwhile, in Michael's case, Ms. Hopkins requested a trial by jury and further asked that Michael be released to the custody of his father. Sometime after these requests were made, the prosecuting attorney filed a motion to disqualify Ms. Hopkins from representing Michael. The prosecutor asserted that during Ms. Hopkins' representation of Daniel, she was believed to have discussed with him the facts relating to Michael. Furthermore, the prosecutor stated that Daniel was expected to testify at the adjudicatory hearing in Michael's case. The prosecutor argued that Ms. Hopkins' examination of Daniel at Michael's adjudicatory hearing would create an actual conflict, or at least the appearance of impropriety. Ms. Hopkins resisted being disqualified. She asserted that there was no actual conflict as the boys gave corresponding accounts of the relevant events.³ She also reported that the juveniles and their parents had waived any potential conflict, though she presented the court with no evidence demonstrating this fact.⁴ After conducting a hearing on the motion to disqualify, the circuit court entered an order finding Ms. Hopkins was disqualified from further representing Michael. In its order, the court explained:

[I]t may create the appearance of impropriety for Ms. Hopkins to continue representation of the Juvenile Respondent. In particular, there is a likelihood that Ms. Hopkins will cross examine, Daniel [B.], another Juvenile Respondent, who she previously represented, about matters related to this case which she discussed with him while she represented him.

Michael, through Ms. Hopkins, then filed a petition for writ of prohibition in this Court seeking to prohibit the circuit court from disqualifying Ms. Hopkins as his counsel.⁵ We granted a rule to show cause. We now deny the writ of prohibition.

II. STANDARD FOR WRIT OF PROHIBITION

Expressing the limits to our exercise of original jurisdiction in prohibition, we have frequently explained that "`[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va.Code, 53-1-1.' Syllabus point 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977)." Syl. pt. 1, State ex rel. Sims v. Perry, 204 W.Va. 625, 515 S.E.2d 582 (1999). As the disqualification of counsel is clearly within a trial court's jurisdiction,⁶ prohibition will lie in this case only if it can be demonstrated that the court exceeded its legitimate powers.

"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." Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

Syl. pt. 1, State ex rel. Youth Servs. Sys., Inc. v. Wilson, 204 W.Va. 637, 515 S.E.2d 594 (1999). Having reviewed these standards, we now discuss the petition that is before us.

III. DISCUSSION

In support of this petition, counsel for Michael argues only that she had obtained waivers that comport with Rule 1.7 of the West Virginia Rules of Professional Conduct and that a "conflict charged by an opposing party is to be viewed with caution." Citing State ex rel. Taylor Assocs. v. Nuzum, 175 W.Va. 19, 23, 330 S.E.2d 677, 681-82 (1985). Counsel was silent with regard to whether the extraordinary remedy of prohibition is appropriate in this instance. However, this threshold issue must be resolved before we may address the substantive issue asserted.

On the question of a circuit court's authority to disqualify a lawyer upon the motion of a party, we have previously held:

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

Syl. pt. 2, Musick v. Musick, 192 W.Va. 527, 453 S.E.2d 361 (1994) (emphasis added). In this syllabus point, we used the word "may," thereby indicating that the decision whether to grant or deny a motion to disqualify is within the trial court's discretion. "The word `may' generally signifies permission and connotes discretion." State v. Hedrick, 204 W.Va. 547, 552, 514 S.E.2d 397, 402 (1999) (citations omitted). See also Powers v. Union Drilling, Inc., 194 W.Va. 782, 786, 461 S.E.2d 844, 848 (1995) (stating "[t]he legislators' choice of the term `may' ... was intended to operate in a discretionary, rather than an obligatory, manner"); Weimer-Godwin v. Board of Educ. of Upshur County, 179 W.Va. 423, 427, 369 S.E.2d 726, 730 (1988) ("The word `may' generally should be read as conferring both permission and power."); Hodge v. Ginsberg, 172 W.Va. 17, 22, 303 S.E.2d 245, 250 (1983) ("We agree with the respondent that the use of the word `may' in a statute often indicates discretion.").

Various other jurisdictions have similarly recognized that the ultimate decision of whether to disqualify a lawyer is left to the discretion of the trial judge.⁷ See Wheat v. United States, 486 U.S. 153, 164, 108 S.Ct. 1692, 1700, 100 L.Ed.2d 140, 152 (1988)

("The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court."); United States v. Williams, 81 F.3d 1321, 1325 (4th Cir.1996) (determining that "disqualification of [the defendant's] counsel was well within the district court's discretion"); United States v. Koon, 34 F.3d 1416, 1436-37 (9th Cir.1994) (commenting that a district court's disqualification of a lawyer is reviewed for an abuse of discretion), ...