Friday, April 2, 2010

No Mandamus For Bar Complainant

The West Virginia Supreme Court has denied mandamus relief to a person who had filed a bar complaint against his estranged spouse. The complainant sought to compel the Office of Disciplinary Counsel to remove items from the file relating to the closed complaint. The court held:

The relief Petitioner seeks is the removal of the CDs and transcripts from [the attorney's] closed file. He further requests that they be destroyed or given to him. Petitioner argues they consist of a “personal and private” communication to a third party and as such, are not relevant to the ethics complaint he filed against [the attorney]. In contrast, Respondent contends that [the attorney] filed the CDs and transcripts with the LBD because she believed they supported her position that Petitioner did not file the complaint in good faith or for a legitimate purpose, but in retaliation over events related to the parties' divorce. In [the attorney's] view, Petitioner's own words on the CDs and transcripts were proof of his impure motives.

       The CDs and transcripts are a part of the permanent record relating to the ethics complaint filed against [the attorney] by Petitioner. The Rules do not authorize Respondent to remove any portion of the records relating to disciplinary matters. Indeed, Respondent may not exercise authority other than that which is conferred upon it by the Rules of Lawyer Disciplinary Procedure as promulgated by this Court. See Syl. pt. 2, in part, Coll v. Cline, 202 W.Va. 599, 505 S.E.2d 662 (1998) (“Administrative agencies and their executive officers are creatures of statute and delegates of the Legislature. Their power is dependent upon statutes, so that they must find within the statute warrant for the exercise of any authority which they claim.” (internal quotations omitted)).

      Based upon the foregoing, it is apparent to this Court that Respondent acted in complete conformity with the Rules of Lawyer Disciplinary Procedure in this matter. Furthermore, there is no provision in the Rules which requires or authorizes Respondent to remove any portion of [the attorney's] file. We conclude, therefore, that Petitioner does not have a clear right to the removal of the CDs and transcripts from [the attorney's] closed file, nor does Respondent have some corresponding legal duty to remove them. Syl. Pt. 1, McCoy, 198 W.Va. at 460, 481 S.E.2d at 766. Petitioner has thus failed to establish that a petition for writ of mandamus should issue. Accordingly, we deny the writ.

(Mike Frisch)

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