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State ex rel. Romano v. West Virginia Office of Disciplinary Counsel

Supreme Court of Appeals of West Virginia

November 20, 2019

State of West Virginia ex rel. Rachel E. Romano, Harrison County Prosecuting Attorney, Petitioner,
v.
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 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 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');">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 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.

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).

         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');">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); S ...


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