‹ Supreme Court Blog
State ex rel. State of West Virginia v. Burnside

State ex rel. State of West Virginia v. Burnside

Case No. 
Opinion Date: 
Opinion Author: 
Writ Granted

The state of West Virginia attempted to prosecute an attorney, Richard Hardison, in a drug case. The Raleigh County Sheriff developed evidence in the case by sending an informant wearing a "wire" into Hardison's office to attempt to purchase drugs from Hardison. Following his indictment, Hardison moved to suppress the recording, citing W.Va. Code Sec. 62-1D-9(d). The statute, as discussed below, deals with recording devices in law offices. The trial court suppressed the recording and the state sought a writ of prohibition.


Whether or not W.Va. Code Sec. 62-1D-9(d) allows evidence recorded in a law office to be utilized as evidence in a criminal prosecution.


This case touched nerves at the Court, as four different justices filed opinions. The central issue seemed to be the interpretation of the final clause of  W.Va. Code §62-1D-9(d) :

"That notwithstanding any provision of this article to the contrary, no device designed to intercept wire, oral or electronic communications shall be placed or installed in such a manner as to intercept wire, oral or electronic communications emanating from the place of employment of any attorney at law, licensed to practice law in this state."

For the dissenting Justice (Ohio County Circuit Judge David Sims, sitting by designation), this passage disposed of the case -- the use of recording devices in law offices was simply against the law and the remedy of suppression was necessary, as Judge Burnside had found, to give effect to the statute.

The majority, including Justice Ketchum, Justice Benjamin, and Justice Loughry, took a different view. Writing for the Court, Justice Ketchum explained that although the final paragraph of the statute seemed to be clear, prohibiting any electronic intercepts of communications within a lawyer's office, in fact, it had to be read together with the two previous paragraphs, which address the interception of communications covered by the attorney-client privilege.

Since these other paragraphs addressed privileged communications specifically, the Court deemed the third paragraph to be "susceptible to differing constructions." Op. at 13. Having determined that the paragraph was in need of interpretation, the Court interpreted it in light of federal Title III, which does not contain an analogous paragraph. The Court then concluded that because Title III did not contain a paragraph barring all electronic surveillance in law offices, that the West Virginia law should be interpreted as though it contained no such provision as well.

Underlying this analysis was the Court's conclusion that, if Hardison's view were to prevail: "law offices in West Virginia could become staging areas for criminal conduct." Op. at 17. The court concluded that it would be "absurd" to allow lawyers, or anyone else, to escape electronic surveillance when engaging in criminal conduct, simply because they were so fortunate as to be doing it in a law office. Op. at 18.

However, the Court did make clear that the final paragraph of the statute still has some scope. West Virginia law prevents the use of recording devices in law offices when used to record conversations that are covered by the attorney-client privilege. Therefore a conversation between client and lawyer that is about a criminal defense, for example, may not be recorded, and presumably any recording would be suppressed, as opposed to a conversation that constitutes the commission of a crime, as in the drug deal at issue in this case. This is consistent, as well, with the  Supreme Court of Appeals prior decisions on the "crime-fraud exception" to the attorney-client privilege.

In fact, the concurring Justices wrote to emphasize this specific point. Justice Benjamin indicated that "today’s holding fully protects legitimate claims of attorney-client privilege." Justice Benjamin emphasized that the statute calls for strict judicial oversight of wiretapping directed at law offices, and that the opinion in this case continues to protect legitimate uses of the attorney-client privilege.

Justice Loughry's concurrence emphasized the pernicious effects of drug use in society and emphasized how incongruous it would be if law offices could become "sanctuaries" for drug dealers:

"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."


This case thus became a contest between the relatively clear language in the statute, which, as the Court's opinion makes clear, does not actually contain a limitation of its scope to only privileged communications, and the various policy objectives cited by the Opinion and the Concurring Opinions, including primarily law-enforcement. The policy objectives won out over the statutory language this time. In the dissent's view, the case should have turned on a simple analysis:

"The clause is clear, concise, unambiguous, plain in its meaning, and means exactly what it plainly expresses. Therefore, the clause must be applied, not construed, and “judicial inquiry is complete.”

On this occasion, it was not to be.

Leave a Reply

Filtered HTML

  • Lines and paragraphs break automatically.

Plain text

  • No HTML tags allowed.
  • Web page addresses and e-mail addresses turn into links automatically.
  • Lines and paragraphs break automatically.


Contact us today to speak with a knowledgeable attorney. We offer free initial consultations and bill on a contingent fee basis — you won’t have to pay us a fee unless we collect money for you.