Writ Denied In Clash Between West Virginia Attorney General And Disciplinary Counsel

The West Virginia Supreme Court of Appeals has denied a writ sought by the state Attorney General against the Office of Disciplinary Counsel.

This matter was brought under the original jurisdiction of this Court by Patrick Morrisey, Attorney General of West Virginia. The Attorney General seeks a writ of prohibition against the Office of Disciplinary Counsel and the West Virginia Lawyer Disciplinary Board (collectively “ODC”) to prevent ODC from enforcing an informal advisory opinion that it issued.  The informal advisory opinion determined that the Attorney General did not have authority to prosecute criminal cases outside of the limited prosecutorial authority granted by W. Va. Code § 5-3-2 (1987) (Repl. Vol. 2013). The ODC also indicated in the informal advisory opinion that Rule 8.4(d) of the Rules of Professional Conduct would be violated if the Attorney General prosecuted criminal cases outside the scope of that which was provided by statute. The ODC further also concluded that Rule 1.7(b) of those rules could potentially be violated.

The court

we have determined that the Attorney General lacked standing to have this Court determine the enforceability of an informal advisory opinion issued by ODC. We also have determined that this Court could not address the merits of the informal advisory opinion because to do so would result in this Court issuing an advisory opinion. As a result of a collateral issue being raised in this proceeding, regarding the authority of the Attorney General to prosecute criminal offenses, we took the extraordinary measure of addressing this issue in this opinion because of its widespread implication to our criminal justice system. In this regard, we have determined that county prosecutors do not have authority under W. Va. Code § 7-7-8 (1987) (Repl. Vol. 2010) to appoint the Attorney General as a special prosecutor. We further conclude that under West Virginia Constitution article 9, § 1 and W. Va. Code § 7-4-1 (1971) (Repl. Vol. 2010) the common law criminal prosecutorial authority of the Attorney General was abolished. After resolving the collateral issue raised in this opinion, the writ of prohibition prayed for is denied.

The issue arose upon the Attorney General’s inquiry into whether a member of the office must resign in order to serve as Mingo County prosecutor.

Justice Benjamin concurred and dissented, reserving the right to file an opinion. (Mike Frisch)