WEST VIRGINIA RECORD

CHARLESTON – West Virginia Supreme Court justices have ruled a Keyser lawyer did not violate ethical rules in meeting with both sides of a case involving a deadly car wreck before deciding which side to represent.

The unsigned opinion affirmed the Feb. 19, 2008 actions of a hearing panel for the State Bar's Lawyer Disciplinary Board.

The board found that the Bar's disciplinary counsel had not proven that Daniel R. James violated conduct rules by meeting with both the parents of a man who drove drunk and the parents of the girl who died in an accident as a result before deciding which party to represent.

The ethics of charges were filed against James on Sept. 21, 2007, about two years after the parents of the victim filed their complaint with the State Bar.

The case was rooted in a car wreck that occurred on July 16, 2005. Jonathan McRobie was driving drunk in Mineral County and Josi Reed, 14, was a passenger. Just before the wreck, Reed was talking to her mother, Margaret Reed, on her cell phone.

The two hung up, but either Josi called her mother back or the wreck caused the phone to redial her mother's number. Margaret Reed heard her daughter and events that occurred after the wreck, according to the opinion. Margaret told the investigating officer what she heard in a statement as part of the criminal investigation against McRobie.

Two days after the accident, McRobie's father, Kevin, came to James' law office to ask about James possibly representing his son in any criminal proceedings. James' staff set up an appointment for July 21.

Reed's parents were residents of Florida. Jay Reed came to James' office on July 21 to inquire about possible legal assistance. As James was meeting with McRobie's parents, Jay Reed walked in and did not have an appointment. He was told that James was meeting with McRobie's parents. According to the opinion, Jay Reed said he didn't want to meet with James if he was going to represent McRobie.

Later, James' staff called Jay Reed and told him James wanted to see him in his office. The Reeds met with James. Both Reeds said they remembered telling James that they did not want to meet with him if he was going to represent McRobie. But neither James nor his receptionist recalled this.

During the hour-long meeting between the Reeds and James, they said they gave him some factual information related to the wreck and asked James questions about legal issues. At some point, James called an insurance adjuster and asked him to be fair with the Reeds. James also arranged for the Reeds to meet with the prosecutor of Mineral County. But James did not ask that he be present when the Reeds met with the prosecutor.

There was no fee or retainer agreement signed between James and the Reeds, though Margaret Reed later testified that she felt like she was speaking to James as her lawyer during the meeting. In addition, neither Reed was able to say they told James any information about the wreck that he wouldn't have been able to get through regular discovery.

James testified that he viewed the meeting with the Reeds as an initial consultation. He later decided to represent McRobie, who was later indicted in connection with the wreck.

Though no formal motion for James' disqualification from the case was filed with the circuit court, there were two hearing's scheduled. Before the second hearing, Jay Reed wrote a letter to the circuit court on May 8, 2006, saying he no longer wanted to pursue James' disqualification.

McRobie ultimately entered into a plea agreement with the state wherein he would serve 180 days in jail, pay Josi Reed's funeral expenses and a $1,000 fine.

The State Bar's hearing panel later recommended that the ethics charges against James be dismissed, but disciplinary counsel objected, prompting the Supreme Court's review.

In the opinion, the court said that James did not develop an attorney-client relationship with the Reeds during the initial consultation.

Supreme Court case number: 33600