No. 14-0998 – Rich v. Simoni

                                                                             FILED
                                                                          April 10, 2015
                                                                       RORY L. PERRY II, CLERK

                                                                     SUPREME COURT OF APPEALS

                                                                         OF WEST VIRGINIA

Benjamin, Justice concurring:



              I agree with the majority’s reformulation of the certified question to pertain

specifically to Rule 5.4 of the Rules of Professional Conduct, as a determination of

whether a Rule of Professional Conduct may constitute a statement of public policy

should always be made on a rule by rule basis. I write separately, however, to express

my belief that a Rule of Professional Conduct should only be determined to be a source

of judicially conceived public policy when the rule at issue serves the public interest, not

just the interest of the profession.


              In Rocky Mountain Hosp. and Medical Service v. Mariani, 916 P.2d 519

(1996), a court deciding whether a professional ethical code governing public accountants

should be adopted as a source of public policy, reasoned that


                     [s]tatutes by their nature are the most reasonable and
              common sources for defining public policy. In limited
              circumstances, however, we agree with the jurisdictions that
              hold there may be other sources of public policy such as
              administrative regulations and professional ethical codes.
              However, we quickly note that even those courts that have
              adopted ethical codes as a source of public policy have not
              done so without limitation. See Pierce, 417 A.2d at 512. In
              particular, in order to qualify as public policy, the ethical
              provision must be designed to serve the interests of the public
              rather than the interests of the profession. The provision may
              not concern merely technical matters or administrative
              regulations. In addition, the provision must provide a clear
              mandate to act or not to act in a particular way. Finally, the
              viability of ethical codes as a source of public policy must
              depend on a balancing between the public interest served by
              the professional code and the need of an employer to make
              legitimate business decisions. We also adopt these limitations
              as a prudent check on the public policy exception to
              employment at-will.
                     Thus, we hold that professional ethical codes may in
              certain circumstances be a source of public policy. However,
              we emphasize that any public policy must serve the public
              interest and be sufficiently concrete to notify employers and
              employees of the behavior it requires.
Id. at 525.



              Consistent with Mariani, I would have limited the holding in this case to

express that the Rules of Professional Conduct may, in certain circumstances, be a source

of judicially conceived public policy when the rule at issue serves the public interest, not

just the interest of the profession. Accordingly, I concur with the majority’s decision.
