State v. W. Va. Office of Disciplinary Counsel

• Decision Date: 07 June 2013
• Docket Number: No. 13–0009.,13–0009.
• Citation: 231 W.Va. 334,745 S.E.2d 225
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Michael T. CLIFFORD, Petitioner v. WEST VIRGINIA OFFICE OF DISCIPLINARY COUNSEL and West Virginia Lawyer Disciplinary Board, Respondents.

231 W.Va. 334

745 S.E.2d 225

STATE of West Virginia ex rel. Michael T. CLIFFORD, Petitioner

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

No. 13–0009.

Supreme Court of Appeals of

West Virginia.

Submitted April 16, 2013.

Decided June 7, 2013.

Syllabus by the Court

1. “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.” Syl. Pt. 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

2. “This Court is the final arbiter of legal ethics problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys' licenses to practice law.” Syl. Pt. 3, Committee on Legal Ethics v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984).

3. A circuit court's denial of a motion to disqualify an attorney in a pending case based upon an alleged conflict of interest in representing a client does not foreclose disciplinary action against that attorney based upon that alleged conflict of interest. The circuit court's denial of the motion to disqualify merits consideration in the determination of whether discipline should be imposed. However, whether the attorney's conduct warrants professional discipline is a separate issue, and this Court will exercise its own independent judgment in determining whether sanctions are warranted.

4. “ ‘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 interest of the former client unless the former client consents after consultation.’ Syllabus point 2, State ex rel. McClanahan v. Hamilton, 189 W.Va. 290, 430 S.E.2d 569 (1993).” Syl. Pt. 4, State ex rel. Bluestone Coal Corp. v. Mazzone, 226 W.Va. 148, 697 S.E.2d 740 (2010).

5. “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.” Syl. Pt. 3, State ex rel. McClanahan v. Hamilton, 189 W.Va. 290, 430 S.E.2d 569 (1993).

6. “ ‘Under West Virginia Rule of Professional [Conduct] 1.9(a), a current matter is deemed to be substantially related to an earlier matter in which a lawyer acted as counsel if (1) the current matter involves the work the lawyer performed for the former client; or (2) there is a substantial risk that representation of the present client will involve the use of information acquired in the course of representing the former client, unless that information has become generally known.’ Syllabus point 1, State ex rel. Keenan v. Hatcher, 210 W.Va. 307, 557 S.E.2d 361 (2001).” Syl. Pt. 8, State ex rel. Bluestone Coal Corp. v. Mazzone, 226 W.Va. 148, 697 S.E.2d 740 (2010).

Lonnie C. Simmons, Esq., DiTrapano, Barrett, DiPiero, McGinley & Simmons, P.L.L.C., Charleston, WV, for Petitioner.

Jessica H. Donahue Rhodes, Esq., Lawyer Disciplinary Counsel, Office of Lawyer Disciplinary Counsel, Charleston, WV, for Respondents.

LOUGHRY, Justice:

This case is before this Court upon a petition for a writ of prohibition filed by the petitioner, Michael T. Clifford, seeking to prevent the respondents, the West Virginia Office of Disciplinary Counsel and the West Virginia Lawyer Disciplinary Board, from pursuing a disciplinary action against him based upon an alleged conflict of interest in representing a client. Upon consideration of the parties' briefs and argument, the submitted appendix, and the pertinent authorities, the writ of prohibition is hereby granted as moulded.

I. Factual and Procedural Background

By letter dated April 22, 2011, the petitioner was informed by the respondents that a complaint had been opened against him to investigate a potential conflict of interest he might have in representing an individual named Sandra Shaffer.¹ Ms. Shaffer had retained the petitioner to represent her in connection with personal and real property damage she allegedly sustained as a result of the execution of a warrant by the police departments of the City of Charleston and Kanawha County, West Virginia, in what has been referred to as the “sniper investigation.” The sniper investigation began in 2003 following the deaths of three persons at various locations in Kanawha County as a result of gunshots fired by an unknown assailant. When the sniper investigation began in 2003, the petitioner was the Kanawha County Prosecuting Attorney. When the petitioner left that office in 2004, no person had been charged with the homicides.²

On June 3, 2011, the petitioner filed a civil complaint in the Circuit Court of Kanawha County on behalf of Ms. Shaffer against the City of Charleston, the Kanawha County Commission, James Hunt, David H. Armstrong, and John Doe ³ (hereinafter referred to collectively as “the defendants”). The complaint alleged that the defendants had destroyed and damaged Ms. Shaffer's personal and real property during the execution of a search warrant on March 28, 2011, in the sniper investigation.

Thereafter, on July 6, 2011, the defendants filed a motion with the circuit court seeking to disqualify the petitioner from representing Ms. Shaffer in the case. After the matter was fully briefed and argued by the parties, the circuit court entered an order on September 13, 2011, denying the motion. The order stated, in pertinent part:

The Court finds, as a matter of law, that the Defendants have not met the burden of the substantial relationship test to show a nexus between the sniper case (which is criminal in nature) and the civil suit filed by Mrs. Shaffer, so as to render Mr. Clifford disqualified. The Court further finds, as a matter of law, that the Defendants have not shown a genuine adverse interest so as to render Mr. Clifford disqualified from representing Mrs. Shaffer.

To date, the order has not been appealed nor have the defendants sought extraordinary relief from this Court.

Subsequently, on or about December 28, 2011, Ms. Shaffer filed a pro se motion with the circuit court seeking to discharge the petitioner and the other attorneys in his office from her case. On March 8, 2012, the circuit court entered an order relieving the petitioner and the other attorneys in his office from any further representation of Ms. Shaffer.⁴

On July 5, 2012, the petitioner received another letter from the respondents with a document entitled “Lawyer Disciplinary Board Investigative Panel Closing.” The letter advised the petitioner that the complaint against him would be closed with an admonishment unless he filed an objection within fourteen days. The petitioner responded by filing an objection. Thereafter, on September 24, 2012, the respondents issued a Statement of Charges against the petitioner asserting that he had a conflict of interest in representing Ms. Shaffer and had violated the Rules of Professional Conduct.⁵ The petitioner then filed his petition for a writ of prohibition with this Court. ⁶

II. Standard for Issuance of Writ of Prohibition

The standard for determining when a writ of prohibition should be issued is set forth in syllabus point one of Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979), which states:

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.

With regard to disciplinary proceedings, this Court has advised that “a writ of prohibition is an extraordinary remedy that is seldom granted in legal ethics matters.” State ex rel. Scales v. Committee on Legal Ethics of the West Virginia State Bar, 191 W.Va. 507, 512, 446 S.E.2d 729, 734 (1994). Yet, where circumstances are sufficient, such a writ will be granted. Id. With this standard in mind, the parties' arguments will be considered.

III. Discussion

A. Disqualification and Disciplinary Action Based on Alleged Conflict of Interest

The petitioner contends that the respondents do not have any authority to pursue disciplinary action against him because the circuit court in the underlying civil case that gave rise to the ethics violation charges ruled that he had no conflict of interest in representing Ms. Shaffer. The petitioner argues that the circuit court was authorized to determine whether he had a conflict of interest pursuant to this Court's decision in Garlow v. Zakaib, 186 W.Va. 457, 413 S.E.2d 112 (1991), and that once the court determined that no conflict existed, the respondents were bound by that decision and had no basis to continue to pursue the ethics violation charges against him. The petitioner asserts that in moving forward with the disciplinary proceeding, the respondents are essentially “acting as an appellate...