    IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                       January 2013 Term
                                                           FILED
                                                        March 7, 2013
                                                         released at 3:00 p.m.
                                                         RORY L. PERRY II, CLERK
                            No. 12-1209                SUPREME COURT OF APPEALS
                                                           OF WEST VIRGINIA




STATE OF WEST VIRGINIA EX REL. VERIZON WEST VIRGINIA, INC.;

  ANDREA L. CUSTIS; VICTORIA L. BOSTON; ROBERT ANDERSON;

       JUDY ISNER; MARY FREDERICK; DAWN WATSON;

         BARBARA TERWILLIGER; AND JODI DENNIS,

                         Petitioners



                                 V.


              HONORABLE JAMES A. MATISH,

    JUDGE OF THE CIRCUIT COURT OF HARRISON COUNTY;

        STEPHANIE SNOW-MCKISIC; RITA L. KNIGHT;

       DANNY KNIGHT, SR.; DAVID MICHAEL BROSIUS;

    DANNY KNIGHT, JR.; SARAH KNIGHT; RYAN P. BARKER;

      LYNET WHITE; KIMBERLY A. RAY; JEFFREY L. RAY;

           LISA M. THARP; TRAVIS N. THARP, AND

                    CHARLES R. BYARD,

                        Respondents




                 Petition for a Writ of Prohibition


                         WRIT DENIED




                   Submitted: February 5, 2013

                      Filed: March 7, 2013

Richard W. Gallagher                     Larry J. Rector
E. Ryan Kennedy                          Amy M. Smith
Robinson & McElwee, PLLC                 Steptoe & Johnson PLLC
Clarksburg, West Virginia                Bridgeport, West Virginia
Thomas E. Spahn, Pro Hac Vice            Attorneys for the Respondents,
McGuireWoods LLP                         Plaintiff Employees Below
Tysons Corner, Virginia
Jonathan P. Harmon, Pro Hac Vice
Tennille J. Checkovich, Pro Hac Vice
McGuireWoods LLP
Richmond, Virginia
Attorneys for the Petitioners

G. Thomas Smith
Smith, McMunn & Glover PLLC
Clarksburg, West Virginia
Attorney for Corby Miller,
Co-Defendant Employer Below


JUSTICE DAVIS delivered the Opinion of the Court.
                               SYLLABUS BY THE COURT




               1.       “A party aggrieved by a lower court’s decision on a motion to

disqualify an attorney may properly challenge the lower court’s decision by way of a petition

for a writ of prohibition.” Syllabus point 1, State ex rel. Bluestone Coal Corp. v. Mazzone,

226 W. Va. 148, 697 S.E.2d 740 (2010).



               2.      “A circuit court, upon motion of a party, by its inherent power to do

what is reasonably necessary for the administration of justice, may disqualify a lawyer from

a case because the lawyer’s representation in the case presents a conflict of interest where

the conflict is such as clearly to call in question the fair or efficient administration of justice.

Such motion should be viewed with extreme caution because of the interference with the

lawyer-client relationship.” Syllabus point 1, Garlow v. Zakaib, 186 W. Va. 457, 413 S.E.2d

112 (1991).



               3.      Pursuant to Rule 1.7(b) of the West Virginia Rules of Professional

Conduct, a lawyer may represent a client even though there appears to be a conflict between

the interests of the client and the lawyer him/herself if the lawyer reasonably believes that

his/her representation will not be affected thereby and if the client, who has been informed

of the conflict, agrees to continued representation.


                                                 i
              4.      Rule 1.9(b) of the West Virginia Rules of Professional Conduct has

three primary objectives: (1) to safeguard the sanctity of the attorney-client relationship and

the confidential information that is shared by a client during the course of an attorney-client

relationship; (2) to protect from disclosure the confidential information revealed by a client

to his/her attorney during the course of an attorney-client relationship; and (3) to prohibit an

attorney from using such confidential information adversely to his/her former client.



              5.      Pursuant to Rule 5.6 of the West Virginia Rules of Professional

Conduct, a protective order or confidential settlement agreement may not be construed or

enforced to preclude an attorney from representing a client in a subsequent matter involving

similar facts and/or parties based solely upon the attorney’s obligations to maintain the

confidentiality of information subject to such protective order or confidential settlement

agreement.




                                               ii
Davis, Justice:

              The petitioners herein, Verizon West Virginia, Inc., and various of its

employees (hereinafter collectively “Verizon”),1 request this Court to issue a writ of

prohibition to prevent the Circuit Court of Harrison County from enforcing its August 24,

2012, and October 1, 2012, orders. By the August order, the circuit court permitted Steptoe

& Johnson PLLC (hereinafter “Steptoe”), counsel for the individual respondents herein,2 to

continue in its representation of the Plaintiff Employees in their wrongful termination cases

against Verizon. In its October order, the circuit court refused Verizon’s motion for

clarification and/or reconsideration of its August order. Before this Court, Verizon requests

the issuance of a writ of prohibition disqualifying Steptoe as counsel for the Plaintiff

Employees based upon Steptoe’s prior representation of other former employees of Verizon

in substantially related matters that were settled and dismissed. Upon a review of the parties’

arguments, the appendix record, and the pertinent authorities, we deny the requested writ of

prohibition. In summary, we find that Verizon is not entitled to prohibitory relief because



              1
               The individual employees referred to in this opinion collectively as “Verizon”
are managerial and similarly-positioned employees of Verizon who were named as
defendants in the underlying wrongful termination proceedings. An additional defendant
from the proceedings below, Corby Miller, has filed a response in the case sub judice taking
no position as to the propriety of the writ of prohibition requested by Verizon herein.
              2
               The individually named respondents are former employees of Verizon who
have filed wrongful termination claims against Verizon based upon alleged violations of the
West Virginia Human Rights Act, W. Va. Code § 5-11-1 et seq. They all have retained
attorneys from the Steptoe law firm to represent them in those proceedings. For ease of
reference, these respondents will be referred to collectively as the “Plaintiff Employees.”

                                              1

Steptoe’s successive representation of its former and current clients does not constitute a

conflict of interest under either Rule 1.7 or Rule 1.9 of the West Virginia Rules of

Professional Conduct. Moreover, the relief requested by Verizon would impermissibly

restrict Steptoe’s right to practice law in contravention of West Virginia Rule of Professional

Conduct 5.6.



                                              I.


                      FACTUAL AND PROCEDURAL HISTORY


               The facts underlying this original jurisdiction proceeding are straightforward

and not disputed by the parties. In 2009, Steptoe filed a lawsuit (hereinafter “Rowh”) against

Verizon on behalf of a former Verizon employee alleging wrongful termination and violation

of the West Virginia Human Rights Act, W. Va. Code § 5-11-1 et seq. Thereafter, in 2010,

Steptoe filed a similar lawsuit (hereinafter “Radcliff”) on behalf of another Verizon

employee. Both of these individuals had worked at Verizon’s call center in Clarksburg, West

Virginia.



               During the course of the Rowh litigation, the parties entered into an agreed

protective order to secure the confidentiality of certain documents disclosed in discovery.

A similar agreed protective order was entered in the Radcliff proceedings, with the additional

stipulation that documents produced in Rowh, and subject to the protective order therein,


                                              2

nevertheless could also be used in Radcliff in an effort to avoid unnecessary costs of

duplication.   In essence, the protective orders restricted the use of the confidential

information subject thereto to the proceedings in which the documents were produced;

prohibited their use for other purposes (with the exception of the caveat in Radcliff); and,

required that, upon the conclusion of the litigation, the documents must be returned to their

producer or may be retained as long as their continued confidentiality is ensured. The orders

did, however, permit the disclosure of the protected information in response to a court order

or as required by operation of law.3 Although the terms of the protective orders were drafted

primarily by Steptoe, it appears that counsel for Verizon also contributed substantially to the

language ultimately used.



               Both the Rowh and Radcliff lawsuits were resolved through the entry of

confidential settlement agreements. The terms of these agreements prohibited the parties

from divulging the nature, substance, or amount of the settlements and further prohibited the

plaintiff employees from disparaging Verizon in the future. As with the agreed protective

orders, the confidential settlement agreements further permitted the parties to reveal

protected information as necessary to comply with a court order or other obligation imposed




               3
               See Section III.A.2, infra, for further treatment of the Rowh and Radcliff
agreed protective orders.

                                              3

by law.4 Upon the conclusion of these cases, Steptoe decided to retain the documents

safeguarded by the agreed protective orders subject to its continuing duty to maintain their

confidentiality and guard against their further use or disclosure.



              While the Radcliff litigation was concluding, Steptoe filed lawsuits on behalf

of nine other former Verizon employees, the Plaintiff Employees herein, who also had

worked at its Clarksburg call center, alleging that Verizon had engaged in employment

discrimination against them based upon their disabilities or perceived disabilities. Steptoe

additionally filed two class action lawsuits alleging the same claims. Thereafter, the circuit

court consolidated all of these cases. During the beginning stages of the current lawsuits, Mr.

Rector, a Steptoe attorney who had represented the plaintiffs in the two prior, settled cases

against Verizon, indicated that he might use some of the documents produced in discovery

in the Rowh proceedings in the current cases. It appears that Mr. Rector believed that the

parties would enter an agreed protective order in the current lawsuits similar to the one

entered in the Radcliff case that had permitted the parties to use the Rowh discovery in the

Radcliff case to avoid the substantial costs of duplication. Verizon, however, did not agree

to the entry of a protective order with provisions similar to those contained in the Radcliff




              4
              For further discussion of the Rowh and Radcliff confidential settlement
agreements, see Section III.A.2, infra.

                                              4

order.5 On September 28, 2011, Verizon moved for Steptoe’s disqualification as the Plaintiff

Employees’ counsel based upon Mr. Rector’s stated intention to use the Rowh discovery

documents in his representation of the Plaintiff Employees and his additional indication that

he might call the former plaintiff employees as witnesses in the current Plaintiff Employees’

cases.6 Steptoe responded to Verizon’s motion, attaching an affidavit from attorney Rector

in which he vowed that he has not violated any of the confidential provisions of the agreed

protective orders or confidential settlement agreements and that he had not planned to use

information obtained in the two earlier cases unless and until it is produced in the current

cases. Steptoe also attached affidavits to its response from each of the Plaintiff Employees

in the current cases in which they stated that they understood that Mr. Rector’s representation

of them may be limited by his prior representation of the initial two plaintiff employees in

the Rowh and Radcliff cases but that they nevertheless want to continue to be represented by

Steptoe.




              5
                Nevertheless, it appears that the circuit court entered an agreed protective
order in the cases sub judice on November 14, 2011, and that several documents that had
been produced in the prior litigation have been produced again in the current litigation
subject to this protective order.
              6
               It appears, though, that the parties nevertheless commenced discovery in the
new cases and that Mr. Rector referred to Bates numbers of documents he had obtained
during the Rowh discovery. Without objecting to such references, Verizon responded to said
discovery requests, also with Bates number references. Neither party, however, disclosed the
contents or substance of the referenced documents.

                                              5

                 The circuit court held a hearing on Verizon’s disqualification motion. By order

entered February 24, 2012, the circuit court held in abeyance its ruling on Verizon’s

disqualification motion until Steptoe had consulted with the Rowh and Radcliff plaintiffs and

obtained their consent to its continued representation of the Plaintiff Employees. In

summary, the circuit court addressed its concerns regarding a potential conflict of interest

under Rule 1.7(b) of the West Virginia Rules of Professional Conduct,7 which prohibits an

attorney from representing a client where such representation would be materially limited by

the attorney’s obligations to a former client. However, the circuit court found Steptoe was

not disqualified on this basis because Mr. Rector and the Plaintiff Employees had submitted

affidavits allaying these concerns and reflecting the Plaintiff Employees’ consent to

continuing representation by Steptoe in the current lawsuits.



                 Next, the circuit court considered Rule 1.9,8 which requires an attorney wishing

to represent a subsequent client in a substantially related matter in which the interests of the

former and subsequent clients are materially adverse to consult with and obtain the consent

of the former clients before continuing with such representation. Because Steptoe had

neither consulted with its former plaintiff employee clients nor obtained their consent to its


                 7
              See Section III.A., infra, for the text of Rule 1.7 of the West Virginia Rules
of Professional Conduct.
                 8
                     For the text of West Virginia Rule of Professional Conduct 1.9, see infra
Section III.B.

                                                 6

continued representation of the Plaintiff Employees, the circuit court held its ruling on

Verizon’s motion to disqualify in abeyance for twenty days to permit Steptoe to consult with

its former clients and obtain their consent to the continued representation.



              Finally, the circuit court contemplated Steptoe’s argument that disqualifying

it from representing the Plaintiff Employees would violate Rule 5.6(b)9 and expressed its

concern that granting Verizon’s disqualification motion might infringe upon attorney

Rector’s right to practice law.



              Steptoe thereafter filed a motion requesting the circuit court to reconsider its

rulings. However, Steptoe did not obtain or file consents from its two former clients as

directed by the circuit court in its February 24, 2012, order. By order entered August 14,

2012, the circuit court granted Verizon’s motion to disqualify Steptoe as the Plaintiff

Employees’ counsel based upon Steptoe’s failure to obtain its former clients’ consent to its

continued representation of the Plaintiff Employees. In its order, the circuit court granted

Steptoe an additional ten days within which to obtain such consents in order to avoid

disqualification. On August 20, 2012, Steptoe filed consents from its two former clients

agreeing to Steptoe’s representation of the current Plaintiff Employees. As a result, the



              9
              See Section III.C., infra, for the text of Rule 5.6 of the West Virginia Rules
of Professional Conduct.

                                              7

circuit court, by order entered August 24, 2012, denied Verizon’s motion to disqualify

Steptoe as counsel for the Plaintiff Employees. Verizon then filed a motion requesting the

circuit court to clarify or reconsider its ruling, which motion the circuit court denied by order

entered October 1, 2012. From these adverse rulings, Verizon now seeks a writ of

prohibition from this Court.



                                               II.


                        STANDARD FOR ISSUANCE OF WRIT


              Verizon requests this Court to issue a writ of prohibition to prevent the Circuit

Court of Harrison County from enforcing its August 24, 2012, order permitting Steptoe to

continue its representation of the Plaintiff Employees. We previously have held that “[a]

party aggrieved by a lower court’s decision on a motion to disqualify an attorney may

properly challenge the lower 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). Nevertheless, prohibition remains an extraordinary remedy, and “[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). The following factors guide our consideration of

the propriety of prohibitory relief in a particular case:


                                               8

                     In determining whether to entertain and issue the writ of
              prohibition for cases not involving an absence of jurisdiction but
              only where it is claimed that the lower tribunal exceeded its
              legitimate powers, this Court will examine five factors: (1)
              whether the party seeking the writ has no other adequate means,
              such as direct appeal, to obtain the desired relief; (2) whether the
              petitioner will be damaged or prejudiced in a way that is not
              correctable on appeal; (3) whether the lower tribunal’s order is
              clearly erroneous as a matter of law; (4) whether the lower
              tribunal’s order is an oft repeated error or manifests persistent
              disregard for either procedural or substantive law; and (5)
              whether the lower tribunal’s order raises new and important
              problems or issues of law of first impression. These factors are
              general guidelines that serve as a useful starting point for
              determining whether a discretionary writ of prohibition should
              issue. Although all five factors need not be satisfied, it is clear
              that the third factor, the existence of clear error as a matter of
              law, should be given substantial weight.

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

guidelines in mind, we will consider whether Verizon is entitled to the writ of prohibition it

has requested from this Court.



                                              III.

                                       DISCUSSION

              In the underlying proceedings, the circuit court denied Verizon’s motion to

disqualify Steptoe from representing its current clients, the Plaintiff Employees, in their

pending wrongful termination case despite Steptoe’s prior representation of former clients

who alleged the same claims against the same employer, Verizon. We previously have held

that

                                               9

                         [a] circuit court, upon motion of a party, by its inherent
                  power to do what is reasonably necessary for the administration
                  of justice, may disqualify a lawyer from a case because the
                  lawyer’s representation in the case presents a conflict of interest
                  where the conflict is such as clearly to call in question the fair
                  or efficient administration of justice. Such motion should be
                  viewed with extreme caution because of the interference with
                  the lawyer-client relationship.

Syl. pt. 1, Garlow v. Zakaib, 186 W. Va. 457, 413 S.E.2d 112 (1991). In denying Verizon’s

motion to disqualify Steptoe, the circuit court found that Steptoe’s representation of its

former and current clients did not present a conflict of interest under either Rule 1.7 or 1.9

of the West Virginia Rules of Professional Conduct where both the former and current clients

consented, after consultation, to Steptoe’s continued representation of its current clients, the

Plaintiff Employees. The circuit court also expressed concern that the disqualification of

Steptoe would constitute an impermissible restriction on the right to practice law in

contravention of West Virginia Rule of Professional Conduct 5.6. We will examine each of

these rules to determine whether Verizon is entitled to the writ of prohibition it has requested

in this case.10


                  10
                We would be remiss if we did not note that, following oral argument of this
case, Steptoe counsel for the Plaintiff Employees moved to file a supplemental brief in
response to the Court’s inquiry as to why Steptoe had not sought extraordinary relief from
this Court when first faced with Verizon’s motion to disqualify Steptoe. The supplemental
brief explains that Steptoe felt the need to develop a full record before presenting the matter
to this Court and relies upon Syllabus point 5 of Garlow v. Zakaib, 186 W. Va. 457, 413
S.E.2d 112 (1991), wherein this Court did, in fact, request that a full record be developed in
attorney disqualification matters. See Syl. pt. 5, Garlow v. Zakaib, 186 W. Va. 457, 413
S.E.2d 112 (1991) (“Before a circuit court disqualifies a lawyer in a case because the
                                                                                 (continued...)

                                                  10
                                         A. Rule 1.7

              Rule 1.7 of the West Virginia Rules of Professional Conduct addresses general

rules regarding conflict of interest. In its entirety, Rule 1.7 provides:

                      (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.

                     (b) 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.

W. Va. R. Prof’l Conduct 1.7.


              10
                 (...continued)
lawyer’s representation may conflict with the Rules of Professional Conduct, a record must
be made so that the circuit court may determine whether disqualification is proper.
Furthermore, this Court will not review a circuit court’s order disqualifying a lawyer unless
the circuit court’s order is based upon an adequately developed record. In the alternative, if
the circuit court’s order disqualifying a lawyer is based upon an inadequately developed
record, this Court, under appropriate circumstances, may remand a case to the circuit court
for development of an adequate record.”). We appreciate counsel’s candor and thoroughness
in responding to this Court’s inquiry.

                                              11
               1. Rule 1.7(a). Verizon does not contend that Steptoe’s representation of its

current clients herein violates Rule 1.7(a) and, indeed, we find that Rule 1.7(a) does not apply

to the facts of the case sub judice because Steptoe’s representation of its current clients is not

“directly adverse” to its representation of its former clients. W. Va. R. Prof’l Conduct 1.7(a).

Rather, the interests of both Steptoe’s former and current clients are aligned insofar as they

all are former employees of the same employer and they all have alleged the same wrongful

termination claims against that employer. “By definition, no violation of Rule 1.7(a) can

occur if representation of one client will not be directly adverse to another client.”

Committee on Legal Ethics v. Frame, 189 W. Va. 641, 643, 433 S.E.2d 579, 581 (1993).

Because Steptoe is not acting as an “advocate against” its former clients in representing the

Plaintiff Employees, this subsequent representation is not adverse, and Rule 1.7(a), by its

own terms, does not apply to the facts of this case. See Frame, 189 W. Va. at 643, 433

S.E.2d at 581 (observing that, “[w]ith regard to the interpretation of the phrase ‘directly

adverse,’ the comment to Rule 1.7(a) provides the following guidance: ‘Thus, a lawyer

ordinarily may not act as advocate against a person the lawyer represents in some other

matter, even if it is wholly unrelated. Paragraph (a) applies only when the representation of

one client would be directly adverse to the other.’” (quoting W. Va. R. Prof’l Conduct 1.7

cmt. Loyalty to a Client)).




                                               12

              2. Rule 1.7(b). Rather, the crux of Verizon’s complaint in this regard is that

Steptoe’s representation of its current clients constitutes a conflict of interest under Rule

1.7(b). More specifically, Verizon opines that Steptoe’s representation of its current clients

will be compromised by its obligations to its former clients, particularly Steptoe’s duty to

maintain the confidentiality of information subject to the agreed protective orders and

confidential settlement agreements entered in the Rowh and Radcliff cases. For its part,

Steptoe denies that a conflict exists under Rule 1.7(b) and further asserts that it has not

revealed any of the information subject to the orders or agreements in the prior cases and that

it does not intend to improperly use such information in the instant proceedings. Moreover,

Steptoe represents that it will use only information and documents that is obtains through

discovery in the case sub judice. Applying the language of Rule 1.7(b) to the facts of this

case, we conclude that no conflict of interest exists that would require Steptoe’s

disqualification on this basis.



              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 . . . .” W. Va. R. Prof’l Conduct 1.7(b). We previously have

interpreted this rule and now hold it to mean that, pursuant to Rule 1.7(b) of the West

Virginia Rules of Professional Conduct,

              a lawyer may represent a client even though there appears to be
              a conflict between the interests of the client and the lawyer
              him/herself if the lawyer reasonably believes that his/her

                                               13
              representation will not be affected thereby and if the client, who
              has been informed of the conflict, agrees to continued
              representation.

Lawyer Disciplinary Bd. v. Artimez, 208 W. Va. 288, 300, 540 S.E.2d 156, 168 (2000) (citing

W. Va. R. Prof’l Conduct 1.7(b)). We also have construed this rule as cautioning that “[a]n

attorney should ‘not be permitted to put himself in a position where, even unconsciously, he

will be tempted to “soft pedal” his zeal in furthering the interests of one client in order to

avoid an obvious clash with those of another.’” Barefield v. DPIC Cos., Inc., 215 W. Va.

544, 557, 600 S.E.2d 256, 269 (2004) (quoting Committee on Legal Ethics v. Frame, 189

W. Va. 641, 645, 433 S.E.2d 579, 583 (1993) (citation omitted)). Nevertheless, we do not

find that, based upon the facts presently before us, a disqualifying conflict of interest exists

that must be cured because there is no material limitation upon Steptoe’s representation of

its current clients, the Plaintiff Employees, resulting either from Steptoe’s loyalty to its

former clients or its obligations arising from such representation. W. Va. R. Prof’l Conduct

1.7(b). Nor, as we noted in the preceding section, is there an “obvious clash” between the

interests of Steptoe’s former and current clients. Barefield, 215 W. Va. at 557, 600 S.E.2d

at 269 (internal quotations and citations omitted).



              At issue are the obligations imposed upon Steptoe by the agreed protective

orders and confidential settlement agreements entered in the Rowh and Radcliff cases.

However, Verizon has not demonstrated that Steptoe has violated either of these provisions,

and the terms of these documents simply do not restrict Steptoe’s representation of

subsequent clients in substantially related matters. Neither do they prohibit Steptoe, in the

                                              14

current litigation, from requesting the same information through discovery that Verizon

disclosed in the prior cases or from obtaining a new protective order to protect this

information once it has been disclosed within the confines of the case sub judice. Moreover,

to the extent that Verizon has expressed concern that Steptoe may call its former clients as

witnesses in support of its current clients’ claims, such concern is unfounded. Both of the

confidential settlement agreements entered into in the underlying proceedings expressly

permit the employee to disclose the terms thereof “to the extent that she . . . has been

subpoenaed or otherwise ordered to make such disclosure by a Court . . .” or “as compelled

by law or Court Order.”



              In summary, we conclude that neither Steptoe’s representation of its former

clients nor its agreement to be bound by the protective orders and confidential settlements

entered in conjunction with such representation disqualify Steptoe from representing its

current clients, the Plaintiff Employees, in their wrongful termination claims against Verizon.



                                         B. Rule 1.9

              West Virginia Rule of Professional Conduct speaks to conflicts of interests

involving an attorney’s former client. Rule 1.9 states in full that

                     [a] lawyer who has formerly represented a client in a
              matter shall not thereafter:

                      (a) represent another person in the same or substantially
              related matter in which that person’s interest[s] are materially
              adverse to the interests of the former client unless the former
              client consents after consultation; or

                                              15
                      (b) use information relating to the representation to the
              disadvantage of the former client except as Rule 1.6[11] or Rule
              3.3[12] would permit or require with respect to a client or when
              the information has become generally known.

W. Va. R. Prof’l Conduct 1.9 (footnotes added).



              1. Rule 1.9(a). As to this basis for the issuance of its requested writ, Verizon

argues that Steptoe may not represent its current clients herein because the instant proceeding

is substantially related to the matter in which Steptoe represented its former clients. Verizon

additionally contends that Steptoe should be disqualified because the interests of Steptoe’s

current clients, the Plaintiff Employees, are materially adverse to those of its former clients.

Finally, Verizon asserts that the consents that Steptoe has obtained from its former clients to

permit it to continue to represent its current clients are facially defective insofar as, in

Verizon’s opinion, such consents do not fully disclose the extent to which the former clients,

and information pertaining to their cases, might be involved in the litigation of the current

clients’ claims. Steptoe, however, disputes Verizon’s assertions and states that the interests

of its former and current clients are aligned, and not adverse, insofar as they are all former

employees of the same employer and all have alleged the same claims of wrongful

termination against that same employer. Moreover, Steptoe represents that the consents it


              11
                Rule 1.6 of the West Virginia Rules of Professional Conduct addresses
confidentiality of information. See generally W. Va. R. Prof’l Conduct 1.6. This exception
is not implicated by the facts of the case sub judice. See Section III.B.2, infra.
              12
                 West Virginia Rule of Professional Conduct 3.3 concerns candor toward the
tribunal. See generally W. Va. R. Prof’l Conduct 3.3. This exception is not at issue under
the facts of the instant proceeding.

                                              16
obtained from its former clients resulted from full disclosure of the scope of its current

representation of the Plaintiff Employees, and, accordingly, the consents are valid.



              Rule 1.9(a) of the West Virginia Rules of Professional Conduct precludes an

attorney, who previously has represented a client, from representing a subsequent client “in

the same or substantially related matter” in which the subsequent client’s interests are

“materially adverse” to the former client’s interests “unless the former client consents after

consultation.” W. Va. R. Prof’l Conduct 1.9(a). Accord Syl. pt. 2, State ex rel. McClanahan

v. Hamilton, 189 W. Va. 290, 430 S.E.2d 569 (1993) (“Rule 1.9(a) of the Rules of

Professional Conduct, precludes an attorney who has formerly represented a client in a matter

from representing another person in the same or a substantially related matter that is

materially adverse to the interest of the former client unless the former client consents after

consultation.”). Thus,

                      [t]o disqualify an attorney pursuant to Rule 1.9(a) of the
              West Virginia Rules of Professional Conduct, five criteria must
              be satisfied: (1) the existence of an attorney-client relationship
              between the attorney and the former client; (2) the existence of
              an attorney-client relationship between the attorney and the
              subsequent client; (3) the subject matter of the subsequent
              client’s representation either is the same as or is substantially
              related to the subject matter of the former client’s
              representation; (4) the subsequent client’s representation is
              materially adverse to the interests of the former client; and (5)
              the former client has not consented, after consultation, to the
              subsequent representation.

Syl. pt. 5, State ex rel. Bluestone Coal Corp. v. Mazzone, 226 W. Va. 148, 697 S.E.2d 740

(2010). The facts of the instant case squarely satisfy the first three of these disqualification


                                              17

criteria: attorney representation of a former client, attorney representation of a subsequent

client, and both representations involve the same subject matter. Id. However, as we noted

with respect to our analysis finding no direct adversity between the interests of Steptoe’s

former and current clients under Rule 1.7(a), in Section III.A.1., supra, we likewise conclude

that the interests of Steptoe’s former and current clients also are not “materially adverse” and,

thus, disqualification is not required by Rule 1.9(a).



              The Comment to Rule 1.9, itself, explains precisely what the material adversity

criterion contemplates: “‘The underlying question is whether the lawyer was so involved in

the matter that the subsequent representation can be justly regarded as a changing of sides

in the matter in question.’” Bluestone Coal, 226 W. Va. 162, 697 S.E.2d at 754 (quoting

W. Va. R. Prof’l Conduct 1.9 cmt.). Thus, to constitute “materially adverse” interests under

Rule 1.9(a), the interests of an attorney’s former and current clients must be so diametrically

opposed as to require the attorney to adopt adversarial or opposite positions in the two

representations. Clearly, such diversity of interest is not present in this case where both sets

of clients have a common background of employment by the same employer at the same

employment location and have asserted the same wrongful termination cause of action

against that same employer. Rather than changing sides between the former and subsequent

clients, Steptoe has remained steadfast in its representation of, loyalty to, and advocacy for

parties plaintiff. Where the interests of an attorney’s subsequent client are identical to those

of the attorney’s former client, by definition there simply cannot be material adversity

between the two clients’ interests. Absent the satisfaction of this element of the Rule 1.9(a)

                                               18

test, disqualification cannot lie under this rule. Therefore, we deny Verizon’s request for a

writ of prohibition under Rule 1.9(a) because the factors for disqualifying an attorney

thereunder have not been satisfied in this case.



              2. Rule 1.9(b). Verizon next proposes that disqualification is required under

Rule 1.9(b) because Steptoe has indicated an intention to use confidential information that

it obtained during its representation of Rowh and Radcliff, and that is protected by the agreed

protective orders and/or confidential settlement agreements in those clients’ cases, in its

representation of its current clients, the Plaintiff Employees. Furthermore, Verizon contends

that Steptoe has not provided adequate assurances that it will not improperly use this

protected information in the instant proceedings. Steptoe rejects Verizon’s inferences and

states that it has not, and will not, use the information subject to the agreed protective orders

and the confidential settlement agreements in the Rowh and Radcliff cases in the case sub

judice. Moreover, Steptoe suggests that the information Verizon attempts to protect by

seeking its disqualification under Rule 1.9(b) is not the type of information contemplated

thereby. Rather, Steptoe proposes that Rule 1.9(b) preserves and protects information

disclosed by a client to his/her attorney that, thus, is privileged and secured by the attorney-

client privilege and not information that otherwise would not be confidential were it not for

its denomination as such under the agreed protective orders and confidential settlement

agreements.




                                               19

              The purpose of Rule 1.9(b) is to preclude an attorney from using information

that he/she has obtained while representing a client from later using such information to the

former client’s detriment. W. Va. R. Prof’l Conduct 1.9(b).

                      Information acquired by the lawyer in the course of
              representing a client may not subsequently be used by the lawyer
              to the disadvantage of the client. However, the fact that a
              lawyer has once served a client does not preclude the lawyer
              from using generally known information about the client when
              later representing another client.

W. Va. R. Prof’l Conduct 1.9 cmt.	 Thus, Rule 1.9(b)

              “prohibits lawyers from disclosing or adversely using a former
              client’s confidence . . . . The rule is concerned, first and
              foremost, with insuring that a former client will be protected
              against . . . the unfair advantage a lawyer could take of her client
              by using information he communicated in confidence during the
              course of the earlier representation.”

Bluestone Coal, 226 W. Va. at 158, 697 S.E.2d at 750 (quoting Richard E. Flamm, Lawyer

Disqualification: Conflicts of Interest and Other Bases § 7.3, at 126 (2003 & Cum. Supp.

2010) (footnotes omitted)) (emphasis added). In other words, “‘[t]he rule concerns itself

with the unfair advantage that a lawyer can take of his former client in using adversely to that

client information communicated in confidence in the course of the representation.’” State

ex rel. Ogden Newspapers, Inc. v. Wilkes, 198 W. Va. 587, 591 n.9, 482 S.E.2d 204, 208 n.9

(1996) (per curiam) (hereinafter “Ogden I”) (quoting Ullrich v. Hearst Corp., 809 F. Supp.

229, 236 (S.D.N.Y. 1992)) (emphasis added).



              It is apparent, then, and we so hold, that Rule 1.9(b) of the West Virginia Rules

of Professional Conduct has three primary objectives: (1) to safeguard the sanctity of the

                                              20

attorney-client relationship and the confidential information that is shared by a client during

the course of an attorney-client relationship; (2) to protect from disclosure the confidential

information revealed by a client to his/her attorney during the course of an attorney-client

relationship; and (3) to prohibit an attorney from using such confidential information

adversely to his/her former client. From the record before us, however, we conclude that the

facts and circumstances of the case sub judice do not warrant the disqualification of Steptoe

under the tenets of Rule 1.9(b).



              First, the protected information about which Verizon has expressed concern

in these proceedings is the information that is secured by the agreed protective orders and

confidential settlement agreements entered in the Rowh and Radcliff cases. Neither of these

documents pertains to information that Steptoe’s former clients divulged to it during the

course of their attorney-client relationship, and, in fact, Verizon is not privy to such

information insofar as it is protected by the attorney-client privilege. Rather, the source of

Verizon’s concern is information that would be public knowledge but for the protections

provided by the aforementioned instruments. Because the record does not evince any

indication that Steptoe has violated the trust and confidences of its former clients, we do not

find a violation of this element of Rule 1.9(b).



              Second, the record does not suggest that Steptoe has disclosed the confidential

information it obtained during the course of its representation of its former clients, nor that

it intends to do so. The only representations Steptoe has made regarding protected

                                              21

information concern those items protected by the agreed protective orders and confidential

settlement agreements in the prior cases. And, to that end, Steptoe has averred that it will not

use this information in the case sub judice. As we previously observed, to the extent the

impetus for Verizon’s disqualification motion is its fervent desire to safeguard the

information already secured by the agreed protective orders and the confidential settlement

agreements entered in the prior cases, Rule 1.9(b) does not provide any measure of protection

therefor. Rather, should Verizon believe that these former agreements have been breached,

its proper remedy would be to seek their enforcement in accordance with their own terms.

The protections of Rule 1.9(b) are concerned with information that is obtained within the

confines of the attorney-client relationship and not with safeguards that are implemented

upon the agreement of litigating parties and ratified by the presiding tribunal.



              Finally, assuming, arguendo, Steptoe did, or expressed an intention to, divulge

information it had received in confidence from Rowh and Radcliff, it is unlikely that Steptoe

would use such information adversely to them insofar as their interests are aligned with the

interests of Steptoe’s current clients. Having found, however, that Verizon has failed to

establish a foundation, under Rule 1.9(b), upon which to base its disqualification motion, we

find it unnecessary to further hypothesize as to how, or in what capacity, Steptoe may

improperly utilize information that is not at issue in this case.




                                              22

                                        C. Rule 5.6

              Rule 5.6 of the West Virginia Rules of Professional Conduct concerns

impermissible restrictions upon an attorney’s right to practice law. In its entirety, Rule 5.6

directs:

                     A lawyer shall not participate in offering or making:

                     (a) a partnership or employment agreement that restricts
              the right of a lawyer to practice after termination of the
              relationship, except an agreement concerning benefits upon
              retirement; or

                     (b) an agreement in which a restriction on the lawyer’s
              right to practice is part of the settlement of a controversy
              between private parties.

W. Va. R. Prof’l Conduct 5.6.



              1. Rule 5.6(a). Neither Verizon nor Steptoe argues that subsection (a) of Rule

5.6 is implicated in the case sub judice and rightfully so: Rule 5.6(a) is wholly inapplicable

to the present case because the nature of Steptoe’s attorneys’ partnership and/or employment

agreements is not at issue herein. Rather, the arguments made during the course of these

proceedings implicate Rule 5.6(b).



              2. Rule 5.6(b). During the underlying proceedings, Steptoe suggested that

granting Verizon’s motion to disqualify would infringe upon its right to practice law under

Rule 5.6(b). The circuit court took notice of this contention and expressed its hesitancy to

grant Verizon’s motion because it did not want to restrict either Steptoe attorney Rector’s


                                             23

right to practice law or infringe upon the rights of the Plaintiff Employees to be represented

by counsel of their choosing. Before this Court, Steptoe has renewed its contentions

regarding Rule 5.6. We appreciate and share those concerns.



              Rule 5.6(b) of the West Virginia Rules of Professional Conduct prohibits

restrictions on an attorney’s right to practice law: “A lawyer shall not participate in offering

or making . . . (b) an agreement in which a restriction on the lawyer’s right to practice is part

of the settlement of a controversy between private parties.” W. Va. R. Prof’l Conduct 5.6(b).

The Comment to this rule further explains that “Paragraph (b) prohibits a lawyer from

agreeing not to represent other persons in connection with settling a claim on behalf of a

client.” As with several of the other rules we have considered in our decision of this case,

we find Rule 5.6(b), on its face, to be inapplicable to the instant proceeding insofar as the

confidential settlement agreements entered into in the Rowh and Radcliff cases do not, by

their express terms, preclude Steptoe from representing the Plaintiff Employees herein.



              Nevertheless, we are concerned by the manner in which these confidential

settlement agreements have been construed during the course of these proceedings and the

arguments that have been advanced by Verizon that would, in effect, interpret these

agreements as imposing precisely this type of prohibited restriction. Agreed protective orders

have been employed in a myriad of cases in this State, and their use has been approved

repeatedly by this Court. See, e.g., Syl. pt. 8, State ex rel. State Farm Mut. Auto. Ins. Co. v.

Marks, ___ W. Va. ___, ___ S.E.2d ___ (Nos. 12-0304 & 12-0210 Nov. 15, 2012) (“As part

                                               24

of a court’s exclusive authority to manage discovery in its tribunal, a court also may enter

protective orders to safeguard the confidentiality of materials disclosed in discovery and to

regulate the manner in which such information may be used.”); Syl. pt. 4, State ex rel. State

Farm Mut. Auto. Ins. Co. v. Bedell, 228 W. Va. 252, 719 S.E.2d 722 (2011) (“Rule 26(c) of

the West Virginia Rules of Civil Procedure requires a showing of good cause to support the

issuance of a protective order. The party requesting the protective order bears the burden of

demonstrating good cause by establishing particular and specific facts; mere conclusory

statements are not sufficient to demonstrate good cause.”). Likewise, litigation frequently

is resolved and concluded through the entry of confidential settlement agreements, and this

Court has expressed its preference that cases be resolved through settlement. See, e.g., Syl.

pt. 1, Sanders v. Roselawn Mem’l Gardens, Inc., 152 W. Va. 91, 159 S.E.2d 784 (1968)

(“The law favors and encourages the resolution of controversies by contracts of compromise

and settlement rather than by litigation; and it is the policy of the law to uphold and enforce

such contracts if they are fairly made and are not in contravention of some law or public

policy.”). While this Court has noted with approval the entry of both agreed protective

orders and confidential settlement agreements, it does not follow that the terms of either of

these instruments may later be assigned such a tortured and contorted construction as to have

them say something that they simply do not and, ethically, cannot vis-à-vis an attorney’s right

to practice law.



              We are gravely concerned that the impetus for the underlying motion to

disqualify appears to be the use and existence of agreed protective orders and confidential

                                              25

settlement agreements in the litigation between Verizon and Steptoe’s former clients. We

are more troubled, however, that these seemingly innocuous documents, whose singular

purpose is to attribute confidential status to the information subject thereto and to secure such

confidentiality, has, instead been used as a poisoned dart to target Steptoe and to preclude

it from representing the clients who have chosen Steptoe’s attorneys to represent them. The

express terms of Rule 5.6(b) expressly prohibit the inclusion of such restrictive language in

any type of settlement agreement between parties. However, were we to adopt Verizon’s

interpretation of these documents’ provisions and condone their use to disqualify Steptoe

from representing its current clients, we would undoubtedly be affording a construction to

the confidential settlement agreements that most certainly would violate the pronouncements

of Rule 5.6(b). Such a result would not have only a chilling effect on the practice of law in

this State; it would completely annihilate the practices of any and all attorneys who specialize

in any area of the law, from workers’ compensation and products liability to insurance

litigation and employment discrimination, and all areas of the law in between, in which

attorneys who specialize in a particular field represent numerous, different clients. That is

not to say that the Rules of Professional Conduct must not be followed. Let us be crystal

clear that they must be diligently adhered to in order to maintain the integrity of the legal

profession and to protect both clients and the public at large. See generally W. Va. R. Prof’l

Conduct Preamble and Scope. Nevertheless, agreed protective orders and confidential

settlement agreements simply cannot, and will not, be construed as imposing restrictions

upon an attorney’s right to practice law in violation of Rule 5.6(b). Accordingly, we hold

that, pursuant to Rule 5.6 of the West Virginia Rules of Professional Conduct, a protective

                                               26

order or confidential settlement agreement may not be construed or enforced to preclude an

attorney from representing a client in a subsequent matter involving similar facts and/or

parties based solely upon the attorney’s obligations to maintain the confidentiality of

information subject to such protective order or confidential settlement agreement.13


              13
                 Our decision of the case sub judice is consistent with the decisions of other
courts that have, upon similar facts, declined to find that a confidentiality provision in prior
litigation precludes an attorney from representing clients in subsequent, similar litigation.
For example, in TradeWinds Airlines, Inc. v. Soros, No. 08 Civ. 5901(JFK), 2009 WL
1321695 (S.D.N.Y. May 12, 2009), the court concluded that an attorney who had participated
in a prior case against the same defendant was not disqualified where she did not use
information that was subject to a protective order in the prior case but rather used public
information contained in the court’s record and opinion in the prior case to prepare pleadings
in the subsequent matter. In short, the court ruled that “[t]he Protective Order does not
restrict its signatories from engaging in future litigation that would involve overlapping
discovery.” Id. at *7. The court also “decline[d] to interpret a standard confidentiality
provision [in the Settlement Agreement] as an implied restriction on counsel’s ability to
represent other clients, especially as such a restrictive covenant would itself violate ethical
rules.” Id. at *9 (footnote omitted) (citing ABA Model Rule 5.6(b) prohibiting inclusion in
a settlement of restrictions upon an attorney’s right to practice law).

               Similarly, in Hu-Friedy Manufacturing Co., Inc. v. General Electric Co., No.
99 C 0762, 1999 WL 528545 (N.D. Ill. July 19, 1999), the defendant moved to disqualify the
plaintiff’s counsel because the same counsel had represented another client in litigation
against the same defendant in which a protective order and cooperation agreement had been
entered. The court rejected the defendant’s arguments, concluding that adopting such
rationale effectively would “turn[] any protective order barring future use of confidential
information that is independently relevant and discoverable in a subsequent action into a
restriction on an attorney’s right to practice law.” Id. at *3. Additionally, the court found
that such an interpretation of the protective order is contrary to Rule 5.6(b) and disingenuous
insofar as “any reasonably competent attorney would routinely obtain [the same information]
in discovery” thus affording counsel “no unfair advantage in this action due to its previous
exposure to the confidential information.” Id. at *3 (emphasis in original).

              Finally, the court in First Impressions Design and Management, Inc. v. All That
Style Interiors, Inc., 122 F. Supp. 2d 1352, 1354 (S.D. Fla. 2000), declined to disqualify
defense counsel based upon the appearance of impropriety where defense counsel previously
had represented the same defendant in a substantially similar matter against the same plaintiff
                                                                                 (continued...)

                                              27
               13
                (...continued)
and where an agreed protective order and a confidential settlement agreement had been
entered in the prior litigation. Ruling that disqualification was not warranted, the court
observed that the plaintiff “could not point to a specifically identifiable impropriety, i.e., any
wrongful use of confidential or trade secret information” by defense counsel; that the two
prior agreements did not prohibit defense counsel’s participation in the instant proceedings;
and that “Plaintiff’s counsel has not shown that there is a reasonable possibility that there will
be a prospective violation of such agreements.” Id. at 1354 (footnote omitted). But see Blue
Cross & Blue Shield of New Jersey v. Philip Morris, Inc., 53 F. Supp. 2d 338 (E.D.N.Y.
1999) (disqualifying counsel based upon appearance of impropriety where counsel had
agreed to refrain from representing defendant in instant proceeding in exchange for adverse
party’s promise not to oppose counsel’s representation of other parties in related litigation).

               Other courts also have ruled consistently with our decision in this case. See,
e.g., Earnings Performance Grp., Inc. v. Quigley, 124 Fed. Appx. 350 (6th Cir. 2005)
(determining that, if attorney had signed agreement to refrain from representing parties in
future litigation against employer, such agreement most likely would not be enforceable
under Michigan Rule of Professional Conduct 5.6(b)); Wolt v. Sherwood, 828 F. Supp. 1562
(D. Utah 1993) (construing settlement agreement as not precluding settling defendant’s
counsel from later representing nonsettling defendant against same plaintiff and opining that
if settlement agreement contained such a restriction, it would violate Utah Rule of
Professional Conduct 5.6(b)); Life Care Ctrs. of America v. Smith, 298 Ga. App. 739, 681
S.E.2d 182 (2009) (finding no basis for disqualification of plaintiff’s counsel based upon
counsel’s prior representation of another party plaintiff against same defendant in litigation
that was resolved through the entry of a confidential settlement agreement and referencing
Georgia Rule of Professional Conduct 5.6(b)). Accord Syl., Jarvis v. Jarvis, 12 Kan. App. 2d
799, 758 P.2d 244 (1988) (“An agreement which limits the freedom of a party to choose an
attorney is void and unenforceable as against public policy.”); Cardillo v. Bloomfield 206
Corp., 411 N.J. Super. 574, 576, 988 A.2d 136, 137 (App. Div. 2010) (“Attorneys may not
circumvent the import of RPC 5.6(b) by stating that the settlement of litigation is separate
from the agreement to restrict the practice of law where the agreements were negotiated
contemporaneously and are interconnected.”). See also McPhearson v. The Michaels Co.,
117 Cal. Rptr. 2d 489, ___, 96 Cal. App. 4th 843, 848 (2002) (rejecting court’s reasoning in
Gilbert in concluding that attorney was not disqualified from representing additional
employee against same employer, particularly where both former client employee and
subsequent client employee waived any potential conflict and confidentiality clause in former
client’s settlement agreement did not preclude him from testifying as “percipient witness”
for subsequent client). But see Gilbert v. National Corp. for Hous. P’ships, 84 Cal. Rptr. 2d
204, 71 Cal. App. 4th 1240 (1999) (disqualifying attorney from representing current client
employee in litigation against same employer against which attorney had represented former
                                                                               (continued...)

                                               28
              The fact that the instant matter has been presented to us for decision upon these

facts and advancing these arguments indicates our need to reiterate our prior cautionary

words regarding the filing of disqualification motions:

                      We have expressed with concern when a party uses the
              disqualification rule as a sword in a disqualification proceeding
              that is designed as a method of harassment and an abusive
              litigation tactic:

                             [D]isqualification, as a prophylactic device
                     for protecting the attorney-client relationship, is a
                     drastic measure which courts should hesitate to
                     impose except when absolutely necessary. A
                     disqualification of counsel, while protecting the
                     attorney-client relationship, also serves to destroy
                     a relationship of their own choosing. . . . [S]uch
                     motions should be viewed with extreme caution
                     for they can be misused as techniques of
                     harassment.

Ogden I, 198 W. Va. at 591 n.10, 482 S.E.2d at 208 n.10 (quoting Garlow v. Zakaib, 186

W. Va. 457, 461, 413 S.E.2d 112, 116 (1991)) (additional citations omitted). “[T]he purpose

of the [West Virginia] Rules [of Professional Conduct] can be subverted when they are

invoked by opposing parties as procedural weapons.” W. Va. R. Prof’l Conduct Scope.

While cases warranting the disqualification of counsel do arise, the instant matter, simply,

is not one of them. Counsel are reminded to faithfully abide by the Rules of Professional

Conduct and to refrain from using these ethical guides to engender and perpetuate hostility

between adversaries in litigation.



              13
               (...continued)
client employees based upon confidential settlement agreement entered in former clients’
case).

                                              29
                              IV.

                       CONCLUSION

For the foregoing reasons, the requested writ of prohibition is hereby denied.



                                                                Writ Denied.




                              30

