Daily Gazette Co. v. Committee on Legal Ethics of the W.Va. State Bar , 176 W. Va. 550 ( 1985 )

McGRAW, Justice,

dissenting:

In our preceding decision, Daily Gazette Company, Inc. v. Committee on Legal Ethics, 174 W.Va. 359, 326 S.E.2d 705 (1984) (hereinafter Gazette I), the question of the retroactivity of the relief sought was not presented. I believe the majority in the instant case is wrong in now restricting the full operation of the constitutional principles vindicated in Gazette I.

To support its restriction, the majority characterizes the decision in Gazette I as coming within the “clear departure” factor, which favors prospective operation only. However, the majority’s cursory analysis fails to recognize that the “clear departure” criterion is rooted in the notion of reliance. That is, where persons have substantially relied upon the operation and effect of prior law, new pronouncements should not detrimentally affect their reliance. Prior to our holding in Gazette I, however, even if complaints and witnesses desired confidentiality (an unlikely proposition), they could not rely upon article IV, § 30 of the State Bar Bylaws for such protection because the eventual disposition of any case included the possibility that a recommendation for public discipline would be made to this Court, with the record becoming publicly accessible at that time. For the same reason, lawyers who were the subject of ethical complaints, the only persons really interested in the secrecy rule, could not rely upon continued confidentiality either.

The majority’s unwarranted and insupportable decision in the present case, benefiting only unethical members of the profession, is a direct affront to the peoples’ constitutionally protected right to know the business of the courts, which includes the business of an agency of this Court performing a quasi-judicial function. See West Virginia Const, art. Ill, § 17; West Virginia Code § 51-l-4a(d) (1981 Replacement Vol.). See also State ex rel. Herald Mail Company v. Hamilton, 165 W.Va. 103, 267 S.E.2d 544 (1980) (Miller, J., writing). Accordingly, I submit that a more appropriate syllabus for the majority’s opinion would be: “Brothers ^* at the bar, if you did something wrong before December 11, 1984, it will remain ‘our little secret;’ aw, what’s the Constitution among friends?”

For the foregoing reasons, I respectfully dissent.

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