     IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                         January 2013 Term
                                                             FILED
                            _____________                 June 4, 2013
                                                          released at 3:00 p.m.
                                                          RORY L. PERRY II, CLERK
                             No. 13-0086                SUPREME COURT OF APPEALS
                            _____________                   OF WEST VIRGINIA



              STATE OF WEST VIRGINIA EX REL.
            DISCOVER FINANCIAL SERVICES, INC.,
          DISCOVER BANK, DFS SERVICES, L.L.C., AND
      AMERICAN BANKERS MANAGEMENT COMPANY, INC.;
            BANK OF AMERICA CORPORATION AND
                  FIA CARD SERVICES, N.A.;
             CITIGROUP INC. AND CITIBANK, N.A.;
                      GE MONEY BANK;
         WORLD FINANCIAL NETWORK NATIONAL BANK,
    CSI PROCESSING, L.L.C., AND CPP NORTH AMERICA L.L.C.;
    HSBC BANK NEVADA, N.A. AND HSBC CARD SERVICES, INC.;
              AND JPMORGAN CHASE & CO. AND
                   CHASE BANK USA, N.A.,
                            Petitioners


                                  V.


           HONORABLE DAVID W. NIBERT, JUDGE OF
    THE CIRCUIT COURT OF MASON COUNTY, WEST VIRGINIA,
                        Respondent

____________________________________________________________________

                   Petition for a Writ of Prohibition

                           WRIT DENIED
____________________________________________________________________


                                 AND
                                     _____________

                                      No. 13-0102
                                     _____________


      STATE OF WEST VIRGINIA EX REL. GLAXOSMITHKLINE, LLC,
          FORMERLY SMITHKLINE BEECHAM CORPORATION
                    D/B/A GLAXOSMITHKLINE,
                            Petitioner


                                          V.

                THE HONORABLE JAMES H. YOUNG, JR.,
           JUDGE OF THE CIRCUIT COURT OF WAYNE COUNTY;
                AND ALL PLAINTIFFS IN STATE EX REL.
                MORRISEY V. GLAXOSMITHKLINE, LLC,
                            Respondents

   __________________________________________________________________

                          Petition for a Writ of Prohibition

                              WRIT DENIED
   ___________________________________________________________________

                              Submitted: May 14, 2013
                                 Filed: June 4, 2013

Kara Cunningham                                Patrick Morrisey
Russell D. Jessee                              Attorney General
Steptoe & Johnson, PLLC                        Daniel W. Greear
Charleston, West Virginia                      Chief Counsel
Attorneys for Petitioners,              Office of Attorney General
Discover Financial Services, Inc.,             Charleston, West Virginia
Discover Bank, and                             Attorneys for Respondent
DFS Services L.L.C.                            in Case Number 13-0086

Bruce M. Jacobs                                Guy R. Bucci
Charles L. Woody                               Timothy Bailey
Spilman Thomas & Battle, PLLC                  L. Lee Javins, II
Charleston, West Virginia               Special Assistant Attorneys General
Attorneys for Petitioner,               Bucci Bailey & Javins
American Bankers Management             Charleston, West Virginia
Company, Inc.                           and
                                        William Druckman
Bruce M. Jacobs                         Special Assistant Attorney General
Alexander Macia                         Druckman & Estep
Spilman Thomas & Battle, PLLC           Charleston, West Virginia
Charleston, West Virginia               Attorneys for Respondent
Attorneys for Petitioners,        in Case Number 13-0086
Bank of America Corporation and
FIA Card Services, N.A.                 Patrick Morrisey
                                        Attorney General
Jeffrey M. Wakefield                    Daniel W. Greear
Flaherty, Sensabaugh & Bonasso, PLLC    Chief Counsel
Charleston, West Virginia               Office of Attorney General
Attorney for Petitioners,               Charleston, West Virginia
Citigroup Inc. and Citibank, N.A.       Attorneys for Respondents
                                        in Case Number 13-0102
Bryant J. Spann
David B. Thomas                         Paul T. Farrell, Jr.
Thomas Combs & Spann, PLLC              Special Assistant Attorney General
Charleston, West Virginia               Greene, Ketchum, Bailey, Walker,
Attorneys for Petitioner,               Farrell & Tweel
GE Money Bank                           Huntington, West Virginia
                                        and
Charles M. Love                         Laura J. Baughman
Fazal A. Shere                          S. Ann Saucer
Bowles Rice McDavid Graff & Love, LLP   Special Assistant Attorneys General
Charleston, West Virginia               Baron & Budd, PC
and                                     Dallas, Texas
Alan S. Kaplinsky                       and
Martin C. Bryce, Jr.                    Bill Robins
Ballard Spahr, LLP                      Justin R. Kaufman
Philadelphia, Pennsylvania              Special Assistant Attorneys General
Attorneys for Petitioner,               Heard Robins Cloud & Black, LLP
World Financial Network National Bank   Santa Fe, New Mexico
                                        Attorneys for Respondents
Bruce M. Jacobs                         in Case Number 13-0102
Spilman, Thomas & Battle, PLLC
Charleston, West Virginia
Attorney for Petitioner,
CCP North America L.L.C.

Chris R. Arthur
W. Scott Campbell
Samuel I. White, P.C.
Charleston, West Virginia
Attorneys for Petitioners,
HSBC Bank Nevada, N.A. and
HSBC Card Services, Inc.

William W. Booker
Thomas H. Ewing
Kay Casto & Chaney, PLLC
Charleston, West Virginia
Attorneys for Petitioners,
JPMorgan Chase & Co. and
Chase Bank USA, N.A.

Michael J. Farrell
Tamela J. White
Farrell, White & Legg, PLLC
Huntington, West Virginia
and
Kenneth H. Zucker
Nina M. Gussack
John F. Brenner
Ellen K. Scott
Pepper Hamilton, LLP
Philadelphia, Pennsylvania
Attorneys for Petitioner,
GlaxoSmithKline

Brenda Nichols Harper
West Virginia Chamber of Commerce
Charleston, West Virginia
and
Victor E. Schwartz
Cary Silverman
Shook, Hardy & Bacon, LLP
Washington, District of Columbia
and
Richard F. Shearer
Shook, Hardy & Bacon, LLP
Kansas City, Missouri
Attorneys for Amicus Curiae,
West Virginia Chamber of Commerce


JUSTICE DAVIS delivered the Opinion of the Court.

JUSTICE KETCHUM, deeming himself disqualified, did not participate in the decision
of this case.

JUDGE FOX, sitting by temporary assignment.
                               SYLLABUS BY THE COURT



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

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

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



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

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

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

Office of the Attorney General.



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

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

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

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

overruled.



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

assistant attorneys general.



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

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

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




                                             ii
Davis, Justice:

              This matter involves two consolidated petitions for writs of prohibition filed

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

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

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

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

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

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

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

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

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

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

              1
                The defendants in Case No. 13-0086 are: Discover Financial Services, Inc.,
Discover Bank, DFS Services, L.L.C., and American Bankers Management Company, Inc.;
Bank of America Corporation and FIA Card Services, N.A.; Citigroup Inc. and Citibank,
N.A.; GE Money Bank; World Financial Network National Bank, CSI Processing, L.L.C.,
and CPP North America L.L.C.; HSBC Bank Nevada, N.A. and HSBC Card Services, Inc.;
and JPMorgan Chase & Co. and Chase Bank USA, N.A. These defendants filed a joint
petition in this matter.
              2
               Unless otherwise indicated, all of the defendants below will be referred to
collectively as the “Petitioners.”
              3
                 The Petitioners have labeled the trial judges as the Respondents in these
matters. However, for purposes of this opinion, we will refer to the State as the Respondent,
as it is the plaintiff below in each of these cases.
              4
               Petitioner GlaxoSmithKline did not brief the Rule 1.7(b) issue. However, the
                                                                               (continued...)

                                               1
lacks authority to appoint special assistant attorneys general. After a careful review of the

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

deny the writs.5



                                              I.

                   FACTUAL AND PROCEDURAL BACKGROUND

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

be set forth separately.




              4
               (...continued)
issue appears to have been raised in the circuit court.
              5
                  We wish to acknowledge the Amicus Curiae brief filed by the West Virginia
Chamber of Commerce in support of the Petitioners in Case No. 13-0086. We also note that
the Amicus brief raised several issues that were not raised by the parties. We decline to
address the issues raised solely by the Amicus. See Delardas v. County Court of Monongalia
Cnty., 155 W. Va. 776, 783, 186 S.E.2d 847, 852 (1972) (finding it “possibly improper, for
the Court to consider and to decide [an issue raised by amicus] in this case inasmuch as it has
not been raised by any of the parties”). See also People v. Archer, 417 N.Y.S.2d 507, 513
(N.Y. App. Div. 1979) (“We would add that it is improper for the Amicus curiae herein to
raise issues and cite alleged errors which were never raised or cited by appellant[.]”);
Homestake Mining Co. v. South Dakota Subsequent Injury Fund, 644 N.W.2d 612, 621 (S.D.
2002) (holding that “it is improper for amicus to seek to widen the issues raised by the
parties”); East Sevier Cnty. Util. Dist. of Sevier Cnty. v. Wachovia Bank & Trust Co., 570
S.W.2d 850, 854 (Tenn. 1978) (“Numerous issues are raised in a brief filed amicus curiae
. . ., but our discussion of those issues on the present record would be improper, since they
were not dealt with in the trial court or properly developed in the proof.”).

                                              2
                           A. Petitioners in Case No. 13-0086

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

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

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

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

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

paying for credit card service plans.



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

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

appointment of special assistant attorneys general violated the West Virginia Governmental

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

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


              6
            When the complaints were filed, the Attorney General was Darrell V.
McGraw, Jr. The current duly-elected Attorney General is Attorney General Patrick
Morrissey.
              7
              As discussed infra, prior to the complaints being filed, the Attorney General
appointed several private attorneys as special assistant attorneys general to act as lead
counsel in each of the cases.
              8
               See W. Va. Code § 46A-6-101 et seq.
              9
               See W. Va. Code § 46A-1-101 et seq.
              10
              Prior to filing the motion to disqualify, the Petitioners requested the cases be
removed to federal court. The federal court ultimately remanded the cases back to state
court.

                                              3
On August 15, 2012, the trial court entered an order denying the motion to disqualify. The

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



                             B. Petitioner in Case No. 13-0102

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

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

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

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

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

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

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

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




              11
               When the complaint was filed, the Attorney General was Darrell V. McGraw,
Jr. See supra note 6.
              12
                As discussed infra, prior to the complaint being filed, the Attorney General
appointed several private attorneys as special assistant attorneys general to act as lead
counsel in the case.
              13
                See W. Va. Code § 46A-6-101 et seq.
              14
                See W. Va. Code § 46A-1-101 et seq.
              15
                See W. Va. Code § 9-7-1 et seq.
              16
                See W. Va. Code § 5-16-1 et seq.

                                               4
Virginia Insurance Fraud Prevention Act,17 and set out other causes of action that included

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



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

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

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

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

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

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

a writ of prohibition.



                                             II.

                                STANDARD OF REVIEW

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

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

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

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

              17
                See W. Va. Code § 33-41-1 et seq.
              18
                The Governor requested the Attorney General bring some of the enumerated
causes of action against the Petitioner.
              19
                The Petitioner also alleged that State and Federal due process rights were
violated by the fee arrangement made with the special assistant attorneys general.

                                              5
court’s decision by way of a petition for a writ of prohibition.” Syl. pt. 1, State ex rel.

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

previously have held that “[a] writ of prohibition will not issue to prevent a simple abuse of

discretion by a trial court. It will only issue where the trial court has no jurisdiction or

having such jurisdiction exceeds its legitimate powers. W. Va. Code, 53–1–1.” Syl. pt. 2,

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

specifically, this Court has held:

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

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

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




                                               6
                                                III.

                                         DISCUSSION

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

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

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

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

general.20 We will address each issue separately.21


               20
                 We summarily reject Petitioner GlaxoSmithKline’s contention that use of
special assistant attorneys general violates its due process rights. The Petitioner has not cited
to, nor have we found, any case that supports a due process violation claim through the use
of special assistant attorneys general in the prosecution of civil cases. The two federal cases
cited by Petitioner do not stand for such a proposition. The decision in Marshall v. Jerrico,
Inc., 446 U.S. 238, 100 S. Ct. 1610, 64 L. Ed. 2d 182 (1980), cited by Petitioner, held that
the federal Due Process Clause was not violated because of the enforcement of child labor
laws by an assistant regional administrator. In the second federal case cited, Young v. United
States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987),
the Court held that a trial court may appoint a private attorney to prosecute a litigant for
criminal contempt, but that a court could not appoint counsel for one of the litigants in the
underlying case as the prosecutor.
               21
                 The Respondent has urged this Court, as it did both circuit courts, to find that
the Petitioners lack standing to litigate the disqualification issue. The Respondent argues that
the Petitioners cannot show a resulting injury-in-fact from the representation provided by the
special assistant attorneys general. We summarily reject the Respondent’s contention. Our
cases have indicated that a party may seek to disqualify an attorney even though no injury-in-
fact would occur to the party seeking disqualification. See State ex rel. Bluestone Coal Corp.
v. Mazzone, 226 W. Va. 148, 158, 697 S.E.2d 740, 750 (2010) (“[A] lawyer may be
disqualified from participating in a pending case if his continued representation would give
rise to an apparent conflict of interest or appearance of impropriety[.]”); State ex rel. Blake
v. Hatcher, 218 W. Va. 407, 414, 624 S.E.2d 844, 851 (2005) (“While standing to raise a
conflict of interest in a disqualification is generally vested with the client, an exception to this
rule exists where the interests of the public are so greatly implicated that a third party should
                                                                                     (continued...)

                                                 7
              A. Application of the West Virginia Governmental Ethics Act

               The Petitioners contend that the West Virginia Governmental Ethics Act

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

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

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

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

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

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



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

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

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


               21
                 (...continued)
be entitled to raise the conflict.” (internal quotations and citation omitted)); Musick v.
Musick, 192 W. Va. 527, 530, 453 S.E.2d 361, 364 (1994) (“[T]his Court held that a circuit
court judge . . . may disqualify a lawyer from representation in a case where that lawyer’s
representation may be in violation of the West Virginia Rules of Professional Conduct.”);
State ex rel. Morgan Stanley & Co., Inc. v. MacQueen, 187 W. Va. 97, 102, 416 S.E.2d 55,
60 (1992) (“[W]here the public interest is involved, an attorney may not represent conflicting
interests even with the consent of all concerned. The rationale underlying this rule is . . . the
ethical requirement that attorneys must avoid, as much as is possible, the appearance of
impropriety.” (internal quotations and citations omitted)).
               22
              See W. Va. Code § 6B-1-1 (1989) (Repl. Vol. 2010) to W. Va. Code § 6B-3-
11 (2005) (Repl. Vol. 2010).
               23
                  The terms of the fee arrangements are discussed further in this Section of the
opinion, infra.

                                                8
object in construing a statute is to ascertain and give effect to the intent of the Legislature.”

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

(1975). “A statutory provision which is clear and unambiguous and plainly expresses the

legislative intent will not be interpreted by the courts but will be given full force and effect.”

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

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

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

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

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

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

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

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



               The Legislature created the Act

               to define and establish minimum ethical standards for elected
               and appointed public officials and public employees; to
               eliminate actual conflicts of interest; to provide a means to
               define ethical standards; to provide a means of investigating and
               resolving ethical violations; and to provide administrative and
               criminal penalties for specific ethical violations herein found to
               be unlawful.

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




                                                9
and criminal penalties24 for public officials and employees who “exercise the powers of their

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

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

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

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

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

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

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

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

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

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

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

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

“employee” as

              any person in the service of another under any contract of hire,
              whether express or implied, oral or written, where the employer
              or an agent of the employer or a public official has the right or
              power to control and direct such person in the material details of


              24
                See W. Va. Code § 6B-2-10 (2005) (Repl. Vol. 2010) (violations and
penalties).
              25
               The Act created a Probable Cause Review Board to make an initial
determination of “whether there is probable cause to believe that a violation of the West
Virginia Governmental Ethics Act has occurred and, if so, to refer that investigation to the
Ethics Commission.” W. Va. Code § 6B-2-2a(a) (2008) (Repl. Vol. 2010).

                                              10
              how work is to be performed and who is not responsible for the
              making of policy nor for recommending official action.

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



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

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

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

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

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

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

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



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

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

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

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

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


              26
               The brief of Petitioner GlaxoSmithKline was far more general in this area
than the specific issues raised by the brief of the other Petitioners. As such, we have
incorporated the general arguments of Petitioner GalxoSmithKline into the more precise
arguments of the other Petitioners.
              27
                  The second issue is addressed in a different context in Section III.B. of this
opinion, infra.

                                               11
they are used.” Syl. pt. 1, Miners in Gen. Grp. v. Hix, 123 W. Va. 637, 17 S.E.2d 810

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

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

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

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

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

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

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

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

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

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



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

              courts have uniformly held such a contract to mean one where
              the services to be performed by the employee must be
              compensated for in wages or their equivalent. It is impossible
              to have a contract of hire unless the person denominated the
              employer has an obligation to pay the person employed.

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

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

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

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

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

                                             12
under which one person performs personal services at the request of another who pays for

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and citation omitted).



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

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

                                              13
Ethics Act, refers to an agreement in which a person provides labor or personal services to

a government entity for wages or a salary.28



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

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

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

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

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

the special assistant attorneys general stated, in relevant part:

                     It is contemplated that you will advance all expenses
              associated with the maintenance of this action. Subject to the
              approval of the court, it is anticipated that you should earn a
              proper, reasonable and customary fee.[29]

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



              28
             We wish to make clear that this definition alone does not make a person an
employee under the Act. This is merely one factor that must be met.
              29
             The appointment letter sent to the private attorneys in the case against
GlaxoSmithKline was amended to read, in relevant part:

                     It is contemplated that you will advance all expenses
              associated with the maintenance of this action. Subject to the
              approval of the court, it is contemplated that you should earn a
              proper, reasonable and customary fee to be paid by the
              Defendant. However, you will not receive any fee based upon
              any recovery by the State for harm to the State’s Medicaid
              program that is subject to refund to the Centers for Medicare and
              Medicaid Services.

                                               14
General to pay the special assistant attorneys general wages or anything of value. All that

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

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

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

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

                      The lawyers took the chance to spend their money to
               prosecute this action on behalf of West Virginia when they were
               not promised any hourly fee or the reimbursements of their
               expenses and costs. If they lost this case the West Virginia
               taxpayers would not have to pay any money–but the lawyers
               would have lost a substantial amount of money.

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

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

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

proceeding to establish this very fundamental requirement.



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

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

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

employee of the Office of the Attorney General.



               30
               “When services or labor are rendered voluntarily without a promise of
compensation or remuneration of any kind, express or implied, then the one providing the
services or labor has supplied them gratuitously[.]” Charlottesville Music Ctr., Inc. v.
McCray, 205 S.E.2d 674, 678 (Va. 1974).

                                                15
              Our holding is consistent with other language found in the Act. For example,

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

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

in relevant part:

                      (1) A public employee may not receive additional
              compensation from another publicly-funded state, county or
              municipal office or employment for working the same hours,
              unless:

                    ....

                     (C) The public employee uses earned paid vacation,
              personal or compensatory time or takes unpaid leave from his or
              her public employment to perform the duties of another public
              office or employment.

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

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

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

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

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

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

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

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


              31
                Because we have determined that the special assistant attorneys general are
not employees of the Attorney General, for purposes of the Act, we need not address
Petitioners’ argument that the fee arrangement made with the special assistant attorneys
                                                                             (continued...)

                                            16
Kaplan, Miller & Ciresi, L.L.P., 603 N.W.2d 143, 145 (Minn. Ct. App. 1999) (“[T]he State

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

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

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

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

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



                            B. Application of Rule 1.7 of the
                       West Virginia Rules of Professional Conduct

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

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

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

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

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

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


              31
                (...continued)
general violated the Act. We also summarily reject the Petitioners’ contention that the
special assistant attorneys general could not prosecute the actions because W. Va. Code
§ 46A-7-102(1)(f) (1996) (Repl. Vol. 2006) only authorizes the Attorney General to
“[d]elegate his powers and duties under this chapter to qualified personnel in his office[.]”
In view of our discussion of the Attorney General’s inherent common law powers infra at
Section III.C., we find that the Attorney General had authority to appoint special assistant
attorneys general to act as lead counsel in these cases: all of the complaints in these cases
were signed by the Attorney General’s Chief Deputy.
              32
                Petitioner GlaxoSmithKline did not brief this issue.

                                               17
(2011) (citations omitted). Further, we also have indicated that “where the language of a rule

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

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

               The language of Rule 1.7(b) provides:

                     A lawyer shall not represent a client if the representation
               of that client may be materially limited by the lawyer’s
               responsibilities to another client or to a third person, or by the
               lawyer’s own interests, unless:

                      (1) the lawyer reasonably believes the representation will
               not be adversely affected; and

                      (2) the client consents after consultation. When
               representation of multiple clients in a single matter is
               undertaken, the consultation shall include explanation of the
               implications of the common representation and the advantages
               and risks involved.

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

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

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

responsibilities to their client, the State.



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

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

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

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

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

                                               18
1.7 does not apply unless there are two actual clients.” James, 223 W. Va. at 876, 679

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

misinterpreted James.



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

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

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

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

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

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

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

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

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

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

that the subheading was intended to reflect.



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

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

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

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



                                               19
situations.33 The rule addresses the issue of a lawyer’s conflict of interest involving his or

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

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

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

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

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

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

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

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



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

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

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

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

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


              33
                Rule 1.7(a) is limited to a lawyer’s representation of two clients:

                      (a) A lawyer shall not represent a client if the
              representation of that client will be directly adverse to another
              client, unless:

                     (1) the lawyer reasonably believes the representation will
              not adversely affect the relationship with the other client; and

                      (2) each client consents after consultation.

                                               20
his client’s interests, because he no longer represented the client:

                      Mr. Cometti contends that he had been discharged from
              his representation of Ms. Shrewsbury at the time he filed the
              civil action. Although the facts surrounding Mr. Cometti’s
              withdrawal as Ms. Shrewsbury’s attorney in the heating system
              case are convoluted, it is clear that both parties had engaged in,
              at the least, very heated discussions concerning his withdrawal.
              We are persuaded that Mr. Cometti had withdrawn at the time
              he filed suit by the testimony of L. Alvin Hunt, a lawyer sought
              out by Ms. Shrewsbury to take over her heating system case.
              Mr. Hunt testified to the Committee that several days prior to
              the institution of Mr. Cometti’s suit against Ms. Shrewsbury, she
              sought his services and told him that Mr. Cometti was no longer
              her attorney. Because Mr. Cometti no longer represented Ms.
              Shrewsbury at the time he instituted the suit to gain access to the
              property to obtain his possessions, we find that Mr. Cometti did
              not violate Rule 1.7(b).

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



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

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

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

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

fee arrangement of the special assistant attorneys general.




                                              21
              1. Viewing the litigation as quasi-criminal. The Petitioners argue that this

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

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

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

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

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

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

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

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



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

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

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

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

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

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

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

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

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


              34
               Petitioner GlaxoSmithKline also argued that the litigation should be viewed
as quasi-criminal in general, but not in the context of Rule 1.7(b).

                                              22
Sanchez, 520 F. Supp. 1038, 1040 (S.D. Fla. 1981) (“At the outset, the Court would note that

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

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

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

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



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

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


               35
              This Court has recognized the following test for determining whether a
monetary penalty should be treated as a criminal or civil penalty:

                       The question of whether a particular statutorily defined
               penalty is civil or criminal is a matter of statutory construction,
               and requires the application of a two-level inquiry. . . . First,
               courts must determine whether the legislature indicated, either
               expressly or impliedly, a preference for labeling the statute civil
               or criminal. Second, if the legislature indicates an intention to
               establish a civil remedy, courts must consider whether the
               legislature, irrespective of its intent to create a civil remedy,
               provided for sanctions so punitive as to transform the civil
               remedy into a criminal penalty.

Syl. pt. 1, in part, State ex rel. Palumbo v. Graley’s Body Shop, Inc., 188 W. Va. 501, 425
S.E.2d 177 (1992). As a general matter, when courts are asked to determine whether a
statutory penalty is criminal or civil, it is because a litigant seeks to raise constitutional rights
that are protected in criminal proceedings. See Kennedy v. Mendoza-Martinez, 372 U.S. 144,
185-86, 83 S. Ct. 554, 576-77, 9 L. Ed. 2d 644 (1963) (finding civil penalties “punitive and
as such cannot constitutionally stand, lacking as they do the procedural safeguards which the
Constitution commands”); Town of Babylon v. Pekich, Nos. 2010-113 S C, 2010-114 S C,
2010-506 S C, 2010-508 S C, 2010-510 S C, 2010-513 S C, 2010-518 S C, 2010-522 S C,
2010-524 S C, and 2010-525 S C, 2011 WL 3689379, at *1 (N.Y. App. Term Aug. 16, 2011)
                                                                                       (continued...)

                                                 23
how this would lead to the conclusion that Rule 1.7(b) is violated by the appointment of the

special assistant attorneys general.



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

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

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

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

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

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

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

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

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

support a violation of Rule 1.7(b).


              35
                (...continued)
(“[W]e find that the Fourth Amendment applies to this quasi-criminal action to enforce
provisions of a municipal code and recover penalties[.]”); City of Jackson v. Butler, 10
S.W.3d 250, 253 (Tenn. Ct. App. 1999) (“While it has been held that the exclusionary rule
does not apply to a civil proceeding, it is usually held that the rule applies to a civil
proceeding which is quasi-criminal in nature, or in which the government is seeking to exact
a penalty or in some way punish a person.”); Sims v. State Tax Comm’n, 841 P.2d 6, 13-15
(Utah 1992) (holding exclusionary rule applied to civil proceeding when proceeding was
quasi-criminal and law enforcement entities were financially motivated to acquire evidence
of tax violations based on statutory provision for distribution of sixty percent of taxes,
penalties, and interest collected to law enforcement agency).
              36
                The complaints also were signed by one of the special assistant attorneys
general.

                                             24
              2.   Maximizing attorney’s fees based upon penalties pursued.                   The

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

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

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

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

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

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

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

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

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


              37
                Petitioner GlaxoSmithKline also makes this general argument.
              38
               The standard for determining the amount of an award of attorney’s fees is set
out in Syllabus point 4 of Aetna Casualty and Surety Co. v. Pitrolo, 176 W. Va. 190, 342
S.E.2d 156 (1986):

                      Where attorney’s fees are sought against a third party, the
              test of what should be considered a reasonable fee is determined
              not solely by the fee arrangement between the attorney and his
              client. The reasonableness of attorney’s fees is generally based
              on broader factors such as: (1) the time and labor required; (2)
              the novelty and difficulty of the questions; (3) the skill requisite
              to perform the legal service properly; (4) the preclusion of other
              employment by the attorney due to acceptance of the case; (5)
              the customary fee; (6) whether the fee is fixed or contingent; (7)
              time limitations imposed by the client or the circumstances; (8)
              the amount involved and the results obtained; (9) the experience,
                                                                                     (continued...)

                                              25
to acknowledge that the Attorney General monitors the litigation in this case. The special

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

letters provided to the special assistant attorneys general state:

                     In keeping with the Attorney General’s policies and
              practices, it is anticipated that this office will be kept apprised
              of any and all actions taken in this case, and it is anticipated that
              we will have regular ongoing discussions regarding tactics and
              strategy.

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

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

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

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

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

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

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

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




              38
                (...continued)
              reputation, and ability of the attorneys; (10) the undesirability of
              the case; (11) the nature and length of the professional
              relationship with the client; and (12) awards in similar cases.

                                               26
              3. Application of Clancy. The Petitioners in Case No. 13-0086 ask this Court

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

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

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

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

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

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

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

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

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

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

arrangement to be improper and disqualified the attorney:

                      In the case at bar, Clancy has an interest in the result of
              the case: his hourly rate will double if the City is successful in
              the litigation. Obviously this arrangement gives him an interest
              extraneous to his official function in the actions he prosecutes
              on behalf of the City.

                     ....

              [T]he abatement of a public nuisance involves a balancing of
              interests. On the one hand is the interest of the people in ridding
              their city of an obnoxious or dangerous condition; on the other
              hand is the interest of the landowner in using his property as he
              wishes. And when an establishment such as an adult bookstore
              is the subject of the abatement action, something more is added


              39
                The brief of Petitioner GlaxoSmithKline does not cite to this case.

                                              27
              to the balance: not only does the landowner have a First
              Amendment interest in selling protected material, but the public
              has a First Amendment interest in having such material available
              for purchase. Thus, as with an eminent domain action, the
              abatement of a public nuisance involves a delicate weighing of
              values. Any financial arrangement that would tempt the
              government attorney to tip the scale cannot be tolerated.

                      Public nuisance abatement actions share the public
              interest aspect of eminent domain and criminal cases, and often
              coincide with criminal prosecutions. These actions are brought
              in the name of the People by the district attorney or city
              attorney. A person who maintains or commits a public nuisance
              is guilty of a misdemeanor. . . . A suit to abate a public nuisance
              can trigger a criminal prosecution of the owner of the property.
              This connection between the civil and criminal aspects of public
              nuisance law further supports the need for a neutral prosecuting
              attorney.

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



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

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

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

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

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

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



              40
                There is a criminal component to the Consumer Credit and Protection Act for
certain conduct. See W. Va. Code § 46A-5-103 (1996) (Repl. Vol. 2006). However, the
Petitioners have not argued that any of the criminal offenses under that statute have
application to their alleged conduct.

                                              28
the special assistant attorneys general are not guaranteed any fee and could be denied the

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

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

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

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

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



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

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

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

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

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

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

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

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


              41
                 Indeed, W. Va. Code § 46A-7-111(1) (1999) (Repl. Vol. 2006) provides that
“[i]f the creditor establishes by a preponderance of evidence that a violation is unintentional
or the result of a bona fide error, no liability to pay a penalty shall be imposed under this
subsection.”
              42
                This point is important because the California Supreme Court indicated that
the city could retain the private attorney in the case to represent the city attorney if the city
attorney filed the action in the name of the city attorney. See Clancy, 218 Cal. Rptr. at 30
n.5 (“Thus on remand the action herein should be brought in the name of Dallas Holmes, the
Corona City Attorney. The City may hire Clancy to represent Holmes.”).

                                               29
government attorneys. The Supreme Court agreed with the court of appeal:

                    There is no indication that the contingent-fee
             arrangements in the present case have created a danger of
             governmental overreaching or economic coercion. Defendants
             are large corporations with access to abundant monetary and
             legal resources. Accordingly, the concern we expressed in
             Clancy about the misuse of governmental resources against an
             outmatched individual defendant is not implicated in the present
             case.

                      Thus, because–in contrast to the situation in Clancy–
             neither a liberty interest nor the right of an existing business to
             continued operation is threatened by the present prosecution,
             this case is closer on the spectrum to an ordinary civil case than
             it is to a criminal prosecution. The role played in the current
             setting both by the government attorneys and by the private
             attorneys differs significantly from that played by the private
             attorney in Clancy. Accordingly, the absolute prohibition on
             contingent-fee arrangements imported in Clancy from the
             context of criminal proceedings is unwarranted in the
             circumstances of the present civil public-nuisance action.

                    ....

                    We generally agree with the . . . Court of Appeal in the
             present case that there is a critical distinction between an
             employment arrangement that fully delegates governmental
             authority to a private party possessing a personal interest in the
             case, and an arrangement specifying that private counsel remain
             subject to the supervision and control of government attorneys.
             Private counsel serving in a subordinate role do not supplant a
             public entity’s government attorneys, who have no personal or
             pecuniary interest in a case and therefore remain free of a
             conflict of interest that might require disqualification.
             Accordingly, in a case in which private counsel are subject to
             the supervision and control of government attorneys, the
             discretionary decisions vital to an impartial prosecution are
             made by neutral attorneys and the prosecution may proceed with
             the assistance of private counsel, even though the latter have a
             pecuniary interest in the case.

                                             30
                      It is true that the public attorneys’ decisionmaking
              conceivably could be influenced by their professional reliance
              upon the private attorneys’ expertise and a concomitant sense of
              obligation to those attorneys to ensure that they receive payment
              for their many hours of work on the case. This circumstance
              may fairly be viewed as being somewhat akin to having a
              personal interest in the case. Nevertheless, this is not the type
              of personal conflict of interest that requires disqualification. . . .
              Almost any fee arrangement between attorney and client may
              give rise to a conflict. . . . The contingent fee contract so
              common in civil litigation creates a conflict when either the
              attorney or the client needs a quick settlement while the other’s
              interest would be better served by pressing on in the hope of a
              greater recovery. The variants of this kind of conflict are
              infinite. Fortunately most attorneys serve their clients honorably
              despite the opportunity to profit by neglecting or betraying the
              client’s interest.

                     As recognized by the American Bar Association,
              attorneys are expected to resolve conflicts between their
              personal interests and their ethical and professional
              responsibilities through the exercise of sensitive professionalism
              and moral judgment. In other words, attorneys are presumed to
              comport themselves with ethical integrity and to abide by all
              rules of professional conduct.

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



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

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

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

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

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



                                               31
              In the final analysis, the Petitioners have failed to present any evidence that the

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

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

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

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

just the mere possibility of a conflict.”).



                         C. The Attorney General’s Authority to
                        Appoint Special Assistant Attorneys General

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

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

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

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

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

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

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

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

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

to enter a fee arrangement with them.




              43
                This issue was briefed by the parties in both petitions.

                                              32
              As a preliminary matter, we observe that, although this Court is vested with the

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

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

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

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

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

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

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

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

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



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

Constitution establishes the creation of the Office of Attorney General:

                      The executive department shall consist of a governor,
              secretary of state, auditor, treasurer, commissioner of agriculture
              and attorney general, who shall be ex officio reporter of the
              court of appeals. Their terms of office shall be four years and
              shall commence on the first Monday after the second
              Wednesday of January next after their election. They shall
              reside at the seat of government during their terms of office,
              keep there the public records, books and papers pertaining to
              their respective offices and shall perform such duties as may be
              prescribed by law.

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

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


                                              33
Attorney General of the State of West Virginia is the State’s chief legal officer, which status

necessarily implies having the constitutional responsibility for providing legal counsel to

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

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

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



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

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

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

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

establish duties of the Attorney General’s office.



              The Petitioners note that the Legislature has expressly provided for the

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

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

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

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

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

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


              44
               See Section III.C.2., infra, for further treatment of W. Va. Code § 5-3-3
(1961) (Repl. Vol. 2011).

                                              34
below.



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

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

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

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

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

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

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

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

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

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

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

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

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

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



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

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

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

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

                                               35
office in a federal litigation. While the case was pending, the federal lawsuit settled.

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

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

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

law powers.



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

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

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

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

                      As a consequence of the American Revolution, the
              executive powers of the Crown office of Attorney General
              underwent substantial modification in Virginia. The first
              constitution of Virginia, adopted June 29, 1776, recognized the
              Attorney General as a judicial officer, thereby removing him
              from the executive department. He was appointed by and served
              at the pleasure of the General Assembly and was commissioned
              by the Governor. In addition, the Attorney General was
              specifically prohibited from holding elected office in either the
              legislative or executive department. This constitution continued
              in force until superseded by an amended constitution, submitted
              by the General Assembly on January 15, 1830. The provisions
              of the amended constitution relating to the office of Attorney
              General were altered little. The Attorney General remained an
              officer of the judicial department, was appointed and
              commissioned in the same manner and continued to serve at the
              pleasure of the General Assembly.

                     The 1850 Virginia Constitution made some sweeping
              changes in the office. It provided for the first time for the
              election of the Attorney General by the voters of the

                                             36
              Commonwealth and established a definite term of office. The
              Attorney General continued to serve as an officer of the
              judiciary, however, and the amended constitution provided “[h]e
              . . . shall perform such duties and receive such compensation as
              may be prescribed by law, and be removable in the manner
              prescribed for the removal of judges.” Va. Const. of 1850, art.
              VI, § 22.

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

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

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

powers.45



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

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

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

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

                      The plain language of this constitutional provision,
              [Article VII, Section 1,] when viewed against the historical
              backdrop of the development of the office of Attorney General
              in the Virginias, leads us to conclude that the Attorney General
              of West Virginia does not possess the common law powers
              attendant to that office in England and in British North America
              during the colonial period. By removing the traditional
              executive office of Attorney General to the judicial department
              and establishing a tri-partite state government, with separate
              legislative, executive and judicial departments, the framers of
              the first Virginia Constitution in effect abrogated any common


              45
                Other than the dicta in Manchin, no authority was cited to support this
conclusion.

                                            37
             law executive powers the holder of that office may have had.
             The executive function formerly exercised by the Attorney
             General at common law was extinguished, and for the next 96
             years he remained a minor judicial officer, prohibited by the
             separation of powers from wielding the common law legislative
             and executive powers traditional to the office in Great Britain.

                     By the provisions of our present constitution, the
             Attorney General is once again an officer of the executive
             department. However, his return to the executive department
             did not revive the common law powers of the office. The people
             of West Virginia specifically expressed their intent that the
             Attorney General should not exercise those powers by providing
             that he “shall perform such duties as may be prescribed by law.”
             Under settled rules of construction, the word “shall” when used
             in constitutional provisions is ordinarily taken to have been used
             mandatorily, and the word “may” generally should be read as
             conferring both permission and power. The phrases “prescribed
             by law” and “provided by law” mean prescribed or provided by
             statutes. The plain effect of the provision is to limit the powers
             of the Attorney General to those conferred by law laid down
             pursuant to the constitution. Consequently we conclude that the
             powers and duties of the Attorney General are specified by the
             constitution and by rules of law prescribed pursuant thereto. We
             hereby overrule State v. Ehrlick, supra, insofar as it conflicts
             with this view.

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



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

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

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

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

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


                                            38
common law powers.



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

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

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

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

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

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

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

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

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

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

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

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

vacancy:

                      But it is objected that the information is not given by the
              statute, but existed at common law. It certainly existed at
              common law, but only as a proceeding on the criminal side: it
              was first given to the party, as a civil remedy, by the statute. . . .

                       The Attorney-General, at common law, is not bound to
              file an information when a criminal act has not been committed.
              Now what crime has [the appellee] been guilty of in accepting
              an office before declared vacant by the Judges, and the exercise
              of which was necessary to the public good?


                                               39
                     ....

                      On general principles, therefore, it would seem to be
              more proper, (or rather less objectionable,) to turn over the party
              to his private and more speedy remedy under the statute, than to
              the common law information, which he cannot use without the
              intervention of the prerogative, or the permission of the
              Attorney-General, and the proceedings on which are, perhaps,
              more dilatory than in the other case.

Dew, 13 Va. at 12-23.



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

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

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

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

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

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

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

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

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



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

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

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

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

                                              40
legal counsel approved by the Attorney General and to make all in-house State agency

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

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

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

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

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

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

of the respondents was rejected:

                      We believe it is clear . . . that there are certain core
              functions of the Office of Attorney General that are inherent in
              the office, of which the Office of Attorney General may not be
              deprived, and which may not be transferred to or set up in
              conflict with other offices. The suggestion by some of the
              respondents that the Legislature possesses unfettered discretion
              to define, delineate, and limit the duties of the Attorney General
              is wholly at odds with the historical and well-settled
              understanding of the constitutional role of the Attorney General.
              Accordingly, we hold that pursuant to Article VII, Section 1 of
              the West Virginia Constitution, the Attorney General of the
              State of West Virginia is the State’s chief legal officer, which
              status necessarily implies having the constitutional
              responsibility for providing legal counsel to State officials and
              State entities.

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



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

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

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

                                             41
Office of Attorney General all of its inherent powers. Burton found that “[o]ne aspect [of

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

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

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

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

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

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

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

S.E.2d at 117.46



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



              46
                The decision in Burton granted the requested writ, as moulded, to reflect the
following:

              [I]n all instances when an executive branch or related State
              entity is represented by counsel before a tribunal, the Attorney
              General shall appear upon the pleadings as an attorney of
              record; however, this requirement does not bar other counsel
              from also appearing and acting in a legal capacity for the State
              entity. The Attorney General additionally has the right to appear
              as an intervenor as Attorney General on behalf of the State in all
              proceedings where the interest of the State or a State entity is at
              issue, to assert the Attorney General’s view of the law on behalf
              of the State. To maintain a proper constitutional balance,
              however, this right must always be exercised with restraint and
              due respect by the State entity and the Attorney General.

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

                                              42
or authority recognized in Manchin to nullify all of the inherent powers of the Office of

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

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

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

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

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

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

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

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

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

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

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

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

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


              47
                 A majority of jurisdictions also have held that the Office of Attorney General
retains inherent common law powers. See Ex parte King, 59 So. 3d 21 (Ala. 2010); Botelho
v. Griffin, 25 P.3d 689 (Alaska 2001); Masterson v. State ex rel. Bryant, 949 S.W.2d 63 (Ark.
1997); People ex rel. Harris v. Rizzo, 154 Cal. Rptr. 3d 443 (Cal. Ct. App. 2013); People ex
rel. Salazar v. Davidson, 79 P.3d 1221 (Colo. 2003); Seth v. State, 592 A.2d 436 (Del. 1991);
Bondi v. Tucker, 93 So. 3d 1106 (Fla. Dist. Ct. App. 2012); In re Water Use Permit
Applications, 9 P.3d 409 (Haw. 2000); Newman v. Lance, 922 P.2d 395 (Idaho 1996); People
v. Buffalo Confectionery Co., 401 N.E.2d 546 (Ill. 1980); Zoeller v. East Chicago Second
Century, Inc., 904 N.E.2d 213 (Ind. 2009); Memorial Hosp. Ass’n, Inc. v. Knutson, 722 P.2d
1093 (Kan. 1986); Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152 (Ky. 2009);
City of Augusta v. Attorney Gen., 943 A.2d 582 (Me. 2008); Case of Opare, 932 N.E.2d 863
                                                                                  (continued...)

                                              43
those powers is to be determined on a case-by-case basis. Insofar as the decision in Manchin

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

is expressly overruled.



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

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

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

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


              47
                (...continued)
(Mass. App. Ct. 2010); Fieger v. Cox, 734 N.W.2d 602 (Mich. Ct. App. 2007); State v.
Ri-Mel, Inc., 417 N.W.2d 102 (Minn. Ct. App. 1987); Barbour v. State ex rel. Hood, 974
So. 2d 232 (Miss. 2008); State ex rel Nixon v. American Tobacco Co., Inc., 34 S.W.3d 122
(Mo. 2000); Montana Power Co. v. Montana Dep’t of Pub. Serv. Regulation, 709 P.2d 995
(Mont. 1985); State v. Douglas, 349 N.W.2d 870 (Neb. 1984); State v. Moore, 207 P. 75
(Nev. 1922); Eames v. Rudman, 333 A.2d 157 (N.H. 1975); Kershenblatt v. Kozmor, 624
A.2d 1042 (N.J. Super. Ct. Law. Div. 1993); People ex rel. Spitzer v. Grasso, 836 N.Y.S.2d
40 (N.Y. App. Div. 2007); Bailey v. State, 540 S.E.2d 313 (N.C. 2000); State v. Hagerty, 580
N.W.2d 139 (N.D. 1998); State ex rel. Merrill v. Ohio Dep’t of Natural Res., 955 N.E.2d 935
(Ohio 2011); State ex rel. Cartwright v. Georgia-Pacific Corp., 663 P.2d 718 (Okla. 1982);
People v. Debt Reducers, Inc., 484 P.2d 869 (Or. Ct. App. 1971); State v. Lead Indus. Ass’n,
Inc., 951 A.2d 428 (R.I. 2008); State ex rel. Comm’r of Transp. v. Medicine Bird Black Bear
White Eagle, 63 S.W.3d 734 (Tenn. Ct. App. 2001); Hansen v. Utah State Ret. Bd., 652 P.2d
1332 (Utah 1982); McLaughlin v. State, 642 A.2d 683 (Vt. 1994); Commonwealth ex rel.
Beales v. JOCO Found., 558 S.E.2d 280 (Va. 2002). A minority of states do not recognize
the inherent common law powers of the Office of Attorney General. See Fund Manager,
Pub. Safety Pers. Ret. Sys. v. Corbin, 778 P.2d 1244 (Ariz. Ct. App. 1988); Blumenthal v.
Barnes, 804 A.2d 152 (Conn. 2002); State v. Blyth, 226 N.W.2d 250 (Iowa 1975); State v.
Burning Tree Club, 481 A.2d 785 (Md. 1984); State v. Block, 263 P.3d 940 (N.M. Ct. App.
2011); Meyer v. Community Coll. of Beaver Cnty., 30 A.3d 587 (Pa. Commw. Ct. 2011); City
of Seattle v. McKenna, 259 P.3d 1087 (Wash. 2011); State v. City of Oak Creek, 605 N.W.2d
526 (Wis. 2000). We could not find a definitive ruling on the subject in six states: Georgia,
Louisiana, South Carolina, South Dakota, Texas, and Wyoming.

                                             44
Syllabus point 2 of Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974), we

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

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

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

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

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

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

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

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

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

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



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

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

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

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

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

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

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

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

Constitution.

                                              45
              First, contrary to Manchin’s interpretation of the clause “as prescribed by law,”

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

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

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

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

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

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

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

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

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

2007) (“The office of the attorney general enjoys a wide range of powers, derived from both

the common law and, later, statutory enactments.”); State ex rel. Cartwright v.

Georgia-Pacific Corp., 663 P.2d 718, 721 (Okla. 1982) (“Having determined that the powers

and duties of the Attorney General under the Constitution of the State of Oklahoma carries

with it the duties and powers as were usually incident to the office under the English

common law, we must next determine whether those common law powers and duties have

been modified by statutory law[.]”); State v. Lead Indus. Ass’n, Inc., 951 A.2d 428, 473 (R.I.

2008) (“Accordingly, the Attorney General in Rhode Island has broad powers and

responsibilities pursuant to the Rhode Island Constitution, several Rhode Island statutes, and

the common law.”).



                                              46
              Second, pursuant to Article VIII, Section 13 of the West Virginia Constitution,

the following is stated regarding abrogating the common law of this State:

                     Except as otherwise provided in this article, such parts of
              the common law, and of the laws of this State as are in force on
              the effective date of this article and are not repugnant thereto,
              shall be and continue the law of this State until altered or
              repealed by the legislature.[48]

(Footnote added). We have held that “Article VIII, Section 13 of the Constitution of West

Virginia authorizes the Legislature to enact statutes that abrogate the common law[.]”

MacDonald v. City Hosp., Inc., 227 W. Va. 707, 715, 715 S.E.2d 405, 413 (2011). We

equally have recognized that “[t]he common law, if not repugnant of the Constitution of this

State, continues as the law of this State unless it is altered or changed by the Legislature.”

State ex rel. Van Nguyen v. Berger, 199 W. Va. 71, 75, 483 S.E.2d 71, 75 (1996) (internal

quotations and citation omitted). See Robinson v. Charleston Area Med. Ctr., Inc., 186

W. Va. 720, 727, 414 S.E.2d 877, 884 (1991) (“[T]he general authority of the legislature to

alter or repeal the common law is expressly conferred by article VIII, section 13 of the

Constitution of West Virginia.” (citation and footnote omitted)). Thus, under Article VIII,

Section 13, the Legislature can expressly repeal specific aspects of the Attorney General’s

inherent common law powers. However, contrary to Manchin’s cavalier treatment of the



              48
                 See W. Va. Code § 2-1-1 (1923) (Repl. Vol. 2011) (“The common law of
England, so far as it is not repugnant to the principles of the constitution of this state, shall
continue in force within the same, except in those respects wherein it was altered by the
general assembly of Virginia before the twentieth day of June, eighteen hundred and
sixty-three, or has been, or shall be, altered by the Legislature of this state.”).

                                               47
subject, the “common law is not to be construed as altered or changed by statute, unless

legislative intent to do so be plainly manifested.” Berger, 199 W. Va. at 75, 483 S.E.2d

at 75 (internal quotations and citation omitted). The Legislature has not enacted any general

statute that attempts to strip the Office of Attorney General of all its inherent common law

powers.



              In the final analysis, the authority of the Office of Attorney General “comes

from three sources–the constitution of this state; the legislature; and the common law, from

which emanates some of its so-called inherent power.” State ex rel. McGraw v. Telecheck

Servs., Inc., 213 W. Va. 438, 443, 582 S.E.2d 885, 890 (2003).



              2. The power of the Attorney General to appoint special assistant

attorneys general. The Petitioners contend that the lower courts were wrong in holding that

W. Va. Code § 5-3-3 (1961) (Repl. Vol. 2011) authorized the Attorney General to appoint

special assistant attorneys general and provided a basis for the method of payment chosen.49

As noted previously, “[w]hen a statute is clear and unambiguous and the legislative intent

is plain, the statute should not be interpreted by the courts, and in such case it is the duty of

the courts not to construe but to apply the statute.” Syl. pt. 5, State v. General Daniel



              49
               The Petitioners’ strongest argument on these issues was that the Attorney
General lacked common law authority per se. We already have determined that the Attorney
General has common law powers.

                                               48
Morgan Post No. 548, V.F.W., 144 W. Va. 137, 107 S.E.2d 353 (1959).



              The full language of W. Va. Code § 5-3-3 provides as follows:

                      The attorney general may appoint such assistant attorneys
              general as may be necessary to properly perform the duties of
              his office. The total compensation of all such assistants shall be
              within the limits of the amounts appropriated by the Legislature
              for personal services. All assistant attorneys general so
              appointed shall serve at the pleasure of the attorney general and
              shall perform such duties as he may require of them.

                      All laws or parts of laws inconsistent with the provisions
              hereof are hereby amended to be in harmony with the provisions
              of this section.

W. Va. Code § 5-3-3. It is clear that W. Va. Code § 5-3-3 does not mention “special”

assistant attorneys general; the statute refers only to assistant attorneys general. In deciding

whether the statute was intended to include special assistant attorneys general, we will trace

the relevant history of the statute. State v. Yoak, 202 W. Va. 331, 333, 504 S.E.2d 158, 160

(1998) (“We begin by interjecting a history of the amendments to the statute which is

controlling in this case.”); State v. D.D., 172 W. Va. 791, 794, 310 S.E.2d 858, 860 (1983)

(“We begin by examining the . . . history of legislative amendments to our child welfare

laws[.]”).



              West Virginia Code § 5-3-3 was originally enacted in 1909. The relevant

language of the original version of the statute stated the following:

              [H]e [the Attorney General] is hereby authorized to appoint two

                                              49
              assistants to serve at his pleasure, . . . and who may perform any
              of the duties of the attorney general.

W. Va. Code ch. 48, § 2a (1909). The original version of the statute expressly authorized the

appointment of assistant attorneys general, but did not mention special assistant attorneys

general.50 The statute was amended in 1937 to read, in relevant part, as follows:

                      The attorney general may appoint four assistants to serve
              at his pleasure and to perform such duties as he may require of
              them. . . . And upon finding of the necessity thereof by the
              governor and attorney general, the attorney general may appoint
              not more than one special assistant to serve at his pleasure and
              to perform such duties as he may require of him for such time as
              the governor and attorney general determine the necessity to
              continue[.]

W. Va. Code ch. 85, § 3 (1937) (emphasis added). It is clear that under the 1937 version of

W. Va. Code § 5-3-5, the Legislature expressly authorized the appointment of a special

assistant attorney general, in addition to the appointment of assistant attorneys general.



              Express legislative authority to appoint a special assistant attorney general

remained part of the statute until 1953. In 1953, the Legislature amended the statute and

removed the provision concerning the appointment of a special assistant attorney general.

See W. Va. Code ch. 11, § 3 (1953). The current version of the statute, as set out above, does



              50
                It should be noted that although it appears that the Attorney General did not
have express legislative authority to appoint assistant attorneys general until 1909, it does
appear that prior to that time the Attorney General exercised his inherent common law
authority to appoint assistant attorneys general. See Ex parte Faulkner, 1 W. Va. 269 (1866)
(discussing the position of assistant attorney general in the case).

                                             50
not include a provision for the appointment of a special assistant attorney general. The

historical development of the statute invokes the Latin doctrine inclusio unius est exclusio

alterius, i.e., one is the exclusion of the others. This doctrine instructs “‘courts to exclude

from operation those items not included in the list of elements that are given effect expressly

by statutory language.’” Bevins v. West Virginia Office of Ins. Comm’r, 227 W. Va. 315,

327, 708 S.E.2d 509, 521 (2010) (quoting State ex rel. Roy Allen S. v. Stone, 196 W. Va. 624,

630 n.11, 474 S.E.2d 554, 560 n.11 (1996)). Thus, it is clear from historical analysis that the

Legislature did not intend for the current version of W. Va. Code § 5-3-3 to authorize the

Attorney General to appoint special assistant attorneys general.51 The Legislature knew how


              51
               Our conclusion also is supported by an attempted amendment to W. Va. Code
§ 5-3-3 during the 2013 Regular Session of the West Virginia Legislature. A bill was
introduced in the House of Delegates, H.B. 3110, that would have amended the statute to
once again expressly authorize the appointment of private attorneys as special assistant
attorneys general. In addition, the proposed amendment set out guidelines the Attorney
General had to follow in order to appoint a private attorney as a special assistant attorney
general. The guidelines of the proposed amendment were, in relevant part, as follows:

                      (c) The state may not enter into a contingency fee
              contract, or any other legal arrangement, with a private attorney
              unless the Attorney General makes a written determination prior
              to entering into such a contract that the legal representation is
              both cost-effective and in the best interest of the public. Any
              written determination shall include specific findings for each of
              the following factors:

                     (1) Whether sufficient and appropriate legal and financial
              resources exist within the Attorney General’s office to handle
              the matter.

                     (2) The time and labor required; the novelty, complexity,
                                                                                  (continued...)

                                              51
to expressly include such authorization, as it did so in 1937.



              Even though the Attorney General cannot rely upon W. Va. Code § 5-3-3 as

authority to appoint special assistant attorneys general, we do not find any language in the

statute which expressly prohibits the Attorney General from making such appointments under

that Office’s inherent common law authority. A similar issue was addressed by the Missouri

Court of Appeals in Kinder v. Nixon, No. 56802, 2000 WL 684860 (Mo. Ct. App. May 30,

2000), transferred sub nom. State ex rel. Nixon v. American Tobacco Co., Inc., 34 S.W.3d

122 (Mo. 2000). The court in Kinder found that Missouri’s statute (discussed in Nixon,

infra) authorized the Attorney General to appoint only assistant attorneys general, not special

assistant attorneys general. However, the court found that the limitation imposed by the

statute did not limit the Attorney General’s inherent common law authority. The court held

that “the Attorney General has common law authority to appoint special assistants and

nothing in [the statute] either expressly or by reasonable intendment forbids the exercise of


              51
                (...continued)
              and difficulty of the questions involved; and the skill requisite
              to perform the attorney services properly.

                     (3) The geographic area where the attorney services are
              to be provided.

                     (4) The amount of experience desired for the particular
              kind of attorney services to be provided and the nature of the
              private attorney’s experience with similar issues or cases.

H.B. 3110. The proposed amendment died in the House Judiciary Committee.

                                              52
that power.” Kinder, 2000 WL 684860, at *11. We agree with Kinder and so hold that the

Attorney General has common law authority to appoint special assistant attorneys general.52


              52
                We wish to clarify that this opinion does not address what method must be
used by the Attorney General in selecting a special assistant attorney general. This was also
an area that the Legislature unsuccessfully attempted to address during the 2013 Regular
Session. Two bills were introduced in the House of Delegates, H.B. 2139 and H.B. 3110,
that addressed the issue. House Bill 2139 would have amended W. Va. Code § 5-3-2 to
provide, in relevant part, the following:

                     In contracting with private attorneys to pursue legal
              action on behalf of the state, the Attorney General shall seek
              bids from attorneys licensed to practice in this state and shall
              contract with the best qualified attorney submitting the lowest
              bid.

House Bill 3110 would have amended W. Va. Code § 5-3-3 to provide, in relevant part, the
following:

                      (d) [T]he Attorney General shall request proposals from
              private attorneys to represent the state on a contingency fee
              basis, or any other basis, unless the Attorney General makes a
              written determination that one of the following factors applies:

                     (1) An emergency situation exists that requires
              time-sensitive legal services that cannot be adequately provided
              by the Office of Attorney General, and for which insufficient
              time exists to complete the customary competitive bidding
              process.

                     (2) An appointment, or the continuation of an
              appointment, is necessary to avoid disruption in pending legal
              matters by allowing previously appointed outside counsel to
              continue providing legal representation.

                    (3) The legal services will be most effectively handled by
              preapproved attorneys who have already completed the bidding
              process referenced in subsection (h).
                                                                                 (continued...)

                                             53
52
 (...continued)
       (e) Any Requests for Proposal shall be posted to the
website of the Office of Attorney General, and the time period
under which the proposal is open should be clearly stated.

       (f) When soliciting proposals from private attorneys to
represent the state on a contingency-fee basis, or any other basis,
the Attorney General shall consider the following factors when
determining the most competitive proposal for legal services,
and make a written determination as to the application of these
factors, prior to entering into any contract for outside legal
services:

       (1) Whether the private attorneys possess the requisite
skills and expertise needed to handle the legal matters in
question;

       (2) Whether the private attorneys possess requisite
staffing and support to handle the scope of the litigation or
matter;

       (3) Whether the private attorneys, or any members of the
private attorneys’ law firm, have been subject to reprimand by
the West Virginia State Bar, or other entities, for unethical
conduct;

        (4) Whether the private attorneys have been peer rated,
and if so, what peer ratings they have received, along with any
other recognitions or awards for legal services;

       (5) The estimated fees, costs and expenses of the private
attorneys to perform the legal services requested;

       (6) The willingness of the private attorneys to enter into
alternative billing arrangements;

       (7) Whether the private attorneys are in compliance with
all applicable laws of the State of West Virginia; and
                                                                      (continued...)

                                54
             52
              (...continued)
                    (8) Any such other relevant factors as may be identified
             by the Attorney General.

                    (g) If, after soliciting proposals for legal services, the
             Attorney General determines that proposals received are
             insufficient based on an application of the factors set forth in
             subsection (f), the Attorney General may solicit additional
             proposals pursuant to subsections (c), (d) and (f).

                     (h) In order to address time sensitive or emergency legal
             matters that require the use of outside counsel, but do not allow
             sufficient time for completion of the competitive bidding
             process set forth in subsections (c), (d) and (f), the Office of
             Attorney General may institute a prebidding process for
             approving lawyers or law firms to perform legal work on behalf
             of the state in accordance with the following factors:

                    (1) Private attorneys may be preapproved to perform
             outside counsel work in specific areas of law provided that they
             have gone through a request for proposal and competitive
             bidding process as set forth in subsections (d) and (f).

                    (2) In instances in which more than one lawyer or law
             firm has been preapproved for the provision of outside counsel
             legal services in an area of law, the Office of Attorney General
             shall perform an expedited, case-specific analysis using the
             factors set forth in subsection (f) to determine which lawyer or
             law firm would be better suited to represent the state on a
             particular legal matter.

                    (3) The office shall list any preapproved attorneys by
             practice area on the Attorney General’s website.

Both bills, H.B. 2139 and H.B. 3110, died in the House Judiciary Committee.

                                            55
               The Petitioners also contend that W. Va. Code § 5-3-3 restricts compensation

of assistant attorneys general to appropriations by the Legislature; therefore, they argue, the

fee arrangement with the special assistant attorneys general is invalid.53 A similar argument

was made in State ex rel. Nixon v. American Tobacco Co., Inc., 34 S.W.3d 122 (Mo. 2000).

In Nixon, the Attorney General of Missouri appointed a private attorney as a special assistant

attorney general to represent the State of Missouri in tobacco litigation. Under the terms of

the appointment, the special assistant attorney general would be reimbursed for his expenses

if the litigation ended favorably to the State.          Several alternative contingency fee

arrangements were made with the special assistant attorney general, including payment from



               53
                  The Petitioners also argue that W. Va. Code § 5-3-5 (1923) (Repl. Vol. 2011)
requires all attorney’s fees to be paid into the State treasury. This statute does not address
a general award of attorney’s fees. We previously have noted that the statute “provides for
inclusion of the . . . nominal statutory attorney fee, in the costs of a proceeding in which [the
Attorney General] appeared for the State.” Hechler v. Casey, 175 W. Va. 434, 451 n.17, 333
S.E.2d 799, 816 n.17 (1985). See Pauley v. Gilbert, 206 W. Va. 114, 123, 522 S.E.2d 208,
217 (1999) (“[T]here . . . exists express statutory authority for the recovery of nominal
attorney’s fees in W. Va. Code § 59–2–14. This provision mandates that the clerk of a court
in which a party prevails ‘shall include in the costs to the prevailing party: (a) In any civil
action, ten dollars. . . .’”). During oral arguments, counsel for GlaxoSmithKline contended
that the statute in at least one of the claims against it, involving Medicaid, requires attorney’s
fees be turned over to the State. This argument does not expressly appear in
GlaxoSmithKline’s brief. In fact, the brief focused exclusively upon the causes of action
under the West Virginia Consumer Credit and Protection Act. To the extent that the brief
could be liberally construed as setting out the contention made during oral arguments, the
contention has no merit. As previously noted in this opinion, the Attorney General amended
its appointment letter to the special assistant attorneys general litigating the action against
GlaxoSmithKline. That amendment expressly states that the special assistant attorneys
general “will not receive any fee based upon any recovery by the State for harm to the State’s
Medicaid program that is subject to refund to the Centers for Medicare and Medicaid
Services.”

                                               56
any recovery from the defendants. One of the issues arising out of the litigation was whether

the statute authorizing payment of assistant attorneys general also authorized the contingency

fee arrangement made with the special assistant attorney general. The statute stated, in

relevant part, the following:

                     The attorney general is hereby authorized to appoint such
              assistant attorneys general as may be necessary to properly
              perform the duties of his office and shall fix the compensation
              of such assistants within the limits of the amount appropriated
              by the general assembly.

Mo. Stat. § 27.020.1. The Missouri Supreme Court in Nixon found that, notwithstanding the

statute, the Attorney General had authority to enter into the fee arrangement:

                     It is generally held in this country that the office of
              attorney general is clothed, in addition to the duties expressly
              defined by statute, with all the powers pertaining thereto under
              the common law. A grant by statute of the same or other powers
              does not operate to deprive him of those belonging to the office
              under the common law, unless the statute, either expressly or by
              reasonable intendment, forbids the exercise of powers not thus
              expressly conferred. . . .

                      The statute that allows for the attorney general to hire
              assistants and to pay them from appropriations does not prohibit
              the attorney general in the exercise of his common law power
              from entering into contingency fee arrangements or agreements
              that otherwise provide for civil defendants sued by the State to
              pay attorney fees directly to the State’s outside counsel. In the
              absence of a statute to the contrary, we conclude that the
              attorney general does have the power to enter into this type of
              fee arrangement with his special assistant attorneys general.

Nixon, 34 S.W.3d at 136 (internal quotations and citations omitted).




                                             57
              Insofar as W. Va. Code § 5-3-3 does not expressly prohibit the Attorney

General from making alternative fee arrangements with special assistant attorneys general,

we now hold that the Attorney General has common law authority to provide for

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

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



              We reject outright the Petitioners’ contention that such an award by a trial court

must be capped at the level established by the Legislature pursuant to W. Va. Code § 5-3-3.

The amount of any fee award is discretionary with the trial judge. However, we wish to

make clear that we are not addressing the appropriateness of awarding attorney’s fees to

special assistant attorneys general directly from any actual monetary judgment award to the

State because such a contingent fee agreement is not at issue in this case. We also note that

the Legislature attempted to address the issue of contingency fee payment to special assistant

attorneys general during the 2013 Regular Session of the West Virginia Legislature, but such

proposals failed to be approved.54


              54
               Through House Bill 3110, an amendment was proposed to W. Va. Code §
5-3-3 that would have added the following language to the statute:

                     The state may not enter into a contingency fee contract
              that provides for the private attorney to receive an aggregate
              contingency fee in excess of:

                    (1) Twenty-five percent of the first $10 million
              recovered; plus
                                                                                 (continued...)

                                              58
                                             IV.

                                      CONCLUSION

              In this proceeding, the Petitioners, defendants in two consolidated petitions for

writs of prohibition, have sought to have the Respondent’s special assistant attorneys general

disqualified. The most glaring deficiency in the arguments made by the Petitioners is that

there was not one allegation that the special assistant attorneys general have actually engaged

in any improper conduct that has caused an injury. The briefs set out a plethora of

allegations that involve remotely possible harmful conduct. We have not and will not

interfere with or disqualify a party’s counsel merely because of allegations of improper


              54
               (...continued)
                     (2) Twenty percent of any portion of the recovery
              between $10 million and $15 million; plus

                    (3) Fifteen percent of any portion of the recovery
              between $15 million and $20 million; plus

                    (4) Ten percent of any portion of the recovery between
              $20 million and $25 million; plus

                    (5) Five percent of any portion of the recovery exceeding
              $25 million.

                     In no event may the aggregate contingency fee for any
              legal matter exceed $50 million, exclusive of reasonable costs
              and expenses, and irrespective of the number of lawsuits filed or
              the number of private attorneys retained to achieve the recovery.
              A contingency fee may not be based on penalties or fines
              awarded or any amounts attributable to penalties or fines.

As previously mentioned, House Bill 3110 died in the House Judiciary Committee. See
supra notes 51 & 52.

                                              59
conduct that has not occurred. To allow a mere possibility of improper injurious conduct to

be the standard for disqualification would result in parties constantly seeking to disqualify

opposing counsel because of phantom injuries. The law of disqualification cannot rest on

the imagination of opposing counsel.



              This case has called upon the Court to revisit its holding in State ex rel.

McGraw v. Burton, 212 W. Va. 23, 569 S.E.2d 99 (2002), that the Office of Attorney

General has inherent core functions that cannot be totally extinguished. In revisiting Burton,

we have determined that this Court improperly held in Manchin v. Browning, 170 W. Va.

779, 296 S.E.2d 909 (1982), that the Office of Attorney General did not retain inherent

common law powers. As a consequence, we have found it necessary to overrule Manchin.



              In the final analysis, it is the common law authority of the Attorney General

that permitted that Office to appoint the special assistant attorneys general in these cases and

to provide for a method of possible recovery of attorney’s fees. Thus, while we find the

Circuit Courts of Mason County and Wayne County relied upon the wrong reasons for

rejecting the motions to disqualify the special assistant attorneys general, those courts

nevertheless were correct in denying the motions.




                                              60
               Accordingly, we deny the writs applied for in Case No. 13-0086 and in Case

No. 13-0102.



                                                                           Writs Denied.




                                            61
