SER Discover Financial Services, Inc. v. Hon. David W. Nibert and SER Glaxosmithkline, LLC v. Hon. James H. Young, Jr.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2013 Term

FILED

_____________ June 4, 2013

released at 3:00 p.m.

RORY L. PERRY II, CLERK

No. 13-0086 SUPREME COURT OF APPEALS

_____________ OF WEST VIRGINIA

STATE OF WEST VIRGINIA EX REL.

DISCOVER FINANCIAL SERVICES, INC.,

DISCOVER BANK, DFS SERVICES, L.L.C., AND

AMERICAN BANKERS MANAGEMENT COMPANY, INC.;

BANK OF AMERICA CORPORATION AND

FIA CARD SERVICES, N.A.;

CITIGROUP INC. AND CITIBANK, N.A.;

GE MONEY BANK;

WORLD FINANCIAL NETWORK NATIONAL BANK,

CSI PROCESSING, L.L.C., AND CPP NORTH AMERICA L.L.C.;

HSBC BANK NEVADA, N.A. AND HSBC CARD SERVICES, INC.;

AND JPMORGAN CHASE & CO. AND

CHASE BANK USA, N.A.,

Petitioners

V.

HONORABLE DAVID W. NIBERT, JUDGE OF

THE CIRCUIT COURT OF MASON COUNTY, WEST VIRGINIA,

Respondent

____________________________________________________________________

Petition for a Writ of Prohibition

WRIT DENIED

____________________________________________________________________

AND

_____________

No. 13-0102

_____________

STATE OF WEST VIRGINIA EX REL. GLAXOSMITHKLINE, LLC,

FORMERLY SMITHKLINE BEECHAM CORPORATION

D/B/A GLAXOSMITHKLINE,

Petitioner

V.

THE HONORABLE JAMES H. YOUNG, JR.,

JUDGE OF THE CIRCUIT COURT OF WAYNE COUNTY;

AND ALL PLAINTIFFS IN STATE EX REL.

MORRISEY V. GLAXOSMITHKLINE, LLC,

Respondents

__________________________________________________________________

Petition for a Writ of Prohibition

WRIT DENIED

___________________________________________________________________

Submitted: May 14, 2013

Filed: June 4, 2013

Kara Cunningham Patrick Morrisey

Russell D. Jessee Attorney General

Steptoe & Johnson, PLLC Daniel W. Greear

Charleston, West Virginia Chief Counsel

Attorneys for Petitioners, Office of Attorney General

Discover Financial Services, Inc., Charleston, West Virginia

Discover Bank, and Attorneys for Respondent

DFS Services L.L.C. in Case Number 13-0086

Bruce M. Jacobs Guy R. Bucci

Charles L. Woody Timothy Bailey

Spilman Thomas & Battle, PLLC L. Lee Javins, II

Charleston, West Virginia Special Assistant Attorneys General

Attorneys for Petitioner, Bucci Bailey & Javins

American Bankers Management Charleston, West Virginia

Company, Inc. and

William Druckman

Bruce M. Jacobs Special Assistant Attorney General

Alexander Macia Druckman & Estep

Spilman Thomas & Battle, PLLC Charleston, West Virginia

Charleston, West Virginia Attorneys for Respondent

Attorneys for Petitioners, in Case Number 13-0086

Bank of America Corporation and

FIA Card Services, N.A. Patrick Morrisey

Attorney General

Jeffrey M. Wakefield Daniel W. Greear

Flaherty, Sensabaugh & Bonasso, PLLC Chief Counsel

Charleston, West Virginia Office of Attorney General

Attorney for Petitioners, Charleston, West Virginia

Citigroup Inc. and Citibank, N.A. Attorneys for Respondents

in Case Number 13-0102

Bryant J. Spann

David B. Thomas Paul T. Farrell, Jr.

Thomas Combs & Spann, PLLC Special Assistant Attorney General

Charleston, West Virginia Greene, Ketchum, Bailey, Walker,

Attorneys for Petitioner, Farrell & Tweel

GE Money Bank Huntington, West Virginia

and

Charles M. Love Laura J. Baughman

Fazal A. Shere S. Ann Saucer

Bowles Rice McDavid Graff & Love, LLP Special Assistant Attorneys General

Charleston, West Virginia Baron & Budd, PC

and Dallas, Texas

Alan S. Kaplinsky and

Martin C. Bryce, Jr. Bill Robins

Ballard Spahr, LLP Justin R. Kaufman

Philadelphia, Pennsylvania Special Assistant Attorneys General

Attorneys for Petitioner, Heard Robins Cloud & Black, LLP

World Financial Network National Bank Santa Fe, New Mexico

Attorneys for Respondents

Bruce M. Jacobs in Case Number 13-0102

Spilman, Thomas & Battle, PLLC

Charleston, West Virginia

Attorney for Petitioner,

CCP North America L.L.C.

Chris R. Arthur

W. Scott Campbell

Samuel I. White, P.C.

Charleston, West Virginia

Attorneys for Petitioners,

HSBC Bank Nevada, N.A. and

HSBC Card Services, Inc.

William W. Booker

Thomas H. Ewing

Kay Casto & Chaney, PLLC

Charleston, West Virginia

Attorneys for Petitioners,

JPMorgan Chase & Co. and

Chase Bank USA, N.A.

Michael J. Farrell

Tamela J. White

Farrell, White & Legg, PLLC

Huntington, West Virginia

and

Kenneth H. Zucker

Nina M. Gussack

John F. Brenner

Ellen K. Scott

Pepper Hamilton, LLP

Philadelphia, Pennsylvania

Attorneys for Petitioner,

GlaxoSmithKline

Brenda Nichols Harper

West Virginia Chamber of Commerce

Charleston, West Virginia

and

Victor E. Schwartz

Cary Silverman

Shook, Hardy & Bacon, LLP

Washington, District of Columbia

and

Richard F. Shearer

Shook, Hardy & Bacon, LLP

Kansas City, Missouri

Attorneys for Amicus Curiae,

West Virginia Chamber of Commerce

JUSTICE DAVIS delivered the Opinion of the Court.

JUSTICE KETCHUM, deeming himself disqualified, did not participate in the decision

of this case.

JUDGE FOX, sitting by temporary assignment.

SYLLABUS BY THE COURT

1. The phrase “contract of hire,” in W. Va. Code § 6B-1-3(d) (2008) (Repl.

Vol. 2010) of the West Virginia Governmental Ethics Act, refers to an agreement in which

a person provides labor or personal services to a government entity for wages or a salary.

2. Under the definition of “employee” provided by W. Va. Code

§ 6B-1-3(d) (2008) (Repl. Vol. 2010) of the West Virginia Governmental Ethics Act, a

private attorney appointed as a special assistant attorney general is not an employee of the

Office of the Attorney General.

3. The Office of Attorney General retains inherent common law powers,

when not expressly restricted or limited by statute. The extent of those powers is to be

determined on a case-by-case basis. Insofar as the decision in Manchin v. Browning, 170

W. Va. 779, 296 S.E.2d 909 (1982), is inconsistent with this holding, it is expressly

overruled.

4. The Attorney General has common law authority to appoint special

assistant attorneys general.

5. The Attorney General has common law authority to provide for

i

compensation to be paid to special assistant attorneys general through a court-approved

award of attorney’s fees taken directly from the losing opponent in the litigation.

ii

Davis, Justice:

This matter involves two consolidated petitions for writs of prohibition filed

under the original jurisdiction of this Court. The petition filed in Case No. 13-0086 was

brought by the defendants in seven consolidated cases pending before the Circuit Court of

Mason County;1 and the petition in Case No. 13-0102 was filed by GlaxoSmithKline, a

defendant below, from a case pending before the Circuit Court of Wayne County.2 The

Petitioners seek a writ of prohibition to prevent enforcement of circuit court orders that

denied their motions to disqualify private attorneys from representing the Respondent, the

State of West Virginia,3 as special assistant attorneys general. The essence of the Petitioners’

contentions is that the special assistant attorneys general should be disqualified because their

fee arrangements (1) violate the West Virginia Governmental Ethics Act; (2) violate Rule

1.7(b) of the West Virginia Rules of Professional Conduct;4 and (3) the Attorney General

1

The defendants in Case No. 13-0086 are: Discover Financial Services, Inc.,

Discover Bank, DFS Services, L.L.C., and American Bankers Management Company, Inc.;

Bank of America Corporation and FIA Card Services, N.A.; Citigroup Inc. and Citibank,

N.A.; GE Money Bank; World Financial Network National Bank, CSI Processing, L.L.C.,

and CPP North America L.L.C.; HSBC Bank Nevada, N.A. and HSBC Card Services, Inc.;

and JPMorgan Chase & Co. and Chase Bank USA, N.A. These defendants filed a joint

petition in this matter.

2

Unless otherwise indicated, all of the defendants below will be referred to

collectively as the “Petitioners.”

3

The Petitioners have labeled the trial judges as the Respondents in these

matters. However, for purposes of this opinion, we will refer to the State as the Respondent,

as it is the plaintiff below in each of these cases.

4

Petitioner GlaxoSmithKline did not brief the Rule 1.7(b) issue. However, the

(continued...)

1

lacks authority to appoint special assistant attorneys general. After a careful review of the

briefs and the record submitted in this case, and listening to the arguments of the parties, we

deny the writs.5

I.

FACTUAL AND PROCEDURAL BACKGROUND

The factual and procedural background for each of the consolidated cases will

be set forth separately.

4

(...continued)

issue appears to have been raised in the circuit court.

5

We wish to acknowledge the Amicus Curiae brief filed by the West Virginia

Chamber of Commerce in support of the Petitioners in Case No. 13-0086. We also note that

the Amicus brief raised several issues that were not raised by the parties. We decline to

address the issues raised solely by the Amicus. See Delardas v. County Court of Monongalia

Cnty., 155 W. Va. 776, 783, 186 S.E.2d 847, 852 (1972) (finding it “possibly improper, for

the Court to consider and to decide [an issue raised by amicus] in this case inasmuch as it has

not been raised by any of the parties”). See also People v. Archer, 417 N.Y.S.2d 507, 513

(N.Y. App. Div. 1979) (“We would add that it is improper for the Amicus curiae herein to

raise issues and cite alleged errors which were never raised or cited by appellant[.]”);

Homestake Mining Co. v. South Dakota Subsequent Injury Fund, 644 N.W.2d 612, 621 (S.D.

2002) (holding that “it is improper for amicus to seek to widen the issues raised by the

parties”); East Sevier Cnty. Util. Dist. of Sevier Cnty. v. Wachovia Bank & Trust Co., 570

S.W.2d 850, 854 (Tenn. 1978) (“Numerous issues are raised in a brief filed amicus curiae

. . ., but our discussion of those issues on the present record would be improper, since they

were not dealt with in the trial court or properly developed in the proof.”).

2

A. Petitioners in Case No. 13-0086

The record in Case No. 13-0086 indicates that civil complaints were filed

against each of the Petitioners by the Attorney General,6 on behalf of the State, in August

2011.7 The complaints alleged that the Petitioners violated the General Consumer Protection

provisions of Article 68 of the West Virginia Consumer Credit and Protection Act9 by

engaging in unfair, deceptive, and unconscionable practices designed to trick consumers into

paying for credit card service plans.

On April 20, 2012, the Petitioners filed a joint motion with the circuit court

seeking to disqualify the special assistant attorneys general.10 The motion alleged that the

appointment of special assistant attorneys general violated the West Virginia Governmental

Ethics Act and the Rules of Professional Conduct, and that the Attorney General did not have

authority to make such appointments. A hearing on the motion was held on July 16, 2012.

6

When the complaints were filed, the Attorney General was Darrell V.

McGraw, Jr. The current duly-elected Attorney General is Attorney General Patrick

Morrissey.

7

As discussed infra, prior to the complaints being filed, the Attorney General

appointed several private attorneys as special assistant attorneys general to act as lead

counsel in each of the cases.

8

See W. Va. Code § 46A-6-101 et seq.

9

See W. Va. Code § 46A-1-101 et seq.

10

Prior to filing the motion to disqualify, the Petitioners requested the cases be

removed to federal court. The federal court ultimately remanded the cases back to state

court.

3

On August 15, 2012, the trial court entered an order denying the motion to disqualify. The

Petitioners subsequently filed the instant petition for a writ of prohibition.

B. Petitioner in Case No. 13-0102

The record in Case No. 13-0102 indicates that a civil complaint was filed

against the Petitioner, GlaxoSmithKline, by the Attorney General,11 on behalf of the State,

in March 2012.12 The complaint alleged that the Petitioner violated the General Consumer

Protection provisions of Article 613 of the West Virginia Consumer Credit and Protection

Act14 by engaging in unfair and deceptive acts and practices and by employing unfair

methods of competition in marketing the diabetes drug Avandia. The complaint also alleged

the Petitioner engaged in conduct that violated the West Virginia Fraud and Abuse in the

Medicaid Program Act;15 the West Virginia Public Employees Insurance Act;16 and the West

11

When the complaint was filed, the Attorney General was Darrell V. McGraw,

Jr. See supra note 6.

12

As discussed infra, prior to the complaint being filed, the Attorney General

appointed several private attorneys as special assistant attorneys general to act as lead

counsel in the case.

13

See W. Va. Code § 46A-6-101 et seq.

14

See W. Va. Code § 46A-1-101 et seq.

15

See W. Va. Code § 9-7-1 et seq.

16

See W. Va. Code § 5-16-1 et seq.

4

Virginia Insurance Fraud Prevention Act,17 and set out other causes of action that included

strict liability, breach of warranty, and unjust enrichment.18

On August 10, 2012, the Petitioner filed a motion with the circuit court seeking

to disqualify the special assistant attorneys general. The motion alleged that the appointment

of special assistant attorneys general violated the West Virginia Governmental Ethics Act

and the Rules of Professional Conduct, and that the Attorney General did not have authority

to make such appointments.19 On September 28, 2012, the trial court entered an order

denying the motion to disqualify. The Petitioner subsequently filed the instant petition for

a writ of prohibition.

II.

STANDARD OF REVIEW

This matter is before the Court on two consolidated petitions for writs of

prohibition that challenge lower court orders denying the Petitioners’ motion to disqualify

the special assistant attorneys general. We have held that “[a] party aggrieved by a lower

court’s decision on a motion to disqualify an attorney may properly challenge the lower

17

See W. Va. Code § 33-41-1 et seq.

18

The Governor requested the Attorney General bring some of the enumerated

causes of action against the Petitioner.

19

The Petitioner also alleged that State and Federal due process rights were

violated by the fee arrangement made with the special assistant attorneys general.

5

court’s decision by way of a petition for a writ of prohibition.” Syl. pt. 1, State ex rel.

Bluestone Coal Corp. v. Mazzone, 226 W. Va. 148, 697 S.E.2d 740 (2010). We also

previously have held that “[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.” Syl. pt. 2,

State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977). More

specifically, this Court has held:

In determining whether to entertain and issue the writ of

prohibition for cases not involving the 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.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). Based upon

these established standards, we proceed to consider the merits of the issues.

6

III.

DISCUSSION

As previously mentioned, the Petitioners seek to have this Court determine that

the special assistant attorneys general should be disqualified because their fee arrangements

violate the West Virginia Governmental Ethics Act and the Rules of Professional Conduct,

and because the Attorney General lacks authority to appoint special assistant attorneys

general.20 We will address each issue separately.21

20

We summarily reject Petitioner GlaxoSmithKline’s contention that use of

special assistant attorneys general violates its due process rights. The Petitioner has not cited

to, nor have we found, any case that supports a due process violation claim through the use

of special assistant attorneys general in the prosecution of civil cases. The two federal cases

cited by Petitioner do not stand for such a proposition. The decision in Marshall v. Jerrico,

Inc., 446 U.S. 238, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980), cited by Petitioner, held that

the federal Due Process Clause was not violated because of the enforcement of child labor

laws by an assistant regional administrator. In the second federal case cited, Young v. United

States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987),

the Court held that a trial court may appoint a private attorney to prosecute a litigant for

criminal contempt, but that a court could not appoint counsel for one of the litigants in the

underlying case as the prosecutor.

21

The Respondent has urged this Court, as it did both circuit courts, to find that

the Petitioners lack standing to litigate the disqualification issue. The Respondent argues that

the Petitioners cannot show a resulting injury-in-fact from the representation provided by the

special assistant attorneys general. We summarily reject the Respondent’s contention. Our

cases have indicated that a party may seek to disqualify an attorney even though no injury-in-

fact would occur to the party seeking disqualification. See State ex rel. Bluestone Coal Corp.

v. Mazzone, 226 W. Va. 148, 158, 697 S.E.2d 740, 750 (2010) (“[A] lawyer may be

disqualified from participating in a pending case if his continued representation would give

rise to an apparent conflict of interest or appearance of impropriety[.]”); State ex rel. Blake

v. Hatcher, 218 W. Va. 407, 414, 624 S.E.2d 844, 851 (2005) (“While standing to raise a

conflict of interest in a disqualification is generally vested with the client, an exception to this

rule exists where the interests of the public are so greatly implicated that a third party should

(continued...)

7

A. Application of the West Virginia Governmental Ethics Act

The Petitioners contend that the West Virginia Governmental Ethics Act

(hereinafter the “Act”)22 applies to the special assistant attorneys general and that, as a result,

the fee arrangements made with the special assistant attorneys general violate the Act.23 The

Respondent does not contest the fact that the Office of Attorney General and its employees

are subject to the Act. The contentious issue presented by the Petitioners is whether the

special assistant attorneys general are employees of the Office of Attorney General and,

therefore, subject to the Act. This is an issue of first impression for this Court.

We begin by observing that we must apply our rules of statutory construction

and determine whether the term “employee” under the Act includes special assistant

attorneys general. Our rules of statutory construction are well established. “The primary

21

(...continued)

be entitled to raise the conflict.” (internal quotations and citation omitted)); Musick v.

Musick, 192 W. Va. 527, 530, 453 S.E.2d 361, 364 (1994) (“[T]his Court held that a circuit

court judge . . . may disqualify a lawyer from representation in a case where that lawyer’s

representation may be in violation of the West Virginia Rules of Professional Conduct.”);

State ex rel. Morgan Stanley & Co., Inc. v. MacQueen, 187 W. Va. 97, 102, 416 S.E.2d 55,

60 (1992) (“[W]here the public interest is involved, an attorney may not represent conflicting

interests even with the consent of all concerned. The rationale underlying this rule is . . . the

ethical requirement that attorneys must avoid, as much as is possible, the appearance of

impropriety.” (internal quotations and citations omitted)).

22

See W. Va. Code § 6B-1-1 (1989) (Repl. Vol. 2010) to W. Va. Code § 6B-3-

11 (2005) (Repl. Vol. 2010).

23

The terms of the fee arrangements are discussed further in this Section of the

opinion, infra.

8

object in construing a statute is to ascertain and give effect to the intent of the Legislature.”

Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361

(1975). “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.”

Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951). In other words, “[w]here

the language of a statutory provision is plain, its terms should be applied as written and not

construed.” DeVane v. Kennedy, 205 W. Va. 519, 529, 519 S.E.2d 622, 632 (1999) (citations

omitted). “Only when such language is ambiguous may we interpret and construe a statutory

provision.” Webster Cnty. Comm’n v. Clayton, 206 W. Va. 107, 112, 522 S.E.2d 201, 206

(1999). Further, “[s]tatutes which relate to the same subject matter should be read and

applied together so that the Legislature’s intention can be gathered from the whole of the

enactments.” Syl. pt. 3, Smith, 159 W. Va. 108, 219 S.E.2d 361.

The Legislature created the Act

to define and establish minimum ethical standards for elected

and appointed public officials and public employees; to

eliminate actual conflicts of interest; to provide a means to

define ethical standards; to provide a means of investigating and

resolving ethical violations; and to provide administrative and

criminal penalties for specific ethical violations herein found to

be unlawful.

W. Va Code § 6B-1-2(b) (1989) (Repl. Vol. 2010). The Act establishes administrative civil

9

and criminal penalties24 for public officials and employees who “exercise the powers of their

office or employment for personal gain beyond the lawful emoluments of their position[.]”

W. Va. Code § 6B-1-2(a). A twelve-member Ethics Commission is established under the

Act. See W. Va. Code § 6B-2-1 (2008) (Repl. Vol. 2010). The Ethics Commission is

empowered to “initiate or receive complaints and make investigations . . . of an alleged

violation of [the Act] by a public official or public employee[.]” W. Va. Code § 6B-2-2(b)

(2005) (Repl. Vol. 2010).25 See W. Va. Code § 6B-2-4 (2008) (Repl. Vol. 2010) (processing

complaints). The Act sets out ethical standards for public officials and employees under

W. Va. Code § 6B-2-5 (2008) (Repl. Vol. 2010). The Act specifically provides that it applies

“to all elected and appointed public officials and public employees, whether full or part time,

in state, county, municipal governments and their respective boards, agencies, departments

and commissions and in any other regional or local governmental agency, including county

school boards.” W. Va. Code § 6B-2-5(a). Critical to this case, the Act defines public

“employee” as

any person in the service of another under any contract of hire,

whether express or implied, oral or written, where the employer

or an agent of the employer or a public official has the right or

power to control and direct such person in the material details of

24

See W. Va. Code § 6B-2-10 (2005) (Repl. Vol. 2010) (violations and

penalties).

25

The Act created a Probable Cause Review Board to make an initial

determination of “whether there is probable cause to believe that a violation of the West

Virginia Governmental Ethics Act has occurred and, if so, to refer that investigation to the

Ethics Commission.” W. Va. Code § 6B-2-2a(a) (2008) (Repl. Vol. 2010).

10

how work is to be performed and who is not responsible for the

making of policy nor for recommending official action.

W. Va. Code § 6B-1-3(d) (2008) (Repl. Vol. 2010) (emphasis added).

The Petitioners contend that under the definition of “employee,” as set out in

W. Va. Code § 6B-1-3(d), the special assistant attorneys general are employees of the Office

of Attorney General. The Petitioners base this assertion on two grounds. First, the

Petitioners contend that the letters appointing the attorneys, as special assistant attorneys

general, were contracts of hire. Second, the Petitioners assert that the Attorney General

exercised control over the work of the special assistant attorneys general.26 Resolution of the

first issue makes it unnecessary for us to address the second issue in the context raised.27

To begin, one of the requirements for being an employee under W. Va. Code

§ 6B-1-3(d) is the formation of a contract of hire. The statute does not define the phrase

“contract of hire.” We have held that “[i]n the absence of any definition of the intended

meaning of words or terms used in a legislative enactment, they will, in the interpretation of

the act, be given their common, ordinary and accepted meaning in the connection in which

26

The brief of Petitioner GlaxoSmithKline was far more general in this area

than the specific issues raised by the brief of the other Petitioners. As such, we have

incorporated the general arguments of Petitioner GalxoSmithKline into the more precise

arguments of the other Petitioners.

27

The second issue is addressed in a different context in Section III.B. of this

opinion, infra.

11

they are used.” Syl. pt. 1, Miners in Gen. Grp. v. Hix, 123 W. Va. 637, 17 S.E.2d 810

(1941), overruled on other grounds by Lee–Norse Co. v. Rutledge, 170 W. Va. 162, 291

S.E.2d 477 (1982). See State v. Kenyon, Inc., 153 S.W.2d 195, 197 (Tex. Civ. App. 1941)

(“Since the statute does not define the term ‘contract of hire,’ we are required to apply Sec.

24, O.S.1931, 25 Okla. St. Ann. § 1, which provides that ‘words used in any statute are to be

understood in their ordinary sense, except when a contrary intention plainly appears.’”).

Indeed, one court has suggested that “[t]he term ‘contract of hire’ is not defined in the act

probably because the legislature felt that the expression was so well established, understood

and definite, that it needs no further amplification or exposition. It is used in its common

meaning and acceptation.” Child v. Board of Review of Indus. Comm’n of State, 332 P.2d

928, 931 (Utah 1958) (internal quotation and citation omitted).

When confronted with a statute that did not define the phrase “contract of hire,”

courts have uniformly held such a contract to mean one where

the services to be performed by the employee must be

compensated for in wages or their equivalent. It is impossible

to have a contract of hire unless the person denominated the

employer has an obligation to pay the person employed.

Stapleton v. Administrator, Unemployment Comp. Act, 112 A.2d 211, 213 (Conn. 1955)

(citations omitted). See Child, 332 P.2d at 931 (stating that “a contract of hire” “is an

agreement whereby one undertakes or obligates himself to render personal service for

another for a remuneration to be paid because the service was rendered” (internal quotations

and citation omitted)). In other words, “[a] ‘contract [of] hire’ is defined as any agreement

12

under which one person performs personal services at the request of another who pays for

the services.” Adele’s Housekeeping, Inc. v. Department of Emp’t Sec., 757 P.2d 480, 483

(Utah Ct. App. 1988) (internal quotations and citation omitted). See Daleiden v. Jefferson

Cnty. Joint Sch. Dist., 80 P.3d 1067, 1070 (Idaho 2003) (“[A] ‘contract of hire’ is usually

defined as an agreement in which an employee provides labor or personal services to an

employer for wages or remuneration or other thing of value supplied by the employer.”);

Deville v. Pugh, 490 So. 2d 800, 802 (La. Ct. App. 1986) (“LSA-C.C. Art. 2669 defines a

contract of hire as one ‘by which one party gives to the other the enjoyment of . . . his labor,

at a fixed price.’”); Appeal of Jenks, 965 A.2d 1073, 1076 (N.H. 2008) (“[I]n order to

establish a contract [of] hire, the claimant must have received or expected to receive payment

of some kind.” (internal quotations and citation omitted)); Gibbs v. Newport News

Shipbuilding & Drydock Co., 733 S.E.2d 648, 654 (Va. 2012) (“A ‘contract of hire’ is

usually defined as an agreement [written or implied] in which an employee provides labor

or personal services to an employer for wages or remuneration or other thing of value

supplied by the employer.”). “Moreover, an employee’s right to demand payment for his

services from the employer would seem to be essential to his right to receive compensation.”

Kirksey v. Assurance Tire Co., 428 S.E.2d 721, 723 (S.C. Ct. App. 1993) (internal quotations

and citation omitted).

In view of the above authorities we now hold that the phrase “contract of hire,”

in W. Va. Code § 6B-1-3(d) (2008) (Repl. Vol. 2010) of the West Virginia Governmental

13

Ethics Act, refers to an agreement in which a person provides labor or personal services to

a government entity for wages or a salary.28

Because of this commonly-accepted meaning of the phrase “contract of hire,”

it was incumbent upon the Petitioners to present evidence showing that the Attorney General

agreed to pay the special assistant attorneys general remuneration for their services. The

Petitioners failed to do so. In fact, the evidence shows the special assistant attorneys general

may not receive any compensation for their legal services. The appointment letters sent to

the special assistant attorneys general stated, in relevant part:

It is contemplated that you will advance all expenses

associated with the maintenance of this action. Subject to the

approval of the court, it is anticipated that you should earn a

proper, reasonable and customary fee.[29]

(Footnote added). The language from the appointment letters does not require the Attorney

28

We wish to make clear that this definition alone does not make a person an

employee under the Act. This is merely one factor that must be met.

29

The appointment letter sent to the private attorneys in the case against

GlaxoSmithKline was amended to read, in relevant part:

It is contemplated that you will advance all expenses

associated with the maintenance of this action. Subject to the

approval of the court, it is contemplated that you should earn a

proper, reasonable and customary fee to be paid by the

Defendant. However, you will not receive any fee based upon

any recovery by the State for harm to the State’s Medicaid

program that is subject to refund to the Centers for Medicare and

Medicaid Services.

14

General to pay the special assistant attorneys general wages or anything of value. All that

the letters provide is that the special assistant attorneys general must pay the cost of litigating

the cases and that, if they prevail, a court may award them attorney’s fees. The Mason

County Circuit Court’s order, in Case No. 13-0086, set out findings of fact that accurately

described the issue of compensation to the special assistant attorneys general:

The lawyers took the chance to spend their money to

prosecute this action on behalf of West Virginia when they were

not promised any hourly fee or the reimbursements of their

expenses and costs. If they lost this case the West Virginia

taxpayers would not have to pay any money–but the lawyers

would have lost a substantial amount of money.

(Internal quotations and citation omitted). In the final analysis, “[i]t is impossible to have a

contract of hire unless the person denominated the employer has an obligation to pay the

person employed.” Stapleton, 112 A.2d at 213.30 No evidence was provided in this

proceeding to establish this very fundamental requirement.

Consequently, we now hold that, under the definition of “employee” provided

by W. Va. Code § 6B-1-3(d) (2008) (Repl. Vol. 2010) of the West Virginia Governmental

Ethics Act, a private attorney appointed as a special assistant attorney general is not an

employee of the Office of the Attorney General.

30

“When services or labor are rendered voluntarily without a promise of

compensation or remuneration of any kind, express or implied, then the one providing the

services or labor has supplied them gratuitously[.]” Charlottesville Music Ctr., Inc. v.

McCray, 205 S.E.2d 674, 678 (Va. 1974).

15

Our holding is consistent with other language found in the Act. For example,

under W. Va. Code § 6B-2-5(l)(1) (2008) (Repl. Vol. 2010) of the Act, the Legislature has

prohibited public employees from receiving certain compensation. This provision provides,

in relevant part:

(1) A public employee may not receive additional

compensation from another publicly-funded state, county or

municipal office or employment for working the same hours,

unless:

....

(C) The public employee uses earned paid vacation,

personal or compensatory time or takes unpaid leave from his or

her public employment to perform the duties of another public

office or employment.

It is clear that, under the Act, W. Va. Code § 6B-2-5(l)(1), it is contemplated that an

employee will accrue “paid vacation or compensatory time.” Nothing in the record submitted

in these cases shows that the special assistant attorneys general have the right to accrue

vacation or compensatory time from the Office of the Attorney General. See Williams v.

Brown, 190 W. Va. 202, 207, 437 S.E.2d 775, 780 (1993) (“[A]ssistant attorneys general

receive certain employment-related benefits, such as health insurance and retirement, as do

other state employees[.]”). No such evidence was presented because the special assistant

attorneys general are not employees of the Attorney General.31 See Conant v. Robins,

31

Because we have determined that the special assistant attorneys general are

not employees of the Attorney General, for purposes of the Act, we need not address

Petitioners’ argument that the fee arrangement made with the special assistant attorneys

(continued...)

16

Kaplan, Miller & Ciresi, L.L.P., 603 N.W.2d 143, 145 (Minn. Ct. App. 1999) (“[T]he State

of Minnesota retained the law firm of Robins, Kaplan, Miller Ciresi, L.L.P., and attorney

Michael Ciresi to serve as special attorneys to represent the state in litigation against certain

tobacco companies to recover damages arising from the sale and distribution of cigarettes.

The special attorneys, although serving at the direction of the attorney general, were not

considered state employees and were not eligible for state benefits[.]”).

B. Application of Rule 1.7 of the

West Virginia Rules of Professional Conduct

The Petitioners in Case No. 13-0086 have argued that the “contingency” fee

arrangement made with the special assistant attorneys general violates the conflict of interest

provision of Rule 1.7(b) of the West Virginia Rules of Professional Conduct.32 This issue

requires that we examine the language of Rule 1.7(b). We have recognized that “court rules

are interpreted using the same principles and canons of construction that govern the

interpretation of statutes.” Casaccio v. Curtiss, 228 W. Va. 156, ___, 718 S.E.2d 506, 511

31

(...continued)

general violated the Act. We also summarily reject the Petitioners’ contention that the

special assistant attorneys general could not prosecute the actions because W. Va. Code

§ 46A-7-102(1)(f) (1996) (Repl. Vol. 2006) only authorizes the Attorney General to

“[d]elegate his powers and duties under this chapter to qualified personnel in his office[.]”

In view of our discussion of the Attorney General’s inherent common law powers infra at

Section III.C., we find that the Attorney General had authority to appoint special assistant

attorneys general to act as lead counsel in these cases: all of the complaints in these cases

were signed by the Attorney General’s Chief Deputy.

32

Petitioner GlaxoSmithKline did not brief this issue.

17

(2011) (citations omitted). Further, we also have indicated that “where the language of a rule

is clear and unambiguous, it should not be construed but applied according to its terms.” Syl.

pt. 3, in part, State v. Mason, 157 W. Va. 923, 205 S.E.2d 819 (1974).

The language of Rule 1.7(b) provides:

A lawyer shall not represent a client if the representation

of that client may be materially limited by the lawyer’s

responsibilities to another client or to a third person, or by the

lawyer’s own interests, unless:

(1) the lawyer reasonably believes the representation will

not be adversely affected; and

(2) the client consents after consultation. When

representation of multiple clients in a single matter is

undertaken, the consultation shall include explanation of the

implications of the common representation and the advantages

and risks involved.

(Emphasis added). Petitioners have isolated the third clause in Rule 1.7(b), “by the lawyer’s

own interests,” as being violated. In other words, the Petitioners contend that the interests

of the special assistant attorneys general in obtaining a fee will materially limit their

responsibilities to their client, the State.

The Mason County Circuit Court found that Rule 1.7(b) was not applicable

because, among other reasons, the rule only applies to an attorney representing two clients.

In support of its position, the Mason County Circuit Court’s order quoted and relied upon a

subheading in the opinion of In re James, 223 W. Va. 870, 679 S.E.2d 702 (2009).

Specifically, the circuit court’s order quoted the following subheading from James: “1. Rule

18

1.7 does not apply unless there are two actual clients.” James, 223 W. Va. at 876, 679

S.E.2d at 708 (emphasis in original). We find that the Mason County Circuit Court

misinterpreted James.

The decision in James was a lawyer disciplinary proceeding in which the

Office of Disciplinary Counsel (hereinafter the “ODC”) disagreed with the Hearing Panel

Subcommittee’s recommendation to dismiss charges against the lawyer in the case. ODC

contended that the lawyer violated Rule 1.7 when he represented a client in a criminal matter

arising from an automobile accident and provided advice and assistance to another person

involving the same or a substantially related matter. The issue this Court addressed in James

was whether Rule 1.7 was applicable to a situation in which an attorney represents an actual

client and gives advice to a potential client. The opinion concluded that “Rule 1.7 of the

Rules of Professional Conduct does not apply to this situation involving one actual client . . .

and one potential client[.]” James, 223 W. Va. at 877, 679 S.E.2d at 709. It was this ruling

that the subheading was intended to reflect.

To be clear, in spite of the subheading used in James, the decision did not hold

that Rule 1.7 may be invoked only when a lawyer represents two clients. The subheading

was descriptive of the specific issue addressed in that particular case and was not a

dispositive ruling on the entire coverage of Rule 1.7. Rule 1.7(b) actually addresses three

19

situations.33 The rule addresses the issue of a lawyer’s conflict of interest involving his or

her client and (1) another client, (2) a third person, or (3) the lawyer’s own interests. See

State ex rel. Verizon West Virginia, Inc. v. Matish, ___ W. Va. ___, ___, 740 S.E.2d 84, 92

(2013) (“Pursuant to the express language of West Virginia Rule of Professional Conduct

1.7(b), a lawyer is prohibited from representing a client if such representation may be

materially limited by the lawyer’s responsibilities to another client or to a third person, or by

the lawyer’s own interests.” (internal quotations and citation omitted)). The decision in

Committee on Legal Ethics of The West Virginia State Bar v. Cometti, 189 W. Va. 262, 430

S.E.2d 320 (1993), illustrates the application of the third prohibition in Rule 1.7(b).

In Cometti, a lawyer was charged with violating Rule 1.7(b) when he filed suit

against his former client in order to retrieve property that belonged to him but that was in the

possession of the former client. No other client was involved in the case; therefore the only

provision in Rule 1.7(b) that was applicable was the “lawyer’s own interests” provision. This

Court found that the lawyer did not violate this provision, by placing his own interests above

33

Rule 1.7(a) is limited to a lawyer’s representation of two clients:

(a) A lawyer shall not represent a client if the

representation of that client will be directly adverse to another

client, unless:

(1) the lawyer reasonably believes the representation will

not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

20

his client’s interests, because he no longer represented the client:

Mr. Cometti contends that he had been discharged from

his representation of Ms. Shrewsbury at the time he filed the

civil action. Although the facts surrounding Mr. Cometti’s

withdrawal as Ms. Shrewsbury’s attorney in the heating system

case are convoluted, it is clear that both parties had engaged in,

at the least, very heated discussions concerning his withdrawal.

We are persuaded that Mr. Cometti had withdrawn at the time

he filed suit by the testimony of L. Alvin Hunt, a lawyer sought

out by Ms. Shrewsbury to take over her heating system case.

Mr. Hunt testified to the Committee that several days prior to

the institution of Mr. Cometti’s suit against Ms. Shrewsbury, she

sought his services and told him that Mr. Cometti was no longer

her attorney. Because Mr. Cometti no longer represented Ms.

Shrewsbury at the time he instituted the suit to gain access to the

property to obtain his possessions, we find that Mr. Cometti did

not violate Rule 1.7(b).

Cometti, 189 W. Va. at 268, 430 S.E.2d at 326.

Thus it is clear that, in the instant case, the Mason County Circuit Court erred

in finding that Rule 1.7(b) could be invoked only when a lawyer has a conflict of interest that

involves two clients. While we reject the circuit court’s finding on this narrow ground, we

agree with the ultimate decision of the circuit court that Rule 1.7(b) was not violated by the

fee arrangement of the special assistant attorneys general.

21

1. Viewing the litigation as quasi-criminal. The Petitioners argue that this

Court should view the case as a criminal proceeding because of the statutory civil penalties

that may be imposed if liability is found.34 Further, the Petitioners contend that, insofar as

courts prohibit criminal prosecuting attorneys from having a financial interest in the outcome

of criminal cases, this Court should prohibit the appointment of the special assistant attorneys

general because they have a financial interest in the outcome of the litigation. See State v.

Culbreath, 30 S.W.3d 309, 314 (Tenn. 2000) (“Numerous courts and commentators have

recognized, however, that the use of a private attorney in the prosecution of a criminal case

may present ethical dilemmas, including conflicts of interest.”).

The Petitioners’ brief cites to several cases in which courts have noted in dicta

that statutory causes of action imposing civil penalties may be viewed as quasi-criminal in

nature. See, e.g., Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 355, 118 S. Ct.

1279, 1288, 140 L. Ed. 2d 438 (1998) (“Moreover, the awarding of civil penalties to the

Government could be viewed as analogous to sentencing in a criminal proceeding.”); Louis

Vuitton S.A. v. Spencer Handbags Corp., 765 F.2d 966, 971-72 (2d Cir. 1985) (“The Ex Post

Facto Clause . . . may also be applied in civil cases where the civil disabilities disguise

criminal penalties.”); First Am. Bank of Virginia v. Dole, 763 F.2d 644, 651 n.6 (4th Cir.

1985) (“Civil penalties may be considered ‘quasi-criminal’ in nature.”); United States v.

34

Petitioner GlaxoSmithKline also argued that the litigation should be viewed

as quasi-criminal in general, but not in the context of Rule 1.7(b).

22

Sanchez, 520 F. Supp. 1038, 1040 (S.D. Fla. 1981) (“At the outset, the Court would note that

while technically these cases are civil actions, the imposition of a fine as a penalty for

violation of the law can be considered ‘quasi-criminal’ in nature.”). In further support of

their argument, the Petitioners contend that the special assistant attorneys general will

recommend that the Attorney General pursue penalties based on their own financial interests.

Assuming, for the sake of argument, that this Court treated this case as “quasi-

criminal” in nature because of the civil penalties,35 Petitioners have failed to demonstrate

35

This Court has recognized the following test for determining whether a

monetary penalty should be treated as a criminal or civil penalty:

The question of whether a particular statutorily defined

penalty is civil or criminal is a matter of statutory construction,

and requires the application of a two-level inquiry. . . . First,

courts must determine whether the legislature indicated, either

expressly or impliedly, a preference for labeling the statute civil

or criminal. Second, if the legislature indicates an intention to

establish a civil remedy, courts must consider whether the

legislature, irrespective of its intent to create a civil remedy,

provided for sanctions so punitive as to transform the civil

remedy into a criminal penalty.

Syl. pt. 1, in part, State ex rel. Palumbo v. Graley’s Body Shop, Inc., 188 W. Va. 501, 425

S.E.2d 177 (1992). As a general matter, when courts are asked to determine whether a

statutory penalty is criminal or civil, it is because a litigant seeks to raise constitutional rights

that are protected in criminal proceedings. See Kennedy v. Mendoza-Martinez, 372 U.S. 144,

185-86, 83 S. Ct. 554, 576-77, 9 L. Ed. 2d 644 (1963) (finding civil penalties “punitive and

as such cannot constitutionally stand, lacking as they do the procedural safeguards which the

Constitution commands”); Town of Babylon v. Pekich, Nos. 2010-113 S C, 2010-114 S C,

2010-506 S C, 2010-508 S C, 2010-510 S C, 2010-513 S C, 2010-518 S C, 2010-522 S C,

2010-524 S C, and 2010-525 S C, 2011 WL 3689379, at *1 (N.Y. App. Term Aug. 16, 2011)

(continued...)

23

how this would lead to the conclusion that Rule 1.7(b) is violated by the appointment of the

special assistant attorneys general.

We fail to see how recommending penalties to the Attorney General, in and of

itself, presents a conflict of interest by the special assistant attorneys general. First,

recommendations are mere suggestions that can be rejected. Second, the complaints in this

matter demonstrate that the Attorney General determined and set out the penalties sought in

these cases. The complaints meticulously set out penalties ranging from monetary to

injunctive relief. The complaints were styled in the name of the Attorney General, on behalf

of the State, and were signed by the Chief Deputy Attorney General.36 Insofar as the

evidence demonstrates that the Attorney General chose and approved of the penalties to be

sought if liability was established, we find the Petitioners’ arguments in this regard do not

support a violation of Rule 1.7(b).

35

(...continued)

(“[W]e find that the Fourth Amendment applies to this quasi-criminal action to enforce

provisions of a municipal code and recover penalties[.]”); City of Jackson v. Butler, 10

S.W.3d 250, 253 (Tenn. Ct. App. 1999) (“While it has been held that the exclusionary rule

does not apply to a civil proceeding, it is usually held that the rule applies to a civil

proceeding which is quasi-criminal in nature, or in which the government is seeking to exact

a penalty or in some way punish a person.”); Sims v. State Tax Comm’n, 841 P.2d 6, 13-15

(Utah 1992) (holding exclusionary rule applied to civil proceeding when proceeding was

quasi-criminal and law enforcement entities were financially motivated to acquire evidence

of tax violations based on statutory provision for distribution of sixty percent of taxes,

penalties, and interest collected to law enforcement agency).

36

The complaints also were signed by one of the special assistant attorneys

general.

24

2. Maximizing attorney’s fees based upon penalties pursued. The

Petitioners also appear to be making a general argument, not in the context of Rule 1.7(b),

that the special assistant attorneys general will prosecute this case in a manner that

maximizes their interests in attorney’s fees by seeking penalties based on their own financial

interests, rather than based on an impartial sense of justice or the public’s interest.37 We

reject this argument for three reasons. First, the Petitioners have failed to show how any

attorney’s fee recovered by the special assistant attorneys general is inextricably tied to the

nature of the relief obtained, if they are successful. In other words, there is nothing in the

record, statutes, or case law which states that the actual amount of attorney’s fees awarded

is exclusively dependent on the nature of the relief obtained.38 Second, the Petitioners fail

37

Petitioner GlaxoSmithKline also makes this general argument.

38

The standard for determining the amount of an award of attorney’s fees is set

out in Syllabus point 4 of Aetna Casualty and Surety Co. v. Pitrolo, 176 W. Va. 190, 342

S.E.2d 156 (1986):

Where attorney’s fees are sought against a third party, the

test of what should be considered a reasonable fee is determined

not solely by the fee arrangement between the attorney and his

client. The reasonableness of attorney’s fees is generally based

on broader factors such as: (1) the time and labor required; (2)

the novelty and difficulty of the questions; (3) the skill requisite

to perform the legal service properly; (4) the preclusion of other

employment by the attorney due to acceptance of the case; (5)

the customary fee; (6) whether the fee is fixed or contingent; (7)

time limitations imposed by the client or the circumstances; (8)

the amount involved and the results obtained; (9) the experience,

(continued...)

25

to acknowledge that the Attorney General monitors the litigation in this case. The special

assistant attorneys general do not have absolute control of the litigation. The appointment

letters provided to the special assistant attorneys general state:

In keeping with the Attorney General’s policies and

practices, it is anticipated that this office will be kept apprised

of any and all actions taken in this case, and it is anticipated that

we will have regular ongoing discussions regarding tactics and

strategy.

Based upon the wording of the appointment letters, the Attorney General retained the

authority to decide strategy and tactics. Third, the Petitioners appear to not fully understand

that the issue of the amount of attorney’s fees is purely discretionary with the trial court.

Success by the special assistant attorneys general does not result in any predetermined

amount of attorney’s fees. The trial court determines the amount, if any, of attorney’s fees

to be awarded. See Syl. pt. 2, Sally–Mike Props. v. Yokum, 179 W. Va. 48, 365 S.E.2d 246

(1986) (“As a general rule each litigant bears his or her own attorney’s fees absent a contrary

rule of court or express statutory or contractual authority for reimbursement.”).

38

(...continued)

reputation, and ability of the attorneys; (10) the undesirability of

the case; (11) the nature and length of the professional

relationship with the client; and (12) awards in similar cases.

26

3. Application of Clancy. The Petitioners in Case No. 13-0086 ask this Court

to follow the decision in People ex rel. Clancy v. Superior Court, 218 Cal. Rptr. 24

(Cal. 1985), in order to find that the special assistant attorneys general have a financial

conflict of interest.39 In Clancy, the City of Corona hired a private attorney to prosecute a

nuisance action against the owner of a store that sold sexually explicit reading materials and

provided an arcade section for viewing sexually explicit films. The case was brought to the

California Supreme Court on extraordinary writs by both parties to the action. The defendant

bookstore owner asked the Supreme Court to disqualify the city’s private attorney because

of the fee arrangement with the city. Under that arrangement, the private attorney was

guaranteed $30.00 per hour, but could receive $60.00 per hour if the city was successful and

it obtained attorney’s fees from the defendant. The California Supreme Court found the fee

arrangement to be improper and disqualified the attorney:

In the case at bar, Clancy has an interest in the result of

the case: his hourly rate will double if the City is successful in

the litigation. Obviously this arrangement gives him an interest

extraneous to his official function in the actions he prosecutes

on behalf of the City.

....

[T]he abatement of a public nuisance involves a balancing of

interests. On the one hand is the interest of the people in ridding

their city of an obnoxious or dangerous condition; on the other

hand is the interest of the landowner in using his property as he

wishes. And when an establishment such as an adult bookstore

is the subject of the abatement action, something more is added

39

The brief of Petitioner GlaxoSmithKline does not cite to this case.

27

to the balance: not only does the landowner have a First

Amendment interest in selling protected material, but the public

has a First Amendment interest in having such material available

for purchase. Thus, as with an eminent domain action, the

abatement of a public nuisance involves a delicate weighing of

values. Any financial arrangement that would tempt the

government attorney to tip the scale cannot be tolerated.

Public nuisance abatement actions share the public

interest aspect of eminent domain and criminal cases, and often

coincide with criminal prosecutions. These actions are brought

in the name of the People by the district attorney or city

attorney. A person who maintains or commits a public nuisance

is guilty of a misdemeanor. . . . A suit to abate a public nuisance

can trigger a criminal prosecution of the owner of the property.

This connection between the civil and criminal aspects of public

nuisance law further supports the need for a neutral prosecuting

attorney.

Clancy, 218 Cal. Rptr. at 28-30 (citations omitted).

Although the Petitioners seek to have this Court follow Clancy, it is quite

obvious that Clancy is distinguishable from the facts of the instant case. To begin, Clancy

involved a private attorney prosecuting a civil action for alleged conduct that also was

criminal. The Petitioners in the instant case have not cited to any criminal component to the

allegations set out in the civil complaints.40 Next, the private attorney in Clancy was

guaranteed an hourly fee and could have his fee doubled if successful. In the instant case,

40

There is a criminal component to the Consumer Credit and Protection Act for

certain conduct. See W. Va. Code § 46A-5-103 (1996) (Repl. Vol. 2006). However, the

Petitioners have not argued that any of the criminal offenses under that statute have

application to their alleged conduct.

28

the special assistant attorneys general are not guaranteed any fee and could be denied the

same by the trial judge even if successful.41 Finally, the private attorney in Clancy acted

independently of the city’s attorney and had absolute control of the litigation.42 In the instant

case, the Attorney General retained ultimate control of litigation strategy and tactics. This

latter issue was squarely addressed by the California Supreme Court in the recent case of

County of Santa Clara v. Superior Court, 112 Cal. Rptr. 3d 697 (Cal. 2010).

In Santa Clara, several California counties and cities prosecuted a public

nuisance action against numerous businesses that manufactured lead paint. The government

entities were represented by both their own government attorneys and by several private law

firms. The private law firms were retained by the government entities on a contingent fee

basis. The issue presented to the California Supreme Court was whether the trial court was

correct in relying on Clancy to prohibit compensation to the privately retained counsel or

whether the court of appeal was correct in holding that Clancy did not prohibit compensating

private attorneys on a contingent fee basis when they are under the supervision of

41

Indeed, W. Va. Code § 46A-7-111(1) (1999) (Repl. Vol. 2006) provides that

“[i]f the creditor establishes by a preponderance of evidence that a violation is unintentional

or the result of a bona fide error, no liability to pay a penalty shall be imposed under this

subsection.”

42

This point is important because the California Supreme Court indicated that

the city could retain the private attorney in the case to represent the city attorney if the city

attorney filed the action in the name of the city attorney. See Clancy, 218 Cal. Rptr. at 30

n.5 (“Thus on remand the action herein should be brought in the name of Dallas Holmes, the

Corona City Attorney. The City may hire Clancy to represent Holmes.”).

29

government attorneys. The Supreme Court agreed with the court of appeal:

There is no indication that the contingent-fee

arrangements in the present case have created a danger of

governmental overreaching or economic coercion. Defendants

are large corporations with access to abundant monetary and

legal resources. Accordingly, the concern we expressed in

Clancy about the misuse of governmental resources against an

outmatched individual defendant is not implicated in the present

case.

Thus, because–in contrast to the situation in Clancy–

neither a liberty interest nor the right of an existing business to

continued operation is threatened by the present prosecution,

this case is closer on the spectrum to an ordinary civil case than

it is to a criminal prosecution. The role played in the current

setting both by the government attorneys and by the private

attorneys differs significantly from that played by the private

attorney in Clancy. Accordingly, the absolute prohibition on

contingent-fee arrangements imported in Clancy from the

context of criminal proceedings is unwarranted in the

circumstances of the present civil public-nuisance action.

....

We generally agree with the . . . Court of Appeal in the

present case that there is a critical distinction between an

employment arrangement that fully delegates governmental

authority to a private party possessing a personal interest in the

case, and an arrangement specifying that private counsel remain

subject to the supervision and control of government attorneys.

Private counsel serving in a subordinate role do not supplant a

public entity’s government attorneys, who have no personal or

pecuniary interest in a case and therefore remain free of a

conflict of interest that might require disqualification.

Accordingly, in a case in which private counsel are subject to

the supervision and control of government attorneys, the

discretionary decisions vital to an impartial prosecution are

made by neutral attorneys and the prosecution may proceed with

the assistance of private counsel, even though the latter have a

pecuniary interest in the case.

30

It is true that the public attorneys’ decisionmaking

conceivably could be influenced by their professional reliance

upon the private attorneys’ expertise and a concomitant sense of

obligation to those attorneys to ensure that they receive payment

for their many hours of work on the case. This circumstance

may fairly be viewed as being somewhat akin to having a

personal interest in the case. Nevertheless, this is not the type

of personal conflict of interest that requires disqualification. . . .

Almost any fee arrangement between attorney and client may

give rise to a conflict. . . . The contingent fee contract so

common in civil litigation creates a conflict when either the

attorney or the client needs a quick settlement while the other’s

interest would be better served by pressing on in the hope of a

greater recovery. The variants of this kind of conflict are

infinite. Fortunately most attorneys serve their clients honorably

despite the opportunity to profit by neglecting or betraying the

client’s interest.

As recognized by the American Bar Association,

attorneys are expected to resolve conflicts between their

personal interests and their ethical and professional

responsibilities through the exercise of sensitive professionalism

and moral judgment. In other words, attorneys are presumed to

comport themselves with ethical integrity and to abide by all

rules of professional conduct.

Santa Clara, 112 Cal. Rptr. 3d at 713-17 (internal quotations and citations omitted).

The decision in Santa Clara is factually similar to the instant case with respect

to two critical issues. The government entities in Santa Clara had both private and public

counsel. In this proceeding, the Chief Deputy Attorney General is counsel of record along

with the special assistant attorneys general. Most importantly, in both Santa Clara and the

instant case, private attorneys are subject to supervision by government attorneys.

31

In the final analysis, the Petitioners have failed to present any evidence that the

financial interests of the special assistant attorneys general is in conflict with that of their

client and therefore violative of Rule 1.7(b). See In re T.R., 606 S.E.2d 630, 632 (Ga. Ct.

App. 2004) (“[A] person must demonstrate an actual conflict of interest affecting the

performance of a lawyer who works as a part-time [special assistant attorney general], not

just the mere possibility of a conflict.”).

C. The Attorney General’s Authority to

Appoint Special Assistant Attorneys General

The final issue raised by the Petitioners is that the Attorney General lacks

authority to appoint special assistant attorneys general.43 The Petitioners support this

argument by asserting that, under Article VII, Section 1 of the West Virginia Constitution,

the Legislature has been given exclusive authority to set out the duties of the Attorney

General but that the Legislature has not granted the Attorney General the authority to appoint

special assistant attorneys general. Further, the Petitioners contend that, by virtue of Article

VII, Section 1, the Attorney General does not have common law authority to appoint special

assistant attorneys general. Finally, it is argued by the Petitioners that, even if the Attorney

General had authority to appoint special assistant attorneys general, he did not have authority

to enter a fee arrangement with them.

43

This issue was briefed by the parties in both petitions.

32

As a preliminary matter, we observe that, although this Court is vested with the

authority “to construe, interpret and apply provisions of the Constitution, . . . [we] may not

add to, distort or ignore the plain mandates thereof.” State ex rel. Bagley v. Blankenship, 161

W. Va. 630, 643, 246 S.E.2d 99, 107 (1978). “If a constitutional provision is clear in its

terms, and the intention of the electorate is clearly embraced in the language of the provision

itself, this Court must apply and not interpret the provision.” Syl. pt 1, State ex rel. Trent

v. Sims, 138 W. Va. 244, 77 S.E.2d 122 (1953). “However, if the language of the

constitutional provision is ambiguous, then the ordinary principles employed in statutory

construction must be applied to ascertain such intent.” State ex rel. Forbes v. Caperton, 198

W. Va. 474, 480, 481 S.E.2d 780, 786 (1996) (internal quotations and citations omitted).

We begin by observing that Article VII, Section 1 of the West Virginia

Constitution establishes the creation of the Office of Attorney General:

The executive department shall consist of a governor,

secretary of state, auditor, treasurer, commissioner of agriculture

and attorney general, who shall be ex officio reporter of the

court of appeals. Their terms of office shall be four years and

shall commence on the first Monday after the second

Wednesday of January next after their election. They shall

reside at the seat of government during their terms of office,

keep there the public records, books and papers pertaining to

their respective offices and shall perform such duties as may be

prescribed by law.

(Emphasis added). See Syl. pt. 2, State ex rel. McGraw v. Burton, 212 W. Va. 23, 569

S.E.2d 99 (2002) (“Pursuant to Article VII, Section 1 of the West Virginia Constitution, the

33

Attorney General of the State of West Virginia is the State’s chief legal officer, which status

necessarily implies having the constitutional responsibility for providing legal counsel to

State officials and State entities.”). It is obvious that Article VII, Section 1 does not

expressly grant nor deny the Attorney General the authority to appoint special assistant

attorneys general. Put simply, the constitutional provision is silent on the issue.

Under Article VII, Section 1, the Attorney General is required to be the

reporter of the opinions of this Court, reside at the seat of government, and maintain the

office’s public records, books, and papers. The last clause of Article VII, Section 1, “shall

perform such duties as may be prescribed by law,” expressly authorizes the Legislature to

establish duties of the Attorney General’s office.

The Petitioners note that the Legislature has expressly provided for the

appointment of assistant attorneys general and the method of their payment under W. Va.

Code § 5-3-3 (1961) (Repl. Vol. 2011).44 However, according to the Petitioners, this statute

does not authorize the appointment of special assistant attorneys general. Further, the

Petitioners contend that, under this Court’s decision in Manchin v. Browning, 170 W. Va.

779, 296 S.E.2d 909 (1982), the Attorney General does not have common law authority to

appoint special assistant attorneys general. We will examine both contentions separately

44

See Section III.C.2., infra, for further treatment of W. Va. Code § 5-3-3

(1961) (Repl. Vol. 2011).

34

below.

1. The Attorney General’s common law authority. The issue of the

common law authority of the Attorney General was first addressed by this Court in State v.

Ehrlick, 65 W. Va. 700, 64 S.E. 935 (1909). The decision in Ehrlick addressed the issue of

whether a county prosecutor could file a petition for an injunction in the name of the State.

The prosecutor filed the petition to enjoin the defendants from carrying on a horse racing

gambling operation. After a circuit court granted the prosecutor the relief requested, the

defendants appealed. The defendants contended on appeal that only the Attorney General

had authority to bring the civil petition in the name of the State. This Court agreed with the

defendants. In discussing the powers of the Attorney General and prosecutor, the opinion

noted that the Attorney General possessed common law powers. While not dispositive for

reversing the trial court’s injunction, the opinion held in Syllabus point 2 that, “[a]s the chief

law officer of the state, the Attorney General is clothed and charged with all the

common–law powers and duties pertaining to his office, except in so far as they have been

limited by statute.” Syl. pt. 2, Ehrlick, 65 W. Va. 700, 64 S.E. 935.

Ehrlick’s recognition that the Attorney General had common law powers

remained unassailable law until the decision in Manchin v. Browning, 170 W. Va. 779, 296

S.E.2d 909 (1982). In Manchin, the Secretary of State filed a petition for a writ of mandamus

with this Court seeking to compel the Attorney General to represent the Secretary of State’s

35

office in a federal litigation. While the case was pending, the federal lawsuit settled.

However, the Court determined that it would address the issue of the duty of the Attorney

General to represent State officials. In resolving this issue, the opinion in Manchin ventured

off into sweeping dicta that called into question whether the Attorney General had common

law powers.

The decision in Manchin relied upon the status of the Office of Attorney

General in Virginia, prior to the start of the Civil War, in order to conclude that West

Virginia’s Attorney General did not have common law powers. The opinion in Manchin said

the following regarding the Attorney General’s status in pre-Civil War Virginia:

As a consequence of the American Revolution, the

executive powers of the Crown office of Attorney General

underwent substantial modification in Virginia. The first

constitution of Virginia, adopted June 29, 1776, recognized the

Attorney General as a judicial officer, thereby removing him

from the executive department. He was appointed by and served

at the pleasure of the General Assembly and was commissioned

by the Governor. In addition, the Attorney General was

specifically prohibited from holding elected office in either the

legislative or executive department. This constitution continued

in force until superseded by an amended constitution, submitted

by the General Assembly on January 15, 1830. The provisions

of the amended constitution relating to the office of Attorney

General were altered little. The Attorney General remained an

officer of the judicial department, was appointed and

commissioned in the same manner and continued to serve at the

pleasure of the General Assembly.

The 1850 Virginia Constitution made some sweeping

changes in the office. It provided for the first time for the

election of the Attorney General by the voters of the

36

Commonwealth and established a definite term of office. The

Attorney General continued to serve as an officer of the

judiciary, however, and the amended constitution provided “[h]e

. . . shall perform such duties and receive such compensation as

may be prescribed by law, and be removable in the manner

prescribed for the removal of judges.” Va. Const. of 1850, art.

VI, § 22.

Manchin, 170 W. Va. at 784, 296 S.E.2d at 914 (additional citation omitted). As a result of

Virginia’s Office of Attorney General being a part of the judiciary, the opinion in Manchin

made an overly broad conclusion that Virginia’s Attorney General did not have common law

powers.45

After concluding that the Attorney General of Virginia did not have common

law powers, Manchin reasoned that the wording of West Virginia’s Constitution, Article VII,

Section 1, had to be interpreted as not allowing West Virginia’s Attorney General to have

common law powers. The convoluted reasoning of Manchin was as follows:

The plain language of this constitutional provision,

[Article VII, Section 1,] when viewed against the historical

backdrop of the development of the office of Attorney General

in the Virginias, leads us to conclude that the Attorney General

of West Virginia does not possess the common law powers

attendant to that office in England and in British North America

during the colonial period. By removing the traditional

executive office of Attorney General to the judicial department

and establishing a tri-partite state government, with separate

legislative, executive and judicial departments, the framers of

the first Virginia Constitution in effect abrogated any common

45

Other than the dicta in Manchin, no authority was cited to support this

conclusion.

37

law executive powers the holder of that office may have had.

The executive function formerly exercised by the Attorney

General at common law was extinguished, and for the next 96

years he remained a minor judicial officer, prohibited by the

separation of powers from wielding the common law legislative

and executive powers traditional to the office in Great Britain.

By the provisions of our present constitution, the

Attorney General is once again an officer of the executive

department. However, his return to the executive department

did not revive the common law powers of the office. The people

of West Virginia specifically expressed their intent that the

Attorney General should not exercise those powers by providing

that he “shall perform such duties as may be prescribed by law.”

Under settled rules of construction, the word “shall” when used

in constitutional provisions is ordinarily taken to have been used

mandatorily, and the word “may” generally should be read as

conferring both permission and power. The phrases “prescribed

by law” and “provided by law” mean prescribed or provided by

statutes. The plain effect of the provision is to limit the powers

of the Attorney General to those conferred by law laid down

pursuant to the constitution. Consequently we conclude that the

powers and duties of the Attorney General are specified by the

constitution and by rules of law prescribed pursuant thereto. We

hereby overrule State v. Ehrlick, supra, insofar as it conflicts

with this view.

Manchin, 170 W. Va. at 785, 296 S.E.2d at 915 (citations omitted).

Before turning to the decision of this Court that modified Manchin’s denial of

inherent powers to the Attorney General, we pause to note that Manchin appears to have

incorrectly reported that Virginia’s pre-Civil War Attorney General did not have common

law powers. The 1808 Virginia Supreme Court opinion in Dew v. Sweet Springs District

Court Judges, 13 Va. 1 (1808), touched upon the issue of the Attorney General’s inherent

38

common law powers.

In Dew, the appellant was appointed to fill a vacancy as clerk of a district court.

However, he was not allowed to take office because he failed to post the bond that was

required before the position could be officially filled. As a consequence, the appellee was

appointed to fill the vacancy. The appellant filed a petition for mandamus with a trial court

seeking to remove the appellee from the office of court clerk. The trial court denied the

petition upon finding mandamus was not the proper remedy. In the appeal, the Virginia

Supreme Court cited to arguments suggesting an “information in the nature of a quo

warranto” was the proper filing instrument for the appellant to obtain relief. The arguments

contended that an information was a common law instrument and that only the Attorney

General had common law authority to file the same. However, the Supreme Court

determined that an information was not a proper instrument in the case because it could be

filed only in a criminal prosecution, and no one had committed a crime regarding the clerk’s

vacancy:

But it is objected that the information is not given by the

statute, but existed at common law. It certainly existed at

common law, but only as a proceeding on the criminal side: it

was first given to the party, as a civil remedy, by the statute. . . .

The Attorney-General, at common law, is not bound to

file an information when a criminal act has not been committed.

Now what crime has [the appellee] been guilty of in accepting

an office before declared vacant by the Judges, and the exercise

of which was necessary to the public good?

39

....

On general principles, therefore, it would seem to be

more proper, (or rather less objectionable,) to turn over the party

to his private and more speedy remedy under the statute, than to

the common law information, which he cannot use without the

intervention of the prerogative, or the permission of the

Attorney-General, and the proceedings on which are, perhaps,

more dilatory than in the other case.

Dew, 13 Va. at 12-23.

The decision in Dew is important for one purpose. The decision illustrates,

contrary to Manchin, that the court in Dew believed that Virginia’s Attorney General had

common law powers prior to the Civil War. Further, under the current laws of the State of

Virginia, the Attorney General is recognized as having certain common law powers. See,

e.g., Commonwealth ex rel. Beales v. JOCO Found., 558 S.E.2d 280, 284 (Va. 2002)

(recognizing Attorney General has common law authority over certain nonprofit health care

litigation); Tauber v. Commonwealth, 499 S.E.2d 839, 842 (Va. 1998) (“This Court long ago

recognized the common law authority of the Attorney General to act on behalf of the public

in matters involving charitable assets.” (citing Clarke v. Oliver, 22 S.E. 175 (Va. 1895))).

The correctness of Manchin’s wholesale rejection of inherent powers in the

Office of Attorney General was challenged and modified in State ex rel. McGraw v. Burton,

212 W. Va. 23, 569 S.E.2d 99 (2002). In Burton, the Attorney General filed a petition for

a writ of mandamus with this Court seeking to compel State agencies to use only private

40

legal counsel approved by the Attorney General and to make all in-house State agency

lawyers employees of the Attorney General. This Court initially noted that the respondents,

the parties opposed to the Attorney General’s petition, contended that, as a result of the “as

may be prescribed by law” language in Article VII, Section 1, “the Legislature has essentially

plenary and unfettered discretion to, through statutory action, delineate, limit, or even

effectively eliminate the Attorney General’s role in providing legal counsel and

representation to State entities.” Burton, 212 W. Va. at 29, 569 S.E.2d at 105. The position

of the respondents was rejected:

We believe it is clear . . . that there are certain core

functions of the Office of Attorney General that are inherent in

the office, of which the Office of Attorney General may not be

deprived, and which may not be transferred to or set up in

conflict with other offices. The suggestion by some of the

respondents that the Legislature possesses unfettered discretion

to define, delineate, and limit the duties of the Attorney General

is wholly at odds with the historical and well-settled

understanding of the constitutional role of the Attorney General.

Accordingly, we hold that pursuant to Article VII, Section 1 of

the West Virginia Constitution, the Attorney General of the

State of West Virginia is the State’s chief legal officer, which

status necessarily implies having the constitutional

responsibility for providing legal counsel to State officials and

State entities.

Burton, 212 W. Va. at 31-32, 569 S.E.2d at 107-08.

The next issue taken up by Burton was whether the Legislature could, as held

in Manchin, strip the Office of Attorney General of all of its inherent powers. The decision

determined that under the separation of powers doctrine the Legislature could not deny the

41

Office of Attorney General all of its inherent powers. Burton found that “[o]ne aspect [of

the separation of powers doctrine] is the constitutional inability of the Legislature to define

the powers and duties of the Office of Attorney General . . . so as to deprive the Office of

Attorney General . . . of the inherent functions and purposes thereof.” Burton, 212 W. Va.

at 33, 569 S.E.2d at 109. Burton concluded that “no statute, policy, rule, or practice may

constitutionally operate, alone or cumulatively, to limit, reduce, transfer, or reassign the

duties and powers of the Office of the Attorney General in such a fashion as to prevent that

office from performing its inherent constitutional functions.” Burton, 212 W. Va. at 41, 569

S.E.2d at 117.46

In sum, under Burton, the Legislature does not have the unfettered discretion

46

The decision in Burton granted the requested writ, as moulded, to reflect the

following:

[I]n all instances when an executive branch or related State

entity is represented by counsel before a tribunal, the Attorney

General shall appear upon the pleadings as an attorney of

record; however, this requirement does not bar other counsel

from also appearing and acting in a legal capacity for the State

entity. The Attorney General additionally has the right to appear

as an intervenor as Attorney General on behalf of the State in all

proceedings where the interest of the State or a State entity is at

issue, to assert the Attorney General’s view of the law on behalf

of the State. To maintain a proper constitutional balance,

however, this right must always be exercised with restraint and

due respect by the State entity and the Attorney General.

Burton, 212 W. Va. at 41, 569 S.E.2d at 117 (footnote omitted).

42

or authority recognized in Manchin to nullify all of the inherent powers of the Office of

Attorney General. Of course, one of the Attorney General’s inherent powers expressly

nullified in Manchin was the common law powers of the Office. See CSWS, L.L.C. v.

Village of Bedford Park, No. 1-11-3814, 2012 WL 6861371, at *4 (Ill. App. Ct. Dec. 31,

2012) (“[T]he Attorney General has inherent common law powers[.]”); Dunn v. Schmid, 60

N.W.2d 14, 17 n.1 (Minn. 1953) (“[T]he attorney general, in addition to his powers

expressly conferred upon him by statute, is possessed of extensive common-law powers

which are inherent in his office.”). Manchin held that such powers did not exist because of

Virginia’s position on the issue, and because our Legislature was given unfettered discretion

to determine the duties and powers of the Office. Insofar as we have shown that Manchin

incorrectly interpreted the common law powers of Virginia’s Attorney General, and Burton

has rejected Manchin’s holding that the Attorney General has no inherent authority, we make

clear and once again expressly hold that the Office of Attorney General retains inherent

common law powers, when not expressly restricted or limited by statute.47 The extent of

47

A majority of jurisdictions also have held that the Office of Attorney General

retains inherent common law powers. See Ex parte King, 59 So. 3d 21 (Ala. 2010); Botelho

v. Griffin, 25 P.3d 689 (Alaska 2001); Masterson v. State ex rel. Bryant, 949 S.W.2d 63 (Ark.

1997); People ex rel. Harris v. Rizzo, 154 Cal. Rptr. 3d 443 (Cal. Ct. App. 2013); People ex

rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003); Seth v. State, 592 A.2d 436 (Del. 1991);

Bondi v. Tucker, 93 So. 3d 1106 (Fla. Dist. Ct. App. 2012); In re Water Use Permit

Applications, 9 P.3d 409 (Haw. 2000); Newman v. Lance, 922 P.2d 395 (Idaho 1996); People

v. Buffalo Confectionery Co., 401 N.E.2d 546 (Ill. 1980); Zoeller v. East Chicago Second

Century, Inc., 904 N.E.2d 213 (Ind. 2009); Memorial Hosp. Ass’n, Inc. v. Knutson, 722 P.2d

1093 (Kan. 1986); Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152 (Ky. 2009);

City of Augusta v. Attorney Gen., 943 A.2d 582 (Me. 2008); Case of Opare, 932 N.E.2d 863

(continued...)

43

those powers is to be determined on a case-by-case basis. Insofar as the decision in Manchin

v. Browning, 170 W. Va. 779, 296 S.E.2d 909 (1982), is inconsistent with this holding, it

is expressly overruled.

We are mindful that the doctrine of stare decisis instructs us to be cautious in

deciding whether to overrule precedent. “[T]he doctrine of stare decisis requires this Court

to follow its prior opinions.” State Farm Mut. Auto. Ins. Co. v. Rutherford, 229 W. Va.

73, 83, 726 S.E.2d 41, 51 (2011) (Davis, J., concurring, in part, and dissenting, in part). In

47

(...continued)

(Mass. App. Ct. 2010); Fieger v. Cox, 734 N.W.2d 602 (Mich. Ct. App. 2007); State v.

Ri-Mel, Inc., 417 N.W.2d 102 (Minn. Ct. App. 1987); Barbour v. State ex rel. Hood, 974

So. 2d 232 (Miss. 2008); State ex rel Nixon v. American Tobacco Co., Inc., 34 S.W.3d 122

(Mo. 2000); Montana Power Co. v. Montana Dep’t of Pub. Serv. Regulation, 709 P.2d 995

(Mont. 1985); State v. Douglas, 349 N.W.2d 870 (Neb. 1984); State v. Moore, 207 P. 75

(Nev. 1922); Eames v. Rudman, 333 A.2d 157 (N.H. 1975); Kershenblatt v. Kozmor, 624

A.2d 1042 (N.J. Super. Ct. Law. Div. 1993); People ex rel. Spitzer v. Grasso, 836 N.Y.S.2d

40 (N.Y. App. Div. 2007); Bailey v. State, 540 S.E.2d 313 (N.C. 2000); State v. Hagerty, 580

N.W.2d 139 (N.D. 1998); State ex rel. Merrill v. Ohio Dep’t of Natural Res., 955 N.E.2d 935

(Ohio 2011); State ex rel. Cartwright v. Georgia-Pacific Corp., 663 P.2d 718 (Okla. 1982);

People v. Debt Reducers, Inc., 484 P.2d 869 (Or. Ct. App. 1971); State v. Lead Indus. Ass’n,

Inc., 951 A.2d 428 (R.I. 2008); State ex rel. Comm’r of Transp. v. Medicine Bird Black Bear

White Eagle, 63 S.W.3d 734 (Tenn. Ct. App. 2001); Hansen v. Utah State Ret. Bd., 652 P.2d

1332 (Utah 1982); McLaughlin v. State, 642 A.2d 683 (Vt. 1994); Commonwealth ex rel.

Beales v. JOCO Found., 558 S.E.2d 280 (Va. 2002). A minority of states do not recognize

the inherent common law powers of the Office of Attorney General. See Fund Manager,

Pub. Safety Pers. Ret. Sys. v. Corbin, 778 P.2d 1244 (Ariz. Ct. App. 1988); Blumenthal v.

Barnes, 804 A.2d 152 (Conn. 2002); State v. Blyth, 226 N.W.2d 250 (Iowa 1975); State v.

Burning Tree Club, 481 A.2d 785 (Md. 1984); State v. Block, 263 P.3d 940 (N.M. Ct. App.

2011); Meyer v. Community Coll. of Beaver Cnty., 30 A.3d 587 (Pa. Commw. Ct. 2011); City

of Seattle v. McKenna, 259 P.3d 1087 (Wash. 2011); State v. City of Oak Creek, 605 N.W.2d

526 (Wis. 2000). We could not find a definitive ruling on the subject in six states: Georgia,

Louisiana, South Carolina, South Dakota, Texas, and Wyoming.

44

Syllabus point 2 of Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974), we

held that “[a]n appellate court should not overrule a previous decision . . . without evidence

of changing conditions or serious judicial error in interpretation sufficient to compel

deviation from the basic policy of the doctrine of stare decisis, which is to promote certainty,

stability, and uniformity in the law.” Of course, “the doctrine of stare decisis is not

sacrosanct, and in rare instances there are valid reasons to depart from it.” Griffith v.

ConAgra Brands, Inc., 229 W. Va. 190, ___, 728 S.E.2d 74, 85 (2012) (Benjamin, J.,

concurring). Therefore, “when it clearly is apparent that an error has been made or that the

application of an outmoded rule, due to changing conditions, results in injustice, deviation

from that policy is warranted.” Woodrum v. Johnson, 210 W. Va. 762, 766 n.8, 559 S.E.2d

908, 912 n.8 (2001) (internal quotations and citations omitted).

In this proceeding, “[o]ur decision to depart from stare decisis is based upon

a ‘serious judicial error’ in the [Manchin] opinion.” State v. Mullens, 221 W. Va. 70, 91, 650

S.E.2d 169, 190 (2007) (footnote omitted). Our decision to overrule Manchin is based upon

the clear language of our Constitution. In a conclusory fashion, Manchin indicated that the

phrase “as prescribed by law,” contained in Article VII, Section 1, meant that the only

powers the Office of Attorney General possessed were those expressly granted by the

Legislature. Such an interpretation is inconsistent with both the generally recognized

meaning attributed to the phrase “as prescribed by law” and Article VIII, Section 13 of our

Constitution.

45

First, contrary to Manchin’s interpretation of the clause “as prescribed by law,”

a Virginia court has recognized that, “[i]n most states where the constitution says that the

attorney general’s duties shall be ‘as prescribed by law,’ this is taken to mean that he has

such common law powers as have not been specifically repealed by statute[.]” Terry v.

Wilder, Chancery No. HC-1307-2, 1992 WL 885093, at *8 (Va. Cir. Ct., City of Richmond

Dec. 29, 1992). See People ex rel. Devine v. Time Consumer Mktg., Inc., 782 N.E.2d 761,

765 (Ill. App. Ct. 2002) (“Our supreme court has interpreted this provision to mean that the

Illinois Attorney General is vested with those powers and duties associated with the office

of Attorney General at common law as well as with whatever additional powers and duties

for which the legislature provides.”); Fieger v. Cox, 734 N.W.2d 602, 611 (Mich. Ct. App.

2007) (“The office of the attorney general enjoys a wide range of powers, derived from both

the common law and, later, statutory enactments.”); State ex rel. Cartwright v.

Georgia-Pacific Corp., 663 P.2d 718, 721 (Okla. 1982) (“Having determined that the powers

and duties of the Attorney General under the Constitution of the State of Oklahoma carries

with it the duties and powers as were usually incident to the office under the English

common law, we must next determine whether those common law powers and duties have

been modified by statutory law[.]”); State v. Lead Indus. Ass’n, Inc., 951 A.2d 428, 473 (R.I.

2008) (“Accordingly, the Attorney General in Rhode Island has broad powers and

responsibilities pursuant to the Rhode Island Constitution, several Rhode Island statutes, and

the common law.”).

46

Second, pursuant to Article VIII, Section 13 of the West Virginia Constitution,

the following is stated regarding abrogating the common law of this State:

Except as otherwise provided in this article, such parts of

the common law, and of the laws of this State as are in force on

the effective date of this article and are not repugnant thereto,

shall be and continue the law of this State until altered or

repealed by the legislature.[48]

(Footnote added). We have held that “Article VIII, Section 13 of the Constitution of West

Virginia authorizes the Legislature to enact statutes that abrogate the common law[.]”

MacDonald v. City Hosp., Inc., 227 W. Va. 707, 715, 715 S.E.2d 405, 413 (2011). We

equally have recognized that “[t]he common law, if not repugnant of the Constitution of this

State, continues as the law of this State unless it is altered or changed by the Legislature.”

State ex rel. Van Nguyen v. Berger, 199 W. Va. 71, 75, 483 S.E.2d 71, 75 (1996) (internal

quotations and citation omitted). See Robinson v. Charleston Area Med. Ctr., Inc., 186

W. Va. 720, 727, 414 S.E.2d 877, 884 (1991) (“[T]he general authority of the legislature to

alter or repeal the common law is expressly conferred by article VIII, section 13 of the

Constitution of West Virginia.” (citation and footnote omitted)). Thus, under Article VIII,

Section 13, the Legislature can expressly repeal specific aspects of the Attorney General’s

inherent common law powers. However, contrary to Manchin’s cavalier treatment of the

48

See W. Va. Code § 2-1-1 (1923) (Repl. Vol. 2011) (“The common law of

England, so far as it is not repugnant to the principles of the constitution of this state, shall

continue in force within the same, except in those respects wherein it was altered by the

general assembly of Virginia before the twentieth day of June, eighteen hundred and

sixty-three, or has been, or shall be, altered by the Legislature of this state.”).

47

subject, the “common law is not to be construed as altered or changed by statute, unless

legislative intent to do so be plainly manifested.” Berger, 199 W. Va. at 75, 483 S.E.2d

at 75 (internal quotations and citation omitted). The Legislature has not enacted any general

statute that attempts to strip the Office of Attorney General of all its inherent common law

powers.

In the final analysis, the authority of the Office of Attorney General “comes

from three sources–the constitution of this state; the legislature; and the common law, from

which emanates some of its so-called inherent power.” State ex rel. McGraw v. Telecheck

Servs., Inc., 213 W. Va. 438, 443, 582 S.E.2d 885, 890 (2003).

2. The power of the Attorney General to appoint special assistant

attorneys general. The Petitioners contend that the lower courts were wrong in holding that

W. Va. Code § 5-3-3 (1961) (Repl. Vol. 2011) authorized the Attorney General to appoint

special assistant attorneys general and provided a basis for the method of payment chosen.49

As noted previously, “[w]hen a statute is clear and unambiguous and the legislative intent

is plain, the statute should not be interpreted by the courts, and in such case it is the duty of

the courts not to construe but to apply the statute.” Syl. pt. 5, State v. General Daniel

49

The Petitioners’ strongest argument on these issues was that the Attorney

General lacked common law authority per se. We already have determined that the Attorney

General has common law powers.

48

Morgan Post No. 548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959).

The full language of W. Va. Code § 5-3-3 provides as follows:

The attorney general may appoint such assistant attorneys

general as may be necessary to properly perform the duties of

his office. The total compensation of all such assistants shall be

within the limits of the amounts appropriated by the Legislature

for personal services. All assistant attorneys general so

appointed shall serve at the pleasure of the attorney general and

shall perform such duties as he may require of them.

All laws or parts of laws inconsistent with the provisions

hereof are hereby amended to be in harmony with the provisions

of this section.

W. Va. Code § 5-3-3. It is clear that W. Va. Code § 5-3-3 does not mention “special”

assistant attorneys general; the statute refers only to assistant attorneys general. In deciding

whether the statute was intended to include special assistant attorneys general, we will trace

the relevant history of the statute. State v. Yoak, 202 W. Va. 331, 333, 504 S.E.2d 158, 160

(1998) (“We begin by interjecting a history of the amendments to the statute which is

controlling in this case.”); State v. D.D., 172 W. Va. 791, 794, 310 S.E.2d 858, 860 (1983)

(“We begin by examining the . . . history of legislative amendments to our child welfare

laws[.]”).

West Virginia Code § 5-3-3 was originally enacted in 1909. The relevant

language of the original version of the statute stated the following:

[H]e [the Attorney General] is hereby authorized to appoint two

49

assistants to serve at his pleasure, . . . and who may perform any

of the duties of the attorney general.

W. Va. Code ch. 48, § 2a (1909). The original version of the statute expressly authorized the

appointment of assistant attorneys general, but did not mention special assistant attorneys

general.50 The statute was amended in 1937 to read, in relevant part, as follows:

The attorney general may appoint four assistants to serve

at his pleasure and to perform such duties as he may require of

them. . . . And upon finding of the necessity thereof by the

governor and attorney general, the attorney general may appoint

not more than one special assistant to serve at his pleasure and

to perform such duties as he may require of him for such time as

the governor and attorney general determine the necessity to

continue[.]

W. Va. Code ch. 85, § 3 (1937) (emphasis added). It is clear that under the 1937 version of

W. Va. Code § 5-3-5, the Legislature expressly authorized the appointment of a special

assistant attorney general, in addition to the appointment of assistant attorneys general.

Express legislative authority to appoint a special assistant attorney general

remained part of the statute until 1953. In 1953, the Legislature amended the statute and

removed the provision concerning the appointment of a special assistant attorney general.

See W. Va. Code ch. 11, § 3 (1953). The current version of the statute, as set out above, does

50

It should be noted that although it appears that the Attorney General did not

have express legislative authority to appoint assistant attorneys general until 1909, it does

appear that prior to that time the Attorney General exercised his inherent common law

authority to appoint assistant attorneys general. See Ex parte Faulkner, 1 W. Va. 269 (1866)

(discussing the position of assistant attorney general in the case).

50

not include a provision for the appointment of a special assistant attorney general. The

historical development of the statute invokes the Latin doctrine inclusio unius est exclusio

alterius, i.e., one is the exclusion of the others. This doctrine instructs “‘courts to exclude

from operation those items not included in the list of elements that are given effect expressly

by statutory language.’” Bevins v. West Virginia Office of Ins. Comm’r, 227 W. Va. 315,

327, 708 S.E.2d 509, 521 (2010) (quoting State ex rel. Roy Allen S. v. Stone, 196 W. Va. 624,

630 n.11, 474 S.E.2d 554, 560 n.11 (1996)). Thus, it is clear from historical analysis that the

Legislature did not intend for the current version of W. Va. Code § 5-3-3 to authorize the

Attorney General to appoint special assistant attorneys general.51 The Legislature knew how

51

Our conclusion also is supported by an attempted amendment to W. Va. Code

§ 5-3-3 during the 2013 Regular Session of the West Virginia Legislature. A bill was

introduced in the House of Delegates, H.B. 3110, that would have amended the statute to

once again expressly authorize the appointment of private attorneys as special assistant

attorneys general. In addition, the proposed amendment set out guidelines the Attorney

General had to follow in order to appoint a private attorney as a special assistant attorney

general. The guidelines of the proposed amendment were, in relevant part, as follows:

(c) The state may not enter into a contingency fee

contract, or any other legal arrangement, with a private attorney

unless the Attorney General makes a written determination prior

to entering into such a contract that the legal representation is

both cost-effective and in the best interest of the public. Any

written determination shall include specific findings for each of

the following factors:

(1) Whether sufficient and appropriate legal and financial

resources exist within the Attorney General’s office to handle

the matter.

(2) The time and labor required; the novelty, complexity,

(continued...)

51

to expressly include such authorization, as it did so in 1937.

Even though the Attorney General cannot rely upon W. Va. Code § 5-3-3 as

authority to appoint special assistant attorneys general, we do not find any language in the

statute which expressly prohibits the Attorney General from making such appointments under

that Office’s inherent common law authority. A similar issue was addressed by the Missouri

Court of Appeals in Kinder v. Nixon, No. 56802, 2000 WL 684860 (Mo. Ct. App. May 30,

2000), transferred sub nom. State ex rel. Nixon v. American Tobacco Co., Inc., 34 S.W.3d

122 (Mo. 2000). The court in Kinder found that Missouri’s statute (discussed in Nixon,

infra) authorized the Attorney General to appoint only assistant attorneys general, not special

assistant attorneys general. However, the court found that the limitation imposed by the

statute did not limit the Attorney General’s inherent common law authority. The court held

that “the Attorney General has common law authority to appoint special assistants and

nothing in [the statute] either expressly or by reasonable intendment forbids the exercise of

51

(...continued)

and difficulty of the questions involved; and the skill requisite

to perform the attorney services properly.

(3) The geographic area where the attorney services are

to be provided.

(4) The amount of experience desired for the particular

kind of attorney services to be provided and the nature of the

private attorney’s experience with similar issues or cases.

H.B. 3110. The proposed amendment died in the House Judiciary Committee.

52

that power.” Kinder, 2000 WL 684860, at *11. We agree with Kinder and so hold that the

Attorney General has common law authority to appoint special assistant attorneys general.52

52

We wish to clarify that this opinion does not address what method must be

used by the Attorney General in selecting a special assistant attorney general. This was also

an area that the Legislature unsuccessfully attempted to address during the 2013 Regular

Session. Two bills were introduced in the House of Delegates, H.B. 2139 and H.B. 3110,

that addressed the issue. House Bill 2139 would have amended W. Va. Code § 5-3-2 to

provide, in relevant part, the following:

In contracting with private attorneys to pursue legal

action on behalf of the state, the Attorney General shall seek

bids from attorneys licensed to practice in this state and shall

contract with the best qualified attorney submitting the lowest

bid.

House Bill 3110 would have amended W. Va. Code § 5-3-3 to provide, in relevant part, the

following:

(d) [T]he Attorney General shall request proposals from

private attorneys to represent the state on a contingency fee

basis, or any other basis, unless the Attorney General makes a

written determination that one of the following factors applies:

(1) An emergency situation exists that requires

time-sensitive legal services that cannot be adequately provided

by the Office of Attorney General, and for which insufficient

time exists to complete the customary competitive bidding

process.

(2) An appointment, or the continuation of an

appointment, is necessary to avoid disruption in pending legal

matters by allowing previously appointed outside counsel to

continue providing legal representation.

(3) The legal services will be most effectively handled by

preapproved attorneys who have already completed the bidding

process referenced in subsection (h).

(continued...)

53

52

(...continued)

(e) Any Requests for Proposal shall be posted to the

website of the Office of Attorney General, and the time period

under which the proposal is open should be clearly stated.

(f) When soliciting proposals from private attorneys to

represent the state on a contingency-fee basis, or any other basis,

the Attorney General shall consider the following factors when

determining the most competitive proposal for legal services,

and make a written determination as to the application of these

factors, prior to entering into any contract for outside legal

services:

(1) Whether the private attorneys possess the requisite

skills and expertise needed to handle the legal matters in

question;

(2) Whether the private attorneys possess requisite

staffing and support to handle the scope of the litigation or

matter;

(3) Whether the private attorneys, or any members of the

private attorneys’ law firm, have been subject to reprimand by

the West Virginia State Bar, or other entities, for unethical

conduct;

(4) Whether the private attorneys have been peer rated,

and if so, what peer ratings they have received, along with any

other recognitions or awards for legal services;

(5) The estimated fees, costs and expenses of the private

attorneys to perform the legal services requested;

(6) The willingness of the private attorneys to enter into

alternative billing arrangements;

(7) Whether the private attorneys are in compliance with

all applicable laws of the State of West Virginia; and

(continued...)

54

52

(...continued)

(8) Any such other relevant factors as may be identified

by the Attorney General.

(g) If, after soliciting proposals for legal services, the

Attorney General determines that proposals received are

insufficient based on an application of the factors set forth in

subsection (f), the Attorney General may solicit additional

proposals pursuant to subsections (c), (d) and (f).

(h) In order to address time sensitive or emergency legal

matters that require the use of outside counsel, but do not allow

sufficient time for completion of the competitive bidding

process set forth in subsections (c), (d) and (f), the Office of

Attorney General may institute a prebidding process for

approving lawyers or law firms to perform legal work on behalf

of the state in accordance with the following factors:

(1) Private attorneys may be preapproved to perform

outside counsel work in specific areas of law provided that they

have gone through a request for proposal and competitive

bidding process as set forth in subsections (d) and (f).

(2) In instances in which more than one lawyer or law

firm has been preapproved for the provision of outside counsel

legal services in an area of law, the Office of Attorney General

shall perform an expedited, case-specific analysis using the

factors set forth in subsection (f) to determine which lawyer or

law firm would be better suited to represent the state on a

particular legal matter.

(3) The office shall list any preapproved attorneys by

practice area on the Attorney General’s website.

Both bills, H.B. 2139 and H.B. 3110, died in the House Judiciary Committee.

55

The Petitioners also contend that W. Va. Code § 5-3-3 restricts compensation

of assistant attorneys general to appropriations by the Legislature; therefore, they argue, the

fee arrangement with the special assistant attorneys general is invalid.53 A similar argument

was made in State ex rel. Nixon v. American Tobacco Co., Inc., 34 S.W.3d 122 (Mo. 2000).

In Nixon, the Attorney General of Missouri appointed a private attorney as a special assistant

attorney general to represent the State of Missouri in tobacco litigation. Under the terms of

the appointment, the special assistant attorney general would be reimbursed for his expenses

if the litigation ended favorably to the State. Several alternative contingency fee

arrangements were made with the special assistant attorney general, including payment from

53

The Petitioners also argue that W. Va. Code § 5-3-5 (1923) (Repl. Vol. 2011)

requires all attorney’s fees to be paid into the State treasury. This statute does not address

a general award of attorney’s fees. We previously have noted that the statute “provides for

inclusion of the . . . nominal statutory attorney fee, in the costs of a proceeding in which [the

Attorney General] appeared for the State.” Hechler v. Casey, 175 W. Va. 434, 451 n.17, 333

S.E.2d 799, 816 n.17 (1985). See Pauley v. Gilbert, 206 W. Va. 114, 123, 522 S.E.2d 208,

217 (1999) (“[T]here . . . exists express statutory authority for the recovery of nominal

attorney’s fees in W. Va. Code § 59–2–14. This provision mandates that the clerk of a court

in which a party prevails ‘shall include in the costs to the prevailing party: (a) In any civil

action, ten dollars. . . .’”). During oral arguments, counsel for GlaxoSmithKline contended

that the statute in at least one of the claims against it, involving Medicaid, requires attorney’s

fees be turned over to the State. This argument does not expressly appear in

GlaxoSmithKline’s brief. In fact, the brief focused exclusively upon the causes of action

under the West Virginia Consumer Credit and Protection Act. To the extent that the brief

could be liberally construed as setting out the contention made during oral arguments, the

contention has no merit. As previously noted in this opinion, the Attorney General amended

its appointment letter to the special assistant attorneys general litigating the action against

GlaxoSmithKline. That amendment expressly states that the special assistant attorneys

general “will not receive any fee based upon any recovery by the State for harm to the State’s

Medicaid program that is subject to refund to the Centers for Medicare and Medicaid

Services.”

56

any recovery from the defendants. One of the issues arising out of the litigation was whether

the statute authorizing payment of assistant attorneys general also authorized the contingency

fee arrangement made with the special assistant attorney general. The statute stated, in

relevant part, the following:

The attorney general is hereby authorized to appoint such

assistant attorneys general as may be necessary to properly

perform the duties of his office and shall fix the compensation

of such assistants within the limits of the amount appropriated

by the general assembly.

Mo. Stat. § 27.020.1. The Missouri Supreme Court in Nixon found that, notwithstanding the

statute, the Attorney General had authority to enter into the fee arrangement:

It is generally held in this country that the office of

attorney general is clothed, in addition to the duties expressly

defined by statute, with all the powers pertaining thereto under

the common law. A grant by statute of the same or other powers

does not operate to deprive him of those belonging to the office

under the common law, unless the statute, either expressly or by

reasonable intendment, forbids the exercise of powers not thus

expressly conferred. . . .

The statute that allows for the attorney general to hire

assistants and to pay them from appropriations does not prohibit

the attorney general in the exercise of his common law power

from entering into contingency fee arrangements or agreements

that otherwise provide for civil defendants sued by the State to

pay attorney fees directly to the State’s outside counsel. In the

absence of a statute to the contrary, we conclude that the

attorney general does have the power to enter into this type of

fee arrangement with his special assistant attorneys general.

Nixon, 34 S.W.3d at 136 (internal quotations and citations omitted).

57

Insofar as W. Va. Code § 5-3-3 does not expressly prohibit the Attorney

General from making alternative fee arrangements with special assistant attorneys general,

we now hold that the Attorney General has common law authority to provide for

compensation to be paid to special assistant attorneys general through a court-approved

award of attorney’s fees taken directly from the losing opponent in the litigation.

We reject outright the Petitioners’ contention that such an award by a trial court

must be capped at the level established by the Legislature pursuant to W. Va. Code § 5-3-3.

The amount of any fee award is discretionary with the trial judge. However, we wish to

make clear that we are not addressing the appropriateness of awarding attorney’s fees to

special assistant attorneys general directly from any actual monetary judgment award to the

State because such a contingent fee agreement is not at issue in this case. We also note that

the Legislature attempted to address the issue of contingency fee payment to special assistant

attorneys general during the 2013 Regular Session of the West Virginia Legislature, but such

proposals failed to be approved.54

54

Through House Bill 3110, an amendment was proposed to W. Va. Code §

5-3-3 that would have added the following language to the statute:

The state may not enter into a contingency fee contract

that provides for the private attorney to receive an aggregate

contingency fee in excess of:

(1) Twenty-five percent of the first $10 million

recovered; plus

(continued...)

58

IV.

CONCLUSION

In this proceeding, the Petitioners, defendants in two consolidated petitions for

writs of prohibition, have sought to have the Respondent’s special assistant attorneys general

disqualified. The most glaring deficiency in the arguments made by the Petitioners is that

there was not one allegation that the special assistant attorneys general have actually engaged

in any improper conduct that has caused an injury. The briefs set out a plethora of

allegations that involve remotely possible harmful conduct. We have not and will not

interfere with or disqualify a party’s counsel merely because of allegations of improper

54

(...continued)

(2) Twenty percent of any portion of the recovery

between $10 million and $15 million; plus

(3) Fifteen percent of any portion of the recovery

between $15 million and $20 million; plus

(4) Ten percent of any portion of the recovery between

$20 million and $25 million; plus

(5) Five percent of any portion of the recovery exceeding

$25 million.

In no event may the aggregate contingency fee for any

legal matter exceed $50 million, exclusive of reasonable costs

and expenses, and irrespective of the number of lawsuits filed or

the number of private attorneys retained to achieve the recovery.

A contingency fee may not be based on penalties or fines

awarded or any amounts attributable to penalties or fines.

As previously mentioned, House Bill 3110 died in the House Judiciary Committee. See

supra notes 51 & 52.

59

conduct that has not occurred. To allow a mere possibility of improper injurious conduct to

be the standard for disqualification would result in parties constantly seeking to disqualify

opposing counsel because of phantom injuries. The law of disqualification cannot rest on

the imagination of opposing counsel.

This case has called upon the Court to revisit its holding in State ex rel.

McGraw v. Burton, 212 W. Va. 23, 569 S.E.2d 99 (2002), that the Office of Attorney

General has inherent core functions that cannot be totally extinguished. In revisiting Burton,

we have determined that this Court improperly held in Manchin v. Browning, 170 W. Va.

779, 296 S.E.2d 909 (1982), that the Office of Attorney General did not retain inherent

common law powers. As a consequence, we have found it necessary to overrule Manchin.

In the final analysis, it is the common law authority of the Attorney General

that permitted that Office to appoint the special assistant attorneys general in these cases and

to provide for a method of possible recovery of attorney’s fees. Thus, while we find the

Circuit Courts of Mason County and Wayne County relied upon the wrong reasons for

rejecting the motions to disqualify the special assistant attorneys general, those courts

nevertheless were correct in denying the motions.

60

Accordingly, we deny the writs applied for in Case No. 13-0086 and in Case

No. 13-0102.

Writs Denied.

61