In this case, the majority opinion has held
that the State of West Virginia has standing to move for the disqualification
of defense counsel in a criminal proceeding in limited circumstances. I concur
in this holding, and write separately to reconcile this holding with the position
I took in my concurring opinion in State ex rel. Youngblood v. Sanders,
212 W. Va. 885, 894, 575 S.E.2d 864, 873 (2002). In Youngblood, I
expressed my view that the State did not have standing to disqualify defense
counsel. I observed in my separate opinion in Youngblood that “'as
a general rule, courts do not disqualify an attorney on the grounds of conflict
of interest unless the former client moves for disqualification.'” 212 W. Va.
at 894, 575 S.E.2d at 873 (quoting United States v. Rogers, 9 F.3d 1025,
1031 (2d cir. 1993)). Moreover, I pointed out that the “implied” client
who potentially stood to be prejudiced by the lawyer's representation in Youngblood had “chos[en]
not to seek disqualification.” 212 W. Va. at 895, 575 S.E.2d at 874.
The instant case may be distinguished from
the circumstances presented in Youngblood. In this case, the witness who
was a former client of the defense attorney has intervened in this matter and
has asked that his former counsel be disqualified. Furthermore, because Syllabus
point 4 of the majority opinion has set forth criteria for the circuit court's
decision of whether to grant a motion to disqualify defense counsel that necessarily
requires the participation of the former-client/witness, it will be impossible
for the State to pursue such a motion completely on its own.
Because the State will be unable to pursue
disqualification of defense counsel without the participation of the former client,
the concerns expressed in my separate opinion in Youngblood will not arise.
Accordingly, I respectfully concur with the opinion of the Court.