SER State of West Virginia v. Hon. Robert A. Burnside, Jr., and Richard Hardison, Jr. (Concurring Opinion by Loughry, J.)

• Court: West Virginia Supreme Court
• Decided: April 17, 2014
• Docket: 13-0733
• Status: Separate

Opinion

No. 13-0733 - State of West Virginia ex rel. State of West Virginia v. The Honorable Robert A. Burnside, Jr., Judge of the Circuit Court of Raleigh County; and Richard E. Hardison, Jr. FILED April 17, 2014 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA LOUGHRY, Justice, concurring:

As suggested by the majority, the notion that West Virginia Code § 62-1D-9(d)

permits an alleged drug dealer to use a law office as an impenetrable sanctuary for drug

trafficking and trade is absurd. I agree that West Virginia Code § 62-1D-9(d) is intended to

prevent the interception or monitoring of attorney-client privileged communications through

wiretapping or electronic surveillance and that the case at bar does not involve such

privileged communications. Rather, in this case, a member of the West Virginia bar, who

allegedly utilized his law office like a common street corner for drug trade, seeks to cloak

it with the inviolable protection afforded to the citizens of this State when engaged in

privileged discussions with their lawyer.

Sadly, the parasitic effects of drug addiction infiltrate every aspect of society.

Indeed, cocaine addiction in particular leaves a path of destruction in its wake, causing

violence and crime across our nation, including West Virginia. Every day, this Court

confronts the devastating effects of cocaine addiction in cases involving drug-addicted

parents who physically and sexually abuse their children or who allow others to do so; infants

who are suffering from harmful, prenatal exposure to cocaine; and persons who have

committed robberies, burglaries, malicious assaults, murders, and countless other crimes either seeking to sustain their cocaine addiction or acting while under the influence of

cocaine. The use of this dangerously addictive drug destroys families, leads to the loss of

employment, and results in the overcrowding of our prison system. There is simply no aspect

of society that escapes the catastrophic effects of this insidious drug.

That said, irrespective of the nobility of the cause underlying the legal issues

presented in this case, I firmly believe that attorney-client communications must be jealously

guarded and do not lightly disregard these concerns, even in the egregious fact pattern

presented herein. It has been observed that

[t]he attorney-client privilege is one of the oldest recognized privileges for confidential communications. Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584 (1981); Hunt v. Blackburn, 128 U.S. 464, 470, 9 S.Ct. 125, 127, 32 L.Ed. 488 (1888). The privilege is intended to encourage “full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.” Upjohn, supra, at 389, 101 S.Ct. at 682.

Swidler & Berlin v. U.S., 524 U.S. 399, 403 (1998). However, the United States Supreme

Court has recognized that, in certain circumstances, the privilege “ceases to operate” as a

safeguard on “the proper functioning of our adversary system.” U.S. v. Zolin, 491 U.S. 554,

562 (1989).

2 In this case, while I firmly support the staunch preservation of the

attorney-client privilege, West Virginia Code § 62-1D-9(d) cannot reasonably be read to

elevate communications made by a lawyer in the course of his alleged criminal enterprise to

those sacrosanct communications between an attorney and his/her client simply because a

crime may have been committed in a law office.

For these reasons, I concur.