Starcher, Justice, concurring:
I concur with the majority
opinion and write separately to emphasize several points.
First, we are reviewing a
decision of a lower court that specifically found, after a careful review
of the record, that the respondents' prior legal work for the petitioners
was not substantially related to the instant case. Although this finding should
be entitled to a measure of consideration and deference, the dissent simply
ignores this principle.
Second, the majority opinion
properly concludes that the passage of time is a relevant factor for
a court to consider in passing on a disqualification motion. This means that
the fact of the partial disqualification in Ogden I is not per se
controlling. The dissent does not dispute the principle that the passage
of time may be a permissible factor, but goes on to ignore this principle
as well.
Third, the dissent suggests
that there have been no important changes in the law of employment discrimination
since the decision in Ogden I. I beg to differ. To cite only one example,
in Stone v. St. Joseph's Hospital, 208 W.Va. 91, 538 S.E.2d 389 (2000),
we set forth an independent approach to the determination of who is afforded protection
by our state law against handicap discrimination. In the instant case, the
evidence (under seal) of the respondents' prior research for the petitioner
showed that what the respondents worked on was earlier federal law in this
area that is essentially inapplicable or obsolete in West Virginia. The dissent
ignores this fact.
Fourth, the majority opinion's
discussion ably shows why “playbook” knowledge about a former client
is not necessarily disqualifying. The dissent does not dispute this showing,
nor the applicable authorities -- yet the dissent in fact principally focuses
on the “playbook” aspect of the petitioners' arguments. Why? Because
there is no showing of any pertinent confidential
information that the respondents gained in their prior association with
the petitioners.
Finally, the ink on Ogden
I is ten years old. That ink is fully dry.
Today's decision is based
on new facts, and today we write with new ink, to do justice between these
parties in the instant case.
Accordingly, I concur.