655 S.E.2d 178
STATE OF WEST VIRGINIA EX REL.
JEFFERSON COUNTY BOARD OF ZONING APPEALS,
2. “Once a former client establishes that the attorney is representing another party in a substantially related matter, the former client need not demonstrate that he divulged confidential information to the attorney as this will be presumed.” Syllabus Point 4, State ex rel. McLanahan v. Hamilton, 189 W. Va. 290, 430 S.E.2d 569 (1993).
3. All proceedings before a board of zoning appeals and other legal bodies
or tribunals in connection with an application for a conditional use permit are proceedings
about the same “matter” for purposes of West Virginia Rules of Professional Conduct, Rule
1.11(a).
Starcher, J.:
In this case we decide that a former lawyer for a county's board of zoning
appeals cannot represent a private developer before the board in connection with a
conditional use permit application that the lawyer worked on while serving as the board's
lawyer.
The underlying events giving rise to the instant case began in 2001, when Thorn Hill filed conditional use permit application number Z01-04 with the Jefferson County Department of Planning, Zoning, and Engineering (“DPZE”), seeking a permit for a planned housing development of approximately 171 homes on 159.7 acres of land in the rural- agricultural district of Jefferson County. A CUP was needed for the development because under the county's zoning rules, the housing density of the proposed project was greater than would otherwise be allowed in this district.
Thorn Hill's permit application was evaluated and given a passing Land Evaluation and Site Assessment (“LESA”) score by the county's Zoning Administrator. After receiving a passing LESA score, an application is eligible to be evaluated for its “compatibility.” This process involves judgments by officials about the suitability of the proposed project. At this stage, members of the public may raise issues about the proposed development, and the issues raised must be resolved by officials.
The adequacy of the LESA support data that Thorn Hill submitted with its application was appealed by members of the public to the Jefferson County Planning Commission. That body found the LESA support data to be adequate. Members of the public then appealed the Planning Commission's decision to the petitioner BZA, which affirmed the Planning Commission's decision. An appeal of the BZA's determination was then filed in the Jefferson County Circuit Court, in which case Thorn Hill intervened. (See footnote 2) Other appeals and cases related to the Thorn Hill CUP application also appear to have been filed (and ultimately resolved). It appears that Thorn Hill's conditional use permit application number Z01-04 was finally approved in 2004.
Mr. Cassell, as a Jefferson County assistant prosecuting attorney, represented, advised, counseled, and litigated on behalf of the BZA in connection with the various appeals that were filed in connection with Thorn Hill's CUP application. (See footnote 3)
Meanwhile, in 2003, Thorn Hill filed a second, enlarged CUP application, number Z03-05, which included its original proposed development that had been the subject of the Z01-04 application. Thorn Hill's second application increased the size of the proposed development to 595 single-family lots on 552 acres.
Members of the public also appealed the LESA score for the second Thorn Hill application to the BZA. The BZA affirmed the Zoning Administrator's passing LESA score determination. Mr. Cassell served as counsel for the BZA at several meetings where the BZA considered this appeal. (See footnote 4) Mr. Cassell also wrote and received copies of letters on behalf of the BZA regarding the second Thorn Hill application. (See footnote 5)
On December 10, 2004, Mr. Cassell tendered his resignation, effective January 31, 2005, to the Jefferson County Prosecuting Attorney. After giving notice of resignation, Mr. Cassell continued to represent the BZA and participate in matters involving the second Thorn Hill application. (See footnote 6) On February 1, 2005, Mr. Cassell became a member of the firm of Campbell, Miller, Zimmerman, which was representing Thorn Hill before the BZA and in other proceedings. The CMZ firm has continued to represent Thorn Hill since Mr. Cassell joined the firm, and since joining CMZ, Mr. Cassell has represented Thorn Hill regarding the second Thorn Hill application that was filed during Mr. Cassell's tenure as an assistant prosecutor, and regarding which he provided legal advice to the BZA. (See footnote 7)
A public hearing regarding Thorn Hill's second CUP application was scheduled to be held before the BZA on May 18, 2006. Due to a perceived conflict of interest presented by Mr. Cassell's and CMZ's representation of Thorn Hill, the BZA continued the hearing, in order to first determine whether it would be proper for that body to hear the matter. (See footnote 8)
On June 2, 2006, Thorn Hill filed a complaint for declaratory judgment, injunction, and petition for writ of mandamus in the Circuit Court of Jefferson County; and the BZA thereafter filed a motion to disqualify, both raising the issue of whether Mr. Cassell and CMZ were disqualified from appearing before the BZA in connection with Thorn Hill's pending permit application. An evidentiary hearing was held before the circuit court on November 21, 2006. The vice-chair of the BZA and a representative of Thorn Hill testified, along with an expert witness for each side. The vice-chair of the BZA testified that he viewed the entire Thorn Hill conditional use permit as one matter, and that he viewed all of his numerous closed-session conversations with Mr. Cassell about the Thorn Hill applications as privileged and confidential. Mr. Cassell did not testify.
On January 16, 2007, the circuit court entered an order denying the BZA's
motion to disqualify, finding that each step or stage of the review of a conditional use permit
application was a separate and not substantially related matter; and therefore that Mr. Cassell
and the Campbell, Miller, Zimmerman firm were not disqualified from representing Thorn
Hill before the BZA in connection with Thorn Hill's pending CUP application. (The circuit
court's reasoning is further discussed at III. infra.) The BZA challenges this ruling in the
instant writ of prohibition.
The reason that a writ of prohibition is available in this Court to review a motion to disqualify a lawyer is manifest. If a party whose lawyer has been disqualified is forced to wait until after the final order to appeal, and then is successful on appeal, a retrial with the party's formerly disqualified counsel would result in a duplication of efforts, thereby imposing undue costs and delay.
Conversely, if a party who is unsuccessful in its motion to
disqualify is forced to wait until after the trial to appeal, and
then is successful on appeal, not only is that party exposed to
undue costs and delay, but by the end of the first trial, the
confidential information the party sought to protect may be
disclosed to the opposing party or made a part of the record.
Even if the opposing party obtained new counsel, irreparable
harm would have already been done to the former client. The
harm that would be done to the client if it were not allowed to
challenge the decision by the exercise of original jurisdiction in
this Court through a writ of prohibition would effectively
emasculate any other remedy.
(Citations omitted.)
The relevant facts in the instant case appear to be undisputed; as always, we
review the circuit court's legal determinations de novo.
SUCCESSIVE GOVERNMENT AND PRIVATE
EMPLOYMENT
(a) Except as law may otherwise expressly permit, a lawyer
shall not represent a private client in connection with a matter
in which the lawyer participated personally and substantially as
a public officer or employee, unless the appropriate government
agency consents after consultation. No lawyer in a firm with
which that lawyer is associated may knowingly undertake or
continue representation in such a matter unless:
(1) the disqualified lawyer is screened from any participation
in the matter and is apportioned no part of the fee therefrom;
and
(2) written notice is promptly given to the appropriate
government agency to enable it to ascertain compliance with the
provisions of this rule.
(b) Except as law may otherwise expressly permit, a lawyer
having information that the lawyer knows is confidential
government information about a person acquired when the
lawyer was a public officer or employee, may not represent a
private client whose interests are adverse to that person in a
matter in which the information could be used to the material
disadvantage of that person. A firm with which that lawyer is
associated may undertake or continue representation in the
matter only if the disqualified lawyer is screened from any
participation in the matter and is apportioned no part of the fee
therefrom.
(c) Except as law may otherwise expressly permit, a lawyer
serving as a public officer or employee shall not:
(1) participate in a matter in which the lawyer participated
personally and substantially while in private practice or
nongovernmental employment, unless under applicable law no
one is, or by lawful delegation may be, authorized to act in the
lawyer's stead in the matter; or
(2) negotiate for private employment with any person who is
involved as a party or as attorney for a party in a matter in which
the lawyer is participating personally and substantially, except
that a lawyer serving as law clerk to a judge, other adjudicative
officer or arbitrator may negotiate for private employment as
permitted by Rule 1.12(b) and subject to the conditions stated in
Rule 1.12(b).
(d) As used in this Rule, the term “matter” includes:
(1) any judicial or other proceeding, application, request for a
ruling or other determination, contract, claim, controversy,
investigation, charge, accusation, arrest or other particular
matter involving a specific party or parties, and
(2) any other matter covered by the conflict of interest rules of
the appropriate government agency.
(e) As used in this Rule, the term “confidential government
information” means information which has been obtained under
governmental authority and which, at the time this rule is
applied, the government is prohibited by law from disclosing to
the public or has a legal privilege not to disclose, and which is
not otherwise available to the public. (See footnote 9)
(Emphasis added.)
Thus, the controlling principle of law that must govern the instant case is the
requirement set forth in Rule 1.11(a) that except as law may otherwise expressly permit, a
lawyer shall not represent a private client in connection with a matter in which the lawyer
participated personally and substantially as a public officer or employee, unless the
appropriate government agency consents after consultation. No lawyer in a firm with which
that lawyer is associated may knowingly undertake or continue representation in such a
matter unless: (1) the disqualified lawyer is screened from any participation in the matter and
is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the
appropriate government agency to enable it to ascertain compliance with the provisions of
this rule.
The circuit court reasoned that Mr. Cassell was not representing Thorn Hill
before the BZA “in connection with a matter in which the lawyer participated personally and
substantially as a public officer or employee.” Id. Rule 1.11(d) states that a “matter,” for
purposes of the rule, includes “any . . . application.” Substituting the word “application” for
“matter,” Rule 1.11(a) requires that “a lawyer shall not represent a private client in
connection with a[n application] in which the lawyer participated personally and substantially
as a public officer or employee, unless the appropriate government agency consents after
consultation.”
As the BZA's attorney, Mr. Cassell participated personally and substantially in connection with the two Thorn Hill permit applications in question. Therefore, the disqualifying language of Rule 1.11(a) facially and literally applies to Mr. Cassell _ because he may not represent Thorn Hill before the BZA in connection with an application in which he participated personally and substantially as a public officer or employee, and the BZA has not consented to that representation. (See footnote 10) (Additionally, the language of Rule 1.11(a) applies to CMZ: “[CMZ] may undertake or continue representation in the matter only if [Mr. Cassell] is screened from any participation in the [application].”)
Given that the disqualifying language of Rule 1.11(a) directly applies to Mr.
Cassell and CMZ, it would take a very strong set of facts and compelling equities to persuade
this Court that the Rule should be applied to mean something contrary to what it literally
says. We do not find such a situation to be the case.
The respondents argue that despite Rule 1.11(d)'s definition of “matter” as including “any . . . application,” each of the stages in the review and consideration of a CUP application _ for example, the LESA point scoring process, identifying and addressing unresolved issues, and addressing compatibility _ is a separate “matter” for purposes of Rule 1.11(a). They argue that when Mr. Cassell worked for the BZA, he was only involved with the LESA scoring stage; and that he is therefore free to represent Thorn Hill before the BZA in connection with other aspects of Thorn Hill's CUP application (for example, compatibility).
However, neither common sense nor applicable legal authority support the contention that each stage in the consideration of a conditional use permit application is a separate and discrete “matter.” Nor do they support the contention that the BZA may not bar its former lawyer from aiding an applicant in connection with an application about which the lawyer once advised the BZA. (See footnote 11)
In a similar case, In re Sofaer, 728 A.2d 625, 647 (D.C. Ct.App. 1999) (holding that a former State Department lawyer was disqualified from representing Libya in connection with the Lockerbie airplane bombing when the lawyer had worked on issues related to the bombing at the State Department), the D.C. Court of Appeals quoted approvingly from an order of the court's Board on Professional Responsibility:
Respondent urges the Board to define “the matter” here as a series of separate “matters,” with each matter being one step or issue concerning his involvement in responding to the Pan Am 103 bombing as Legal Adviser. Respondent would have us treat the Civil Case subpoena, the government's investigation, and the Criminal Case each as separate matters. The Board does not believe that an investigation and the proceedings that impose responsibility can be so neatly separated. . . . The fact that Respondent's legal work involving the investigation took various forms does not diminish the fact that Respondent was available as counsel, and served as counsel, on a continuing basis concerning legal work required by the Legal Adviser to support the overall investigation and assessment of responsibility.
The respondents cite to an earlier D.C. Court of Appeals case, Brown v. District of Columbia Board of Zoning Adjustment, 486 A.2d 37 (D.C. Ct.App. 1984) (“Brown II”). In Brown II, the court upheld a zoning board's determination that former lawyers for the board were not disqualified from representing a property owner regarding a piece of property before the board, when the lawyers had dealt with issues relating to that same property while they were working for the board.
The facts and rationale of Brown II are quite different from the facts of the instant case. In Brown II, the zoning board did not oppose its former lawyers' representation of the property owner about matters that the board considered to be unrelated to the lawyers' former work for the board _ whereas, in the instant case, the BZA's position is that Mr. Cassell is working on the same matter about which he advised and represented the BZA. (See footnote 12)
In State ex rel. Keenan v. Hatcher, 210 W.Va. 307, 313, 557 S.E.2d 361, 365 (2001) (holding that a prosecutor was disqualified from bringing a recidivist proceeding even though the prior offenses in which the prosecutor served as defense counsel were public matters), this Court identified a core principle that underlies attorney disqualification rules:
. . . a client, in order to receive the best legal advice, should be
allowed to be assured that any private or personal disclosure
made to her lawyer will be kept in the strictest confidence . . . .
A sacred aspect of the legal profession is that a client must be
able to depend on their lawyer; that a client may confer with
their lawyer with the “absolute assurance that that lawyer's
tongue is tied from ever discussing it.” . . . . Anything less than
the strictest safeguarding by the lawyer of a client's confidences
would irreparably erode the sanctity of the lawyer-client
relationship.
(Quoting from State ex rel. Ogden Newspapers, Inc. v. Wilkes, 198 W.Va. 587, 590, 482
S.E.2d 204, 207 (1996) (per curiam) (ellipses in original). In Healthnet v. Healthnet, 289 F.Supp. 755, 758 (S.D. W.Va. 2003) Judge
Goodwin stated:
. . . I continue to adhere to the rule that courts determining
whether to disqualify counsel should act to prevent the
appearance of impropriety and resolve doubts in favor of
disqualification. I interpret the “appearance of impropriety”
standard to include an objective component: the moving party
must show that a reasonable former client would be concerned
by the conflict.
(Citations omitted.)
This Court recently stated in State ex rel. Cosenza v. Hill, 216 W.Va. 482, 488, 607 S.E.2d 811, 817 (2004) (upholding a disqualification order even though there was no actual evidence of any impropriety):
As the repository of public trust and confidence in the judicial system, courts are given broad discretion to disqualify counsel when their continued representation of a client threatens the integrity of the legal profession:
A circuit court, upon motion of a party, by its
inherent power to do what is reasonably necessary
for the administration of justice, may disqualify a
lawyer from a case because the lawyer's
representation in the case presents a conflict of
interest where the conflict is such as clearly to call
in question the fair or efficient administration of
justice. Such motion should be viewed with
extreme caution because of the interference with
the lawyer-client relationship.
(Citations omitted.)
We continued in Cosenza by quoting the following language from
United
States v. Clarkson, 567 F.2d 270, 273 n. 3 (4th Cir.1977):
In determining whether to disqualify counsel for conflict of
interest, the trial court is not to weigh the circumstances “with
hair-splitting nicety” but, in the proper exercise of its
supervisory power over the members of the bar and with a view
of preventing “the appearance of impropriety,” it is to resolve all
doubts in favor of disqualification.
Id. (Citations omitted.)
In Allied Realty of St. Paul, Inc. v. Exchange National Bank, 283 F.Supp. 464
(D.C. Minn. 1968), the court said:
Many a lawyer who has served with the government has an
advantage when he enters private practice because he has
acquired a working knowledge of the department in which he
was employed, has learned the procedures, the governing
substantive and statutory law and is to a greater or lesser degree
an expert in the field in which he was engaged. Certainly this is
perfectly proper and ethical. Were it not so, it would be a
distinct deterrant [sic] to lawyers ever to accept employment
with the government. This is distinguishable, however, from a
situation where, in addition, a former government lawyer is
employed and is expected to bring with him and into the
proceedings a personal knowledge of a particular matter - for
which the government paid him while he was learning it and for
which now the client who employs him theoretically will not
have to pay.
(Emphasis added.) The emphasized language seems to be an apt description of Mr. Cassell's situation in connection with the Thorn Hill CUP application.
The BZA believes that its former lawyer may not permissibly move from the closed chambers of the BZA to the law firm conference room _ and then in that conference room advise his new client about the same application that he had worked on while representing the BZA. The reasonable-client-centered approach discussed by Judge Goodwin in Healthnet, supra, and echoed in the foregoing-quoted authority supports the position of the BZA.
The circuit court also concluded in the instant case that the legal advice and counsel that Mr. Cassell gave the BZA in connection with Thorn Hill's CUP applications was “general advice” and “not the type of confidence” that gives rise to disqualification concerns. (See footnote 13) In making this ruling, the circuit court relied on the testimony of the vice-chair of the BZA, who could not recall any particular advice given by Mr. Cassell at executive session meetings (that took place many months or years earlier), or any specific “secrets or confidences” that had been shared with Mr. Cassell. (See footnote 14)
This conclusion by the circuit court placed an improper burden on the client BZA to recall and divulge particular confidences and instances of advice and counsel by its former attorney, and is contrary to this Court's holding that:
Once a former client establishes that the attorney is
representing another party in a substantially related matter, the
former client need not demonstrate that he divulged confidential
information to the attorney as this will be presumed.
Syllabus Point 4, State ex rel. McLanahan v. Hamilton, 189 W. Va. 290, 430 S.E.2d 569
(1993). Cf. SIPS v. Vigman, 587 F.Supp. 1358 (C.D. Cal. 1984). (See footnote 15)