Sherri D. Goodman
Charleston, West Virginia
Counsel for the Complainant
Clark B. Frame
J. Michael Benninger
Morgantown, West Virginia
This Opinion was delivered Per Curiam.
Neely, J., dissents.
1. "The . . . [Rules of Professional Conduct] state the
minimum level of conduct below which no lawyer can fall without
being subject to disciplinary action." Syl. Pt. 3, Committee on
Legal Ethics v. Tatterson, 173 W. Va. 612, 319 S.E.2d 381 (1984).
2. "'This Court is the final arbiter of legal ethics problems
and must make the ultimate decisions about public reprimands,
suspensions or annulments of attorneys' licenses to practice law.'
Syllabus Point 3, Committee on Legal Ethics v. Blair,  W. Va.
, 327 S.E.2d 671 (1984)." Syl. Pt. 1, Committee on Legal
Ethics v. Charonis, 184 W. Va. 268, 400 S.E.2d 276 (1990).
The hearing panel of the Committee on Legal Ethics ("the
Committee") has found that attorney Clark Frame violated Rule
1.7(a) of the West Virginia Rules of Professional Conduct through
the following actions: (1) failing to understand the importance of
client loyalty in determining whether a conflict of interest
existed; (2) failing to discuss the issue of the conflict with
either client once all facts were known; and (3) trying to
rationalize away the conflict of interest when its acknowledgement
was unquestionably inconvenient to the law firm and to its client.
The Committee recommends a public reprimand against Mr. Frame and
that he be assessed the costs of the proceeding.
The Committee found that although attorney J. Michael
Benninger was a party to the conflict in its final stages, he
should not be disciplined due to his genuine attempts to alert his
senior partners of the conflict. Having reviewed the record in
this matter, we adopt the recommendations of the Committee and
order public reprimand of Mr. Frame, costs of $840.20 assessed
against Mr. Frame, and no further action against Mr. Benninger.
On August 10, 1988, Wesley Metheney, a member of the law firm
of Wilson, Frame & Metheney in Morgantown, West Virginia, filed a
civil action entitled Baamonde, et al. v. Markwoods, Inc., dba J
& J Home Sales (hereinafter "Markwoods"). Mr. Baamonde alleged
that he had injured his knee while walking up steps to inspect a
mobile home on J & J Home Sales' lot. Mr. Baamonde sought $500,000
in damages and $100,000 loss of consortium damages for his wife.
The summons and complaint were served on the Secretary of State and
forwarded to Ms. Vickie Lynn McMillen, vice president and manager
of the family-owned mobile home company, Markwoods. Ms. McMillen
received these documents on August 16, 1988, and provided them to
her local insurance agent that same day. Ms. McMillen had been
employed by J & J Homes Sales since 1978, having become a majority
stockholder in 1984 holding fifty-two percent of the outstanding
Markwoods' insurer, Erie Insurance, retained Russell Clawges,
Jr., to defend the action. Mr. Clawges contacted Ms. McMillen on
August 24, 1988, and informed her of his representation. Mr.
Clawges prepared an answer to the complaint and forwarded a copy of
it to Ms. McMillen on September 1, 1988. Mr. Clawges spoke with
her again on September 6, 1988. Ms. McMillen then had no further
communication with Mr. Clawges from September 1988 through May 30,
1989. She did speak by telephone with an Erie representative and
was allegedly advised that Erie would offer to settle the case for
Mr. Baamonde's hospital and medical bills. Subsequent to that
conversation, Ms. McMillen had no further contact with either Erie
or Mr. Clawges and assumed that the lawsuit had been resolved.
In early 1989, Ms. McMillen contacted Mr. Frame regarding representation in a divorce action. During their initial consultation on March 7, 1989, Ms. McMillen discussed her interest in Markwoods and her concern that her husband not receive any portion of the company through the divorce. Although the evidence is unclear, there was apparently was some reference during that meeting to the Baamonde suit. Ms. McMillen testified that Mr. Frame asked her if his firm was suing the corporation. Ms. McMillen also testified that she had been under the impression that the matter had been settled and that she did not understand the significance of the discussion.
Mr. Frame assumed representation of Ms. McMillen and filed a
divorce complaint on her behalf. In April and May 1989, Mr.
Frame's representation of Ms. McMillen's divorce case included
meeting with her on April 11 and April 25, receiving financial
information, and scheduling a final hearing for June 8, 1989.
Meanwhile, the Baamonde action was scheduled for pretrial
conference on May 15, 1989, and Mr. Frame and Mr. Metheney were
identified as trial counsel for the plaintiffs in a pretrial
memorandum completed by April 26, 1989.
On June 1, 1989, Ms. McMillen met with Mr. Frame and learned that Mr. Frame had a criminal trial which conflicted with the scheduled June 8, 1989, divorce hearing. Mr. Michael Benninger then assumed representation of Ms. McMillen as substitute counsel.
In preparation for the hearing, Mr. Benninger met with Ms. McMillen
and her father, received additional financial information, and
consulted with Ms. McMillen's accountant. Mr. Benninger also
attended the final hearing on June 8, 1992, as Ms. McMillen's
Upon receipt of a motion for summary judgment on behalf of
Markwoods, Mr. Metheney requested that Mr. Benninger research the
legal issues raised in the motion. When Mr. Benninger noticed Ms.
McMillen's affidavit, included within that motion for summary
judgment, he realized that his firm was representing Ms. McMillen
in her divorce while suing her corporation in a separate action.
He also understood that she was going to appear as an adverse
witness at the trial of the Baamonde action. Mr. Benninger
researched the potential conflict question and conferred with Mr.
Metheney and Mr. Frame. They concluded that there was no conflict
of interest because their firm had sued the corporate entity rather
than Ms. McMillen personally. They also concluded that they need
not discuss the issue with either Ms. McMillen or the Baamondes
since they perceived no conflict of interest.
On June 27, 1989, for reasons not now apparent to Ms.
McMillen, she first realized that the firm representing her in the
divorce action also represented a plaintiff suing her corporation.
Ms. McMillen contacted Mr. Clawges on or about June 30, 1989, and
complained of what she perceived to be a conflict of interest. On
the day of the scheduled Baamonde trial, July 10, 1989, Mr. Clawges
orally moved to disqualify the law firm of Wilson, Frame & Metheney
based upon the alleged conflict of interest. The lower court
denied the motion, ruling that no confidential information had been
disclosed and that the motion was untimely. The trial proceeded,
and the case settled within policy limits. Upon the conclusion of
the proceedings, Ms. McMillen expressed her anger and sense of
betrayal to Mr. Benninger and travelled to Kingwood to hire
attorney Virginia Hopkins to substitute as counsel in the divorce
On September 15, 1989, Ms. McMillen filed an ethics complaint
with the West Virginia State Bar. A hearing was held in this
disciplinary matter on August 29, 1992, at the State Bar Center in
Charleston, West Virginia, subcommittee member Rebecca A. Betts
presiding. Based upon evidence submitted by Mr. Frame and Mr.
Benninger, pro se, as well as Ms. McMillen and Mr. Clawges, the
subcommittee recommended sanctions against respondent Mr. Frame in
the form of a public reprimand. Although Mr. Benninger was a party
to the conflict in its final stages, the Committee recommended that
he be subject to no further discipline.
Rule 1.7(a) of the West Virginia Rules of Professional Conduct
provides as follows: "(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."
The Respondents maintain that they had no duty to refrain from
representation or obtain consent because no direct adversity
existed between the two clients, Ms. McMillen and Mr. Baamonde. By
definition, no violation of Rule 1.7(a) can occur if representation
of one client will not be directly adverse to another client. With
regard to the interpretation of the phrase "directly adverse," the
comment to Rule 1.7(a) provides the following guidance:
Thus, a lawyer ordinarily may not act as
advocate against a person the lawyer
represents in some other matter, even if it is
wholly unrelated. On the other hand,
simultaneous representation in unrelated
matters of clients whose interests are only
generally adverse, such as competing economic
enterprises, does not require consent of the
respective clients. Paragraph (a) applies
only when the representation of one client
would be directly adverse to the other.
The Committee maintains that the Respondents' representation of Mr. Baamonde in his personal injury lawsuit was directly adverse to Ms. McMillen in her capacity as a majority shareholder, corporate officer, and manager of Markwoods. The Respondents contend that although Ms. McMillen and Mr. Baamonde were on opposing sides of the personal injury action, the Respondents were not representing Ms. McMillen in that personal injury action. They simply represented Ms. McMillen in a divorce action while representing Mr. Baamonde in an unrelated personal injury action. Mr. McMillen acknowledges that no information was disclosed or sought by the Respondents concerning the Baamonde case, and Ms. McMillen was also unable to identify any prejudice or misfortune resulting from the simultaneous misrepresentation. Ms. McMillen did, however, appear as a witness in the Baamonde case regarding the general business of Markwoods and was cross-examined by Mr. Metheney of the Respondents' law firm.
The conclusive question is whether representation of one
client was directly adverse to the other. As we explained in State
ex rel. McClanahan v. Hamilton, ___ W. Va. ___, ___ S.E.2d ___
(1993), No. 21523, April 23, 1993
An adverse interest, also termed a
conflict of interest, can occur in a variety
of situations. . . . It is impossible to
devise a single statement that will reveal
whether an interest is adverse. The
resolution of the issue rests on first
determining whether a substantial relationship
existed between the two clients' interests.
Next, consideration should be given by the
court as to whether the attorney's exercise of
individual loyalty to one client might harm
the other client or whether his zealous
representation will induce him to use
confidential information that could adversely
affect the former client.
Id. at ___, ___ S.E.2d at ___.
In Garlow v. Zakaib, 186 W. Va. 457, 413 S.E.2d 112 (1991), we
recognized that the comment to Rule 1.7 enumerates several relevant
factors in determining whether the "directly adverse" requirement
has been satisfied. These include the "duration and intimacy of
the lawyer's relationship with the clients involved; functions
performed by the lawyer; likelihood of actual conflict; and
likelihood of prejudice." Id. at 462, 413 S.E.2d at 117. It is,
as the comment explains, a question of "'proximity and degree.'"
We also addressed the "directly adverse" requirement in State
ex rel. Morgan Stanley & Co., Inc. v. MacQueen, 187 W. Va. 97, 416
S.E.2d 55 (1992). In that case, we recognized that being named as
a party to a lawsuit is not a prerequisite to creating the direct
adversity element needed to establish a conflict of interest.
Morgan Stanley involved an attempt to disqualify a law firm based,
in part, upon the provisions of Rule 1.7(a). The firm represented
both the State and certain state employees in the State's action to
recover investment fund losses. In finding that a conflict of
interest existed, we also explained that "[t]he critical issue is
the existence or potentiality of conflicts of interest and not the
inclusion of all adverse parties in a lawsuit." Id. at 102, 416
S.E.2d at 60. Similarly, while Ms. McMillen was not personally
named as a defendant in the Baamonde suit, her status as a majority
shareholder of the named defendant corporation created a potential,
if not actual, conflict of interest.
We agree with the Committee's findings that the Respondents'
representation of Mr. Baamonde "was directly adverse to Ms.
McMillen in her capacity as a majority shareholder, corporate
officer, and manager of Markwoods, Inc." While the Respondents did
not directly represent Ms. McMillen in the personal injury suit,
they did represent Ms. McMillen in an unrelated divorce action; she
was still their client, and Rule 1.7(a) still applies. The
Respondents also appear to place great emphasis on the fact that no
deleterious impact was actually created by the simultaneous
representation. That begs the question. To establish an ethical
violation under Rule 1.7(a), one does not have to prove prejudicial
impact, negative result, or an exchange of confidential
information. The only prerequisites for the establishment of an
ethical violation are those clearly set forth in the rule itself;
namely, representation of one client that is "directly adverse" to
another client without the consent of each client. The "directly
adverse" language does not imply that a bad result must occur
before representation is impermissible. It is the interests of the
clients with which the rule is concerned, not the result obtained.See footnote 1
In the present case, representation of Mr. Baamonde entailed
cross-examination of Ms. McMillen. The Committee contends that
direct adversity automatically exists when a lawyer's
representation of one client entails cross-examination of an
adverse witness who is also the lawyer's client.See footnote 2 In formal
opinion 92-367, issued by the American Bar Association Committee on
Ethics and Professional Responsibility, the Committee explained:
"A lawyer who in the course of representing a client examines
another client as an adverse witness in a matter unrelated to the
lawyer's representation of the other client, . . . will likely face
a conflict that is disqualifying in the absence of appropriate
client consent." ABA/BNA Lawyers' Manual on Professional Conduct
§ 1001: 149 (1993). The Committee concluded that a "lawyer's
examining the lawyer's client as an adverse witness, or conducting
third[-]party discovery of a client, will ordinarily present a
conflict of interest. . . ." The Committee opined that such
examination or discovery is likely to create the following
(1) to pit the duty of loyalty to each client
against the duty of loyalty to the other; (2)
to risk breaching the duty of confidentiality
to the client-witness; and (3) to present a
tension between the lawyer's own pecuniary
interest in continued employment by the
client-witness and the lawyer's ability to
effectively represent the litigation client.
The American Bar Association opinion also cites Estates
Theatres, Inc. v. Columbia Pictures Industries, Inc., 345 F. Supp.
93 (S.D.N.Y. 1972), in which the court explained that an attorney
should "not be permitted to put himself in a position where, even
unconsciously, he will be tempted to 'soft pedal' his zeal in
furthering the interests of one client in order to avoid an obvious
clash with those of another." Id. at 99. The American Bar
Association opinion further notes that cross-examination of a
lawyer's own client could potentially jeopardize client
confidences. "First, to the extent a lawyer's general familiarity
with how a client's mind works is relevant and useful information,
it may also be disqualifying information within the contemplation
of Rule 1.8(b) . . . ."See footnote 3 Second, the opinion explains that if the
lawyer had acquired confidential information relevant to the cross-examination, the lawyer may overcompensate and fail to cross-examine fully and fail to adequately represent the litigation
We conclude that the simultaneous representation of Mr.
Baamonde and Ms. McMillen, while fortunately resulting in no actual
harm, presented such dangers as contemplated above and constitutes
a violation of Rule 1.7(a). We have previously explained the
following: "The . . . [Rules of Professional Conduct] state the
minimum level of conduct below which no lawyer can fall without
being subject to disciplinary action." Syl. Pt. 3, Committee on
Legal Ethics v. Tatterson, 173 W. Va. 612, 319 S.E.2d 381 (1984).
"'This Court is the final arbiter of legal ethics problems and must
make the ultimate decisions about public reprimands, suspensions or
annulments of attorneys' licenses to practice law.' Syllabus Point
3, Committee on Legal Ethics v. Blair,  W. Va. , 327
S.E.2d 671 (1984)." Syl. Pt. 1, Committee on Legal Ethics v.
Charonis, 184 W. Va. 268, 400 S.E.2d 276 (1990).
For their own protection from charges of ethical violations
and in consideration of their clients' interests, attorneys should
remain mindful of actual or potential conflicts of interest
resulting from simultaneous representation. Any doubt regarding
whether a conflict exists should be resolved in favor of informing
the client(s) of the concerns and allowing the client(s) an
opportunity to consent to continued representation or to seek new
The Committee found that the Respondents in the present case
exercised poor judgment.See footnote 4 To the extent that the Respondents could
have averted this disciplinary proceeding by assuring that Ms.
McMillen and Mr. Baamonde understood and approved of the
relationship between the Baamonde's suit and the Respondents' law
firm, we agree. We adopt the findings and recommendation of the
Committee and hereby order a public reprimand against Mr. Frame and
further order that the costs of this proceeding be assessed against
Footnote: 1While the results of simultaneous representation are not dispositive of the determination as to whether an ethical violation has occurred, the fact that no negative consequences were suffered certainly merits consideration in our determination of the appropriate discipline for such violation.
Footnote: 2Mrs. McMillen's status as majority shareholder, corporate officer, and manager of a corporation being sued should have alerted Mr. Frame to the adverse positions of the clients and the potential for having to cross-examine Mrs. McMillen.
The Committee's position is that the cross-examination presented actual evidence of the adverse element of the dual representation.
Footnote: 3Rule 1.8(b) of the West Virginia Rules of Professional Conduct provides as follows: "A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation, except as permitted or required by Rule 1.6 [regarding revealing confidences to prevent commission of a crime or to establish a claim or defense on behalf of the lawyer] or Rule 3.3 [regarding a lawyer informing a tribunal of material facts enabling tribunal to make informed decision]"
Footnote: 4We emphasize that neither this Court nor the Committee assigns any unethical intent to Mr. Frame in this matter. As the Committee pointed out, the incident is an example of poor judgment rather than malicious or deceptive intent. We therefore attribute no improper motive to Mr. Frame or any member of his law firm.