Cunningham v. Sommerville
388 S.E.2d 301, 182 W. Va. 427, 1989 W. Va. LEXIS 268 (1989)
Rule of Law:
A full-time in-house corporate counsel, whose employment contract prohibits engaging in a separate private law practice, may decline court-appointed representation of indigent criminal defendants if such appointment would impose an unreasonable financial burden, specifically by risking the loss of their primary employment, under Rule 6.2(b) of the West Virginia Rules of Professional Conduct.
Facts:
- Paula M. Cunningham is an attorney employed full-time as general counsel by Go-Mart, Inc. since August 1, 1987, with its principal office in Braxton County, West Virginia.
- As a condition of Ms. Cunningham’s employment by Go-Mart, she is prohibited from having any outside employment commitments or engaging in a separate private law practice.
- Ms. Cunningham is a salaried employee subject to Go-Mart’s personnel regulations, typically working 50-75 hours per week, and has no private secretary, office space, equipment, supplies, or criminal law reference materials separate from Go-Mart.
- All of Ms. Cunningham’s files and computer data bank are the property of Go-Mart and accessible by other Go-Mart employees, preventing her from ensuring client confidentiality for any client other than Go-Mart.
- Ms. Cunningham maintains no legal malpractice insurance coverage for legal representation outside of Go-Mart.
- Since June 14, 1989, the Circuit Court of Braxton and Clay Counties appointed Ms. Cunningham to represent 43 indigent criminal defendants charged with 75 crimes.
Procedural Posture:
- Paula M. Cunningham was employed full-time as general counsel for Go-Mart, Inc. in Braxton County, West Virginia.
- Since June 14, 1989, the Circuit Court of Braxton and Clay Counties (the trial court) appointed Ms. Cunningham to represent 43 indigent criminal defendants in 75 crimes.
- Ms. Cunningham filed a motion with the trial court to be relieved as counsel in these matters.
- The trial court denied Ms. Cunningham's motion, stating its belief that it was obligated to make the appointments based on prior rulings and her possession of a law license.
- Ms. Cunningham thereafter initiated an original jurisdiction proceeding, seeking a writ of prohibition against the two judges of the Fourteenth Judicial Circuit and prosecuting attorneys in the Supreme Court of Appeals of West Virginia to bar enforcement of the trial court’s ruling.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does Rule 6.2(b) of the West Virginia Rules of Professional Conduct allow a full-time corporate house counsel, whose employment prohibits outside legal practice, to avoid court appointments to represent indigent criminal defendants on the grounds that such appointments would impose an unreasonable financial burden?
Opinions:
Majority - McHUGH, Justice
Yes, Rule 6.2(b) of the West Virginia Rules of Professional Conduct allows a full-time corporate house counsel, whose employment prohibits outside legal practice, to avoid court appointments to represent indigent criminal defendants if such appointments would impose an unreasonable financial burden. The Court found that the trial court misunderstood previous decisions, which did not mandate that every licensed attorney accept criminal appointments, but rather focused on the proper sequence for appointing qualified private attorneys. Applying Rule 6.2(b), which permits avoiding appointment for "good cause" if it's "likely to result in an unreasonable financial burden on the lawyer," the Court concluded that compelling Cunningham to accept appointments would lead to the "virtually certain loss of her full-time employment." This, the Court reasoned, would constitute a "financial sacrifice so great as to be unjust," thereby satisfying the "good cause" exception. The opinion also referenced `Jewell v. Maynard` and `State ex rel. Partain v. Oakley` regarding the unconstitutionality of compelling service that substantially impairs an attorney’s remunerative practice, and cited American Bar Association Standards for Criminal Justice, which do not advocate for requiring every lawyer to provide representation.
Analysis:
This case significantly clarifies the scope of an attorney's obligation to accept court appointments, particularly for those in non-traditional legal employment. It establishes a robust "unreasonable financial burden" exception under Rule 6.2(b) of the Rules of Professional Conduct, offering protection to full-time in-house counsel whose employment explicitly forbids outside practice. The ruling reinforces that the duty to provide indigent defense is not limitless and must yield to situations where it would result in severe financial detriment, such as job loss. This decision serves as an important precedent for balancing pro bono responsibilities with the realities of diverse legal careers, impacting how courts identify and appoint counsel in indigent cases.
