No. 30248 - State of West Virginia ex rel. The Ogden Newspapers, Inc., a West Virginia corporation, dba The Journal Publishing Company, a West Virginia corporation v. Honorable Christopher C. Wilkes, Judge of the Circuit Court of Berkeley County, and Richard W. Shaffer
Davis, Chief Justice, concurring, in part, and dissenting, in part:
Before the ink had barely dried on our earlier pronouncement that attorneys Robert J. Schiavoni and David M. Hammer could not represent a client, who formerly had been employed by Ogden Newspapers, Inc. (hereinafter referred to as Ogden), in an employment discrimination claim against Ogden, (See footnote 1) this Court has taken up its blotter, smeared the law, and hastily rewritten this page in West Virginia's jurisprudential history. In the case sub judice, Ogden has asked this Court to find, once again, that Mr. Schiavoni and Mr. Hammer are disqualified from representing a former Ogden employee in an employment discrimination lawsuit. We previously concluded, in State ex rel. Ogden Newspapers, Inc. v. Wilkes, 198 W. Va. 587, 482 S.E.2d 204 (1996) (per curiam) (hereinafter referred to as Ogden I), that such representation was strictly prohibited as violative of Ogden's confidences it had shared with its former counsel. Although the issue is the same in the instant appeal, the majority of this Court has nevertheless effectively erased its prior decision, and scribbled a new chapter in the law governing the disqualification of an attorney: potential conflicts relating to representation of a former client may be cured by the passage of time. I agree with the Court's conclusion that attorney Walt Auvil should be permitted to continue his representation of Mr. Shaffer and, therefore, concur in that portion of the majority's Opinion. (See footnote 2) However, I cannot condone the Court's ultimate decision to allow Mr. Schiavoni and Mr. Hammer to continue in such representation, particularly when there have been no substantial changes in the governing law to support such a dramatic departure from our opposite conclusion in Ogden I. From this ruling of the Court, then, I dissent.
Additionally, the majority
opinion concluded that there had been extensive changes in the law over
the nine-year period since Mr. Schiavoni and Mr. Hammer represented
Ogden. Yet, the majority opinion fails to present any facts or discussion
regarding the extensive changes in the law. Unfortunately, when
reading the majority opinion, one cannot determine exactly what law is at
issue and how that law has changed.
In the final analysis, it is
clear that the majority opinion was merely seeking a specific result which can
be supported neither by the record nor by the applicable law. Therefore, to
achieve the desired outcome, the majority opinion completely avoids any discussion
of the evidence or the law. With this irreverent approach to judicial scholarship,
I strongly disagree.
This Court has previously
Rule 1.9(a) of the Rules of Professional Conduct, precludes an attorney who has formerly represented a client in a matter from representing another person in the same or a substantially related matter that is materially adverse to the interests of the former client unless the former client consents after consultation.
Syl. pt. 2, State ex rel. McClanahan v. Hamilton, 189 W. Va. 290, 430 S.E.2d 569 (1993). In the recent decision of State ex rel. Keenan v. Hatcher, 210 W. Va. 307, 557 S.E.2d 361 (2001), we further held that:
Under West Virginia Rule of Professional Responsibility 1.9(a), a current matter is deemed to be substantially related to an earlier matter in which a lawyer acted as counsel if (1) the current matter involves the work the lawyer performed for the former client; or (2) there is a substantial risk that representation of the present client will involve the use of information acquired in the course of representing the former client, unless that information has become generally known.
Syl. pt. 1, Keenan, 210 W. Va. 307, 557 S.E.2d 361. The decision in McClanahan also noted that determining whether an attorney's current representation involves a substantially related matter to that of a former client requires an analysis of the facts, circumstances, and legal issues of the two representations. Syl. pt. 3, in part, McClanahan, 189 W. Va. 290, 430 S.E.2d 569.
In the instant case, the majority opinion simply concludes Mr. Schiavoni's and Mr. Hammer's prior representation of Ogden is not substantially related to the case they filed against Ogden. However, the record could not be more clear and supportive of the opposite conclusion. Mr. Schiavoni and Mr. Hammer's prior representation of Ogden is substantially related to the case they filed against Ogden on behalf of Mr. Shaffer. To so conclude, one need look no further than the complaint.
The complaint filed by Mr.
Schiavoni and Mr. Hammer on behalf of Mr. Shaffer states that termination
of Mr. Shaffer's employment with Ogden was in violation of the law:
12. Defendant's decision to discharge, deny transfer, and refusal to rehire plaintiff was motivated by plaintiff's age and/or plaintiff's record and/or defendant's perception of plaintiff's disability in violation of the West Virginia Human Rights Act.
13. Defendant's decision to discharge, deny transfer, and refusal to rehire plaintiff was motivated by fear that plaintiff may seek Workers' Compensation benefits in violation of the Workers' Compensation Act and the common law of West Virginia.
In essence, Mr. Shaffer brought an action against Ogden alleging his employment termination was discriminatory and in violation of the West Virginia Human Rights and Workers' Compensation Acts.
Mr. Schiavoni's and Mr. Hammer's
ability to initiate a discrimination claim against Ogden was squarely addressed
in State ex rel. Ogden Newspapers, Inc. v. Wilkes, 198 W. Va. 587,
482 S.E.2d 204 (1996) (per curiam) (Ogden I).
(See footnote 4)
In Ogden I, one of the clients represented by Mr. Schiavoni and
Mr. Hammer filed a handicap discrimination claim against Ogden. This Court found
that Mr. Schiavoni and Mr. Hammer were disqualified from bringing the handicap
discrimination claim because of Mr. Hammer's previous work for Ogden which involved
a discrimination issue under the West Virginia Human Rights Act.
(See footnote 5)
198 W. Va. at 592-93, 482 S.E.2d at 209-10.
In the instant proceeding,
Ogden has again properly asserted that Mr. Hammer's previous work for Ogden
included legal advice involving handicap discrimination under the state's
Human Rights Act, as well as discriminatory discharge under the state's Workers'
Compensation Act. Ogden also established that Mr. Schiavoni performed work
for Ogden that involved age discrimination and workers' compensation discrimination.
Consistent with Ogden I, it is crystal clear from this evidence that
the action filed by Mr. Schiavoni and Mr. Hammer is substantially related
to legal matters in which these same attorneys previously had represented Ogden.
Mr. Schiavoni and Mr. Hammer
do not dispute that their prior work for Ogden involved the Human Rights Act
and the Workers' Compensation Act. However, they contend that extensive
changes in the law, and the fact that it has been almost ten years since
their representation of Ogden, militate in favor of their representation of
Mr. Shaffer. The majority opinion blindly accepts both arguments. Neither
argument has merit.
Although Mr. Schiavoni and
Mr. Hammer contend that there have been extensive changes in the
law, they completely fail to identify any such alterations. Moreover, the
majority opinion has failed to provide any evidence of the aforementioned
law changes which would be applicable to Mr. Shaffer's case. An examination
of the pertinent provisions of the West Virginia Human Rights Act and the
West Virginia Workers' Compensation Act reveal no substantive changes in the
law since this Court's disqualification of Mr. Schiavoni and Mr. Hammer in
the 1996 Ogden I decision.
1. Changes in age and
handicap discrimination laws under the West Virginia Human Rights Act.
The age and handicap discrimination claims Mr. Schiavoni and Mr. Hammer filed
on behalf of Mr. Shaffer are contained in W. Va. Code § 5-11-9 (1998)
(Repl. Vol. 1999). Although this statute was amended in 1998, such
alterations were only cosmetic. That is, the amendments involved substituting
the word disable in place of the word handicap, and
employing gender neutral language.
(See footnote 6) Clearly, these are not substantive
changes. Because these amendments were merely cosmetic, the majority opinion
has completely failed to identify and analyze extensive changes such as would
support its illogical reasoning.
Also, I find no handicap
or age discrimination cases decided by this Court which so changed the law
as to permit Mr. Schiavoni and Mr. Hammer to be deemed to meet the requirements
of Rule 1.9(a) of the West Virginia Rules of Professional Conduct. See
Stone v. St. Joseph's Hosp. of Parkersburg, 208 W. Va. 91, 538
S.E.2d 389 (2000) (handicap discrimination); Keplinger v. Virginia Elec.
& Power Co., 208 W. Va. 11, 537 S.E.2d 632 (2000) (handicap discrimination);
Haynes v. Rhone-Poulenc, Inc., 206 W. Va. 18, 521 S.E.2d 331 (1999)
(handicap discrimination); Bailey v. Norfolk & Western Ry. Co.,
206 W. Va. 654, 527 S.E.2d 516 (1999) (age discrimination); Tom's
Convenient Food Mart, Inc. v. West Virginia Human Rights Comm'n, 206 W. Va.
611, 527 S.E.2d 155 (1999) (per curiam) (age discrimination); Smith v.
Sears, Roebuck & Co., 205 W. Va. 64, 516 S.E.2d 275 (1999) (per
curiam) (age discrimination); Napier v. Stratton, 204 W. Va. 415, 513 S.E.2d 463 (1998) (per curiam) (handicap discrimination);
Strawderman v. Creative Label Co., Inc., 203 W. Va. 428, 508 S.E.2d
365 (1998) (per curiam) (handicap discrimination); Hosaflook v. Consolidation
Coal Co., 201 W. Va. 325, 497 S.E.2d 174 (1997) (handicap discrimination);
Vandevender v. Sheetz, Inc., 200 W. Va. 591, 490 S.E.2d 678 (1997)
(per curiam) (handicap discrimination); St. Peter v. Ampak-Division of
Gatewood Prods., Inc., 199 W. Va. 365, 484 S.E.2d 481 (1997) (per
curiam) (handicap discrimination); Barlow v. Hester Indus., Inc., 198
W. Va. 118, 479 S.E.2d 628 (1996) (age and sex discrimination); Skaggs
v. Elk Run Coal Co., Inc., 198 W. Va. 51, 479 S.E.2d 561 (1996) (handicap
discrimination). Despite this extensive authority, the majority opinion completely
fails to discuss our prior decisions and their impact on this case. These
omissions were calculated. Why? Because our prior decisions do not support
the proposition that this state's handicap and age discrimination laws have
changed so dramatically as to relieve Mr. Schiavoni and Mr. Hammer of their
disqualification status and permit them to represent Mr. Shaffer in his discrimination
claims against Ogden.
2. Changes in discharge
discrimination laws under the West Virginia Workers' Compensation Act.
The Workers' Compensation discharge discrimination claim Mr. Schiavoni and
Mr. Hammer brought on behalf of Mr. Shaffer is contained in W. Va. Code
§ 23-5A-1 (1978) (Repl. Vol. 1998), W. Va. Code § 23-5A-2
(1982) (Repl. Vol. 1998), and W. Va. Code § 23-5A-3 (1990) (Repl. Vol.
1998). These statutes have not been amended since their respective enactments.
And though the majority opinion utterly fails to discuss these statutes, it
nevertheless incredulously asserts that these laws have undergone dramatic
As with my preceding analysis,
I once again find no Workers' Compensation discharge discrimination cases
decided by this Court since Ogden I which have so changed the law as
to permit Mr. Schiavoni and Mr. Hammer to be deemed to meet the requirements
of Rule 1.9(a) of the West Virginia Rules of Professional Conduct. See
Nestor v. Bruce Hardwood Floors, 210 W. Va. 692, 558 S.E.2d 691
(2001) (per curiam); Nestor v. Bruce Hardwood Flooring, 206 W. Va.
453, 525 S.E.2d 334 (1999) (per curiam); Wriston v. Raleigh County Emergency
Servs. Auth., 205 W. Va. 409, 518 S.E.2d 650 (1999); Sayre v.
Roop, 205 W. Va. 193, 517 S.E.2d 290 (1999) (per curiam); Napier
v. Stratton, 204 W. Va. 415, 513 S.E.2d 463 (1998) (per curiam);
Vandevender v. Sheetz, Inc., 200 W. Va. 591, 490 S.E.2d 678 (1997)
(per curiam); Rollins v. Mason County Bd. of Educ., 200 W. Va.
386, 489 S.E.2d 768 (1997); St. Peter v. Ampak-Division of Gatewood Prods.,
Inc., 199 W. Va. 365, 484 S.E.2d 481 (1997) (per curiam). The majority
opinion conspicuously fails to discuss these decisions and their impact on
this case. Obviously, this omission was deliberate because our prior decisions
do not support the proposition that this state's Workers' Compensation discharge
discrimination laws have changed so dramatically as to permit Mr. Schiavoni and Mr. Hammer to continue
in their representation of Mr. Shaffer in this regard.
based upon the passage of time. The only seemingly legitimate basis upon
which the majority could have concluded that Mr. Schiavoni and Mr. Hammer
were not disqualified is the passage of time argument. While the majority
opinion has cited to numerous cases addressing the impact of time on the disqualification
of an attorney, none of these decisions hold that the mere passage of time,
in and of itself, is sufficient to permit an attorney to sue a former client
so as to satisfy the requirements of Rule 1.9(a) of the West Virginia Rules
of Professional Conduct. The majority opinion has, in fact, held that, in
West Virginia, the passage of time alone is conclusive of whether or not an
attorney is disqualified from suing a former client based upon substantially
related prior legal work for such former client. I cannot join such an undermining
of the integrity of our legal profession as well as such a clear violation
of Rule 1.9(a) of the Rules of Professional Conduct.
Finally, Mr. Schiavoni and
Mr. Hammer have presented no evidence to show that a change in Ogden's decision-makers
has occurred since they terminated such representation. Insofar as all of
the other contentions by the majority opinion are baseless, I believe evidence
of a change in decision-makers is imperative to render controlling the passage of time argument. Unfortunately, Mr. Schiavoni and Mr. Hammer have
been unable to present such evidence. As stated by Ogden during oral argument,
the decision- makers who were in direct contact with Mr. Schiavoni and Mr.
Hammer during their tenure as Ogden's counsel continue to be employed by Ogden
and serve as its decision- makers.
According to this principle,
[a] judicial precedent attaches . . . a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy.
Woodrum v. Johnson, 210 W. Va. 762, 776, 559 S.E.2d 908, 922 (2001) (Albright, J., dissenting) (quoting Allegheny Gen. Hosp. v. National Labor Relations Bd., 608 F.2d 965, 969-70 (3d Cir. 1979) (footnote omitted)). At the heart of this rule is the establishment of certainty for future litigation:
The doctrine of stare decisis rests upon the principle that law by which men are governed should be fixed, definite, and known, and that, when the law is declared by court of competent jurisdiction authorized to construe it, such declaration, in absence of palpable mistake or error, is itself evidence of the law until changed by competent authority.
Booth v. Sims, 193 W. Va. 323, 350 n.14, 456 S.E.2d 167, 194 n.14 (1994) (Miller, Ret. J., dissenting and concurring) (internal quotation and citation omitted). See also Syl. pt. 2, Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974) (An appellate court should not overrule a previous decision recently rendered 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.).
When Ogden I was
decided, the ultimate conclusion reached by the Court was that Rule 1.9 of the Rules of Professional Conduct precluded attorneys
Schiavoni and Hammer from representing a former Ogden employee in an employment
discrimination action against Ogden. The reasoning for this ruling was simple:
during the attorneys' prior representation of Ogden, they were privy to confidential
information about its employment practices that potentially could be used
to Ogden's detriment in the subsequent discrimination litigation. Pursuant
to the doctrine of stare decisis, a specific legal consequence
[was attached] to [that] detailed set of facts, Woodrum, 210
W. Va. at 776, 559 S.E.2d at 922. That is, because Mr. Schiavoni and
Mr. Hammer formerly served as counsel for Ogden and obtained information about
its employment practices, they cannot now represent Ogden's former employees
in employment discrimination proceedings against it. Since this prior ruling
is supposed to furnish the rule for the determination of a subsequent
case involving identical or similar material facts, Woodrum,
210 W. Va. at 776, 559 S.E.2d at 922, the final result of the instant
appeal should be the same given that both cases involve the same facts, the
same circumstances, and virtually identical parties asserting virtually identical
claims. In its infinite wisdom, though, the majority has concluded that the
hourglass, and not the doctrine of stare decisis, dictates the outcome
of this case. I do not agree with this reasoning or with its result.
I am authorized to state
that Justice Maynard joins me in this concurring and dissenting opinion.
In the instant case, Mr.
Schiavoni and Mr. Hammer argued that the Court should not disqualify Mr. Auvil.
To support their argument, Mr. Schiavoni and Mr. Hammer submitted an affidavit
on behalf of Mr. Auvil. The affidavit states that Mr. Auvil never discussed
the facts of Mr. Shaffer's case with Mr. Schiavoni and Mr. Hammer nor with
anyone else in their law firm. Moreover, the affidavit also indicates that
Mr. Auvil never met, spoke to or corresponded with Mr. Shaffer. It is further
represented in the affidavit that Mr. Auvil only saw a draft copy of the complaint
and has never discussed anything with Mr. Schiavoni and Mr. Hammer regarding
their prior representation of Ogden.
Based upon the representations
contained in the aforementioned affidavit, I believe the record supports the
contention by Mr. Schiavoni and Mr. Hammer that Mr. Auvil has been shielded
from any knowledge of Ogden that they obtained during their prior representation
thereof. Consequently, I find no basis for the disqualification of Mr. Auvil.
A lawyer who has formerly
represented a client in a matter shall not thereafter:
(a) represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client or when the information has become generally known.