1. "A de novo standard applies to a review of the adjudicatory record made before the
[Lawyer Disciplinary Board] as to questions of law, questions of application of the law to the
facts, and questions of appropriate sanctions; this Court gives respectful consideration to the
[Board's] recommendations while ultimately exercising its own independent judgment. On
the other hand, substantial deference is given to the [Board's] findings of fact, unless such
findings are not supported by reliable, probative, and substantial evidence on the whole
record." Syllabus Point 3,
Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452
S.E.2d 377 (1994).
2. “Absent a showing of some mistake of law or arbitrary assessment of the facts,
recommendations made by the State Bar Legal Ethics Committee....are to be given
substantial consideration.” Syllabus Point 3,
In re Brown, 166 W. Va. 226, 273 S.E.2d 567
(1980).
3. "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, 174 W. Va. 494, 327
S.E.2d 671 (1984).
Per Curiam:
In this lawyer disciplinary proceeding, the petitioner, Office of Disciplinary
Counsel (hereinafter ODC), objects to the recommendation of the Hearing Panel
Subcommittee (hereinafter HPS) of the Lawyer Disciplinary Board (hereinafter Board) to
dismiss all charges against Respondent Daniel R. James (hereinafter Respondent).
Following a disciplinary hearing on February 19, 2008, the Hearing Panel Subcommittee
tendered its Report and recommendation that these charges be dismissed. We must
determine whether an attorney's actions regarding two potential clients violated West
Virginia Rules of Professional Conduct (hereinafter referred to as Rules). After careful
review of the allegations of misconduct, the record developed by the HPS, the applicable law
and the arguments and briefs of the parties, we affirm the recommendation of the Hearing
Panel Subcommittee and dismiss the charges filed against Daniel R. James.
I.
FACTS
This proceeding arises from actions taken by Daniel R. James (hereinafter
referred to as James or Respondent), an active member of the West Virginia State Bar, in
relation to a tragic car accident that happened two years prior to the Statement of Charges
being filed on September 21, 2007. James was admitted to the West Virginia State Bar on
or about May 16, 1978. His practice is in Keyser, Mineral County, West Virginia.
On September 21, 2007, the Lawyer Disciplinary Board issued a formal
Statement of Charges against the Respondent, alleging that he violated Rules 1.7, 1.9 and
1.16, in his dealings with the family of Josi Reed as well as his later representation of
Jonathan McRobie. The Statement of Charges alleged, in pertinent part, that Respondent's
representation of McRobie in the criminal matter arising from the automobile accident was
the same or was a substantially related matter in which Respondent had also conferred with
the Reeds and provided advice and assistance. Thus, it was averred that these actions
violated both Rule 1.7 (general rules regarding conflicts of interests)
(See footnote 1) and Rule 1.9 (conflicts
of interest regarding former clients)
(See footnote 2) of the Rules. The original complaint against the
Respondent was filed by Mr. and Mrs. Reed on November 28, 2005. The Statement of
Charges also alleged that because Respondent continued or undertook representation of
McRobie after he consulted with and advised the Reeds on the same matter or a substantially
related matter, resulting in a conflict of interest, he violated Rule 1.16(a)(1) of the Rules of
Professional Conduct.
(See footnote 3)
For the purpose of understanding James' actions and the charges arising
therefrom, it is necessary to consider the automobile accident and its aftermath. On July 16,
2005, Jonathan McRobie was operating an automobile in Mineral County, West Virginia,
in which fourteen-year-old Josi Reed was a passenger. The vehicle being driven by McRobie
wrecked, and young Josi Reed was killed. McRobie was accused of driving under the
influence of alcohol, causing death, and other criminal charges.
At the time of the accident, Josi Reed was talking to her mother, Margaret
Reed, from her wireless telephone. Just as the call ended, the accident occurred and it
appears that either Josi Reed called her mother back or the accident caused the phone to
redial Mrs. Reed's number. In any event, Mrs. Reed was able to hear her daughter and other
events happening after the accident. These recollections were the subject of a statement
given to law enforcement by Mrs. Reed as part of the criminal investigation of the accident
and the driver McRobie's involvement therein. Josi Reed did not die immediately from her
injuries; instead, the autopsy revealed she died of congestive heart failure after being
transported to the hospital.
On July 18, 2005, McRobie's father, Kevin, visited the Respondent's law
office to inquire about the possibility of retaining legal representation for his son. An
appointment was scheduled for July 21, 2005.
Josi Reed's parents were residents of Florida who maintained a vacation home
in Grant County. On July 21, 2005, Miss Reed's father Jay Reed went to appellee's law
office for possible legal assistance. At the very time Respondent was meeting with the
McRobies, Mr. Reed appeared at the office. He did not have an appointment. He was told
by Respondent's staff that he was meeting with Jonathan McRobie and his parents. Mr. Reed
informed Respondent's staff that he did not want to meet with the Respondent if he was
going to represent McRobie.
Mr. Reed left the office and was later contacted by the Respondent's staff who
informed him that the Respondent wanted to see him at the office. Both Mr. and Mrs. Reed
went to the office that afternoon and met with the Respondent. The Reeds recalled that Mr.
Reed informed Respondent that they did not want to meet with him if he had any intention
of representing McRobie. The Respondent did not recall the Reeds making this declaration.
Respondent's receptionist, Angela Boal, testified that she did not recall Mr. Reed making
this statement.
The meeting with Respondent and the Reeds was of an hour's duration. The
Reeds recalled conveying factual information about the accident and asking questions about
related legal issues. Mrs. Reed testified that she and her husband were seeking legal advice
on a wide-range of issues, including insurance, the quality of law enforcement in the area and
the procedural aspects of the criminal case. During the course of this meeting, the
Respondent contacted the insurance adjuster, requesting that he be fair with the Reeds, and
also arranged for a meeting between the prosecuting attorney of Mineral County and the
Reeds. Respondent was not present nor did he request to be present at the subsequent
meeting with the prosecutor and the Reeds.
No written fee agreement was signed by the Reeds and the Respondent. No
retainer agreement was executed. Mrs. Reed testified that she felt she was speaking to
Respondent as her attorney during this meeting. Neither Mr. Reed nor Mrs. Reed was able
to identify any specific factual information provided to Respondent during this consultation
that would not have been otherwise available to any attorney representing McRobie.
Thereafter, a four-count indictment
(See footnote 4) was returned against McRobie during the September,
2005, term.
Respondent testified that he perceived the meeting with the Reeds as an initial
consultation and likewise agreed that he did not garner any factual information from the
Reeds that would not have been later available to him through traditional criminal discovery.
After the Respondent met with Jonathan McRobie and his family, and with Mr. and Mrs.
Reed, he decided to represent Jonathan McRobie in the criminal proceedings arising from
this accident. This decision was conveyed to the Reeds when Mrs. Reed contacted the
Respondent the next day.
At the same time the criminal indictment was pending against McRobie, the
ODC initiated an investigation into the ethics complaint filed by the Reeds against the
Respondent. The Respondent advised the circuit court by letter dated February 7, 2006, of
the pending nature of the complaint and requested “that the Court should consider this matter
further.” The record does not reflect that a formal motion for disqualification of Respondent
was ever filed.
The circuit court convened a hearing on the disqualification issue on March 27,
2006. Present at the hearing was the Respondent and his client, McRobie, Mr. and Mrs.
Reed, as well as the prosecuting attorney. At this hearing, the prosecuting attorney requested
that the Reeds be allowed to speak to the court regarding their issues with the Respondent's
representation of McRobie. The Reeds reiterated their concerns regarding the propriety of
the Respondent's representation of McRobie. The Court agreed to convene another hearing
on the issue approximately two months later. Prior to convening that hearing, however, Jay
Reed informed the circuit court by letter dated May 8, 2006, that “after much personal
deliberation and consulting with attorneys here in Florida and in West Virginia,” he and his
wife were withdrawing their objections to Respondent's continued representation of
McRobie.
Lynn Nelson, the prosecuting attorney for Mineral County, provided an
affidavit for use at the disciplinary hearing that on July 21, 2005, he was contacted by the
Respondent, who stated that he needed to meet with the Reeds. The prosecutor met with the
Reeds that day for approximately 20 minutes. The Reeds and the prosecuting attorney agreed
that an accident reconstruction would have to be performed and had generalized discussions
about the criminal case that would be pursued against McRobie. Mr. Nelson testified that
“[I] did not learn anything from Mr. and Mrs. Reed that I would consider confidential that
would preclude Mr. James [Respondent] from representing Mr. McRobie.” He also testified
that he would not have called Mr. Reed as a witness had the McRobie case gone to trial,
because he was not in town at the time of the incident. Mrs. Reed's testimony was not
needed, as the details of her telephone conversation with her daughter around the same time
as the accident would have been admissible through the testimony of the investigating
officer.
With Respondent as his counsel, McRobie ultimately entered into a plea
agreement with the State. Under the terms of that agreement, McRobie entered a plea to one
count of Unlawful Driving Under the Influence Causing Death, a misdemeanor. The State
recommended that McRobie serve 180 days in jail without credit for good time. McRobie
agreed to pay the funeral expenses of Josi Reed, a total of $7,074.00, and the Court fined
McRobie $1,000.00. Mr. and Mrs. Reed were present at the plea hearing held on November
15, 2006, and voiced their concerns about the agreement.
(See footnote 5) Despite the Reeds' concerns, the
plea was accepted and the court sentenced McRobie in accordance with the State's
recommendations.
In its report to the Lawyer Disciplinary Board, the Hearing Panel
Subcommittee recommended that the Statement of Charges brought against James be
dismissed. The HPS noted that it felt sympathetic toward the “tragedy endured by the Reeds,
and the fact that their grief was compounded by the confusion over Mr. James' role,” but that
the ODC had failed to prove by clear and convincing evidence that James had violated the
Rules of Professional Conduct.
Pursuant to Rule 3.11 (See footnote 6) of the Lawyer Disciplinary Procedure, the ODC filed
written objection with the Clerk of this Court to the HPS recommendation. Rule 3.13 of the
Lawyer Disciplinary Procedure requires this Court to “file an opinion or order disposing of
the case.”
II.
STANDARD OF REVIEW
Our standard of review in lawyer disciplinary proceedings was set forth in
Syllabus Point 3 of Committee on Legal Ethics v. McCorkle, 192, W. Va. 286, 452 S.E.2d
377 (1994), as follows:
A
de novo standard applies to a review of the
adjudicatory record made before the [Lawyer
Disciplinary Board] as to questions of law,
questions of application of the law to the facts,
and questions of appropriate sanctions; this Court
gives respectful consideration to the [Board's]
recommendations while ultimately exercising its
own independent judgment. On the other hand,
substantial deference is given to the [Board's]
findings of fact, unless such findings are not
supported by reliable, probative, and substantial
evidence on the whole record.
As to recommendations made by the HPS, this Court stated in part in Syllabus
Point 3 of
In re Brown, 166 W. Va. 226, 273 S.E.2d 567 (1980) that “absent a showing of
some mistake of law or arbitrary assessment of the facts, recommendations made by the State
Bar Legal Ethics Committee....are to be given substantial consideration.” Furthermore, we
have made clear “[t]his Court is the final arbiter of legal ethics problems and must make the
ultimate decision about public reprimands, suspensions or annulments of attorneys' licenses
to practice law. Syllabus Point 3,
Committee on Legal Ethics v. Blair, 174 W. Va. 494, 327
S.E.2d 671 (1984). With these standards in mind, we must resolve the disputed facts and
determine whether the ODC has shown that the Respondent has violated the Rules.
III.
DISCUSSION
This case illustrates the difficulties that may arise when two potential clients
seek to engage the same attorney. At the outset we note that both the Petitioner and
Respondent agree that if this Court were to adopt proposed Rule 1.18 (Duties to Prospective
Client),
(See footnote 7) potential situations such as the one raised in this instant case would be less
conflicted. As succinctly noted in Respondent's brief in support of dismissing the Statement
of Charges, the American Bar Association noted in its comments that there are legitimate
reasons for making distinctions between a potential client and an actual client:
Prospective clients, like clients, may disclose information
to a lawyer, place documents or other property in the lawyer's
custody, or rely on the lawyer's advice. A lawyer's discussions
with a prospective client usually are limited in time and depth
and leave the prospective client and the lawyer free (and
sometimes required) to proceed no further. Hence, prospective
clients should receive some but not all of the protection afforded
clients.
Inasmuch as this rule has not been adopted by this Court and was not applicable
at the relevant times herein, we address the allegations against Mr. James in light of the
existing rules and regulations that were applicable. The ODC urges us to conclude that the
Respondent's actions violated both Rule 1.7 and Rule 1.9 of the Rules of Professional
Conduct. We address each separately.
1. Rule 1.7 does not apply unless there are two actual clients.
The ODC urges this Court to find that the Respondent's actions violated Rule
1.7.
(See footnote 8) The Respondent argues that this rule clearly does not apply to prospective clients, only
actual clients, and as such, it has no application to this case.
The hearing panel noted that this rule is aimed at conflicts of interest arising
where the lawyer is simultaneously representing two actual clients whose interests are
adverse. The report of the hearing panel cited two cases wherein this Court has been
reluctant to extend the requirements of Rule 1.7 beyond the clear language of the rule. In
Lawyer
Disciplinary Board v. Artimez, 208 W. Va. 288, 540 S.E.2d 156 (2000), we refused
to hold that Rule 1.7 prohibitions were applicable in a case where the attorney was having
an affair with his client's spouse. While the relationship itself was condemned by this Court,
there was no violation of this rule because the client's wife was not an actual client, and
therefore, there was no conflict of interest between two actual clients.
Likewise, in the case of
Committee on Legal Ethics v. Cometti, 189 W. Va.
262, 430 S.E.2d 320 (1993), we held that Rule 1.7(b) did not apply in the case where the
attorney had been discharged from representation and subsequently sued his client for the
return of his personal effects when the attorney left a house he rented from his former client.
In its Memorandum of Law, ODC argues that “Respondent essentially met with
directly adverse parties in the same legal matter and certainly established an attorney-client
relationship with the second party [the Reeds] he consulted that day. Then on the next day,
Respondent decided he would represent the first party he had met with the day before.” No
substantive case law is cited, however, on the issue of whether these actions violated Rule
1.7.
After a careful review of the record before us, we must conclude that the
hearing panel subcommittee was correct when it determined that there was not established
an attorney-client relationship between the Respondent and the Reeds. Absent this
relationship, Rule 1.7 of the Rules of Professional Conduct does not apply to this situation
involving one actual client (McRobie) and one potential client (Estate of Josi Reed). As
such, we find that the conclusions of the hearing panel subcommittee were supported by the
evidence adduced at the various hearings and will not disturb them.
2. Absent the establishment of an attorney-client relationship and the
exchange of confidential information, Rule 1.9 is inapplicable.
In its report to this Court, the HPS analyzed the application of Rule 1.9
(See footnote 9) to the
charges levied against Respondent. The panel concluded that Rule 1.9 was applicable where
the conflict of interest involved a potential client and an actual client. The HPS first looked
to the case of
State ex rel McClanahan v. Hamilton, 189 W. Va. 290, 430 S.E.2d 569 (1993).
That case evolved from a writ of prohibition being sought to disqualify the prosecuting
attorney from pursuing criminal charges against a defendant who had been previously
represented by the prosecuting attorney in domestic proceedings against the victim.
McClanahan, at 291. The defendant sought the services of the prosecuting attorney in
pursing a divorce from her husband on the grounds of cruel and inhuman treatment. The
defendant subsequent to this representation engaged in conduct that led to her being indicted
for the malicious assault of that same husband. The defendant intended to utilize the
defenses of self-defense and “battered wife syndrome” and alleged that because of the
prosecutor's past representation of her in divorce proceedings, he had the use of confidential
information disclosed by the defendant.
McClanahan, at 291. This Court found that Rule
1.9 required that the prosecutor should be disqualified because of his prior representation of
the defendant.
The HPS noted that if the rationale of
McClanahan were applicable to the case
at bar, Rule 1.9(a) would have prohibited the Respondent from representing McRobie, unless
the Reeds consented to such representation. The HPS found, however, that based upon this
Court's decisions in a series of later cases that Rule 1.9(a) was not applicable where the
alleged conflict of interest involved a potential client and an actual client. The hearing panel
analyzed our decisions in
State ex rel DeFrances v. Bedell, 191 W. Va. 513, 446 S.E.2d 906
(1995);
State ex rel Keenan v. Hatcher, 210 W. Va. 307, 557 S.E.2d 361 (2001) and
State ex
rel Youngblood v. Sanders, 212 W. Va. 885, 575 S.E.2d 864 (2002). Therefore, the HPS
found no violation by Respondent of Rule 1.9(a).
The
DeFrances case involved an estate lawyer who met briefly with a testator
who had a will, but who ultimately did not utilize the lawyer's estate planning services.
After the testator's demise, some of the beneficiaries retained the estate attorney for litigation
related to the estate.
DeFrances, at 515. The circuit court disqualified the attorney from
representing the beneficiaries, finding that Rule 1.9 prohibited this representation.
DeFrances, at 516. This Court found that where the consultation consisted of one meeting,
where no confidential information was exchanged, where the will was unchanged and where
no services were rendered to the decedent, an attorney-client relationship had not been
established for the purpose of applying Rule 1.9(a).
DeFrances, at 518.
The
Keenan case was an attempt to disqualify the prosecuting attorney from
pursuing a recidivist claim against a defendant who had been represented by that prosecuting
attorney in one of the predicate convictions.
Keenan, at 309. This Court held that the
prosecuting attorney was disqualified as a result of his prior representation of the defendant.
This Court stated in Syllabus Point 1 of
Keenan:
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 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.
The
Youngblood case involved the conflicts occasioned by consultation with
two co-defendants. The attorney's paralegal first met with a co-defendant who was unable
to pay for counsel's services. The factual information disclosed to the paralegal was later
found to be generally known information contained in independent sources, such as police
reports. The co-defendant later entered into a plea agreement whereby he was required to
testify against his co-defendant Youngblood. Subsequent to the initial meeting with the co-
defendant, Youngblood retained the same attorney. The State moved to disqualify counsel
from representing Youngblood on the basis of the paralegal's meeting.
Youngblood, at 888.
This Court held in Syllabus Point 3 of
Youngblood:
When the information that is the subject of a
disqualification motion predicated on prospective representation
was “generally known” or otherwise disclosed to individuals
other than prospective counsel, the information cannot serve as
a basis for disqualification under Rule 1.9 of the Rules of
Professional Conduct.
Because the information disclosed to the paralegal in Youngblood was generally known from
independent sources attorney did not need to be disqualified.
Applying our analysis and reasoning in
McClanahan,
DeFrances,
Keenan and
Youngblood, the HPS found that where a former potential client is involved, the second part
of the rule, Rule 1.9 (b) may be applicable. However, the Reeds, who were potential clients
who did not become actual clients, were never represented by Respondent. Therefore, Rule
1.9(a), and its prohibitions against representing “another person in the same or substantially
related matter in which that persons' interests are materially adverse to the interests of the
former client” is not applicable. As explained in Syllabus Point 1 of
Keenan:
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.
Since Respondent did not perform any work on behalf of the Reeds and otherwise never
represented the Reeds, Rule 1.9(a) does not apply to this situation.
Furthermore, we find that in light of our holding in
DeFrances, there is
insufficient evidence to support a conclusion that an attorney-client relationship was
established between Respondent and the Reeds. Without the relationship of attorney-client,
we agree with the HPS that Rule 1.9(a) is inapplicable.
Despite the absence of an attorney-client relationship, Rule 1.9(b) may be
applicable. Syllabus Point 1 of
Youngblood states:
Where an attorney has received confidential information from
a prospective client, the attorney may be disqualified from
representing another individual on grounds of actual or
presumed conflict despite the absence of an actual attorney-
client relationship.
In its report the HPS addressed what confidential information may have been exchanged by
the Reeds in their conference with the Respondent. It is apparent that the Reeds were not
present in the vehicle at the time their daughter was killed. Their knowledge of McRobie's
actions at that time, therefore, is limited. Mrs. Reed was talking to her daughter around the
time of the crash and did appear at the scene, but the HPS found that there was no suggestion
that she provided the Respondent with any confidential information that was not otherwise
available. The HPS found that “there is no indication from the testimony or the documents
presented to the Panel suggesting that the Reeds provided Respondent with information that
somehow could have been used in the defense of Mr. McRobie to the disadvantage of the
Reeds.”
Careful review of the testimony adduced at the hearing supports the HPS's
conclusions that the Reeds did not provide Respondent with information that could have been
used in the defense of McRobie to the disadvantage of the Reeds. The affidavit from the
prosecuting attorney establishes that he agreed with the Respondent to not call Mrs. Reed as
a witness. The Respondent himself testified that any information he learned from the Reeds
regarding the accident was available through other means. Most significantly, the Reeds
themselves were unable to identify any confidential information disclosed to Respondent.
Rule 1.9(b) therefore does not apply to this situation.
The burden was on the ODC to prove that the Reeds provided Respondent with
confidential information not otherwise generally available. The HPS correctly found that the
ODC did not meet this burden of proof.
IV.
CONCLUSION
For the reasons stated above, we adopt the Board's recommendation that the
Statement of Charges filed against the Respondent, Daniel R. James, on September 21, 2007,
be dismissed.