SER Discover Financial Services, Inc. v. Hon. David W. Nibert and SER Glaxosmithkline, LLC v. Hon. James H. Young, Jr.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term
FILED
_____________ June 4, 2013
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 13-0086 SUPREME COURT OF APPEALS
_____________ OF WEST VIRGINIA
STATE OF WEST VIRGINIA EX REL.
DISCOVER FINANCIAL SERVICES, INC.,
DISCOVER BANK, DFS SERVICES, L.L.C., AND
AMERICAN BANKERS MANAGEMENT COMPANY, INC.;
BANK OF AMERICA CORPORATION AND
FIA CARD SERVICES, N.A.;
CITIGROUP INC. AND CITIBANK, N.A.;
GE MONEY BANK;
WORLD FINANCIAL NETWORK NATIONAL BANK,
CSI PROCESSING, L.L.C., AND CPP NORTH AMERICA L.L.C.;
HSBC BANK NEVADA, N.A. AND HSBC CARD SERVICES, INC.;
AND JPMORGAN CHASE & CO. AND
CHASE BANK USA, N.A.,
Petitioners
V.
HONORABLE DAVID W. NIBERT, JUDGE OF
THE CIRCUIT COURT OF MASON COUNTY, WEST VIRGINIA,
Respondent
____________________________________________________________________
Petition for a Writ of Prohibition
WRIT DENIED
____________________________________________________________________
AND
_____________
No. 13-0102
_____________
STATE OF WEST VIRGINIA EX REL. GLAXOSMITHKLINE, LLC,
FORMERLY SMITHKLINE BEECHAM CORPORATION
D/B/A GLAXOSMITHKLINE,
Petitioner
V.
THE HONORABLE JAMES H. YOUNG, JR.,
JUDGE OF THE CIRCUIT COURT OF WAYNE COUNTY;
AND ALL PLAINTIFFS IN STATE EX REL.
MORRISEY V. GLAXOSMITHKLINE, LLC,
Respondents
__________________________________________________________________
Petition for a Writ of Prohibition
WRIT DENIED
___________________________________________________________________
Submitted: May 14, 2013
Filed: June 4, 2013
Kara Cunningham Patrick Morrisey
Russell D. Jessee Attorney General
Steptoe & Johnson, PLLC Daniel W. Greear
Charleston, West Virginia Chief Counsel
Attorneys for Petitioners, Office of Attorney General
Discover Financial Services, Inc., Charleston, West Virginia
Discover Bank, and Attorneys for Respondent
DFS Services L.L.C. in Case Number 13-0086
Bruce M. Jacobs Guy R. Bucci
Charles L. Woody Timothy Bailey
Spilman Thomas & Battle, PLLC L. Lee Javins, II
Charleston, West Virginia Special Assistant Attorneys General
Attorneys for Petitioner, Bucci Bailey & Javins
American Bankers Management Charleston, West Virginia
Company, Inc. and
William Druckman
Bruce M. Jacobs Special Assistant Attorney General
Alexander Macia Druckman & Estep
Spilman Thomas & Battle, PLLC Charleston, West Virginia
Charleston, West Virginia Attorneys for Respondent
Attorneys for Petitioners, in Case Number 13-0086
Bank of America Corporation and
FIA Card Services, N.A. Patrick Morrisey
Attorney General
Jeffrey M. Wakefield Daniel W. Greear
Flaherty, Sensabaugh & Bonasso, PLLC Chief Counsel
Charleston, West Virginia Office of Attorney General
Attorney for Petitioners, Charleston, West Virginia
Citigroup Inc. and Citibank, N.A. Attorneys for Respondents
in Case Number 13-0102
Bryant J. Spann
David B. Thomas Paul T. Farrell, Jr.
Thomas Combs & Spann, PLLC Special Assistant Attorney General
Charleston, West Virginia Greene, Ketchum, Bailey, Walker,
Attorneys for Petitioner, Farrell & Tweel
GE Money Bank Huntington, West Virginia
and
Charles M. Love Laura J. Baughman
Fazal A. Shere S. Ann Saucer
Bowles Rice McDavid Graff & Love, LLP Special Assistant Attorneys General
Charleston, West Virginia Baron & Budd, PC
and Dallas, Texas
Alan S. Kaplinsky and
Martin C. Bryce, Jr. Bill Robins
Ballard Spahr, LLP Justin R. Kaufman
Philadelphia, Pennsylvania Special Assistant Attorneys General
Attorneys for Petitioner, Heard Robins Cloud & Black, LLP
World Financial Network National Bank Santa Fe, New Mexico
Attorneys for Respondents
Bruce M. Jacobs in Case Number 13-0102
Spilman, Thomas & Battle, PLLC
Charleston, West Virginia
Attorney for Petitioner,
CCP North America L.L.C.
Chris R. Arthur
W. Scott Campbell
Samuel I. White, P.C.
Charleston, West Virginia
Attorneys for Petitioners,
HSBC Bank Nevada, N.A. and
HSBC Card Services, Inc.
William W. Booker
Thomas H. Ewing
Kay Casto & Chaney, PLLC
Charleston, West Virginia
Attorneys for Petitioners,
JPMorgan Chase & Co. and
Chase Bank USA, N.A.
Michael J. Farrell
Tamela J. White
Farrell, White & Legg, PLLC
Huntington, West Virginia
and
Kenneth H. Zucker
Nina M. Gussack
John F. Brenner
Ellen K. Scott
Pepper Hamilton, LLP
Philadelphia, Pennsylvania
Attorneys for Petitioner,
GlaxoSmithKline
Brenda Nichols Harper
West Virginia Chamber of Commerce
Charleston, West Virginia
and
Victor E. Schwartz
Cary Silverman
Shook, Hardy & Bacon, LLP
Washington, District of Columbia
and
Richard F. Shearer
Shook, Hardy & Bacon, LLP
Kansas City, Missouri
Attorneys for Amicus Curiae,
West Virginia Chamber of Commerce
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE KETCHUM, deeming himself disqualified, did not participate in the decision
of this case.
JUDGE FOX, sitting by temporary assignment.
SYLLABUS BY THE COURT
1. The phrase “contract of hire,” in W. Va. Code § 6B-1-3(d) (2008) (Repl.
Vol. 2010) of the West Virginia Governmental Ethics Act, refers to an agreement in which
a person provides labor or personal services to a government entity for wages or a salary.
2. Under the definition of “employee” provided by W. Va. Code
§ 6B-1-3(d) (2008) (Repl. Vol. 2010) of the West Virginia Governmental Ethics Act, a
private attorney appointed as a special assistant attorney general is not an employee of the
Office of the Attorney General.
3. The Office of Attorney General retains inherent common law powers,
when not expressly restricted or limited by statute. The extent of those powers is to be
determined on a case-by-case basis. Insofar as the decision in Manchin v. Browning, 170
W. Va. 779, 296 S.E.2d 909 (1982), is inconsistent with this holding, it is expressly
overruled.
4. The Attorney General has common law authority to appoint special
assistant attorneys general.
5. The Attorney General has common law authority to provide for
i
compensation to be paid to special assistant attorneys general through a court-approved
award of attorney’s fees taken directly from the losing opponent in the litigation.
ii
Davis, Justice:
This matter involves two consolidated petitions for writs of prohibition filed
under the original jurisdiction of this Court. The petition filed in Case No. 13-0086 was
brought by the defendants in seven consolidated cases pending before the Circuit Court of
Mason County;1 and the petition in Case No. 13-0102 was filed by GlaxoSmithKline, a
defendant below, from a case pending before the Circuit Court of Wayne County.2 The
Petitioners seek a writ of prohibition to prevent enforcement of circuit court orders that
denied their motions to disqualify private attorneys from representing the Respondent, the
State of West Virginia,3 as special assistant attorneys general. The essence of the Petitioners’
contentions is that the special assistant attorneys general should be disqualified because their
fee arrangements (1) violate the West Virginia Governmental Ethics Act; (2) violate Rule
1.7(b) of the West Virginia Rules of Professional Conduct;4 and (3) the Attorney General
1
The defendants in Case No. 13-0086 are: Discover Financial Services, Inc.,
Discover Bank, DFS Services, L.L.C., and American Bankers Management Company, Inc.;
Bank of America Corporation and FIA Card Services, N.A.; Citigroup Inc. and Citibank,
N.A.; GE Money Bank; World Financial Network National Bank, CSI Processing, L.L.C.,
and CPP North America L.L.C.; HSBC Bank Nevada, N.A. and HSBC Card Services, Inc.;
and JPMorgan Chase & Co. and Chase Bank USA, N.A. These defendants filed a joint
petition in this matter.
2
Unless otherwise indicated, all of the defendants below will be referred to
collectively as the “Petitioners.”
3
The Petitioners have labeled the trial judges as the Respondents in these
matters. However, for purposes of this opinion, we will refer to the State as the Respondent,
as it is the plaintiff below in each of these cases.
4
Petitioner GlaxoSmithKline did not brief the Rule 1.7(b) issue. However, the
(continued...)
1
lacks authority to appoint special assistant attorneys general. After a careful review of the
briefs and the record submitted in this case, and listening to the arguments of the parties, we
deny the writs.5
I.
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background for each of the consolidated cases will
be set forth separately.
4
(...continued)
issue appears to have been raised in the circuit court.
5
We wish to acknowledge the Amicus Curiae brief filed by the West Virginia
Chamber of Commerce in support of the Petitioners in Case No. 13-0086. We also note that
the Amicus brief raised several issues that were not raised by the parties. We decline to
address the issues raised solely by the Amicus. See Delardas v. County Court of Monongalia
Cnty., 155 W. Va. 776, 783, 186 S.E.2d 847, 852 (1972) (finding it “possibly improper, for
the Court to consider and to decide [an issue raised by amicus] in this case inasmuch as it has
not been raised by any of the parties”). See also People v. Archer, 417 N.Y.S.2d 507, 513
(N.Y. App. Div. 1979) (“We would add that it is improper for the Amicus curiae herein to
raise issues and cite alleged errors which were never raised or cited by appellant[.]”);
Homestake Mining Co. v. South Dakota Subsequent Injury Fund, 644 N.W.2d 612, 621 (S.D.
2002) (holding that “it is improper for amicus to seek to widen the issues raised by the
parties”); East Sevier Cnty. Util. Dist. of Sevier Cnty. v. Wachovia Bank & Trust Co., 570
S.W.2d 850, 854 (Tenn. 1978) (“Numerous issues are raised in a brief filed amicus curiae
. . ., but our discussion of those issues on the present record would be improper, since they
were not dealt with in the trial court or properly developed in the proof.”).
2
A. Petitioners in Case No. 13-0086
The record in Case No. 13-0086 indicates that civil complaints were filed
against each of the Petitioners by the Attorney General,6 on behalf of the State, in August
2011.7 The complaints alleged that the Petitioners violated the General Consumer Protection
provisions of Article 68 of the West Virginia Consumer Credit and Protection Act9 by
engaging in unfair, deceptive, and unconscionable practices designed to trick consumers into
paying for credit card service plans.
On April 20, 2012, the Petitioners filed a joint motion with the circuit court
seeking to disqualify the special assistant attorneys general.10 The motion alleged that the
appointment of special assistant attorneys general violated the West Virginia Governmental
Ethics Act and the Rules of Professional Conduct, and that the Attorney General did not have
authority to make such appointments. A hearing on the motion was held on July 16, 2012.
6
When the complaints were filed, the Attorney General was Darrell V.
McGraw, Jr. The current duly-elected Attorney General is Attorney General Patrick
Morrissey.
7
As discussed infra, prior to the complaints being filed, the Attorney General
appointed several private attorneys as special assistant attorneys general to act as lead
counsel in each of the cases.
8
See W. Va. Code § 46A-6-101 et seq.
9
See W. Va. Code § 46A-1-101 et seq.
10
Prior to filing the motion to disqualify, the Petitioners requested the cases be
removed to federal court. The federal court ultimately remanded the cases back to state
court.
3
On August 15, 2012, the trial court entered an order denying the motion to disqualify. The
Petitioners subsequently filed the instant petition for a writ of prohibition.
B. Petitioner in Case No. 13-0102
The record in Case No. 13-0102 indicates that a civil complaint was filed
against the Petitioner, GlaxoSmithKline, by the Attorney General,11 on behalf of the State,
in March 2012.12 The complaint alleged that the Petitioner violated the General Consumer
Protection provisions of Article 613 of the West Virginia Consumer Credit and Protection
Act14 by engaging in unfair and deceptive acts and practices and by employing unfair
methods of competition in marketing the diabetes drug Avandia. The complaint also alleged
the Petitioner engaged in conduct that violated the West Virginia Fraud and Abuse in the
Medicaid Program Act;15 the West Virginia Public Employees Insurance Act;16 and the West
11
When the complaint was filed, the Attorney General was Darrell V. McGraw,
Jr. See supra note 6.
12
As discussed infra, prior to the complaint being filed, the Attorney General
appointed several private attorneys as special assistant attorneys general to act as lead
counsel in the case.
13
See W. Va. Code § 46A-6-101 et seq.
14
See W. Va. Code § 46A-1-101 et seq.
15
See W. Va. Code § 9-7-1 et seq.
16
See W. Va. Code § 5-16-1 et seq.
4
Virginia Insurance Fraud Prevention Act,17 and set out other causes of action that included
strict liability, breach of warranty, and unjust enrichment.18
On August 10, 2012, the Petitioner filed a motion with the circuit court seeking
to disqualify the special assistant attorneys general. The motion alleged that the appointment
of special assistant attorneys general violated the West Virginia Governmental Ethics Act
and the Rules of Professional Conduct, and that the Attorney General did not have authority
to make such appointments.19 On September 28, 2012, the trial court entered an order
denying the motion to disqualify. The Petitioner subsequently filed the instant petition for
a writ of prohibition.
II.
STANDARD OF REVIEW
This matter is before the Court on two consolidated petitions for writs of
prohibition that challenge lower court orders denying the Petitioners’ motion to disqualify
the special assistant attorneys general. We have held that “[a] party aggrieved by a lower
court’s decision on a motion to disqualify an attorney may properly challenge the lower
17
See W. Va. Code § 33-41-1 et seq.
18
The Governor requested the Attorney General bring some of the enumerated
causes of action against the Petitioner.
19
The Petitioner also alleged that State and Federal due process rights were
violated by the fee arrangement made with the special assistant attorneys general.
5
court’s decision by way of a petition for a writ of prohibition.” Syl. pt. 1, State ex rel.
Bluestone Coal Corp. v. Mazzone, 226 W. Va. 148, 697 S.E.2d 740 (2010). We also
previously have held that “[a] writ of prohibition will not issue to prevent a simple abuse of
discretion by a trial court. It will only issue where the trial court has no jurisdiction or
having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53–1–1.” Syl. pt. 2,
State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977). More
specifically, this Court has held:
In determining whether to entertain and issue the writ of
prohibition for cases not involving the absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded its
legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate means,
such as direct appeal, to obtain the desired relief; (2) whether the
petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal's order is
clearly erroneous as a matter of law; (4) whether the lower
tribunal’s order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5)
whether the lower tribunal’s order raises new and important
problems or issues of law of first impression. These factors are
general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should
issue. Although all five factors need not be satisfied, it is clear
that the third factor, the existence of clear error as a matter of
law, should be given substantial weight.
Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). Based upon
these established standards, we proceed to consider the merits of the issues.
6
III.
DISCUSSION
As previously mentioned, the Petitioners seek to have this Court determine that
the special assistant attorneys general should be disqualified because their fee arrangements
violate the West Virginia Governmental Ethics Act and the Rules of Professional Conduct,
and because the Attorney General lacks authority to appoint special assistant attorneys
general.20 We will address each issue separately.21
20
We summarily reject Petitioner GlaxoSmithKline’s contention that use of
special assistant attorneys general violates its due process rights. The Petitioner has not cited
to, nor have we found, any case that supports a due process violation claim through the use
of special assistant attorneys general in the prosecution of civil cases. The two federal cases
cited by Petitioner do not stand for such a proposition. The decision in Marshall v. Jerrico,
Inc., 446 U.S. 238, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980), cited by Petitioner, held that
the federal Due Process Clause was not violated because of the enforcement of child labor
laws by an assistant regional administrator. In the second federal case cited, Young v. United
States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987),
the Court held that a trial court may appoint a private attorney to prosecute a litigant for
criminal contempt, but that a court could not appoint counsel for one of the litigants in the
underlying case as the prosecutor.
21
The Respondent has urged this Court, as it did both circuit courts, to find that
the Petitioners lack standing to litigate the disqualification issue. The Respondent argues that
the Petitioners cannot show a resulting injury-in-fact from the representation provided by the
special assistant attorneys general. We summarily reject the Respondent’s contention. Our
cases have indicated that a party may seek to disqualify an attorney even though no injury-in-
fact would occur to the party seeking disqualification. See State ex rel. Bluestone Coal Corp.
v. Mazzone, 226 W. Va. 148, 158, 697 S.E.2d 740, 750 (2010) (“[A] lawyer may be
disqualified from participating in a pending case if his continued representation would give
rise to an apparent conflict of interest or appearance of impropriety[.]”); State ex rel. Blake
v. Hatcher, 218 W. Va. 407, 414, 624 S.E.2d 844, 851 (2005) (“While standing to raise a
conflict of interest in a disqualification is generally vested with the client, an exception to this
rule exists where the interests of the public are so greatly implicated that a third party should
(continued...)
7
A. Application of the West Virginia Governmental Ethics Act
The Petitioners contend that the West Virginia Governmental Ethics Act
(hereinafter the “Act”)22 applies to the special assistant attorneys general and that, as a result,
the fee arrangements made with the special assistant attorneys general violate the Act.23 The
Respondent does not contest the fact that the Office of Attorney General and its employees
are subject to the Act. The contentious issue presented by the Petitioners is whether the
special assistant attorneys general are employees of the Office of Attorney General and,
therefore, subject to the Act. This is an issue of first impression for this Court.
We begin by observing that we must apply our rules of statutory construction
and determine whether the term “employee” under the Act includes special assistant
attorneys general. Our rules of statutory construction are well established. “The primary
21
(...continued)
be entitled to raise the conflict.” (internal quotations and citation omitted)); Musick v.
Musick, 192 W. Va. 527, 530, 453 S.E.2d 361, 364 (1994) (“[T]his Court held that a circuit
court judge . . . may disqualify a lawyer from representation in a case where that lawyer’s
representation may be in violation of the West Virginia Rules of Professional Conduct.”);
State ex rel. Morgan Stanley & Co., Inc. v. MacQueen, 187 W. Va. 97, 102, 416 S.E.2d 55,
60 (1992) (“[W]here the public interest is involved, an attorney may not represent conflicting
interests even with the consent of all concerned. The rationale underlying this rule is . . . the
ethical requirement that attorneys must avoid, as much as is possible, the appearance of
impropriety.” (internal quotations and citations omitted)).
22
See W. Va. Code § 6B-1-1 (1989) (Repl. Vol. 2010) to W. Va. Code § 6B-3-
11 (2005) (Repl. Vol. 2010).
23
The terms of the fee arrangements are discussed further in this Section of the
opinion, infra.
8
object in construing a statute is to ascertain and give effect to the intent of the Legislature.”
Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361(1975). “A statutory provision which is clear and unambiguous and plainly expresses the
legislative intent will not be interpreted by the courts but will be given full force and effect.”
Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). In other words, “[w]here
the language of a statutory provision is plain, its terms should be applied as written and not
construed.” DeVane v. Kennedy, 205 W. Va. 519, 529, 519 S.E.2d 622, 632 (1999) (citations
omitted). “Only when such language is ambiguous may we interpret and construe a statutory
provision.” Webster Cnty. Comm’n v. Clayton, 206 W. Va. 107, 112, 522 S.E.2d 201, 206
(1999). Further, “[s]tatutes which relate to the same subject matter should be read and
applied together so that the Legislature’s intention can be gathered from the whole of the
enactments.” Syl. pt. 3, Smith, 159 W. Va. 108, 219 S.E.2d 361.
The Legislature created the Act
to define and establish minimum ethical standards for elected
and appointed public officials and public employees; to
eliminate actual conflicts of interest; to provide a means to
define ethical standards; to provide a means of investigating and
resolving ethical violations; and to provide administrative and
criminal penalties for specific ethical violations herein found to
be unlawful.
W. Va Code § 6B-1-2(b) (1989) (Repl. Vol. 2010). The Act establishes administrative civil
9
and criminal penalties24 for public officials and employees who “exercise the powers of their
office or employment for personal gain beyond the lawful emoluments of their position[.]”
W. Va. Code § 6B-1-2(a). A twelve-member Ethics Commission is established under the
Act. See W. Va. Code § 6B-2-1 (2008) (Repl. Vol. 2010). The Ethics Commission is
empowered to “initiate or receive complaints and make investigations . . . of an alleged
violation of [the Act] by a public official or public employee[.]” W. Va. Code § 6B-2-2(b)
(2005) (Repl. Vol. 2010).25 See W. Va. Code § 6B-2-4 (2008) (Repl. Vol. 2010) (processing
complaints). The Act sets out ethical standards for public officials and employees under
W. Va. Code § 6B-2-5 (2008) (Repl. Vol. 2010). The Act specifically provides that it applies
“to all elected and appointed public officials and public employees, whether full or part time,
in state, county, municipal governments and their respective boards, agencies, departments
and commissions and in any other regional or local governmental agency, including county
school boards.” W. Va. Code § 6B-2-5(a). Critical to this case, the Act defines public
“employee” as
any person in the service of another under any contract of hire,
whether express or implied, oral or written, where the employer
or an agent of the employer or a public official has the right or
power to control and direct such person in the material details of
24
See W. Va. Code § 6B-2-10 (2005) (Repl. Vol. 2010) (violations and
penalties).
25
The Act created a Probable Cause Review Board to make an initial
determination of “whether there is probable cause to believe that a violation of the West
Virginia Governmental Ethics Act has occurred and, if so, to refer that investigation to the
Ethics Commission.” W. Va. Code § 6B-2-2a(a) (2008) (Repl. Vol. 2010).
10
how work is to be performed and who is not responsible for the
making of policy nor for recommending official action.
W. Va. Code § 6B-1-3(d) (2008) (Repl. Vol. 2010) (emphasis added).
The Petitioners contend that under the definition of “employee,” as set out in
W. Va. Code § 6B-1-3(d), the special assistant attorneys general are employees of the Office
of Attorney General. The Petitioners base this assertion on two grounds. First, the
Petitioners contend that the letters appointing the attorneys, as special assistant attorneys
general, were contracts of hire. Second, the Petitioners assert that the Attorney General
exercised control over the work of the special assistant attorneys general.26 Resolution of the
first issue makes it unnecessary for us to address the second issue in the context raised.27
To begin, one of the requirements for being an employee under W. Va. Code
§ 6B-1-3(d) is the formation of a contract of hire. The statute does not define the phrase
“contract of hire.” We have held that “[i]n the absence of any definition of the intended
meaning of words or terms used in a legislative enactment, they will, in the interpretation of
the act, be given their common, ordinary and accepted meaning in the connection in which
26
The brief of Petitioner GlaxoSmithKline was far more general in this area
than the specific issues raised by the brief of the other Petitioners. As such, we have
incorporated the general arguments of Petitioner GalxoSmithKline into the more precise
arguments of the other Petitioners.
27
The second issue is addressed in a different context in Section III.B. of this
opinion, infra.
11
they are used.” Syl. pt. 1, Miners in Gen. Grp. v. Hix, 123 W. Va. 637, 17 S.E.2d 810(1941), overruled on other grounds by Lee–Norse Co. v. Rutledge, 170 W. Va. 162, 291
S.E.2d 477 (1982). See State v. Kenyon, Inc., 153 S.W.2d 195, 197 (Tex. Civ. App. 1941)
(“Since the statute does not define the term ‘contract of hire,’ we are required to apply Sec.
24, O.S.1931, 25 Okla. St. Ann. § 1, which provides that ‘words used in any statute are to be
understood in their ordinary sense, except when a contrary intention plainly appears.’”).
Indeed, one court has suggested that “[t]he term ‘contract of hire’ is not defined in the act
probably because the legislature felt that the expression was so well established, understood
and definite, that it needs no further amplification or exposition. It is used in its common
meaning and acceptation.” Child v. Board of Review of Indus. Comm’n of State, 332 P.2d
928, 931 (Utah 1958) (internal quotation and citation omitted).
When confronted with a statute that did not define the phrase “contract of hire,”
courts have uniformly held such a contract to mean one where
the services to be performed by the employee must be
compensated for in wages or their equivalent. It is impossible
to have a contract of hire unless the person denominated the
employer has an obligation to pay the person employed.
Stapleton v. Administrator, Unemployment Comp. Act, 112 A.2d 211, 213 (Conn. 1955)
(citations omitted). See Child, 332 P.2d at 931 (stating that “a contract of hire” “is an
agreement whereby one undertakes or obligates himself to render personal service for
another for a remuneration to be paid because the service was rendered” (internal quotations
and citation omitted)). In other words, “[a] ‘contract [of] hire’ is defined as any agreement
12
under which one person performs personal services at the request of another who pays for
the services.” Adele’s Housekeeping, Inc. v. Department of Emp’t Sec., 757 P.2d 480, 483
(Utah Ct. App. 1988) (internal quotations and citation omitted). See Daleiden v. Jefferson
Cnty. Joint Sch. Dist., 80 P.3d 1067, 1070 (Idaho 2003) (“[A] ‘contract of hire’ is usually
defined as an agreement in which an employee provides labor or personal services to an
employer for wages or remuneration or other thing of value supplied by the employer.”);
Deville v. Pugh, 490 So. 2d 800, 802 (La. Ct. App. 1986) (“LSA-C.C. Art. 2669 defines a
contract of hire as one ‘by which one party gives to the other the enjoyment of . . . his labor,
at a fixed price.’”); Appeal of Jenks, 965 A.2d 1073, 1076 (N.H. 2008) (“[I]n order to
establish a contract [of] hire, the claimant must have received or expected to receive payment
of some kind.” (internal quotations and citation omitted)); Gibbs v. Newport News
Shipbuilding & Drydock Co., 733 S.E.2d 648, 654 (Va. 2012) (“A ‘contract of hire’ is
usually defined as an agreement [written or implied] in which an employee provides labor
or personal services to an employer for wages or remuneration or other thing of value
supplied by the employer.”). “Moreover, an employee’s right to demand payment for his
services from the employer would seem to be essential to his right to receive compensation.”
Kirksey v. Assurance Tire Co., 428 S.E.2d 721, 723 (S.C. Ct. App. 1993) (internal quotations
and citation omitted).
In view of the above authorities we now hold that the phrase “contract of hire,”
in W. Va. Code § 6B-1-3(d) (2008) (Repl. Vol. 2010) of the West Virginia Governmental
13
Ethics Act, refers to an agreement in which a person provides labor or personal services to
a government entity for wages or a salary.28
Because of this commonly-accepted meaning of the phrase “contract of hire,”
it was incumbent upon the Petitioners to present evidence showing that the Attorney General
agreed to pay the special assistant attorneys general remuneration for their services. The
Petitioners failed to do so. In fact, the evidence shows the special assistant attorneys general
may not receive any compensation for their legal services. The appointment letters sent to
the special assistant attorneys general stated, in relevant part:
It is contemplated that you will advance all expenses
associated with the maintenance of this action. Subject to the
approval of the court, it is anticipated that you should earn a
proper, reasonable and customary fee.[29]
(Footnote added). The language from the appointment letters does not require the Attorney
28
We wish to make clear that this definition alone does not make a person an
employee under the Act. This is merely one factor that must be met.
29
The appointment letter sent to the private attorneys in the case against
GlaxoSmithKline was amended to read, in relevant part:
It is contemplated that you will advance all expenses
associated with the maintenance of this action. Subject to the
approval of the court, it is contemplated that you should earn a
proper, reasonable and customary fee to be paid by the
Defendant. However, you will not receive any fee based upon
any recovery by the State for harm to the State’s Medicaid
program that is subject to refund to the Centers for Medicare and
Medicaid Services.
14
General to pay the special assistant attorneys general wages or anything of value. All that
the letters provide is that the special assistant attorneys general must pay the cost of litigating
the cases and that, if they prevail, a court may award them attorney’s fees. The Mason
County Circuit Court’s order, in Case No. 13-0086, set out findings of fact that accurately
described the issue of compensation to the special assistant attorneys general:
The lawyers took the chance to spend their money to
prosecute this action on behalf of West Virginia when they were
not promised any hourly fee or the reimbursements of their
expenses and costs. If they lost this case the West Virginia
taxpayers would not have to pay any money–but the lawyers
would have lost a substantial amount of money.
(Internal quotations and citation omitted). In the final analysis, “[i]t is impossible to have a
contract of hire unless the person denominated the employer has an obligation to pay the
person employed.” Stapleton, 112 A.2d at 213.30 No evidence was provided in this
proceeding to establish this very fundamental requirement.
Consequently, we now hold that, under the definition of “employee” provided
by W. Va. Code § 6B-1-3(d) (2008) (Repl. Vol. 2010) of the West Virginia Governmental
Ethics Act, a private attorney appointed as a special assistant attorney general is not an
employee of the Office of the Attorney General.
30
“When services or labor are rendered voluntarily without a promise of
compensation or remuneration of any kind, express or implied, then the one providing the
services or labor has supplied them gratuitously[.]” Charlottesville Music Ctr., Inc. v.
McCray, 205 S.E.2d 674, 678 (Va. 1974).
15
Our holding is consistent with other language found in the Act. For example,
under W. Va. Code § 6B-2-5(l)(1) (2008) (Repl. Vol. 2010) of the Act, the Legislature has
prohibited public employees from receiving certain compensation. This provision provides,
in relevant part:
(1) A public employee may not receive additional
compensation from another publicly-funded state, county or
municipal office or employment for working the same hours,
unless:
....
(C) The public employee uses earned paid vacation,
personal or compensatory time or takes unpaid leave from his or
her public employment to perform the duties of another public
office or employment.
It is clear that, under the Act, W. Va. Code § 6B-2-5(l)(1), it is contemplated that an
employee will accrue “paid vacation or compensatory time.” Nothing in the record submitted
in these cases shows that the special assistant attorneys general have the right to accrue
vacation or compensatory time from the Office of the Attorney General. See Williams v.
Brown, 190 W. Va. 202, 207, 437 S.E.2d 775, 780 (1993) (“[A]ssistant attorneys general
receive certain employment-related benefits, such as health insurance and retirement, as do
other state employees[.]”). No such evidence was presented because the special assistant
attorneys general are not employees of the Attorney General.31 See Conant v. Robins,
31
Because we have determined that the special assistant attorneys general are
not employees of the Attorney General, for purposes of the Act, we need not address
Petitioners’ argument that the fee arrangement made with the special assistant attorneys
(continued...)
16
Kaplan, Miller & Ciresi, L.L.P., 603 N.W.2d 143, 145 (Minn. Ct. App. 1999) (“[T]he State
of Minnesota retained the law firm of Robins, Kaplan, Miller Ciresi, L.L.P., and attorney
Michael Ciresi to serve as special attorneys to represent the state in litigation against certain
tobacco companies to recover damages arising from the sale and distribution of cigarettes.
The special attorneys, although serving at the direction of the attorney general, were not
considered state employees and were not eligible for state benefits[.]”).
B. Application of Rule 1.7 of the
West Virginia Rules of Professional Conduct
The Petitioners in Case No. 13-0086 have argued that the “contingency” fee
arrangement made with the special assistant attorneys general violates the conflict of interest
provision of Rule 1.7(b) of the West Virginia Rules of Professional Conduct.32 This issue
requires that we examine the language of Rule 1.7(b). We have recognized that “court rules
are interpreted using the same principles and canons of construction that govern the
interpretation of statutes.” Casaccio v. Curtiss, 228 W. Va. 156, ___, 718 S.E.2d 506, 511
31
(...continued)
general violated the Act. We also summarily reject the Petitioners’ contention that the
special assistant attorneys general could not prosecute the actions because W. Va. Code
§ 46A-7-102(1)(f) (1996) (Repl. Vol. 2006) only authorizes the Attorney General to
“[d]elegate his powers and duties under this chapter to qualified personnel in his office[.]”
In view of our discussion of the Attorney General’s inherent common law powers infra at
Section III.C., we find that the Attorney General had authority to appoint special assistant
attorneys general to act as lead counsel in these cases: all of the complaints in these cases
were signed by the Attorney General’s Chief Deputy.
32
Petitioner GlaxoSmithKline did not brief this issue.
17
(2011) (citations omitted). Further, we also have indicated that “where the language of a rule
is clear and unambiguous, it should not be construed but applied according to its terms.” Syl.
pt. 3, in part, State v. Mason, 157 W. Va. 923, 205 S.E.2d 819 (1974).
The language of Rule 1.7(b) provides:
A lawyer shall not represent a client if the representation
of that client may be materially limited by the lawyer’s
responsibilities to another client or to a third person, or by the
lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will
not be adversely affected; and
(2) the client consents after consultation. When
representation of multiple clients in a single matter is
undertaken, the consultation shall include explanation of the
implications of the common representation and the advantages
and risks involved.
(Emphasis added). Petitioners have isolated the third clause in Rule 1.7(b), “by the lawyer’s
own interests,” as being violated. In other words, the Petitioners contend that the interests
of the special assistant attorneys general in obtaining a fee will materially limit their
responsibilities to their client, the State.
The Mason County Circuit Court found that Rule 1.7(b) was not applicable
because, among other reasons, the rule only applies to an attorney representing two clients.
In support of its position, the Mason County Circuit Court’s order quoted and relied upon a
subheading in the opinion of In re James, 223 W. Va. 870, 679 S.E.2d 702 (2009).
Specifically, the circuit court’s order quoted the following subheading from James: “1. Rule
18
1.7 does not apply unless there are two actual clients.” James, 223 W. Va. at 876, 679
S.E.2d at 708 (emphasis in original). We find that the Mason County Circuit Court
misinterpreted James.
The decision in James was a lawyer disciplinary proceeding in which the
Office of Disciplinary Counsel (hereinafter the “ODC”) disagreed with the Hearing Panel
Subcommittee’s recommendation to dismiss charges against the lawyer in the case. ODC
contended that the lawyer violated Rule 1.7 when he represented a client in a criminal matter
arising from an automobile accident and provided advice and assistance to another person
involving the same or a substantially related matter. The issue this Court addressed in James
was whether Rule 1.7 was applicable to a situation in which an attorney represents an actual
client and gives advice to a potential client. The opinion concluded that “Rule 1.7 of the
Rules of Professional Conduct does not apply to this situation involving one actual client . . .
and one potential client[.]” James, 223 W. Va. at 877, 679 S.E.2d at 709. It was this ruling
that the subheading was intended to reflect.
To be clear, in spite of the subheading used in James, the decision did not hold
that Rule 1.7 may be invoked only when a lawyer represents two clients. The subheading
was descriptive of the specific issue addressed in that particular case and was not a
dispositive ruling on the entire coverage of Rule 1.7. Rule 1.7(b) actually addresses three
19
situations.33 The rule addresses the issue of a lawyer’s conflict of interest involving his or
her client and (1) another client, (2) a third person, or (3) the lawyer’s own interests. See
State ex rel. Verizon West Virginia, Inc. v. Matish, ___ W. Va. ___, ___, 740 S.E.2d 84, 92
(2013) (“Pursuant to the express language of West Virginia Rule of Professional Conduct
1.7(b), a lawyer is prohibited from representing a client if such representation may be
materially limited by the lawyer’s responsibilities to another client or to a third person, or by
the lawyer’s own interests.” (internal quotations and citation omitted)). The decision in
Committee on Legal Ethics of The West Virginia State Bar v. Cometti, 189 W. Va. 262, 430
S.E.2d 320 (1993), illustrates the application of the third prohibition in Rule 1.7(b).
In Cometti, a lawyer was charged with violating Rule 1.7(b) when he filed suit
against his former client in order to retrieve property that belonged to him but that was in the
possession of the former client. No other client was involved in the case; therefore the only
provision in Rule 1.7(b) that was applicable was the “lawyer’s own interests” provision. This
Court found that the lawyer did not violate this provision, by placing his own interests above
33
Rule 1.7(a) is limited to a lawyer’s representation of two clients:
(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.
20
his client’s interests, because he no longer represented the client:
Mr. Cometti contends that he had been discharged from
his representation of Ms. Shrewsbury at the time he filed the
civil action. Although the facts surrounding Mr. Cometti’s
withdrawal as Ms. Shrewsbury’s attorney in the heating system
case are convoluted, it is clear that both parties had engaged in,
at the least, very heated discussions concerning his withdrawal.
We are persuaded that Mr. Cometti had withdrawn at the time
he filed suit by the testimony of L. Alvin Hunt, a lawyer sought
out by Ms. Shrewsbury to take over her heating system case.
Mr. Hunt testified to the Committee that several days prior to
the institution of Mr. Cometti’s suit against Ms. Shrewsbury, she
sought his services and told him that Mr. Cometti was no longer
her attorney. Because Mr. Cometti no longer represented Ms.
Shrewsbury at the time he instituted the suit to gain access to the
property to obtain his possessions, we find that Mr. Cometti did
not violate Rule 1.7(b).
Cometti, 189 W. Va. at 268, 430 S.E.2d at 326.
Thus it is clear that, in the instant case, the Mason County Circuit Court erred
in finding that Rule 1.7(b) could be invoked only when a lawyer has a conflict of interest that
involves two clients. While we reject the circuit court’s finding on this narrow ground, we
agree with the ultimate decision of the circuit court that Rule 1.7(b) was not violated by the
fee arrangement of the special assistant attorneys general.
21
1. Viewing the litigation as quasi-criminal. The Petitioners argue that this
Court should view the case as a criminal proceeding because of the statutory civil penalties
that may be imposed if liability is found.34 Further, the Petitioners contend that, insofar as
courts prohibit criminal prosecuting attorneys from having a financial interest in the outcome
of criminal cases, this Court should prohibit the appointment of the special assistant attorneys
general because they have a financial interest in the outcome of the litigation. See State v.
Culbreath, 30 S.W.3d 309, 314 (Tenn. 2000) (“Numerous courts and commentators have
recognized, however, that the use of a private attorney in the prosecution of a criminal case
may present ethical dilemmas, including conflicts of interest.”).
The Petitioners’ brief cites to several cases in which courts have noted in dicta
that statutory causes of action imposing civil penalties may be viewed as quasi-criminal in
nature. See, e.g., Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 355, 118 S. Ct.
1279, 1288, 140 L. Ed. 2d 438 (1998) (“Moreover, the awarding of civil penalties to the
Government could be viewed as analogous to sentencing in a criminal proceeding.”); Louis
Vuitton S.A. v. Spencer Handbags Corp., 765 F.2d 966, 971-72 (2d Cir. 1985) (“The Ex Post
Facto Clause . . . may also be applied in civil cases where the civil disabilities disguise
criminal penalties.”); First Am. Bank of Virginia v. Dole, 763 F.2d 644, 651 n.6 (4th Cir.
1985) (“Civil penalties may be considered ‘quasi-criminal’ in nature.”); United States v.
34
Petitioner GlaxoSmithKline also argued that the litigation should be viewed
as quasi-criminal in general, but not in the context of Rule 1.7(b).
22
Sanchez, 520 F. Supp. 1038, 1040 (S.D. Fla. 1981) (“At the outset, the Court would note that
while technically these cases are civil actions, the imposition of a fine as a penalty for
violation of the law can be considered ‘quasi-criminal’ in nature.”). In further support of
their argument, the Petitioners contend that the special assistant attorneys general will
recommend that the Attorney General pursue penalties based on their own financial interests.
Assuming, for the sake of argument, that this Court treated this case as “quasi-
criminal” in nature because of the civil penalties,35 Petitioners have failed to demonstrate
35
This Court has recognized the following test for determining whether a
monetary penalty should be treated as a criminal or civil penalty:
The question of whether a particular statutorily defined
penalty is civil or criminal is a matter of statutory construction,
and requires the application of a two-level inquiry. . . . First,
courts must determine whether the legislature indicated, either
expressly or impliedly, a preference for labeling the statute civil
or criminal. Second, if the legislature indicates an intention to
establish a civil remedy, courts must consider whether the
legislature, irrespective of its intent to create a civil remedy,
provided for sanctions so punitive as to transform the civil
remedy into a criminal penalty.
Syl. pt. 1, in part, State ex rel. Palumbo v. Graley’s Body Shop, Inc., 188 W. Va. 501, 425
S.E.2d 177 (1992). As a general matter, when courts are asked to determine whether a
statutory penalty is criminal or civil, it is because a litigant seeks to raise constitutional rights
that are protected in criminal proceedings. See Kennedy v. Mendoza-Martinez, 372 U.S. 144,
185-86, 83 S. Ct. 554, 576-77, 9 L. Ed. 2d 644 (1963) (finding civil penalties “punitive and
as such cannot constitutionally stand, lacking as they do the procedural safeguards which the
Constitution commands”); Town of Babylon v. Pekich, Nos. 2010-113 S C, 2010-114 S C,
2010-506 S C, 2010-508 S C, 2010-510 S C, 2010-513 S C, 2010-518 S C, 2010-522 S C,
2010-524 S C, and 2010-525 S C, 2011 WL 3689379, at *1 (N.Y. App. Term Aug. 16, 2011)
(continued...)
23
how this would lead to the conclusion that Rule 1.7(b) is violated by the appointment of the
special assistant attorneys general.
We fail to see how recommending penalties to the Attorney General, in and of
itself, presents a conflict of interest by the special assistant attorneys general. First,
recommendations are mere suggestions that can be rejected. Second, the complaints in this
matter demonstrate that the Attorney General determined and set out the penalties sought in
these cases. The complaints meticulously set out penalties ranging from monetary to
injunctive relief. The complaints were styled in the name of the Attorney General, on behalf
of the State, and were signed by the Chief Deputy Attorney General.36 Insofar as the
evidence demonstrates that the Attorney General chose and approved of the penalties to be
sought if liability was established, we find the Petitioners’ arguments in this regard do not
support a violation of Rule 1.7(b).
35
(...continued)
(“[W]e find that the Fourth Amendment applies to this quasi-criminal action to enforce
provisions of a municipal code and recover penalties[.]”); City of Jackson v. Butler, 10
S.W.3d 250, 253 (Tenn. Ct. App. 1999) (“While it has been held that the exclusionary rule
does not apply to a civil proceeding, it is usually held that the rule applies to a civil
proceeding which is quasi-criminal in nature, or in which the government is seeking to exact
a penalty or in some way punish a person.”); Sims v. State Tax Comm’n, 841 P.2d 6, 13-15
(Utah 1992) (holding exclusionary rule applied to civil proceeding when proceeding was
quasi-criminal and law enforcement entities were financially motivated to acquire evidence
of tax violations based on statutory provision for distribution of sixty percent of taxes,
penalties, and interest collected to law enforcement agency).
36
The complaints also were signed by one of the special assistant attorneys
general.
24
2. Maximizing attorney’s fees based upon penalties pursued. The
Petitioners also appear to be making a general argument, not in the context of Rule 1.7(b),
that the special assistant attorneys general will prosecute this case in a manner that
maximizes their interests in attorney’s fees by seeking penalties based on their own financial
interests, rather than based on an impartial sense of justice or the public’s interest.37 We
reject this argument for three reasons. First, the Petitioners have failed to show how any
attorney’s fee recovered by the special assistant attorneys general is inextricably tied to the
nature of the relief obtained, if they are successful. In other words, there is nothing in the
record, statutes, or case law which states that the actual amount of attorney’s fees awarded
is exclusively dependent on the nature of the relief obtained.38 Second, the Petitioners fail
37
Petitioner GlaxoSmithKline also makes this general argument.
38
The standard for determining the amount of an award of attorney’s fees is set
out in Syllabus point 4 of Aetna Casualty and Surety Co. v. Pitrolo, 176 W. Va. 190, 342
S.E.2d 156 (1986):
Where attorney’s fees are sought against a third party, the
test of what should be considered a reasonable fee is determined
not solely by the fee arrangement between the attorney and his
client. The reasonableness of attorney’s fees is generally based
on broader factors such as: (1) the time and labor required; (2)
the novelty and difficulty of the questions; (3) the skill requisite
to perform the legal service properly; (4) the preclusion of other
employment by the attorney due to acceptance of the case; (5)
the customary fee; (6) whether the fee is fixed or contingent; (7)
time limitations imposed by the client or the circumstances; (8)
the amount involved and the results obtained; (9) the experience,
(continued...)
25
to acknowledge that the Attorney General monitors the litigation in this case. The special
assistant attorneys general do not have absolute control of the litigation. The appointment
letters provided to the special assistant attorneys general state:
In keeping with the Attorney General’s policies and
practices, it is anticipated that this office will be kept apprised
of any and all actions taken in this case, and it is anticipated that
we will have regular ongoing discussions regarding tactics and
strategy.
Based upon the wording of the appointment letters, the Attorney General retained the
authority to decide strategy and tactics. Third, the Petitioners appear to not fully understand
that the issue of the amount of attorney’s fees is purely discretionary with the trial court.
Success by the special assistant attorneys general does not result in any predetermined
amount of attorney’s fees. The trial court determines the amount, if any, of attorney’s fees
to be awarded. See Syl. pt. 2, Sally–Mike Props. v. Yokum, 179 W. Va. 48, 365 S.E.2d 246(1986) (“As a general rule each litigant bears his or her own attorney’s fees absent a contrary
rule of court or express statutory or contractual authority for reimbursement.”).
38
(...continued)
reputation, and ability of the attorneys; (10) the undesirability of
the case; (11) the nature and length of the professional
relationship with the client; and (12) awards in similar cases.
26
3. Application of Clancy. The Petitioners in Case No. 13-0086 ask this Court
to follow the decision in People ex rel. Clancy v. Superior Court, 218 Cal. Rptr. 24(Cal. 1985), in order to find that the special assistant attorneys general have a financial
conflict of interest.39 In Clancy, the City of Corona hired a private attorney to prosecute a
nuisance action against the owner of a store that sold sexually explicit reading materials and
provided an arcade section for viewing sexually explicit films. The case was brought to the
California Supreme Court on extraordinary writs by both parties to the action. The defendant
bookstore owner asked the Supreme Court to disqualify the city’s private attorney because
of the fee arrangement with the city. Under that arrangement, the private attorney was
guaranteed $30.00 per hour, but could receive $60.00 per hour if the city was successful and
it obtained attorney’s fees from the defendant. The California Supreme Court found the fee
arrangement to be improper and disqualified the attorney:
In the case at bar, Clancy has an interest in the result of
the case: his hourly rate will double if the City is successful in
the litigation. Obviously this arrangement gives him an interest
extraneous to his official function in the actions he prosecutes
on behalf of the City.
....
[T]he abatement of a public nuisance involves a balancing of
interests. On the one hand is the interest of the people in ridding
their city of an obnoxious or dangerous condition; on the other
hand is the interest of the landowner in using his property as he
wishes. And when an establishment such as an adult bookstore
is the subject of the abatement action, something more is added
39
The brief of Petitioner GlaxoSmithKline does not cite to this case.
27
to the balance: not only does the landowner have a First
Amendment interest in selling protected material, but the public
has a First Amendment interest in having such material available
for purchase. Thus, as with an eminent domain action, the
abatement of a public nuisance involves a delicate weighing of
values. Any financial arrangement that would tempt the
government attorney to tip the scale cannot be tolerated.
Public nuisance abatement actions share the public
interest aspect of eminent domain and criminal cases, and often
coincide with criminal prosecutions. These actions are brought
in the name of the People by the district attorney or city
attorney. A person who maintains or commits a public nuisance
is guilty of a misdemeanor. . . . A suit to abate a public nuisance
can trigger a criminal prosecution of the owner of the property.
This connection between the civil and criminal aspects of public
nuisance law further supports the need for a neutral prosecuting
attorney.
Clancy, 218 Cal. Rptr. at 28-30 (citations omitted).
Although the Petitioners seek to have this Court follow Clancy, it is quite
obvious that Clancy is distinguishable from the facts of the instant case. To begin, Clancy
involved a private attorney prosecuting a civil action for alleged conduct that also was
criminal. The Petitioners in the instant case have not cited to any criminal component to the
allegations set out in the civil complaints.40 Next, the private attorney in Clancy was
guaranteed an hourly fee and could have his fee doubled if successful. In the instant case,
40
There is a criminal component to the Consumer Credit and Protection Act for
certain conduct. See W. Va. Code § 46A-5-103 (1996) (Repl. Vol. 2006). However, the
Petitioners have not argued that any of the criminal offenses under that statute have
application to their alleged conduct.
28
the special assistant attorneys general are not guaranteed any fee and could be denied the
same by the trial judge even if successful.41 Finally, the private attorney in Clancy acted
independently of the city’s attorney and had absolute control of the litigation.42 In the instant
case, the Attorney General retained ultimate control of litigation strategy and tactics. This
latter issue was squarely addressed by the California Supreme Court in the recent case of
County of Santa Clara v. Superior Court, 112 Cal. Rptr. 3d 697 (Cal. 2010).
In Santa Clara, several California counties and cities prosecuted a public
nuisance action against numerous businesses that manufactured lead paint. The government
entities were represented by both their own government attorneys and by several private law
firms. The private law firms were retained by the government entities on a contingent fee
basis. The issue presented to the California Supreme Court was whether the trial court was
correct in relying on Clancy to prohibit compensation to the privately retained counsel or
whether the court of appeal was correct in holding that Clancy did not prohibit compensating
private attorneys on a contingent fee basis when they are under the supervision of
41
Indeed, W. Va. Code § 46A-7-111(1) (1999) (Repl. Vol. 2006) provides that
“[i]f the creditor establishes by a preponderance of evidence that a violation is unintentional
or the result of a bona fide error, no liability to pay a penalty shall be imposed under this
subsection.”
42
This point is important because the California Supreme Court indicated that
the city could retain the private attorney in the case to represent the city attorney if the city
attorney filed the action in the name of the city attorney. See Clancy, 218 Cal. Rptr. at 30
n.5 (“Thus on remand the action herein should be brought in the name of Dallas Holmes, the
Corona City Attorney. The City may hire Clancy to represent Holmes.”).
29
government attorneys. The Supreme Court agreed with the court of appeal:
There is no indication that the contingent-fee
arrangements in the present case have created a danger of
governmental overreaching or economic coercion. Defendants
are large corporations with access to abundant monetary and
legal resources. Accordingly, the concern we expressed in
Clancy about the misuse of governmental resources against an
outmatched individual defendant is not implicated in the present
case.
Thus, because–in contrast to the situation in Clancy–
neither a liberty interest nor the right of an existing business to
continued operation is threatened by the present prosecution,
this case is closer on the spectrum to an ordinary civil case than
it is to a criminal prosecution. The role played in the current
setting both by the government attorneys and by the private
attorneys differs significantly from that played by the private
attorney in Clancy. Accordingly, the absolute prohibition on
contingent-fee arrangements imported in Clancy from the
context of criminal proceedings is unwarranted in the
circumstances of the present civil public-nuisance action.
....
We generally agree with the . . . Court of Appeal in the
present case that there is a critical distinction between an
employment arrangement that fully delegates governmental
authority to a private party possessing a personal interest in the
case, and an arrangement specifying that private counsel remain
subject to the supervision and control of government attorneys.
Private counsel serving in a subordinate role do not supplant a
public entity’s government attorneys, who have no personal or
pecuniary interest in a case and therefore remain free of a
conflict of interest that might require disqualification.
Accordingly, in a case in which private counsel are subject to
the supervision and control of government attorneys, the
discretionary decisions vital to an impartial prosecution are
made by neutral attorneys and the prosecution may proceed with
the assistance of private counsel, even though the latter have a
pecuniary interest in the case.
30
It is true that the public attorneys’ decisionmaking
conceivably could be influenced by their professional reliance
upon the private attorneys’ expertise and a concomitant sense of
obligation to those attorneys to ensure that they receive payment
for their many hours of work on the case. This circumstance
may fairly be viewed as being somewhat akin to having a
personal interest in the case. Nevertheless, this is not the type
of personal conflict of interest that requires disqualification. . . .
Almost any fee arrangement between attorney and client may
give rise to a conflict. . . . The contingent fee contract so
common in civil litigation creates a conflict when either the
attorney or the client needs a quick settlement while the other’s
interest would be better served by pressing on in the hope of a
greater recovery. The variants of this kind of conflict are
infinite. Fortunately most attorneys serve their clients honorably
despite the opportunity to profit by neglecting or betraying the
client’s interest.
As recognized by the American Bar Association,
attorneys are expected to resolve conflicts between their
personal interests and their ethical and professional
responsibilities through the exercise of sensitive professionalism
and moral judgment. In other words, attorneys are presumed to
comport themselves with ethical integrity and to abide by all
rules of professional conduct.
Santa Clara, 112 Cal. Rptr. 3d at 713-17 (internal quotations and citations omitted).
The decision in Santa Clara is factually similar to the instant case with respect
to two critical issues. The government entities in Santa Clara had both private and public
counsel. In this proceeding, the Chief Deputy Attorney General is counsel of record along
with the special assistant attorneys general. Most importantly, in both Santa Clara and the
instant case, private attorneys are subject to supervision by government attorneys.
31
In the final analysis, the Petitioners have failed to present any evidence that the
financial interests of the special assistant attorneys general is in conflict with that of their
client and therefore violative of Rule 1.7(b). See In re T.R., 606 S.E.2d 630, 632 (Ga. Ct.
App. 2004) (“[A] person must demonstrate an actual conflict of interest affecting the
performance of a lawyer who works as a part-time [special assistant attorney general], not
just the mere possibility of a conflict.”).
C. The Attorney General’s Authority to
Appoint Special Assistant Attorneys General
The final issue raised by the Petitioners is that the Attorney General lacks
authority to appoint special assistant attorneys general.43 The Petitioners support this
argument by asserting that, under Article VII, Section 1 of the West Virginia Constitution,
the Legislature has been given exclusive authority to set out the duties of the Attorney
General but that the Legislature has not granted the Attorney General the authority to appoint
special assistant attorneys general. Further, the Petitioners contend that, by virtue of Article
VII, Section 1, the Attorney General does not have common law authority to appoint special
assistant attorneys general. Finally, it is argued by the Petitioners that, even if the Attorney
General had authority to appoint special assistant attorneys general, he did not have authority
to enter a fee arrangement with them.
43
This issue was briefed by the parties in both petitions.
32
As a preliminary matter, we observe that, although this Court is vested with the
authority “to construe, interpret and apply provisions of the Constitution, . . . [we] may not
add to, distort or ignore the plain mandates thereof.” State ex rel. Bagley v. Blankenship, 161
W. Va. 630, 643, 246 S.E.2d 99, 107 (1978). “If a constitutional provision is clear in its
terms, and the intention of the electorate is clearly embraced in the language of the provision
itself, this Court must apply and not interpret the provision.” Syl. pt 1, State ex rel. Trent
v. Sims, 138 W. Va. 244, 77 S.E.2d 122 (1953). “However, if the language of the
constitutional provision is ambiguous, then the ordinary principles employed in statutory
construction must be applied to ascertain such intent.” State ex rel. Forbes v. Caperton, 198
W. Va. 474, 480, 481 S.E.2d 780, 786 (1996) (internal quotations and citations omitted).
We begin by observing that Article VII, Section 1 of the West Virginia
Constitution establishes the creation of the Office of Attorney General:
The executive department shall consist of a governor,
secretary of state, auditor, treasurer, commissioner of agriculture
and attorney general, who shall be ex officio reporter of the
court of appeals. Their terms of office shall be four years and
shall commence on the first Monday after the second
Wednesday of January next after their election. They shall
reside at the seat of government during their terms of office,
keep there the public records, books and papers pertaining to
their respective offices and shall perform such duties as may be
prescribed by law.
(Emphasis added). See Syl. pt. 2, State ex rel. McGraw v. Burton, 212 W. Va. 23, 569
S.E.2d 99 (2002) (“Pursuant to Article VII, Section 1 of the West Virginia Constitution, the
33
Attorney General of the State of West Virginia is the State’s chief legal officer, which status
necessarily implies having the constitutional responsibility for providing legal counsel to
State officials and State entities.”). It is obvious that Article VII, Section 1 does not
expressly grant nor deny the Attorney General the authority to appoint special assistant
attorneys general. Put simply, the constitutional provision is silent on the issue.
Under Article VII, Section 1, the Attorney General is required to be the
reporter of the opinions of this Court, reside at the seat of government, and maintain the
office’s public records, books, and papers. The last clause of Article VII, Section 1, “shall
perform such duties as may be prescribed by law,” expressly authorizes the Legislature to
establish duties of the Attorney General’s office.
The Petitioners note that the Legislature has expressly provided for the
appointment of assistant attorneys general and the method of their payment under W. Va.
Code § 5-3-3 (1961) (Repl. Vol. 2011).44 However, according to the Petitioners, this statute
does not authorize the appointment of special assistant attorneys general. Further, the
Petitioners contend that, under this Court’s decision in Manchin v. Browning, 170 W. Va.
779, 296 S.E.2d 909 (1982), the Attorney General does not have common law authority to
appoint special assistant attorneys general. We will examine both contentions separately
44
See Section III.C.2., infra, for further treatment of W. Va. Code § 5-3-3(1961) (Repl. Vol. 2011).
34
below.
1. The Attorney General’s common law authority. The issue of the
common law authority of the Attorney General was first addressed by this Court in State v.
Ehrlick, 65 W. Va. 700, 64 S.E. 935 (1909). The decision in Ehrlick addressed the issue of
whether a county prosecutor could file a petition for an injunction in the name of the State.
The prosecutor filed the petition to enjoin the defendants from carrying on a horse racing
gambling operation. After a circuit court granted the prosecutor the relief requested, the
defendants appealed. The defendants contended on appeal that only the Attorney General
had authority to bring the civil petition in the name of the State. This Court agreed with the
defendants. In discussing the powers of the Attorney General and prosecutor, the opinion
noted that the Attorney General possessed common law powers. While not dispositive for
reversing the trial court’s injunction, the opinion held in Syllabus point 2 that, “[a]s the chief
law officer of the state, the Attorney General is clothed and charged with all the
common–law powers and duties pertaining to his office, except in so far as they have been
limited by statute.” Syl. pt. 2, Ehrlick, 65 W. Va. 700, 64 S.E. 935.
Ehrlick’s recognition that the Attorney General had common law powers
remained unassailable law until the decision in Manchin v. Browning, 170 W. Va. 779, 296
S.E.2d 909 (1982). In Manchin, the Secretary of State filed a petition for a writ of mandamus
with this Court seeking to compel the Attorney General to represent the Secretary of State’s
35
office in a federal litigation. While the case was pending, the federal lawsuit settled.
However, the Court determined that it would address the issue of the duty of the Attorney
General to represent State officials. In resolving this issue, the opinion in Manchin ventured
off into sweeping dicta that called into question whether the Attorney General had common
law powers.
The decision in Manchin relied upon the status of the Office of Attorney
General in Virginia, prior to the start of the Civil War, in order to conclude that West
Virginia’s Attorney General did not have common law powers. The opinion in Manchin said
the following regarding the Attorney General’s status in pre-Civil War Virginia:
As a consequence of the American Revolution, the
executive powers of the Crown office of Attorney General
underwent substantial modification in Virginia. The first
constitution of Virginia, adopted June 29, 1776, recognized the
Attorney General as a judicial officer, thereby removing him
from the executive department. He was appointed by and served
at the pleasure of the General Assembly and was commissioned
by the Governor. In addition, the Attorney General was
specifically prohibited from holding elected office in either the
legislative or executive department. This constitution continued
in force until superseded by an amended constitution, submitted
by the General Assembly on January 15, 1830. The provisions
of the amended constitution relating to the office of Attorney
General were altered little. The Attorney General remained an
officer of the judicial department, was appointed and
commissioned in the same manner and continued to serve at the
pleasure of the General Assembly.
The 1850 Virginia Constitution made some sweeping
changes in the office. It provided for the first time for the
election of the Attorney General by the voters of the
36
Commonwealth and established a definite term of office. The
Attorney General continued to serve as an officer of the
judiciary, however, and the amended constitution provided “[h]e
. . . shall perform such duties and receive such compensation as
may be prescribed by law, and be removable in the manner
prescribed for the removal of judges.” Va. Const. of 1850, art.
VI, § 22.
Manchin, 170 W. Va. at 784, 296 S.E.2d at 914 (additional citation omitted). As a result of
Virginia’s Office of Attorney General being a part of the judiciary, the opinion in Manchin
made an overly broad conclusion that Virginia’s Attorney General did not have common law
powers.45
After concluding that the Attorney General of Virginia did not have common
law powers, Manchin reasoned that the wording of West Virginia’s Constitution, Article VII,
Section 1, had to be interpreted as not allowing West Virginia’s Attorney General to have
common law powers. The convoluted reasoning of Manchin was as follows:
The plain language of this constitutional provision,
[Article VII, Section 1,] when viewed against the historical
backdrop of the development of the office of Attorney General
in the Virginias, leads us to conclude that the Attorney General
of West Virginia does not possess the common law powers
attendant to that office in England and in British North America
during the colonial period. By removing the traditional
executive office of Attorney General to the judicial department
and establishing a tri-partite state government, with separate
legislative, executive and judicial departments, the framers of
the first Virginia Constitution in effect abrogated any common
45
Other than the dicta in Manchin, no authority was cited to support this
conclusion.
37
law executive powers the holder of that office may have had.
The executive function formerly exercised by the Attorney
General at common law was extinguished, and for the next 96
years he remained a minor judicial officer, prohibited by the
separation of powers from wielding the common law legislative
and executive powers traditional to the office in Great Britain.
By the provisions of our present constitution, the
Attorney General is once again an officer of the executive
department. However, his return to the executive department
did not revive the common law powers of the office. The people
of West Virginia specifically expressed their intent that the
Attorney General should not exercise those powers by providing
that he “shall perform such duties as may be prescribed by law.”
Under settled rules of construction, the word “shall” when used
in constitutional provisions is ordinarily taken to have been used
mandatorily, and the word “may” generally should be read as
conferring both permission and power. The phrases “prescribed
by law” and “provided by law” mean prescribed or provided by
statutes. The plain effect of the provision is to limit the powers
of the Attorney General to those conferred by law laid down
pursuant to the constitution. Consequently we conclude that the
powers and duties of the Attorney General are specified by the
constitution and by rules of law prescribed pursuant thereto. We
hereby overrule State v. Ehrlick, supra, insofar as it conflicts
with this view.
Manchin, 170 W. Va. at 785, 296 S.E.2d at 915 (citations omitted).
Before turning to the decision of this Court that modified Manchin’s denial of
inherent powers to the Attorney General, we pause to note that Manchin appears to have
incorrectly reported that Virginia’s pre-Civil War Attorney General did not have common
law powers. The 1808 Virginia Supreme Court opinion in Dew v. Sweet Springs District
Court Judges, 13 Va. 1 (1808), touched upon the issue of the Attorney General’s inherent
38
common law powers.
In Dew, the appellant was appointed to fill a vacancy as clerk of a district court.
However, he was not allowed to take office because he failed to post the bond that was
required before the position could be officially filled. As a consequence, the appellee was
appointed to fill the vacancy. The appellant filed a petition for mandamus with a trial court
seeking to remove the appellee from the office of court clerk. The trial court denied the
petition upon finding mandamus was not the proper remedy. In the appeal, the Virginia
Supreme Court cited to arguments suggesting an “information in the nature of a quo
warranto” was the proper filing instrument for the appellant to obtain relief. The arguments
contended that an information was a common law instrument and that only the Attorney
General had common law authority to file the same. However, the Supreme Court
determined that an information was not a proper instrument in the case because it could be
filed only in a criminal prosecution, and no one had committed a crime regarding the clerk’s
vacancy:
But it is objected that the information is not given by the
statute, but existed at common law. It certainly existed at
common law, but only as a proceeding on the criminal side: it
was first given to the party, as a civil remedy, by the statute. . . .
The Attorney-General, at common law, is not bound to
file an information when a criminal act has not been committed.
Now what crime has [the appellee] been guilty of in accepting
an office before declared vacant by the Judges, and the exercise
of which was necessary to the public good?
39
....
On general principles, therefore, it would seem to be
more proper, (or rather less objectionable,) to turn over the party
to his private and more speedy remedy under the statute, than to
the common law information, which he cannot use without the
intervention of the prerogative, or the permission of the
Attorney-General, and the proceedings on which are, perhaps,
more dilatory than in the other case.
Dew, 13 Va. at 12-23.
The decision in Dew is important for one purpose. The decision illustrates,
contrary to Manchin, that the court in Dew believed that Virginia’s Attorney General had
common law powers prior to the Civil War. Further, under the current laws of the State of
Virginia, the Attorney General is recognized as having certain common law powers. See,
e.g., Commonwealth ex rel. Beales v. JOCO Found., 558 S.E.2d 280, 284 (Va. 2002)
(recognizing Attorney General has common law authority over certain nonprofit health care
litigation); Tauber v. Commonwealth, 499 S.E.2d 839, 842 (Va. 1998) (“This Court long ago
recognized the common law authority of the Attorney General to act on behalf of the public
in matters involving charitable assets.” (citing Clarke v. Oliver, 22 S.E. 175 (Va. 1895))).
The correctness of Manchin’s wholesale rejection of inherent powers in the
Office of Attorney General was challenged and modified in State ex rel. McGraw v. Burton,
212 W. Va. 23, 569 S.E.2d 99 (2002). In Burton, the Attorney General filed a petition for
a writ of mandamus with this Court seeking to compel State agencies to use only private
40
legal counsel approved by the Attorney General and to make all in-house State agency
lawyers employees of the Attorney General. This Court initially noted that the respondents,
the parties opposed to the Attorney General’s petition, contended that, as a result of the “as
may be prescribed by law” language in Article VII, Section 1, “the Legislature has essentially
plenary and unfettered discretion to, through statutory action, delineate, limit, or even
effectively eliminate the Attorney General’s role in providing legal counsel and
representation to State entities.” Burton, 212 W. Va. at 29, 569 S.E.2d at 105. The position
of the respondents was rejected:
We believe it is clear . . . that there are certain core
functions of the Office of Attorney General that are inherent in
the office, of which the Office of Attorney General may not be
deprived, and which may not be transferred to or set up in
conflict with other offices. The suggestion by some of the
respondents that the Legislature possesses unfettered discretion
to define, delineate, and limit the duties of the Attorney General
is wholly at odds with the historical and well-settled
understanding of the constitutional role of the Attorney General.
Accordingly, we hold that pursuant to Article VII, Section 1 of
the West Virginia Constitution, the Attorney General of the
State of West Virginia is the State’s chief legal officer, which
status necessarily implies having the constitutional
responsibility for providing legal counsel to State officials and
State entities.
Burton, 212 W. Va. at 31-32, 569 S.E.2d at 107-08.
The next issue taken up by Burton was whether the Legislature could, as held
in Manchin, strip the Office of Attorney General of all of its inherent powers. The decision
determined that under the separation of powers doctrine the Legislature could not deny the
41
Office of Attorney General all of its inherent powers. Burton found that “[o]ne aspect [of
the separation of powers doctrine] is the constitutional inability of the Legislature to define
the powers and duties of the Office of Attorney General . . . so as to deprive the Office of
Attorney General . . . of the inherent functions and purposes thereof.” Burton, 212 W. Va.
at 33, 569 S.E.2d at 109. Burton concluded that “no statute, policy, rule, or practice may
constitutionally operate, alone or cumulatively, to limit, reduce, transfer, or reassign the
duties and powers of the Office of the Attorney General in such a fashion as to prevent that
office from performing its inherent constitutional functions.” Burton, 212 W. Va. at 41, 569
S.E.2d at 117.46
In sum, under Burton, the Legislature does not have the unfettered discretion
46
The decision in Burton granted the requested writ, as moulded, to reflect the
following:
[I]n all instances when an executive branch or related State
entity is represented by counsel before a tribunal, the Attorney
General shall appear upon the pleadings as an attorney of
record; however, this requirement does not bar other counsel
from also appearing and acting in a legal capacity for the State
entity. The Attorney General additionally has the right to appear
as an intervenor as Attorney General on behalf of the State in all
proceedings where the interest of the State or a State entity is at
issue, to assert the Attorney General’s view of the law on behalf
of the State. To maintain a proper constitutional balance,
however, this right must always be exercised with restraint and
due respect by the State entity and the Attorney General.
Burton, 212 W. Va. at 41, 569 S.E.2d at 117 (footnote omitted).
42
or authority recognized in Manchin to nullify all of the inherent powers of the Office of
Attorney General. Of course, one of the Attorney General’s inherent powers expressly
nullified in Manchin was the common law powers of the Office. See CSWS, L.L.C. v.
Village of Bedford Park, No. 1-11-3814, 2012 WL 6861371, at *4 (Ill. App. Ct. Dec. 31,
2012) (“[T]he Attorney General has inherent common law powers[.]”); Dunn v. Schmid, 60
N.W.2d 14, 17 n.1 (Minn. 1953) (“[T]he attorney general, in addition to his powers
expressly conferred upon him by statute, is possessed of extensive common-law powers
which are inherent in his office.”). Manchin held that such powers did not exist because of
Virginia’s position on the issue, and because our Legislature was given unfettered discretion
to determine the duties and powers of the Office. Insofar as we have shown that Manchin
incorrectly interpreted the common law powers of Virginia’s Attorney General, and Burton
has rejected Manchin’s holding that the Attorney General has no inherent authority, we make
clear and once again expressly hold that the Office of Attorney General retains inherent
common law powers, when not expressly restricted or limited by statute.47 The extent of
47
A majority of jurisdictions also have held that the Office of Attorney General
retains inherent common law powers. See Ex parte King, 59 So. 3d 21 (Ala. 2010); Botelho
v. Griffin, 25 P.3d 689 (Alaska 2001); Masterson v. State ex rel. Bryant, 949 S.W.2d 63 (Ark.
1997); People ex rel. Harris v. Rizzo, 154 Cal. Rptr. 3d 443 (Cal. Ct. App. 2013); People ex
rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003); Seth v. State, 592 A.2d 436 (Del. 1991);
Bondi v. Tucker, 93 So. 3d 1106 (Fla. Dist. Ct. App. 2012); In re Water Use Permit
Applications, 9 P.3d 409 (Haw. 2000); Newman v. Lance, 922 P.2d 395 (Idaho 1996); People
v. Buffalo Confectionery Co., 401 N.E.2d 546 (Ill. 1980); Zoeller v. East Chicago Second
Century, Inc., 904 N.E.2d 213 (Ind. 2009); Memorial Hosp. Ass’n, Inc. v. Knutson, 722 P.2d
1093 (Kan. 1986); Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152 (Ky. 2009);
City of Augusta v. Attorney Gen., 943 A.2d 582 (Me. 2008); Case of Opare, 932 N.E.2d 863(continued...)
43
those powers is to be determined on a case-by-case basis. Insofar as the decision in Manchin
v. Browning, 170 W. Va. 779, 296 S.E.2d 909 (1982), is inconsistent with this holding, it
is expressly overruled.
We are mindful that the doctrine of stare decisis instructs us to be cautious in
deciding whether to overrule precedent. “[T]he doctrine of stare decisis requires this Court
to follow its prior opinions.” State Farm Mut. Auto. Ins. Co. v. Rutherford, 229 W. Va.
73, 83, 726 S.E.2d 41, 51 (2011) (Davis, J., concurring, in part, and dissenting, in part). In
47
(...continued)
(Mass. App. Ct. 2010); Fieger v. Cox, 734 N.W.2d 602 (Mich. Ct. App. 2007); State v.
Ri-Mel, Inc., 417 N.W.2d 102 (Minn. Ct. App. 1987); Barbour v. State ex rel. Hood, 974
So. 2d 232 (Miss. 2008); State ex rel Nixon v. American Tobacco Co., Inc., 34 S.W.3d 122(Mo. 2000); Montana Power Co. v. Montana Dep’t of Pub. Serv. Regulation, 709 P.2d 995(Mont. 1985); State v. Douglas, 349 N.W.2d 870 (Neb. 1984); State v. Moore, 207 P. 75(Nev. 1922); Eames v. Rudman, 333 A.2d 157 (N.H. 1975); Kershenblatt v. Kozmor, 624
A.2d 1042 (N.J. Super. Ct. Law. Div. 1993); People ex rel. Spitzer v. Grasso, 836 N.Y.S.2d
40 (N.Y. App. Div. 2007); Bailey v. State, 540 S.E.2d 313 (N.C. 2000); State v. Hagerty, 580
N.W.2d 139 (N.D. 1998); State ex rel. Merrill v. Ohio Dep’t of Natural Res., 955 N.E.2d 935(Ohio 2011); State ex rel. Cartwright v. Georgia-Pacific Corp., 663 P.2d 718 (Okla. 1982);
People v. Debt Reducers, Inc., 484 P.2d 869 (Or. Ct. App. 1971); State v. Lead Indus. Ass’n,
Inc., 951 A.2d 428 (R.I. 2008); State ex rel. Comm’r of Transp. v. Medicine Bird Black Bear
White Eagle, 63 S.W.3d 734 (Tenn. Ct. App. 2001); Hansen v. Utah State Ret. Bd., 652 P.2d
1332 (Utah 1982); McLaughlin v. State, 642 A.2d 683 (Vt. 1994); Commonwealth ex rel.
Beales v. JOCO Found., 558 S.E.2d 280 (Va. 2002). A minority of states do not recognize
the inherent common law powers of the Office of Attorney General. See Fund Manager,
Pub. Safety Pers. Ret. Sys. v. Corbin, 778 P.2d 1244 (Ariz. Ct. App. 1988); Blumenthal v.
Barnes, 804 A.2d 152 (Conn. 2002); State v. Blyth, 226 N.W.2d 250 (Iowa 1975); State v.
Burning Tree Club, 481 A.2d 785 (Md. 1984); State v. Block, 263 P.3d 940 (N.M. Ct. App.
2011); Meyer v. Community Coll. of Beaver Cnty., 30 A.3d 587 (Pa. Commw. Ct. 2011); City
of Seattle v. McKenna, 259 P.3d 1087 (Wash. 2011); State v. City of Oak Creek, 605 N.W.2d
526 (Wis. 2000). We could not find a definitive ruling on the subject in six states: Georgia,
Louisiana, South Carolina, South Dakota, Texas, and Wyoming.
44
Syllabus point 2 of Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974), we
held that “[a]n appellate court should not overrule a previous decision . . . without evidence
of changing conditions or serious judicial error in interpretation sufficient to compel
deviation from the basic policy of the doctrine of stare decisis, which is to promote certainty,
stability, and uniformity in the law.” Of course, “the doctrine of stare decisis is not
sacrosanct, and in rare instances there are valid reasons to depart from it.” Griffith v.
ConAgra Brands, Inc., 229 W. Va. 190, ___, 728 S.E.2d 74, 85 (2012) (Benjamin, J.,
concurring). Therefore, “when it clearly is apparent that an error has been made or that the
application of an outmoded rule, due to changing conditions, results in injustice, deviation
from that policy is warranted.” Woodrum v. Johnson, 210 W. Va. 762, 766 n.8, 559 S.E.2d
908, 912 n.8 (2001) (internal quotations and citations omitted).
In this proceeding, “[o]ur decision to depart from stare decisis is based upon
a ‘serious judicial error’ in the [Manchin] opinion.” State v. Mullens, 221 W. Va. 70, 91, 650
S.E.2d 169, 190 (2007) (footnote omitted). Our decision to overrule Manchin is based upon
the clear language of our Constitution. In a conclusory fashion, Manchin indicated that the
phrase “as prescribed by law,” contained in Article VII, Section 1, meant that the only
powers the Office of Attorney General possessed were those expressly granted by the
Legislature. Such an interpretation is inconsistent with both the generally recognized
meaning attributed to the phrase “as prescribed by law” and Article VIII, Section 13 of our
Constitution.
45
First, contrary to Manchin’s interpretation of the clause “as prescribed by law,”
a Virginia court has recognized that, “[i]n most states where the constitution says that the
attorney general’s duties shall be ‘as prescribed by law,’ this is taken to mean that he has
such common law powers as have not been specifically repealed by statute[.]” Terry v.
Wilder, Chancery No. HC-1307-2, 1992 WL 885093, at *8 (Va. Cir. Ct., City of Richmond
Dec. 29, 1992). See People ex rel. Devine v. Time Consumer Mktg., Inc., 782 N.E.2d 761,
765 (Ill. App. Ct. 2002) (“Our supreme court has interpreted this provision to mean that the
Illinois Attorney General is vested with those powers and duties associated with the office
of Attorney General at common law as well as with whatever additional powers and duties
for which the legislature provides.”); Fieger v. Cox, 734 N.W.2d 602, 611 (Mich. Ct. App.
2007) (“The office of the attorney general enjoys a wide range of powers, derived from both
the common law and, later, statutory enactments.”); State ex rel. Cartwright v.
Georgia-Pacific Corp., 663 P.2d 718, 721 (Okla. 1982) (“Having determined that the powers
and duties of the Attorney General under the Constitution of the State of Oklahoma carries
with it the duties and powers as were usually incident to the office under the English
common law, we must next determine whether those common law powers and duties have
been modified by statutory law[.]”); State v. Lead Indus. Ass’n, Inc., 951 A.2d 428, 473 (R.I.
2008) (“Accordingly, the Attorney General in Rhode Island has broad powers and
responsibilities pursuant to the Rhode Island Constitution, several Rhode Island statutes, and
the common law.”).
46
Second, pursuant to Article VIII, Section 13 of the West Virginia Constitution,
the following is stated regarding abrogating the common law of this State:
Except as otherwise provided in this article, such parts of
the common law, and of the laws of this State as are in force on
the effective date of this article and are not repugnant thereto,
shall be and continue the law of this State until altered or
repealed by the legislature.[48]
(Footnote added). We have held that “Article VIII, Section 13 of the Constitution of West
Virginia authorizes the Legislature to enact statutes that abrogate the common law[.]”
MacDonald v. City Hosp., Inc., 227 W. Va. 707, 715, 715 S.E.2d 405, 413 (2011). We
equally have recognized that “[t]he common law, if not repugnant of the Constitution of this
State, continues as the law of this State unless it is altered or changed by the Legislature.”
State ex rel. Van Nguyen v. Berger, 199 W. Va. 71, 75, 483 S.E.2d 71, 75 (1996) (internal
quotations and citation omitted). See Robinson v. Charleston Area Med. Ctr., Inc., 186
W. Va. 720, 727, 414 S.E.2d 877, 884 (1991) (“[T]he general authority of the legislature to
alter or repeal the common law is expressly conferred by article VIII, section 13 of the
Constitution of West Virginia.” (citation and footnote omitted)). Thus, under Article VIII,
Section 13, the Legislature can expressly repeal specific aspects of the Attorney General’s
inherent common law powers. However, contrary to Manchin’s cavalier treatment of the
48
See W. Va. Code § 2-1-1 (1923) (Repl. Vol. 2011) (“The common law of
England, so far as it is not repugnant to the principles of the constitution of this state, shall
continue in force within the same, except in those respects wherein it was altered by the
general assembly of Virginia before the twentieth day of June, eighteen hundred and
sixty-three, or has been, or shall be, altered by the Legislature of this state.”).
47
subject, the “common law is not to be construed as altered or changed by statute, unless
legislative intent to do so be plainly manifested.” Berger, 199 W. Va. at 75, 483 S.E.2d
at 75 (internal quotations and citation omitted). The Legislature has not enacted any general
statute that attempts to strip the Office of Attorney General of all its inherent common law
powers.
In the final analysis, the authority of the Office of Attorney General “comes
from three sources–the constitution of this state; the legislature; and the common law, from
which emanates some of its so-called inherent power.” State ex rel. McGraw v. Telecheck
Servs., Inc., 213 W. Va. 438, 443, 582 S.E.2d 885, 890 (2003).
2. The power of the Attorney General to appoint special assistant
attorneys general. The Petitioners contend that the lower courts were wrong in holding that
W. Va. Code § 5-3-3 (1961) (Repl. Vol. 2011) authorized the Attorney General to appoint
special assistant attorneys general and provided a basis for the method of payment chosen.49
As noted previously, “[w]hen a statute is clear and unambiguous and the legislative intent
is plain, the statute should not be interpreted by the courts, and in such case it is the duty of
the courts not to construe but to apply the statute.” Syl. pt. 5, State v. General Daniel
49
The Petitioners’ strongest argument on these issues was that the Attorney
General lacked common law authority per se. We already have determined that the Attorney
General has common law powers.
48
Morgan Post No. 548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959).
The full language of W. Va. Code § 5-3-3 provides as follows:
The attorney general may appoint such assistant attorneys
general as may be necessary to properly perform the duties of
his office. The total compensation of all such assistants shall be
within the limits of the amounts appropriated by the Legislature
for personal services. All assistant attorneys general so
appointed shall serve at the pleasure of the attorney general and
shall perform such duties as he may require of them.
All laws or parts of laws inconsistent with the provisions
hereof are hereby amended to be in harmony with the provisions
of this section.
W. Va. Code § 5-3-3. It is clear that W. Va. Code § 5-3-3 does not mention “special”
assistant attorneys general; the statute refers only to assistant attorneys general. In deciding
whether the statute was intended to include special assistant attorneys general, we will trace
the relevant history of the statute. State v. Yoak, 202 W. Va. 331, 333, 504 S.E.2d 158, 160
(1998) (“We begin by interjecting a history of the amendments to the statute which is
controlling in this case.”); State v. D.D., 172 W. Va. 791, 794, 310 S.E.2d 858, 860 (1983)
(“We begin by examining the . . . history of legislative amendments to our child welfare
laws[.]”).
West Virginia Code § 5-3-3 was originally enacted in 1909. The relevant
language of the original version of the statute stated the following:
[H]e [the Attorney General] is hereby authorized to appoint two
49
assistants to serve at his pleasure, . . . and who may perform any
of the duties of the attorney general.
W. Va. Code ch. 48, § 2a (1909). The original version of the statute expressly authorized the
appointment of assistant attorneys general, but did not mention special assistant attorneys
general.50 The statute was amended in 1937 to read, in relevant part, as follows:
The attorney general may appoint four assistants to serve
at his pleasure and to perform such duties as he may require of
them. . . . And upon finding of the necessity thereof by the
governor and attorney general, the attorney general may appoint
not more than one special assistant to serve at his pleasure and
to perform such duties as he may require of him for such time as
the governor and attorney general determine the necessity to
continue[.]
W. Va. Code ch. 85, § 3 (1937) (emphasis added). It is clear that under the 1937 version of
W. Va. Code § 5-3-5, the Legislature expressly authorized the appointment of a special
assistant attorney general, in addition to the appointment of assistant attorneys general.
Express legislative authority to appoint a special assistant attorney general
remained part of the statute until 1953. In 1953, the Legislature amended the statute and
removed the provision concerning the appointment of a special assistant attorney general.
See W. Va. Code ch. 11, § 3 (1953). The current version of the statute, as set out above, does
50
It should be noted that although it appears that the Attorney General did not
have express legislative authority to appoint assistant attorneys general until 1909, it does
appear that prior to that time the Attorney General exercised his inherent common law
authority to appoint assistant attorneys general. See Ex parte Faulkner, 1 W. Va. 269 (1866)
(discussing the position of assistant attorney general in the case).
50
not include a provision for the appointment of a special assistant attorney general. The
historical development of the statute invokes the Latin doctrine inclusio unius est exclusio
alterius, i.e., one is the exclusion of the others. This doctrine instructs “‘courts to exclude
from operation those items not included in the list of elements that are given effect expressly
by statutory language.’” Bevins v. West Virginia Office of Ins. Comm’r, 227 W. Va. 315,
327, 708 S.E.2d 509, 521 (2010) (quoting State ex rel. Roy Allen S. v. Stone, 196 W. Va. 624,
630 n.11, 474 S.E.2d 554, 560 n.11 (1996)). Thus, it is clear from historical analysis that the
Legislature did not intend for the current version of W. Va. Code § 5-3-3 to authorize the
Attorney General to appoint special assistant attorneys general.51 The Legislature knew how
51
Our conclusion also is supported by an attempted amendment to W. Va. Code
§ 5-3-3 during the 2013 Regular Session of the West Virginia Legislature. A bill was
introduced in the House of Delegates, H.B. 3110, that would have amended the statute to
once again expressly authorize the appointment of private attorneys as special assistant
attorneys general. In addition, the proposed amendment set out guidelines the Attorney
General had to follow in order to appoint a private attorney as a special assistant attorney
general. The guidelines of the proposed amendment were, in relevant part, as follows:
(c) The state may not enter into a contingency fee
contract, or any other legal arrangement, with a private attorney
unless the Attorney General makes a written determination prior
to entering into such a contract that the legal representation is
both cost-effective and in the best interest of the public. Any
written determination shall include specific findings for each of
the following factors:
(1) Whether sufficient and appropriate legal and financial
resources exist within the Attorney General’s office to handle
the matter.
(2) The time and labor required; the novelty, complexity,
(continued...)
51
to expressly include such authorization, as it did so in 1937.
Even though the Attorney General cannot rely upon W. Va. Code § 5-3-3 as
authority to appoint special assistant attorneys general, we do not find any language in the
statute which expressly prohibits the Attorney General from making such appointments under
that Office’s inherent common law authority. A similar issue was addressed by the Missouri
Court of Appeals in Kinder v. Nixon, No. 56802, 2000 WL 684860 (Mo. Ct. App. May 30,
2000), transferred sub nom. State ex rel. Nixon v. American Tobacco Co., Inc., 34 S.W.3d
122 (Mo. 2000). The court in Kinder found that Missouri’s statute (discussed in Nixon,
infra) authorized the Attorney General to appoint only assistant attorneys general, not special
assistant attorneys general. However, the court found that the limitation imposed by the
statute did not limit the Attorney General’s inherent common law authority. The court held
that “the Attorney General has common law authority to appoint special assistants and
nothing in [the statute] either expressly or by reasonable intendment forbids the exercise of
51
(...continued)
and difficulty of the questions involved; and the skill requisite
to perform the attorney services properly.
(3) The geographic area where the attorney services are
to be provided.
(4) The amount of experience desired for the particular
kind of attorney services to be provided and the nature of the
private attorney’s experience with similar issues or cases.
H.B. 3110. The proposed amendment died in the House Judiciary Committee.
52
that power.” Kinder, 2000 WL 684860, at *11. We agree with Kinder and so hold that the
Attorney General has common law authority to appoint special assistant attorneys general.52
52
We wish to clarify that this opinion does not address what method must be
used by the Attorney General in selecting a special assistant attorney general. This was also
an area that the Legislature unsuccessfully attempted to address during the 2013 Regular
Session. Two bills were introduced in the House of Delegates, H.B. 2139 and H.B. 3110,
that addressed the issue. House Bill 2139 would have amended W. Va. Code § 5-3-2 to
provide, in relevant part, the following:
In contracting with private attorneys to pursue legal
action on behalf of the state, the Attorney General shall seek
bids from attorneys licensed to practice in this state and shall
contract with the best qualified attorney submitting the lowest
bid.
House Bill 3110 would have amended W. Va. Code § 5-3-3 to provide, in relevant part, the
following:
(d) [T]he Attorney General shall request proposals from
private attorneys to represent the state on a contingency fee
basis, or any other basis, unless the Attorney General makes a
written determination that one of the following factors applies:
(1) An emergency situation exists that requires
time-sensitive legal services that cannot be adequately provided
by the Office of Attorney General, and for which insufficient
time exists to complete the customary competitive bidding
process.
(2) An appointment, or the continuation of an
appointment, is necessary to avoid disruption in pending legal
matters by allowing previously appointed outside counsel to
continue providing legal representation.
(3) The legal services will be most effectively handled by
preapproved attorneys who have already completed the bidding
process referenced in subsection (h).
(continued...)
53
52
(...continued)
(e) Any Requests for Proposal shall be posted to the
website of the Office of Attorney General, and the time period
under which the proposal is open should be clearly stated.
(f) When soliciting proposals from private attorneys to
represent the state on a contingency-fee basis, or any other basis,
the Attorney General shall consider the following factors when
determining the most competitive proposal for legal services,
and make a written determination as to the application of these
factors, prior to entering into any contract for outside legal
services:
(1) Whether the private attorneys possess the requisite
skills and expertise needed to handle the legal matters in
question;
(2) Whether the private attorneys possess requisite
staffing and support to handle the scope of the litigation or
matter;
(3) Whether the private attorneys, or any members of the
private attorneys’ law firm, have been subject to reprimand by
the West Virginia State Bar, or other entities, for unethical
conduct;
(4) Whether the private attorneys have been peer rated,
and if so, what peer ratings they have received, along with any
other recognitions or awards for legal services;
(5) The estimated fees, costs and expenses of the private
attorneys to perform the legal services requested;
(6) The willingness of the private attorneys to enter into
alternative billing arrangements;
(7) Whether the private attorneys are in compliance with
all applicable laws of the State of West Virginia; and
(continued...)
54
52
(...continued)
(8) Any such other relevant factors as may be identified
by the Attorney General.
(g) If, after soliciting proposals for legal services, the
Attorney General determines that proposals received are
insufficient based on an application of the factors set forth in
subsection (f), the Attorney General may solicit additional
proposals pursuant to subsections (c), (d) and (f).
(h) In order to address time sensitive or emergency legal
matters that require the use of outside counsel, but do not allow
sufficient time for completion of the competitive bidding
process set forth in subsections (c), (d) and (f), the Office of
Attorney General may institute a prebidding process for
approving lawyers or law firms to perform legal work on behalf
of the state in accordance with the following factors:
(1) Private attorneys may be preapproved to perform
outside counsel work in specific areas of law provided that they
have gone through a request for proposal and competitive
bidding process as set forth in subsections (d) and (f).
(2) In instances in which more than one lawyer or law
firm has been preapproved for the provision of outside counsel
legal services in an area of law, the Office of Attorney General
shall perform an expedited, case-specific analysis using the
factors set forth in subsection (f) to determine which lawyer or
law firm would be better suited to represent the state on a
particular legal matter.
(3) The office shall list any preapproved attorneys by
practice area on the Attorney General’s website.
Both bills, H.B. 2139 and H.B. 3110, died in the House Judiciary Committee.
55
The Petitioners also contend that W. Va. Code § 5-3-3 restricts compensation
of assistant attorneys general to appropriations by the Legislature; therefore, they argue, the
fee arrangement with the special assistant attorneys general is invalid.53 A similar argument
was made in State ex rel. Nixon v. American Tobacco Co., Inc., 34 S.W.3d 122 (Mo. 2000).
In Nixon, the Attorney General of Missouri appointed a private attorney as a special assistant
attorney general to represent the State of Missouri in tobacco litigation. Under the terms of
the appointment, the special assistant attorney general would be reimbursed for his expenses
if the litigation ended favorably to the State. Several alternative contingency fee
arrangements were made with the special assistant attorney general, including payment from
53
The Petitioners also argue that W. Va. Code § 5-3-5 (1923) (Repl. Vol. 2011)
requires all attorney’s fees to be paid into the State treasury. This statute does not address
a general award of attorney’s fees. We previously have noted that the statute “provides for
inclusion of the . . . nominal statutory attorney fee, in the costs of a proceeding in which [the
Attorney General] appeared for the State.” Hechler v. Casey, 175 W. Va. 434, 451 n.17, 333
S.E.2d 799, 816 n.17 (1985). See Pauley v. Gilbert, 206 W. Va. 114, 123, 522 S.E.2d 208,
217 (1999) (“[T]here . . . exists express statutory authority for the recovery of nominal
attorney’s fees in W. Va. Code § 59–2–14. This provision mandates that the clerk of a court
in which a party prevails ‘shall include in the costs to the prevailing party: (a) In any civil
action, ten dollars. . . .’”). During oral arguments, counsel for GlaxoSmithKline contended
that the statute in at least one of the claims against it, involving Medicaid, requires attorney’s
fees be turned over to the State. This argument does not expressly appear in
GlaxoSmithKline’s brief. In fact, the brief focused exclusively upon the causes of action
under the West Virginia Consumer Credit and Protection Act. To the extent that the brief
could be liberally construed as setting out the contention made during oral arguments, the
contention has no merit. As previously noted in this opinion, the Attorney General amended
its appointment letter to the special assistant attorneys general litigating the action against
GlaxoSmithKline. That amendment expressly states that the special assistant attorneys
general “will not receive any fee based upon any recovery by the State for harm to the State’s
Medicaid program that is subject to refund to the Centers for Medicare and Medicaid
Services.”
56
any recovery from the defendants. One of the issues arising out of the litigation was whether
the statute authorizing payment of assistant attorneys general also authorized the contingency
fee arrangement made with the special assistant attorney general. The statute stated, in
relevant part, the following:
The attorney general is hereby authorized to appoint such
assistant attorneys general as may be necessary to properly
perform the duties of his office and shall fix the compensation
of such assistants within the limits of the amount appropriated
by the general assembly.
Mo. Stat. § 27.020.1. The Missouri Supreme Court in Nixon found that, notwithstanding the
statute, the Attorney General had authority to enter into the fee arrangement:
It is generally held in this country that the office of
attorney general is clothed, in addition to the duties expressly
defined by statute, with all the powers pertaining thereto under
the common law. A grant by statute of the same or other powers
does not operate to deprive him of those belonging to the office
under the common law, unless the statute, either expressly or by
reasonable intendment, forbids the exercise of powers not thus
expressly conferred. . . .
The statute that allows for the attorney general to hire
assistants and to pay them from appropriations does not prohibit
the attorney general in the exercise of his common law power
from entering into contingency fee arrangements or agreements
that otherwise provide for civil defendants sued by the State to
pay attorney fees directly to the State’s outside counsel. In the
absence of a statute to the contrary, we conclude that the
attorney general does have the power to enter into this type of
fee arrangement with his special assistant attorneys general.
Nixon, 34 S.W.3d at 136 (internal quotations and citations omitted).
57
Insofar as W. Va. Code § 5-3-3 does not expressly prohibit the Attorney
General from making alternative fee arrangements with special assistant attorneys general,
we now hold that the Attorney General has common law authority to provide for
compensation to be paid to special assistant attorneys general through a court-approved
award of attorney’s fees taken directly from the losing opponent in the litigation.
We reject outright the Petitioners’ contention that such an award by a trial court
must be capped at the level established by the Legislature pursuant to W. Va. Code § 5-3-3.
The amount of any fee award is discretionary with the trial judge. However, we wish to
make clear that we are not addressing the appropriateness of awarding attorney’s fees to
special assistant attorneys general directly from any actual monetary judgment award to the
State because such a contingent fee agreement is not at issue in this case. We also note that
the Legislature attempted to address the issue of contingency fee payment to special assistant
attorneys general during the 2013 Regular Session of the West Virginia Legislature, but such
proposals failed to be approved.54
54
Through House Bill 3110, an amendment was proposed to W. Va. Code §
5-3-3 that would have added the following language to the statute:
The state may not enter into a contingency fee contract
that provides for the private attorney to receive an aggregate
contingency fee in excess of:
(1) Twenty-five percent of the first $10 million
recovered; plus
(continued...)
58
IV.
CONCLUSION
In this proceeding, the Petitioners, defendants in two consolidated petitions for
writs of prohibition, have sought to have the Respondent’s special assistant attorneys general
disqualified. The most glaring deficiency in the arguments made by the Petitioners is that
there was not one allegation that the special assistant attorneys general have actually engaged
in any improper conduct that has caused an injury. The briefs set out a plethora of
allegations that involve remotely possible harmful conduct. We have not and will not
interfere with or disqualify a party’s counsel merely because of allegations of improper
54
(...continued)
(2) Twenty percent of any portion of the recovery
between $10 million and $15 million; plus
(3) Fifteen percent of any portion of the recovery
between $15 million and $20 million; plus
(4) Ten percent of any portion of the recovery between
$20 million and $25 million; plus
(5) Five percent of any portion of the recovery exceeding
$25 million.
In no event may the aggregate contingency fee for any
legal matter exceed $50 million, exclusive of reasonable costs
and expenses, and irrespective of the number of lawsuits filed or
the number of private attorneys retained to achieve the recovery.
A contingency fee may not be based on penalties or fines
awarded or any amounts attributable to penalties or fines.
As previously mentioned, House Bill 3110 died in the House Judiciary Committee. See
supra notes 51 & 52.
59
conduct that has not occurred. To allow a mere possibility of improper injurious conduct to
be the standard for disqualification would result in parties constantly seeking to disqualify
opposing counsel because of phantom injuries. The law of disqualification cannot rest on
the imagination of opposing counsel.
This case has called upon the Court to revisit its holding in State ex rel.
McGraw v. Burton, 212 W. Va. 23, 569 S.E.2d 99 (2002), that the Office of Attorney
General has inherent core functions that cannot be totally extinguished. In revisiting Burton,
we have determined that this Court improperly held in Manchin v. Browning, 170 W. Va.
779, 296 S.E.2d 909 (1982), that the Office of Attorney General did not retain inherent
common law powers. As a consequence, we have found it necessary to overrule Manchin.
In the final analysis, it is the common law authority of the Attorney General
that permitted that Office to appoint the special assistant attorneys general in these cases and
to provide for a method of possible recovery of attorney’s fees. Thus, while we find the
Circuit Courts of Mason County and Wayne County relied upon the wrong reasons for
rejecting the motions to disqualify the special assistant attorneys general, those courts
nevertheless were correct in denying the motions.
60
Accordingly, we deny the writs applied for in Case No. 13-0086 and in Case
No. 13-0102.
Writs Denied.
61