State of West Virginia ex rel. Rachel E. Romano, Harrison County Prosecuting Attorney, Petitioner,
West Virginia Office of Disciplinary Counsel and West Virginia Lawyer Disciplinary Board, Respondents.
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
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
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 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.
three years after Ms. Romano first began serving as the
Prosecuting Attorney, she received an "Informal
Complaint" 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. 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 that precludes your 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
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');">210 W.Va. 413, 557 S.E.2d 820 (2001),
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.
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 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).
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.
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,
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.
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');">231 W.Va. 334, 338, 745 S.E.2d 225, 229 (2013).
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');">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');">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);