What should a judge do after learning of a possible lawyer conflict in a pending divorce case?
Apply this to your situation
This page answers the general question as of 2014. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
In a divorce case, one spouse’s lawyer had previously represented the other spouse in land matters and had co-owned property with that spouse. The judge asked how to handle a possible professional-conduct conflict.
A majority of the Commission applied former Canon 3D(2) and directed the judge to raise the discovered facts with both parties, verify the understanding, and permit appropriate action. A minority thought the Canon already answered the question and the Commission need not issue an opinion.
In practice
The majority’s opinion calls for presenting the discovered facts to both sides and allowing a response.
Common questions
Q: What did the majority direct?
A: Raise the facts with both parties, confirm the understanding, and allow each side to act.
Q: Was the Commission unanimous?
A: No. A minority believed no advisory opinion was needed because the Canon already provided direction.
Background and rules framework
Former Canon 3D(2) concerns appropriate judicial action on information suggesting a substantial likelihood of lawyer misconduct. The opinion also cites the comment to lawyer Rule 1.7 on judicial review of neglected conflict duties.
Citations and references
West Virginia Code of Judicial Conduct (former):
- Canon 3D(2), possible lawyer misconduct.
Lawyer rule cited:
- West Virginia Rules of Professional Conduct 1.7 and Comment, lawyer conflicts.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2014-02, redacted
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169 • FAX (304) 558-0831
January 14, 2014
Re: JIC Advisory Opinion 2014-02.
Dear
Your recent request for an advisory opuuon was reviewed by the Judicial Investigation C01runission. The factual scenario giving rise to your request is as follows: You are presently presiding over a divorce case where the w ife's counsel had previously represented the husband in land transactions. Fmihennore, the financial disclosmes indicate that the wife's counsel and the husband are/were co- owners of more than one parcel of land. You believe this may raise a conflict of interest issue pursuant to Rule 1.7 of the Rules of Professional Conduct. You recognize that the C01runent to Rule 1.7 primarily places the responsibility for resolving attorney conflicts with the lawyer unde1iaking the representation. You "perceive that either the wife or the husband may be harmed by this conflict and/or that the conflict may call into question the fair and efficient administration of justice." You want to know what your responsibilities are in such a situation.
Canon 3D(2) of the Code of Judicial Conduct provides that "[a] judge who receives information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct should take appropriate action." The C01runentruy to the provision states that " [a]ppropriate action may include direct communication with the ... lawyer who has committed the violation" or it may include other direct action that is available. Indeed, the Coimnent to Rule 1.7 of the Rules of Professional Conduct also states that "in litigation, a comi may raise the question when there is reason to infer that the lawyer has neglected the responsibility."
Based upon the foregoing, a majority of the Commission is of the opinion that you should raise the facts that you have uncovered with both pa1iies to confirm your understanding of them and give each side an opportunity to take appropriate action. A minority of the Commission members believe that the Canon and its Comment give specific direction to a judge and the Commission should not have issued an Advis01y Opinion in response to your request.
JIC Advisory Opinion 2014-02
January 14, 2014
Page2
We hope this opinion fully addresses the issue which you have raised.
Ronald E. Wilson, Chairperson
Judicial Investigation Commission
REW/tat
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