WEST VIRGINIA RECORD

CHARLESTON – A conditional suspension given to a Kanawha County attorney last year was not the first time he faced a reprimand or cited health reasons for his misconduct.

Fourteen years ago, Theodore R. "Ted" Dues, Jr. appeared before the state Supreme Court to answer a statement of charges be violated the state Bar's Rules of Professional Conduct. Dues was then facing suspension of his license for failure to file a tax return.

As in its recent sanction of Dues, the Court went easy on him citing health challenges as a mitigating factor.

Declining to suspend

On Dec. 19, the state Supreme Court ruled on a statement of charges brought against Dues by the Lawyer Disciplinary Board, the prosecutorial arm of the state Bar. On March 1, 2004, the board brought an 11-point statement of charges against Dues alleging he committed 39 Rules violations.

The statement of charges stemmed from nine of Dues' clients filing separate complaints against him in 2003 with the Office of Disciplinary Counsel, the Bar's investigative arm. Among the charges leveled at Dues by the ODC included failure to provide competent legal counsel, failure to terminate legal counsel and failure to reply to an ODC inquiry.

In its brief to the Court, the board recommended Dues make restitution to his clients, be suspended from practicing law for 18 months and be supervised in the practice of law for two additional years. In a 4-1 ruling, the Court agreed with the board's restitution recommendations, but decided to limit Dues' practice to mental hygiene work for 24 months.

In West Virginia, mental hygiene commissioners preside over matters pertaining to those who've been deemed to be a danger to themselves or others as a result of mental illness or addiction.

According to court records, Dues maintained a heart attack in 2002 and triple bypass operation in 2003 resulted in him slipping into a severe depression. This depression, court records show, caused Dues to lose his focus on practicing law.

Since then, Dues has been under a doctor's care and taking medication for his depression, court records show. Also, court records show Dues has expressed remorse for the harm he caused his clients.

As a condition of returning to the full-time practice of the law, the Court, in its order, required Dues to provide documentation his depression is under control.

'An outstanding lawyer for the public'

In her majority opinion, Justice Robin Jean Davis said these and other mitigating factors would make the board's recommendation of an 18-month suspension too harsh. Because he thus far has demonstrated a good recovery from his depression, and his prior work in the area is "without incident," Davis said a more appropriate sanction for Dues would be practicing law solely as a mental hygiene commissioner.

"As a result of the direct connection between Mr. Dues' mental disability and misconduct in this case, we are of the opinion that limiting his practice, as opposed to suspending his license, serves as an effective deterrent to other members of the Bar and maintains the public confidence in the ethical standards of the legal profession," Davis said.

Furthermore, Davis said the Court should take into account this was only the second time in his 27-year career as an attorney a statement of charges were brought against Dues. Other than that, Davis said Dues has been "an outstanding lawyer for the public."

Dejà vu all over again

On Aug. 3, 1991, the Bar's Committee on Legal Ethics, now known as the Lawyer Disciplinary Board, charged Dues with one count of violating the Code of Professional Responsibility, now known as the Rules of Professional Conduct (The Committee on Legal Ethics of the West Virginia State Bar v. Theodore R. Dues, Jr., a member of the West Virginia State Bar – West Virginia Supreme Court of Appeals, Case No. 21424).

The charged stemmed from Dues' conviction on Sept. 11, 1990, for failure to file his income tax return for 1985. According to court records, Dues plead guilty to a misdemeanor charge in which he was placed on five years probation, and ordered to perform 150 hours of community service.

In its investigation, the committee found that Dues also failed to file a tax return in 1984 and 1986, court records show. However, the committee charged Dues with a Code violation only from his conviction in failing to file the 1985 return.

According to court records, the committee felt Due's act was "engag[ing] in…conduct that adversely reflects on his fitness to practice law." It recommended Dues' license to practice law be suspended for three months.

Though he did not deny the committee's findings of fact, Dues found the committee's recommendation "excessive when considering the mitigating factors surrounding the case," court records say. Dues argued that health and financial challenges were a direct result of his ability to pay taxes, which later resulted in his conviction.

According to court records, Dues testified that between 1979 – the year after he was admitted to the Bar – and 1986, he "became seriously ill from complications associated with sickle-cell anemia" to the point he was "bedridden for approximately six months and was unable to run his office or generate any income." Also, court records show, during this time – 1984 through 1986 – "Mr. Dues' wife [Mona] underwent two life-threatening surgeries."

In addition to health challenges, court records show Dues suffered financial challenges when between 1982 and 1984, he was not paid for his services as a hearing examiner for the West Virginia Human Rights Commission. According to court records, the hardship was compounded when in 1984 the IRS "confiscated his bank accounts…when he was unable to pay his taxes…"

Taking these matters into account, plus pro bono work he performed for organizations such as the Charleston Legal Aid Society, the Appalachian Research and Defense Fund and the NAACP, the Court in a 4-1 ruling agreed with Dues that a three-month suspension "would substantially destroy his law practice." Citing the "direct casual relationship between Mr. Dues' health, his wife's health, the State's failure to pay him substantial attorney's fees, and his ability to promptly pay his taxes," are mitigating factors to warrant a less severe punishment.

"For the foregoing reasons," the Court ruled, "we refuse to adopt the Committee's recommendation that Mr. Dues' license be suspended for three months. Instead we believe the appropriate sanction is to publicly reprimand Mr. Dues."

Behavior cited four other times

Though it only twice found probable cause to issue a statement of charges against him, the Bar on several other occasions rebuked Dues for his conduct. According to information contained within his disciplinary file, 20 complaints have been lodged against Dues, four of which resulted in some sort of admonishment in addition to the nine that led the recent statement of charges

In 1988, Edward E. Price of St. Albans alleged Dues failed to litigate his case in a prompt fashion, promising to bring it to a jury trial within a year. Though the Bar found no "substantial evidence" of wrongdoing on his behalf, it did cite Dues for "poor management skills," records show.

According to records, Gustave M. Belcher of Charleston filed a complaint against Dues in 1994 alleging he failed to act properly in getting his car released from the Dunbar Police Department. The Bar closed the matter saying it "would have been preferable [for Dues]…to put the fee agreement in writing so there was no misunderstanding as the limits of his representation."

A year later, the Bar fielded a complaint from Edmond L. Hannault of Beaver who alleged Dues and Nathan Hicks failed to return his file in a prompt fashion. Though it found no probable cause, the Bar admonished Dues and Hicks for not putting the non-refundable retainer they apparently charged Hannault in writing.

Hicks served as Dues' attorney in the legal malpractice suit brought against him by former Charleston firefighter Jason Davis (Jason Davis v. Theodore R. Dues, Jr., L.C. – Kanawha County Circuit Court, Case No. 98-C-301).

That same year, the Bar cleared Dues of any wrong doing in a complaint filed by Geary G. Beatty of Clendenin. According to records, Beatty alleged Dues failed to timely file an appeal with the Equal Employment Opportunity Commission in his grievance with the U.S. Postal Service.

Dues' health apparently was an issue as the Bar warned Dues to "take appropriate measures to protect client interests during periods of illness."