BECKLEY – Lawyers who sued Jackson Kelly law firm over its defense of black lung claims shouldn't pursue a separate black lung claim against a Jackson Kelly client, the firm argues in federal court.
Jackson Kelly's lawyer, Jeffrey Wakefield of Charleston, wants U.S. District Judge Thomas Johnston to disqualify Allan Karlin of Morgantown and John Cline of Piney View from three suits they filed last year.
On Dec. 3, Wakefield wrote that "the circumstances clearly permit and encourage exploitation by allowing Karlin and Cline to develop evidence directly from Jackson Kelly attorneys in a separate proceeding in which Jackson Kelly is unrepresented."
He wrote, "When Karlin and Cline seek Jackson Kelly's specific discovery in the federal black lung proceeding, they are also seeking discovery applicable to this case."
He wrote that they rejected a compromise that would have assigned one to the suit in Johnston's court and the other to the black lung proceeding.
"It was and is not necessary for both counsel to be involved in both proceedings and no argument is advanced as to why both counsel must be involved in both proceedings," Wakefield wrote.
Karlin and Cline maintain they have properly communicated with Kathy Snyder of Jackson Kelly in her capacity as advocate for her client, Elk Run Coal.
"There is no allegation and, in fact, no evidence that Karlin or Cline have ever asked Snyder what she personally knows about the allegations of fraudulent conduct by Jackson Kelly," they wrote in November.
They claimed Jackson Kelly created the problem by continuing to represent Elk Run.
In the suits before Johnston, miners who filed black lung claims allege that Jackson Kelly concealed evidence it should have shared with them.
They relied on a ruling from administrative law judge Thomas Burke, who found that Elk Run committed fraud on the court by withholding and misrepresenting evidence.
The miners sued Jackson Kelly in Raleigh County circuit court, and the firm removed the suits to federal court.
Jackson Kelly moved to dismiss, and the miners moved to remand to Raleigh County.
Both sides agreed to stay the proceedings pending Johnston's decision on the motions.
This April, a black lung review board directed Burke to develop a better record for his finding of fraud.
On Nov. 2, with the motions to dismiss and remand still pending before Johnston, Wakefield moved to disqualify Karlin and Cline.
"The potentially chilling effect upon the representation of black lung clients is obvious and clearly interferes with the right of federal black lung clients to be represented by counsel of their choice," Wakefield wrote.
"Not only is there direct communication between plaintiff's counsel and Jackson Kelly attorneys, but Jackson Kelly attorneys are being asked to respond to discovery attempting to develop evidence to be used in the federal black lung cases and this action," he wrote.
On Nov. 23, Karlin and Cline wrote, "It is true that some of the discovery in the Department of Labor black lung case may turn out to be prejudicial to Jackson Kelly in both the DOL black lung claim and in the instant civil case."
They wrote that disqualification rules don't protect Jackson Kelly from disclosing information that might be adverse to it, regardless of whether the information may be useful in more than one case.
On Dec. 11, Karlin and Cline notified Johnston that Burke set an evidentiary hearing on the fraud allegation in the black lung proceedings for Feb. 24.