Family Court May Disqualify Counsel
The West Virginia Supreme Court of Appeals upheld the authority of a family court judge to disqualify counsel
In this appeal, we are asked to decide whether a family court has the authority to disqualify an attorney appearing before it. Aaron W., the petitioner here and below, appeals from the Circuit Court of Kanawha County’s January 21, 2020 order denying his petition for writ of prohibition. In his request for prohibitory relief, Aaron sought to prevent the Honorable Robert M. Montgomery, Judge of the Family Court of Kanawha County, and respondent here and below, from holding a hearing on or otherwise deciding the motion to disqualify Aaron’s counsel that was filed in the family court proceedings by the other respondent here and below, Evelyn W. On appeal to this Court, Aaron contends that the limited jurisdiction of family courts does not allow them to consider disqualification motions, while Evelyn responds that family courts have the inherent authority to disqualify attorneys in cases over which the family courts preside. Upon a review of the parties’ briefs and oral arguments, the appendix record, and the pertinent authorities, we find that the family courts of this State have the authority to disqualify attorneys appearing before them. Therefore, we affirm the circuit court’s order reaching this same conclusion.
The issue arose in divorce litigation at a time when the wife was pro se
The husband’s counsel, Mr. Webb, previously had represented both the husband and the wife in a civil action against the Kanawha County Board of Education (“BOE”) in which the husband sought to recover for injuries he allegedly had sustained in an automobile accident; the wife joined the husband’s suit, seeking recovery for loss of consortium. Near, but prior to, the conclusion of the divorce proceedings, Mr. Webb obtained the wife’s waiver of her claim for loss of consortium based upon representations that the BOE case likely would not result in a recovery; shortly thereafter, and after the wife had been dismissed from the civil suit, the husband reached a confidential settlement with the BOE, which was not disclosed to the wife. The family court then held proceedings regarding the division of the parties’ property incident to their divorce, and the wife testified that she waived any claim she may have to proceeds of the husband’s BOE civil suit. On July 10, 2018, the family court entered its final divorce order equitably distributing the parties’ property, which did not include the husband’s BOE settlement proceeds. This order was not appealed by either party.
The wife then retained counsel, who sought a hearing on the alleged conflict of interest. The husband contended that the court lacked authority to hold a hearing.
The court here
Because the family court has the jurisdictional authority to hear and rule upon the wife’s disqualification motion, we find that the circuit court correctly denied the husband’s petition for writ of prohibition seeking to prevent the family court from hearing or deciding said motion.
(Mike Frisch)