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Lawyer Disciplinary v. Mcgraw
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 1995 Term
No. 22639
LAWYER DISCIPLINARY BOARD, Complainant
v.
DARRELL V. McGRAW, JR., A MEMBER OF THE WEST VIRGINIA STATE BAR, Respondent
Disciplinary Proceeding
PUBLIC REPRIMAND PLUS COSTS ___________________________________________________
Submitted: March 7, 1995
Filed: June 19, 1995

Sherri D. Goodman
Chief Disciplinary Counsel
Charleston, West Virginia
Attorney for the Complainant

James B. Lees
Hunt, Lees, Farrell & Kessler
Charleston, West Virginia
Robert M. Bastress, Jr.
Morgantown, West Virginia
Attorneys for the Respondent

CHIEF JUSTICE McHUGH delivered the Opinion of the Court.

JUSTICE BROTHERTON did not participate.
JUSTICE NEELY and JUSTICE WORKMAN, deeming themselves disqualified, did not participate.
JUDGE FOX, JUDGE JOLLIFFE and JUDGE SOMMERVILLE sitting by temporary assignment. SYLLABUS BY
THE COURT

1.
Rule 3.7 of the Rules of Lawyer Disciplinary Procedure, effective July 1, 1994, requires the Office of Disciplinary Counsel to prove the allegations of the formal charge by clear and convincing evidence. Prior cases which required that ethics charges be proved by full, preponderating and clear evidence are hereby clarified.

2.
"A de novo standard applies to a review of the adjudicatory record made before the [Lawyer Disciplinary Board] as to questions of law, questions of application of the law to the facts, and questions of appropriate sanctions;

this Court gives respectful consideration to the [Board's] recommendations while ultimately exercising its own independent judgment. On the other hand, substantial deference is given to the [Board's] findings of fact, unless such findings are not supported by reliable, probative, and substantial evidence on the whole record." Syl. pt. 3, Committee on Legal Ethics v. McCorkle, ___ W. Va. ___, 452 S.E.2d 377 (1994).

3.
Unlike the evidentiary attorney-client privilege recognized under West Virginia Rules of Evidence 501, a lawyer's ethical duty of confidentiality under Rule 1.6 of the Rules of Professional Conduct applies to all information relating to representation of a client, protecting more than just "confidences" or "secrets" of a client. The ethical duty of confidentiality is not nullified by the fact that the information is part of a public record or by the fact that someone else is privy to it.

4.
"The Attorney General has the duty to conform his conduct to that prescribed by the rules of professional ethics." Syl. pt. 4, Manchin v. Browning, 170 W. Va. 779, 296 S.E.2d 909 (1982).

5.
"'"'This Court is the final arbiter of legal ethic problems and must make the ultimate decisions about public reprimands, suspensions or annulments of attorneys' licenses to practice law.' Syl. Point 3, Committee on Legal Ethics


v. Blair, [174] W. Va. [494], 327 S.E.2d 671 (1984)." Syl. pt. 1, Committee on Legal Ethics v. Charonis, 184 W. Va.
268, 400 S.E.2d 276 (1990).' Syl. pt. 1, Committee on Legal Ethics v. Ikner, 190 W. Va. 433, 438 S.E.2d 613 (1993)."
Syl. pt. 7, Committee on Legal Ethics v. Karl, ___ W. Va. ___, 449 S.E.2d 277 (1994).
McHugh, Chief Justice:

        In this lawyer disciplinary proceeding, the Lawyer Disciplinary Board for the State of West Virginia (hereinafter "Board")See footnote 1 has found that the respondent, Darrell V. McGraw, Jr., a member of the West Virginia State Bar and the Attorney General of the State of West Virginia, violated Rule 1.6(a) of the Rules of Professional Conduct. The Board recommends that this Court publicly reprimand respondent in open court, pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure.See footnote 2 For the reasons stated below, we adopt the Board's recommendation and order that respondent be publicly reprimanded. We further order that respondent pay $1,713.56 for the costs incurred for this disciplinary proceeding.See footnote 3
I.
        On January 15, 1994, a Statement of Charges was issued against respondent by the Hearing Panel of the Committee on Legal Ethics of the West Virginia State Bar (hereinafter the "Committee"), charging respondent with two violations of Rule 1.6(a) of the Rules of Professional Conduct as well as one violation each of Rule 1.7(b) and Rule 1.2(a). In a written response to the Committee, respondent, through counsel, denied the charges. Following hearings on the matter, held on April 6, 1994 and April 29, 1994, the Full Hearing Panel of the Lawyer Disciplinary Board, on November 12, 1994, adopted the hearing panel subcommittee's findings of fact, conclusions of law and recommendation concerning discipline. A A.
        The underlying litigation giving rise to this disciplinary proceeding began in 1990 when the Division of Natural Resources, by its attorney, the Office of Attorney General, instituted two declaratory judgment actions in Berkeley County Circuit Court against LCS Services, Inc. (hereinafter "LCS"), Chambers of West Virginia, Inc., and Chambers Development Company, Inc.See footnote 4 Following governmental reorganization, the powers, functions and duties previously performed by the Division of Natural Resources were transferred to the Division of Environmental Protection of the Department of Commerce, Labor and Environmental Resources (hereinafter "DEP"), effective July 1, 1992.
        The purpose of the consolidated declaratory judgment actions instituted by the DEP was (1) to prohibit LCS from accepting waste at their landfill in the town of Hedgesville in Berkeley County, West Virginia, until the landfill received site approval from the Berkeley County Solid Waste Authority and (2) to restrict the landfill from accepting more than 9,999 tons of solid waste per month, unless the Berkeley County Commission gave approval to exceed the 9,999 tons per month limit.
        On June 19, 1992, the DEP filed a motion for summary judgment in which it requested that the Circuit Court of Berkeley County require LCS to apply for a certificate of site approval from the Berkeley County Solid Waste Authority and limit it to receiving no more than 9,999 tons of solid waste per month. The DEP's motion for summary judgment was granted on July 29, 1993.
        Following the circuit court's decision on the DEP's motion for summary judgment, attorney Kim Brown Poland,See footnote 5 who serves as regulatory counsel for Chambers Development Company, Inc. (hereinafter "Chambers"), LCS' parent company, contacted the DEP and requested a meeting between the DEP and representatives of Chambers and LCS to discuss, in light of the July 29, 1993 order, the current status of the law concerning landfills like the LCS facility which accept 9,999 tons or less of solid waste per month.         A meeting was scheduled for August 12, 1993. David Callaghan, then Director of the DEP, asked the Deputy Director of the DEP, Ann Spaner,See footnote 6 to attend the meeting. Two representatives of the Office of Waste Management were also asked to attend. Director Callaghan testified that he did not ask counsel from the Office of Attorney General to attend the meeting because he understood the meeting to be about the possible sale of the landfillSee footnote 7 and not about the landfill litigation.See footnote 8 Director Callaghan further testified that the fact that he was meeting with Ms. Poland and representatives of Chambers and LCS was not intended to be confidential.
        At the August 12, 1993 meeting, held at the DEP's offices in Nitro, West Virginia, Ms. Poland advised Director Callaghan and Deputy Director Spaner that LCS had filed a motion, pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure, to amend, alter, correct, clarify and/or reconsider the circuit court's order granting the DEP's motion for summary judgment.See footnote 9 Director Callaghan and Deputy Director Spaner learned of LCS' Rule 59(e) motion for the first time at this meeting even though LCS had already filed it in Berkeley County Circuit Court. Director Callaghan told Ms. Poland that he would discuss LCS' motionSee footnote 10 with litigation counsel from the Attorney General's office. The Lawyer Disciplinary Board found that Director Callaghan was not asked to join in LCS' motion nor did he then agree to do so.
        At the direction of Director Callaghan, Deputy Director Spaner immediately contacted the DEP's litigation counsel, Assistant Attorney General Stephen Van Camp, to tell him about the meeting and that the reason he had not been asked to attend was due to Director Callaghan's now mistaken belief that the meeting was to be about the sale of the landfill and not the landfill litigation. Though Assistant Attorney General Van Camp testified that Deputy Director Spaner directed him to join in LCS' Rule 59(e) motion, Deputy Director Spaner testified that she only wanted to raise the issue with him for discussion. Whichever the case, the Board found that it was, nevertheless, reasonable for Assistant Attorney General Van Camp to conclude that the DEP had changed its position on the issue of whether LCS should be required to obtain local site approval for its landfill.
         On August 12, 1993, the same day as the aforementioned meeting and subsequent conversation between Deputy Director Spaner and Assistant Attorney General Van Camp, respondent determined that the Office of Attorney General could no longer represent the DEP in the landfill litigation, considering the DEP had, in the respondent's view, changed its position on the site approval requirement.
        Also on that day, respondent telephoned Christina Hogbin, a Berkeley County resident who lives two miles from the landfill and who had attended hearings on the landfill and had followed the DEP's lawsuit against LCS.See footnote 11 Chief Disciplinary Counsel Sherri Goodman, in a letter to respondent concerning the ethics complaint which had been filed against him, asked him about his conversation with Ms. Hogbin. In a written response, respondent, through counsel, stated:
        General McGraw called Ms. Hogbin (for whom he is a trustee) on August 12, 1993, and informed her that Director Callaghan had decided to resist at least part of [Berkeley County] Judge Wilkes's order granting summary judgment to the [DEP] and that Mr. Callaghan wanted the Office of the Attorney General to support the request of LCS Services (LCS) for reconsideration. Ms. Hogbin asked what she and her group of citizens could do. General McGraw suggested to her that, as DEP had made a political decision, the only effective way to alter it was through the political process, and that meant persuading their legislators to attempt to influence the Governor and DEP.
Respondent testified that his response to Chief Disciplinary Counsel's question was a demurrer and that, if in fact he did suggest to Ms. Hogbin and her fellow citizen activists that they contact their legislators, he had the right to do so.See footnote 12  Furthermore, in his Answer to the Statement of Charges, respondent, through counsel, stated:
n.
Upon being apprised of [the DEP's change in position concerning site approval for the landfill], the Attorney General determined that such an order from DEP was repugnant, immoral, unethical, and totally improper. The Attorney General further determined that he would be unable to adequately represent DEP as required by law because such representation would create conflicts and/or adversity. The Attorney General further decided that he must therefore withdraw from such representation and appoint a prosecuting attorney to represent DEP consistent with W. Va. Code

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