Can a lawyer who is also a state legislator represent a private client in a claim before the West Virginia Court of Claims?

Plain-English summary

The Committee was asked whether a lawyer who is a member of the West Virginia Legislature could represent a client in a matter before the West Virginia Court of Claims. It distinguished its prior Court of Claims opinions: in LEI 83-8 it allowed a state-employed attorney to pursue a Crime Victims Reparations Act claim, and in LEI 83-4 it found a conflict barring a prosecuting attorney from such representation. Here the Committee found the representation improper for a different reason, that the lawyer-legislator would in effect be "judge of his client's case" and would control the very forum in which the case is presented.

The Committee described the structure of the Court of Claims as an arm of the Legislature: it sits as a three-judge panel to hear claims against the state, make findings of fact, and award monetary damages subject to legislative approval; its judges are appointed by the President of the Senate and the Speaker of the House with the Senate's consent; the Legislature fixes the salaries and expenses of the court and its personnel; and the court's awards are submitted to the Legislature as part of the Governor's budget request (citing provisions of W. Va. Code Chapter 14, Article 2).

On those facts the Committee applied several Disciplinary Rules and Ethical Considerations. It cited DR 7-110(A) (a lawyer shall not give or lend anything of value to a judge or tribunal official except as permitted), EC 7-16 (a lawyer attempting to influence legislation must identify himself and his client), DR 9-101(B) (no private employment in a matter in which the lawyer had substantial responsibility as a public employee), DR 8-101(A)(2) (a lawyer holding public office shall not use that position to influence a tribunal in favor of himself or a client), and EC 8-8 (a public-officer lawyer should not engage in activities in which personal or professional interests conflict with official duties). The Committee said the lawyer-legislator could not help but influence the tribunal, because its decisions can be effected only through legislative action, and that the lawyer's public duty of fiscal responsibility collides with the duty to obtain as high an award as possible for the client.

The Committee pointed to Michigan State Bar opinions reaching a similar result and treated Young v. Champion as dispositive: an attorney who, as an elected official, serves as the employer of a judge may properly be prevented from practicing before that court. It noted that the Court of Claims is the only West Virginia forum for claims against the state, so recusal of a judge would deprive the plaintiff of any opportunity to be heard, and it declined to advise judges on judicial-conduct questions, treating that as a matter for the Judicial Inquiry Commission. It concluded that an attorney should not have effective control of the tribunal in which his case is heard, so participation before the Court of Claims during the lawyer's tenure as a legislator is improper.

Currency note

This opinion was issued in 1984, before West Virginia replaced its Code of Professional Responsibility (the DR and EC provisions cited here) with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer-legislator represent a client before the West Virginia Court of Claims?

A: No. The opinion concluded that participation before the Court of Claims during the lawyer's tenure as a legislator is improper, because the court is an arm of the Legislature and the lawyer would in effect control the tribunal hearing the client's case.

Q: How is this different from the Committee's earlier Court of Claims opinions?

A: The opinion explained that LEI 83-8 (state attorney pursuing a Crime Victims Reparations Act claim) and LEI 83-4 (prosecutor barred by conflict) turned on conflicts of loyalty, while LEI 83-11 turned on the lawyer-legislator's control over the tribunal itself, a different and, the Committee said, more fundamental problem.

Q: What made the Court of Claims central to the analysis?

A: The opinion described the Court of Claims as an arm of the Legislature whose judges are legislatively appointed, whose budget the Legislature sets, and whose awards require legislative approval, so a sitting legislator appearing there would be influencing a forum he helps control.

Background and rules framework

The opinion read the Code of Professional Responsibility provisions on public office and influence on tribunals together: DR 7-110(A) and DR 8-101(A)(2) address a lawyer's improper influence over, or use of public position before, a tribunal; DR 9-101(B) limits private employment connected to prior public responsibility; and EC 7-16 and EC 8-8 address a public-officer lawyer's duty to avoid conflicts between personal interests and official duties. It applied those rules against the statutory structure of the Court of Claims under W. Va. Code Chapter 14, Article 2.

Citations and references

Rules of Professional Conduct (Code of Professional Responsibility, as cited):

• DR 7-110(A) (lawyer shall not give or lend anything of value to a judge or tribunal official except as permitted)
• DR 8-101(A)(2) (lawyer holding public office shall not use the position to influence a tribunal in favor of self or client)
• DR 9-101(B) (no private employment in a matter in which the lawyer had substantial responsibility as a public employee)
• EC 7-16 (lawyer attempting to influence legislation must identify himself and his client if not privileged)
• EC 8-8 (public-officer lawyer should avoid activities conflicting with official duties)

Statutes:

• W. Va. Code §§ 14-2-4, 14-2-5, 14-2-7, 14-2-8, 14-2-12, 14-2-23 (structure, appointment, funding, and awards of the Court of Claims)

Cases:

• Young v. Champion, 142 Ga. 687, 236 S.E.2d 787 (1977), elected official who employs a judge may be barred from practicing before that court

Other opinions cited:

• WVSB LEI 83-8 (Oct. 21, 1983): state-employed attorney may pursue a Crime Victims Reparations Act claim before the Court of Claims
• WVSB LEI 83-4 (June 3, 1983): prosecuting attorney barred by conflict from representing a claimant before the Court of Claims
• Michigan State Bar opinions, 38 Mich. S.B.J. 109 (May 1959) (Op. 83) and 38 Mich. S.B.J. 114 (May 1959) (Op. 87): lawyer-legislator may not accept employment from a client whose cause is directly affected by legislative action

See also

• WVSB Ethics Op. 83-4: Prosecutor representing a claimant before the Court of Claims
• WVSB Ethics Op. 84-5: Conflicts of prosecutors in the same private law firm
• WVSB Ethics Op. 86-3: Prosecutor representing a client previously investigated

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e8f665523a15ace4d.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

L.E.I. 83-11

(January 20, 1984)

PROPRIETY OF LAWYER-LEGISLATOR'S REPRESENTATION OF A CLIENT BEFORE THE COURT OF CLAIMS

The Committee has been requested to render an opinion regarding the propriety of a lawyer who is a member of the West Virginia Legislature representing a client in a matter before the Court of Claims of West Virginia.

In a previous decision the Committee has ruled that an attorney employed by the state may represent a client before the Court of Claims for the limited purpose of obtaining reparations pursuant to the West Virginia Crime Victims Reparations Act, L.E.I. 83-8 (October 21, 1983). The Committee has also concluded, however, that a conflict exists in the representation of a client before the Court of Claims by a prosecuting attorney. L.E.I. 83-4 (June 3, 1983).

We conclude that representation is also improper in this case but for vastly different reasons. While the representation in the previous cases involved a real or potential conflict of interest sufficient to dilute the attorney's loyalty to one or more of his clients or potential clients, the situation presented here involves an attorney's being judge of his client's case and, indeed, controlling the very forum in which the attorney presents the case.

The West Virginia Court of Claims is an arm of the West Virginia Legislature. It sits as a three judge panel to hear claims against the state, to make findings of fact and to award monetary damages subject to the approval of the Legislature. W. Va. Code §§ 14-2-4 and 14-2-12. Judges are appointed by the President of the Senate and the Speaker of the House of Delegates, by and with the advice and consent of the Senate. W. Va. Code § 14-2-4.

The salaries and expenses of court administrative personnel and of the judges themselves are fixed by the Legislature as follows: for administrative personnel and court expenses, through the Legislature's Joint Committee on Government and Finance, W. Va. Code §§ 14-2-5 and 14-2-7; for judges and their expenses, by Act of the Legislature, W. Va. Code § 14-2-8. "Awards" made by the court are then submitted to the Legislature as part of the Governor's budget request. W. Va. Code § 14-2-23.

Clearly, in such a situation a lawyer who is also a member of the West Virginia Legislature is able to exercise the sort of undue influence contemplated by DR 7-110(A):

DR 7-110(A). A lawyer shall not give or lend anything of value to a judge, official, or employee of a tribunal except as permitted by Section C(4) of Canon 5 of the Code of Judicial Conduct, but a lawyer may make a contribution to the campaign fund of a candidate for judicial office in conformity with Section B(2) under Canon 7 of the Code of Judicial Conduct.

EC 7-16 requires a lawyer who is attempting to influence legislation to "identify himself and his client, if identity of his client is not privileged . . ." The obvious intent of this provision is to make the lawyer's interest clear to all parties concerned with the legislative process in the spirit of fair play.

In addition, DR 9-101(B) states that "a lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee." While this Disciplinary Rule speaks in the past tense, we think the principle is even more clearly applicable in this situation, where the attorney is currently responsible for making the ultimate decision on behalf of the public in his own private case.

Finally, DR 8-101(A)(2) declares that "a lawyer who holds public office shall not . . . use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client." In this situation, the lawyer-legislator cannot help but influence the tribunal's actions since the tribunal's decisions can be effected only through action of the Legislature. EC 8-8 makes this duty even clearer: ". . . A lawyer who is a public officer, whether full or part-time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties." The conflict here is obvious: the lawyer's responsibility to the public to be fiscally responsible collides head-on with the lawyer's responsibility to obtain as high an award as possible for his client.

In a similar matter the Michigan State Bar has ruled that a lawyer-legislator may not accept employment from a client whose cause is directly affected by action of the Legislature in a manner more specific than as a member of the general public. See 38 Mich. S.B.J. 109 (May 1959) (Opinion 83, July 1944) and 38 Mich. S.B.J. 114 (May 1959) (Opinion 87, April 1945).

Directly on point, an attorney who, in his capacity as an elected official, serves as the employer of a judge may properly be prevented from practicing before the court in question. Young v. Champion, 142 Ga. 687, 236 S.E.2d 787 (1977). In his discretion, the judge may disqualify the attorney rather than recuse himself. Id. While we do not presume to advise judges of the propriety of judicial conduct in this case, deeming that issue to be a matter for the Judicial Inquiry Commission, we note that the Court of Claims is the only forum in West Virginia in which claims against the state may be heard; recusal would deprive the plaintiff of any and all opportunity to be heard.

We consider Young v. Champion to be dispositive of the case at hand. An attorney clearly should not have effective control of the tribunal in which his case is heard, and his participation in proceedings before the Court of Claims during his tenure as a legislator is improper.