Kopelman and Associates, L.C., a West Virginia corporation v. Peggy L. Collins and Gregory M. Courtright, individually and dba Collins and Courtright, a partnership, No. 23183 (W. Va. June 14, 1996) (Cleckley, J.):
Reversing an order awarding an hourly fee in a contingency fee case taken by the plaintiff's former associates when they departed the firm, the Court held that although the amount of time spent by each respective firm is an important factor in a contingency fee case where a lawyer employed by a firm takes the client upon his or her departure and no contract exists governing how the fees are to be divided, the following factors must also be considered (1) the relative risks assumed by each firm; (2) the frequency and complexity of any issues addressed by each firm; (3) the proportion of funds invested and other contributions made by each firm; (4) the quality of representation; (5) the degree of skill needed to achieve success; (6) the results of each firm's efforts; (7) the reason the client chose the departing lawyer; (8) the viability of the claim at the time of departure; and (9) the amount of recovery. The Court further held that, as long as its reasons are set forth in the record, any award of attorney fees in these cases will be reviewed solely under an abuse of discretion analysis.
Linda M. Statler, Guardian of Destiny Lynn Ware v. Vel Anne Dodson, Executrix of the Estate of Richard A. Ware, No. 22544 (W. Va. December 13, 1995) (Recht, J.) 195 W.Va. 646, 466 S.E.2d 497:
Reversing an order denying attorney fees based, in part, on the circuit court's view that no implied contract existed between the attorney and the pretermitted child on whose behalf the attorney sought to establish paternity for purposes of sharing in her biological father's estate, the Court held that a contract for legal services between infants and their lawyers will be implied if (1) employment of the lawyer was reasonably necessary; (2) the terms of employment were fair and reasonable; and (3) the legal services were performed and necessary.
Lawyer Disciplinary Board v. Abishi C. Cunningham, a member of The West Virginia State Bar, No. 22761 (W. Va. October 12, 1995) (Recht, J.) 195 W.Va. 27, 464 S.E.2d 181:
On rehearing, imposing a public reprimand, two years supervised practice, and costs on an attorney for whom the Court initially accepted a recommendation of a three month suspension after the attorney failed to timely object, the Court held that, if filed within four months of the recommendation, a motion for relief from a lawyer disciplinary order, imposed following failure of either party to object to the recommendation within the thirty days provided in R. Lawyer Disc. Proc. 3.11, will be considered by the Court as if made pursuant to R. Civ. P. 60(b).
Lawyer Disciplinary Board v. George S. Vieweg, III, a former member of The West Virginia State Bar, No. 22777 (W. Va. July 11, 1995) (Cleckley, J.): 194 W.Va. 554, 461 S.E.2d 60:
Rejecting a recommendation against reinstatement of an attorney who resigned in 1988 in conjunction with a felony conviction for bank fraud, the Court ordered reinstatement as of January 1, 1996, with five years of supervision and continued treatment for alcohol addiction, holding that where a conflict exists between Lawyer Disciplinary Counsel and a Hearing Panel Subcommittee of the Lawyer Disciplinary Board with regarding to a recommendation on a petition for reinstatement, the Subcommittee shall have the right to representation by separate counsel before the Court upon review of the petition.
Lawyer Disciplinary Board v. Darrell V. McGraw, Jr., a member of The West Virginia State Bar, No. 22639 (W. Va. June 19, 1995) (McHugh, C.J.): 194 W.Va. 788, 461 S.E.2d 850:
Imposing a reprimand and costs on the Attorney General following his disclosure of a client confidence, the Court held (1) R. Lawyer Disc. P. 3.7 requires formal charges of ethical misconduct to be proven by clear and convincing evidence; (2) a lawyer's duty of client confidentiality is broader than the attorney-client privilege, protecting more than merely the "confidences" or "secrets" of a client; and (3) a lawyer's duty of client confidentiality is not relieved where the information at issue is party of a public record or has been disclosed to a third-party by the client.
State of West Virginia ex rel. John Doe, Jane Doe, and Jane Roe v. Honorable Joseph G. Troisi, Special Judge of the Circuit Court of Kanawha County, and Michele Rusen, Special Prosecuting Attorney for Kanawha County, No. 22817 (W. Va. May 18, 1995) (Cleckley, J.): 194 W.Va. 28, 459 S.E.2d 139:
Refusing to issue a writ of prohibition against an order compelling attorneys to testify before a grand jury even though their client was a target of the grand jury investigation, the Court held (1) a writ of prohibition is the proper method of challenging the refusal of a motion to quash a subpoena based on the attorney-client privilege; (2) the attorney-client privilege is alone insufficient to compel the quashing of a grand jury subpoena of attorney of an individual under investigation; (3) the assertion and determination of the applicability of the attorney-client privilege where an attorney has been subpoenaed by a grand jury investigating the attorney's client must be done on a question-by-question basis; and (4) a circuit court may require the prosecutor to make a preliminary showing of relevance and inability to obtain the disputed information from another source where an assertion is made that a subpoena has been issued for improper reasons.
State of West Virginia ex rel. West Virginia Highlands Conservancy, Inc.; West Virginia Wildlife Federation; West Virginia Council, Trout Unlimited, Inc.; and West Virginia Citizen Action Group v. West Virginia Division of Environmental Protection and David C. Callaghan, Director of the West Virginia Division of Environmental Protection, No. 22233 (W. Va. April 14, 1995) (Cleckley, J.): 193 W.Va. 650, 447 S.E.2d 920:
Granting one-half of a request for attorney fees and costs in a partially successful mandamus proceeding, the Court held (1) where a public official or agency deliberately and knowingly refused to perform a clear legal duty, unless contrary extraordinary circumstances are present, attorney fees and costs should be awarded to the petitioner; (2) where a public official or agency negligently or unknowingly failed to perform a clear legal duty, the award of attorney fees and costs to the petitioner depends upon (i) the relative clarity of the legal duty, (ii) whether the duty was owed the general public or special interests, and (iii) whether the petitioner's resources are sufficient to bear the cost of the proceeding; and (3) apportionment of attorney fees and costs in a mandamus proceeding is appropriate where less than a complete victory is obtained.
Office of Disciplinary Counsel v. Geary M. Battistelli, a member of The West Virginia State Bar, No. 22472 (W. Va. April 14, 1995) (Workman, J.): 193 W.Va. 629, 457 S.E.2d 652:
Imposing an interim suspension on a lawyer charged with multiple counts of professional misconduct, the Court held (1) R. Lawyer Disc. P. 3.27 should be used only in the most extreme cases of lawyer misconduct; (2) a petition for extraordinary relief under R. Lawyer Disc. P. 3.27 should contain (i) specific allegations of misconduct and (ii) supporting documentation and affidavits; (3) when an interim suspension has been imposed pursuant to R. Lawyer Disc. P. 3.27, the Office of Disciplinary Counsel should conclude the underlying disciplinary proceeding within ninety days, absent any request for continuance by the respondent, after the suspension becomes effective; and (4) a lawyer who engages in a loan transaction with a client must ensure that the arrangement satisfies the provisions of R. Prof. Cond. 1.8(a)(1)-(3).
Troy Maynard v. Kenneth Adkins, No. 22529 (W. Va. March 27, 1995) (McHugh, J.): 193 W.Va. 456, 457 S.E.2d 133:
Reversing the award of a new trial based upon an attorney's alleged conflict of interest, the Court held that where an attorney, as co-counsel, represents a plaintiff in a personal injury action and, in an unrelated matter, represented the personal representative of an estate of which a defendant in the personal injury action was a beneficiary, a new trial should not have been awarded where (i) the defendant attended neither the trial nor any pretrial proceedings with respect to the personal injury action and (ii) no discussions or meetings occurred between the attorney and the defendant with regard to either the personal injury action or the estate matter.
Dana Ruth Musick v. Lynn Allen Musick, No. 22344 (W. Va. December 15, 1994) (Workman, J.): 192 W.Va. 527, 453 S.E.2d 361:
Reversing the disqualification of an attorney because of his intimate relationship with the client, the Court held that although it is a better practice for attorneys not to engage in sexual relations with any client in any type of case, because no existing provision of the Rules of Professional Conduct specifically precludes a lawyer/client sexual relationship, such relationship is alone insufficient to warrant disqualification, but that other provisions of the Rules of Professional Conduct may be violated by such relationship which may warrant disqualification.
Committee on Legal Ethics of The West Virginia State Bar v. James R. Sheatsley, a member of The West Virginia State Bar, No. 22287 (W. Va. November 21, 1994) (McHugh, J.): 192 W.Va. 272, 452 S.E.2d 75:
Reprimanding an attorney for acquiescing in an arrangement to pay a witness a fee contingent upon the outcome of the litigation, the Court held that R. Prof. Cond. 1.8(k) is violated when a lawyer acquiesces in the payment of compensation to a witness contingent upon the content of his testimony or the outcome of the case.
State of West Virginia ex rel. Darrell V. McGraw, Jr., Attorney General of West Virginia v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County, and Fahlgren Martin, Inc., No. 22235 (W. Va. November 18, 1994) (Neely, J.): 192 W.Va. 195, 451 S.E.2d 761:
Overturning the award of attorney fees and costs to the prevailing party in a mandamus proceeding against the attorney general, the Court held that only in mandamus proceedings where a public officer "willfully" fails to obey the law is an award of attorney fees and costs appropriate.
Committee on Legal Ethics of The West Virginia State Bar v. Thomas H. McCorkle, a member of The West Virginia State Bar, No. 22315 (W. Va. November 18, 1994) (Cleckley, J.): 192 W.Va. 286, 452 S.E.2d 377:
Imposing a two-year suspension, mandatory substance abuse treatment, and costs upon an attorney convicted of cocaine possession, the Court held that (1) substantial deference is given to the Committee's findings of fact unless they are not supported by reliable, probative and substantial evidence and (2) although the Court will carefully consider the Committee's recommendations regarding sanctions, it will ultimately exercise its own independent judgment.
Committee on Legal Ethics of The West Virginia State Bar v. C. Andy Keenan, a suspended member of The West Virginia State Bar, No. 22366 (W. Va. November 1, 1994) (McHugh, J.): 192 W.Va. 90, 450 S.E.2d 787:
Annulling a lawyer's license for numerous ethical violations, including failure to return client files, failure to return court files, failure to respond to ethics complaints, and failure to notify clients of his earlier suspension, the Court held that a suspended attorney who fails to notify clients of such suspension and to perform associated acts in compliance with the applicable rules may have his or her license annulled.
State of West Virginia ex rel. Calvin Ray Tyler v. Honorable A. Andrew MacQueen, III, Judge of the Circuit Court of Kanawha County, No. 22269 (W. Va. July 15, 1994) (Workman, J.): 191 W.Va. 597, 447 S.E.2d 289:
In a departure from cases decided prior to the adoption of R. Prof. Cond. 1.11, the Court held that there is no imputed disqualification of the office of prosecuting attorney when a criminal defendant's former counsel becomes an assistant prosecuting attorney if the assistant prosecuting attorney is screened from any involvement in the case.
Linda L. Powroznik, Administratrix and Personal Representative of the Estate of Dennis F. Powroznik v. C&W Coal Company, a corporation, No. 22014 (W. Va. May 27, 1994) (Miller, J.): 191 W.Va. 293, 445 S.E.2d 234:
In a case involving whether a contingency fee on the full amount of a settlement in a Mandolidis case can be collected, the Court held (1) in determining the excess recovery in a deliberate intent suit against an employer under W. Va. Code § 23-4-2(b), the amount of workers' compensation benefits must be deducted from the total award or settlement; (2) where a workers' compensation claim is made under W. Va. Code § 23-4-2(b), the attorney fee for any workers' compensation award is controlled by the fee schedule set forth in W. Va. Code § 23-5-5; and (3) the attorney fee for damages obtained in excess of workers' compensation benefits is not controlled by the fee schedule set forth in W. Va. Code § 23-5-5.
West Virginia Canine College, Inc., and Wayne Davis v. David R. Rexroad, Lynne W. Rexroad, etc., et al. v. Wayne Davis, No. 21970 (W. Va. May 20, 1994) (Miller, J.): 191 W.Va. 209, 444 S.E.2d 566:
Affirming the dismissal of claims against an attorney based upon an alleged conflict of interest in a series of real estate transactions, the Court held that although an attorney's representation of two or more clients with adverse or conflicting interests constitutes such misconduct as to subject him to liability for malpractice unless the attorney has obtained the consent of the clients after full disclosure of all facts surrounding the dual representation, because the attorney's title work in the instant case on behalf of parties against whose indirect interest the attorney later represented another client was unrelated to such title work, there was no substantial relationship between the two representations that would support a claim of malpractice.
Robert Reed Sowa, heretofore, and in his individual capacity heretofore appointed as guardian ad litem v. Roy C. Huffman, Stanley Adkins, and Randy Harris, Committee for Nolan B. Hamric, an incompetent, and County Commission of Braxton County, John Hamric and Leah Hamric, Intervenors, No. 21569 (W. Va. April 4, 1994) (McHugh, J.): 191 W.Va. 105, 443 S.E.2d 262:
Rejecting an attempt by a court-appointed guardian ad litem to recover attorney fees and expenses incurred after the competency of his client was determined and a committee appointed, the Court held that the duties of a guardian ad litem appointed pursuant to W. Va. Code § 27-11-1(b) to represent a respondent in an incompetency proceeding conclude when a committee is appointed and the appeal period expires.
Barbara Ann Quesinberry v. Michael R. Quesinberry and Tina Michelle Carter v. Jerome Elwood Carter, Jr., No. 21927 (W. Va. March 24, 1994) (Neely, J.): 191 W.Va. 65, 443 S.E.2d 222:
In a certified question proceeding involving issues regarding the compensation of attorneys appointed as guardians for prisoners and infants, the Court held (1) the Administrative Office of the Courts is not responsible for the payment of fees and costs for attorneys appointed as guardians for prisoners named as defendants in civil actions; (2) appointment of guardians for prisoners named as defendants in civil actions is not mandatory, pursuant to R. Civ. P. 17(c), if the trial court can order another appropriate remedy such as continuing the civil action pending the prisoner's release; (3) if the parties are indigent so as to preclude an assessment of the fees and costs of an attorney appointed as guardian for an infant in a paternity case, the child is an "eligible client" pursuant to W. Va. Code § 29-21-1, et seq., requiring payment through the Office of Public Defender Services; and (4) in a limited number of instances when a court determines that an attorney is essential to the administration of justice in private civil litigation, an attorney may be appointed without compensation.
State of West Virginia ex rel. Charleston Area Medical Center, a corporation v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County; Joshua Herb, an infant suing by his next friend and mother, Vicki Herb; and Vicki Herb; and Glen F. Herb, No. 21821 (W. Va. October 29, 1993) (Miller, J.): 190 W.Va. 186, 427 S.E.2d 759:
Clarifying its holding in Dent v. Kaufman, 185 W. Va. 171, 406 S.E.2d 68 (1991), regarding conducting ex parte interviews of employees of a corporation involved in litigation, the Court held that former employees of a corporation may be interviewed on an ex parte basis because such interviews are not prohibited by Rule 4.2 of the Rules of Professional Conduct unless the former employees are represented by their own attorney.
Mildred Walden v. Jay M. Hoke and Fredrick G. Staker, III, No. 21277 (W. Va. April 23, 1993) (Brotherton, J.): 189 W.Va. 222, 429 S.E.2d 504:
Affirming the dismissal of a malpractice action premised upon joint representation in an earlier divorce proceeding in which the trial court rejected an identical attack on a property settlement agreement, from which the plaintiff did not appeal, the Court held that although it is improper for a lawyer to represent both the husband and wife at any stage of a divorce proceeding and to prepare an answer for the defendant even if the divorce is simple and uncontested, a litigant cannot relitigate an issue in a malpractice action previously decided in the earlier proceeding from which the alleged malpractice arose.
State of West Virginia ex rel. Angela McClanahan v. Honorable John Hamilton, Judge of the Circuit Court of Pendleton County, No. 21523 (W. Va. April 23, 1993) (Miller, J.): 189 W.Va. 290, 430 S.E.2d 569:
Concluding that the trial court should have disqualified the prosecuting attorney who had represented the defendant, charged with maliciously assaulting her husband, in an earlier divorce matter in which she had divulged information regarding her husband's abusive behavior, the Court held (1) R. Prof. Cond. 1.9(a) precludes an attorney who has formerly represented a client from representing another person in a substantially related matter that is materially adverse to the interests of the former client unless the former client consents after consultation and (2) once a former client has established that a former attorney is representing a party in a substantially related matter, the former client need not demonstrate that confidential information was divulged, which will be presumed from the relationship.
Committee on Legal Ethics of The West Virginia State Bar v. Joseph C. Cometti, a member of The West Virginia State Bar, No. 21506 (W. Va. March 30, 1993) (Miller, J.): 189 W.Va. 262, 430 S.E.2d 320:
Imposing a 15-month suspension for an attorney who (1) entered into a lease agreement with a client which ultimately resulted in a dispute for which the attorney did not inform the client of her right to separate representation; (2) failed to respond to bar counsel's request for information regarding certain complaints under investigation; (3) failed to promptly surrender a client's file when the client discharged the attorney; and (4) entered into an agreement with a client to pay her the unemployment compensation benefits which would have been the subject of an appeal the attorney neglected to file without informing the client of her right to separate representation, the Court held (1) in order to avoid violating the ethical prohibition against having an interest adverse to a client, an attorney must fully disclose the nature of his or her interest, including the possible adverse effect on the client, after which the client must consent to continued representation; (2) an attorney who fails to respond to bar counsel violates R. Prof. Cond. 8.1(b); (3) R. Prof. Cond. 1.16(a)(3) permits a client to discharge an attorney, subject to liability for payment of services rendered; and (4) where an attorney has committed malpractice and seeks to have the client release the attorney from liability, R. Prof. Cond. 1.8(h) requires that the attorney advise the client in writing that consultation with an independent attorney should be undertaken.
J. David Judy, III v. Honorable Sam White, Judge of the Circuit Court of Doddridge County, No. 21324 (W. Va. December 16, 1992) (McHugh, C.J.): 188 W.Va. 633, 425 S.E.2d 588:
In a case involving a dispute over an attorney's criminal appointment voucher, the Court held that (1) single appeals on multiple convictions constitute a single proceeding for purposes of a criminal appointment voucher; (2) a trial court's decision on a criminal appointment voucher will not be disturbed absent an abuse of discretion; and (3) trial courts should give reasons for reducing criminal appointment vouchers in order to allow the effected attorney to petition the trial court for reconsideration.
Committee on Legal Ethics of The West Virginia State Bar v. Joseph R. Martin, a suspended member of The West Virginia State Bar, No. 20859 (W. Va. June 1, 1992) (Workman, J.): 187 W. Va. 340, 419 S.E.2d 4:
Where attorney failed to cooperate with ethics investigation, the Court held (1) failure to respond to an ethics complaint constitutes a violation of R. Prof. Cond. 8.1(b) and (2) where an attorney fails to respond within a reasonable time to requests for information by disciplinary counsel, the allegations of the complaint will be deemed to be true for purposes of the disciplinary proceeding.
Committee on Legal Ethics of The West Virginia State Bar V. John R. Mitchell, a member of The West Virginia State Bar, No. 21005 (W. Va. May 15, 1992) (Neely, J.): 187 W. Va. 287, 418 S.E.2d 733:
Imposing a 60-day suspension on an attorney whose clients' cases were dismissed, with prejudice, due to failure to prosecute, the Court rejected a request for alternative punishment in the form of community service, holding that it would consider such discipline only where appropriate and where the details of the proposed service are properly considered and evaluated by the Committee on Legal Ethics.
Committee on Legal Ethics of The West Virginia State Bar v. John L. Boettner, Jr., No. 19211 (W. Va. March 24, 1992) (Miller, J.): 188 W.Va. 1, 422 S.E.2d 478:
Imposing a three-year suspension and costs on an attorney convicted of felony tax evasion, the Court held that mitigating factors justified reduction of the ordinary five-year annulment for felony conviction to only three years, further noting the term "annulment" refers to revocation of the license to practice law, whereas the term "disbarment" refers to the effect of such annulment on the individual attorney.
Committee on Legal Ethics of The West Virginia State Bar v. Charles F. Printz, Jr., No. 20665 (W. Va. March 23, 1992) (Neely, J.): 187 W.Va. 182, 416 S.E.2d 720:
Dismissing a complaint against an attorney who threatened an embezzler with criminal prosecution he failed to repay embezzled funds, the Court held that DR 7-105(a) of the Code of Professional Responsibility does not apply to otherwise legitimate negotiations undertaken on behalf of a client.
State of West Virginia ex rel. Morgan Stanley & Co., Inc.; Goldman Sachs & Co.; and Chase Securities, Inc. v. Honorable A. Andrew MacQueen, Judge of the Circuit Court of Kanawha County, and State of West Virginia, No. 20857 (W. Va. March 19, 1992) (Workman, J.): 187 W.Va. 87, 416 S.E.2d 55:
Holding that the trial court should have disqualified a law firm from representing both the State and parties whom the State had charged with wrongdoing, the Court held that (1) a pleading which charges individuals with wrongdoing, even if such individuals are not named as parties, may support a finding of adversity of interest within the meaning of Rule 1.7 of the Rules of Professional Conduct, and may be sufficient to disqualify a law firm representing the party who alleges such wrongdoing from representing the individuals so charged in the pleading, and (2) an attorney for the State may not represent anyone with an interest adverse to the interests of the State of West Virginia even with the consent of all parties.
The Committee on Legal Ethics of The West Virginia State Bar v. George S. Taylor, a member of The West Virginia State Bar, No. 20679 (W. Va. March 5, 1992) (Miller, J.): 187 W.Va. 39, 415 S.E.2d 280:
Imposing a public reprimand on an attorney who bounced a check, then failed to make prompt restitution, the Court held that although writing a bad check does not constitute an act involving moral turpitude, where an attorney knows that funds in an account are insufficient or fails to make a check good within a reasonable time after receiving notice of the insufficiency, such conduct may constitute dishonesty, misrepresentation, or adversely reflect on the attorney's fitness to practice, warranting imposition of appropriate discipline.
The Committee on Legal Ethics of the West Virginia State Bar v. Thomas L. Craig, Jr., No. 20612 (W. Va. February 7, 1992) (Miller, J.): 187 W.Va. 14, 415 S.E.2d 255:
Imposing a three-year suspension on an attorney who admittedly engaged in illegal campaign activity, lied to a grand jury about cash payments during an election campaign, and failed to report income received as compensation for services rendered to a candidate, the Court held (1) perjured testimony before a grand jury by an attorney will be grounds for discipline even though no indictment has resulted, and (2) false swearing on a material issue by an attorney will be grounds for discipline even though no harm results.
Gary Wayne Frasher v. West Virginia Board of Law Examiners, No. 20087 (W. Va. July 29, 1991) (Workman, J.): 185 W.Va. 725, 408 S.E.2d 675:
Affirming the rejection of an applicant to the bar on the ground of unfitness based upon 3 DUI convictions and 27 convictions of various other traffic offenses, the Court held (1) a higher standard of good moral character may be applied to a bar applicant than a practicing attorney if there is a rational connection between the applicant's fitness and capacity to practice law; (2) because alcohol abuse can impact on an applicant's fitness to practice law, it is an appropriate factor to be considered in ascertaining whether an applicant has proven his character and fitness; and, (3) although the passage of time is alone insufficient to demonstrate rehabilitation, a rejected applicant may later be admitted based upon proof that the applicant has been rehabilitated.
The Committee on Legal Ethics of the West Virginia State Bar v. Michael C. Farber, No. 19909 (W. Va. June 27, 1991) (Neely, J.): 185 W.Va. 522, 408 S.E.2d 274:
Where, inter alia, an attorney misrepresented the deposition testimony of a fellow attorney, accused a circuit judge of criminal conspiracy, and threatened to initiate a federal investigation of another circuit judge, the Court imposed a three-month suspension and ordered a psychiatric exam as a precondition to reinstatement, holding that (1) the first amendment does not protect a lawyer's criticism of a judge which consists of knowingly false statements or false statements made with a reckless disregard for their truth, and (2) proof of rehabilitation may be required as a condition to attorney reinstatement following a suspension or disbarment.
The Committee on Legal Ethics of the West Virginia State Bar v. Geary M. Battistelli, No. 19874 (W. Va. May 1, 1991) (Miller, C.J.): 185 W.Va. 109, 405 S.E.2d 242:
Affording reciprocal enforcement to a Fourth Circuit decision to discipline an attorney for certain factual misrepresentations in his brief and at oral argument, the Court held that Article VI, Section 28-A of the By-Laws of the West Virginia State Bar provides that a final adjudication of professional misconduct in another jurisdiction conclusively establishes the fact of such misconduct for purposes of reciprocal discipline, but that an attorney may challenge the disciplinary action of the foreign jurisdiction on four grounds: (1) the procedure followed in the other jurisdiction violated due process; (2) there was a total infirmity of proof of misconduct; (3) imposition of the same discipline would result in a grave injustice; or (4) the misconduct warrants a substantially different type of discipline.
Committee on Legal Ethics of The West Virginia State Bar v. Richard Hess, a Member of The West Virginia State Bar, No. 20225 (W. Va. December 19, 1991) (Miller, C.J.): 186 W.Va. 514, 413 S.E.2d 169:
Imposing a two-year suspension on an attorney who converted partnership funds to his own use, the Court held that (1) the Rules of Professional Conduct apply to an attorney's relationship with his or her firm; (2) an attorney's conversion of firm funds without authorization to his or her own personal use reflects a dishonest and deceitful nature exposing the attorney to discipline; and (3) the repayment of funds wrongfully held by an attorney does not negate a violation of the Rules of Professional Conduct, but may be considered in mitigation of punishment.
Charles G. Garlow v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County, No. 20204 and David L. Grubb v. Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County, No. 20205 (W. Va. December 17, 1991) (McHugh, J.): 186 W.Va. 457, 413 S.E.2d 112:
Where former attorney general sought to disqualify firm representing former assistants in a wrongful termination suit on the ground that a member of the firm was also an assistant attorney general at the time of the terminations, the Court held that, upon proper factual development, circuit courts have the authority to disqualify lawyers whose ethical conflicts present a clear threat to the fair and efficient administration of justice.
Carl W. Smithson, Sr., dba Smithson Brothers Well Service Co. v. United States Fidelity & Guaranty Company and Basil Thumm, No. 20073 (W. Va. November 22, 1991) (Miller, C.J.): 186 W.Va. 195, 411 S.E.2d 850:
Where insurance company sought to disqualify plaintiff's attorney based upon allegations that his testimony was necessary to support its claim that the attorney's procrastination had increased the plaintiff's damages, the Court held that although Rule 3.7 of the Rules of Professional Conduct generally make it unethical for a lawyer to appear as a witness on behalf of his or her client, when an attorney is sought to be disqualified under this rule, the motion should not be granted unless (1) the attorney will give evidence material to the issues being litigated; (2) the evidence cannot be obtained elsewhere; and, (3) the testimony is actually or potentially prejudicial to the testifying attorney's client.
The Committee on Legal Ethics of the West Virginia State Bar v. Arch A. Moore, Jr., No. 19724 (W. Va. October 31, 1991) (Brotherton, J.): 186 W.Va. 127, 411 S.E.2d 452:
Imposing annulment on a politician/lawyer convicted by plea of a variety of federal crimes, including mail fraud, income tax evasion, and obstruction of justice, who later sought to withdraw the plea based upon the alleged ineffectiveness of retained counsel, the Court held that mitigation hearings are inappropriate when the circumstances involve wilful violation of the public trust by extortion or obstruction of justice.
The Committee on Legal Ethics of the West Virginia State Bar v. John S. Folio, a member of the West Virginia State Bar, No. 19698 (W. Va. December 20, 1990) (Workman, J.): 184 W.Va. 503, 401 S.E.2d 248:
Rejecting the contention by an attorney convicted of conspiracy to obstruct justice that he should have been afforded a mitigation hearing, the Court held that such hearings are the exception, rather than the rule, depending upon a variety of factors, such as the nature of the attorney's misconduct, surrounding facts and circumstances,, previous ethical violations, the wilfullness of the conduct, and the adequacy of previous opportunities to present evidence.
Bruce E. Hall and Talheim Village, Inc. v. Pat A. Nichols, No. 19363 (W. Va. December 20, 1990) (Workman, J.): 184, W.Va. 466, 400 S.E.2d 901:
Affirming the award of summary judgment in an attorney malpractice action, the Court held that where the act complained of in a legal malpractice action is a breach of the specific terms of a contract, rather than from duties imposed by the attorney-client relationship, the statute of limitations applicable to contract actions applies, but that where the act complained of arises from a breach of duty imposed by the attorney-client relationship, rather than the terms of a contract, the statute of limitations applicable to tort actions applies.
Bernice B. Weinstein v. West Virginia Board of Law Examiners, Ross Maruka, Bradley J. Pyles, G. Charles Hughes, Rebecca A. Baitty, Sarah Nell Hall, James St. Clair, and Robert Aitcheson, No. 19651 (W. Va. June 14, 1990) (Miller, J.): 183 W.Va. 158, 394 S.E.2d 757:
Where ten months elapsed between applicant's retirement from federal government and commencement of her employment at the law firm of Steptoe & Johnson and another six months elapsed before she filed her application for admission, the Court upheld rejection of her application by the Board of Law Examiners on the ground that she had not been "lawfully engaged in the active practice of law for five (5) years next preceding" her application under Rule 4.0(b) of the Rules for Admission to the Practice of Law, especially where the applicant had failed to show substantial diligence in seeking admission to practice.
Ralph J. Keister and Ruby Keister v. William W. Talbott and Charles F. Herold, Webster County Clerk, No. 19081 (W. Va. April 2, 1990) (Miller, J.): 182 W.Va. 745, 391 S.E.2d 895:
In an attorney malpractice action arising from the failure to uncover a prior conveyance of the mineral estate in a title examination allegedly due to improper indexing by the county clerk, the Court held that an attorney who fails to exercise the knowledge, skill, and ability ordinarily possessed and exercised by members of the legal profession in similar circumstances is liable for damages to his or her client that are the direct and proximate result of such negligence. The Court held, however, that the client bears the burden of proving both his or her loss and its causal connection to the attorney's negligence. The Court further held that where a client has been injured by a negligent title certification or examination, the exact nature of damages depends upon the nature of the property, the character of the negligence, and other appropriate factors. Finally, the Court held that damages for the negligent failure to uncover an outconveyance are ordinarily the difference between the value of the property actually received and the purchase price. Because the evidence was conflicting regarding whether the property in question was worth less than the purchase price, even without the mineral estate, the Court affirmed the jury's verdict of no damages.
The Committee on Legal Ethics of the West Virginia State Bar v. John L. Boettner, Jr., No. 19211 (W. Va. March 23, 1990) (Miller, J.): 183 W. Va. 136, 394 S.E.2d 735:
In this attorney disciplinary proceeding, the Court, overruling the holding of In the Matter of Mann, 151 W. Va. 644, 154 S.E.2d 860 (1967) and its progeny that willful failure to pay federal income taxes constitutes a crime of moral turpitude mandating disbarment, held that, because a license to practice law is a valuable right, due process dictates that where annulment of an attorney's license is sought pursuant to a felony conviction, there is a right to a hearing to introduce evidence in mitigation of punishment.
State of West Virginia ex rel. Timothy N. Barber v. The Honorable Danny O. Cline, as Judge of the Fourteenth Judicial Circuit, No. 19457 (W. Va. March 22, 1990) (McHugh, J.): 182 W.Va. 669, 391 S.E.2d 359:
Where a Kanawha County lawyer was appointed to represent an indigent criminal defendant in Braxton County, in which county such lawyer had made no prior appearance, the Court held that where there is no public defender office, attorneys may ordinarily be appointed for indigent criminal defendants only in the following sequence: (1) a voluntary member of the local panel of attorneys; (2) a voluntary member of the regional panel of attorneys; (3) any public defender office in an adjoining circuit which agrees to the appointment; and, (4) qualified private attorneys from in-circuit or out-of-circuit. Moreover, the Court directed the Public Defender Corporation to assist each circuit to assist in the development of local and regional panels, as well as a statewide list of qualified private attorneys to be appointed when the first three alternatives are exhausted. Finally, the Court held that out-of-circuit lawyers who themselves, or whose partners or associates have never practice law in a particular circuit, should not be appointed to represent indigents in eligible proceedings in such circuit.
Roy E. Hicks v. Amos C. Wilson, No. 19137 (W. Va. January 25, 1990) (Neely, C.J.): 182 W.Va. 660, 391 S.E.2d 350:
Although a fee agreement between a claimant and his counsel, which did not impose a cap on attorney fees of 25% of "any and all awards of benefits," predated a statute imposing a cap of 25% of 208 weeks of benefits, the Court held that such statute did not constitute an unlawful impairment of contracts because the parties were on notice that the field in which they were contracting, i.e., workers' compensation, was subject to close regulation.
State ex rel. Jay Montgomery Brown, Prosecuting Attorney of Marion County v. Hon. Rodney B. Merrifield, Judge of the Circuit Court of Marion County, and Frank C. Mascara, Special Prosecuting Attorney of Marion County, No. 19361 (W. Va. January 25, 1990) (Neely, C.J.): 182 W.Va. 519, 389 S.E.2d 484:
Where a circuit judge sua sponte appointed a special prosecutor to present "certain cases" to a grand jury, the Court held that such appointment violated W. Va. Code § 7-7-8, which limits such appointments to specific cases in which the elected prosecutor is disqualified.
Paula D. Cunningham v. The Honorable A.L. Sommerville, Jr., and the Honorable Danny O. Cline, Judges of the Fourteenth Judicial Circuit Court of West Virginia; William C. Martin, Prosecuting Attorney of Braxton County, West Virginia; and Richard A. Facemire, Prosecuting Attorney of Clay County, West Virginia, No. 19273 (W. Va. December 20, 1989) (McHugh, J.): 182 W.Va. 427, 388 S.E.2d 301:
Where corporate counsel was appointed to represent indigent criminal defendants, the Court held that full-time house counsel who is forbidden from engaging in the separate practice of law may decline appointment to represent indigents on the ground that such representation "is likely to result in an unreasonable financial burden" under Rule 6.2(b) of the Rules of Professional Conduct.
State of West Virginia ex rel. H.K. Porter Company, Inc. v. Honorable Sam White, Judge of the Circuit Court of Pleasants County, No. 19150 and State of West Virginia ex rel. Steven F. Wright v. Honorable Sam White, Judge of the Circuit Court of Pleasants County, No. 19151 (W. Va. October 19, 1989) (Brotherton, C.J.): 182 W.Va. 97, 386 S.E.2d 25:
Where a Maine lawyer sought admission pro hac vice in 114 asbestos-related actions pending in the Circuit Court of Pleasants County, the Court held that (1) pro hac vice admissions shall ordinarily be granted where a court is satisfied that the applicant has fully complied with the requirements of Rule 8(b) of the Rules for Admission to the Practice of Law; (2) the "numerous or frequent" provision of Rule 8(d) of the Rules for Admission to the Practice of Law should not be interpreted to defeat a pro hac vice admission where the applicant is engaged in a highly specialized area of law and his or her involvement in this State is limited to that area of expertise; (3) where there is evidence of misconduct or procedural abuses by the attorney seeking pro hac vice admission, courts may deny such admission; and, (4) unless released by appropriate order, the "responsible local attorney," who must be an active member in good standing of The West Virginia State Bar, must attend all proceedings with his or her pro hac vice associate.