Friday, November 22, 2019

West Virginia Declines To Halt Investigation Of Prosecutor's Possible Conflict Of Interest

The West Virginia Supreme Court of Appeals has issued a memorandum decision in a matter involving an effort by a prosecutor to end a bar investigation

Petitioner, Rachel E. Romano, the Harrison County Prosecuting Attorney (“Ms. Romano”), by counsel Michael W. Carey and David R. Pogue, endeavors to invoke this Court’s original jurisdiction in prohibition to prevent the Respondents, the West Virginia Office of Disciplinary Counsel (“the ODC”) and the West Virginia Lawyer Disciplinary Board (“the LDB”) (collectively “the Respondents”), who are represented by Ancil G. Ramey and Rachael L. Fletcher Cipoletti, from taking disciplinary action against her based upon a purported conflict of interest, under Rule 1.7(a)(2) of the West Virginia Rules of Professional Conduct (“Rules of Professional Conduct”), arising from her marital relationship with a Harrison County Deputy Sheriff. The Respondents contend that prohibition is not proper and would result in an advisory opinion.

Upon consideration of the parties’ briefs, their oral arguments, and the appendix record, this Court concludes that Ms. Romano lacks standing to seek the requested writ of prohibition. In order to explain the merits of this procedural determination, this Court has concluded that a memorandum decision, rather than an order, is appropriate under Rule 21 of the Rules of Appellate Procedure.

The facts presented in connection with this proceeding are not disputed. In January 2015, while serving as an assistant prosecuting attorney in Harrison County, West Virginia, Ms. Romano married Corey Heater, who was employed as a Harrison County Deputy Sheriff. Shortly thereafter, in March 2015, Ms. Romano was appointed by the Harrison County Commission to serve as the Prosecuting Attorney for the county. Ms. Romano continued to serve as the Appointed Prosecuting Attorney for Harrison County until November 2016, when she was duly elected to the position of Harrison County Prosecuting Attorney for a four-year term. Ms. Romano’s husband has remained a Harrison County Deputy Sheriff throughout the time she has served as either the Appointed or Elected Prosecuting Attorney for Harrison County.

Three years later the Office of Disciplinary Counsel initiated an "informal" complaint. 

Nearly three years after Ms. Romano first began serving as the Prosecuting Attorney, she received an “Informal Complaint” from the ODC dated January 17, 2018. The “Informal Complaint” was accompanied by copies of two indictments returned by the Harrison County Grand Jury from its May 2017 term, for which Ms. Romano’s husband, as the investigating officer, had provided the only testimony before the grand jury upon  which the indictments were founded.

She did not participate in the above grand jury matters, so the issue involves imputed disqualification of her assistants. 

She responded by citing her compliance efforts but the ODC sent an email that stated in part

As you are the elected prosecutor, you may not screen yourself off from a conflict of interest in your office as you described in your letter, thus please understand that is not an acceptable means to address the conflict of interest.

The attorney sought a writ of prohibition with the court

In the absence of formal charges filed pursuant to Rule 2.10 of the West Virginia Rules of Lawyer Disciplinary Procedure, there is no quasi-judicial activity to warrant a writ of prohibition.

Premature

...because there is no actual disciplinary proceeding underlying Ms. Romano’s petition for writ of prohibition, this Court cannot provide Ms. Romano the relief she seeks without rendering an improper advisory opinion. As we observed in Morrisey, “‘[c]ourts are not constituted for the purpose of making advisory decrees or resolving academic disputes. The pleadings and evidence must present a claim of legal right asserted by one party and denied by the other before jurisdiction of a suit may be taken.’” 234 W. Va. at 246, 764 S.E.2d at 777 (quoting Mainella v. Bd. of Trs. of Policemen’s Pension or Relief Fund of Fairmont, 126 W. Va. 183, 185-86, 27 S.E.2d 486, 487-88 (1943)). Hence, “the writ of prohibition cannot be invoked[ ] to secure from th[is] Court . . . an advisory opinion[.]” Morrisey, 234 W. Va. at 246, 764 S.E.2d at 777 (quotations and citation omitted). Nevertheless, Ms. Romano’s writ petition raises important issues that must be resolved. Insofar as we are unable to address the merits of the proper interpretation of Rule 1.7(a)(2) in the context herein presented without rendering an advisory opinion,  we will endeavor to address the same in our rule making capacity, and we will proceed in that manner accordingly.

The Exponent Telegram has a story about her career. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/11/west-virginia-declines-to-halt-investigation-of-prosecutors-possible-conflict-of-interest.html

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