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Saturday, December 18, 2010

Push For National Database To Hold Bad Judges And Attorneys More Accountable

Does West Virginia Need Better Accountability For Members Of The State Bar by Jack Swint-Publisher

In May, 2008 HALT issued the nation's first comprehensive study of the systems that hold state and federal judges accountable. They ranked West Virginia 13th worst in the nation and stated that, “To shine a light on the typically secretive and toothless systems that often fail to remove abusive and incompetent judges from the bench,” Quoted HALT, Inc.

Self-described legal reformers have been pushing for a nationwide clearing house system that would make it easier to keep tabs on and punish lawyers and or judges who violate ethical, civil and criminal laws. More and more of these former officers of the courts have multi state bar licenses to continue practicing elsewhere. Or, they move out of state and begin a new practice altogether.

One current problem surfacing is that in most states, attorneys who have been suspended and even disbarred for unethical conduct are permitted to work as paralegals. In effect, they've been kicked off the team, but they're not out of the game. Because there is no bright line separating much of the work performed by paralegals from that performed by attorneys, some disbarred and suspended attorneys come dangerously close to crossing the line into unauthorized practice of law.

In fact, allowing disbarred and suspended attorneys to practice as paralegals condones unethical behavior by not adequately disciplining it. It's a practice that puts the public at risk when they seek competent ethical representation, and it creates negative perceptions of the legal profession.

Currently, “Martindale.com,” is the only search database that allows a person to search an attorneys name nationwide to inquire if that person is licensed to practice law. No information is available about complaints, sanctions etc. Each state has their own bar association that either has a search engine for members and or an office to contact. A link is provided below. But, there is no database that can be used as a crisscross directory.

There is also a need for stronger advocate changes in how complaints are decided by mostly attorneys and or other work-related colleagues. Some reformers go so far as to say average Joes, not fellow practitioners, should decide in open hearings whether a lawyer's actions warrant revoking his license.

"If a jury made up of non-lawyers is good enough to decide a murder case or a million-dollar lawsuit, it's certainly capable of determining whether a lawyer has cheated a client," says D.C. lawyer James C. Turner, executive director of the legal-reform group HALT.

Nationwide, The American Bar Association receives anywhere from 3,500 to 4,000 notices from across the country of disciplinary action each year, including multiple actions against individual lawyers. The Supreme Court disbars about 125 lawyers each year, almost always after learning of state or federal court action.

According to reports, Judges and lawyers guilty of wrongdoing, even serious felonies, usually escape with suspensions or even verbal sanctions and restitution of some sort. Widespread resistance within the legal profession prevents a more seamless system of discipline for the bad apples among the nation's 1.2 million lawyers with active licenses. The opposition stems in part from the independence of state bar associations and the belief in many states that reciprocal licensing would follow.

The latter change could require all 50 states and the District to recognize law licenses in much the same way a CDL truck driver's license is valid nationwide.

In West Virginia

There are approx 7, 328 lawyers in WV. Out of that total, 859 are inactive. Attorneys who practice law in WV do not have an option of not being members of the state bar or not paying dues. Who handles complaints or legal actions filed against them?

The Supreme Court of Appeals established an Office of Disciplinary Counsel (ODC) to prosecute violations of the Code of Judicial Conduct and the Rules of Professional Conduct. The Office of Disciplinary Counsel shall consist of separate Lawyer Disciplinary Counsel and Judicial Disciplinary Counsel. Lawyer Disciplinary Counsel shall be primarily responsible for the investigation of complaints of ethical violations by lawyers.

Accountability For Judges

The Judicial Disciplinary Counsel shall be primarily responsible for the investigation of complaints of ethical violations by judges. Notwithstanding these primary responsibilities, when circumstances warrant, Lawyer Disciplinary Counsel shall have the authority to investigate and prosecute complaints of ethical violations by judges and Judicial Disciplinary Counsel shall have the authority to investigate and prosecute complaints of ethical violations by lawyers.

Making The Grade

The Washington DC based legal watchdog group also grades each state on an overall score each year. WV routinely receives grades ranging from C- to F on all categories that include how the state Bar Association handles complaints filed against attorneys. They also grade on the states Judiciary Review Board that handles judges accountable.

In May, 2008 HALT issued the nation's first comprehensive study of the systems that hold state and federal judges accountable. They ranked West Virginia 13th worst in the nation and stated that, “To shine a light on the typically secretive and toothless systems that often fail to remove abusive and incompetent judges from the bench,” quoted HALT, Inc.

They go on to say, "West Virginia's laws unfortunately include massive loopholes that still allow members of the judiciary to be wined and dined on the corporate dime," Also, "At a time when the American public has lost faith in the impartiality and fairness of the nation's judiciary, it's critical that we have an effective system of oversight for judges. We hope that West Virginia's chief judicial officers will work to transform a mechanism marred by secrecy into a system dedicated to upholding the integrity of the judiciary."

Is there an appearance of a brotherhood between all attorneys to protect one another? If so, do you then question the ability and effectiveness of allowing fellow attorneys to discipline each other? According to one source for this story, “it’s like letting the fox guard the hen house.”

But, according to research for this story, the more serious complaints for unethical and or illegal acts filed against lawyers and judges in WV are actually made by their own piers. HALT found that the majority of client’s complaints were only that fees were too high, lawyers lack of interest or correspondence and that the West Virginia State Bar does not offer arbitration to help resolve disputes.

Instead, the bar only provides resources for mediation, a process in which a trained facilitator does not issue a ruling but tries to guide the parties toward a non-binding resolution. If the client and lawyer cannot settle the dispute themselves, they have no choice but to go to court, which can be time-consuming and expensive for a legal consumer. And because the settlements are not binding, there are no formal methods to enforce the agreement.

A Spokesperson with the Lawyer Disciplinary Board provided information that indicated there were 555 complaints filed against WV attorneys in 2009 with an additional 545 cases being disposed of. The Supreme Court ruled on 16 pending cases in their court in 2010 (links below). When asked if there is a running backlog of complaints being handled, the spokesperson admitted there is, and that the Supreme Court “asks” that backlogs not take longer than 18 months or 15% of the total complaints pending.

In fairness, the majority of attorneys in WV are genuinely professional and sincere in their efforts to perform in good faith for clients and other legal responsibilities. But, as with any profession, there are the ones who bring embarrassment, shame and distrust to the rest. Enough so, that additional safeguards may need to be in place to protect not only the integrity of these officers of the court, but more so to the general public who put their lives, trust and money into their hands.

WV also has its share of bizarre cases against lawyers and judges. An attorney was caught having sex with his female client during legal visiting in prison while another forged a judge’s name to legal documents in order to embezzle funds. Three former Circuit Court Judges who all committed crimes ranging from bribery to sexual harassment and one who actually bit a defendant on the nose during a court hearing in front of witnesses.

Logan County Judge Ned Grubb

On May 7, 1992 Grubb was the first Judge in WV to be convicted of a felony crime. He was found guilty in federal court for bribery, conspiracy, witness tampering, obstruction of justice, racketeering and two counts of mail fraud. Before becoming a judge, Grubb was also a Logan County assistant prosecutor, elected member of the County Board of Education, and a West Virginia State Senator.

Part of the numerous charges stemmed from illegal campaign contributions and other crimes that were committed between Grubb and former Logan County Sheriff, Earl Tomblin Sr. who needed favors from the newly elected incoming sheriff. Grubb aided Tomblin in obtaining a fictitious job with the Sheriffs department as an investigator. For two years, the county clerk mailed to the West Virginia Public Employees Retirement System both the county's and Tomblin's share of pension contributions. Grubb then lied to the FBI by denying any knowledge of the scheme or the illegal $10,000 campaign contribution.

"I'm not as upset as everyone else is," Grubbs reportedly said after his conviction. "Really, I've got to live somewhere. In prison, I don't have to pay no rent."

Pleasants County Judge Joseph Troisi

On June 26th, 1997 during a hearing in the Third Circuit Court of Judge Joseph Troisi, witnesses watched in shock as the judge left the bench in the Pleasants County courtroom and assaulted a defendant by biting him on the nose.

The bite drew blood and removed a small piece of flesh from the tip of the defendant's nose, which the judge then spat onto the courtroom floor. The incident occurred while a state trooper, a sheriff's deputy, the prosecuting attorney and several lawyers and bystanders watched in shocked disbelief as the incident unfolded.

The defendant, William Witten, of Belmont, WV, had been denied a request to reduce his post conviction appeal bond following his conviction and sentencing upon two felony counts of breaking and entering. Witten uttered a derogatory remark about the judge to State Trooper Terry Nichols as he was being led from the courtroom following the hearing. Troisi apparently overheard the remark and provoked the confrontation.

According to state police spokesman Cpt. Terry Snodgrass, the onlookers, including the trooper were too shocked to respond in time to stop the incident. No action was taken against the judge following the attack, and witnesses stated that he calmly resumed court while the defendant was led bleeding from the courtroom.

Troisi eventually resigned from the bench but was allowed to keep his law license. He pled guilty to misdemeanor charges and sentenced to 5 days in jail.

Kanawha County Judge John Hey

On April 22, 1994 the Judicial Disciplinary Counsel filed a complaint specifically alleging that Judge John Hey had engaged in sexual harassment of female court employees including but not limited to unwanted and unwelcome touching, unwanted and unwelcome kissing, making crude sexual comments, and asking for sexual favors.

He did not deny that, on a number of occasions, he approached a court employee, spoke to her with lewd and vulgar language, touched and kissed her without her consent, and used language and behavior toward her which were offensive and sexual in nature. On a number of occasions he made comments to another court employee of an offensive nature which may be reasonably construed to be sexual harassment.

On at least two occasions he admitted being under the influence of alcohol while on the bench and, at that time, made offensive and inappropriate remarks to litigants and/or attorneys appearing before him. Hey managed to work out a deal with the disciplinary counsel to avoid losing his county pension and or obtaining a disability pension. Hey did forfeit his law license but later re-applied, and was reinstated. His license is currently “active” but not practicing.

2010 Supreme Court Disciplinary Decisions

Office of Disciplinary Counsel v. Joseph P. Albright, Jr,. No. 34973 (WV 2/11/10)

Lawyer Disciplinary Board v. Kenneth E. Chittum, No. 34733 (WV 3/1/10)

Lawyer Disciplinary Board v. Jeffrey L. Barton, No. 34623 (WV 3/1/10)

Office of Disciplinary Counsel v. Scott P. Mason, No. 35453 (WV 3/4/10)

Office of Disciplinary Counsel v. Joshua M. Robinson, No. 35503 (WV 3/15/10)

Lawyer Disciplinary Board v. William C. Martin, No. 34734 (WV Opinion 3/4/10)

Jay M. Potter v. Office of Disciplinary Counsel, No. 35337 (WV 4/1/2010)

Lawyer Disciplinary Board v. William C. Martin, No. 34734 (WV 5/13/10)

Lawyer Disciplinary Board v. G. Patrick Stanton, Jr. No. 34257 (WV Opinion 6/10/10)

Office of Disciplinary Counsel v. Richard A. Hayhurst, No. 5566 (WV 6/2/10)

Lawyer Disciplinary Board v. Gregory G. Michael, No. 35293 (9/9/2010)

Lawyer Disciplinary Board v. John M. Cavendish, No. 34259 (9/16/2010)

Office of Lawyer Disciplinary Counsel v. Jessica A. Sullivan, No. 35668 (9/9/2010)

Lawyer Disciplinary Board v. Christopher R. Heller, No. 35433 (10/13/10 WV)

2009 Supreme Court Disciplenary Decisions

Office of Disciplinary Counsel v. C. Patrick Carrick, No. 34613 (1/22/09)

Resignation Petition of Robert L. Jennings, Jr., No. 34614 (1/22/09)

Office of Disciplinary Counsel v. Joan A. Mooney, No. 34592 (2/27/09)

Lawyer Disciplinary Board v. Donald P. Cookman, No. 34465 (2/26/09)

Lawyer Disciplinary Board v. Donald L. Pitts, No. 26574 (3/11/09)

Lawyer Disciplinary Board v. Jessica L. Toler, No. 34600 (3/26/09
Office of Disciplinary Counsel v. Christopher A. Davis, No. 34601 (4/8/09)

Lawyer Disciplinary Board v. Raymond David Brown, Jr., No. 33516 (WV 6/5/09)

Lawyer Disciplinary Board v. Theodore R. Dues, Jr., No. 34626 (5/13/09)

Lawyer Disciplinary Board v. Daniel R. James, No. 33600 (7/23/09)

Lawyer Disciplinary Board v. Joseph L. Anderson, No. 34425 (9/3/09)

Resignation Petition of Richard M. Tettelbaum, No. 34943 (WV 9/3/09)

Lawyer Disciplinary Board v. C. Patrick Carrick, No. 34729 (9/24/09)

Resignation Petition of Kevin Hanson, No. 35124 (WV 10/29/09)

Resignation Petition of Keith L. Wheaton, No. 35304 (WV 11/30/09)

Lawyer Disciplinary Board v. David A. Barnabei, No. 34707 (12/28/09)

End Of Story…

Jack Swint – Publisher
WV News
(304) 319-4011







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