          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 January 2020 Term
                                 _______________
                                                                               FILED
                                   No. 19-1160                               May 28, 2020
                                                                               released at 3:00 p.m.
                                 _______________                           EDYTHE NASH GAISER, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
                        STATE OF WEST VIRGINIA ex rel.
                                JUNE YURISH,
                               KRISTIN DOUTY,
                           and CHRISTINA LESTER,
                                  Petitioners

                                         v.

                  THE HONORABLE LAURA V. FAIRCLOTH,
                Judge of the Circuit Court of Berkeley County, and
                       THE STATE OF WEST VIRGINIA,
                                   Respondents
       ____________________________________________________________

                  ORIGINAL PROCEEDING IN PROHIBITION
                              WRIT DENIED
       ____________________________________________________________

                             Submitted: March 3, 2020
                               Filed: May 28, 2020

Christian J. Riddell, Esq.                    Patrick Morrisey, Esq.
Stedman & Riddell, PLLC                       Attorney General
Martinsburg, West Virginia                    Gordon L. Mowen, II, Esq.
Counsel for Petitioners                       Assistant Attorney General
                                              Charleston, West Virginia
                                              Counsel for Respondents

JUSTICE WALKER delivered the Opinion of the Court.


JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.
                              SYLLABUS BY THE COURT


              1.     “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.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199

W. Va. 12, 483 S.E.2d 12 (1996).


              2.     “In determining whether to grant a rule to show cause in prohibition

when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy

of other available remedies such as appeal and to the over-all economy of effort and money

among litigants, lawyers and courts; however, this Court will use prohibition in this

discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention


                                               i
of a clear statutory, constitutional, or common law mandate which may be resolved

independently of any disputed facts and only in cases where there is a high probability that

the trial will be completely reversed if the error is not corrected in advance.” Syllabus

Point 1, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979) (superseded by statute on

other grounds as stated in State ex rel. Thornhill Group, Inc. v. King, 233 W. Va. 564, 759

S.E.2d 795 (2014)).


              3.      “The right of a criminal defendant to assistance of counsel includes

the right to effective assistance of counsel.” Syllabus Point 1, Cole v. White, 180 W. Va.

393, 376 S.E.2d 599 (1988).


              4.      “Where a constitutional right to counsel exists under W.Va. Const.

art. III, § 14, there is a correlative right to representation that is free from conflicts of

interest.” Syllabus Point 2, Cole v. White, 180 W. Va. 393, 376 S.E.2d 599 (1988).


              5.      “Rule 44(c) of the West Virginia Rules of Criminal Procedure

requires trial courts to ‘promptly inquire with respect to such joint representation and . . .

personally advise each defendant of his right to effective assistance of counsel, including

separate representation.’” Syllabus Point 5, Cole v. White, 180 W. Va. 393, 376 S.E.2d

599 (1988).


              6.      “The standard for taking some affirmative action under Rule 44(c) of

the West Virginia Rules of Criminal Procedure is the trial court’s belief that a conflict of

                                              ii
interest is likely to arise. This is a lower standard than the Sixth Amendment’s requirement

of demonstrating an actual prejudice.” Syllabus Point 6, Cole v. White, 180 W. Va. 393,

376 S.E.2d 599 (1988).




                                            iii
WALKER, Justice:


              Petitioners June Yurish, Kristin Douty, and Christina Lester are charged with

the same crime arising from the same circumstances in three criminal cases pending in the

Circuit Court of Berkeley County. Christian Riddell is counsel for all three, jointly. But

the State moved to disqualify Mr. Riddell from representing Petitioners because, it argued,

the joint representation created a current conflict among Petitioners’ interests and

threatened future conflicts that would jeopardize the integrity of the proceedings. The

circuit court granted the State’s motion.


              Petitioners now seek a writ from this Court to prohibit the circuit court from

enforcing that order. They contend that the disqualification of Mr. Riddell is a clear

violation of their Sixth Amendment right to choose their own counsel, regardless of the

conflicts that exist or that may arise. We disagree. The circuit court did not clearly err

when it applied Rule 44(c) of the West Virginia Rules of Criminal Procedure to disqualify

Mr. Riddell from representing Petitioners, jointly, at this early stage of the proceedings.

So, we deny the requested writ.


                I. FACTUAL AND PROCEDURAL BACKGROUND

              In August 2019, authorities filed three criminal complaints in the Berkeley

County Magistrate Court against Petitioners June Yurish, Kristin Douty, and Christina




                                             1
Lester.1 The complaints charged each Petitioner with a single violation of West Virginia

Code § 49-2-812(a), Failure to Report.2 All three charges arise from the same set of facts.

Christian Riddell appeared in magistrate court as counsel for each Petitioner. At his

request, the magistrate court transferred the cases to circuit court, which then scheduled an

initial hearing for October 21, 2019.


                The State moved to disqualify Mr. Riddell from appearing in Petitioners’

cases immediately before the October 21 initial hearing.           In its motion, the State

represented that it had offered plea agreements to Petitioners which, as a condition of

acceptance, required each to assist the State’s investigation and, if necessary, to testify

against her codefendants. The State argued in its motion that the offer created a concurrent

conflict of interest for Mr. Riddell under West Virginia Rule of Professional Conduct 1.7.3


       Petitioners’ case numbers in the Circuit Court of Berkeley County are Nos. 19-M-
       1

7, 19-M-8, and 19-M-9.
       2
           West Virginia Code § 49-2-812(a) states:

                        Any person, official or institution required by this
                article to report a case involving a child known or suspected to
                be abused or neglected, or required by section eight hundred
                nine of this article to forward a copy of a report of serious
                injury, who knowingly fails to do so or knowingly prevents
                another person acting reasonably from doing so, is guilty of a
                misdemeanor and, upon conviction, shall be confined in jail not
                more than ninety days or fined not more than $5,000, or both
                fined and confined.

       3
           Rule of Professional Conduct 1.7 states:

                       (a)    Except as provided in paragraph (b), a lawyer
                shall not represent a client if the representation involves a
                                               2
The parties then appeared for the previously scheduled hearing on October 21. There, Mr.

Riddell produced conflict waivers4 from each of his clients in which they represented that,

                   3.     My attorney has further informed me that it is
             probable that the prosecutor will offer me a plea agreement




             concurrent conflict of interest. A concurrent conflict of interest
             exists if:

                   (1)     the representation of one client will be directly
             adverse to another client; or

                    (2)     there is a significant risk that the representation
             of one or more clients will be materially limited by the lawyer’s
             responsibilities to another client, a former client or a third
             person or by a personal interest of the lawyer.

                    (b)     Notwithstanding the existence of a concurrent
             conflict of interest under paragraph (a), a lawyer may represent
             a client if:

                    (1)    the lawyer reasonably believes that the lawyer
             will be able to provide competent and diligent representation
             to each affected client;

                    (2)     the representation is not prohibited by law;

                    (3)    the representation does not involve the assertion
             of a claim by one client against another client represented by
             the lawyer in the same litigation or other proceeding before a
             tribunal; and

                   (4)    each affected client gives informed consent,
             confirmed in writing.

      4
        Each Petitioner signed her waiver on October 4, 2019. The signatures were not
notarized, however, until December 3, 2019.

                                             3
              [that] requires my cooperation and testimony against my co-
              defendants in exchange for a more lenient sentence.

                     4.     My attorney has informed me that, pursuant to
              Rule 1.7 of the West Virginia Rules of Professional Conduct,
              the possibility of such a plea agreement creates for him a
              concurrent conflict of interest as to joint representation because
              he will be able unable to negotiate any such plea agreement on
              my behalf because of his ongoing representation and duties to
              my co-defendants.


              Petitioners responded to the State’s motion the next month. They urged the

circuit court to approach the State’s motion with extreme caution out of deference to their

rights under the Sixth Amendment of the United States Constitution to be represented by

the counsel of their choice. They reasoned that their waivers cured any concurrent or future

conflicts that may arise as the case progressed and that the State had not met its heavy

burden to prove that disqualification was necessary and justified.5


              The circuit court reconvened the parties on November 18, 2019. After

argument, the circuit court granted the State’s motion from the bench. The court found

that regardless of any actual conflicts of interest, Mr. Riddell’s joint representation of

Petitioners created two likely future conflicts. First, one Petitioner may want to share

information with Mr. Riddell that she did not want him to share with her codefendants.

Mr. Riddell could not comply with that instruction if he continued to represent all three


       5
         Petitioners also called the circuit court’s attention to a 1990 criminal case in the
Circuit Court of Berkeley Counter that they contended enabled the circuit court to assign
each defendant individual counsel to conduct plea negotiations. A thirty-year old circuit
court case is not relevant to our consideration of the circuit court’s order.

                                              4
Petitioners. Second, Mr. Riddell could not advise one Petitioner on any proposed plea

agreement that would obligate her to assist the State in the prosecution of her codefendants.

The court recognized Petitioners’ position that they would never accept a plea agreement

but observed that that position could change. And, the circuit court observed that Mr.

Riddell’s participation in plea negotiations in any of Petitioners’ cases could easily give

rise to a direct appeal or a habeas petition, regardless of Petitioners’ conflict waivers.


              The parties gathered once again on December 10 so that the circuit court

could ask each Petitioner about the joint representation and to advise her of her rights, as

required by West Virginia Rule of Criminal Procedure 44(c).6 During the hearing, the

court questioned each Petitioner individually and in near-identical fashion. Each Petitioner

affirmed to the circuit court that she understood that she had a right to be represented by

counsel.   Each Petitioner also affirmed her understanding that because of the joint

representation, Mr. Riddell had to meet with Petitioners simultaneously or obtain the

others’ permission to keep confidential information she shared with him. Each Petitioner

also affirmed that she understood that if the State offered a cooperation plea agreement, or

if she decided to approach the State about a plea agreement, Mr. Riddell would have to

withdraw from the joint representation arrangement. Each Petitioner also informed the



       6
         On November 19, the circuit court entered an order confirming that it had granted
the State’s motion to disqualify Mr. Riddell during the hearing the day before and
scheduling another hearing for November 21 to conduct the colloquy mandated by Rule
44(c). Before the November 21 hearing, Petitioners filed supplemental briefing, so the
circuit court continued the matter until December 10 to allow the State to respond.

                                              5
circuit court that no conflict of interest existed or could occur in the future that would

justify disqualification of Mr. Riddell from her case.


              Following the colloquy, the court addressed the applicability of Rule 44(c)

to the case at hand. The court found that the rule applied to potential conflicts as well as

actual ones and concluded that good cause existed under Rule 44(c) to believe that a

conflict of interest would likely arise in Petitioners’ cases that would disqualify Mr. Riddell

from representing Petitioners jointly. The court explained that while a conflict may not

arise immediately in Petitioners’ cases, it would certainly arise

              once the Court moves forward and the Court makes a ruling
              about the admissibility of that tape that has been circulating, as
              the Court goes through different hearings and different matters
              are addressed, I cannot fathom a situation where a conflict of
              interest would not likely arise in this case. And as a result of
              that in order to protect the defendants according to Rule 44(c)
              the Court will grant or has already granted the state’s motion
              and I just wanted to re-affirm that decision here today.

                      Even though the individual defendants have been I think
              sincere in their statements to the Court and certainly want you,
              Mr. Riddell, to represent them I don’t believe that they’re
              making decisions that are in their best interest and even when
              I heard one of the defendants say I don’t feel that there would
              be any conflict that’s not saying there couldn’t possibly be and
              that’s the standard the Court employs.


              Petitioners’ counsel then asked the circuit court to clarify its ruling and

advise whether it intended to disqualify him from representing one Petitioner or all of them.

The court responded:

                     No, you’re not permitted to represent any of them. A
              conflict for one is a conflict for all. I have no idea what shared
                                              6
               information you’ve been given nor would I even go so far as to
               ask that is not a province of the Court but you have clearly met
               with your clients in an effort to be of assistance to them. They
               have engaged you. They have spoken with you and you’ve
               been their attorney for several months now. So the perception
               is there that you have information that they have shared with
               you that may be adverse at some point to any one of the other
               defendants. So this Court does adopt the pretty standard
               requirement that if you have a conflict for one you have a
               conflict for all.


               The circuit court entered an order on December 11, 2019, memorializing its

oral rulings from the December 10 hearing. Petitioners seek a writ from this Court

prohibiting the enforcement of the December 11 order.


                             II. STANDARD OF REVIEW

               A writ of prohibition is an extraordinary remedy reserved for extraordinary

causes.7 When a party argues that a court has acted beyond its legitimate authority, rather

than its jurisdiction, we look to five factors to guide our determination as to whether the

party’s case is extraordinary and, therefore, deserving of relief by extraordinary writ.

Those factors are:

               (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

       7
           State ex rel. Vanderra Res., LLC v. Hummel, 242 W. Va. 35, 829 S.E.2d 35, 40
(2019).

                                              7
              raises new and important problems or issues of law of first
              impression.[8]


              The third factor—whether the tribunal’s order is clearly erroneous as a matter

of law—carries substantial weight. As we explained in Syllabus Point 1 of Hinkle v. Black,

              this Court will use prohibition in this discretionary way to
              correct only substantial, clear-cut, legal errors plainly in
              contravention of a clear statutory, constitutional, or common
              law mandate which may be resolved independently of any
              disputed facts and only in cases where there is a high
              probability that the trial will be completely reversed if the error
              is not corrected in advance.[9]


              We will not intrude in an ongoing proceeding in a lower tribunal to correct a

simple abuse of discretion.10 We keep this standard in mind as we consider Petitioners’

arguments and the law that applies to them.




       8
        Syl. Pt. 4, in part, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12
(1996). “Under this and similar standards applied in the past, the Court has consistently
found that a party aggrieved by a trial court’s decision on a motion to disqualify may
properly challenge such ruling by way of a petition for a writ of prohibition.” State ex rel.
Keenan v. Hatcher, 210 W. Va. 307, 311, 557 S.E.2d 361, 365 (2001).
       9
          Syl. Pt. 1, in part, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979)
(emphasis added) superseded by statute as stated in State ex rel. Thornhill Grp., Inc. v.
King, 233 W. Va. 564, 570, 759 S.E.2d 795, 802 (2014). See also State ex rel. W. Va. Reg’l
Jail Auth. v. Webster, ___ W. Va. ___, 836 S.E.2d 510, 518 (2019) (“Moreover, a court
commits clear legal error when it incorrectly chooses, interprets, or applies the law.”)
(internal quotation omitted).
       10
          See Syl. Pt. 2, in part, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233
S.E.2d 425 (1977) (“A writ of prohibition will not issue to prevent a simple abuse of
discretion by a trial court.”).

                                              8
                                    III. DISCUSSION

                Petitioners contend that the circuit court’s order disqualifying Mr. Riddell

from representing them in their criminal cases is a clear violation of their right to the

assistance of counsel, guaranteed by the Sixth Amendment to the federal constitution and

article III, § 14 of the West Virginia Constitution. They argue that the circuit court

erroneously rejected their waivers of any current and potential conflicts that may arise due

to the joint representation. They also argue that the circuit court did not approach the

State’s motion with the caution demanded by this Court’s earlier decisions, including State

ex rel. Blake v. Hatcher,11 Garlow v. Zakaib,12 and State ex rel. Postelwaite v. Bechtold.13

They contend that the circuit court erred by granting the State’s motion before they had an

opportunity to conduct discovery and determine their strategy for trial. Finally, they

contest the circuit court’s decision to disqualify Mr. Riddell from all three of their cases,

rather than permitting him to continue to represent at least one of them. After considering

each of these arguments in view of the applicable law, we easily discern that Petitioners

have not shown that theirs is an extraordinary cause that merits extraordinary relief.




       11
            218 W. Va. 407, 624 S.E.2d 844 (2005).
       12
            186 W. Va. 457, 413 S.E.2d 112 (1991).
       13
            158 W. Va. 479, 212 S.E.2d 69 (1975).

                                              9
A. Petitioners’ Rights to the Effective Assistance of Counsel

                 The Sixth Amendment to the United States Constitution and article III, § 14

of the West Virginia Constitution guarantee a criminal defendant the right to the assistance

of counsel. “The right of a criminal defendant to assistance of counsel includes the right

to effective assistance of counsel.”14 “Where a constitutional right to counsel exists under

W.Va. Const. art. III, § 14, there is a correlative right to representation that is free from

conflicts of interest.”15 A criminal defendant’s “right to the effective assistance of counsel

is recognized not for its own sake, but because of the effect it has on the ability of the

accused to receive a fair trial.”16


                 “Given the necessarily close working relationship between lawyer and client,

the need for confidence, and the critical importance of trust,” the United States Supreme

Court “has held that the Sixth Amendment grants a defendant ‘a fair opportunity to secure

counsel of his own choice.’”17 Our cases recognize that right, too.18 But, our cases also

recognize that a criminal defendant’s right to choose her own counsel is not absolute.



       14
            Syl. Pt. 1, Cole v. White, 180 W. Va. 393, 376 S.E.2d 599 (1988).
       15
            Id. at Syl. Pt. 2.
       16
            United States v. Cronic, 466 U.S. 648, 658 (1984).
       17
         Luis v. United States, ___ U.S. ____, 136 S. Ct. 1083, 1089 (2016) (quoting
Powell v. Alabama, 287 U.S. 45, 53 (1932)).
       18
        See State ex rel. Blake, 218 W. Va. at 413, 624 S.E.2d at 850 (recognizing the
Sixth Amendment right to the counsel of one’s choice and various limitations upon that
right).

                                              10
“‘[W]hile the right to select and be represented by one’s preferred attorney is

comprehended by the Sixth Amendment, the essential aim of the Sixth Amendment is to

guarantee an effective advocate for each criminal defendant rather than to ensure that a

defendant will inexorably be represented by the lawyer whom he prefers.’”19 A defendant

has no right, for example, to an attorney who is not a member of the bar, or who has a

conflict of interest due to a relationship with an opposing party.”20A criminal defendant

may waive her chosen counsel’s conflict of interest with another party, but a trial court

may reject that waiver “where a potential for conflict exists which may or may not burgeon

into an actual conflict as the trial progresses.”21 That is particularly true in cases where

one attorney represents criminal codefendants—an arrangement that is suspect even where

codefendants waive potential conflicts that may arise from the joint representation and not

just actual ones. Joint representation can, for example, “‘preclude[] defense counsel . . .

from exploring possible plea negotiations and the possibility of an agreement to testify for

the prosecution, provided a lesser charge or a favorable sentencing recommendation would




       19
            Id. (quoting Wheat v. United States, 486 U.S. 153, 159 (1988)).
       20
            Luis, 136 S. Ct. at 1089.
       21
          Wheat, 486 U.S. at 163. See, e.g., Syl. Pt. 4, State ex rel. Michael A.P. v. Miller,
207 W. Va. 114, 529 S.E.2d 354 (2000) (“In a juvenile proceeding, the decision whether
to grant or deny a motion to disqualify a lawyer due to a conflict of interest is within the
sound discretion of the circuit court, even where the interested parties have waived any
conflict.”).

                                             11
be acceptable.’”22     The West Virginia Rules of Professional Conduct recognize the

potential conflicts created by joint representation in criminal cases and advise attorneys

that “[t]he potential for conflict of interest . . . is so grave that ordinarily a lawyer should

decline to represent more than one codefendant.”23 So, while a single attorney may

represent criminal codefendants without necessarily violating “constitutional guarantees of

effective assistance of counsel” the arrangement’s tendency to create conflicts of interest

requires a court to “take adequate steps to ascertain whether the conflicts warrant separate

counsel.”24




       22
        Cole, 180 W. Va. at 399 n.11, 376 S.E.2d at 605 n.11 (quoting Holloway v.
Arkansas, 435 U.S. 475, 489–90 (1978)).
       23
            W. Va. R. Pro. Conduct 1.7, Cmt. 23.
       24
            Wheat, 486 U.S. at 60 (quotations omitted).

                                              12
                West Virginia Rule of Criminal Procedure 44(c)25 mandates a circuit court

to act when a single attorney represents criminal codefendants.26 The rule “requires trial

courts to ‘promptly inquire with respect to such joint representation and . . . personally

advise each defendant of his right to effective assistance of counsel, including separate

representation.’”27 The rule also requires a court to protect each criminal defendant’s right

to counsel when required by the facts and circumstances of a particular case. “The standard

for taking some affirmative action under Rule 44(c) of the West Virginia Rules of Criminal

Procedure is the trial court’s belief that a conflict of interest is likely to arise. This is a

lower standard than the Sixth Amendment’s requirement of demonstrating an actual


       25
            The rule states,

                        Joint representation. — Whenever two or more
                defendants have been jointly charged pursuant to Rule 8(b) or
                have been joined for trial pursuant to Rule 13, and are
                represented by the same retained or assigned counsel or by
                retained or assigned counsel who are associated in the practice
                of law, the court shall promptly inquire with respect to such
                joint representation and shall personally advise each defendant
                of the right to effective assistance of counsel, including
                separate representation. Unless it appears that there is good
                cause to believe no conflict of interest is likely to arise, the
                court shall take such measures as may be appropriate to protect
                each defendant’s right to counsel.

       26
         Specifically, Rule 44(c) applies where “two or more defendants have been jointly
charged pursuant to Rule 8(b) or have been joined for trial pursuant to Rule 13, and are
represented by the same retained or assigned counsel or by retained or assigned counsel
who are associated in the practice of law . . . .” The State represented in its motion to
disqualify Mr. Riddell that it plans to try Petitioners jointly. Petitioners do not assert
otherwise.
       27
            Syl. Pt. 5, Cole, 180 W. Va. at 393, 376 S.E.2d at 599 (emphasis added).

                                              13
prejudice.” 28 That holding and the rule’s clear language direct a court to take appropriate

action to prevent a conflict of interest that threatens a criminal defendant’s right to counsel

even if that conflict has not yet materialized. And, the rule requires a court to “promptly

inquire” about joint representation in a particular case; so, a court should not wait until the

eve of trial to determine whether the multiple representation is likely to give rise to a

conflict of interest.29 With this law in mind, we take up Petitioners’ arguments as to why

this Court should grant the requested writ.


B.     No Relief in Prohibition

              We make several observations before analyzing the circuit court’s order for

clear legal error or a flagrant abuse of discretion.30 First, Petitioners acknowledge that their

right to the counsel of their choice is not absolute. Second, they acknowledge that the joint

representation arrangement in this instance creates both a concurrent and potential conflict

of interest for Mr. Riddell, as their conflict waivers demonstrate.              Finally, they


       28
          Id. at Syl. Pt. 6 (emphasis added). See also Wheat, 486 U.S. at 163 (stating that
court does not have to accept criminal defendant’s waiver of defense counsel’s conflict of
interest “where a potential for conflict exists which may or may not burgeon into an actual
conflict as the trial progresses”).
       29
          See Wheat, 486 U.S. at 162 (stating that “a district court must pass on the issue
whether or not to allow a waiver of a conflict of interest by a criminal defendant . . . in the
murk[y] pre-trial context when relationships between parties are seen through a glass,
darkly”).
       30
         Petitioners do not argue the remaining four Hoover factors, or they make only
passing reference to them. Thus, we limit our analysis to whether the circuit court
committed clear legal error or a flagrant abuse of its discretion by granting the State’s
motion to disqualify Petitioners’ counsel.

                                              14
acknowledge that West Virginia Rule of Criminal Procedure 44(c) applies to cases like

theirs, where one attorney represents two or more defendants jointly charged or joined for

trial.


              Petitioners’ primary argument in support of the requested writ is that the

circuit court’s order is a clear, legal error or a flagrant abuse of discretion because they

waived any current or potential conflicts that may arise due to the joint representation

arrangement with Mr. Riddell. But that argument fails because Petitioners acknowledged

that the joint representation arrangement in this case had the potential to create a conflict

of interest for Mr. Riddell, and, in fact, already had. There is no dispute that the State

offered cooperation plea agreements to Petitioners before October 21, 2019, when the State

first moved to disqualify Mr. Riddell. So, the State’s offer of cooperation plea agreements

created an actual conflict of interest for Mr. Riddell because he could not advise one

Petitioner without violating his professional obligations to the other. And, Petitioners

admitted in their conflict waivers that the State would likely offer plea agreements as their

cases progressed, demonstrating the strong possibility that future conflicts would arise.


              Our cases provide that there is a presumption in favor of Petitioners’ choice

of Mr. Riddell as counsel. But, those cases also recognize that the presumption “‘may be

overcome not only by a demonstration of actual conflict but by a showing of a serious




                                             15
potential for conflict.’”31 Because Mr. Riddell’s joint representation of Petitioners had

already created an actual conflict of interest, and threatened additional serious conflicts in

the future, we cannot say that the circuit court clearly erred as a matter of law or flagrantly

abused its discretion when it granted the State’s motion to disqualify Mr. Riddell,

regardless of Petitioners’ waivers.


                Petitioners next make several arguments to support the same conclusion: that

the circuit court clearly erred because it did not approach the State’s motion to disqualify

with appropriate caution. They warn that, if left unchecked, the circuit court’s order will

upset the apple cart of our earlier decisions regarding motions to disqualify criminal

defense counsel. They forecast that the circuit court’s order and its reliance on potential

conflicts signals the end of joint representation in any criminal case. We do not agree with

Petitioners’ assessment of our earlier opinions nor do we agree with Petitioners’ grim

projection for the future of multiple representation arrangements.


                Petitioners rely primarily on State ex rel. Blake v. Hatcher for their argument

that the circuit court clearly erred as a matter of law when it granted the State’s motion to

disqualify because “[s]uch motion should be viewed with extreme caution because of the




       31
            Blake, 218 W. Va. at 415, 624 S.E.2d at 852 (quoting Wheat, 486 U.S. at 164).

                                               16
interference with the lawyer-client relationship.”32 We easily distinguish Blake and the

portion of that opinion heralded by Petitioners.


                We do not find it necessary to recount the particulars of Blake because the

syllabus points originated in that case make clear the circumstances in which they apply:

“circumstances where there appears to be an actual conflict of interest or where there is a

significant potential for a serious conflict of interest involving defense counsel’s former (or

current) representation of a State witness”33 and motions to disqualify “a criminal

defendant’s counsel of choice due to counsel’s former representation of a State witness . .

. .”34 Indisputably, the circuit court disqualified Mr. Riddell due to the likelihood that

conflicts of interest would arise due to his joint representation of Petitioners, not because

he formerly represented a State’s witness.           That is a critical distinction.   It places

Petitioners’ cases in the Rule 44(c) basket rather than the Blake basket. So, while our

discussion of a criminal defendant’s right to effective counsel in Blake is informative, the

particular holdings relied upon by Petitioners are not applicable to their case and do not



       32
          See id. at Syl. Pt. 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).”).
       33
            Id. at Syl. Pt. 3, in part (emphasis added).
       34
            Id. at Syl. Pt. 4, in part (emphasis added).

                                                17
demonstrate that the circuit court’s order is a clear error of law or a flagrant abuse of its

discretion.


                 Petitioners also point to Syllabus Point 3 of State ex rel. Postelwaite v.

Bechtold. In that case, the circuit court had granted habeas relief to jointly-represented

criminal defendants on the ground that that arrangement rendered their trial counsel’s

assistance ineffective and so violated the defendants’ Sixth Amendment rights. 35 We

reversed the circuit court and held that “joint representation by counsel of two or more

accused, jointly indicted and tried is not improper per se; and, one who claims ineffective

assistance of counsel by reason of conflict of interest in the joint representation must

demonstrate that the conflict is actual and not merely theoretical or speculative.”36


                 Petitioners seize on this language from Postelwaite and conclude that the

circuit court improperly disqualified Mr. Riddell based on a likely conflict rather than an

actual one. However, “[t]he Postelwaite standard applies in reviewing a conviction of a

criminal defendant on appeal. Pursuant to Rule 44(c) of the West Virginia Rules of

Criminal Procedure, a different standard must be applied by the trial court in initially

determining whether joint representation is proper.”37 Obviously, Petitioners have not been

convicted nor do we review the circuit court’s order on direct appeal. So, under the


       35
            158. W. Va. at 480, 212 S.E.2d at 70.
       36
            Id. at Syl. Pt. 3.
       37
            State v. Reedy, 177 W. Va. 406, 411 n.6, 352 S.E.2d 158, 163 n.6 (1986).

                                              18
circumstances of Petitioners’ cases, the circuit court correctly applied “[t]he standard for

taking some affirmative action under Rule 44(c) of the West Virginia Rules of Criminal

Procedure [that] is the trial court’s belief that a conflict of interest is likely to arise.”38

Postlewaite, just like Blake, is inapposite.


                We briefly address Petitioners’ remaining arguments. They contend that the

circuit court flagrantly abused its discretion because it granted the State’s motion to

disqualify Mr. Riddell before discovery. This argument overlooks that Rule 44(c) requires

a trial court to inquire promptly into potential conflicts of interests in cases of joint

representation as well as the purpose of the rule: to avoid “the occurrence of events which

might otherwise give rise to a plausible post-conviction claim that because of joint

representation the defendants in a criminal case were deprived of their Sixth Amendment

right to the effective assistance of counsel.”39 That is why, at least in the context of multiple

representation, a circuit court “must pass on the issue whether or not to allow a waiver of

a conflict of interest by a criminal defendant . . . in the murk[y] pre-trial context when

relationships between parties are seen through a glass, darkly.”40 So, based on the

particular facts of this case, we conclude that the circuit court committed neither a clear




       38
            Syl. Pt. 6, in part, Cole, 180 W. Va. at 393, 376 S.E.2d at 599.
       39
            Fed. R. Crim. P. 44, 1979 Cmt.
       40
            Wheat, 486 U.S. at 162.

                                               19
error of law nor a flagrant abuse of its discretion by granting the State’s motion to disqualify

Mr. Riddell before the parties engaged in discovery.


                Finally, Petitioners assert that the circuit court erred when it disqualified Mr.

Riddell from representing all three of them, rather than taking a less drastic measure. Rule

44(c) does not specify what particular measures a court must take to preserve a criminal

defendant’s right to the effective assistance of counsel. Rather, the 1979 commentary to

the rule’s federal counterpart, Federal Rule of Criminal Procedure 44(c), states that “[i]t is

appropriate to leave this within the court’s discretion, for the measures which will best

protect each defendant’s right to counsel may well vary from case to case.” In this case,

the circuit court observed that it was very likely that Petitioners had shared information

with Mr. Riddell because he had represented them for some time. The court reasoned that

if it permitted Mr. Riddell to continue to represent even one Petitioner, an onlooker might

question the fairness of the proceedings because Mr. Riddell had been privy to

conversations with the others. “[C]ourts have an independent interest in ensuring that

criminal trials . . . appear fair to all who observe them.”41 Therefore, we do not find that

the circuit court flagrantly abused its discretion by disqualifying Mr. Riddell from this

criminal proceeding, entirely.




       41
            Wheat, 486 U.S. at 160.

                                               20
                                 IV. CONCLUSION

             In sum, Petitioners have not shown that the circuit court’s order of December

11, 2019 disqualifying Mr. Riddell from representing them further in their criminal cases

is either a clear error of law or a flagrant abuse of the circuit court’s discretion.

Accordingly, we deny the requested writ.


                                                                       Writ denied.




                                           21
