Supreme Court rules tape of alleged drug buy is admissible - Beckley, Bluefield & Lewisburg News, Weather, Sports

Supreme Court rules tape of alleged drug buy is admissible

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The state Supreme Court says an audio recording of a police informant allegedly buying cocaine from an attorney in his law office can be admitted into evidence.

The court, with one dissent, found Raleigh County Circuit Judge Robert A. Burnside Jr. erred when he granted defendant Richard E. Hardison's motion to suppress the recording on the grounds it violated the West Virginia Wiretapping and Electronic Surveillance Act.

Hardison, a Raleigh County attorney, is charged with delivering a controlled substance and conspiracy to deliver a controlled substance.

His attorney, Timothy J. LaFon of Ciccarello, DelGuidice & LaFon, had argued the recording wasn't admissible because the conversation took place in a law office. Prosecutors, however, sought a writ of prohibition from the high court to vacate Burnside's ruling, arguing West Virginia's Electronic Surveillance Act "cannot be construed in a vacuum and must be considered within the contest and purpose of the entire statute."

Justice Menis E. Ketchum II, writing for the majority, said suggesting the statute shields lawyers involved in criminal activity from being subject to wiretapping or electronic surveillance simply because the alleged wrongdoing occurs in their law office "would lead to an absurdity."

He pointed out Hardison was not acting in his capacity as a lawyer in the April 6, 2012 conversation with the police informant, nor was the informant seeking legal advice. The informant, who Hardison had at one time represented, allegedly picked Hardison up at his home and drove him to his law office, Ketchum noted. Their conversation in the car and at Hardison's office, including the alleged drug buy, was taped.

Ketchum pointed out the two "did not discuss legal matters or matters that were attorney-client in nature" on tape.

"The attorney-client privilege 'belongs to the client,'" he added. "...The confidential informant, as the putative client in this case, has not asserted the privilege. Because the conversation was not attorney-client in nature, the circuit court erred by suppressing the audio recording."

But the lone dissenting opinion, filed by Ohio County Circuit Judge David Sims, suggests the starting point for interpreting a statute "is the language of the statute itself," which he said in this case specifically precludes law enforcement from electronically intercepting any communications emanating from the office of any attorney licensed to practice law in West Virginia. Sims and Fayette County Judge John W. Hatcher sat in place of Justices Robin Davis and Margaret Workman, who were disqualified from hearing the case.

"The majority bases its rationale on the premise that 'lawyers engaging in alleged criminal activity should be investigated and prosecuted to the same extent as non-lawyers,'" Sims wrote. "… however, the West Virginia Legislature...definitively determined that protecting the sanctity of the attorney-client relationship from undo intrusion by law enforcement clearly outweighed law enforcement's interests in utilizing the weapon of electronically-intercepted communications emanating from a law office."

He said the majority interpretation "opens a Pandora's box of problems and challenges" to open communications between attorneys and clients.

"In permitting electronically-intercepted non attorney-client communications emanating from a law office...the majority has placed the sanctity of the attorney-client relationship on a dangerous slope," Sims wrote. "If the majority opinion does not cause significant concern for all attorneys and their clients in this state, it ought to."

In concurring opinions, however, Justices Brent Benjamin and Allen H. Loughry disagreed.

Benjamin said he's confident the ruling "fully protects legitimate claims of attorney-client privilege" while also recognizing the state's duty to investigate and prosecute serious criminal misconduct.

"The weighty incentives and protections which are part of the framework of electronic surveillance jurisprudence in this state, as well as the ongoing judicial oversight present in such cases, are more than adequate measures to safeguard individual privileges and rights while ensuring that the State may properly do its duty to investigate and prosecute serious criminal misconduct," Benjamin wrote.

Loughry, meanwhile, pointed out that 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 lawyers."

"In this case, while I firmly support the staunch preservation of the attorney-client privilege, (the statute) 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," Loughry wrote.