SER Michael T. Clifford v. W.Va. Office of Disciplinary Counsel & W.Va. Lawyer Disciplinary Board

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term
FILED
June 7, 2013
released at 3:00 p.m.
No. 13-0009 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL. MICHAEL T. CLIFFORD,
Petitioner
v.
WEST VIRGINIA OFFICE OF DISCIPLINARY COUNSEL AND
WEST VIRGINIA LAWYER DISCIPLINARY BOARD,
Respondents
PETITION FOR WRIT OF PROHIBITION
WRIT GRANTED AS MOULDED
Submitted: April 16, 2013
Filed: June 7, 2013
Lonnie C. Simmons, Esq.
DiTrapano, Barrett, DiPiero, McGinley & Simmons, P.L.L.C.
Charleston, West Virginia
Attorney for Petitioner
Jessica H. Donahue Rhodes, Esq.
Lawyer Disciplinary Counsel
Office of Lawyer Disciplinary Counsel
Charleston, West Virginia
Attorney for Respondents
JUSTICE LOUGHRY delivered the Opinion of the Court.
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
i
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
ii
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).
iii
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
1
During oral argument, counsel for the respondents stated that the Office of Lawyer
Disciplinary Counsel became aware of the petitioner’s representation of Ms. Shaffer through
articles that appeared in local newspapers.
1
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 Doe3 (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
2
The petitioner was the Prosecuting Attorney for Kanawha County from January 1,
2001, until December 31, 2004.
3
The complaint stated, “Defendant John Doe collectively refers to members of the
Kanawha County Sheriff’s Department who provided security for the events hereinafter
complained. The names of the individual defendants John Doe are unknown to the plaintiff
and are sued only in their capacity(ies) as employees of the Kanawha County Commission.”
2
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
4
Ms. Shaffer’s case has not been resolved; she continues to represent herself in the
matter.
3
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
5
The Statement of Charges was filed pursuant to Rule 2.9(c) of the Rules of Lawyer
Disciplinary Procedure which provides, in pertinent part: “If . . . respondent files a timely
objection to the written admonishment, the Investigative Panel shall file a formal charge with
the Clerk of the Supreme Court of Appeals.”
6
By order dated December 11, 2012, the Hearing Panel Subcommittee of the Lawyer
Disciplinary Board stayed the disciplinary proceeding pending the resolution of this case.
4
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 court with regard to the decision made by the circuit court.”
In addition, the petitioner contends that the respondents’ attempt to relitigate
the circuit court’s final and binding decision on whether he had a conflict of interest is barred
by the doctrines of res judicata and collateral estoppel. The petitioner says that to permit the
disciplinary action to proceed would establish dangerous precedent and would place
attorneys in a “no-win” situation because, like him, they could be confronted with an ethics
5
violation charge based on an alleged conflict of interest even though a circuit court has ruled
that no such conflict exists. The petitioner maintains that the circuit court correctly applied
the Rules of Professional Conduct in finding that he had no conflict.
To the contrary, the respondents argue that they have the authority to pursue
disciplinary action against the petitioner notwithstanding the circuit court’s ruling that there
was no conflict of interest preventing him from representing Ms. Shaffer. In that regard, the
respondents point out that Garlow emphasized that it is this Court, rather than trial courts,
that has the authority to regulate and control the practice of law. The respondents contend
that because this Court has exclusive jurisdiction in all disciplinary matters, the circuit
court’s ruling regarding a motion for disqualification is not dispositive as to whether there
has been a violation of the Rules of Professional Conduct that warrants sanctions. The
respondents do not assert that the circuit court overstepped its authority in making its
determination, but maintain that because exclusive jurisdiction with regard to all ethics
matters lies with this Court, they have the authority to move forward with disciplinary
proceedings.
In support of their argument, the respondents rely upon Committee on Legal
Ethics v. Frame, 189 W.Va. 641, 433 S.E.2d 579 (1993), a case in which this Court publicly
reprimanded an attorney for violating Rule 1.7(a) of the Rules of Professional Conduct,
6
which prohibits attorneys from representing clients with adverse interests.7 Even though an
oral motion to disqualify the attorney’s law firm based upon the alleged conflict of interest
was denied by the circuit court in the underlying case, this Court found that sanctions8 for a
violation of the Rules of Professional Conduct were warranted. The respondents contend that
Frame is directly on point with the case sub judice and establishes that disciplinary
proceedings may be pursued against an attorney for an alleged conflict of interest in
representing a client, even if a circuit court has ruled otherwise.
The respondents further assert that the doctrines of res judicata and collateral
estoppel have no application in this instance. In support of their argument with respect to res
judicata, the respondents rely upon In re Weiss, 954 N.E.2d 19 (Mass. 2011), a case in which
an attorney asserted res judicata where the misconduct that led to the disciplinary
proceedings against him was the same conduct that the attorney was sanctioned for in the
lower court. In Weiss, the Massachusetts court found that res judicata did not apply because
7
Rule 1.7(a) of the Rules of Professional Conduct states:
(a) A lawyer shall not represent a client if the
representation of that client will be directly adverse to another
client, unless:
(1) the lawyer reasonably believes the representation will
not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
8
In addition to a public reprimand, the attorney was also assessed the costs of the
disciplinary proceeding. Frame, 189 W.Va. at 646, 433 S.E.2d at 584.
7
disciplinary counsel was not a party to the underlying case and had no right to join in the
proceedings below. 954 N.E.2d at 21. The respondents note that the same is true here. They
were not a party to the underlying action, nor would they have been allowed to intervene in
the case. For the same reason, the respondents assert that collateral estoppel does not apply
because “[a] fundamental due process point relating to the utilization of collateral estoppel
is that any person against whom collateral estoppel is asserted must have had a prior
opportunity to have litigated his claim.” Syl. Pt. 8, Conley v. Spillers, 171 W.Va. 584, 301
S.E.2d 216 (1983). Finally, the respondents argue that the matter of disqualification of an
attorney from a case as a result of a conflict of interest concerns the administration of justice
whereas the disciplinary process involves the regulation of attorneys and the protection of
the public. Therefore, the respondents also reason that the doctrines of res judicata and
collateral estoppel do not apply because the issues in the proceedings are not identical.
Upon consideration of the parties’ arguments and the pertinent authorities, we
reject the petitioner’s contention that the respondents may not pursue a disciplinary action
against an attorney based upon an alleged conflict of interest in representing a client when
a circuit court has previously found no basis to disqualify the attorney from a pending case
due to the alleged conflict. In reaching this conclusion, we are mindful of the fact that this
Court recognized in Garlow that circuit courts have inherent authority to disqualify an
attorney from a pending case based upon an alleged conflict of interest. Syllabus point one
of Garlow provides:
8
A circuit court, upon motion of a party, by its inherent
power to do what is reasonably necessary for the administration
of justice, may disqualify a lawyer from a case because the
lawyer’s representation in the case presents a conflict of interest
where the conflict is such as clearly to call in question the fair
or efficient administration of justice. Such motion should be
viewed with extreme caution because of the interference with
the lawyer-client relationship.
186 W.Va. at 458, 413 S.E.2d at 113. However, as noted by the respondents, we reiterated
in Garlow that “it is this Court, and not the trial court, that has the authority to define,
regulate, and control the practice of law[.]” 186 W.Va. at 461, 413 S.E.2d at 116; see also
Syl. Pt. 1, State ex rel. Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982) (“The
exclusive authority to define, regulate and control the practice of law in West Virginia is
vested in the Supreme Court of Appeals.”). As the Frame case demonstrates, there can be
circumstances where a circuit court for various reasons may not disqualify an attorney from
a case based upon an alleged conflict of interest, but when that attorney’s conduct is
considered by this Court in the context of disciplinary proceedings, it becomes clear that
sanctions are warranted.
In Frame, the disciplinary proceeding was brought because an attorney
represented a corporation’s controlling shareholder in her divorce action at the same time his
firm was representing a plaintiff in a personal injury suit against the divorce client’s
corporation. The potential conflict of interest was not realized until shortly before trial was
scheduled to begin in the personal injury action. The attorney was made aware of the
9
potential conflict by an associate in his firm who made the discovery after being assigned
work in both cases. The attorneys then researched the issue and concluded that there was
no conflict because their firm had sued the corporate entity rather than their divorce client,
personally. Because the attorney believed that no conflict existed, the matter was not
discussed with the divorce client or the client in the personal injury action. However, on the
day trial was scheduled to begin in the personal injury action, opposing counsel, who was
informed about the potential conflict by the divorce client who had also recently discovered
the dual representation, orally moved to disqualify the attorney’s law firm. The trial court
denied the motion, finding that no confidential information had been disclosed and that the
motion was untimely. The personal injury action proceeded and was ultimately settled.
Thereafter, the attorney’s divorce client filed an ethics complaint with the State Bar. 189
W.Va. at 643, 433 S.E.2d at 581. Despite the fact that the circuit court ruled that there was
no basis to disqualify the attorney in the personal injury action because no confidential
information had been disclosed, this Court nonetheless ordered a public reprimand against
the attorney finding that the dual representation violated Rule 1.7(a) of the Rules of
Professional Conduct. Id. at 644, 433 S.E.2d at 582.
Frame illustrates that the focus of a motion to disqualify an attorney based
upon an alleged conflict of interest is whether the alleged conflict will result in prejudice to
one of the parties such that it is necessary for the administration of justice to remove an
attorney from the case. In Garlow, this Court discussed the fact that disqualification is a
10
drastic measure because it deprives parties of representation by counsel of their own
choosing and cautioned circuit courts that it should only be imposed when absolutely
necessary. 186 W.Va. at 461, 413 S.E.2d at 116. To that end, the circuit court in the
underlying action in Frame denied the motion to disqualify because it was undisputed that
no confidential information had been disclosed and that removal of the attorney from the case
at the stage of the proceedings when the disqualification motion was made (the day the trial
was scheduled to begin) would have caused substantial delay.
By contrast, when the attorney’s actions were considered by this Court in the
subsequent disciplinary proceeding, we explained that
the results of simultaneous representation are not dispositive of
the determination as to whether an ethical violation has
occurred, [but] the fact that no negative consequences were
suffered certainly merits consideration in our determination of
the appropriate discipline for such violation.
Frame, 189 at 645 n.1, 433 at 583 n.1. This Court recognized in Frame that no actual harm
had occurred as a result of the dual representation, but concluded there was a violation of the
Rules of Professional Conduct because
[t]he only prerequisites for the establishment of an ethical
violation [of Rule 1.7(a)] are those clearly set forth in the rule
itself; namely, representation of one client that is “directly
adverse” to another client without the consent of each client.
The “directly adverse” language does not imply that a bad result
must occur before representation is impermissible. It is the
interests of the clients with which the rule is concerned, not the
result obtained.
11
Id. at 644-45, 433 S.E.2d at 582-83. Moreover, it was observed in Frame that the
representation of the personal injury client entailed the cross-examination of the divorce
client, resulting in the potential
(1) to pit the duty of loyalty to each client against the
duty of loyalty to the other; (2) to risk breaching the duty of
confidentiality to the client-witness; and (3) to present a tension
between the lawyer’s own pecuniary interest in continued
employment by the client-witness and the lawyer’s ability to
effectively represent the litigation client.
Id. at 645, 433 S.E.2d at 583 (citation omitted). This Court explained that because
simultaneous representation presents these potential outcomes, it constitutes a violation of
Rule 1.7(a) regardless of whether actual harm occurs. Id.
In examining the conduct that led to the disciplinary proceeding in Frame, this
Court’s analysis went beyond whether the alleged conflict was actually preventing the
administration of justice because there would be a prejudicial impact or an exchange of
confidential information. As in all the disciplinary proceedings, this Court was looking “‘to
protect the public, to reassure it as to the reliability and integrity of attorneys and to
safeguard its interest in the administration of justice[.]’” Lawyer Disciplinary Bd. v.
Albright, 227 W.Va. 197, 204, 706 S.E.2d 552, 559 (2011) (quoting Committee on Legal
Ethics v. Keenan, 192 W.Va. 90, 94, 450 S.E.2d 787, 791 (1994)); see also Syl. Pt. 3,
Committee on Legal Ethics v. Walker, 178 W.Va. 150, 358 S.E.2d 234 (1987) (“In deciding
on the appropriate disciplinary action for ethical violations, this Court must consider not only
12
what steps would appropriately punish the respondent attorney, but also whether the
discipline imposed is adequate to serve as an effective deterrent to other members of the Bar
and at the same time restore public confidence in the ethical standards of the legal
profession.”). Accordingly, whether an attorney’s conduct warrants professional discipline
because it violates the Rules of Professional Conduct is a separate issue from whether an
attorney should be disqualified from a case because of a conflict of interest that will prevent
the administration of justice. Because circuit courts have no authority to impose disciplinary
sanctions upon attorneys, their decisions on motions to disqualify based on an alleged
conflict of interest are not dispositive with regard to whether disciplinary action is required.
The petitioner’s argument that allowing the respondents to move forward with
disciplinary proceedings in these circumstances allows them to “act as an appellate court over
circuit court judges” is misplaced. This Court has explained that
[t]he [Lawyer Disciplinary] Board began as the Committee on
Legal Ethics of the West Virginia State Bar. “[A]s an
administrative arm of the Supreme Court of Appeals, [the
Board] is subject to the exclusive control and supervision of the
Supreme Court of Appeals, including the approval of all
regulatory and adjudicatory activities regarding attorney
disciplinary proceedings.” Daily Gazette Co., Inc. v. Committee
on Legal Ethics, 174 W.Va. 359, 362, 326 S.E.2d 705, 709
(1984). “In the exercise of this plenary authority to regulate and
control the practice of law, we have delegated to the [Board]
certain administrative, investigative, and adjudicatory
functions.” Committee on Legal Ethics v. McCorkle, 192 W.Va.
286, 288, 452 S.E.2d 377, 379 (1994). The delegation of certain
13
administrative, investigative and adjudicatory functions is a
method of assisting the Court.
While the findings and recommendations of the Board
are generally accorded great weight by the Court, they are
viewed as only advisory. The findings and recommendations
are not binding upon this Court. The Court retains the power to
approve or disapprove any regulation or practice adopted by the
Board, inquire into the merits of any disciplinary proceeding,
and to take any action the Court sees fit in such matters.
Lawyer Disciplinary Bd. v. Kupec, 202 W.Va. 556, 564, 505 S.E.2d 619, 627 (1998). Simply
put, “[t]his 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); see also Syl. Pt. 3, in part, Committee on Legal Ethics v. McCorkle, 192 W.Va.
286, 452 S.E.2d 377 (1994) (“[T]his Court gives respectful consideration to the Committee’s
recommendations while ultimately exercising its own independent judgment.”). Therefore,
because it is this Court that makes the ultimate decision on the imposition of disciplinary
sanctions, the petitioner’s assertions that respondents are exercising appellate authority over
the circuit court is without merit.
We also find no merit to the petitioner’s contention that the respondents are
precluded from pursuing disciplinary proceedings by the doctrines of res judicata and
collateral estoppel. The prerequisites for application of these doctrines are well established.
Before the prosecution of a lawsuit may be barred on the
basis of res judicata, three elements must be satisfied. First,
14
there must have been a final adjudication on the merits in the
prior action by a court having jurisdiction of the proceedings.
Second, the two actions must involve either the same parties or
persons in privity with those same parties. Third, the cause of
action identified for resolution in the subsequent proceeding
either must be identical to the cause of action determined in the
prior action or must be such that it could have been resolved,
had it been presented, in the prior action.
Syl. Pt. 4, Blake v. Charleston Area Med. Ctr., Inc., 201 W.Va. 469, 498 S.E.2d 41 (1997).
Collateral estoppel will bar a claim if four conditions are
met: (1) The issue previously decided is identical to the one
presented in the action in question; (2) there is a final
adjudication on the merits of the prior action; (3) the party
against whom the doctrine is invoked was a party or in privity
with a party to a prior action; and (4) the party against whom the
doctrine is raised had a full and fair opportunity to litigate the
issue in the prior action.
Syl. Pt. 1, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). In order for either res
judicata or collateral estoppel to apply, the party against whom the doctrine is invoked must
have been a party in the prior action or in privity with a party in the prior action.
Recognizing that the respondents were not parties in the underlying civil proceeding, the
petitioner argues that the doctrines apply nonetheless because the respondents and the circuit
court are in privity with each other as both have the authority to determine whether an
attorney has a conflict of interest in violation of the Rules of Professional Conduct. We
disagree.
With regard to privity, this Court has explained:
15
“Privity is not established . . . from the mere fact that persons
may happen to be interested in the same question or in proving
the same facts.” 46 Am.Jur.2d Judgments § 532 (1969). While
the concept of privity is difficult to define precisely, it has been
held that “a key consideration for its existence is the sharing of
the same legal right by the parties allegedly in privity.” BTC
Leasing, Inc. v. Martin, 685 S.W.2d 191, 198 (Ky.App.1984).
This consideration is to ensure that the interests of the party
against whom collateral estoppel is being asserted have been
adequately represented because of his purported privity with a
party at the initial proceedings. See BTC Leasing Inc., supra;
46 Am.Jur.2d Judgments § 532.
Miller, 194 W.Va. at 13, 459 S.E.2d at 124. Stated more generally,
[p]rivity requires the interests of a party against whom claim or
issue preclusion is asserted were represented adequately by the
party’s purported privity at the initial hearing or trial. The
absolute identicality of legal issues is fundamental to a finding
of privity, and the mere fact that the two parties are interested in
proving or disproving the same facts alone will not create
privity.
Id. at 13 n.16, 459 S.E.2d at 124 n.16. As discussed above, the separate question of whether
the attorney’s conduct warrants professional discipline is not a decision that the circuit court
is authorized to make when ruling upon a motion for disqualification based upon an alleged
conflict of interest. Therefore, the petitioner’s claim that privity exists fails because of the
absence of absolute identicality of legal issues. The doctrines of res judicata and collateral
estoppel simply do not apply.
Accordingly, based on all the above, we now hold that a circuit court’s denial
of a motion to disqualify an attorney in a pending case based upon an alleged conflict of
16
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. Contrary to the petitioner’s assertion, we do not believe our holding today
places attorneys in an untenable position. As we cautioned in Frame,
[f]or their own protection from charges of ethical violations and
in consideration of their clients’ interests, attorneys should
remain mindful of actual or potential conflicts of interest . . . .
Any doubt regarding whether a conflict exists should be
resolved in favor of informing the client(s) of the concerns and
allowing the client(s) an opportunity to consent to continued
representation or to seek new counsel.
189 W. Va. at 646, 433 S.E.2d at 584.
B. Sanctions not Warranted
While we have found that the respondents were not foreclosed from moving
forward with the disciplinary proceedings against the petitioner, based upon our examination
of the record in this matter, we further find that sanctions are not warranted in this instance.
The facts and circumstances that gave rise to the ethics violation charges against the
petitioner are sufficiently set forth in the appendix record submitted in this case and,
17
importantly, are not in dispute. Allowing the respondents to proceed when the charges are
without merit would needlessly duplicate the efforts and costs of the parties and would not
promote judicial economy. Therefore, for the reasons set forth below, we direct the
respondents to dismiss the Statement of Charges issued against the petitioner.
The petitioner has been charged with violating Rules 1.9(a) and 1.11(a) of the
Rules of Professional Conduct as a result of his representation of Ms. Shaffer. Rule 1.9
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 interests are materially
adverse to the interests of the former client unless the former
client consents after consultation[.]
Rule 1.11 provides:
(a) Except as law may otherwise expressly permit, a
lawyer shall not represent a private client in connection with a
matter in which the lawyer participated personally and
substantially as a public officer or employee, unless the
appropriate government agency consents after consultation. No
lawyer in a firm with which that lawyer is associated may
knowingly undertake or continue representation in such a matter
unless:
(1) the disqualified lawyer is screened from any
participation in the matter and is apportioned no part of the fee
therefrom; and
(2) written notice is promptly given to the appropriate
government agency to enable it to ascertain compliance with the
provisions of this rule.
18
The respondents contend that the petitioner violated these rules because he was
the prosecuting attorney for Kanawha County in 2003 when the sniper shootings occurred
and was briefed regularly upon the investigation. He then undertook representation of Ms.
Shaffer in a 2011 lawsuit against the City of Charleston and the Kanawha County
Commission alleging destruction of property resulting from the execution of a warrant in the
sniper investigation. The petitioner did not seek consent from the City of Charleston and the
Kanawha County Commission prior to undertaking representation of Ms. Shaffer.
In response to the charges, the petitioner has pointed out that he undertook
representation of Ms. Shaffer in a civil action, not a criminal matter, that was filed almost
seven years after he ceased serving as prosecutor. He states that although the alleged
property destruction occurred as a result of the execution of a warrant in the sniper
investigation, there is absolutely no evidence that Ms. Shaffer’s interests were materially
adverse to the interests of the State of West Virginia in investigating and prosecuting the
sniper case. The petitioner maintains that his limited involvement in the sniper investigation
was not related to the destruction of Ms. Shaffer’s property which led to the filing of her civil
lawsuit to recover monetary damages. The petitioner also asserts that there was no evidence
that he gleaned any information while serving as Kanawha County prosecutor that could have
been utilized in litigating Ms. Shaffer’s claim that was not otherwise available.
In considering alleged violations of Rule 1.9, this Court has explained that
19
“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). Similarly, we have recognized that
Rule 1.11 of the Rules of Professional Conduct prohibits
lawyers, including prosecuting attorneys and their assistants,
from representing private clients in connection with any “matter
in which the lawyer has participated personally and substantially
as a public officer or employee.”
State ex rel. Bailey v. Facemire, 186 W.Va. 528, 533-34, 413 S.E.2d 183, 188-89 (1991).
We have further observed 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.
Syl. Pt. 3, State ex rel. McClanahan v. Hamilton, 189 W.Va. 290, 430 S.E.2d 569 (1993).
The same holds true with regard to Rule 1.11(a) given that a prerequisite for prohibiting
representation under Rule 1.11(a) is also prior participation in a substantially related matter.
Such an analysis in the case sub judice reveals that the petitioner’s participation in the sniper
investigation, which was essentially limited to updates on the progress of investigators, was
not substantially related to the civil suit he filed on behalf of Ms. Shaffer. In fact, there is no
evidence that it was even remotely related to the civil suit.
20
In syllabus point eight of Bluestone, this Court held:
“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).
Upon review, we find that the first element of the substantial relationship test is not satisfied
for purposes of finding a violation of Rule 1.9(a) because the defendants sued by the
petitioner on behalf of Ms. Shaffer are not his former clients. This Court has explained that
the prosecuting attorney is elected by the people of the county
to represent them in prosecutions against criminal offenders. .
. . The prosecuting attorney is a constitutional officer who
exercises the sovereign power of the State at the will of the
people and he is at all times answerable to them. W. Va. Const.
art. 2, § 2; art. 3, § 2; art. 9, § 1. In other words, . . . the
prosecuting attorney is the trustee and servant of the people.
State ex rel. Preissler v. Dostert, 163 W.Va. 719, 732-33, 260 S.E.2d 279, 287 (1979). As
such, when the petitioner was serving as the prosecuting attorney of Kanawha County, his
client in all criminal cases was the people of the State of West Virginia, not the City of
Charleston, not the Kanawha County Commission and not the members of their police
departments–the defendants he sued on behalf of Ms. Shaffer.9 Thus, even if we were to
9
We, of course, recognize that there are instances where the prosecuting attorney’s
duties include
21
assume that the petitioner was actively involved in the sniper investigation when he served
as the Kanawha County prosecutor, he simply did not act as an attorney in any capacity for
the defendants sued by Ms. Shaffer such that they could be considered his former clients.
Therefore, the petitioner has not violated Rule 1.9(a) of the Rules of Professional Conduct.
Continuing our substantial relationship analysis for purposes of Rule 1.11(a),
which does not have a former client component, we are unable to find that the petitioner’s
representation of Ms. Shaffer involved any work he undertook as a prosecutor in relation to
the sniper case. In that regard, the record reflects that while the petitioner received updates
from investigators in the sniper case and may have even participated in news conferences
related to the shootings, the fact is that he never instituted any proceedings to prosecute
because no suspect was identified while he was in office. For the same reason, we are unable
to find that the petitioner obtained any information while he was prosecutor that was not
otherwise generally known that would have aided him in his representation of Ms. Shaffer.
attend[ing] to civil suits in such county in which the State, or
any department, commission or board thereof, is interested, and
to advise, attend to, bring, prosecute or defend, as the case may
be, all matters, actions, suits and proceedings in which such
county or any county board of education is interested.
W. Va. Code § 7-4-1 (2010). However, in this case, it is the duty of the prosecutor “to attend
to the criminal business of the State” that is at issue. Id.
22
Consequently, the petitioner has not violated Rule 1.11(a) of the Rules of Professional
Conduct.
IV. Conclusion
Accordingly, based on all the above, the requested writ is hereby granted as
moulded. The respondents are hereby directed to dismiss the Statement of Charges issued
against the petitioner on September 24, 2012.
Writ granted as moulded.
23