On Friday, June 7, 2024, the West Virginia Supreme Court of Appeals granted a writ of prohibition preventing the Lawyer Disciplinary Board from enforcing an order compelling a circuit court judge to testify and provide documents in a lawyer disciplinary matter.

The case stems from consolidated disciplinary proceedings regarding several attorneys who were allegedly involved with a program operated by the City of St. Marys called “Slow Down for the Holidays.” Through the program, criminal charges would be dismissed if the accused donated money, gift cards or items to benefit needy families and seniors during the holiday season.

In late 2020, one attorney, Brian Carr, offered to dismiss criminal charges against a client, Mary Ward, in exchange for a $1,500 payment to the program. Ward’s attorney, Judith McCullough, accepted the offer despite having reservations. McCullough then contacted Circuit Judge Timothy Sweeney of Pleasants County to express concerns about the program’s ethical issues. Judge Sweeney proceeded to notify the Office of Disciplinary Counsel and Judicial Investigation Commission about the program.

During discovery in the disciplinary proceedings, Attorney Carr sought to depose Judge Sweeney regarding his report of the program. Carr served Sweeney with a subpoena to testify and provide communications with regulatory bodies. Sweeney filed a motion to quash, arguing the documents and testimony were protected under judicial deliberative privilege. However, the Hearing Panel Subcommittee of the Lawyer Disciplinary Board denied the motion.

In its ruling, the Supreme Court found the HPS clearly erred in ordering Sweeney’s deposition, as the testimony and records sought were covered by judicial deliberative privilege. The privilege bars compelling a judge to disclose mental processes or reasoning behind official acts. While judges can be called to testify in limited situations, the party seeking information must meet threshold requirements.

The Court held Sweeney’s report of potential ethical issues was within the scope of his official duties as a judge. As such, his reasoning and communications are shielded from discovery by the privilege. In issuing the writ of prohibition, the Supreme Court prevents enforcement of the HPS order and deposition of Judge Sweeney in the ongoing lawyer disciplinary process. The consolidated proceedings regarding the attorneys will continue without Sweeney’s compelled involvement.

A copy of the original filing can be found here.