State ex rel. Morrisey v. W. Va. Office of Disciplinary Counsel

• Decision Date: 14 November 2014
• Docket Number: No. 14–0587.,14–0587.
• Citation: 234 W.Va. 238,764 S.E.2d 769
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Patrick MORRISEY, Attorney General of West Virginia, Petitioner v. WEST VIRGINIA OFFICE OF DISCIPLINARY COUNSEL and West Virginia Lawyer Disciplinary Board, Respondents.

234 W.Va. 238

764 S.E.2d 769

STATE of West Virginia ex rel. Patrick MORRISEY, Attorney General of West Virginia, Petitioner

v.WEST VIRGINIA OFFICE OF DISCIPLINARY COUNSEL and West Virginia Lawyer Disciplinary Board, Respondents.

No. 14–0587.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 30, 2014.

Decided Oct. 15, 2014.

Nov. 14, 2014.

Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, J. Zak Ritchie, Assistant Attorney General, Charleston, WV, for Petitioner.

Rachael L. Fletcher Cipoletti, Renee N. Frymyer, Office of Disciplinary Counsel, Charleston, WV, for Respondents.

Christopher C. Quasebarth, Berkeley County Prosecutor's Office, Martinsburg, WV, Brandon C.H. Sims, Jefferson County Prosecutor's Office, Charles Town, WV, for Amicus Curiae, West Virginia Prosecuting Attorneys Association.

Opinion

DAVIS, Chief Justice:

This matter was brought under the original jurisdiction of this Court by Patrick Morrisey, Attorney General of West Virginia. The Attorney General seeks a writ of prohibition against the Office of Disciplinary Counsel and the West Virginia Lawyer Disciplinary Board (collectively “ODC”) to prevent ODC from enforcing an informal advisory opinion that it issued.¹ The informal advisory opinion determined that the Attorney General did not have authority to prosecute criminal cases outside of the limited prosecutorial authority granted by W. Va.Code § 5–3–2 (1987) (Repl.Vol.2013).² The ODC also indicated in the informal advisory opinion that Rule 8.4(d) of the Rules of Professional Conduct would be violated if the Attorney General prosecuted criminal cases outside the scope of that which was provided by statute. The ODC further also concluded that Rule 1.7(b) of those rules could potentially be violated.

In support of his request for the writ of prohibition, the Attorney General contends that county prosecutors have authority to request the Attorney General to assist with criminal prosecutions, and that the office of Attorney General has independent common law authority to prosecute criminal cases. After a careful review of the briefs and the appendix filed, and listening to the argument of the parties, we deny the writ.³

I.FACTUAL AND PROCEDURAL HISTORY

On October 9, 2013, a Mingo County Commissioner, Greg Smith, telephoned the Attorney General's office with a request that the Attorney General provide prosecutorial services for the county.⁴ In response to the request, the Attorney General telephoned ODC and asked whether “a deputy or assistant attorney general who accepted appointment as the Mingo County prosecutor would need to resign from the Office of Attorney General or take a leave of absence.” According to the Attorney General, ODC responded that such an appointment would trigger disciplinary action.⁵

Not satisfied with ODC's response, the Attorney General telephoned ODC the following day with a modified question. This time the Attorney General asked ODC “whether a deputy or assistant attorney general could ethically accept appointment as a special assistant prosecutor supervised by a prosecuting attorney.” According to the Attorney General, ODC once again stated that the Rules of Professional Conduct prohibited such an appointment.⁶

On October 17, 2013, the Attorney General sent ODC a letter requesting a formal advisory opinion on the following question: “Whether under the Rules of Professional Conduct a deputy or assistant attorney general may ethically accept appointment as a special assistant prosecutor by a county prosecutor pursuant to West Virginia Code § 7–7–8.” The Attorney General's letter outlined in detail the reasons he believed that no ethical violation would result from his office undertaking prosecutorial duties. The letter concluded that, in the event of a conflict arising from such duties, the conflicted attorney could be screened and that “the Rules cannot infringe on the Office of Attorney General's common law and statutory authority to assist county prosecutors with their duties.”

On January 24, 2014, the ODC responded to the Attorney General's request for a formal advisory opinion by stating that ODC “declines to issue a formal advisory opinion in this matter and considers this response to be an informal advisory opinion pursuant to Rule 2.15[.]”⁷ The informal advisory opinion issued by ODC stated:

[T]he Lawyer Disciplinary Board determined that there currently exists in West Virginia no authority, constitutional, statutory or otherwise, for the Attorney General to assist county prosecutors with criminal prosecutions outside of what is contemplated in W. Va.Code § 5–3–2 (concerning the prosecution of criminal proceedings arising from extraordinary circumstances existing at state institutions of corrections). Thus, it was the opinion of the Lawyer Disciplinary Board that to assist a county prosecutor in the criminal prosecutions contemplated in your request would be a violation of Rule 8.4(d) of the Rules of Professional Conduct and, as was previously discussed, a potential violation of Rule 1.7(b) of the Rules of Professional Conduct. It is further noted that it is not likely a waivable conflict because of state actors.

The Attorney General's brief indicates that, on June 2, 2014, he received a letter by facsimile from the prosecuting attorney of Preston County requesting assistance with criminal prosecutions. However, because of the informal advisory opinion of ODC, the Attorney General contends that he did not accept the request from the prosecutor. Instead, the Attorney General filed the instant petition for a writ of prohibition.

II.STANDARD OF REVIEW

This Court has explained the standard of review applicable to a writ of prohibition by stating 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.” Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). In Syllabus point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), this Court held:

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 impressionThese 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.

III.DISCUSSION

The instant proceeding comes before this Court as a petition for a writ of prohibition. Prior to addressing the merits of the request for relief, we must consider whether the Attorney General has standing to invoke this Court's extraordinary jurisdiction in the first instance. We then will examine the collateral issue of whether the Attorney General has authority to prosecute criminal offenses.

A. Standing and the Issuance of an Advisory Opinion by this Court

Here, the Attorney General seeks to prohibit enforcement of an informal advisory opinion by ODC. Although we have had occasion to consider a petition for a writ of prohibition against ODC, it has never been in the context of a petition to prohibit enforcement of an informal advisory opinion. Usually, a writ of prohibition has been sought against ODC after a complaint has been filed against a lawyer. See State ex rel. York v. West Virginia Office of Disciplinary Counsel, 231 W.Va. 183, 744 S.E.2d 293 (2013) (denying writ of prohibition to attorney seeking to prohibit ODC from prosecuting him for alleged ethics violations); State ex rel. Clifford v. West Virginia Office of Disciplinary Counsel, 231 W.Va. 334, 745 S.E.2d 225 (2013) (granting writ to prohibit ODC from prosecuting a complaint alleging conflict of interest by attorney); State ex rel. Scales v. Committee on Legal Ethics of West Virginia State Bar, 191 W.Va. 507, 446 S.E.2d 729 (1994) (granting writ of prohibition to stop ethics investigation). For the reasons set forth, we have determined that the petition for a writ of prohibition in this case is improper because the Attorney General lacks standing, and the relief sought is advisory. The grounds for denial are discussed separately below.

1. The Attorney General lacks standing. The Attorney General has not alleged that an ethics complaint was filed against him. Nor has ODC begun an independent investigation into a possible ethical violation by the Attorney General with respect to the specific facts alleged in the petition. ODC has simply responded to a request by the Attorney General to render an opinion about the participation of the Attorney General in criminal prosecutions under specific circumstances. ODC rendered an informal advisory opinion indicating that if the Attorney General engaged in criminal prosecutions under the circumstances outlined by him, Rule 8.4(d) would be violated, and Rule 1.7(b) had the potential of being violated. The Attorney General seeks a writ of prohibition to prevent enforcement of this non-binding informal advisory opinion. This is not a proper basis for seeking a writ of prohibition and does not satisfy any of the factors enunciated in Hoover. More importantly, the Attorney...