CHARLESTON – The state Supreme Court has rebuked an Upshur County attorney for her missteps in a Randolph County couple's property dispute with their neighbors.
The Court on March 29 accepted the recommendation of its Lawyer Disciplinary Board that Erika H. Klie-Kolenich be reprimanded for violating six Rules of Professional Conduct in the case of Roy of Barbara Warner. In a single-count statement of charges issued against her on Jan. 11, 2011, the Board accused Klie-Kolenich, 33, a sole practitioner in Buckhannon, of not only making meritless claims in a lawsuit she filed on the Warner's behalf, but also failing to account for the time she spent on it.
According to the statement, the Warners filed suit in Randolph Circuit Court on Oct. 10, 2006 against their neighbors, Leroy and Susan Wingfield, for first erecting a fence between their properties, then spray painting messages on the Warner's side of it. The suit made claims against the Wingfields for invasion of privacy, trespass, assault, outrage and interference of right-of-way.
After conducting some initial discovery, the Wingfield's attorney, Stephen Jory, sent a letter to Klie-Kolenich dated Jan. 12, 2007, stating his belief the Warner's suit was meritless, and would be filing a motion for sanctions for reimbursement of attorneys fees. In a deposition given five days later, the Warners testified that "all factual allegations contained in the Complaint were inaccurate and did not support any of the causes of action."
Following the Warners' deposition, Klie-Kolenich offered to settle the suit if the Wingfields provided a few cans of paint to cover over their messages. However, Jory rejected any settlement that did not include reimbursement of attorneys fees.
Though the assault claim was dismissed on Jan. 24, Klie-Kolenich continued to pursue the case until March when Jory first filed first a motion for sanctions, and then summary judgment. After unsuccessfully attempting to get Jory to agree to voluntarily dismiss the suit without prejudice later that month, Klie-Kolenich withdrew from the case on April 2.
During a hearing held April 17, Klie-Kolenich admitted she failed to have the Warners verify the complaint before it was filed, and since they "'have done nothing wrong'" any sanctions should be levied against her. Also, she averred that between the time of her initial consultation with the Warners in Aug. 2006 until her withdrawal on April 2, she, and her staff, put 153 hours into the case.
Upon conclusion of the hearing, Judge John Henning granted Jory's motion for sanctions, but withheld further decision until hearing further from Klie-Kolenich and the Warners as to who should be responsible for paying it.
Jefferson Triplett, the Warner's new attorney attempted unsuccessfully to get Klie-Kolenich to provide any itemized billing statements for the work she performed. Also, Jory in a letter dated Aug. 28 notified her of a prior Legal Ethics Inquiry that attorneys are not permitted to charge their clients for a copy of their file.
The day after she withdrew from the case, Klie-Kolenich charged the Warners $74 to provide them a copy of their file. She refunded them the money on Sept. 13.
Eventually, on Dec. 21, 2007, Henning determined because she "'utterly failed to make an "inquiry reasonable under the circumstances" as required by Rule 11(b) of the West Virginia Rules of Civil Procedure'" ordered Klie-Kolenich to reimburse Jory his fee. At the time, it was $12,236.33.
Also, Henning chided Klie-Kolenich for claiming she and her staff performed 153 hours of work in the Warner's case. The absence of any billing statements not withstanding, Henning said "'nothing contained in this file would even remotely justify' that amount of work."
On April 8, 2008 Klie-Kolenich appealed Henning's ruling to the Court which affirmed to on Nov. 3, 2009. A month later, the Office of Disciplinary Counsel opened an investigation into Klie-Kolenich for her conduct in the Warner case.
In her initial response, Klie-Kolenich said the Court affirming Henning's ruling was " 'in violation of the law and were clearly politically motivated.'" Also, she said in the course of the lawsuit the Warners began to change their story, and when they did he filed a motion to dismiss the suit.
The day after she filed her initial response, Klie-Kolenich tendered a check to Jory for $14,671.02.
The statement accused Klie-Kolenich of violating Rules that deal with competence, communication, safekeeping of property, declining or terminating representation, meritorious claims and contentions and candor toward the tribunal. In its findings of facts and conclusions of law submitted Aug. 23, the Board initially recommended the Court suspend Klie-Kolenich for three months for "fil[ing] a frivolous lawsuit ... fabrica[ing] the number of hours she worked on the case...fail[ing] to provide an accounting even after repeated requests from her clients and charg[ing] her clients for a copy of their own file."
In addition to the reprimand, the Court ordered Klie-Kolenich have her practice supervised for two years, and take an addition nine hours of continuing education in office management. Also, it ordered her to pay the cost of the disciplinary proceeding.
The Court's action is the first formal disciplinary action taken against Klie-Kolenich since her admission to the state Bar on April 27, 2005. She was represented by Charleston attorney Sherri Goodman, a former chief lawyer disciplinary counsel.
According to ODC, Klie-Kolenich has four open complaints.
West Virginia Supreme Court of Appeals case number 11-0091