THE WEST VIRGINIA LAWYER MAGAZINE

VOLUME 11 NUMBER 10

Contributions to Judicial Candidates
by Charles McElwee, Esq.

State of the Judiciary Address
By Chief Justice Robin Jean Davis

My Client Debbie
By Stephen W. Cogar, Esq.

Environmental Enforcement Seminar

CLE Calendar

Calendar of Events

YLS Sponsors "Meet The Judges" Program

President's Page

Dean's Column

Bulletin Board

Supreme Court Page

Young Lawyers Section

Tinder Box

PRESIDENT'S ADDRESS

ELLIOT G. HICKS

PRESIDENT - WEST VIRGINIA STATE BAR

1998 ANNUAL MEETING

GREENBRIER HOTEL - WHITE SULPHUR SPRINGS

MARCH 28,1998

Members of the West Virginia State Bar, honored guests members of my family and friends, I am extremely honored to accept the position of president of the West Virginia State Bar for this coming year.

I=ve wanted to be a lawyer since I was in the ninth grade. Against the background of the civil rights movement, and other profound waves of social change, I wanted to have the chance to make a difference. Law school was very different from all of my other school experiences, because in junior high, high school, and college one always has the feeling that he has learned all he needs to know at that level, and feels powerful and qualified to move forward. As I left law school, I felt I knew little, and had so little to offer the public in the real world. When I began my legal career as a solo practitioner in Charleston, I came to understand the immense duty and responsibility to assist people in exercising their rights and assuming their responsibilities under the law. I found I could help, and that I had something to offer through the law.

Now I have the chance to serve this honored profession at its highest level as president of the West Virginia State Bar. Each of you can be assured that I will give my best efforts to the State Bar, to the state's legal system and to the citizens of our state.

My wife, Nancy and I have begun to take it as a responsibility to plan special events for the annual meeting. A few of you may remember that we married on Saturday of last year=s meeting. We were given the tongue-in-cheek title of king and queen of the prom at the Friday night dance. Now we have planned, if you could call it that, to have our daughter born uncomfortably close to this year=s meeting. After DC=s daughter was born shortly after last year=s meeting, we have declared the birth of a child to the family of the bar president near the annual meeting an Aofficial tradition.@ Dan Ringer is petrified. Probably not half as much as his wife, Becky, though.

Four years ago, when Barbara Baxter was sworn-in as president of the State Bar, she had her young daughter join her at the podium. Now, as close as Nancy and I are to this blessed event in our lives, I=m just hoping my daughter won=t join me here this year.

I am so very glad to have several members of my family in attendance this evening. In addition to my wife, I have my brothers, Brian and Eric, and my wonderful stepmother, Lucylle. I=m thankful for their love and support. You may credit them, or blame them, certainly along with my late parents, for whatever you see before you tonight.

I am excited about the challenge of serving as president of the West Virginia State Bar. We have 3,800 active practicing attorneys in West Virginia who are required to be members of the bar. I want to keep them aware of the many programs and services that are available to them, so that the State Bar means more to them than a place where they have to pay dues, where they have to report 24 hours of continuing legal education every 2 years, and where they may be required to respond to a legal ethics matter.

Since all active practicing lawyers must belong to the State Bar, we are a very diverse group. Earlier I mentioned past president Barbara Baxter, who was the first woman to be president of the State Bar. Two years ago, immediately after my election to proceed through the chairs to the position I assume tonight, I sat at the banquet, alternately amused and uncomfortable as speakers made much of the fact that I would become the first black lawyer to become president. I=ve never thought that this distinction entitled me to a seat at the table with Rosa Parks, or the Freedom Riders in Mississippi. It really doesn=t even entitle me to a seat at the lunch counter at Woolworth=s. But, I have always found West Virginia to be a Alive and let live@ state.

We are guaranteed that we will continue to have diversity in the attorneys who serve as leaders of the State Bar because any lawyer can seek a position on the bar's board of governors and they often do. The make-up of the young lawyers section is even more diverse than the overall State Bar, since more women and more minorities have become members of the bar over the past decade and longer.

Though I=ve heard people mistakenly say the Board of Governors is dominated by defense lawyers, there is no one type of attorney or type of law practice that predominates on the Board. Our board members, who set the policy for the State Bar, are a distinguished group who represent the lawyers from their districts with great dedication. In just the past 5 years, the presidents of the State Bar have been from a 6 person, plaintiff-oriented law office, a legal aid program, a 20 person defense-oriented law office, a 3 person general practice law office in a small town and a 7 person defense-oriented law office. These individuals have been from diverse areas of the state: Clarksburg, Wheeling, Charleston, Lewisburg and Huntington.

The same situation occurs with our Young Lawyers Section. Any active practicing attorney, who has been admitted to practice for 10 years or less, is automatically a member of the YLS. There are now 40% of our State Bar members who meet that criteria. The past 5 chairpersons of the young lawyers section have been individuals from a 4 person general practice law office, a 3 three person plaintiff oriented law office, a 20 person commercial litigation law office, a 12 person defense oriented law office and an assistant prosecuting attorney. They were from Summersville, Huntington, Martinsburg, Clarksburg and Parkersburg.

Let me pause to mention that the young lawyer section's executive committee is an impressive group, that is involved in a variety of necessary activities. It is the future of the legal profession in West Virginia. That committee is one of the most active and committed groups in the Bar, and is responsible for many of the most innovative proposals you see coming from the Bar.

Our 32 different committees are where the bar truly reaches our members, and where our members have the most direct input into the work of the Bar. Any State Bar member who has an interest in their work can simply volunteer to work on most of the committees. From A to Z: alternate dispute resolution to real estate, land use and zoning -- there is a State Bar committee for every active practicing attorney. These committees provide the ideas, the recommendations and the programs which become the heart and soul of our statewide organization. I hope that more State Bar members will take advantage of the excellent opportunities to become an active member of a State Bar committee.

During the year that each president serves, he or she is called upon to make numerous decisions, keep the State Bar moving ahead, and eat very known variety of chicken dinner! By watching those who preceded me, I can see that this job will require me to do an even better job of balancing the competing forces of my professional life, my family life and my activities in the State Bar. I am most fearful of being sucked into the beginning of my term, then spit out the other side without making a difference. I am looking forward to this challenge and I do have some specific objectives in mind for our organization.

First of all, we will continue to give the necessary emphasis and support to the top priority for the State Bar: the ethical conduct of our attorneys. The lawyer disciplinary board, which consists of 7 non-lawyers and 12 lawyers, along with a fine and professional staff, will keep reviewing and investigating allegations in a fair and equitable manner. It is important to note that of the 500 or so complaints which are filed each year, approximately 90% of them are found to be unsubstantiated. However, it is also important to note that any time a lawyer is found to have committed an unethical act, it soils the reputation and image of all of us in the legal profession.

Interestingly, our lawyer disciplinary board has determined that a lawyer who has been practicing for 15 to 20 years, is a sole practitioner or in a small law office and handles domestic relations or criminal matters is the most likely to experience ethical difficulties. There are two ongoing activities that can be of assistance to that particular type of lawyer and to all of us.

First, I want to strongly encourage every State Bar member to use the informal legal ethics advice system whenever necessary. That means that a State Bar member can contact any one of our 3 lawyer disciplinary counsel at anytime and be given informal advice on a matter they are facing. For example, when a lawyer has a legal ethics question, he can call the lawyer disciplinary counsel and be told what action he should take. We are receiving almost 100 calls per month for informal legal ethics advice. The next time you have any ethical questions, be smart and call the lawyer disciplinary board offices.

Second, the State Bar has begun a joint effort with the lawyer disciplinary board to set up lawyer diversion programs. A 10 person committee - 5 members of the State Bar's Board of Governors and 5 members of the lawyer disciplinary board, began this extraordinary endeavor by holding their first meeting earlier this month. The committee, chaired by president-elect Dan Ringer, will be working on activities that will enable lawyers to receive help and remedial assistance, instead of perhaps losing their law license when they are involved in small ethical indiscretions.

Sometime in the next 100 days or so, the United States Supreme Court will hand down a decision that will have a major impact on the provision of free civil legal services for our low income citizens. The court heard arguments earlier this year on a case that challenges a very successful means of funding these services - the interest on lawyer trust accounts, or the IOLTA program. This is the first time in the almost 20 year history of IOLTA that the court has taken a case on the constitutionality of the program.

During the 8 years in which IOLTA has been in existence in West Virginia, it has generated approximately 5 million dollars in needed monies for legal assistance for our low income men, women and children. A loss of this funding source would reek havoc on our 4 legal services programs, the Court Appointed Special Advocate, or CASA programs, law student internships, and legal guidance for our low income elderly people.

We anxiously await the court's opinion. An adverse decision would require the State Bar to expend substantial amounts of time, energy and effort coming up with ways to fill such a funding void.

An issue in which I have a specific interest is our judicial selection process. In my opinion, we need to make some changes. Judicial candidates are not entirely certain as to how they can campaign under the current system. Attorneys provide the vast majority of contributions to the candidates.

Not only as an officer of the Bar, but simply as a lawyer, I hear many questions about the complications the public perceives in the relationship between the judge, and the lawyers who support their campaigns for office. The public often assumes the worst. Additionally, the public is often much less informed about the qualifications of their candidates for judicial offices than they are about their candidates for other elected offices. The average citizen cannot name their judicial officers, much less properly evaluate their fitness for service.

I hope I can express myself adequately on this issue in the coming year to make it clear that my desire for a change in this system is not borne of elitism, and to express the respect I have for those judicial officials who have subjected themselves to the electoral process, and survived. But we all know that many of the lawyers who would serve the public best as judges are not necessarily the ones who are the best politicians.

West Virginia is one of only 8 states that still uses a partisan political process to elect our circuit court judges and supreme court justices. I know that the legislature, just this past session, turned away a proposal to establish non-partisan election of judges. I can't believe that we can't come up with some procedure that will get judicial candidates out of the campaigning mode, and get lawyers out of the distasteful dilemma of raising funds for judicial candidates. We need to do the right thing and that is to change our judicial selection process.

For the past year, I have served as the chairman of the State Bar's Lawyer Advertising Commission. This diverse group, which consists of lawyers and non-lawyers, has been working diligently on what can and can't, and should and shouldn=t, be done with lawyer advertising. My personal opinion is that advertising is the path to the goal of a more educated and enlightened consumer of legal services. Still, some styles of advertising are the source of much disdain some segments of the public have for lawyers.

The commission will continue to look at all aspects of this situation. We need to balance the necessity of informing our citizens about the availability, and the cost, of legal services while maintaining the integrity our profession must require.

One other idea that I am considering relates to the controversial topic of tort reform. As we all know, there have been comments made about making changes in our tort law system, most recently during the West Virginia state legislative session which concluded earlier this month.

At the beginning of the legislative session, Governor Underwood introduced a significant proposal that included numerous changes in tort law. A public hearing was held, but no specific action was taken.

It is clear that the topic of tort reform will continue to be discussed and debated in the coming months, particularly when the legislature comes back in session in January, 1999. I have been giving consideration to forming a Tort Law Commission that could review the current laws and rules to determine whether any changes are necessary. The commission would consist of a diverse array of attorneys, and could also include members of the general public. I believe the State Bar must be involved in the discussion of this critical issue in a strictly non-partisan fashion.

Of course, I can have all the plans I want, but there will undoubtedly be other problems and issues that will surface in the next 12 months or so.

As I conclude my remarks, let me give honor to Tom Tinder, and our State Bar staff, Connie Blessing, Kathy Henning, Hope Gresham, and Cheryl Petty. Ten people would be proud to produce as much work as these five. When I had my solo practice fifteen years ago, Tom Tinder was operating his law practice on the same floor, giving me guidance, and the economical use of a copier. Today he is still giving me guidance as I embark on this adventurous year C a very steady hand at the helm of this ship. The staff he has assembled, and, most importantly, maintained, is as fine as any in the nation at this work. All of us should be proud.

I am grateful to be given this chance to serve the members of the legal profession and West Virginians in general. You can count on me to do whatever is necessary to improve and enhance our standing in our communities, in our state and throughout the country.

Thank you.

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Young Lawyers Section

ALPO REVISITED

I have heard it said that politics is our local contact sport here in Logan County. I am glad that for me politics is merely a spectator sport. The campaign for local office has been particularly nasty this year, with accusations of scandal and wrongdoing flying in every direction.

We have a two-party system here, like the rest of the country. However, our two parties are faction A of the democratic party and faction B of the democratic party.

Logan County Prosecuting Attorney John Sims has aligned himself politically with faction A. Mr. Sims has made allegations against certain persons who happen to be aligned with faction B. At about the same time Mr. Sims made the allegations, he was accused of overbilling Public Defender Services (PDS) for services he provided before he became prosecutor. The allegations against Mr. Sims were well publicized in the Logan Banner, our local newspaper. The Banner published a story stating that Mr. Sims was being investigated for overbilling PDS approximately $5,000.00. The next day, the Banner published Mr. Sims' side of the story. He admitted that he overbilled the system, but explained that his records were destroyed in a fire which totally destroyed his home. Mr. Sims also explained that PDS owes him approximately $98,000.00 for other cases, and he asked representatives of PDS to offset the overbilled amounts against the amounts due him. PDS was unwilling to honor Mr. Sims' request.

Of course, each side is claiming that the other side's allegations are politically motivated. I do not know if the claims are true, and, for purposes of this article, I do not care. The accusations against Mr. Sims got me thinking about one of my pet peeves, the PDS system in West Virginia.

I am dictating this article as I return home from a hearing on a civil case in Cabell County. (Those of you who have driven Route 10 between Logan and Huntington know that dictating while your driving on Route 10, particularly with a manual transmission, is ill-advised.) This is the second time in less than a week that I have appeared before the same judge in Cabell County. The thought occurred to me that appearing before the same judge twice in the same week might convince the judge that I should start taking criminal appointments in Cabell County. The thought made me angry again at the whole court-appointed lawyer system.

The actions of PDS in Mr. Sims' case show just how unfair the system is to court-appointed lawyers. The easy solution would have been offsetting the overbilled amount against the amount due Mr. Sims.

I do not blame officials at the PDS for our problems. They are doing the best they can with what they have to work with. However, in my opinion, there are at least two problems with the PDS system which should be addressed, regardless who is to blame for them. The first and most obvious problem is that the system is underfunded. I am not the first person to see this problem; we all know it exists. We all have seen the publicity PDS has been receiving recently as legislature tries to find a way to cut the cost of the system.

The current system has been in place for several years, so the legislature should know how much funding is needed. Each year the legislature finds some way to get PDS "caught up". I realize that more money for lawyers is not a popular cause, but the legislature should fully fund PDS so that it can pay its bills as they are incurred, rather than always playing "catch up".

The second problem is that the distribution of appointments is uneven. In Logan County, there are lawyers who are not appointed to any cases, and there are some lawyers who are handling much more court appointed cases than their "fair share". In fact, we have what I call the Logan County Chapter 49 Club. That club consists of myself and half a dozen other lawyers who seem to get all of the appointments in abuse and neglect cases.

The West Virginia Supreme Court of Appeals tells us that court appointed cases cannot take more than ten percent of our time. That sounds good, but the how do I know when I have reached the ten percent level? What formula do I use? Also, I am not comfortable telling my chief judge to not give me any more appointments because I have exceeded ten percent.

I was taught that you should not identify a problem unless you can offer a solution. Unfortunately, I do not know what the solution is to our problems.

Several years ago, when Bob Noone was chairperson of the YLS, he wrote in this article that we should form the ALPO (Appointed Lawyers Pissed Off) Committee. At that time I was a prosecutor, and I thought the article was funny. Now that I am an angry court-appointed lawyer, Bob's idea makes sense. I believe that we, the court-appointed lawyers, should have a stronger voice in the ongoing discussions concerning PDS. Whatever the solution to the PDS problem is, we should make sure that our input is heard. I also believe that the West Virginia Bar Association, which I understand to be the lobbying voice for lawyers in West Virginia, should be take the lead in the discussions. Perhaps the Association could establish the ALPO Committee. Of course, the Association could come up with a better name.

Certainly, I would be willing to serve on the ALPO Committee, but I am curious to know how many other lawyers feel like I do. If you would like to join ALPO or if you have any suggestions, please call me at (304) 752-6296.

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My Client Debbie

by Stephen W. Cogar, Esq.

During my time as a lawyer, I have never encountered a publication from either the State Bar or the American Bar Association that failed to extol the virtues of pro bono publico work by members of the bar. To many, there is no higher calling for a lawyer than to provide free legal services to those who would otherwise be unrepresented. Although I recognized the importance of this needed public service by lawyers in terms of assisting indigent clients and enhancing the public's perception of our profession, I felt that my busy job, private practice, and pressing family concerns did not allow me the necessary time. Moreover, with my primary area of practice being governmental law, I didn't feel that I would be of much value to the State Bar's Pro Bono Referral Service. When I was approached by my wife, Sabrina, with a proposal that I volunteer as legal counsel for the hospice that she directs, I readily agreed. The hospice was just getting started, had no patients, and I felt that I could handle the additional work.

A short time passed and I followed the development of the hospice through daily conversations with Sabrina. That's how I learned about Debbie. Debbie was a mid-thirties, divorced mother of three who held a job in the nursing department of the local hospital. Debbie was also terminally ill with cancer and wasn't expected to live more than a few days. She had confided in her home health nurse that she wanted a will and a power of attorney so that the needs of her three children would be met. Debbie also had some specific bequests to make to her children and sisters. Sabrina learned from the nurse that Debbie had made inquiries with local lawyers, but either couldn't afford their fees or couldn't wait for them to draft the documents. I agreed to speak to Debbie, although I was concerned that she may not be mentally or physically able to go through with either the consultation or the actual signing of the papers.

I scheduled an appointment for the next evening with her, knowing that she was in intensive care and that time was of the essence. The following day, Debbie's condition deteriorated and she was transferred to another hospital where she could obtain more aggressive treatment. Somehow, she struggled through another week and returned to the intensive care unit at the local hospital. Debbie immediately contacted me through her nurse at the ICU, and asked me to meet with her the next evening. The nurse urged me to meet with her and stated that Debbie had imparted a sense of urgency with respect to having her affairs in order before she died. Debbie's last wish was to provide for the care of her minor children and she was asking me to grant that wish.

The meeting with Debbie in the ICU was both frightening and emotionally draining for me. I was apprehensive as to how I would communicate with her and how I would deal with the monitors, tubes, and pumps in the Unit. I found that Debbie was emaciated from months of chemotherapy . Her dark hair hung in sparse strands and her face was pale and drawn. Intravenous tubes and wires were attached to her arms, legs, and chest. The rhythmic gushing of air from the ventilator protruding from her tracheostomy reminded me that I was fighting the clock. Despite her condition, Debbie presented me with a handwritten list of specific bequests and guardianship arrangements for her children. The list was very detailed and I verified that each sentence was correct. Our conversation was hampered by the ventilator but Debbie was able to nod affirmatively and point in response to my questions. I was surprised at her lucidity and decisiveness. Following an interview with various family members to assess the practicality of Debbie's wishes, I rushed to my office to prepare the documents.

By the following morning, I prepared a detailed will with a pour-over life insurance trust for the benefit of the children and durable power of attorney to formalize the authority given to Debbie's younger sister who was already paying Debbie's bills. Sabrina and I traveled back to the ICU and assembled the requisite witnesses as well as a notary public. Debbie was very alert, having refused her pain medication in anticipation of my return. She again nodded affirmatively and pointed as read through the papers line by line. It was difficult for her to maneuver her hands through the maze of tangled wires and tubes, but she methodically signed her name to each page as the witnesses leaned forward over her bed. When the signing was complete, Debbie quickly slumped back as she was totally exhausted from the effort. As I prepared to leave, we shook hands and Debbie's mouth formed the words "thank you." I felt an overwhelming sense of relief for her as I sensed just how important having a will was to her.

I later learned that Debbie requested that the ventilator be removed as soon as I left. She passed away quietly a short time later. Two days later, I received a call from a representative from the Social Security administration, requesting verification of Debbie's bequests and wishes. Debbie's executrix had applied for benefits for Debbie's children. I sent the verification and again felt relief that the children were getting the financial support that Debbie had intended.

My experience in granting Debbie her last wish was a curious mixture of tragedy, accomplishment, and irony. It was tragic because of Debbie's age, her troubled life, and her young children who would grow up without their mother. I felt a sense of accomplishment because I able to use my legal skills to truly help someone who was in dire need of a lawyer. The irony in this terrible situation was that any of the lawyers that Debbie had called could have spent a few short hours to act in the spirit of pro bono publico; and thus gain some measure of esteem for our noble, yet misunderstood profession.

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Contributions to Judicial Candidates

By Charles McElwee

Several recent newspaper articles have reported on the analyses made by the People=s Election Reform Coalition (PERC) of campaign contributions from business interests to successful gubernatorial and legislative candidates in the 1996 election. These PERC articles led The Charleston Gazette to editorialize that campaign money from industry chiefs casts a shadow on state actions, leading to suspicions of government for sale. For some unexplained reason, PERC omitted from its analyses the contributions made to court candidates in that same election.

In 1998 one justice of the Supreme Court of Appeals and a number of circuit judges will be elected for unexpired terms. Two years from now another justice and all State circuit judges will be elected for full terms. It is, therefore, timely that we examine contributions to the elections of judicial candidates and consider how, as the Gazette has recently editorialized, campaign money can give an appearance of justice for sale.

The place to begin is with the West Virginia Code of Judicial Conduct, which establishes standards for the conduct of judges and candidates for judicial office. The Code (1) directs a candidate for judicial office at the start of the campaign to Ainstruct his or her campaign committees to solicit or accept only contributions that are reasonable under the circumstances@; (2) permits campaign committees of a judicial candidate to solicit and accept Areasonable campaign contributions@ from the public generally and Afrom lawyers@; and (3) declares that Acampaign contributions of which a judge has [actual or circumstantially-inferred] knowledge, made by lawyers or others who appear before the judge, may be relevant to disqualification [under the disqualification section of the Code].@ While a candidate for judicial office is barred from personally soliciting or accepting campaign contributions, the candidate is allowed to learn from various sources who has contributed and the amount of contributions to his or her election campaign.

The Code thus recognizes that election campaign contributions of which a judge has knowledge -- even if only by inference -- may be unreasonable even though they are within the limits allowed by law. There also may be Acircumstances@ which render campaign contributions unreasonable when but for such Acircumstances@ the same contributions would be reasonable. Either the unreasonableness of contributions or their unreasonableness under the circumstances may cause a judge's impartiality to be reasonably questioned in a proceeding before the judge, and require, under the Code, his or her disqualification in that proceeding.

The standard declared by the State Supreme Court of Appeals for determining a judge's disqualification is whether a reasonable and objective person knowing all the facts -- in this case the amount and circumstances of campaign contributions to a judge and the judge's actual or inferred knowledge thereof -- would harbor doubts concerning the judge's impartiality in a particular case pending before the judge. Stated somewhat differently, the crucial question is: do the amounts and circumstances of campaign contributions to a judge create an appearance of impropriety for the judge to preside in a given case? Our highest State Court has said that if the circumstances offer a Apossible temptation@ to the average person as a judge not to hold the balance nice, clear and true between the parties, a judge should step aside.

Let us consider some concrete instances in which contributions to a judge's election campaign, when viewed in light of the Acircumstances,@ might cause a harboring of doubts of judicial impartiality, an appearance of impropriety, or a Apossible temptation.@ While the assumed facts are not based on any actual situation, they could readily occur in a judicial election.

Assume that a lawyer for the plaintiff in a case pending before a judge contributed, along with his or her spouse, $4,000 ($2,000 in the Primary Election and $2,000 in the General Election) in connection with the judge's currently on-going campaign for reelection. The defendant and the defendant's lawyer have made no contribution to the judge. Would you harbor doubts concerning the judge's impartiality in the case? Would these circumstances, in your opinion, give an appearance of impropriety for the judge to preside over the case and make rulings therein? The same questions may be asked if the lawyer for the defendant and the lawyer's spouse had made the contributions.

Assume that a lawyer for the plaintiff in a case pending before a judge contributed, together with other lawyers in the same law firm, and their spouses, $8,000, $10,000, or even $20,000 to the judge's current campaign for reelection, while the defendant's attorney and other lawyers in the same firm and their spouses have made no contributions to the judge's campaign. Would you harbor doubts concerning the judge's impartiality in the case? Again, the same question may be asked if the defendant's lawyer and his firm colleagues and their spouses had been the ones who had contributed large amounts to the presiding judge.

Finally, assume that a lawyer for the plaintiff in a case pending before a judge is a member or part of a class -- say of personal-injury lawyers representing almost no one but plaintiffs or of defense litigators representing almost no one but defendants -- and the lawyer, together with the partners and associates in his or her law firm, their spouses, and other lawyers in the class of which the lawyer is a part, contributed in the judge's preceding election by far the greatest percentage (say 50%, 60% or 70%) of the judge=s election campaign contributions. Would you harbor doubts concerning the judge's impartiality or create a Apossible temptation@ to the average judge not to hold the balance nice, clear and true between the parties?

Here is a reason why you may. Assume that a judge of a circuit court won an election a couple of years ago to fill a vacancy for an unexpired eight-year term and intends to run for the full term two years hence. That judge knows, or can reasonably be inferred to know, two things:

First, that in the recent election 60% of the contributions to his or her campaign came from a class of lawyers who, one would reasonably assume for present purposes, share common professional or economic interests that may be helped or hurt by rulings of the judge.

Second, the judge knows that in two years' time substantial contributions will have to be secured again if the election is to be won.

Since the judge knows the principal source of campaign funds in the last election came from a particular class of contributors and that this source can be tapped again in the forthcoming election, would it not create an appearance that the judge may carefully craft judicial rulings so as to preserve the support of the very class that has been, and can be again, the major source of campaign contributions? Wouldn't these circumstances cause you to harbor doubts about the judge's impartiality or create a Apossible temptation@ to the average judge not to hold the balance nice, clear and true between the parties.

As a general rule, candidates for judicial office get comparatively little attention even though the judiciary is of at least as much importance as the executive and legislative branches of government. There are exceptions. A particular candidate may get a lot of attention and attract considerable financial and organized support, although for the wrong reason -- namely, a belief that the candidate may inject his or her political allegiances or personal views into the task of judging. In such an instance, considerable support is likely to come from those who share those allegiances or views and who will benefit from slanted judgments based thereon. Such supporters don't want a conscientiously impartial judge; they want a judge who will be favorable to them. That kind of interest in the campaign of a judicial candidate is to be abhorred. It demeans the office of judge and destroys the public's confidence in the integrity and impartiality of the judiciary. Unfortunately, a candidate for judge is not likely to garner a lot of enthusiastic support merely because the candidate is professionally competent, scrupulously impartial, independent and fair.

The pressure put on judicial candidates to raise campaign money and a willingness of contributors to give to candidates from whom they expect an unbalanced promotion of their views may tempt candidates to violate the Code of Judicial Conduct by making statements that commit, or appear to commit, the candidate with respect to cases, controversies or issues that are likely to come before the candidate as a judge.

The Code of Judicial Conduct, as it is presently worded, is inadequate to deal with the appearances of impropriety that contributions to judicial candidates may cause. The admonitions of the Code that judicial candidates should accept only Areasonable contributions@ and Acontribution that are unreasonable under the circumstances@ are simply too vague for standards of conduct in election campaigns.

It is therefore proposed, for discussion purposes, that the Supreme Court of Appeals amend the Code of Judicial Conduct to provide specific rules for the disqualification of judges resulting from contributions to their election campaigns.

The proposal is that disqualification would be required when contributions to the judge=s current or last campaign for election as judge exceeded a certain amount from lawyers and/or their clients in a case pending before the judge or from a class of which the lawyer or party is clearly a part. The limitations on contributions for disqualification purposes would have to extend beyond the party or lawyer to their spouses and minor children, to those in legal practice with the lawyer, and to the officers and political action committees of a party which is a corporation or other entity.

This rule would take some time and care to draft. It would have to be precisely drawn. Such a rule would accomplish two objectives.

First, it would tell judicial candidates what campaign contributions are unreasonable and the Acircumstances@ which make campaign contributions unreasonable. They will no longer have to guess what they may be.

Second, and even more important, it would maintain the public's confidence in the impartiality of our judges and fundamental fairness of the proceedings over which they preside.

The contributors and the amounts of contributions to judicial candidates will undoubtedly be scrutinized and publicized over the next couple of years as never before. In the absence of reform, the continuation of past practices will undoubtedly create appearances of impropriety and undermine the public's respect for the impartiality and fairness of our judicial system. We must act now to head off what is otherwise bound to happen.

Whether the proposal outlined above is the best approach can be debated. Perhaps there is a better one. In any case, however, the West Virginia State Bar and the Supreme Court should give the matter of contributions to the election campaigns of judicial candidates their immediate and urgent attention.

Mr. McElwee is a Charleston lawyer.

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SUPREME COURT PAGE

Robin Jean Davis, Chief Justice

I. Court Sessions Conducted in Morgantown and Wheeling

The Court recently had the privilege and honor to conduct a session at the WVU College of Law and in the historic City of Wheeling, birthplace of our State. The members of the Court believe that courts do best when they are closest to the people and when they are open in every way possible. The Court intends to continue to expand the vision of holding sessions in places other than Charleston. Plans for a session to be held in the Eastern Panhandle region in the fall are currently underway.

The Court thoroughly enjoyed the session at the College of Law. It is always a great pleasure to meet with law students. The students remind us of our own hopes, dreams and fears and of the fact that we all remain students of the law. We appreciated the opportunity to visit with the students, faculty and staff.

The Court felt a tremendous sense of history in conducting a session in Wheeling. Wheeling was the crucible of West Virginia=s formation. In Wheeling the ideals of liberty and justice animated an entire generation, as we made the break from the aristocratic system of the Old Dominion.

The delegates to the First Wheeling Convention of 1861 were a remarkable mixture of people including farmers, lawyers, ministers, doctors, merchants, mechanics, school teachers, and tradespeople. They were creative thinkers and eloquent speakers who worked to form our new state. This Court still refers to the Constitutional Debates and we were pleased to present a bound copy of the Debates to be permanently placed in Independence Hall.

II. A Tribute to Franklin D. Cleckley

At the WVU College of Law, the Court also enjoyed the privilege of celebrating one of the many achievements of my friend and teacher, Franklin D. Cleckley. A bound copy of AA Tribute to Franklin D. Cleckley: A Compendium of Essential Legal Principles From His Opinions as a Justice on the West Virginia Supreme Court of Appeals@ was presented to former Justice Cleckley. The tribute was authored by me and Louis J. Palmer, Jr. who was one of Justice Cleckley=s law clerks. It was published by the Court in association with the Board of Editors of Volume 100 of The West Virginia Law Review.

The purpose of the Tribute was twofold: first, to set out the legal principles Justice Cleckley etched into law as syllabus points; and second, to preserve in one compendium the genius of the man who wrote 112 majority opinions during his tenure as a Justice. Justice Cleckley=s scholarly work will extend well into and past the twenty-first century. He enriched the jurisprudence of our state and brought vision to the Court.

III. The Rules of Civil Procedure

On February 19, 1998, the Court entered an Order approving, with modifications, the amendments to the West Virginia Rules of Civil Procedure. The amended Rules took effect on April 6, 1998. The revisions are the result of a lengthy and substantive process prompted by the extensive revisions in 1993 to the Federal Rules of Civil Procedure.

The Court appointed a Rules Advisory Committee made up of practicing attorneys, judges and law professors. The Committee was charged with the task of conducting an extensive review of the Rules. The committee submitted its report to the Court in April, 1997, and a comment period was provided until December, 1997.

Many significant changes have been incorporated in the Rules that lawyers understand. I am highlighting a few of the changes.

An effort has been made to rewrite Rule 4 regarding summons so that it is easier to understand. The plaintiff can choose to take responsibility for serving the summons and complaint or the task can be delegated to the clerk. If the plaintiff chooses to have the clerk take responsibility for service, there are several methods available. If service by mail is chosen, one should note that the rules for default judgment are altered. Significantly, Rule 4(k) shortens the period during which the plaintiff must serve the summons and complaint from 180 to 120 days.

Rule 5 regarding service and filing of pleadings and other papers has also been changed in large part to reduce the burden on circuit clerks for filing and maintaining discovery material. The filing of depositions, interrogatories, requests for admission, requests for production and responses to these documents is now forbidden unless ordered by the Court. Of course, one may still attach discovery materials to other documents that must be filed such as motions for summary judgment. Lawyers will have custodial responsibility for discovery documents for a period of one year from the final disposition of the action.

Under the new time frames provided in Rule 6 all counsel should have sufficient time to prepare for motion practice. Opposing counsel will be afforded a minimum of one weeks notice prior to a hearing on most motions regardless of the method of service and shall be given time to prepare a response. The changes also set forth specific deadlines for the filing of materials in opposition to the motion in order to provide the moving party with a reasonable opportunity to review the objections before the hearing is conducted.

Rule 11 regarding the signing of pleadings, motions, other papers, representations to court and sanctions has been modified to include what has been termed under the federal rules as a Asafe harbor@ provision. Under the Asafe harbor@ provision, the party moving for sanctions cannot file a motion with the Court until 21 days after service of the motion on the opposing party. This time provides the offending party an opportunity to correct the alleged error. If the offending party does so, the matter is dropped without court involvement. The goal is to make Rule 11 practice even more sensible and reasonable.

Rule 15 regarding amended and supplemental pleadings has been substantially changed. The change allows a new party to be brought in by amendment so long as the requisite notice and knowledge were obtained within the period provided by Rule 4(k) for service of the summons and the complaint.

The Court=s power to manage litigation is made even more explicit in Rule 16 regarding pretrial conferences, scheduling and management. The Court may order a plaintiff to present the liability portion of its case first so that the Court can rule on judgment as matter of law. The Court may also establish time limits for the presentation of evidence.

Rule 23 regarding class actions has been completely rewritten and essentially adopts the text of the current Rule 23 of the Federal Rules of Civil Procedure. The goal was to replace an outdated analytical framework with a more practical, useful, efficient and fair approach to determining the propriety of a proposed class action.

Significant changes are incorporated in Rule 30 regarding depositions upon oral examination. Perhaps the most important is the adoption of the federal rule regarding lawyer conduct at depositions. Specifically, the changes provide that Aany objection to evidence during a deposition shall be stated concisely and in a non-argumentive and non-suggestive manner@. Moreover, Aa party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a [Motion to Terminate the deposition]@.

With respect to interrogatories to parties, Rule 33 has been revised to limit the number of interrogatories to forty. Objections must be stated with specificity and objections not timely stated may be deemed waived unless the parties= failure to object is excused by the Court for good cause shown.

Rule 37 regarding the failure to cooperate in discovery has been amended to require attorneys seeking orders to compel discovery to certify Athat the movant in good faith has conferred or has attempted to confer with the person or party failing to make the discovery in an effort to secure the information or action without court action@. This represents an effort to reduce the court=s involvement in discovery disputes. Lawyers representing state agencies should take particular note that a previous subsection of the Rule providing that expenses and fees may not be awarded against the State has been eliminated.

Rule 65 regarding injunctions has been substantially changed. The new rule follows the federal rules and specifically details the procedure one must follow in order to obtain an injunction.

Similarly, Rule 71B regarding applications for the issuance of extraordinary writs has been completely overhauled. The procedural aspects of extraordinary writ practice are simplified. There is no federal counterpart. It should also be noted that the Rule applies only to writ practice in the circuit courts. The procedure for requesting an extraordinary writ from the Supreme Court is not governed by the Rules of Civil Procedure.

This overview is not intended as a comprehensive review of the new Rules. There are significant changes with respect to many procedures. Lawyers are encouraged to obtain a copy of the amended rules. Lexis Law Publishing (formerly Michie=s) published and made available the amended rules in supplement form as of April 1. A copy is also available from the Supreme Court Clerk=s office at a cost of $25. Moreover, you may download the amended Rules from the Court=s web site, http://www.state.wv.us/wvsca

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YLS SPONSORS MEET THE JUDGES PROGRAM

The State Bar=s Young Lawyers Section has been sponsoring meetings where young lawyers can meet and talk with their local Circuit Court Judges. The Judges give their personal comments about important factors in the Judicial System. The young lawyers have the opportunity to get the Judge=s opinions on court proceedings. These meetings have been held in Charleston, Parkersburg and Wheeling. Present at the recent meeting in Wheeling from left to right, are: Judge Ronald Wilson, Judge Martin Gaughan, YLS Executive Committee Member Jennifer Keadle, Judge Arthur Recht and Chief Judge Fred Risovich.

Regional Ohio law firm seeks to establish relationship with West Virginia small practitioner for referral of routine pre and post judgement hearings throughout West Virginia. Please send all inquiries to May BB001, c/o The West Virginia State Bar, 2006 Kanawha Boulevard, E., Charleston, WV 25311.

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Bulletin Board

BUSINESS ATTORNEY POSITION

Medium sized Huntington law firm has immediate opening for business law associate. Must have 2-4 years experience in general business and commercial law and/or estate planning and probate matters. Undergraduate business degree and general familiarity with tax law a plus, but not required. Send resume to:

Lamp, O=Dell, Bartram Entsminger,

Levy & Trautwein, P.L.L.C.

Post Office Box 2488

Huntington, WV 25725-2488

ATTORNEY POSITION AVAILABLE

A small law firm in downtown Elkins is interested in hiring an attorney to practice in the area of employment law, insurance law, civil litigation, and ethics matters. Please forward a resume and cover letter with salary requirement to Office Administrator, P.O. Box 983, Elkins, WV 26241.

Cathering D. Munster, Esquire

Appeallate Advocate

With Over 15 Years of Experience

In State and Federal Appeallate Practice

For Appellate Assistance, Representation,

Or More Information Contact:

Catherine D. Munster, Esquire

McNeer, Highland, McMunn and Varner, L.C.

Post Office Drawer 2040

Clarksburg, WV 26302

(304) 626-1100

SEEKING ASSOCIATE ATTORNEY

Northern Panhandle law firm seeks associate attorney with 2-4 years experience to work in civil litigation with emphasis on medical malpractice. Competitive salary/benefits package provided. Please forward resume to Law Offices, P.O. Box 6336 Wheeling, WV 26003.

ATTORNEY POSITION AVAILABLE

Johnson, Simmerman & Broughton, L.C., is interested in hiring a litigation attorney with 2-3 years of experience. Resumes may be sent to Frank E. Simmerman, Jr., Johnson, Simmerman & Broughton, L.C., P.O. Box 150, Clarksburg, WV 26302-0150, or to fes@access.mountain.net. All applications will be held in strictest confidence.

ROBERT M. LEVY

and

RANDALL L. TRAUTWEIN

of

LEVY, TRAUTWIEN & PANCAKE, L.C.

have become members of the firm of

LAMP, O=DELL,

BARTRAM & ENTSMINGER, PLLC

which has changed its name to

LAMP, O=DELL, BARTRAM,

ENTSMINGER, LEVY & TRAUTWEIN, PLLC

Suite 700

River Tower

1108 Third Avenue

Huntington, WV 25701

Telephone (304) 523-5400

Telecopier (304)523-5409

January 1, 1998

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CLE CALENDAR

The Following Seminars Have Been Approved for MCLE Credit in WV. Please

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WEST VIRGINIA STATE BAR ENVIRONMENTAL COMMITTEE

PRESENTS THE ENVIRONMENTAL ENFORCEMENT SEMINAR

JUNE 10, 1998

UNIVERSITY OF CHARLESTON  APPALACHIAN ROOM - GEARY STUDENT UNION

Friday, April 3, 1998 - 9:30 a.m. - Lawyer Disciplinary Board Hearing - Charleston.

Tuesday, April 7, 1998 - 11:00 a.m. - Administrative Law Ethics Sub Committee Meeting - State Bar Center.

Wednesday, April 8, 1998 - 9:30 a.m. - Lawyer Disciplinary Board Hearing - Beckley.

Wednesday, April 8, 1998 - 10:00 a.m. - Alternate Dispute Resolution Sub Committee Meeting - State Bar Center - Charleston.

Thursday, April 9, 1998 - 11:00 a.m. - IOLTA Advisory Committee Meeting - State Bar Center.

Thursday, April 9, 1998 - 1:00 p.m. - Legal Services for the Poor Committee Meeting - State Bar Center.

Thursday, April 9, 1998 - 2:00 p.m. - Legal Services for the Poor Symposium - State Bar Center.

Tuesday, April 14, 1998 - 12:00 noon - Lawyer Advertising Commission Meeting - State Bar Center.

Tuesday, April 14, 1998 - 3:00 p.m. - Alternate Dispute Resolution Training Sub Committee Meeting - State Bar Center.

Wednesday, April 22, 1998 - 2:00 p.m. - Commission on Children and the Law Meeting - State Bar Center.

Thursday, April 23, 1998 - 9:30 a.m. - Commission on Children and the Law Meeting - State Bar Center.

Thursday, April 23, 1998 - 3:00 p.m. - Workers' Compensation Committee Meeting - State Bar Center.

Tuesday, April 28, 1998 - 2:00 p.m. - Government Lawyers Committee Meeting - State Bar Center.

Wednesday, April 29, 1998 - 9:00 a.m. - Alternate Dispute Resolution Sub Committee Meeting - State Bar Center.

Wednesday, April 29, 1998 - 10:00 a.m. - Alternate Dispute Resolution Committee Meeting - State Bar Center.

Wednesday, April 29, 1998 - 12:00 noon - TechNet Committee Meeting - State Bar Center.

Wednesday, April 29, 1998 - 3:00 p.m. - Lawyer Disciplinary Diversion Committee - State Bar Center.

Thursday, April 30, 1998 - 10:00 a.m. - Commission on the Future of the Judiciary Meeting - Charleston.

Friday, May 1, 1998 - 9:00 a.m. - 5:00 p.m. - Lawyers Information Service - State Bar Center.

Tuesday, May 5, 1998 - 9:00 a.m. - Lawyer Disciplinary Board Hearing - Charleston.

Thursday, May 7, 1998 - 11:00 a.m. - Client Protection Fund Board of Trustees - State Bar Center.

Thursday, May 7, 1998 - 1:00 p.m. - Unlawful Practice Committee Meeting - State Bar Center.

Tuesday, May 12, 1998 - 12:00 noon - Law and Medicine Committee Meeting - State Bar Center.

Thursday, May 14, 1998 - 12:00 noon - Lawyer Advertising Sub Committee Meeting - State Bar Center.

Monday, May 25, 1998 - Memorial Day - State Holiday - State Bar Center will be closed.

Tuesday, June 2, 1998 - 12:00 noon - Administrative Law Committee Meeting - State Bar Center.

Lawyer Information Service

The undaunted efforts of these volunteer lawyers have helped West Virginia citizens for approximately fifteen years.

Attorneys who have operated the service since the last reporting in the West Virginia Lawyer are:

*Cynthia A. Majestro - Meyer, Darragh, Buckler, Bebenek & Eck

*Karyn M. Schmidt - Meyer, Darragh, Buckler, Bebenek & Eck

*E. William Harvit - Harvit & Schwartz, L.C.

*Ann Haight Seitz - Kay, Casto, Chaney, Love & Wise

*Tom Trent - Public Service Commission

*Daniel R. Schuda - Stepte & Johnson

*Robert Tweel - Jackson & Kelly

*Gretchen Callas - Jackson & Kelly

*Lonnie Simmons - Law Office of P. Rodney Jackson

*Monika Hussell - Jackson & Kelly

*Karen Rexing - Jackson & Kelly