State ex rel. Ogden Newspapers v. Wilkes

Citation566 S.E.2d 560,211 W.Va. 423
Decision Date06 June 2002
Docket NumberNo. 30248.,30248.
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia ex rel. the Ogden Newspapers, Inc., a West Virginia Corporation, D.B.A. the Journal Publishing Company, a West Virginia Corporation, Petitioner, v. Honorable Christopher C. WILKES, Judge of the Circuit Court of Berkeley County, and Richard W. Shaffer, Respondents.
Concurring and Dissenting Opinion of Chief Justice Davis June 19, 2002.

Robert M. Steptoe, Jr., Rodney L. Bean, Steptoe & Johnson, Clarksburg, for the Petitioner.

David M. Hammer, Robert J. Schiavoni, Hammer, Ferretti & Schiavoni, Martinsburg, Walt Auvil, Pyles & Auvil, Parkersburg, for the Respondent, Richard W. Shaffer.


The petitioner/defendant below, Ogden Newspapers, Inc., doing business as The Journal Publishing Company (hereinafter "Ogden"), has invoked the original jurisdiction of this Court1 by seeking a writ of prohibition against respondent, the Honorable Christopher C. Wilkes, Judge of the Circuit Court of Berkeley County, and respondent/plaintiff below, Richard W. Shaffer (hereinafter "Shaffer"). Ogden is seeking specifically to prohibit the circuit court from enforcing its order entered January 5, 2001, which denied Ogden's motion to disqualify David M. Hammer and Robert J. Schiavoni (hereinafter "Hammer and Schiavoni"), of the law firm Hammer, Ferretti & Schiavoni, and Walt Auvil (hereinafter "Auvil"), of the law firm Pyles & Auvil, from representing Shaffer in his case against Ogden alleging improper employment practices. Ogden argues that the effect of the lower court's order is to allow Hammer and Schiavoni to represent a party with interests adverse to those of Ogden in matters substantially related to work the attorneys had done for Ogden while they were associates at the law firm of Steptoe & Johnson. Ogden claims that the lower court's order violates Rule 1.9 of the Rules of Professional Conduct (hereinafter "Rule 1.9") and disregards this Court's previous holding in State ex rel. Ogden Newspapers, Inc. v. Wilkes, 198 W.Va. 587, 482 S.E.2d 204 (1996) (hereinafter "Ogden I"), which involved an employment discrimination case from which both Hammer and Schiavoni were disqualified. Ogden further argues that if Hammer and Schiavoni are disqualified under the provisions of Rule 1.9, then Auvil's association as co-counsel with Hammer and Schiavoni in the Shaffer case raises the presumption that Auvil received confidential information related to Ogden and as a consequence also should be disqualified according to the provisions of Rule 1.10 of the professional conduct rules. Having determined that mandatory disqualification of counsel pursuant to Rule 1.9 is not warranted in this case, the rule to show cause is discharged and the writ prayed for denied.

I. Factual Background

The matter underlying this petition for a writ of prohibition is a civil action pending in the Berkeley County Circuit Court which was filed in August 2000 against Ogden by Shaffer as a former employee. Shaffer's complaint alleges that his discharge and Ogden's refusal to transfer or rehire him were motivated by discrimination based on age and Ogden's "perception of plaintiff's disability" in violation of the West Virginia Human Rights Act,2 and claims additionally that Ogden violated West Virginia's Workers' Compensation Act3 and common law when it terminated his continued employment because the company feared that he may apply for workers' compensation benefits for the work-related injury of stress-induced hypertension. Hammer, Schiavoni and Auvil were selected by Shaffer to serve as his attorneys in this suit.

The law firm of Steptoe & Johnson is representing Ogden in the Shaffer suit. Steptoe & Johnson has provided legal representation to Ogden for over thirty years, including the periods when Hammer and Schiavoni worked for the firm as associates.4 Based on this prior association with Steptoe & Johnson, Ogden filed a motion to disqualify Hammer and Schiavoni from the Shaffer suit; the motion also sought to disqualify Auvil on the basis that his affiliation with Hammer and Schiavoni raised a presumption that he was the recipient of confidential information about Ogden. The lower court denied the motion for disqualification by order entered January 5, 2001.

II. Jurisdiction and Standard of Review

In syllabus point one of Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979), we summarized the considerations which influence when a rule to show cause should issue in response to a petition for a writ of prohibition as follows:

In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this 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.

Furthermore, in Ogden I we recognized the accepted practice of filing a writ of prohibition pursuant to the original jurisdiction of this Court in order to obtain timely judicial review of a lower court's decision regarding a motion for disqualification of an attorney. Ogden I, 198 W.Va. at 589, 482 S.E.2d at 206. Consequently, we turn to the examination of the disqualification issue which is properly before us.

III. Discussion

Ogden initially argues that the circuit court's order disregards a previous ruling of this Court because the disqualification issue presented in the instant case is the "identical case involving the same parties, the same judge and the same cause of action" which was before this Court in Ogden I. As this assertion does not reflect current case law regarding dealing with attorney disqualification under Rule 1.9, we disagree.

Disqualification of an attorney based on conflict of interest with a former client is governed by Rule 1.9 of the West Virginia Rules of Professional Conduct which states:

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 [sic] 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 syllabus point three of State ex rel. McClanahan v. Hamilton, 189 W.Va. 290, 430 S.E.2d 569 (1993), we explained that "[u]nder 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." Id. at 291, 430 S.E.2d at 570. In State ex rel. DeFrances v. Bedell, 191 W.Va. 513, 446 S.E.2d 906 (1994), we recognized that such a detailed comparative analysis is necessarily conducted on a case-by-case basis: "The determination of the existence of an attorney-client relationship depends on each cases's specific facts and circumstances." Id. at 517, 446 S.E.2d at 910. The conclusion in Ogden I was based on the facts then under review, that is, Hammer and Schiavoni were disqualified from representing a specific client (Robin Wilkinson) in her specific "handicap discrimination case" against Ogden and was clearly limited to those specific facts. See, 198 W.Va. at 593, 482 S.E.2d at 210. Accordingly, we do not find that the lower court's order in this case denying the disqualification motion represented a disregard of the relevant ruling of this Court in Ogden I.

We now undertake our examination "of the facts, circumstances, and legal issues" specific to the Shaffer case in order to determine if disqualification is required under Rule 1.9, as urged by Ogden, because a substantial relationship between the matters in the two representations exists. McClanahan,189 W.Va. at 291,430 S.E.2d at 570. Under the provisions of Rule 1.9 and our rulings regarding the same, the burden of establishing that a substantially related matter exists is on the former client. Once it is established that the matters are substantially related, the court will presume that confidential information was divulged during the earlier representation, thereby avoiding disclosure of the very information which is to be protected. See, Syl. Pt. 4, McClanahan,189 W.Va. at 291,430 S.E.2d at 570. We recently added further definition to the substantial relationship test in syllabus point one of State ex rel. Keenan v. Hatcher, 210 W.Va. 307, 557 S.E.2d 361 (2001), when we adopted the approach taken in § 132 Restatement (Third) of the Law Governing Lawyers and said that two matters are substantially related under Rule 1.9(a) if "there is a substantial risk that representation of the present client will involve the use of [confidential] information acquired in the course of representing the former client, unless that information has become generally known." The express language of section (b) of Rule 1.9 likewise acknowledges that information which is or becomes commonly known lies outside the parameters of confidential information and may be used against a former client in subsequent actions.

In addition to the petition, briefs5 and arguments of the parties, we have before us documentary evidence, submitted under seal, of the type of legal...

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