DAVIS, Justice:
The petitioners herein, Verizon West Virginia, Inc., and various of its employees (hereinafter collectively "Verizon"),
The facts underlying this original jurisdiction proceeding are straightforward and not disputed by the parties. In 2009, Steptoe filed a lawsuit (hereinafter "Rowh") against Verizon on behalf of a former Verizon employee alleging wrongful termination and violation of the West Virginia Human Rights Act, W. Va.Code § 5-11-1 et seq. Thereafter, in 2010, Steptoe filed a similar lawsuit (hereinafter "Radcliff") on behalf of another Verizon employee. Both of these individuals had worked at Verizon's call center in Clarksburg, West Virginia.
During the course of the Rowh litigation, the parties entered into an agreed protective order to secure the confidentiality of certain documents disclosed in discovery. A similar agreed protective order was entered in the Radcliff proceedings, with the additional stipulation that documents produced in Rowh, and subject to the protective order therein, nevertheless could also be used in Radcliff in an effort to avoid unnecessary costs of duplication. In essence, the protective orders restricted the use of the confidential information subject thereto to the proceedings in which the documents were produced; prohibited their use for other purposes (with the exception of the caveat in Radcliff); and, required that, upon the conclusion of the litigation, the documents must be returned to their producer or may be retained as long as their continued confidentiality is ensured. The orders did, however, permit the disclosure of the protected information in response to a court order or as required by operation of law.
Both the Rowh and Radcliff lawsuits were resolved through the entry of confidential settlement agreements. The terms of these agreements prohibited the parties from divulging the nature, substance, or amount of the settlements and further prohibited the
While the Radcliff litigation was concluding, Steptoe filed lawsuits on behalf of nine other former Verizon employees, the Plaintiff Employees herein, who also had worked at its Clarksburg call center, alleging that Verizon had engaged in employment discrimination against them based upon their disabilities or perceived disabilities. Steptoe additionally filed two class action lawsuits alleging the same claims. Thereafter, the circuit court consolidated all of these cases. During the beginning stages of the current lawsuits, Mr. Rector, a Steptoe attorney who had represented the plaintiffs in the two prior, settled cases against Verizon, indicated that he might use some of the documents produced in discovery in the Rowh proceedings in the current cases. It appears that Mr. Rector believed that the parties would enter an agreed protective order in the current lawsuits similar to the one entered in the Radcliff case that had permitted the parties to use the Rowh discovery in the Radcliff case to avoid the substantial costs of duplication. Verizon, however, did not agree to the entry of a protective order with provisions similar to those contained in the Radcliff order.
The circuit court held a hearing on Verizon's disqualification motion. By order entered February 24, 2012, the circuit court held in abeyance its ruling on Verizon's disqualification motion until Steptoe had consulted with the Rowh and Radcliff plaintiffs and obtained their consent to its continued representation of the Plaintiff Employees. In summary, the circuit court addressed its concerns regarding a potential conflict of interest under Rule 1.7(b) of the West Virginia Rules of Professional Conduct,
Next, the circuit court considered Rule 1.9,
Finally, the circuit court contemplated Steptoe's argument that disqualifying it from representing the Plaintiff Employees would violate Rule 5.6(b)
Steptoe thereafter filed a motion requesting the circuit court to reconsider its rulings. However, Steptoe did not obtain or file consents from its two former clients as directed by the circuit court in its February 24, 2012, order. By order entered August 14, 2012, the circuit court granted Verizon's motion to disqualify Steptoe as the Plaintiff Employees' counsel based upon Steptoe's failure to obtain its former clients' consent to its continued representation of the Plaintiff Employees. In its order, the circuit court granted Steptoe an additional ten days within which to obtain such consents in order to avoid disqualification. On August 20, 2012, Steptoe filed consents from its two former clients agreeing to Steptoe's representation of the current Plaintiff Employees. As a result, the circuit court, by order entered August 24, 2012, denied Verizon's motion to disqualify Steptoe as counsel for the Plaintiff Employees. Verizon then filed a motion requesting the circuit court to clarify or reconsider its ruling, which motion the circuit court denied by order entered October 1, 2012. From these adverse rulings, Verizon now seeks a writ of prohibition from this Court.
Verizon requests this Court to issue a writ of prohibition to prevent the Circuit Court of Harrison County from enforcing its August 24, 2012, order permitting Steptoe to continue its representation of the Plaintiff Employees. We previously have held that "[a] party aggrieved by a lower court's decision on a motion to disqualify an attorney may properly challenge the lower court's decision by way of a petition for a writ of prohibition." Syl. pt. 1, State ex rel. Bluestone Coal Corp. v. Mazzone, 226 W.Va. 148, 697 S.E.2d 740 (2010). Nevertheless, prohibition remains an extraordinary remedy, and "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va.Code 53-1-1." Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). The following factors guide our consideration of the propriety of prohibitory relief in a particular case:
Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). With these guidelines in mind, we will consider whether Verizon is entitled to the writ of prohibition it has requested from this Court.
In the underlying proceedings, the circuit court denied Verizon's motion to disqualify Steptoe from representing its current clients, the Plaintiff Employees, in their pending wrongful termination case despite Steptoe's prior representation of former clients who alleged the same claims against the same employer, Verizon. We previously have held that
Syl. pt. 1, Garlow v. Zakaib, 186 W.Va. 457, 413 S.E.2d 112 (1991). In denying Verizon's motion to disqualify Steptoe, the circuit court found that Steptoe's representation of its former and current clients did not present a conflict of interest under either Rule 1.7 or 1.9 of the West Virginia Rules of Professional Conduct where both the former and current clients consented, after consultation, to Steptoe's continued representation of its current clients, the Plaintiff Employees. The circuit court also expressed concern that the disqualification of Steptoe would constitute an impermissible restriction on the right to practice law in contravention of West Virginia Rule of Professional Conduct 5.6. We will examine each of these rules to determine whether Verizon is entitled to the writ of prohibition it has requested in this case.
Rule 1.7 of the West Virginia Rules of Professional Conduct addresses general rules regarding conflict of interest. In its entirety, Rule 1.7 provides:
W. Va. R. Prof'l Conduct 1.7.
Pursuant to the express language of West Virginia Rule of Professional Conduct 1.7(b), a lawyer is prohibited from representing a client if such representation "may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests...." W. Va. R. Prof'l Conduct 1.7(b). We previously have interpreted this rule and now hold it to mean that, pursuant to Rule 1.7(b) of the West Virginia Rules of Professional Conduct,
Lawyer Disciplinary Bd. v. Artimez, 208 W.Va. 288, 300, 540 S.E.2d 156, 168 (2000) (citing W. Va. R. Prof'l Conduct 1.7(b)). We also have construed this rule as cautioning that "[a]n attorney should `not be permitted to put himself in a position where, even unconsciously, he will be tempted to "soft pedal" his zeal in furthering the interests of
At issue are the obligations imposed upon Steptoe by the agreed protective orders and confidential settlement agreements entered in the Rowh and Radcliff cases. However, Verizon has not demonstrated that Steptoe has violated either of these provisions, and the terms of these documents simply do not restrict Steptoe's representation of subsequent clients in substantially related matters. Neither do they prohibit Steptoe, in the current litigation, from requesting the same information through discovery that Verizon disclosed in the prior cases or from obtaining a new protective order to protect this information once it has been disclosed within the confines of the case sub judice. Moreover, to the extent that Verizon has expressed concern that Steptoe may call its former clients as witnesses in support of its current clients' claims, such concern is unfounded. Both of the confidential settlement agreements entered into in the underlying proceedings expressly permit the employee to disclose the terms thereof "to the extent that she ... has been subpoenaed or otherwise ordered to make such disclosure by a Court ..." or "as compelled by law or Court Order."
In summary, we conclude that neither Steptoe's representation of its former clients nor its agreement to be bound by the protective orders and confidential settlements entered in conjunction with such representation disqualify Steptoe from representing its current clients, the Plaintiff Employees, in their wrongful termination claims against Verizon.
West Virginia Rule of Professional Conduct speaks to conflicts of interests involving an attorney's former client. Rule 1.9 states in full that
W. Va. R. Prof'l Conduct 1.9 (footnotes added).
Rule 1.9(a) of the West Virginia Rules of Professional Conduct precludes an attorney, who previously has represented a client, from representing a subsequent client "in the same or substantially related matter" in which the subsequent client's interests are "materially adverse" to the former client's interests "unless the former client consents after consultation." W. Va. R. Prof'l Conduct 1.9(a). Accord Syl. pt. 2, State ex rel. McClanahan v. Hamilton, 189 W.Va. 290, 430 S.E.2d 569 (1993) ("Rule 1.9(a) of the Rules of Professional Conduct, precludes an attorney who has formerly represented a client in a matter from representing another person in the same or a substantially related matter that is materially adverse to the interest of the former client unless the former client consents after consultation."). Thus,
Syl. pt. 5, State ex rel. Bluestone Coal Corp. v. Mazzone, 226 W.Va. 148, 697 S.E.2d 740 (2010). The facts of the instant case squarely satisfy the first three of these disqualification criteria: attorney representation of a former client, attorney representation of a subsequent client, and both representations involve the same subject matter. Id. However, as we noted with respect to our analysis finding no direct adversity between the interests of Steptoe's former and current clients under Rule 1.7(a), in Section III.A.1., supra, we likewise conclude that the interests of Steptoe's former and current clients also are not "materially adverse" and, thus, disqualification is not required by Rule 1.9(a).
The Comment to Rule 1.9, itself, explains precisely what the material adversity criterion contemplates: "`The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.'" Bluestone Coal, 226 W.Va. at 162, 697 S.E.2d at 754 (quoting W. Va. R. Prof'l Conduct 1.9 cmt.). Thus, to constitute "materially adverse" interests under Rule 1.9(a), the interests of an attorney's former and current clients must be so diametrically opposed as to require the attorney to adopt adversarial or opposite positions in the two representations. Clearly, such diversity of interest is not present in this case where both sets of clients have a common background of employment by the same employer at the same employment location and have asserted the same wrongful termination cause of action against that same employer. Rather than changing sides between the former and subsequent clients, Steptoe has remained steadfast in its representation of, loyalty to, and advocacy for parties plaintiff. Where the interests of an attorney's subsequent client are identical to those of the attorney's former client, by definition there simply cannot be material adversity between the two clients' interests. Absent the satisfaction of this element of the Rule 1.9(a) test, disqualification cannot lie under this rule. Therefore, we deny Verizon's request for a writ of prohibition under Rule 1.9(a) because the factors for
The purpose of Rule 1.9(b) is to preclude an attorney from using information that he/she has obtained while representing a client from later using such information to the former client's detriment. W. Va. R. Prof'l Conduct 1.9(b).
W. Va. R. Prof'l Conduct 1.9 cmt. Thus, Rule 1.9(b)
Bluestone Coal, 226 W.Va. at 158, 697 S.E.2d at 750 (quoting Richard E. Flamm, Lawyer Disqualification: Conflicts of Interest and Other Bases § 7.3, at 126 (2003 & Cum.Supp. 2010) (footnotes omitted)) (emphasis added). In other words, "`[t]he rule concerns itself with the unfair advantage that a lawyer can take of his former client in using adversely to that client information communicated in confidence in the course of the representation.'" State ex rel. Ogden Newspapers, Inc. v. Wilkes, 198 W.Va. 587, 591 n. 9, 482 S.E.2d 204, 208 n. 9 (1996) (per curiam) (hereinafter "Ogden I") (quoting Ullrich v. Hearst Corp., 809 F.Supp. 229, 236 (S.D.N.Y.1992)) (emphasis added).
It is apparent, then, and we so hold, that Rule 1.9(b) of the West Virginia Rules of Professional Conduct has three primary objectives: (1) to safeguard the sanctity of the attorney-client relationship and the confidential information that is shared by a client during the course of an attorney-client relationship; (2) to protect from disclosure the confidential information revealed by a client to his/her attorney during the course of an attorney-client relationship; and (3) to prohibit an attorney from using such confidential information adversely to his/her former client. From the record before us, however, we conclude that the facts and circumstances of the case sub judice do not warrant the disqualification of Steptoe under the tenets of Rule 1.9(b).
First, the protected information about which Verizon has expressed concern in these proceedings is the information that is secured by the agreed protective orders and confidential settlement agreements entered in the Rowh and Radcliff cases. Neither of these documents pertains to information that Steptoe's former clients divulged to it during the course of their attorney-client relationship,
Second, the record does not suggest that Steptoe has disclosed the confidential information it obtained during the course of its representation of its former clients, nor that it intends to do so. The only representations Steptoe has made regarding protected information concern those items protected by the agreed protective orders and confidential settlement agreements in the prior cases. And, to that end, Steptoe has averred that it will not use this information in the case sub judice. As we previously observed, to the extent the impetus for Verizon's disqualification motion is its fervent desire to safeguard the information already secured by the agreed protective orders and the confidential settlement agreements entered in the prior cases, Rule 1.9(b) does not provide any measure of protection therefor. Rather, should Verizon believe that these former agreements have been breached, its proper remedy would be to seek their enforcement in accordance with their own terms. The protections of Rule 1.9(b) are concerned with information that is obtained within the confines of the attorney-client relationship and not with safeguards that are implemented upon the agreement of litigating parties and ratified by the presiding tribunal.
Finally, assuming, arguendo, Steptoe did, or expressed an intention to, divulge information it had received in confidence from Rowh and Radcliff, writ is unlikely that Steptoe would use such information adversely to them insofar as their interests are aligned with the interests of Steptoe's current clients. Having found, however, that Verizon has failed to establish a foundation, under Rule 1.9(b), upon which to base its disqualification motion, we find it unnecessary to further hypothesize as to how, or in what capacity. Steptoe may improperly utilize information that is not at issue in this case.
Rule 5.6 of the West Virginia Rules of Professional Conduct concerns impermissible restrictions upon an attorney's right to practice law. In its entirety, Rule 5.6 directs:
W. Va. R. Prof'l Conduct 5.6.
Rule 5.6(b) of the West Virginia Rules of Professional Conduct prohibits restrictions on an attorney's right to practice law: "A lawyer shall not participate in offering or making ... (b) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a controversy between private parties." W. Va. R. Prof'l
Nevertheless, we are concerned by the manner in which these confidential settlement agreements have been construed during the course of these proceedings and the arguments that have been advanced by Verizon that would, in effect, interpret these agreements as imposing precisely this type of prohibited restriction. Agreed protective orders have been employed in a myriad of cases in this State, and their use has been approved repeatedly by this Court. See, e.g., Syl. pt. 8, State ex rel. State Farm Mut. Auto. Ins. Co. v. Marks, ___ W. Va.___, ___ S.E.2d ___, 2012 WL 5834584 (Nos. 12-0304 & 12-0210 Nov. 15, 2012) ("As part of a court's exclusive authority to manage discovery in its tribunal, a court also may enter protective orders to safeguard the confidentiality of materials disclosed in discovery and to regulate the manner in which such information may be used."); Syl. pt. 4, State ex rel. State Farm Mut. Auto. Ins. Co. v. Bedell, 228 W.Va. 252, 719 S.E.2d 722 (2011) ("Rule 26(c) of the West Virginia Rules of Civil Procedure requires a showing of good cause to support the issuance of a protective order. The party requesting the protective order bears the burden of demonstrating good cause by establishing particular and specific facts; mere conclusory statements are not sufficient to demonstrate good cause."). Likewise, litigation frequently is resolved and concluded through the entry of confidential settlement agreements, and this Court has expressed its preference that cases be resolved through settlement. See, e.g., Syl. pt. 1, Sanders v. Roselawn Mem'l Gardens, Inc., 152 W.Va. 91, 159 S.E.2d 784 (1968) ("The law favors and encourages the resolution of controversies by contracts of compromise and settlement rather than by litigation; and it is the policy of the law to uphold and enforce such contracts if they are fairly made and are not in contravention of some law or public policy."). While this Court has noted with approval the entry of both agreed protective orders and confidential settlement agreements, it does not follow that the terms of either of these instruments may later be assigned such a tortured and contorted construction as to have them say something that they simply do not and, ethically, cannot vis-à-vis an attorney's right to practice law.
We are gravely concerned that the impetus for the underlying motion to disqualify appears to be the use and existence of agreed protective orders and confidential settlement agreements in the litigation between Verizon and Steptoe's former clients. We are more troubled, however, that these seemingly innocuous documents, whose singular purpose is to attribute confidential status to the information subject thereto and to secure such confidentiality, has, instead been used as a poisoned dart to target Steptoe and to preclude it from representing the clients who have chosen Steptoe's attorneys to represent them. The express terms of Rule 5.6(b) expressly prohibit the inclusion of such restrictive language in any type of settlement agreement between parties. However, were we to adopt Verizon's interpretation of these documents' provisions and condone their use to disqualify Steptoe from representing its current clients, we would undoubtedly be affording a construction to the confidential settlement agreements that most certainly would violate the pronouncements of Rule 5.6(b). Such a result would not have only a chilling effect on the practice of law in this State; it would completely annihilate the practices of any and all attorneys who specialize in any area of the law, from workers' compensation and products liability to insurance litigation and employment discrimination, and all areas of the law in between, in which attorneys who specialize in a particular field represent numerous, different clients. That is not to say that the Rules of Professional Conduct must not be followed. Let us be crystal clear that they must be diligently adhered to in order
Ogden I, 198 W.Va. at 591 n. 10, 482 S.E.2d at 208 n. 10 (quoting Garlow v. Zakaib, 186 W.Va. 457, 461, 413 S.E.2d 112, 116 (1991)) (additional citations omitted). "[T]he purpose of the [West Virginia] Rules [of Professional Conduct] can be subverted when they are invoked by opposing parties as procedural weapons." W. Va. R. Prof'l Conduct Scope. While cases warranting the disqualification of counsel do arise, the instant matter, simply, is not one of them. Counsel are reminded to faithfully abide by the Rules of Professional Conduct and to refrain from using these ethical guides to engender and perpetuate hostility between adversaries in litigation.
For the foregoing reasons, the requested writ of prohibition is hereby denied.
Writ Denied.
Similarly, in Hu-Friedy Manufacturing Co., Inc. v. General Electric Co., No. 99 C 0762, 1999 WL 528545 (N.D.Ill. July 19, 1999), the defendant moved to disqualify the plaintiff's counsel because the same counsel had represented another client in litigation against the same defendant in which a protective order and cooperation agreement had been entered. The court rejected the defendant's arguments, concluding that adopting such rationale effectively would "turn[] any protective order barring future use of confidential information that is independently relevant and discoverable in a subsequent action into a restriction on an attorney's right to practice law." Id. at *3. Additionally, the court found that such an interpretation of the protective order is contrary to Rule 5.6(b) and disingenuous insofar as "any reasonably competent attorney would routinely obtain [the same information] in discovery" thus affording counsel "no unfair advantage in this action due to its previous exposure to the confidential information." Id. at *3 (emphasis in original).
Finally, the court in First Impressions Design and Management, Inc. v. All That Style Interiors, Inc., 122 F.Supp.2d 1352, 1354 (S.D.Fla.2000), declined to disqualify defense counsel based upon the appearance of impropriety where defense counsel previously had represented the same defendant in a substantially similar matter against the same plaintiff and where an agreed protective order and a confidential settlement agreement had been entered in the prior litigation. Ruling that disqualification was not warranted, the court observed that the plaintiff "could not point to a specifically identifiable impropriety, i.e., any wrongful use of confidential or trade secret information" by defense counsel; that the two prior agreements did not prohibit defense counsel's participation in the instant proceedings; and that "Plaintiff's counsel has not shown that there is a reasonable possibility that there will be a prospective violation of such agreements." Id. at 1354 (footnote omitted). But see Blue Cross & Blue Shield of New Jersey v. Philip Morris, Inc., 53 F.Supp.2d 338 (E.D.N.Y. 1999) (disqualifying counsel based upon appearance of impropriety where counsel had agreed to refrain from representing defendant in instant proceeding in exchange for adverse party's promise not to oppose counsel's representation of other parties in related litigation).
Other courts also have ruled consistently with our decision in this case. See, e.g., Earnings Performance Grp., Inc. v. Quigley, 124 Fed.Appx. 350 (6th Cir.2005) (determining that, if attorney had signed agreement to refrain from representing parties in future litigation against employer, such agreement most likely would not be enforceable under Michigan Rule of Professional Conduct 5.6(b)); Wolt v. Sherwood, 828 F.Supp. 1562 (D.Utah 1993) (construing settlement agreement as not precluding settling defendant's counsel from later representing nonsettling defendant against same plaintiff and opining that if settlement agreement contained such a restriction, it would violate Utah Rule of Professional Conduct 5.6(b)); Life Care Ctrs. of America v. Smith, 298 Ga.App. 739, 681 S.E.2d 182 (2009) (finding no basis for disqualification of plaintiff's counsel based upon counsel's prior representation of another party plaintiff against same defendant in litigation that was resolved through the entry of a confidential settlement agreement and referencing Georgia Rule of Professional Conduct 5.6(b)). Accord Syl., Jarvis v. Jarvis, 12 Kan.App.2d 799, 758 P.2d 244 (1988) ("An agreement which limits the freedom of a party to choose an attorney is void and unenforceable as against public policy."); Cardillo v. Bloomfield 206 Corp., 411 N.J.Super. 574, 576, 988 A.2d 136, 137 (App.Div. 2010) ("Attorneys may not circumvent the import of RFC 5.6(b) by stating that the settlement of litigation is separate from the agreement to restrict the practice of law where the agreements were negotiated contemporaneously and are interconnected."). See also McPhearson v. The Michaels Co., 117 Cal.Rptr.2d 489, 493, 96 Cal.App.4th 843, 848 (2002) (rejecting court's reasoning in Gilbert in concluding that attorney was not disqualified from representing additional employee against same employer, particularly where both former client employee and subsequent client employee waived any potential conflict and confidentiality clause in former client's settlement agreement did not preclude him from testifying as "percipient witness" for subsequent client). But see Gilbert v. National Corp. for Hous. P'ships, 84 Cal.Rptr.2d 204, 71 Cal.App.4th 1240 (1999) (disqualifying attorney from representing current client employee in litigation against same employer against which attorney had represented former client employees based upon confidential settlement agreement entered in former clients' case).