CHARLESTON – In addition to a legal malpractice case, a Berkeley County attorney is answering to ethics charges he mishandled a client's case.
In June, Dorothy Elaine Wright filed suit against Michael Santa Barbara of Martinsburg and his law firm alleging he botched her 2007 personal injury suit against the Berkeley County Roundhouse Authority. In her suit, Wright, who was injured on a trolley car operated by the Authority, alleged Santa Barbara only named the trolley driver as a defendant in the suit.
Because the driver was found to be immune from liability in her case, Wright received only a nuisance value settlement.
Prior to her suit, the Lawyer Disciplinary Board late last year filed an unrelated four-count statement of charges against Santa Barbara alleging eight violations of the Rules of Professional Conduct. According the statement issued Nov. 3, Santa Barbara mishandled four personal injury suits between 2002 and 2005 in missing the statute of limitations to file it, failing to file necessary paperwork or converting funds for his own use from settlements received.
A statement of charges acts like an indictment for disciplinary purposes.
Missing filing deadlines
According to the statement, Santa Barbara missed the statute of limitations in filing the personal injury suits of Robert S. Sencindiver and Tommy D. Burris. After hiring him in 2004, both men allege Santa Barbara failed to return their repeated telephone calls inquiring about the status of their respective cases.
In Burris' case, Santa Barbara admitted in the course of an investigation by the Office of Disciplinary Counsel that he missed the deadline to file the suit. Despite claiming he never intended to represent Sencindiver in his case, the client file Santa Barbara provided to ODC in response to Burris' complaint showed both a signed retainer agreement and authorization to obtain medical files.
In April 2005, Christa B. Clark and Jennifer L. Milanowski jointly hired Santa Barbara to file a suit related to injuries they received a month earlier falling from a fire escape at their workplace. Specifics of their case are not stated in the statement.
Nevertheless, they contacted Santa Barbara on March 8, 2007, inquiring about the status of their suit. In the course of the conversation with his secretary, Clark and Milanowski claim they overheard him tell her the deadline to file it was May 10.
After calling him back to remind him he was mistaken about the deadline, Santa Barbara filed their suit two days later. However, it was all for naught since their case fell under the Federal Tort Claims Act which requires a Form 95 be filed six months prior to the filing of the lawsuit.
According to the statement, Clark and Milanowski attempted unsuccessfully to contact Santa Barbara for the next year. Eventually, on April 15, 2008, he met with them and admitted "due to an error on his part, he had 'messed up' their case and could not fix it."
Despite mishandling Sencindiver's, Burris' and Clark and Milanowski's cases, Santa Barbara was able to successfully reach a settlement in August 2002 with Wal-Mart in a slip-and-fall case he filed on behalf of Karen Thomas. From the $50,000 Thomas received, Santa Barbara was to keep $15,000 to pay a Medicaid lien.
According to the statement, sometime in 2003 Thomas made multiple attempts to reach Santa Barbara about the payment of the lien. When she eventually spoke with him in August 2007, Santa Barbara discovered he did not have sufficient funds to cover it.
Upon discovering he only had $248.27 in Thomas' client account, Santa Barbara the next month first made a deposit of $11,934.20 then forwarded a check for $11,000 in Thomas. According to the statement, he told her to expect a call from him two months later concerning the remaining $4,000.
Though he failed to contact her in November 2007, Santa Barbara tendered a check to Thomas for $4,488.73 on Aug. 4, 2008. He sent her another check on Sept. 22, 2009, to pay the remaining $511.27 on the lien.
According to the statement, Santa Barbara attributed the mishap in Thomas' case on failing to transfer the funds to new accounts he and his wife and law partner, Kathy, established for their new law firm, Santa Barbara Law Offices, P.L.L.C in January 2003.
The statement accuses Santa Barbara of violating Rules dealing with diligence, communication, competence, safekeeping of property, misconduct and Bar admission and disciplinary matters. The Board on May 4 in Martinsburg held an evidentiary hearing on the statement, and is soon expected to release its findings, and suggested sanctions the state Supreme Court take against him.
West Virginia Supreme Court of Appeals case number 10-4011