SER Michael T. Clifford v. W.Va. Office of Disciplinary Counsel & W.Va. Lawyer Disciplinary Board
745 S.E.2d 225
W. Va.2013Background
- Petitioner Michael T. Clifford, former Kanawha County Prosecuting Attorney, faced a complaints alleging a conflict of interest in representing Sandra Shaffer in a civil suit arising from the sniper investigation.
- Shaffer’s civil suit was filed in Kanawha County Circuit Court on June 3, 2011, after the sniper investigation that began in 2003.
- Defendants in Shaffer’s suit sought to disqualify Clifford in September 2011; the circuit court denied the motion on September 13, 2011.
- Shaffer later discharged Clifford’s firm from representing her; on September 24, 2012, the Lawyer Disciplinary Board filed charges alleging Rule 1.9(a) and 1.11(a) violations.
- Respondents issued a closing letter and then a formal Statement of Charges; Clifford sought a writ of prohibition in this Court.
- This Court granted the writ, directing dismissal of the charges and holding that a circuit court’s disqualification denial does not foreclose disciplinary action, and sanctions were not warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May disciplinary action proceed after a circuit court denied disqualification? | Disqualification denial forecloses ethics action; SCOWV has final say. | SCOWV may pursue ethics action notwithstanding circuit ruling. | No foreclose; disciplinary action may proceed; writ granted. |
| Do res judicata or collateral estoppel bar the ethics proceeding? | Circuit decision precludes further ethics action. | No privity; doctrines do not apply. | Doctrines do not apply; writ affirmed. |
| Should sanctions be imposed for the alleged ethics violations? | Violations established; sanctions appropriate. | No evidence of merit; pursue disciplinary action. | Sanctions not warranted; charges dismissed. |
Key Cases Cited
- Hinkle v. Black, 164 W.Va. 112 (1979) (grant of prohibition limited to clear, reversible error; economy of remedies)
- Blair, 174 W.Va. 494 (1984) (final arbiter of public disciplinary measures; ultimate decisions rest with Court)
- Frame, 189 W.Va. 641 (1993) (disqualification context; ethics violation despite lack of actual harm)
- Garlow v. Zakaib, 186 W.Va. 457 (1991) (trial court authority to disqualify; Court retains ultimate control of ethics)
- Bluestone Coal Corp. v. Mazzone, 226 W.Va. 148 (2010) (substantial relationship test for Rule 1.9(a) and information risk)
- Keenan v. Hatcher, 210 W.Va. 307 (2001) (Rule 1.9(a) substantial relationship framework)
- Bailey v. Facemire, 186 W.Va. 528 (1991) (Rule 1.11(a) prohibition against public officer involvement)
- McClanahan v. Hamilton, 189 W.Va. 290 (1993) (analysis for Rule 1.9(a) substantial relationship; factors outlined)