State of WV ex rel. Rachel E. Romano v. WV Office of Disciplanary Counsel and WV Lawyer Disciplanary Board ( 2019 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
State of West Virginia ex rel. Rachel E. Romano,
Harrison County Prosecuting Attorney,
Petitioner, FILED
November 20, 2019
released at 3:00 p.m.
vs) No. 19-0448 EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
West Virginia Office of Disciplinary Counsel
and West Virginia Lawyer Disciplinary Board,
Respondents.
MEMORANDUM DECISION
Petitioner, Rachel E. Romano, the Harrison County Prosecuting Attorney (“Ms.
Romano”), by counsel Michael W. Carey and David R. Pogue, endeavors to invoke this
Court’s original jurisdiction in prohibition to prevent the Respondents, the West Virginia
Office of Disciplinary Counsel (“the ODC”) and the West Virginia Lawyer Disciplinary
Board (“the LDB”) (collectively “the Respondents”), who are represented by Ancil G.
Ramey and Rachael L. Fletcher Cipoletti, from taking disciplinary action against her based
upon a purported conflict of interest, under Rule 1.7(a)(2) of the West Virginia Rules of
Professional Conduct (“Rules of Professional Conduct”), arising from her marital
relationship with a Harrison County Deputy Sheriff. The Respondents contend that
prohibition is not proper and would result in an advisory opinion.
Upon consideration of the parties’ briefs, their oral arguments, and the appendix
record, this Court concludes that Ms. Romano lacks standing to seek the requested writ of
prohibition. In order to explain the merits of this procedural determination, this Court has
concluded that a memorandum decision, rather than an order, is appropriate under Rule 21
of the Rules of Appellate Procedure.1
The facts presented in connection with this proceeding are not disputed. In January
2015, while serving as an assistant prosecuting attorney in Harrison County, West Virginia,
Ms. Romano married Corey Heater, who was employed as a Harrison County Deputy
1
We wish to acknowledge the participation in this matter of amicus curiae, the West
Virginia Prosecuting Attorneys Association, represented by Mark A. Sorsaia, the
Prosecuting Attorney for Putnam County, who filed a brief in support of granting a writ of
prohibition to Ms. Romano.
1
Sheriff. Shortly thereafter, in March 2015, Ms. Romano was appointed by the Harrison
County Commission to serve as the Prosecuting Attorney for the county. Ms. Romano
continued to serve as the Appointed Prosecuting Attorney for Harrison County until
November 2016, when she was duly elected to the position of Harrison County Prosecuting
Attorney for a four-year term. Ms. Romano’s husband has remained a Harrison County
Deputy Sheriff throughout the time she has served as either the Appointed or Elected
Prosecuting Attorney for Harrison County.
Nearly three years after Ms. Romano first began serving as the Prosecuting
Attorney, she received an “Informal Complaint”2 from the ODC dated January 17, 2018.
The “Informal Complaint” was accompanied by copies of two indictments returned by the
Harrison County Grand Jury from its May 2017 term, for which Ms. Romano’s husband,
as the investigating officer, had provided the only testimony before the grand jury upon
which the indictments were founded.3 The “Informal Complaint” further expressed that
the Chief Lawyer Disciplinary Counsel for the ODC had “grave concerns” about the
situation and explained to Ms. Romano that, “[a]s the elected prosecutor, you have a
conflict under Rule 1.7(a)(2) of the Rules of Professional Conduct[4] that precludes your
2
The “Informal Complaint” was assigned a number and resembled a formal
document. We note that there is nothing in the West Virginia Rules of Lawyer Disciplinary
Procedure identifying an “Informal Complaint” or explaining the impact of such a
document. During oral argument, counsel for the Respondents clarified that the “Informal
Complaint” was assigned a number merely for record keeping purposes and that the
“Informal Complaint” does not trigger disciplinary proceedings as would the filing of
formal charges.
3
Ms. Romano had not personally presented these cases to the grand jury. Instead,
they were presented by one of her assistant prosecuting attorneys. However, if Ms.
Romano is disqualified from participating in a case due to a conflict, then her subordinate
assistant prosecutors likewise are disqualified. See Syl. pt. 1, Moore v. Starcher, 167
W. Va. 848, 280 S.E.2d 693 (1981) (“As a rule, the disqualification of a prosecuting
attorney operates to disqualify his [or her] assistants.”). In our resolution of this matter,
we do not reach the question of whether Ms. Romano does, in fact, have a conflict.
4
Pursuant to Rule 1.7(a)(2) of the West Virginia Rules of Professional Conduct,
(a) Except as provided in paragraph (b), a lawyer shall not represent a
client if the representation involves a concurrent conflict of interest. A
concurrent conflict of interest exists if:
....
2
office from handling cases where your husband was the investigating officer, or where your
husband has supervisory authority over the officer.” Ms. Romano was asked to provide a
written response within ten days of receiving the “Informal Complaint.”
In a letter responding to the “Informal Complaint,” which was transmitted by United
States mail and by email to the Chief Lawyer Disciplinary Counsel for the ODC, Ms.
Romano explained that, upon marrying Deputy Heater, she reviewed Rule 1.7 and this
Court’s opinion in State v. Ladd, 210 W. Va. 413, 557 S.E.2d 820 (2001),5 and
implemented various procedures she felt were consistent with the Rules of Professional
Conduct. These procedures included routine disclosure of her relationship to Deputy
Heater for purposes of allowing any defendant to cross-examine him regarding his marital
relationship with Ms. Romano. In this regard, Ms. Romano expressed her belief that, as a
result of this routine disclosure, her martial relationship with Deputy Heater was commonly
known by members of the criminal defense bar. In addition, Ms. Romano related that she
excluded herself from personally participating in any matter in which Deputy Heater would
likely be called as a witness, even though she believed she was fully permitted to participate
in such actions pursuant to the Ladd decision. With respect to the two indictments included
with the “Informal Complaint,” Ms. Romano clarified that they had been handled by an
assistant prosecuting attorney.
By prompt email response, Chief Lawyer Disciplinary Counsel stated to Ms.
Romano, in relevant part:
As you are the elected prosecutor, you may not screen yourself off
from a conflict of interest in your office as you described in your letter, thus
please understand that is not an acceptable means to address the conflict of
interest. Moreover, the case you cite deals with disqualification not whether
a conflict of interest is present under the Rule of Professional Conduct exists
[sic] and would subject a lawyer to disciplinary sanction. I would urge you
(2) there is a significant risk that the representation of one or more
clients will be materially limited by the lawyer’s responsibilities to another
client, a former client or a third person or by a personal interest of the lawyer.
Paragraph (b) of Rule 1.7 provides conditions under which a lawyer may represent a client
notwithstanding a conflict. Because we do not reach the question of whether Ms. Romano
has a conflict, we need not discuss this rule in detail in connection with the instant matter.
5
In State v. Ladd, 210 W. Va. 413, 557 S.E.2d 820 (2001), this Court found that the
trial court did not err in denying the defendant’s motion to disqualify an assistant
prosecuting attorney who was married to a local law enforcement officer when that officer
was called to testify on behalf of the State during the defendant’s trial, and where the
assistant prosecuting attorney conducted the examination of her husband.
3
to review case law which distinguishes the same – State ex rel. Clifford v. W.
Virginia Office of Disciplinary Counsel, 231 W. Va. 334, 745 S.E.2d 225
(2013).[6]
If this is your answer in its entirety, please let me know. If so, I will
review and determine whether a formal complaint needs to be docketed
against you.
(Emphasis added).
Ms. Romano then filed her petition for writ of prohibition against the Respondents
in this Court on May 10, 2019. The Respondents filed their joint response, and this Court
issued a rule to show cause on September 5, 2019. On September 26, the Respondents
filed a motion to dismiss. The motion was deferred and oral argument was had on
November 5, 2019.7
In urging this Court to grant her petition for a writ of prohibition, Ms. Romano
contends that prohibition is the proper remedy to resolve this dispute and claims that she
has standing to petition this Court in prohibition because the ODC has sua sponte initiated
an investigation into her possible commission of ethical violations and has threatened to
pursue formal charges should she fail to adhere to the ODC’s position as to the proper
application of Rule 1.7(a)(2) of the Rules of Professional Conduct. Ms. Romano claims
that, in order to comply with the ODC’s position with respect to Rule 1.7(a)(2), she already
has been required to appoint a special prosecutor in at least eight separate matters, and she
anticipates many more such appointments unless this Court grants her requested writ. The
Respondents, in turn, argue that Ms. Romano seeks an improper advisory opinion insofar
as no formal charges have been filed against her at this time.
6
State ex rel. Clifford v. West Virginia Office of Disciplinary Counsel, 231 W. Va.
334, 745 S.E.2d 225 (2013), held in Syllabus point 3:
A circuit court’s denial of a motion to disqualify an attorney in a
pending case based upon an alleged conflict of interest in representing a
client does not foreclose disciplinary action against that attorney based upon
that alleged conflict of interest. The circuit court’s denial of the motion to
disqualify merits consideration in the determination of whether discipline
should be imposed. However, whether the attorney’s conduct warrants
professional discipline is a separate issue, and this Court will exercise its own
independent judgment in determining whether sanctions are warranted.
7
Our disposition of this matter by Memorandum Decision renders moot the motion
to dismiss filed by the ODC and the LDB.
4
With regard to disciplinary proceedings, this Court has advised that “a writ
of prohibition is an extraordinary remedy that is seldom granted in legal
ethics matters.” State ex rel. Scales v. Committee on Legal Ethics of the West
Virginia State Bar, 191 W. Va. 507, 512, 446 S.E.2d 729, 734 (1994) [(per
curiam)].
State ex rel. Clifford v. W. Va. Office of Disciplinary Counsel, 231 W. Va. 334, 338, 745
S.E.2d 225, 229 (2013).
When this Court has found prohibition to be a proper means to address disciplinary
proceedings, we have done so only where a statement of charges has already been issued
by the ODC. Compare Clifford, 231 W. Va. 334, 745 S.E.2d 225 (granting as moulded
petition for writ of prohibition that was filed after statement of charges had been issued
against petitioner); State ex rel. York v. W. Va. Office of Disciplinary Counsel, 231 W. Va.
183, 744 S.E.2d 293 (2013) (addressing petition for writ of prohibition that was filed by
petitioner after statement of charges had been issued, and ultimately denying writ); State
ex rel. Scales v. Comm. on Legal Ethics of W. Va. State Bar, 191 W. Va. 507, 446 S.E.2d
729 (1994) (per curiam) (granting petition for writ of prohibition that was filed after
committee voted to find probable cause and scheduled matter for hearing), with State ex
rel. Morrisey v. W. Va. Office of Disciplinary Counsel, 234 W. Va. 238, 764 S.E.2d 769
(2014) (declining to address petition for writ of prohibition where only informal advisory
opinion had been rendered); State ex rel. Potter v. Office of Disciplinary Counsel, 226
W. Va. 1, 697 S.E.2d 37 (2010) (per curiam) (finding that remedy in prohibition did not lie
in a proceeding against ODC that did not involve an active disciplinary proceeding,
because no quasi-judicial powers were being exercised).
In the absence of formal charges filed pursuant to Rule 2.10 of the West Virginia
Rules of Lawyer Disciplinary Procedure,8 there is no quasi-judicial activity to warrant a
writ of prohibition. See State ex rel. Affiliated Const. Trades v. Vieweg, 205 W. Va. 687,
692, 520 S.E.2d 854, 859 (1999) (per curiam) (“[P]rohibition lies not only to judicial
tribunals, but to inferior ministerial tribunals possessing incidentally judicial powers and
known as quasi-judicial tribunals. . . . This includes administrative tribunals having quasi-
judicial power when acting in a quasi-judicial capacity.” (emphasis added) (internal
citations omitted)). See also State ex rel. Potter, 226 W. Va. at 2 n.1, 697 S.E.2d at 38 n.1
8
Under Rule 2.10 of the West Virginia Rules of Lawyer Disciplinary Procedure,
[a]fter reasonable notice to the Office of Disciplinary Counsel and the
lawyer, the formal charge shall be filed by the Investigative Panel with the
Clerk of the Supreme Court of Appeals. The formal charge shall inform the
lawyer of the right to file a written response within thirty days of the date of
service of the charge as set forth in Rule 2.11.
5
(“Under the Rules of Lawyer Disciplinary Procedure, as established by this Court, the
duties, responsibilities and authority of the Office of Disciplinary Counsel, the respondent
herein, are, in relevant part, prosecutorial in nature and are neither judicial nor quasi-
judicial.”).
In the instant matter, the ODC has issued only an “Informal Complaint.”9 Although
Ms. Romano would have us treat this document as a formal charge, we decline to do so.
The last communication from the Chief Lawyer Disciplinary Counsel to Ms. Romano, by
email, makes clear that no charges have been filed against her. The email expressly states
“[i]f this is your answer in its entirety, please let me know. If so, I will review and
determine whether a formal complaint needs to be docketed against you.” (Emphasis
added).10 Thus, we have no basis upon which to accept a characterization of the document
as being anything more than an informal advisory opinion.
This Court has made clear that prohibition is not a proper method for challenging
an informal advisory opinion. See Morrisey, 234 W. Va. at 245, 764 S.E.2d at 776 (“The
writ of prohibition is not designed to accord relief to a person who merely receives a
requested advisory opinion with which he or she disagrees.” (footnote omitted)).11
Although Morrisey refers to a “requested” advisory opinion, this fact is of no moment. The
critical factor is the lack of standing. Standing to seek a petition for writ of prohibition
requires that the petitioner be injuriously affected by the action the petitioner seeks to
prevent. In this regard, the Morrisey opinion explains:
This Court has held that a petition for a writ of prohibition “may be
maintained by any person injuriously affected by the action which he seeks
to prevent[.]” State ex rel. Gordon Mem’l Hosp. v. West Virginia State Bd.
of Exam’rs for Registered Nurses, 136 W. Va. 88, 105, 66 S.E.2d 1, 11
(1951) (emphasis added; internal quotations and citation omitted). The
“injuriously affected” requirement to obtain a writ of prohibition was set out
9
See note 2, supra, for a discussion of the “Informal Complaint.”
10
To date, no formal charges have been filed against Ms. Romano.
11
Although the Court in State ex rel. Morrisey v. W. Va. Office of Disciplinary
Counsel, 234 W. Va. 238, 764 S.E.2d 769 (2014), found that the petitioner therein, the
West Virginia Attorney General, lacked standing to seek a writ of prohibition to prevent
the ODC from enforcing an informal advisory opinion, the Court nevertheless found it
necessary to address an important collateral issue, i.e., whether county prosecutors had
authority to appoint the West Virginia Attorney General, or any of his assistant attorneys
general, as a special prosecutor. The Morrisey Court was able to address this collateral
issue without resolving the application of the Rules of Professional Conduct to the facts
presented in that case. No such collateral issue is present in the instant matter.
6
succinctly in Syllabus point 6 of State ex rel. Linger v. County Court of
Upshur County, 150 W. Va. 207, 144 S.E.2d 689 (1965), as follows:
As a general rule any person who will be affected or
injured by the proceeding which he seeks to prohibit is entitled
to apply for a writ of prohibition; but a person who has no
interest in such proceeding and whose rights will not be
affected or injured by it can not [sic] do so.
Accord In re Dandy, 224 W. Va. 105, 106 n.1, 680 S.E.2d 120, 121 n.1
(2009).
Morrisey, 234 W. Va. at 244-45, 764 S.E.2d at 775-76. Insofar as the ODC has issued an
advisory opinion and has taken no formal disciplinary action against Ms. Romano, she has
not been injuriously affected and lacks standing to seek a writ of prohibition.12
Moreover, because there is no actual disciplinary proceeding underlying Ms.
Romano’s petition for writ of prohibition, this Court cannot provide Ms. Romano the relief
she seeks without rendering an improper advisory opinion. As we observed in Morrisey,
“‘[c]ourts are not constituted for the purpose of making advisory decrees or resolving
academic disputes. The pleadings and evidence must present a claim of legal right asserted
by one party and denied by the other before jurisdiction of a suit may be taken.’” 234
W. Va. at 246, 764 S.E.2d at 777 (quoting Mainella v. Bd. of Trs. of Policemen’s Pension
or Relief Fund of Fairmont, 126 W. Va. 183, 185-86, 27 S.E.2d 486, 487-88 (1943)).
Hence, “the writ of prohibition cannot be invoked[ ] to secure from th[is] Court . . . an
advisory opinion[.]” Morrisey, 234 W. Va. at 246, 764 S.E.2d at 777 (quotations and
citation omitted). Nevertheless, Ms. Romano’s writ petition raises important issues that
must be resolved. Insofar as we are unable to address the merits of the proper interpretation
of Rule 1.7(a)(2) in the context herein presented without rendering an advisory opinion,
we will endeavor to address the same in our rule making capacity, and we will proceed in
that manner accordingly.
For the reasons set forth above, this case is dismissed as improvidently granted.
12
In a footnote in her brief, Ms. Romano invites this Court to treat her petition as
one seeking mandamus in the event that we conclude prohibition is improper; however,
she fails to provide any argument whatsoever to show that the three elements required for
issuance of a writ of mandamus are present in this matter. Thus, we decline to address it
as such. See, e.g., Morrisey, 234 W. Va. at 242 n.1, 764 S.E.2d at 773 n.1 (declining to
address writ of mandamus where no petition seeking mandamus was filed and issue was
not briefed).
7
Dismissed as improvidently granted.
ISSUED: November 20, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
8