West Virginia Record

CHARLESTON – A lawyer discipline office could have pursued a conflict-of-interest complaint against former Kanawha County Prosecuting Attorney Michael Clifford even though a state judge already ruled no conflict existed, but the state Supreme Court has ruled no sanctions would be warranted anyway.

The state Supreme Court ruled June 7 that a decision by Kanawha Circuit Court Judge James Stucky would not prevent the Office of Disciplinary Counsel from pursuing ethics charges against Clifford, who was the prosecuting attorney from Jan. 1, 2001, to Dec. 31, 2004.

However, the court agreed with Stucky and ruled no conflict existed.

“Allowing the respondents to proceed when the charges are without merit would needlessly duplicate the efforts and costs of the parties and would not promote judicial economy,” says the opinion, authored by Justice Allen Loughry.

While in office, Clifford headed the investigation into three 2003 murders seemingly committed by a sniper.

Eight years later in 2011, he filed a civil lawsuit on behalf of a woman who alleged property damage during the execution of a search warrant in the sniper investigation.

The defendants – the City of Charleston and the Kanawha County Commission - moved to disqualify him from the case, but Stucky denied their motion.

Eventually, his client asked to have him taken off her case, claiming he was “there for the publicity.”

Clifford was arguing that the disciplinary board didn’t have the authority to file a complaint against him because, in the underlying case, a motion to disqualify him as counsel had been filed, rejected by a judge and never appealed.

On July 5, the disciplinary boards sent Clifford a letter that said the conflict-of-interest complaint would be closed with an admonishment if Clifford did not object. Clifford objected 11 days later.

A statement of charges against Clifford was filed Sept. 24.

“Clearly, Respondents do not have the authority to act as an appellate court over circuit court judges,” Clifford’s petition said.

“If one circuit court judge is unable to directly or indirectly correct or interfere with another circuit court judge’s ruling, then similarly Respondents cannot have the authority to directly or indirectly contradict the ruling issued by Judge Stucky.”

The ODC and Lawyer Disciplinary Board argued a motion for disqualification of an attorney is not dispositive as to violations of the Rules of Professional Conduct.

“(The Supreme Court) may allow the circuit courts to control the cases before those courts, but (the Supreme Court) has maintained jurisdiction on disciplinary matters,” their brief says.

The Supreme Court agreed, writing that it makes the ultimate decision on the imposition of disciplinary sanctions. The opinion says Clifford’s argument is “without merit.”

“Accordingly, whether an attorney’s conduct warrants professional discipline because it violates the Rules of Professional Conduct is a separate issue from whether an attorney should be disqualified from a case because of a conflict of interest that will prevent the administration of justice,” the opinion says.

“Because circuit courts have no authority to impose disciplinary sanctions upon attorneys, their decisions on motions to disqualify based on an alleged conflict of interest are not dispositive with regard to whether disciplinary action is required.”

As for whether a conflict of interest existed, Loughry wrote that Clifford’s “clients” as prosecuting attorney were the people of West Virginia, not the City of Charleston and the Kanawha County Commission. Therefore, he was not suing a former client when he filed the civil suit.

Loughry also wrote Clifford never instituted any proceedings to prosecute the sniper case because no suspect was identified while he was in office.

“(W)e are unable to find that the petitioner obtained any information while he was prosecutor that was not otherwise generally known that would have aided him in his representation of Ms. (Sandra) Shaffer,” the opinion said.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.