CHARLESTON – On the very day a former client of a Williamson attorney brought misconduct charges against him, the lawyer allegedly lied under oath about misconduct charges of another former client.
Now William H. Duty stands to lose his license unless he can convince the West Virginia Supreme Court of Appeals to soften his punishment.
The Justices will hear oral arguments Jan. 8 at the state Capitol on a petition of the Office of Disciplinary Counsel to annul Duty's license.
Disciplinary chief Lawrence Lewis claims Duty broke 15 rules of professional conduct, including five that he broke twice.
Duty blames OxyContin, but that explanation does not sway Lewis.
"While there is evidence in the record that Respondent has been addicted to OxyContin for two to three years," Lewis argued in an Oct. 11 brief, "it cannot be said that this chemical dependency caused his misconduct."
Lewis wrote that Duty misappropriated client funds, tried to charge an excessive fee, shared a fee with a secretary, tried to obstruct the disciplinary process, falsely testified, and failed to keep disputed funds separate from his own.
"For the public to have confidence in our disciplinary and legal systems," Lewis wrote, "lawyers such as Respondent who lie and convert client funds must be swiftly removed from the practice of law."
Under oath on March 31, 2005, according to Lewis, Duty swore he didn't embezzle a $25,000 settlement check from the late Rachel Lockhart in 2003.
In fact, he had opened a personal checking account and deposited the check in it. He had added to the account $263,000 in funds of other clients.
The same day that Duty testified on Lockhart's complaint, Sandy Gillman filed a complaint claiming Duty let the statute of limitations run on her injury claim.
According to Lewis, Duty gave Gillman three days to pay a $200 filing fee without explaining that her claim would expire after that.
Gillman didn't pay the fee and she couldn't find another lawyer, according to Lewis.
"His tardy withdrawal as Gillman's counsel within days of the lapse of the statute of limitations prejudiced her claim," Lewis wrote.
Duty also crossed an ethical line by sharing a fee with his secretary, Sheria Fields, according to Lewis.
In 2001, she referred car crash victim Ernest Prater to Duty. According to Lewis, Duty told Fields she would receive half his fee.
Rule 5.4 of professional conduct states that, "A lawyer or law firm shall not share legal fees with a nonlawyer."
Duty allegedly broke another rule when he asked his associate in the Prater case, Christian Harris, to withhold $3,500 from a $100,000 settlement.
Duty told Harris that $3,500 would reimburse his expenses, according to Lewis, and Harris asked for documentation.
Duty tried to persuade Harris to withhold $3,500 without documentation, according to Lewis, and "a fairly heated conversation" followed.
Although Duty phoned Harris later and told him to forget the $3,500, Lewis insists that a lawyer who tries to break a rule breaks the rule.
Likewise, Lewis argues, Duty deserves no leniency for repaying what he took from Lockhart because he didn't repay until she filed a complaint.
Before repaying Lockhart, Duty asked her to drop the complaint.
Lockhart died in 2005.
Duty still hasn't repaid $2,000 he owes to Randy Stiltner, according to Lewis.
Like the others, Stiltner filed a complaint against Duty. According to Lewis, Duty told Stiltner he hadn't received a $2,500 check when he had received it.
Stiltner learned the truth by calling the attorney for the defense.
Duty's lawyer, Glen Rutledge of Williamson, argued in the disciplinary process that Duty asked Gillman for the filing fee because she didn't have a strong case.
"Complainant did not appear with the filing fee and no suit was filed," Rutledge wrote.
Rutledge denied that Fields received a portion of a fee. He described it as a bonus.
He argued that neither Lockhart nor Prater lost any money, and that he charged Stiltner a retainer plus a $100 hourly fee as they had agreed.
Rutledge pleaded that Duty "was struggling with an addiction to OxyContin which impaired his judgment."
Lewis responded in his brief that Duty's actions were not simple negligence. He wrote that Duty acted intentionally and knowingly.
Duty's clients suffered immediate and actual damage, he wrote.
"In addition," Lewis wrote, "Respondent's conduct has brought the legal system and legal profession into disrepute."
If the Supreme Court annuls Duty's license, he can apply for reinstatement if he repays Stiltner, completes an ethics course and participates in Alcoholics Anonymous or Narcotics Anonymous.
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