*1 Johnson, Recht, Arthur M. Recht & respondent. Wheeling, for COMPANY, INC. DAILY GAZETTE NEELY, Chief Justice: ETHICS LEGAL ON COMMITTEE filed its 11 December On BAR. W.VA. STATE OF Company v. Daily (No. 16403). original an mandamus That case was Gazette, brought by The Charleston morning Virginia’s capi- newspaper West 22, 1985. March city, against the West tal require Ethics to Bar’s Committee Dissenting July Opinion open committee to to relating to papers and against of the West nary actions members Daily Bar. we held that under right there disciplinary proceedings and that whenever there is the committee determines that that an ethical probable cause to believe occurred, hearings on violation has charge open must be records, reports, and non- entitled introduced at materials deliberative hearing, including the final action taken. we held that when unethical conduct are dismissed lack public is entitled to probable cause complaint, findings of fact of law that resulted and conclusions dismissal. 1984 the
On December relating Company requested access to files attorney disciplinary proceedings con- its 11 this Court entered ducted before committee, order. The counsel, however, acting through its Rob- Davis, newspaper refused allow ert grounds those files on the to examine files were had confidentiality rules been valid 1984; the 11 December reading of the Court’s from its concluded application of the opinion that the intended holding prospective only. The Court’s petitioning for a con- now here the committee’s tempt citation because of the Gazette comply with what failure is the DiTrapano and A. Court’s Rudolph L. Rebecca believes Jackson, Charleston, granted the rule to show cause ruling. Baitty, DiTrapano & We our 11 December 1984 clarify petitioner.
551 VI, confidentiality. Article 30 compiled anees of applies files § order provided: order was entered. involving allegations proceedings
All by disability of misconduct or the kept confidential until attorney shall be of this Court’s paragraph In the last im- and unless a recommendation for the Committee, held opinion in we v. position of is filed with as follows: by legal eth- the court grant a we ics, respondent attorney requests or the ordering respon- writ of mandamus public, or the investi- that the matter be (1) practices and to conform its dent: gation predicated upon a conviction of is public access to procedures relating to respondent attorney for a crime. All Const., art. requirements of W.Va. participants proceeding in the shall con- opinion in this in 17 as set forth themselves so as to maintain the duct (2) cases; and disciplinary all future proceeding. Any promulgation submit to Court person provisions violates the of this regulations, and bylaws and rules guilty contempt section shall be of of fully comply necessary, which where supreme appeals. Any commit- court sup- [emphasis requirements, such with any employee or of the com- tee member plied by Court] provision may mittee who violates this be recited the The 11 December Court order by provision This removed the board. commanded the opinion’s mandate and deny shall not be construed (1) practices and “to conform its agen- information to authorized relevant to the procedures relating qualifications investigating cies Const., III, candidates, jurisdic- 17 requirements judicial art or to other for ad- investigating qualifications opinion set forth in this in all tions as future or to enforce- cases; sup- practice, law [emphasis mission disciplinary ...” investigating qualifica- agencies question before us plied by The Court]. employment. government tions for ruling on we intended our now whether secretary-treasurer of apply only to those open access to Bar shall transmit brought adjudicated after our nary cases discipline imposed by notice of all order, 1984 or whether December supreme court on an order simply misspoke both Discipline Data Bank' main- National opened to everything that be and intended American Bar Association. by tained today hold public immediately. We the Court that it was the intent of ob- The finds that the committee’s ruling that Daily Gazette v. Committee making our 11 December jections to past pro- future and not cri- The opinion retroactive are well-takén. public. ceedings legal determining a new whether teria syl- are found in retroactive rule should be
II Appalachian point Bradley labus Co., Legal Ethics asserts Power The Committee on held: where we before our order contain material that would to extend full determining following order are to retroactivity, covered our December factors
be First, be manpower time and the nature that extensive considered: be pub- must be de- separate review the files to issue overruled needed to tradi- material If the issue involves a from “deliberative” termined. lic records such as con- confidentiality. tionally settled area of is still entitled to distinguished from argues property tracts or committee also because , torts, rule was not and the new operating under article committee was foreshadowed, retroactivity is less then Bylaws, material was Second, where the overruled justified. assur- supplied to them majority in the presented. I believe the procedural law rather with decision deals restricting wrong substantive, retroactivity ordinarily instant case now than Third, princi- full constitutional readily accorded. be more overruled, decisions, ples when Gazette I. vindicated common law *3 overruling decision be- may result in the restriction, majority the support To effect, since the ing given retroactive decision in I characterizes the usually has a narrower issue factor, departure” “clear coming within the par- likely fewer to involve impact and is only. prospective operation which favors where, hand, Fourth, the other on ties. However, cursory analysis majority’s the involved, are public issues substantial recognize depar- fails that the “clear statutory or constitutional arising from rooted in the notion of ture” criterion is represent a clear de- interpretations is, sub- persons That where have reliance. precedent, parture prior prospective from ef- stantially the relied ordinarily be favored. application prior pronouncements fect of new Fifth, radically the decision more re- detrimentally affect their should previous substantive law departs from I, holding in Prior to our liance. limiting retroac- greater the need for however, even if and witnesses look Finally, this Court tivity. (an unlikely proposi- desired precedent of other courts which IV, tion), they rely upon article could retroactive/prospec- determined have Bylaws Bar for such area the law question in the same tive disposition protection because eventual overruling their decisions. any possibility case that a included arising in the Clearly the before is one case would recommendation in Bradley, discussed fourth instance Court, with the record arising public issue from statu- namely a at becoming publicly that time. accessible interpretations tory or constitutional reason, lawyers For the same who were prior represent departure a from clear per- subject complaints, only of ethical fa- precedent. In that instance rule, really secrecy sons interested only prospective application. vor rely upon continued confidentiali- could not set forth Accordingly, for the reasons ty either. that all records of above we hold insup unwarranted and majority’s before our 11 nary proceedings compiled case, portable present bene decision governed by order shall be pro fiting unethical members Bylaws article fession, peoples’ is a direct affront ruling applica- 11 December 1984 our right constitutionally protected know parts only of files ble courts, includes business of the which 1984. There-' compiled after 11 December per agency of this Court business fore, heretofore to show cause the rule forming quasi-judicial function. See against the issued Committee 17; West Ethics of the West (1981 51-l-4a(d) Replace Code § Bar is dismissed. Vol.). ex Herald See also State rel. Rule dismissed. Hamilton, Company Mail 103, (1980)(Miller, J., writ McGRAW, J., dissenting opinion. files a I ing). Accordingly, that a more submit McGRAW, Justice, dissenting: majority’s appropriate syllabus for * bar, at if decision, opinion would “Brothers preceding be: In our you something wrong before December did Company, Inc. v. 11, secret;’ 1984, it will remain ‘our little aw, among I), (hereinafter question what’s the Constitution retroactivity sought friends?” the relief * Generic. respectfully
dissent. S.E.2d 344
STATE of West BARKER,
James Edward Sr. Court of
June