Tuesday, June 11, 2013

Bar Prosecution Prohibited

The West Virginia Supreme Court of Appeals granted as moulded a writ of prohibition brought by an attorney seeking to prevent disciplinary authorities from pursuing an ethics complaint against him.

The attorney was the Kanawha County Prosecuting Attorney at the time of an investigation into a series of "sniper" homicides. When he left and entered practice, he was retained by a client to pursue a claim for damages in the execution of a related warrant.

The defendants in the civil action filed a motion to disqualify. The motion was denied as the judge found that the two representions were not substantially related.

The court here held that the disposition of the disqualification motion did not preclude a disciplinary action:

Because circuit courts have no authority to impose disciplinary sanctions upon attorneys, their decisions on motions to disqualify based on alleged conflicts of interest are not dispositive with regard to whether disciplinary action is required.

The court nonetheless concluded that "sanctions are not warranted in this instance." The facts were not in dispute and:

Allowing the respondents to proceed when the charges are wiithout merit would needlessly duplicate the efforts and costs of the parties and would not promote judicial economy.

The court analysed the evidence and found no violation of Rules 1.9 and 1.11. Because the "clients" of the prosecuting attorney are the People of West Virginia, the defendants in the civil action (the City of Charleston and others) were not his former clients.

I do not recall a prior instance where a state high court has prohibited a bar prosecution rather than reviewed findings made in the normal course of disciplinary proceedings. (Mike Frisch)


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