Summary
granting writ to bar court's exclusion of audio recording under erroneous interpretation of West Virginia Wiretapping Act
Summary of this case from State ex rel. Smith v. OlejaszOpinion
No. 13–0733.
2014-04-17
STATE of West Virginia ex rel. STATE of West Virginia, Petitioner v. The Honorable Robert A. BURNSIDE, Jr., Judge of the Circuit Court of Raleigh County; and Richard E. Hardison, Jr., Respondents.
Patrick Morrisey, Attorney General, Scott E. Johnson, Esq., Senior Assistant Attorney General, Charleston, WV, for the Petitioner. Timothy J. LaFon, Esq., Ciccarello, DelGuidice & LaFon, PLLC, Charleston, WV, for the Respondent Richard E. Hardison, Jr.
Syllabus by the Court
W.Va.Code § 62–1D–9(d) of the West Virginia Wiretapping and Electronic Surveillance Act, W.Va.Code § 62–1D–1 et seq. [1987], is intended to prevent attorney-client privileged communications from being monitored by wiretapping or through electronic surveillance. The third clause of W.Va.Code § 62–1D–9(d), considered in conjunction with the first two clauses of the statute, and within the West Virginia Wiretapping and Electronic Surveillance Act and Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq., was intended to prohibit the interception of all attorney-client privileged communications “emanating from the place of employment of any attorney at law licensed to practice law in this state.” The third clause of W.Va.Code § 62–1D–9(d) was not intended to prevent law-enforcement officers from intercepting wire, oral or electronic communications occurring within or emanating from a law office that involve criminal conduct.
Patrick Morrisey, Attorney General, Scott E. Johnson, Esq., Senior Assistant Attorney General, Charleston, WV, for the Petitioner. Timothy J. LaFon, Esq., Ciccarello, DelGuidice & LaFon, PLLC, Charleston, WV, for the Respondent Richard E. Hardison, Jr.
Justice KETCHUM:
The Petitioner, the State of West Virginia, invokes this Court's original jurisdiction in prohibition to challenge the June 26, 2013, order of the Circuit Court of Raleigh County suppressing an audio recording which the State sought to introduce in its criminal prosecution of Respondent Richard E. Hardison, Jr., a licensed lawyer in West Virginia (“Lawyer Hardison”). The Raleigh County Sheriff's Department sent a confidential informant, equipped with a body wire, to meet with and attempt to purchase cocaine from Lawyer Hardison. The confidential informant allegedly discussed and purchased cocaine from Lawyer Hardison in his Beckley, West Virginia law office.
After being indicted on two criminal counts related to this alleged drug transaction, Lawyer Hardison moved to suppress the audio recording of his conversation with the confidential informant arguing that the recording violated the West Virginia Wiretapping and Electronic Surveillance Act, W.Va.Code § 62–1D–9(d) [1987]. The circuit court agreed and granted Lawyer Hardison's motion to suppress the audio recording.
The State subsequently filed the present writ arguing that the circuit court's interpretation of W.Va.Code § 62–1D–9(d) was erroneous. The State argues that the purpose of W.Va.Code § 62–1D–9(d) is to prevent attorney-client privileged communications from being intercepted by wiretapping or through electronic surveillance. Because there is no claim that the conversation between Lawyer Hardison and the confidential informant was protected under the attorney-client privilege, the State argues that the circuit court's order suppressing the audio recording was in error.
After review, we agree with the State and conclude that W.Va.Code § 62–1D–9(d) is intended to prevent attorney-client privileged communications from being intercepted by wiretapping or through electronic surveillance. There is no claim that the recorded conversation between Lawyer Hardison and the confidential informant was attorney-client in nature. Because Lawyer Hardison was not acting as an attorney during his conversation with the confidential informant, we grant the requested writ of prohibition.
I. Factual & Procedural Background
On April 6, 2012, the Raleigh County Sheriff's Department sent a confidential informant, equipped with a body wire, to meet with and attempt to obtain cocaine from Lawyer Hardison. The confidential informant was an acquaintance and client of Lawyer Hardison.
The State alleges that the confidential informant picked Lawyer Hardison up at his residence and drove to Lawyer Hardison's law office. The audio recording allegedly includes conversations between the confidential informant and Lawyer Hardison that occurred in the confidential informant's automobile and continued as the two men entered Lawyer Hardison's law office. The State alleges that the confidential informant purchased cocaine from Lawyer Hardison and that the sale occurred in Lawyer Hardison's law office.
According to the appendix-record, Lawyer Hardison represented the confidential informant on two matters, one criminal and one civil. The criminal matter was dismissed on March 13, 2012, prior to the April meeting in which the audio recording was made. The civil matter was pending when the April meeting occurred. It was dismissed on May 15, 2012.
They did not discuss legal matters or matters that were attorney-client in nature.
The parties disagree on the quantity of cocaine that was allegedly purchased. The State's brief asserts that the transaction was an attempt to obtain “two 8–balls [of cocaine worth] approximately five hundred dollars[.]” Lawyer Hardison's brief states “the alleged drug transaction was for approximately .93 of a gram of cocaine and not two 8–balls.”
The confidential informant agreed to wear the body wire that recorded his conversation with Lawyer Hardison. The West Virginia Wiretapping and Electronic Surveillance Act (“ West Virginia Wiretapping Act ” or “the Act ”), W.Va.Code § 62–1D–1 [1987]et seq., permits the use of an electronic surveillance device when one party to the communication consents to the use of a recording device. W.Va.Code § 62–1D–3(e) of the West Virginia Wiretapping Act states:
(e) It is lawful under this article for a person to intercept a wire, oral or electronic communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or the constitution or laws of this state[.]
This one-party consent rule is an exception to the Act's general requirement that the interception of wire, oral or electronic communications is only permissible when authorized by a designated circuit court judge. The procedure for designating specific circuit court judges to authorize electronic surveillance is set forth in W.Va. § 62–1D–7 [1987] of the Act. It states:
The chief justice of the supreme court of appeals shall, on an annual basis, designate five active circuit court judges to individually hear and rule upon applications for orders authorizing the interception of wire, oral or electronic communications: Provided, That no designated circuit judge may consider any application for such an order if he or she presides as judge of the circuit court of the county wherein the applied for installation would occur or of the county wherein the communications facility, line or device to be monitored is located.
Pursuant to the West Virginia Wiretapping Act, a prosecutor (W.Va.Code § 62–1D–8) or an authorized member of the state police (W.Va.Code § 62–1D–11(a)(1)) may make an application to a designated circuit court judge for a warrant to intercept a communication with an electronic surveillance device. The Act permits a designated circuit court judge to issue a warrant ONLY IF the evidence and argument presented by the applicant establishes that:
(1) There is probable cause to believe that one or more individuals are committing, have committed, or are about to commit one or more of the particular offenses enumerated in section eight of this article;
(2) There is probable cause for belief that particular communications concerning such offense or offenses will be obtained through the interception;
(3) Normal investigative procedures have been tried and have failed and reasonably appear to be unlikely to succeed if attempted again, or that to do so would be unreasonably dangerous and likely to result in death or injury or the destruction of property; and
(4) There is probable cause to believe that the facilities from which, or the place where, the wire, oral or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense, or offenses are leased to, listed in the name of, or commonly used by this person.
W.Va.Code § 62–1D–11(c).
Lawyer Hardison was indicted on two felony counts related to the alleged cocaine transaction with the confidential informant: (1) delivery of a controlled substance (cocaine) in violation of W.Va.Code § 60A–4–401 [1983]; and (2) conspiracy to commit the felony offense of delivering a controlled substance (cocaine) in violation of W.Va.Code § 61–10–31 [1971].
Lawyer Hardison filed a motion to suppress the audio recording of the conversation between himself and the confidential informant, asserting that the recording was made in violation of W.Va.Code § 62–1D–9(d) of the West Virginia Wiretapping Act. W.Va.Code § 62–1D–9(d) states:
An otherwise privileged wire, oral or electronic communication intercepted in accordance with, or in violation of, the provisions of this article does not lose its privileged character: Provided, That when an investigative or law-enforcement officer, while engaged in intercepting wire, oral or electronic communications in the manner authorized by this article, intercepts a wire, oral or electronic communication and it becomes apparent that the conversation is attorney-client in nature, the investigative or law-enforcement officer shall immediately terminate the monitoring of that conversation: Provided, however, That notwithstanding any provision of this article to the contrary, no device designed to intercept wire, oral or electronic communications shall be placed or installed in such a manner as to intercept wire, oral or electronic communications emanating from the place of employment of any attorney at law licensed to practice law in this state.
The circuit court held a suppression hearing on Lawyer Hardison's motion. The State argued that W.Va.Code § 62–1D–9(d) was intended to protect attorney-client privileged communications and “not [the] misconduct of lawyers [.]” Further, the State contended that Lawyer Hardison's reading of the statute would lead to an absurd result: it would prevent the use of audio and video recordings of individuals engaging in criminal conduct from being admitted into evidence merely because the criminal conduct occurred in a law office. Conversely, counsel for Lawyer Hardison argued that the plain language of the statute barred the audio recording because the conversation occurred in Lawyer Hardison's law office.
The circuit court agreed with Lawyer Hardison and ruled that “[t]he statute's proviso prohibits the type of recordings that occurred in this case.... It is ORDERED that audio, video
or both recordings made in defendant's law office are SUPPRESSED and the state may not use them at trial.” While the circuit court's order suppressed the audio recording, it denied Lawyer Hardison's request to suppress the confidential informant's testimony relating to the conversation at issue.
There is no video recording of the meeting between the confidential informant and Lawyer Hardison. According to Lawyer Hardison's brief, the confidential informant was equipped with an audio and video recording device, but the video recording device malfunctioned.
After entry of the circuit court's June 26, 2013, order suppressing the audio recording, the State filed the present writ.
II. Standard of Review
This Court addressed our standard of review for a writ of prohibition in a criminal matter in Syllabus Point 5 of State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992):
The State may seek a writ of prohibition in this Court in a criminal case where the trial court has exceeded or acted outside of its jurisdiction. Where the State claims that the trial court abused its legitimate powers, the State must demonstrate that the court's action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction. In any event, the prohibition proceeding must offend neither the Double Jeopardy Clause nor the defendant's right to a speedy trial. Furthermore, the application for a writ of prohibition must be promptly presented.
“The writ of prohibition will issue only in clear cases, where the inferior tribunal is proceeding without, or in excess of, jurisdiction.” Syllabus, Vineyard v. O'Brien, 100 W.Va. 163, 130 S.E. 111 (1925). See also Syllabus Point 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953) ( “Prohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari.”); Syllabus Point 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977) (“A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va.Code 53–1–1.”).
Further, in Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), we set forth the following standard for issuance of a writ of prohibition when it is alleged a lower court is exceeding its authority:
In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.
With the foregoing in mind, we turn to the parties' arguments.
III. Analysis
In this writ, we are asked to examine W.Va.Code § 62–1D–9(d) which is contained in the West Virginia Wiretapping Act, W.Va.Code § 62–1D–1 et seq. By way of background, the West Virginia Wiretapping Act was enacted by the West Virginia Legislature in 1987. The Act was patterned after Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq. (“Title III”). See State v. Mullens, 221 W.Va. 70, 86, n. 34, 650 S.E.2d 169, 185, n. 34 (2007). Title III was enacted by Congress in 1968
and it “sets forth comprehensive standards governing the use of ... electronicsurveillance by both governmental and private agents.” Mullens, 221 W.Va. at 74, 650 S.E.2d at 173. Pursuant to Title III, 18 U.S.C.A. § 2516(2), states are authorized to “adopt coordinate statutes permitting the interception of wire, oral or electronic communications, and to grant greater, but not lesser, protection than that available under federal law.” Id. at 79, 650 S.E.2d at 178. As one legal scholar observed, “Congress did not intend to preempt the field of wiretap legislation [through Title III], but rather, it intended to allow states to enact legislation in this area as long as state laws are not more permissive than the federal scheme.” Angela M. Burdine, Criminal Procedure; Electronic Surveillance, 27 Pac. L.J. 614, 620–21 (1996).
In 1986, Congress amended Title III through the enactment of the Electronic Communications Privacy Act, 18 U.S.C.A. § 3121 et seq., in an effort to reflect technological advancements in the area of electronic surveillance. See Snow v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir.2006). Congress amended Title III again with the enactment of the Communications Assistance for Law Enforcement Act of 1994, 47 U.S.C.A. § 1001 et seq. This Act “requires telecommunications carriers to ensure that their systems are technically capable of enabling law enforcement agencies operating with proper legal authority to intercept individual telephone calls and to obtain certain call-identifying information.” Mullens, 221 W.Va. at 74, n. 12, 650 S.E.2d at 173, n. 12 (internal citation omitted).
Turning to the West Virginia Wiretapping Act, W.Va.Code § 62–1D–6 provides that “evidence obtained in violation of the provisions of this article shall not be admissible in any proceeding.”
The issue we must resolve is whether the audio recording of the conversation between the confidential informant and Lawyer Hardison was made in violation of W.Va.Code § 62–1D–9(d) of the West Virginia Wiretapping Act.
Title III contains a similar provision to W.Va.Code § 62–1D–6. This provision is set forth at 18 U.S.C. § 2515, which states:
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.
Lawyer Hardison argues that this Court should apply the plain language of the final clause of W.Va.Code § 62–1D–9(d) and find that the circuit court correctly suppressed the audio recording at issue. By contrast, the State argues that the final clause of W.Va.Code § 62–1D–9(d) cannot be construed in a vacuum and must be considered within the context and purpose of the entire statute. The purpose of W.Va.Code § 62–1D–9(d), according to the State, is to protect attorney-client privileged communications. The State contends that applying the plain language of the final clause of W.Va.Code § 62–1D–9(d) without considering the context of the entire statute would produce an absurd result—it would transform a law office “into a sanctuary for criminal activity.”
This Court has held that in deciding the meaning of a statutory provision, “[w]e look first to the statute's language. If the text, given its plain meaning, answers the interpretive question, the language must prevail and further inquiry is foreclosed.” Appalachian Power Co. v. State Tax Dep't, 195 W.Va. 573, 587, 466 S.E.2d 424, 438 (1995). See also Syllabus Point 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 (1970) (“Where the language of a statute is free from ambiguity, its plain meaning is to be accepted and applied without resort to interpretation.”); and Syllabus Point 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951) (“A statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and effect.”).
Additionally, this Court has held that “[a] statute is open to construction only where the language used requires interpretation because of ambiguity which renders it susceptible of two or more constructions or of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning.” Sizemore v. State Farm Gen. Ins. Co., 202 W.Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal quotations and citation omitted). With these rules of statutory construction in mind, we turn to W.Va.Code § 62–1D–9(d).
The first clause of W.Va.Code § 62–1D–9(d)—“[a]n otherwise privileged wire, oral or electronic communication intercepted in accordance with, or in violation of, the provisions of this article does not lose its privileged character”—is straightforward and states that a privileged communication does not lose its privileged status simply because it is intercepted pursuant to the West Virginia Wiretapping Act.
The second clause of W.Va.Code § 62–1D–9(d) states:
That when an investigative or law-enforcement officer, while engaged in intercepting wire, oral or electronic communications in the manner authorized by this article, intercepts a wire, oral or electronic communication and it becomes apparent that the conversation is attorney-client in nature, the investigative or law-enforcement officer shall immediately terminate the monitoring of that conversation[.]
The second clause contemplates a scenario in which a law-enforcement officer is engaged in intercepting wire, oral or electronic communications between a lawyer and his/her client. The second clause does not place an absolute bar on a law-enforcement officer intercepting a communication between a lawyer and his/her client, rather, it only bars intercepting such a conversation when it “becomes apparent that the conversation is attorney-client in nature.”
While the first and second clauses of W.Va.Code § 62–1D–9(d) are straightforward, we find that an ambiguity arises in the third clause of the statute. The third clause of W.Va.Code § 62–1D–9(d) states:
Provided, however, That notwithstanding any provision of this article to the contrary, no device designed to intercept wire, oral or electronic communications shall be placed or installed in such a manner as to intercept wire, oral or electronic communications emanating from the place of employment of any attorney at law licensed to practice law in this state.
The first clause of W.Va.Code § 62–1D–9(d) addresses privileged communications generally. The second clause addresses attorney-client privileged communications. The final clause appears to place a prohibition on any communication, privileged or otherwise, occurring between any persons located in a law office. As demonstrated by the differing interpretations given the final clause by the parties to this appeal, the final clause's intended meaning is not abundantly clear when considered within the context of the first two clauses of the statute.
Because the final clause of this statute is preceded by two clauses addressing privileged communications, we find that the final clause is susceptible to differing constructions, and that “reasonable minds might be uncertain or disagree as to its intended meaning.” Sizemore, 202 W.Va. at 596, 505 S.E.2d at 659. Accordingly, we find that W.Va.Code § 62–1D–9(d) is ambiguous.
We note, however, that “the fact that parties disagree about the meaning of a statute does not itself create ambiguity or obscure meaning.” State v. Gibson, 226 W.Va. 568, 571, 703 S.E.2d 539, 542 (2010) (internal citation omitted).
“A statute that is ambiguous must be construed before it can be applied.” Syllabus Point 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992). “The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syllabus Point 1, Smith v. State Workmen's Comp. Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975). Similarly, this Court has held that “the initial step in such interpretative inquiry [of a statute] is to ascertain legislative intent.” Syllabus Point 1, in part, Ohio County Comm'n v. Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983). Further, “[w]hen a statute's language is ambiguous, a court often must venture into extratextual territory in order to distill an appropriate construction. Absent explicatory legislative history for an ambiguous statute ... this Court is obligated to consider the ... overarching design of the statute.” State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W.Va. 770, 777, 461 S.E.2d 516, 523 (1995).
In ascertaining the legislative intent behind W.Va.Code § 62–1D–9(d), we find that the legislative history
of the West Virginia Wiretapping Act provides a general description of the statute, but it does not address the specific meaning or purpose of W.Va.Code § 62–1D–9(d). Because the Act's legislative history does not provide guidance, we examine the law the West Virginia Wiretapping Act was patterned after, Title III.
The Acts of the Legislature of West Virginia states that W.Va.Code § 62–1D–1 et seq. , is
AN ACT to amend chapter sixty-two of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article one-d, relating to wiretapping and certain electronic surveillance; authorizing the interception of certain oral, electronic and wire communications under specified controlled circumstances; providing certain definitions of terms with respect thereto; establishing certain limits and procedures relating thereto; requiring court orders as a condition precedent to any such interception or installation of any wiretap, pen register, trap and trace device or similar device; designated judges; providing for civil immunities with respect thereto; providing exceptions; and providing criminal and civil penalties for violation of certain sections.
1987 W.Va. Acts 1000–1001.
The first two clauses of W.Va.Code § 62–1D–9(d) have analogous provisions in Title III. Like the first clause of W.Va.Code § 62–1D–9(d), Title III states that a privileged communication does not lose its privileged status simply because it is intercepted. See18 U.S.C. § 2517(4) [1986] (“No otherwise privileged wire, oral or electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter, shall lose its privileged character.”).
The second clause of W.Va.Code § 62–1D–9(d) and 18 U.S.C. § 2518(5) of Title III recognize that some privileged communications may be overheard in the course of wiretapping or electronic surveillance and both take steps to minimize this type of interception. The second clause of W.Va.Code § 62–1D–9(d) directs such surveillance to cease when it becomes apparent that a communication is attorney-client in nature. Similarly, when electronic surveillance is authorized pursuant to Title III, 18 U.S.C. § 2518(5) requires that efforts be made to minimize the interception of communications that are not intended to be intercepted. Further, Title III “requires the temporary termination of surveillance when the intercepted communication is not relevant to the investigation ... this minimization provision ... diminishes the interception of privileged communications as much as possible.” Terrence Kossegi and Barbara Phair, The Clergy–Communication Privilege in the Age of Electronic Surveillance, 12 St. John's J. Legal Comment, 241, 253 (1996). See also Clifford S. Fishman and Anne T. McKenna, Wiretapping and Eavesdropping, § 8:125 (2d ed.1995) (stating that the effect of Title III minimization language severely limits interception of privileged communications).
Unlike the first two clauses of W.Va.Code § 62–1D–9(d), Title III does not contain an analogous provision to the third clause of the statute. Title III contains no prohibition on the use of wiretapping or electronic surveillance of all communications emanating from a law office. The absence of such a provision in Title III demonstrates that Congress chose not to treat communications emanating from a law office differently than communications emanating from other locations.
One rationale for this lack of a provision in Title III prohibiting wiretapping or electronic surveillance of all communications emanating from a law office is the recognition that lawyers engaging in alleged criminal activity should be investigated and prosecuted to the same extent as non-lawyers:
A license to practice law is not a license to commit crime. When an attorney uses his position to aid an organized crime client in ongoing criminal activity or in running a criminal enterprise, few would disagree that the government has the right, indeed the duty, to investigate and prosecute that person to at least the same extent they would his principal.
Steven Chananie and Ronald Goldstock, ‘ Criminal’ Lawyers: The Use of Electronic Surveillance and Search Warrants in the Investigation and Prosecution of Criminal Wrongdoing, 136 U. Pa. L.Rev. 1855 (1988).
Based on the foregoing, we find that Title III contains no provision barring the use of wiretapping or electronic surveillance of all communications emanating from a law office. This lack of a corresponding provision in Title III weighs in favor of the State's argument that the third clause of W.Va.Code § 62–1D–9(d) must be read and interpreted within the context of the other two clauses of the statute, i.e., the third clause is meant to protect communications emanating from a law office that are attorney-client privileged in nature; the final clause is not meant to protect communications emanating from a law office that involve a lawyer engaging in criminal conduct.
Having determined that Title III does not contain an analogous provision to the third clause of W.Va.Code § 62–1D–9(d), we next examine the statute in light of the purpose and context of the other statutory provisions contained within the West Virginia Wiretapping Act. The purpose of Title III, which the West Virginia Wiretapping Act was patterned after, is to achieve the dual goals of “protecting individual privacy, while permitting limited government surveillance in accordance with uniform standards.” Mullens, 221 W.Va. at 75, 650 S.E.2d at 174. These dual goals of Title III are applicable to the West Virginia Wiretapping Act. We find that these goals are not furthered by affording the third clause of W.Va.Code § 62–1D–9(d) the broad reading urged by Lawyer Hardison. Under Lawyer Hardison's suggested construction of the statute, the West Virginia Wiretapping Act would prevent law-enforcement surveillance of all communications emanating from a law office, including the alleged criminal communications that occurred in the present case—a lawyer selling cocaine. Further, if this Court adopted Lawyer Hardison's suggested construction of W.Va.Code § 62–1D–9(d), law offices in West Virginia could become staging areas for criminal conduct. We find no support for this construction of W.Va.Code § 62–1D–9(d) in any corresponding provision of the Act or in any provision of Title III.
Finally, we note that when construing an ambiguous statute, “[w]e need not leave our common sense at the doorstep[.]” Price Waterhouse v. Hopkins, 490 U.S. 228, 241, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). This Court has long recognized that
[i]t is the duty of a court to construe a statute according to its true intent, and give it such construction as will uphold the law and further justice. It is as well the duty of a court to disregard a construction, though apparently warranted by the literal sense of the words in a statute, when such construction would lead to injustice and absurdity.
Syllabus Point 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925). Lawyer Hardison's suggested construction of W.Va.Code § 62–1D–9(d) would lead to such an absurdity—it would shield a lawyer, and any other person involved in criminal activity in a law office, from being subject to wiretapping or electronic surveillance simply because the criminal activity was occurring in a law office. We do not believe the Legislature intended such an absurd result. Rather, we find that the State's suggested interpretation of the third clause of W.Va.Code § 62–1D–9(d)—that it is meant to protect attorney-client privileged communications occurring within or emanating from a law office—is a sound and reasonable construction of the statute that is in accordance with the goals of the West Virginia Wiretapping Act and of Title III.
Based on all of the above, we hold that W.Va.Code § 62–1D–9(d) of the West Virginia Wiretapping and Electronic Surveillance Act, W.Va.Code § 62–1D–1 et seq. [1987], is intended to prevent attorney-client privileged communications from being monitored by wiretapping or through electronic surveillance. The third clause of W.Va.Code § 62–1D–9(d), considered in conjunction with the first two clauses of the statute, and within the West Virginia Wiretapping and Electronic Surveillance Act and Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq., was intended to prohibit the interception of all attorney-client privileged communications “emanating from the place of employment of any attorney at law licensed to practice law in this state.” The third clause of W.Va.Code § 62–1D–9(d) was not intended to prevent law-enforcement officers from intercepting wire, oral or electronic communications occurring within or emanating from a law office that involve criminal conduct.
Applying this holding to the present case, we find that the circuit court erred when it suppressed the audio recording made by the confidential informant. The conversation between the confidential informant and Lawyer Hardison should only have been suppressed pursuant to W.Va.Code § 62–1D–9(d) if it was attorney-client in nature. In Syllabus Point 2 of State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979), this Court set forth a three-factor test to determine whether the attorney-client privilege may be asserted:
In order to assert an attorney-client privilege, three main elements must be present: (1) both parties must contemplate that the attorney-client relationship does or will exist; (2) the advice must be sought by the client from the attorney in his capacity as a legal advisor; (3) the communication between the attorney and client must be intended to be confidential.
The second and third factors cannot be satisfied. Lawyer Hardison was not acting in his capacity as a lawyer during his April 6, 2012, conversation with the confidential informant. The confidential informant was not seeking legal advice from Lawyer Hardison; he was allegedly only seeking to purchase cocaine from him. Further, the confidential informant, having agreed to wear a recording device, did not intend that this conversation be kept confidential. Finally, the attorney-client privilege “belongs to the client.” State ex rel. Allstate Ins. Co. v. Gaughan, 203 W.Va. 358, 372, n. 21, 508 S.E.2d 75, 89, n. 21 (1998). The confidential informant, as the putative client in this case, has not asserted the privilege. Because the conversation was not attorney-client in nature, the circuit court erred by suppressing the audio recording under W.Va.Code § 62–1D–9(d). We therefore grant the State's requested writ.
IV. Conclusion
For the foregoing reasons, we find that the State is entitled to the requested writ of prohibition to prohibit the circuit court from suppressing the audio recording made by the confidential informant. We therefore vacate the June 26, 2013, order of the Circuit Court of Raleigh County.
Writ Granted. Justice BENJAMIN concurs and reserves the right to file a concurring Opinion.
Justice LOUGHRY concurs and reserves the right to file a concurring Opinion.
Judge SIMS dissents and reserves the right to file a dissenting Opinion.
Chief Justice DAVIS, deeming herself disqualified, did not participate.
Justice WORKMAN, deeming herself disqualified, did not participate.
Judge HATCHER, sitting by temporary assignment.
Judge SIMS, sitting by temporary assignment.
BENJAMIN, Justice, concurring:
I agree with the majority opinion in this case. I write separately to emphasize that today's holding fully protects legitimate claims of attorney-client privilege. Indeed, when viewed within the constitutional, statutory and common law framework in which electronic surveillance by the state must operate in West Virginia, I believe this decision not only ensures the preservation of important personal and professional privileges, but also recognizes the importance of the state's duty to properly investigate and prosecute serious criminal misconduct, thereby protecting our families and communities.
I cannot fault my dissenting colleague for raising concerns about the importance and preservation of the attorney-client privilege. Indeed, it is, I suggest, a good thing in today's environment for judges to closely scrutinize any state action which may impair the legitimate expectation of privacy citizens may have in the day-to-day performance of their lives. Here, however, I simply disagree with the dissenting opinion about the extent to which today's holding will impair the legitimate exercise of the attorney-client privilege, particularly when viewed within the framework of West Virginia's electronic surveillance jurisprudence and the many protections for individual rights and privileges found within this jurisprudence.
The dissenting opinion suggests a series of horribles which may emerge as a result of the majority's interpretation of W. Va.Code § 62–1D–9(d). The dissent posits that the majority's holding will “steadily and relentlessly erode” “the indispensable trust that must exist between attorneys and clients.” I disagree. When read along with the other protections provided by the entirety of the West Virginia Wiretapping and Electronic Surveillance Act (“the Act”), W. Va.Code §§ 62–1D–1 to –16, I suggest that there is no likelihood—absent felonious misconduct on the part of law enforcement—that harm will befall the attorney-client privilege.
The dissenting opinion posits four scenarios, each having in common a paralegal employed by a large West Virginia law firm who engages in illegal activity. In all four scenarios, “law enforcement has probable cause and places a device to intercept oral conversations/telephone calls/email (pick one or more) in paralegal's office.”
I suggest that the dissenting opinion's initial scenario is missing a crucial element of judicial oversight in its fact pattern: Law enforcement could only have lawfully placed an electronic surveillance device in the paralegal's office if it had already received a specific authorization to do so from one of five circuit judges appointed by the West Virginia Supreme Court of Appeals. W. Va.Code § 62–1D–11; W. Va.Code § 62–1D–7. Such judicial oversight is an important aspect to the protections contained with the jurisprudence of electronic surveillance devices in West Virginia. Before one of the five circuit court judges may issue an authorization order to law enforcement, the court must find that
(1) There is probable cause to believe that one or more individuals are committing, has committed, or are about to commit one or more of the particular offenses enumerated in section eight [§ 62–1D–8] of this article;
(2) There is probable cause for believe that particular communications concerning such offense or offenses will be obtained through the interception;
(3) Normal investigative procedures have been tried and have failed and reasonably appear to be unlikely to succeed if attempted again, or that to do so would be unreasonably dangerous and likely to result in death or injury or the destruction of property; and
(4) There is probable cause to believe that the facilities from which, or the place where, the wire, oral or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense or offenses are leased to, listed in the name of, or commonly used by this person.
Id.§ 62–1D–11(c). If an authorization order does issue, the circuit court judge must then narrowly tailor that order, specifying
(i) the identity of the person, if known, whose communications are to be intercepted; (ii) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted, (iii) a particular description of the type of communication sought to be intercepted and a statement of the particular offense to which it relates, (iv) the identity of members of the Department of Public Safety [West Virginia State Police] authorized to intercept the communications and of the person authorizing the applications and (v) the period of time during which the interception is authorized, including a statement as to whether or not the interception automatically terminates when the described communication is first obtained.
Id.§ 62–1D–11(d)(1). “Every order and extension thereof shall contain a provision that the authorization to intercept ... be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this article and terminate upon attainment of the authorized objective.” Id.§ 62–1D–11(e). Furthermore, after the order is issued, reports must “be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception.” Id.§ 62–1D–11(f).
As the above sampling of the Act makes clear, the courts of our State play a significant and continuing role in the ordering of and supervising of surveillance obtained by the use of electronic devices under the Act. Our decision today does not empower law enforcement to place surveillance devices in law offices on a whim; law enforcement must make a strong case for the need of that surveillance, and the circuit court must then grant permission for that surveillance, subject to specific limitations and supervision, before surveillance may take place.
Looking more specifically at the four scenarios presented in the dissenting opinion, a common thread is apparent as to each: the investigating law enforcement officer reveals non-criminal information gathered from the surveillance that is not the subject of the surveillance. Under the Act, such misbehavior would be a felony. The disclosure of information obtained through surveillance is only permitted “to the extent that the disclosure is required for proper performance of the official duties of the officer making or receiving the disclosure.” Id.§ 62–1D–9(a) (emphasis added). When a law enforcement officer shares information gathered from surveillance and it is not in furtherance of the proper performance of that officer's official duties, the officer “is guilty of a felony.” Id.§ 62–1D–3(b). The officer would also be subject to civil liability. Id. § 62–1D–12.
In my view, the weighty disincentives and protections which are part of the framework of electronic surveillance jurisprudence in this state, as well as the on-going judicial oversight present in such cases, are more than adequate measures to safeguard individual privileges and rights while ensuring that the State may properly do its duty to investigate and prosecute serious criminal misconduct, thereby protecting our families and communities. I therefore concur.
LOUGHRY, Justice, concurring:
As suggested by the majority, the notion that West Virginia Code § 62–1D–9(d) permits an alleged drug dealer to use a law office as an impenetrable sanctuary for drug trafficking and trade is absurd. I agree that West Virginia Code § 62–1D–9(d) is intended to prevent the interception or monitoring of attorney-client privileged communications through wiretapping or electronic surveillance and that the case at bar does not involve such privileged communications. Rather, in this case, a member of the West Virginia bar, who allegedly utilized his law office like a common street corner for drug trade, seeks to cloak it with the inviolable protection afforded to the citizens of this State when engaged in privileged discussions with their lawyer.
Sadly, the parasitic effects of drug addiction infiltrate every aspect of society. Indeed, cocaine addiction in particular leaves a path of destruction in its wake, causing violence and crime across our nation, including West Virginia. Every day, this Court confronts the devastating effects of cocaine addiction in cases involving drug-addicted parents who physically and sexually abuse their children or who allow others to do so; infants who are suffering from harmful, prenatal exposure to cocaine; and persons who have committed robberies, burglaries, malicious assaults, murders, and countless other crimes either seeking to sustain their cocaine addiction or acting while under the influence of cocaine. The use of this dangerously addictive drug destroys families, leads to the loss of employment, and results in the overcrowding of our prison system. There is simply no aspect of society that escapes the catastrophic effects of this insidious drug.
That said, irrespective of the nobility of the cause underlying the legal issues presented in this case, I firmly believe that attorney-client communications must be jealously guarded and do not lightly disregard these concerns, even in the egregious fact pattern presented herein. It has been observed that
[t]he attorney-client privilege is one of the oldest recognized privileges for confidential communications. Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981); Hunt v. Blackburn, 128 U.S. 464, 470, 9 S.Ct. 125, 127, 32 L.Ed. 488 (1888). The privilege is intended to encourage “full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.” Upjohn, supra, at 389, 101 S.Ct. at 682.
Swidler & Berlin v. U.S., 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998). However, the United States Supreme Court has recognized that, in certain circumstances, the privilege “ceases to operate” as a safeguard on “the proper functioning of our adversary system.” U.S. v. Zolin, 491 U.S. 554, 562, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989).
In this case, while I firmly support the staunch preservation of the attorney-client privilege, West Virginia Code § 62–1D–9(d) cannot reasonably be read to elevate communications made by a lawyer in the course of his alleged criminal enterprise to those sacrosanctcommunications between an attorney and his/her client simply because a crime may have been committed in a law office.
For these reasons, I concur.
SIMS, Judge., dissenting:
I respectfully dissent from the majority opinion.
The issue in this case is the statutory construction of the West Virginia Wiretapping Act, W.Va.Code § 62–1D–1 et seq. [1987].
The law of statutory construction in West Virginia is well settled. In State of West Va. v. Cont'l Cas. Co., 130 W.Va. 147, 42 S.E.2d 820 (1947), the Court held
When a statute is clear and unambiguous, and the legislative intent is plain, the statute should not be interpreted by the courts. 50 Am.Jur., Statutes, Section 225. See State ex rel. McLaughlin v. Morris, 128 W.Va. 456, 37 S.E.2d 85 (1946). In such case the duty of the courts is not to construe but to apply the statute. In applying the statute its words should be given their ordinary acceptance and significance and the meaning commonly attributed to them. 50 Am.Jur., Section 225. See Moran v. Leccony Smokeless Coal Co., 122 W.Va. 405, 10 S.E.2d 578 (1940), 137 [136] A.L.R. 1007.
In State v. Epperly, 65 S.E.2d 488, 135 W.Va. 877 (1951), the Court reiterated that
When a statute is clear and unambiguous, and the legislative intent is plain, the statute should not be interpreted by the courts. Hereford v. Meek, 132 W.Va. 378 [373], 52 S.E.2d 740 (1949); State of West Virginia ex rel. Department of Unemployment Compensation v. Continental Casualty Company, 130 W.Va. 147, 42 S.E.2d 820 (1947); State ex rel. McLaughlin v. Morris, 128 W.Va. 456, 37 S.E.2d 85 (1946); State v. Patachas, 96 W.Va. 203, 122 S.E. 545 (1924); 50 Am.Jur., Statutes, Section 225. In such case the duty of the courts is not to construe but to apply the statute, and in so doing, its words should be given their ordinary acceptance and significance and the meaning commonly attributed to them. 50 Am.Jur., Statutes, Section 225.
Likewise, the United States Supreme Court has stated “[w]e begin with the familiar canon of statutory construction that the starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Commission et al. v. GTE Sylvania, Inc. et al., 447 U.S. 102, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). “[I]n interpreting a statute a court should always turn to one cardinal canon before all others.... [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253–254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). “When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’ Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981).” 503 U.S. 249, 254, 112 S.Ct. 1146.
The final clause of W.Va.Code § 62–1D–9(d) at issue in this case states as follows:
That notwithstanding any provision of this article to the contrary, no device designed to intercept wire, oral or electronic communications shall be placed or installed in such a manner as to intercept wire, oral or electronic communications emanating from the place of employment of any attorney at law, licensed to practice law in this state.
Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A. § 2516(2) (the corresponding federal wiretapping act) permits the states to “adopt coordinate statutes permitting the interception or wire, oral or electronic communications, and to grant greater, but not lesser, protection than that available under federal law.” The West Virginia Wiretapping Act, as enacted, clearly evidences the West Virginia Legislature's intent to grant greater protections to West Virginia licensed attorneys than that available under federal law. The majority notes that the absence of such a provision in the federal statute “demonstrates that Congress chose not to treat communications emanating from a law office differently than communications emanating from other locations.” Therefore, it logically follows that the inclusion of the provision in the West Virginia statute clearly demonstrates that the West Virginia Legislature chose to treat communications emanating from a law office differently than communications emanating from other locations.
Simply put, the clause precludes law enforcement from electronically intercepting any communications emanating from a law office of any attorney licensed to practice law in this state. Period. The clause is clear, concise, unambiguous, plain in its meaning, and means exactly what it plainly expresses. Therefore, the clause must be applied, not construed, and “judicial inquiry is complete.” Move along, nothing here to see.
However, the majority finds otherwise. Out of thin air, the majority has determined that “an ambiguity arises” in the above-referenced clause. The majority declares that the clause “ appears to place a prohibition on any communication, privileged or otherwise, occurring between any persons located in a law office.” (Emphasis added.) Any reasoned, rational reading of the clause in question leads to only one conclusion: that the statute does not “appear” to place such a prohibition, it unequivocally and affirmatively establishes such a prohibition.
In spite of this inescapable conclusion, the majority declines to construe the plain meaning of the clause and seeks to interpret it. The majority finds that the clause's meaning is not abundantly clear “[a]s demonstrated by the differing interpretations given the final clause by the parties to this appeal.” The majority then cites, but inexplicably ignores, the holding in State v. Gibson, 226 W.Va. 568, 571, 703 S.E.2d 539, 542 (2010) that “the fact that parties disagree about the meaning of a statute does not itself create ambiguity or obscure meaning.”
In rejecting the plain language of the clause, the majority sets out to rewrite the clause and, in doing so, manipulates the outcome in this matter to one more preferable to the majority. This type of judicial moonwalking has all of the earmarks of a “result-oriented decision.”
The majority proceeds to do a judicial tap dance around the “legislative intent” of the statute and concludes that the statute's legislative history “does not provide guidance.” The majority ignores the fact that the statute, enacted in 1987, was written by lawyers and then passed into law by a significant number of lawyers in the legislature. The statute says exactly what the legislature intended it to say. It places an absolute bar on law enforcement intercepting any communications occurring in a law office in this state of a licensed West Virginia lawyer. The clear intent of the statute is to protect a centuries-old
sacrosanct public policy which predates the founding of this nation: the sanctity of attorney-client communication, the corresponding privilege afforded to the client, and the indispensable confidence and trust that must exist between an attorney and a client. Without a client's unfettered confidence and trust, the attorney-client relationship would be meaningless and non-existent. Any erosion of that confidence and trust threatens the very foundation of the legal profession.
The attorney-client privilege finds its roots in Roman law. SeeE. Cleary, McCormick on Evidence § 87 (2d edition 1972).
In United States v. Costen, 38 F. 24, 24 (C.C.D.Colo.1889), Justice Brewer stated
Now, it is the glory of our profession that its fidelity to its client can be depended on; that a man may safely go to a lawyer and converse with him upon his rights or supposed rights in any litigation with the absolute assurance that that lawyer's tongue is tied from ever disclosing it; and any lawyer who proves false to such an obligation, and betrays or seeks to betray any information or any facts that he has attained while employed on the one side, is guilty of the grossest, breach of trust. I can tolerate a great many things that a lawyer may do,—things that in and of themselves may perhaps be criticised [sic] or condemned when done in obedience to the interest or supposed interest of his own client, and when he is seeking simply to protect and uphold those interests. If he goes beyond, perhaps, the limits of propriety, I can tolerate and pass that by; but I cannot tolerate for a moment, neither can the profession, neither can the community, any disloyalty on the part of a lawyer to his client. In all things he must be true to that trust, or, failing it, he must leave the profession.
The majority bases its rationale on the premise that “lawyers engaging in alleged criminal activity should be investigated and prosecuted to the same extent as non-lawyers.” No one would disagree with that assertion. Indeed, law enforcement has significant tools, advantages and resources to investigate and bring to justice those who violate the law, including attorneys. However, the West Virginia Legislature, as a co-equal branch of government and is its right as a legislative body, definitively determined that protecting the sanctity of the attorney-client relationship from undo intrusion by law enforcement clearly outweighed law enforcement's interests in utilizing the weapon of electronically intercepted communications emanating from a law office of any attorney licensed to practice law in this state.
The majority next finds that the clause, as written, leads to an “absurdity” by shielding attorneys, and others engaged in criminal activity in a law office, from being subject to electronic surveillance or wiretapping simply because the criminal activity allegedly is occurring in a law office. As a result, the majority has rewritten the clause to read:
That notwithstanding any provision of this article to the contrary, no device designed to intercept wire, oral or electronic communications shall be placed or installed in such a manner as to intercept wire, oral or electronic communications emanating from the place of employment of any attorney at law, licensed to practice law in this state unless said device intercepts communications which are determined by law enforcement, in its discretion, not to be attorney-client privileged communications.
The rewritten statute opens a Pandora's Box of problems and challenges to open communication, complete confidentiality, and the indispensable trust that must exist between attorneys and clients in this state.
Consider the following:
A large law firm in Huntington/Charleston (pick one) employs an experienced and trusted paralegal. Unbeknownst to the law firm, paralegal is engaged in small time bookmaking/selling small amounts of marijuana (pick one) out of his office at the law firm. Law enforcement has probable cause and places a device to intercept oral conversations/telephone calls/email (pick one or more) in paralegal's office.
As a result, the following scenarios occur:
Scenario 1: Lawyer A is defending a highly contested criminal case. Lawyer A directs paralegal to interview potential witnesses who have not been listed in the prosecution's discovery or witness disclosure. Paralegal interviews witnesses who provide information which is potentially damaging to defendant's case. The interviews are not privileged under West Virginia law. Law enforcement shares the intercepted recordings of paralegal's interviews of said witnesses with the prosecutor, who then amends the State's witness list to include the witnesses not previously known to him. As a direct result of the new witnesses' testimony, defendant is convicted.
Scenario 2: Lawyer B directs paralegal to assist him in drafting a settlement brochure for a client who was hit by a drunk driver. Lawyer informs paralegal that the case has significant settlement value, but client is about to be laid off from work and is in a difficult financial situation. As a result, client wants to settle quickly for the best pre-suit offer that is made. This communication is privileged under West Virginia law, but law enforcement is not up to speed on the law of privilege. Law enforcement is on a bowling team with the insurance adjuster and informs him of client's dire financial situation and desire for a quick settlement. Insurance adjuster makes a ridiculous, low-ball offer and refuses to settle for any amount near fair settlement value for the claim. Client directs Lawyer B to accept the bad faith, lowball offer.
Scenario 3: Lawyer C directs paralegal to assist him with drafting a plea agreement and sentencing memorandum in a low level, non-violent felony case, for which such offense a defendant routinely receives probation. Lawyer C casually informs paralegal that the judge in the case is a primate with low intellectual functioning and that the prosecutor is a slob with poor hygiene. This is a non-privileged communication under West Virginia law. Law enforcement, a former bailiff for the judge, gleefully informs the judge and the prosecutor of Lawyer C's opinions of them. Defendant pleads guilty. In an unprecedented move, prosecutor deviates from his standard practice and seeks the maximum penalty. To the surprise of Lawyer C, judge denies defendant probation and sentences him to the maximum penitentiary sentence.
Scenario 4: Lawyer D directs paralegal to assist in drafting a property settlement agreement in an uncontested divorce action. Lawyer D informs paralegal that client wants the matter finalized as quickly as possible because client recently engaged in an extra-marital affair, which is unknown to client's spouse. This communication is privileged under West Virginia law, but law enforcement doesn't care because client's spouse is law enforcement's second cousin once removed. Law enforcement informs client's spouse of client's dalliance, and client's spouse proceeds to do extreme physical violence to client and client's paramour.
The rewritten clause produces absurd, unjust and unconscionable results in each of the above four scenarios. The clause, as originally written, would prevent each of these results. It is eminently predictable that the rewritten clause will, in the future, produce equally troubling and disastrous results for lawyers and their clients alike.
The majority finally concludes that if it were to interpret the statute to say what is clearly says, that “law offices in West Virginia could become staging areas for criminal conduct.” This conclusion is made without a scintilla of empirical data to support it. In the 27 years since the statute was first enacted, there is no evidence that lawyers in West Virginia have turned their offices into “staging areas for criminal conduct.” In fact, the evidence is wholly to the contrary. The sparse history of the investigations and prosecutions of criminal activity by lawyers using their law offices as “staging areas for criminal conduct” has rarely, if ever, involved electronically intercepted communications emanating from a law office. Law enforcement indisputably has sufficient resources, without the use of electronically intercepted communications, to weed out those very few in the legal profession who are engaged in criminal activity out of their law office.
In paraphrasing Justice Samuel Ervin, Jr.'s eloquent dissent in State v. Bridges, 56 S.E.2d 397, 231 N.C. 163 (1949), what may be the ultimate fate of the accused in his case is of relatively minor importance in the sum total of things. In any event, his role on life's stage, like ours, soon ends. But what happens to the law in this case is of gravest moment. It must be realized that the consequences of the decision of this Court will not be confined to a single legal proceeding. This decision will be invoked in other legal proceedings as a guiding and binding precedent. This decision may now be used as a waterfall to steadily and relentlessly erode a bed rock and essential time-tested public policy of the inviolability of the attorney-client relationship. Such an end is far less desirable than that of hurrying a single sinner to what may be his merited doom.
“They who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.” Benjamin Franklin for the Pennsylvania Assembly in its Reply to the Governor (November 11, 1755).
In permitting electronically intercepted non attorney-client communications emanating from a law office of any attorney licensed to practice law in this state, the majority has placed the sanctity of the attorney-client relationship on a dangerous slope. If the majority opinion does not cause significant concern for all attorneys and their clients in this state, it ought to. Beware: you are on notice that someone may be listening.