dissenting:
The majority opinion imagines that lawyers must crawl into a cocoon whenever they accept a pro bono public office. In erecting this vision of public service, the majority ignores the institutional realities of our state. The West Virginia University system does not need a full-time board of regents. Accordingly, the members of the board of regents are employed on an unpaid, part-time basis. An unpaid citizen board allows the state to draw upon the talents of our leaders in medicine, business, education and law. Obviously, however, these high quality volunteers must be allowed to earn a living.
The majority suggests that Attorney Frame has violated the Code of Professional Responsibility, D.R. 9-101(B) which states:
(B) A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee. [Emphasis supplied]
They suggest that suing Dr. Graf is tantamount to suing the board of regents itself. In short, the majority opinion begs the question whether Mr. Frame had “substantial responsibility” over the day-to-day operation of the West Virginia University Medical Center.
But an examination of Mr. Frame’s duties as a Regent under W.Va.Code 18-26-8 [1981] reveals that he had no substantial responsibility over the matter in which he accepted employment. To support their position the majority cite Bachman v. Pertschuk, 437 F.Supp. 973 (D.D.C.1977) (where the Court prohibited an attorney employed by the FTC from suing the FTC); Matter of Shear, 72 N.J. 474, 371 A.2d 282 (1977) (where the court held that an attorney-public official should not represent clients in a matter that must come before the body of which he is a member). The present case does not fall into either pattern. At-*291tomey Frame is not suing the board of regents. Nor is he representing someone in a matter that will come before the board of regents. The “substantial responsibility” language in D.R. 9-101(B) is not gratuitous. Rather it was designed to limit the purview of D.R. 9-101(B) so that cases where a potential conflict of interest is de minimis would not be affected. “The great majority of courts interpreting this rule have concluded ‘substantial responsibility’ refers to actual rather than theoretical conduct.” Cleary v. District Court, 704 P.2d 866, 870 (1985) citing State v. Borg, Inc., F.Supp. 178 (N.D.Ill.1982); Kadish v. Commodity Futures Trading Commission, 548 F.Supp. 1030 (N.D.Ill.1982); In Re Asbestos Cases, 514 F.Supp. 914 (E.D.Va.1981); International Union, United Automobile Aerospace and Agricultural Implement Workers of America (UAW) v. National Caucus of Labor Committees, 466 F.Supp. 564 (S.D.N.Y.), aff'd 607 F.2d 996 (2d Cir.1979).
ABA Formal Opinion 342, which reviews the origins, purposes and contemporary applications of DR 9-101(B), concludes that the prohibition against a government official’s involving himself in potentially improper employment requires some degree of personal involvement in the matter in question. Formal Op. 342 at 118. The conclusion seems reasonable when one considers that DR 9-101(B) requires substantial responsibility “in" some matter, rather than substantial responsibility “for” some matter. The ABA states:
As used in DR 9-101(B), “substantial responsibility” envisages a much closer and more direct relationship than that of a mere perfunctory approval or disapproval of the matter in question. It contemplates a responsibility requiring the official to become personally involved to an important, material degree, in the investigative or deliberative processes regarding the transactions or facts in question. Thus, being the chief official in some vast office or organization does not ipso facto give that governmental official or employee the “substantial responsibility” contemplated by the rule in regard to all the minutiae of facts lodged within that office. [Emphasis supplied]
There is no proof or even allegation that Mr. Frame had any “substantial responsibility” in supervising Dr. Graf’s medical practice. Accordingly, DR 9-101(B) should not act as a bar to Mr. Frame’s representing Mr. and Mrs. Roy in their malpractice action against Dr. Graf.
Because I believe that any connection between Attorney Frame’s duties as a member of the Board of Regents and his duties as an attorney for Mr. and Mrs. Roy is completely tenuous, I cannot see how he has violated D.R. 9-101(B) or any other disciplinary rule or ethical consideration of the Code of Professional Responsibility. Finally, I note that if we erect conflict of interest rules so broad, so overreaching, and so perverse, we risk discouraging men of considerable talents from assuming part-time public offices.
Mr. Frame has a reputation at the bar for being one of this State’s finest lawyers; his service on the board of regents was undertaken, if not at great sacrifice, at least at significant opportunity cost. He brought to the State for free the skill and ability of a “high-priced” lawyer — a contribution that should not be minimized when it is recognized that the State’s low salaries usually attract only young and inexperienced lawyers to its professional service. Although Mr. Frame probably did not perform routine legal tasks for the board, he was capable of determining whether routine legal tasks were being performed competently, and he was able to give advice and guidance to the lawyers employed by the State who were doing such routine work.
If carried to its logical conclusion, the majority’s opinion today is likely to lead us one more step down the road to mediocrity. Are, for example, lawyer members of the legislature prohibited from bringing federal civil rights cases against public officials? Are lawyer members of county commissions prohibited from representing litigants in will contests simply because wills are initially probated before county clerks? It is already difficult enough to get trained *292lawyers to serve in a host of unpaid, community service positions without designing rules that actually punish lawyers for such voluntary service. Substantial conflicts of interest must, of course, be avoided, but it is not in society’s interest to create conflicts — as in this case — where none actually exist.
I am authorized to say that Justice BROTHERTON joins me in this dissent.