Virginia Jackson Hopkins
Melvin C. Snyder III
Kingwood, West Virginia Prosecuting Attorney for Preston County
Attorney for the Petitioner Kingwood, West Virginia
Attorney for Respondent,
Honorable Lawrance S. Miller
JUSTICE DAVIS delivered the Opinion of the Court.
1. '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.' Syllabus
point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).
Syllabus point 1, State ex rel. Sims v. Perry, 204 W. Va. 625, 515 S.E.2d 582 (1999).
2. 'In determining whether to entertain and issue the writ of prohibition
for cases not involving an 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). Syllabus point 1, State ex rel. Youth
Services Systems, Inc. v. Wilson
, 204 W. Va. 637,
515 S.E.2d 594 (1999).
3. 'A circuit court, upon motion of a party, by its inherent power to do
what is reasonably necessary for the administration of justice, may disqualify a lawyer
from a case because the lawyer's representation in the case presents a conflict of interest
where the conflict is such as clearly to call in question the fair or efficient administration
of justice. Such motion should be viewed with extreme caution because of the interference
with the lawyer-client relationship.' Syl. Pt. 1, Garlow v. Zakaib, 186 W. Va. 457, 413
S.E.2d 112 (1991). Syllabus point 2, Musick v. Musick, 192 W. Va. 527, 453 S.E.2d
4. In a juvenile proceeding, the decision whether to grant or deny a motion to disqualify a lawyer due to a conflict of interest is within the sound discretion of the circuit court, even where the interested parties have waived any conflict.
Subsequent to Michael's preliminary hearing, Ms. Hopkins was appointed
to represent Daniel B. in connection with charges against him for having a knife on school
property. However, at a preliminary hearing on the charges against Daniel, the assistant
prosecuting attorney moved that Ms. Hopkins be disqualified due to the conflicting
interests of the two boys, who were both being represented by Ms. Hopkins. Although
Ms. Hopkins objected to being disqualified, the circuit court granted the prosecutor's
motion and appointed other counsel for Daniel.
Meanwhile, in Michael's case, Ms. Hopkins requested a trial by jury and
further asked that Michael be released to the custody of his father. Sometime after these
requests were made, the prosecuting attorney filed a motion to disqualify Ms. Hopkins
from representing Michael. The prosecutor asserted that during Ms. Hopkins'
representation of Daniel, she was believed to have discussed with him the facts relating to
Michael. Furthermore, the prosecutor stated that Daniel was expected to testify at the
adjudicatory hearing in Michael's case. The prosecutor argued that Ms. Hopkins'
examination of Daniel at Michael's adjudicatory hearing would create an actual conflict,
or at least the appearance of impropriety. Ms. Hopkins resisted being disqualified. She
asserted that there was no actual conflict as the boys gave corresponding accounts of the
relevant events.See footnote 3
She also reported that the juveniles and their parents had waived any
potential conflict, though she presented the court with no evidence demonstrating this fact.See footnote 4
After conducting a hearing on the motion to disqualify, the circuit court entered an order
finding Ms. Hopkins was disqualified from further representing Michael. In its order, the
[I]t may create the appearance of impropriety for Ms. Hopkins to continue representation of the Juvenile Respondent. In particular, there is a likelihood that Ms. Hopkins will cross examine, Daniel [B.], another Juvenile Respondent, who she previously represented, about matters related to this case which she discussed with him while she represented him.
Michael, through Ms. Hopkins, then filed a petition for writ of prohibition in this Court seeking to prohibit the circuit court from disqualifying Ms. Hopkins as his counsel.See footnote 5 5 We granted a rule to show cause. We now deny the writ of prohibition.
In determining whether to entertain and issue the writ
of prohibition for cases not involving an 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).
Syl. pt. 1, State ex rel. Youth Servs. Sys., Inc. v. Wilson , 204 W. Va. 637, 515 S.E.2d 594 (1999). Having reviewed these standards, we now discuss the petition that is before us.
On the question of a circuit court's authority to disqualify a lawyer upon the
motion of a party, we have previously held:
A circuit court, upon motion of a party, by its inherent power to do what is reasonably necessary for the administration of justice, may disqualify a lawyer from a case because the lawyer's representation in the case presents a conflict of interest where the conflict is such as clearly to call in question the fair or efficient administration of justice. Such motion should be viewed with extreme caution because of the interference with the lawyer-client relationship. Syl. Pt. 1, Garlow v. Zakaib, 186 W. Va. 457, 413 S.E.2d 112 (1991).
Syl. pt. 2, Musick v. Musick, 192 W. Va. 527, 453 S.E.2d 361 (1994) (emphasis added). In this syllabus point, we used the word may, thereby indicating that the decision whether to grant or deny a motion to disqualify is within the trial court's discretion. The word 'may' generally signifies permission and connotes discretion. State v. Hedrick, 204 W. Va. 547, 552, 514 S.E.2d 397, 402 (1999) (citations omitted). See also Powers v. Union Drilling, Inc., 194 W. Va. 782, 786, 461 S.E.2d 844, 848 (1995) (stating [t]he legislators' choice of the term 'may' . . . was intended to operate in a discretionary, rather than an obligatory, manner); Weimer-Godwin v. Board of Educ. of Upshur County, 179 W. Va. 423, 427, 369 S.E.2d 726, 730 (1988) (The word 'may' generally should be read as conferring both permission and power.); Hodge v. Ginsberg, 172 W. Va. 17, 22, 303 S.E.2d 245, 250 (1983) (We agree with the respondent that the use of the word 'may' in a statute often indicates discretion.).
Various other jurisdictions have similarly recognized that the ultimate
decision of whether to disqualify a lawyer is left to the discretion of the trial judge.See footnote 7
Wheat v. United States, 486 U.S. 153, 164, 108 S. Ct. 1692, 1700, 100 L. Ed. 2d 140,
152 (1988) (The evaluation of the facts and circumstances of each case under this
standard must be left primarily to the informed judgment of the trial court.); United States
v. Williams, 81 F.3d 1321, 1325 (4th Cir. 1996) (determining that disqualification of [the
defendant's] counsel was well within the district court's discretion); United States v.
Koon, 34 F.3d 1416, 1436-37 (9th Cir. 1994) (commenting that a district court's
disqualification of a lawyer is reviewed for an abuse of discretion), aff'd in part rev'd in
part, 518 U.S. 81, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996); United States v. Fulton,
5 F.3d 605, 614 (2d Cir. 1993) (recognizing that district courts have broad latitude in
making a decision whether to disqualify a defendant's chosen counsel); Grahams Serv.
Inc. v. Teamsters Local 975, 700 F.2d 420, 423 (8th Cir. 1982) (The decision whether
to disqualify counsel rests in the sound discretion of the district court, and its decision will
not be overturned absent a showing of a clear abuse of discretion. (footnote omitted));
Oxford Sys., Inc. v. CellPro, Inc., 45 F. Supp. 2d 1055, 1066 (W.D. Wash. 1999) (In
determining whether to exercise discretion to disqualify counsel, the court has several
obligations.); In re Klein, 119 B.R. 971, 979 (N.D. Ill. 1990) ([A] trial court has broad
discretion in determining whether an attorney should be disqualified. (citation omitted));
Lee v. Todd, 555 F. Supp. 628, 630 (W.D. Tenn. 1982) (stating, in the context of a
motion to disqualify plaintiff's lawyer due to a conflict of interest, that [i]n exercising its
supervisory powers over lawyers appearing before it, this Court has broad discretion to
determine who will practice before it and to monitor the conduct of those who do (citation
omitted)); Shadow Traffic Network v. Superior Court, 24 Cal. App. 4th 1067, 1088, 29
Cal. Rptr. 2d 693, 705 (1994) (concluding that trial court did not abuse its discretion
in disqualifying entire law firm from representing a defendant in a civil action); Bergeron
v. Mackler, 225 Conn. 391, 397, 623 A.2d 489, 493 (1993) (The trial court has broad
discretion to determine whether there exists a conflict of interest that would warrant
disqualification of an attorney. (citation omitted)); Serody v. Serody, 19 Mass. App. Ct.
411, 415, 474 N.E.2d 1171, 1174 (1985) (observing, in a case involving a lower court's
sua sponte disqualification of a defendant's lawyer, that [s]izing up the potential for
prejudice in a particular case and the degree of that prejudice involves exercise of
discretion by the trial judge); Sanders v. Rosenberg, 122 N.M. 692, ___, 930 P.2d 1144,
1146 (1996) (applying discretionary standard pursuant to a best interests of the children
rule, but observing that a number of courts have held that '[a] trial court has broad
discretion in determining whether disqualification is required in a given case,' . . . [and]
any doubts should be resolved in favor of disqualification (citations omitted)); Ross v.
Ross, 94 Ohio App. 3d 123, 132, 640 N.E.2d 265, 271 (1994) (concluding that trial
court's disqualification of lawyer without conducting a hearing and without considering
exceptions to applicable disciplinary rule constituted an abuse of discretion); State ex
rel. Macy v. Owens, 934 P.2d 343, 345 (Okla. Crim. App. 1997) (mem.) (Although the
decision on disqualification is discretionary, the ability to make such a decision must be
authorized by law.); Harter v. Plains Ins. Co., Inc., 579 N.W.2d 625, 632 (S.D. 1998)
(reviewing lower court's denial of motion to disqualify lawyer and name him as a witness,
and concluding that appellant failed to show that lower court abused its discretion); In re
Meador, 968 S.W.2d 346, 351 (Tex. 1998) (In sum, the trial court . . . must consider all
the facts and circumstances to determine whether the interests of justice require
disqualification. In this exercise of judicial discretion, a trial court should
In the instant case, Michael's counsel asserts that the interested parties
waived any conflict. However, the existence of such a waiver does not necessarily deprive
the circuit court of its discretion to decide issues of lawyer disqualification. The United
States Supreme Court has recognized that
the [trial] court must be allowed substantial latitude in refusing
waivers of conflicts of interest not only in those rare cases
where an actual conflict may be demonstrated before trial, but
in the more common cases where a potential for conflict exists
which may or may not burgeon into an actual conflict as the
Wheat v. United States, 486 U.S. at 163, 108 S. Ct. at 1699, 100 L. Ed. 2d at 151. This discretionary standard arises from a trial court's duty to assure that criminal defendants receive fair trials, State ex rel. Owens v. Brown, 177 W. Va. 225, 351 S.E.2d 412 (1986),See footnote 8 8 which must be balanced with a defendant's right to counsel of his or her own choice. Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 58, 77 L. Ed. 158, 162 (1932) ([A] defendant should be afforded a fair opportunity to secure counsel of his [or her] own choice.). One court has aptly described the basis for this discretionary standard by explaining:
[T]he trial court has an institutional interest in protecting the truth-seeking function of the proceedings over which it is presiding by considering whether the defendant has effective assistance of counsel, regardless of any proffered waiver. . . . The tension between protecting the institutional legitimacy of judicial proceedings, which includes a concern to shield a defendant from having his defense compromised by an attorney with divided loyalties, and allowing a defendant to be represented by the attorney of his choice, creates the disqualification issue. Thus, a district court has discretion to disqualify counsel if a potential conflict exists, . . . even where the represented parties have waived the conflict.
United States v. Stewart, 185 F.3d 112, 122 (3d Cir. 1999) (citations omitted), cert. denied, ___ U.S. ___, 120 S. Ct. 618, ___ L. Ed. 2d ___ (1999).
For similar reasons, numerous courts have concluded that a trial court has discretion to disqualify a lawyer even where the defendant has waived a conflict or potential conflict. See United States v. Mays, 69 F.3d 116, 122 (6th Cir. 1995) (A district court, in certain situations, can disqualify an attorney despite a defendant's voluntary, knowing, and intelligent waiver of his constitutional right to conflict-free counsel at a hearing. (citation omitted)); United States v. Childress, 58 F.3d 693, 734 (D.C. Cir. 1995) (per curiam) (recognizing that a district court's decision to reject [a defendant's] waiver of the right to conflict-free counsel is reviewed for an abuse of discretion (citation omitted)); United States v. Fulton, 5 F.3d 605, 612 (2d Cir. 1993) (When a lawyer's conflict, actual or potential, may result in inadequate representation of a defendant or jeopardize the federal court's institutional interest in the rendition of a just verdict, a trial judge has discretion to disqualify an attorney or decline a proffer of waiver. (citations omitted)); United States v. Patrick, 985 F. Supp. 543, 553 (E.D. Pa. 1997) (This question--whether the court should accept a defendant's waiver--is vested in the sound discretion of the trial court, and the trial court is given 'substantial latitude' in determining whether to disqualify an attorney. (citation omitted)), aff'd, 156 F.3d 1226 (3d Cir. 1998); Kolker v. State, 649 So. 2d 250, 252 (Fla. Dist. Ct. App. 1994) (observing that a waiver 'does not necessarily resolve the matter, for the trial court has an institutional interest in protecting the truth-seeking function of the proceedings over which it is presiding by considering whether the defendant has effective assistance of counsel, regardless of any proffered waiver' (citation omitted)); Hanna v. State, 714 N.E.2d 1162, 1166 (Ind. Ct. App. 1999) (The State correctly notes that the trial court has an interest in assuring a fair trial despite a defendant's waiver of the right to conflict-free counsel and thus has some discretion to decline to accept a defendant's waiver.); State v. Dillman, 70 Ohio App. 3d 616, 621, 591 N.E.2d 849, 852 (1990) (per curiam) ([A] trial court may, in its discretion, refuse the proffered waiver and disqualify counsel. (citations omitted)); State v. Cobbs, 221 Wis. 2d 101, 105-06, 584 N.W.2d 709, 711 (1998) (Once satisfied that [a] defendant has made a voluntary and knowing waiver of a conflict of interest, the trial court may permit counsel's continued representation, . . . or in its discretion, a court may disqualify an accused's chosen counsel when there is an actual conflict or a serious potential conflict of interest . . . . (citations omitted)).See footnote 9 9
Furthermore, we have held that an indigent defendant is not entitled to be represented by a particular lawyer. Syl. pt. 2, in part, Watson v. Black, 161 W. Va. 46, 239 S.E.2d 664 (1977) (While an indigent defendant is entitled to competent counsel, he is not entitled to the appointment of any particular lawyer . . . .). See also Wheat, 486 U.S. at 159, 108 S. Ct. at 1697, 100 L. Ed. 2d at 148 ([W]hile the right to select and be represented by one's preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers. (citations omitted)).
Finally, we find that a discretionary standard is particularly relevant where a juvenile has executed a waiver of conflict. Juveniles, who are necessarily of tender years and limited experience, may be unable to fully understand all the implications of, and the consequences that may flow from, such a waiver. Thus, it is exceptionally difficult for a juvenile to knowingly and intelligently waive his or her constitutional right to a conflict- free lawyer. In such circumstances, it is crucial that the trial court exercise its discretion to assure that the juvenile receives a fair trial.
For the foregoing reasons, we hold that in a juvenile proceeding, the decision
whether to grant or deny a motion to disqualify a lawyer due to a conflict of interest is
within the sound discretion of the circuit court, even where the interested parties have
waived any conflict.See footnote 10
As we previously noted, '[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.' Syllabus point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233
S.E.2d 425 (1977). Syl. pt. 1, State ex rel. Sims v. Perry, 204 W. Va. 625, 515 S.E.2d
582 (1999). At best, Michael's argument that a conflict charged by an opposing party
is to be viewed with caution may be interpreted as asserting an abuse of discretion. There
is nothing in the meager petition submitted in this case asserting that any of the five factors
set forth in Hoover v. Berger are satisfied, and no memorandum of law accompanied the
petition.See footnote 11
[m]andamus, prohibition and injunction against judges are drastic
and extraordinary remedies. . . . As extraordinary remedies, they are reserved for really
extraordinary causes. State ex rel. Lawson v. Wilkes,
202 W. Va. 34, 38, 501 S.E.2d 470,
474 (1998) (quoting
State ex rel. Suriano v. Gaughan, 198 W. Va. 339, 345, 480 S.E.2d 548,
554 (1996)). Accord State ex rel. United States Fidelity & Guar. Co. v. Canady,
194 W. Va.
431, 436, 460 S.E.2d 677, 682
(1995); State ex rel. Doe v. Troisi, 194 W. Va. 28, 31, 459
S.E.2d 139, 142 (1995).
Because we have been presented with no appropriate grounds for
issuing a writ of prohibition, the writ is denied.
(b)(1) It shall be unlawful for any person to possess any
firearm or any other deadly weapon on any school bus as
defined in section one [§ 17A-1-1], article one, chapter
seventeen-a of this code, or in or on any public or private
primary or secondary education building, structure, facility or
grounds thereof, including any vocational education building,
structure, facility or grounds thereof where secondary
vocational education programs are conducted or at any
. . . .
(3) Any person violating this subsection shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary of this state for a definite term of years of not less than two years nor more than ten years, or fined not more than five thousand dollars, or both.
habeas corpus ad subjiciendum to be directed to the West Virginia Department of Health and Human Resources and the Monongalia County Youth Services Center. This Court issued a rule in habeas corpus returnable before the Honorable Lawrance S. Miller, Jr., on November 23, 1999, for the purpose of holding a hearing to determine the suitability of Michael's father to have custody of him pending adjudication of the underlying matter. Following the hearing of November 23, by order entered November 24, 1999, Judge Miller released Michael to the custody of his father.
specifically provided otherwise in this chapter.). It is for public policy reasons that we typically do not associate adult criminal prosecutions with juvenile delinquency proceedings. See W. Va. Code § 49-7-3 (1941) (Repl. Vol. 1999) (Any evidence given in any cause or proceeding under this chapter, or any order, judgment or finding therein, or any adjudication upon the status of juvenile delinquent heretofore made or rendered, shall not in any civil, criminal or other cause or proceeding whatever in any court, be lawful or proper evidence against such child for any purpose whatsoever except in subsequent cases under this chapter involving the same child; . . . nor shall any such adjudication upon the status of any child by a juvenile court operate to impose any of the civil disabilities ordinarily imposed by conviction, nor shall any child be deemed a criminal by reason of such adjudication, nor shall such adjudication be deemed a conviction, nor shall any such adjudication operate to disqualify a child in any future civil service examination, appointment, or application. (emphasis added)). But see Syl. pt. 2, State ex rel. Daily Mail Publ'g Co. v. Smith, 161 W. Va. 684, 248 S.E.2d 269 (1978) (To the extent that W. Va. Code, 49-7-3  makes it a criminal offense for a newspaper to publish the name of a child in any proceeding under Chapter 49 of the W. VA. Code, without the prior approval of the trial court, W. Va. Code, 49-7-3  is unconstitutional as repugnant to the First Amendment to the Constitution of the United States because it creates an impermissible prior restraint on the freedom of the press.), aff'd, 443 U.S. 97, 99 S. Ct. 2667, 61 L. Ed. 2d 399 (1979).