          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                  September 2013 Term
                                     ____________                        FILED
                                                                  November 6, 2013
                                                                      released at 3:00 p.m.
                                      No. 13-0458                   RORY L. PERRY II, CLERK
                                     ____________                 SUPREME COURT OF APPEALS
                                                                       OF WEST VIRGINIA




                     STATE OF WEST VIRGINIA EX REL.

                  SCOTT ASH, PROSECUTING ATTORNEY OF

                     MERCER COUNTY, WEST VIRGINIA,

                                Petitioner


                                          v.

                   THE HONORABLE DEREK C. SWOPE,

   JUDGE OF THE CIRCUIT COURT OF MERCER COUNTY, WEST VIRGINIA,

                                  and

                           CHUBBY HOSTON,

                              Respondents

           _________________________________________________

                         Petition For a Writ of Prohibition

                       The Honorable Derek C. Swope, Judge

                            Criminal Case No. 13-F-58


                             WRIT GRANTED

          _____________________________________________________

                            Submitted: October 16, 2013
                                Filed: November 6, 2013


Joseph T. Harvey, Esq.                         Patrick Morrisey
Harvey and Janutolo Law Offices                Attorney General
Princeton, West Virginia                       Laura Young
Counsel for Respondent,                        Assistant Attorney General
Chubby Hoston                                  Charleston, West Virginia
                                               Counsel for Petitioner


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



              1.    “The State may seek a writ of prohibition in this Court in a criminal

case where the trial court has exceeded or acted outside of its jurisdiction. Where the

State claims that the trial court abused its legitimate powers, the State must demonstrate

that the court’s action was so flagrant that it was deprived of its right to prosecute the

case or deprived of a valid conviction. In any event, the prohibition proceeding must

offend neither the Double Jeopardy Clause nor the defendant’s right to a speedy trial.

Furthermore, the application for a writ of prohibition must be promptly presented.”

Syllabus Point 5, State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992).



              2.    Because many aspects of a guardian ad litem’s representation of an

incarcerated person in a family court proceeding comprise duties that are performed by a

lawyer on behalf of a client, the rules of professional conduct generally apply to that

representation.
JUSTICE KETCHUM:




               Petitioner Scott Ash, the prosecuting attorney for Mercer County, West

Virginia, invokes this Court’s original jurisdiction in prohibition to challenge the April

26, 2013, order of the Circuit Court of Mercer County quashing a subpoena and barring

the use of video evidence in a criminal prosecution. The circuit court’s order prevented

Respondent Chubby Hoston’s guardian ad litem, appointed in a family court proceeding,

from testifying in a subsequent criminal action brought against Mr. Hoston. The order

also prevented the admission of a video recording of the guardian ad litem testifying in

the family court hearing. The circuit court determined that the communication between

Mr. Hoston and his guardian ad litem in the family court proceeding was protected under

the attorney-client privilege.

               Two issues are raised in this writ of prohibition: (1) whether an attorney-

client relationship is formed between a lawyer and an incarcerated person when the

lawyer is appointed to serve as the incarcerated person’s guardian ad litem in a family

court proceeding, and (2) if an attorney-client relationship is formed, may the

incarcerated person assert that a statement is protected by the attorney-client privilege

when the incarcerated person directed the guardian ad litem to convey the statement to a

third party?

               After review, we find that, in general, an attorney-client relationship is

formed when a lawyer acts as an incarcerated person’s guardian ad litem in a family court

proceeding. Further, we find that when an incarcerated person directs his/her guardian ad

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litem to convey a statement to a third party, that statement is not protected by the

attorney-client privilege.

              For the reasons set forth below, we grant the requested writ of prohibition.



                             I. Factual & Procedural Background

              Lisa Martin filed a domestic violence petition against Respondent Chubby

Hoston. Because Mr. Hoston was incarcerated at the time this petition was filed, the

family court judge appointed Lawyer Colin Cline (“Lawyer Cline”) to act as Mr.

Hoston’s guardian ad litem. Prior to the family court hearing on the domestic violence

petition, Lawyer Cline met with Mr. Hoston at the Southern Regional Jail. During this

meeting, Mr. Hoston directed Lawyer Cline to make a statement on his behalf at the

family court hearing.

              Lawyer Cline delivered Mr. Hoston’s message at the family court hearing,

stating:

              Mr. Hoston has directed me in no uncertain terms to tell the
              court and everybody in this room that he intends if, what he
              said was, if she [Lisa Martin] doesn’t leave me alone I am
              going to go to her place of employment and kill her. . . . He
              told me three times that I am to tell the judge that. I was
              directed by him to do that. I do not believe I am breaching
              confidentiality by saying that. I think there’s actually an
              exception to the rules for this kind of information. But I was
              told by my client to say this, um, so there it is.

              Based on Lawyer Cline’s statement at the family court hearing, Mr. Hoston

was charged with the criminal offense of intimidation of and retaliation against a witness,

“by unlawfully and feloniously retaliating against Lisa Martin for attending, testifying, or

                                             2

participating in a Domestic Violation Protection proceeding[.]” Mr. Hoston was charged

with violating W.Va. Code § 61-5-27 [1999], which states, in part:

             (c) Retaliation. – It is unlawful for a person to cause injury or
             loss to a person or property, or to threaten or attempt to do so,
             with the intent to: . . .

             (3) Retaliate against any other person for attending, testifying
             or participating in an official proceeding, or for the
             production of any record, document or other object produced
             by a person in an official proceeding.

             The prosecuting attorney in the criminal matter, Petitioner Scott Ash, issued

a subpoena to Lawyer Cline, seeking his testimony on the statement Mr. Hoston directed

him to deliver at the family court hearing. Mr. Hoston’s criminal lawyer moved to quash

the subpoena, arguing that the statement was a confidential communication protected by

the attorney-client privilege. Mr. Hoston’s criminal lawyer also argued that the circuit

court should bar the video recording of the family court hearing from being introduced in

the criminal proceeding because this recording contained Lawyer Cline’s statement.

             The circuit court held a suppression hearing to determine if Lawyer Cline

could be required to testify in the criminal proceeding. The circuit court concluded that

(1) an attorney-client relationship existed between Lawyer Cline and Mr. Hoston; (2)

Lawyer Cline could not be compelled to testify against Mr. Hoston in the criminal

proceeding without a waiver of the attorney-client privilege; and (3) Mr. Hoston had not

waived his attorney-client privilege. The circuit court therefore granted “the Defendant’s

motion to suppress/prohibit the testimony” of Lawyer Cline in the criminal proceeding.




                                            3

The circuit court also barred the video recording of the family court hearing from being

introduced in the criminal proceeding.

              After entry of the circuit court’s April 26, 2013, order, Petitioner Scott Ash

filed the present writ of prohibition.



                                  II. Standard of Review

              This Court addressed our standard of review for a writ of prohibition in a

criminal matter in Syllabus Point 5 of State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807

(1992):

                      The State may seek a writ of prohibition in this Court
              in a criminal case where the trial court has exceeded or acted
              outside of its jurisdiction. Where the State claims that the
              trial court abused its legitimate powers, the State must
              demonstrate that the court’s action was so flagrant that it was
              deprived of its right to prosecute the case or deprived of a
              valid conviction. In any event, the prohibition proceeding
              must offend neither the Double Jeopardy Clause nor the
              defendant’s right to a speedy trial.         Furthermore, the
              application for a writ of prohibition must be promptly
              presented.

Further, in Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d

12 (1996), we set forth the following standard for issuance of a writ of prohibition when

it is alleged a lower court is exceeding its authority:

                     In determining whether to entertain and issue the writ
              of prohibition for cases not involving an absence of
              jurisdiction but only where it is claimed that the lower
              tribunal exceeded its legitimate powers, this Court will
              examine five factors: (1) whether the party seeking the writ
              has no other adequate means, such as direct appeal, to obtain
              the desired relief; (2) whether the petitioner will be damaged

                                               4
              or prejudiced in a way that is not correctable on appeal; (3)
              whether the lower tribunal’s order is clearly erroneous as a
              matter of law; (4) whether the lower tribunal’s order is an oft
              repeated error or manifests persistent disregard for either
              procedural or substantive law; and (5) whether the lower
              tribunal’s order raises new and important problems or issues
              of law of first impression. These factors are general
              guidelines that serve as a useful starting point for determining
              whether a discretionary writ of prohibition should issue.
              Although all five factors need not be satisfied, it is clear that
              the third factor, the existence of clear error as a matter of law,
              should be given substantial weight.

With these standards in mind, we turn to the parties’ arguments.



                                        III. Analysis

              Two issues are raised in this writ. The first issue is whether an attorney-

client relationship was formed between Lawyer Cline and Mr. Hoston when Lawyer

Cline was appointed to serve as Mr. Hoston’s guardian ad litem in the family court

proceeding. Second, if an attorney-client relationship was formed, may Mr. Hoston

assert that the statement he directed Lawyer Cline to make on his behalf at the family

court hearing is protected by the attorney-client privilege?



                            A. Attorney-Client Relationship

              The first issue we address is whether an attorney-client relationship exists

between a lawyer and an incarcerated person when a lawyer is appointed to serve as the

incarcerated person’s guardian ad litem in a family court proceeding.




                                              5

                 Rule 21 of the West Virginia Trial Court Rules governs the appointment of

guardians ad litem in family court proceedings.1 Trial Court Rule 21.03 states that a

guardian ad litem “shall make a full and independent investigation of the facts involved

in a proceeding and make recommendations to the court by testimony or in writing,

unless otherwise ordered by the court.” While this rule sets forth the general duties

required of a guardian ad litem, the rule is silent on whether an attorney-client

relationship exists between a guardian ad litem and the person whom the guardian is

appointed to represent.2

                 This Court has not previously addressed whether an attorney-client

relationship exists between a lawyer and an incarcerated person when a lawyer is

appointed to serve as an incarcerated person’s guardian ad litem in a family court

proceeding. For guidance, we look to In re Christina W., 219 W.Va. 678, 639 S.E.2d 770

(2006), in which this Court examined whether an attorney-client relationship existed


       1
           Rule 21.01 of the West Virginia Trial Court Rules states:

                       This Rule applies to all eligible guardian ad litem
                 appointments in circuit court, family court and magistrate
                 court. This Rule does not apply to guardians ad litem
                 appointed in abuse and neglect proceedings.
       2
        Rule 26 of the West Virginia Rules of Practice and Procedure for Domestic
Violence Civil Proceedings, entitled “Appointments of guardians ad litem,” states “Rule
21 of the West Virginia Trial Court Rules for Trial Courts of Record shall govern the
appointment of guardians ad litem in domestic violence civil proceedings.” Rule 26 is
silent on whether an attorney-client relationship exists between a guardian ad litem and
the person whom the guardian is appointed to represent in a domestic violence
proceeding.


                                               6

between a guardian ad litem and a child the guardian was appointed to represent in an

abuse and neglect proceeding. The Court in Cristina W. determined that guardians ad

litem were required to “perform a wide variety of lawyerly duties” in abuse and neglect

cases. Id. at 683, 639 S.E.2d at 774.      The Court concluded that “a guardian ad litem

serves in a capacity very similar to that of a lawyer representing a client.” 219 W.Va. at

682, 639 S.E.2d at 774. Based on this finding, the Court held in Syllabus Point 3 that:

                      Because many aspects of a guardian ad litem’s
              representation of a child in an abuse and neglect proceeding
              comprise duties that are performed by a lawyer on behalf of a
              client, the rules of professional conduct generally apply to
              that representation.

              Similar to the Court’s holding in Christina W., we find that a lawyer

serving as a guardian ad litem for an incarcerated person in a family court proceeding is

required to perform a number of “lawyerly duties.” In the instant case, Lawyer Cline met

with Mr. Hoston prior to the family court hearing, discussed the domestic violence

petition with him, and acted as his counsel at the hearing. The family court judge

referred to Mr. Hoston as Lawyer Cline’s “client.” Similarly, Lawyer Cline concluded

his statement to the family court by stating, “I was told by my client to say this[.]”

(Emphasis added.) In the circuit court’s order, the court notes that the duties of a

guardian ad litem appointed to an incarcerated person in a family court proceeding are

“akin to traditional attorney/client representation.” We agree. Accordingly, we hold that,

because many aspects of a guardian ad litem’s representation of an incarcerated person in

a family court proceeding comprise duties that are performed by a lawyer on behalf of a

client, the rules of professional conduct generally apply to that representation.

                                              7

              Having determined that an attorney-client relationship existed between

Lawyer Cline and Mr. Hoston, we proceed to examine the attorney-client privilege.



                              B. Attorney-Client Privilege

              We next address whether the statement Mr. Hoston directed Lawyer Cline

to make on his behalf at the family court hearing is protected by the attorney-client

privilege.

              By way of background, it is a fundamental principle in the lawyer-client

relationship that the lawyer maintain the confidentiality of information relating to the

representation of a client. Comment, Rule 1.6 of the Rules of Professional Conduct. The

rationale for the privilege is to encourage a client to communicate fully and frankly with

the lawyer even as to embarrassing or legally damaging subject matter. Id. It has long

been recognized that the attorney-client privilege

              is founded upon the necessity, in the interest and
              administration of justice, of the aid of persons having
              knowledge of the law and skilled in its practice, which
              assistance can only be safely and readily availed of when free
              from consequence or the apprehension of disclosure.

Hunt v. Blackburn, 128 U.S. 464, 470 (1888). The privilege is under the “exclusive

control of the client rather than the attorney.” State ex rel. Doe v. Troisi, 194 W.Va. 28,

35, 459 S.E.2d 139, 146 (1995).

              The attorney-client privilege is set forth in the Rules of Professional

Conduct and in our common law. Rule 1.6 of the Rules of Professional Conduct states:



                                             8

                      (a) A lawyer shall not reveal information relating to
              representation of a client unless the client consents after
              consultation, except for disclosures that are impliedly
              authorized in order to carry out the representation, and except
              as stated in paragraph (b).
                      (b) A lawyer may reveal such information to the extent
              the lawyer reasonably believes necessary:
                      (1) to prevent the client from committing a criminal
              act; or
                      (2) to establish a claim for defense on behalf of the
              lawyer in a controversy between the lawyer and the client, to
              establish a defense to a criminal charge or civil claim against
              the lawyer based upon conduct in which the client was
              involved, or to respond to allegations in any proceeding
              concerning the lawyer’s representation of a client.

              In Syllabus Point 2 of State v. Burton, 163 W.Va. 40, 254 S.E.2d 129

(1979), this Court set forth a three-factor test to determine whether the attorney-client

privilege may be asserted:

              In order to assert an attorney-client privilege, three main
              elements must be present: (1) both parties must contemplate
              that the attorney-client relationship does or will exist; (2) the
              advice must be sought by the client from the attorney in his
              capacity as a legal advisor; (3) the communication between
              the attorney and client must be intended to be confidential.

              Turning to the instant case, we find that Mr. Hoston cannot satisfy the third

element in Burton. Mr. Hoston directed Lawyer Cline to tell “the [family] court and

everybody in this [court]room” that he intended to kill Ms. Martin if she pursued the

domestic violence petition against him.3 In order to assert an attorney-client privilege,


       3
         In his brief to this Court, Mr. Hoston argues that he “was not actually directing
Mr. Cline to deliver a threat, but was, in fact, blowing off steam.” This assertion is belied
by the fact that Mr. Hoston told Lawyer Cline three times that he wanted this threat made
at the family court hearing. Further, Mr. Hoston’s threat was specific: he not only stated
                                                                             (continued . . .)
                                              9

the communication must be intended to be confidential. This case presents a clear

example of a communication that is not intended to be confidential, rather, it was

intended to be disseminated to everyone at the family court hearing. “[S]tatements made

by a client to an attorney are not within the attorney-client privilege if the information is

given with the intent that it be used and disseminated to third parties.” Franklin D.

Cleckley, Louis J. Palmer, & Robin J. Davis, Handbook on Evidence for West Virginia

Lawyers, § 501.02[7][F] (5th ed. 2012). The Fourth Circuit Court of Appeals has stated

that “[t]o be privileged it must be intended that information given [to] an attorney remain

confidential; information given with the intent that it be used . . . is inconsistent with the

confidentiality asserted.” United States v. Martin, 773 F.2d 579, 584 (4th Cir. 1985). See

United States v. Oloyede, 982 F.2d 133 (4th Cir. 1992) (When the communication was

intended to be disseminated to third parties, the privilege does not protect the

communication from disclosure). See also United States v. Jones, 696 F.2d 1069, 1072

(4th Cir. 1982) (“Any disclosure inconsistent with maintaining the confidential nature of

the attorney-client relationship waives the attorney-client privilege.”).       Because Mr.

Hoston directed Lawyer Cline to disseminate his statement to everyone at the family

court hearing, we find that he cannot satisfy the third element of Burton.

              Mr. Hoston’s claim of attorney-client privilege also fails under Rule 1.6 of

the Rules of Professional Conduct. Rule 1.6(a) states, in part, “A lawyer shall not reveal



that he was going to kill Ms. Martin, but also stated where he was going to do it–at her
place of employment.


                                             10
information relating to representation of a client unless the client consents after

consultation[.]” (Emphasis added.) Mr. Hoston not only consented to Lawyer Cline

revealing the information he communicated to him, Mr. Hoston ordered Lawyer Cline to

reveal the information to everyone at the family court hearing. Because Mr. Hoston

ordered Lawyer Cline to reveal this information to a third party, he cannot maintain a

claim of attorney-client privilege under Rule 1.6 of the Rules of Professional Conduct.

              Based on the foregoing, we find that the circuit court’s ruling that Mr.

Hoston did not waive the attorney-client privilege when he ordered Lawyer Cline to

disseminate his statement to everyone at the family court hearing is clearly erroneous as a

matter of law. We conclude that the circuit court abused its legitimate powers and

effectively deprived the State of its right to prosecute this case when it granted Mr.

Hoston’s motion to suppress the testimony of Lawyer Cline, which testimony is critical to

the State’s case against Mr. Hoston.



                                       IV. Conclusion

              For the foregoing reasons, we find that the petitioner is entitled to the

requested writ of prohibition to prohibit the circuit court from suppressing the testimony

of Lawyer Cline. We therefore vacate the April 26, 2013, ruling of the Circuit Court of

Mercer County.

                                                                             Writ granted.




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