Whom does a state-paid West Virginia Human Rights Commission lawyer represent, the Commission or the complainant, and can the Commission waive the conflict?

Plain-English summary

Counsel for the West Virginia Human Rights Commission asked two related questions: whether attorneys hired and paid by the Commission have potentially differing interests from a complainant seeking individual relief, and whether the Commission can relieve its state-paid lawyers of the duty to represent the Commission by agreement. The questions had been raised in the ongoing Allen v. State of West Virginia Human Rights Commission litigation, where the Supreme Court of Appeals suggested the Committee on Legal Ethics consider them first.

On the first question, the Committee concluded that once the investigative and probable-cause stages have passed, the statutory scheme requires the state-paid lawyer to become the advocate for the complainant, but only because at that point the interests of the complainant and the Commission are identical. So long as that is true, consideration of the Canon 5 "loyalty conflict" provisions is unnecessary, and the Commission may direct its own lawyers or the Attorney General's staff to advocate zealously for the complainant's position without the Commission directing the lawyer's professional judgment (citing DR 5-107(B)). The Committee added that, as a matter of basic fairness, the state-paid lawyer must tell complainants at first contact that the representation is limited to the hearing and lasts only so long as the Commission supports the claim, and that the lawyer's primary client, by law, is the Commission.

On the second question, the Committee found the answer difficult. It has generally held that governmental conflicts cannot be waived absent clear statutory or constitutional authority, while recognizing that West Virginia public policy (as expressed in State ex rel. Sowa v. Sommerville) favors realizing important individual rights over an inflexible application of loyalty-conflict rules. Given the statutory duty in W. Va. Code § 5-11-7 to represent the Commission, and the absence of any statute authorizing the Commission to waive conflicts, the Committee concluded that whether the Commission can release its lawyers from the duty of loyalty is a matter of statutory interpretation outside the Committee's authority: if the Commission has that authority, it may release counsel; if not, counsel must treat the Commission as their primary client.

Currency note

This opinion was issued on January 10, 1986 (under opinion number 85-4), 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: Whom does a Human Rights Commission state-paid lawyer represent at the hearing?

A: Per the opinion, after the probable-cause stage the lawyer must advocate for the complainant, because the statutory scheme makes the complainant's and the Commission's interests identical at that point; the Commission remains the primary client by law.

Q: What must the lawyer tell the complainant?

A: The opinion concluded the lawyer must tell complainants at the first contact that the representation is limited to the hearing and lasts only so long as the Commission supports the claim, and that their primary client, by law, is the Commission.

Q: Can the Commission waive the conflict and release its lawyers from representing it?

A: The opinion treated this as a statutory question outside the Committee's authority. If the Commission has authority under law or public policy to release conflicted counsel, it may; if it lacks that authority, counsel must regard the Commission as their primary client.

Background and rules framework

The opinion worked through Canon 5 and its Ethical Considerations (EC 5-14 through EC 5-17, EC 5-21 through EC 5-23) on loyalty conflicts and DR 5-107(B) on a third party's direction of a lawyer's professional judgment, but resolved the first question largely on the statutory scheme rather than the ethics rules: W. Va. Code §§ 5-11-7 and 5-11-10, as construed in Allen and Currey, make representation of the complainant at the hearing a nondiscretionary statutory duty. The waiver question turned on statutory authority the Committee declined to resolve, informed by the public-policy reasoning of State ex rel. Sowa v. Sommerville.

Citations and references

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

• DR 5-107(B) (no third-party direction of a lawyer's professional judgment)
• Canon 5; EC 5-14, 5-15, 5-16, 5-17, 5-21, 5-22, 5-23 (loyalty conflicts)

Statutes:

• W. Va. Code § 5-11-7 (1979 Replacement Vol.) (duty to furnish legal services to the Human Rights Commission)
• W. Va. Code § 5-11-10 (hearing on a complaint after a probable-cause finding)

Cases:

• Allen v. State of West Virginia Human Rights Commission, 324 S.E.2d 99 (W. Va. 1984)
• Currey v. West Virginia Human Rights Commission, 273 S.E.2d 77 (W. Va. 1980)
• State ex rel. Sowa v. Sommerville, 280 S.E.2d 85 (W. Va. 1981)

See also

• WVSB Ethics Op. 85-1: Attorneys as hearing examiners
• WVSB Ethics Op. 85-2: Prosecutor's office is not a "law firm" for imputed disqualification
• NY State Bar Op. 489: Legal service organization adverse party

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e3c9fe0f10645e80b.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

L.E.I. 85-4
(January 10, 1986)

POSSIBLE CONFLICTS OF LOYALTY IN HUMAN RIGHTS COMMISSION PROCEEDINGS

By letter of August 2, 1985, counsel for the West Virginia Human Rights Commission has presented two closely-related questions to the Committee on Legal Ethics regarding duties of state-paid lawyers to the Human Rights Commission (hereinafter "H.R.C.") and others during H.R.C. proceedings. The questions presented to the Committee are:

Do attorneys hired and paid by the West Virginia Human Rights Commission (State) have potentially differing interests from that of a complainant (plaintiff) seeking individual relief in the complaint? (This refers to Canon 5 and EC 5-15, -16 and -17 therein.)

a. May the Commission's attorneys still represent the interests of the complainant and the Commission (State) simultaneously at a public hearing after first advising the complainant that in the event a conflict arises, withdrawal of representation of the complainant may become necessary and thereupon have a disruptive effect upon the case? (This refers specifically to Canon 5 and EC 5-14, -15 and -16.)

b. May the state-paid attorneys be relieved of their responsibility in representing the interest of the Commission in light of Canon 5 and EC 5-21, -22 and -23 thereunder by agreement with the Commission?

This question has been previously submitted to the Supreme Court of Appeals by parties to the ongoing litigation styled Allen, et al. v. State of West Virginia Human Rights Commission, et al., 324 S.E.2d 99 (W. Va. 1984). The Court has suggested that the question first be considered by the Committee on Legal Ethics. While the Court's decision in Allen is very helpful, the lack of specific guidance in the statutes necessarily involved in consideration of the question presented cause some considerable difficulty in reaching a confident resolution of such question.

In the Allen decision, the Supreme Court of Appeals substantially bolstered the ability of the H.R.C. to carry out its statutory mandate by holding that "any officer, department or agency of state government has a mandatory duty under West Virginia Code § 5-11-7 (1979 Replacement Vol.) to assist the H.R.C. upon request in its hearings, programs and projects." Syl. Pt. 11, Allen, supra at 102. The Court further held that "the Attorney General has a mandatory duty, under West Virginia Code § 5-11-7 (1979 Replacement Vol.), to furnish all legal services required by the Human Rights Commission." Syl. Pt. 12, Allen, supra at 102. Apparently, the H.R.C. has, since approximately May of 1985, determined to request that the Attorney General handle presentation of an increasing proportion of the complainants' side of cases at the hearing stage, seeking, in the future, to reserve its limited number of staff lawyers for new duties. This situation has accelerated the presentation of the present ethics inquiry. The Attorney General also has the statutory duty to represent the H.R.C. in post-hearing proceedings, whether or not the H.R.C. fully agrees with the view of the complainant.

The statutory scheme is unclear, however, as to the nature and extent of the duty of the state-paid lawyer to the complainant at any point other than the hearing stage. It seems clear to the Committee that once the investigative and probable cause stages have been passed, the statutory law of this State requires the state-paid lawyer to become the advocate for the complainant, but only because under the statutory scheme the interests of the complainant and the H.R.C. are then identical. Unless a mutually-agreeable settlement of the claim occurs after the probable cause finding, there is a nondiscretionary duty for the H.R.C. to hold a hearing and to provide the complainant a lawyer to present the claim. W. Va. Code § 5-11-10; Currey v. West Virginia Human Rights Commission, 273 S.E.2d 77 (W. Va. 1980). In that sense, consideration of the various "loyalty conflict" provisions under Canon 5 of our ethics code is unnecessary. At that point of the proceedings the Commission is authorized to direct its own lawyers or those of the Attorney General's staff to advocate zealously the position of the complainant as its own, and there should be no direction or regulation of the professional judgment of the state-paid advocate at this point by the H.R.C. [DR 5-107(B)] Accordingly, the first portion of the inquiry is answered by the Committee by saying that state-paid lawyers who might later have a duty to represent interests in conflict with those of the complainant are required by law to represent the complainant and the Commission at the public hearing. This is an arrangement of obvious necessity, if arguably dangerous in isolated cases, due to the overwhelming backlog of cases for which the H.R.C. is now responsible.

Absent clear statutory expression of a duty on the part of the H.R.C. to provide counsel to complainants at stages of proceedings other than the hearing stage, it also becomes necessary, as a matter of basic fairness, for state-paid lawyers who simultaneously represent the H.R.C. and complainants to tell the complainants at the first contact that the scope of their representation of complaints is limited to representation at the hearing and so long as the H.R.C. supports their claim but that their primary client, by law, is the H.R.C.

A response to the second portion of the question presented, relating to Commission relief of state-paid lawyers from a duty of representation of the Commission, is very difficult to give. Generally, this Committee has held that governmental conflicts cannot be waived absent clear statutory or constitutional authority to do so. However, the Committee in its opinions has also realized that public policy in West Virginia, as expressed by the Supreme Court of Appeals in State ex rel. Sowa v. Sommerville, 280 S.E.2d 85 (W. Va. 1981), favors realization of important individual rights in preference to an inflexible application of ethics rules relating to loyalty conflicts of lawyers representing the State. In light of the express language in W. Va. Code § 5-11-7 regarding state-paid lawyers' duty to represent the H.R.C. as an entity and in the absence of any statutory provision clearly indicating that the State or the H.R.C. has a duty to provide private counsel to complainants or providing expressly or implicitly that the H.R.C. may waive conflicts, it is not clear to the Committee that the H.R.C. has the authority to release the state-paid lawyers from their duty of representing it. This is a matter of statutory interpretation outside the authority of the Committee. Consequently, the Committee may only state the obvious in response to the last portion of the inquiry presented: If the Commission has authority, under law or public policy, to release conflicted state-paid counsel from their duty of loyalty to the H.R.C., they may certainly do so; if the H.R.C. lacks such authority, then state-paid counsel must regard the H.R.C. as their primary client and must deal with others involved in H.R.C. proceedings, including complainants, accordingly.