SER State of West Virginia v. Hon. Robert A. Burnside, Jr., and Richard Hardison, Jr. (Concurring Opinion by Loughry, J.)

No. 13-0733 - State of West Virginia ex rel. State of West Virginia v. The Honorable
Robert A. Burnside, Jr., Judge of the Circuit Court of Raleigh County; and Richard E.
Hardison, Jr.
FILED
April 17, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LOUGHRY, Justice, concurring:
As suggested by the majority, the notion that West Virginia Code § 62-1D-9(d)
permits an alleged drug dealer to use a law office as an impenetrable sanctuary for drug
trafficking and trade is absurd. I agree that West Virginia Code § 62-1D-9(d) is intended to
prevent the interception or monitoring of attorney-client privileged communications through
wiretapping or electronic surveillance and that the case at bar does not involve such
privileged communications. Rather, in this case, a member of the West Virginia bar, who
allegedly utilized his law office like a common street corner for drug trade, seeks to cloak
it with the inviolable protection afforded to the citizens of this State when engaged in
privileged discussions with their lawyer.
Sadly, the parasitic effects of drug addiction infiltrate every aspect of society.
Indeed, cocaine addiction in particular leaves a path of destruction in its wake, causing
violence and crime across our nation, including West Virginia. Every day, this Court
confronts the devastating effects of cocaine addiction in cases involving drug-addicted
parents who physically and sexually abuse their children or who allow others to do so; infants
who are suffering from harmful, prenatal exposure to cocaine; and persons who have
committed robberies, burglaries, malicious assaults, murders, and countless other crimes
either seeking to sustain their cocaine addiction or acting while under the influence of
cocaine. The use of this dangerously addictive drug destroys families, leads to the loss of
employment, and results in the overcrowding of our prison system. There is simply no aspect
of society that escapes the catastrophic effects of this insidious drug.
That said, irrespective of the nobility of the cause underlying the legal issues
presented in this case, I firmly believe that attorney-client communications must be jealously
guarded and do not lightly disregard these concerns, even in the egregious fact pattern
presented herein. It has been observed that
[t]he attorney-client privilege is one of the oldest
recognized privileges for confidential communications. Upjohn
Co. v. United States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66
L. Ed. 2d 584 (1981); Hunt v. Blackburn, 128 U.S. 464, 470, 9
S. Ct. 125, 127, 32 L. Ed. 488 (1888). The privilege is intended
to encourage “full and frank communication between attorneys
and their clients and thereby promote broader public interests in
the observance of law and the administration of justice.”
Upjohn, supra, at 389, 101 S.Ct. at 682.
Swidler & Berlin v. U.S., 524 U.S. 399, 403 (1998). However, the United States Supreme
Court has recognized that, in certain circumstances, the privilege “ceases to operate” as a
safeguard on “the proper functioning of our adversary system.” U.S. v. Zolin, 491 U.S. 554,
562 (1989).
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In this case, while I firmly support the staunch preservation of the
attorney-client privilege, West Virginia Code § 62-1D-9(d) cannot reasonably be read to
elevate communications made by a lawyer in the course of his alleged criminal enterprise to
those sacrosanct communications between an attorney and his/her client simply because a
crime may have been committed in a law office.
For these reasons, I concur.
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