Can a West Virginia lawyer use influence over the sheriff's office to delay or block service of civil process?

Plain-English summary

The Committee issued this opinion to proscribe an attorney from interfering with or causing delay in the service of civil process. It noted that in some small counties of the state, lawyers commonly exerted influence over personnel in the local sheriff's departments to interfere with and delay service of civil process in various proceedings.

The Committee concluded that such conduct violates DR 1-102(A)(5), which bars a lawyer from engaging in conduct prejudicial to the administration of justice, and that in a given case it could also violate DR 7-102(A)(1), which prohibits a lawyer from taking action that the lawyer knows, or that is obvious, would serve merely to harass or maliciously injure another. Citing In re Damron, the opinion stressed that following the local custom and practice of bar members is no substitute for adherence to the standards of the ethics code. On that basis the Committee specifically disapproved of any interference by an attorney with the service of civil process.

Currency note

This opinion was issued in 1985, before West Virginia replaced its Code of Professional Responsibility (the DR rules 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Could a West Virginia lawyer ask the sheriff's office to hold off on serving process?

A: No. The opinion specifically disapproved of any interference by an attorney with the service of civil process, concluding it is conduct prejudicial to the administration of justice under DR 1-102(A)(5).

Q: Did it matter that the practice was common in some counties?

A: No. Relying on In re Damron, the opinion stated that following the custom and practice of bar members in a given locality "is no substitute for adherence to standards set forth in the ethics code."

Q: Which rules did the conduct implicate?

A: DR 1-102(A)(5) (conduct prejudicial to the administration of justice), and, in a given case, DR 7-102(A)(1), which forbids taking action that serves merely to harass or maliciously injure another.

Background and rules framework

The opinion applied two provisions of the then-current Code of Professional Responsibility: DR 1-102(A)(5), the general bar on conduct prejudicial to the administration of justice, and DR 7-102(A)(1), which prohibits a lawyer from filing suit, asserting a position, conducting a defense, delaying a trial, or taking other action that would serve merely to harass or maliciously injure another. It anchored its refusal to defer to local custom in the West Virginia Supreme Court of Appeals' decision in In re Damron.

Citations and references

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

• DR 1-102(A)(5) (conduct prejudicial to the administration of justice)
• DR 7-102(A)(1) (no action merely to harass or maliciously injure)

Cases:

• In re Damron, 45 S.E.2d 741 (W. Va. 1947), local custom is no substitute for adherence to the ethics code

See also

• WVSB Ethics Op. 85-1: Attorneys as hearing examiners
• WVSB Ethics Op. 88-03: Settling to withdraw an ethics complaint

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7ef10bdcfd5fae4498.pdf

Original opinion text

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

OPINIONS OF THE LEGAL ETHICS COMMITTEE

LEGAL ETHICS INQUIRY 85-3
(April 27, 1985)

The Committee on Legal Ethics deems it desirable to issue an advisory opinion proscribing an attorney from interfering with or causing delay in service of civil process.

It has come to the Committee's attention that in certain small counties of this State lawyers commonly exert their influence over personnel in the local sheriff's departments to interfere with and delay service of civil process in various types of legal proceedings.

The West Virginia Supreme Court of Appeals recognized in In re Damron, 45 S.E.2d 741 (W. Va. 1947), that following the custom and practice of bar members in a given locality is no substitute for adherence to standards set forth in the ethics code. The Court in Damron condemned the conduct of the respondent attorney, both as a lawyer and as a notary public, in swearing his divorce client to the form of verification before the divorce complaint was completed and its actual contents known to the client, and in using it subsequently to verify the completed complaint. The Court disapproved such conduct, even though it had theretofore existed for some time among reputable practitioners of the law in the respondent's section of the State.

When an attorney interferes with or causes delay in service of civil process, he violates DR 1-102(A)(5) of the West Virginia Code of Professional Responsibility. That disciplinary rule proscribes a lawyer from engaging in conduct that is prejudicial to the administration of justice. In a given case, such interference with service of civil process could also violate DR 7-102(A)(1), which provides: "In his representation of a client, a lawyer shall not: (1) File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another." Therefore, the Committee on Legal Ethics specifically disapproves of any interference by an attorney with service of civil process.