CHARLESTON – Despite restrictions on his ability to practice law, and having personal mental health issues, a Kanawha County attorney made over $100,000 in fiscal year 2005-06 as mental hygiene commissioner, court records show.

According to information provided by the state Supreme Court, Theodore R. "Ted" Dues, Jr. was the highest paid mental hygiene commissioner in West Virginia. Of the $1,075,148.72 paid for mental hygiene services in fiscal year 2005-06, Dues was compensated $113,103.25, or just over 10 percent of the total disbursement.

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.

Dues' six-figure income as a mental hygiene commissioner is 2.5 times more than the next highest paid commissioner, Russell R. Stobbs of Lewis County ($45,526.00), and four times more than Dues' Kanawha County colleague, James H. Crewdson, ($25,694.00).

Also, the $113,000 Dues was compensated was only $8,000 less than the $121,000 annual salary paid to the state's Supreme Court justices who placed him in that position last year.

Cited for 39 violations

On March 1, 2004, the Lawyer Disciplinary Board, the prosecutorial arm of the state Bar Association, brought an 11-count statement of charges against Dues. The board alleged Dues committed 39 violations of the Rules of Professional Conduct when he failed to properly handle the cases of nine clients who all filed separate legal complaints with the Office of Disciplinary Counsel, the Bar's investigative arm (Supreme Court of Appeals case number 31713).

In its statement of charges, the board alleged Dues failed to provide competent legal counsel, declined to terminate legal counsel and failed to reply to the ODC's inquiry. The statement of charges stemmed from complaints filed by James C. Meeks, LaVern E. Ruth, Herbert and Hubert McKinney, Jennettia D. Spencer, Raymond J. Smith, Lois E. Health, Jeffrey L. Moss, Ruth E. Royal and Nancy C. Cooper, court records show.

In its filing to the Court, the board recommended Dues make $13,000 in restitution to clients, reimburse the Bar's Client Protection Fund $5,500 and foot the $1,968.16 disciplinary bill. Also, the board recommended the Court suspend Dues' license for 18 months and "that he establish, as a condition of reinstatement, that he is mentally and emotionally fit to practice law [and] that upon reinstatement he be supervised in the practice of law for two years."

Best course of action

However, in its Dec. 19 ruling, the Court only agreed with the board's recommendation for reimbursement and restitution. In her majority opinion, Justice Robin Jean Davis said suspending Dues' license for 18 months was "not appropriate" since that the "debilitating condition of his mental health during the periods that complaints arose were a mitigating factor."

Instead, in a 4-1 ruling, the Court ordered Dues be publicly reprimanded, limited to practicing law for 24 months as mental hygiene commissioner, in which he would be supervised by the chief judge of the Kanawha County Circuit, and "at the end of the twenty-four month period…provide the Office of Disciplinary Counsel with written documentation from a mental health provider indicating that his diagnosed severe depression is under control."

Joining in the majority was Justice Larry V. Starcher who is a member of the board of directors of the state Martin Luther King Holiday Commission with Dues, according the commission's Website. Also, according to his profile on the Court's Website, when he served as Chief Justice in 1999 and 2003, Starcher "promoted action in several areas of judicial administration, specifically … mental hygiene commission…"

According to court documents, Dues – who did not contest the board's findings – had a heart attack, and triple bypass surgery in 2002. During the next year, records say, Dues was "admitted to the hospital on at least three occasions due to physical problems, and also underwent a prostrate [sic] operation."

"The physical problems Mr. Dues experienced apparently led to severe depression," records say. As a result, records say Dues, 53, sought psychiatric treatment from Dr. Martin J. Kommor at WVU-Charleston's Department of Behavioral Medicine and Psychiatry, who placed Dues on medication.

Dues' "mental disability is a mitigating circumstance," in the misconduct he committed, Davis said in her opinion. Dues' misconduct was mitigating, Davis said, partly because "his recovery from the …mental disability is demonstrated by a meaningful and sustained period of successful recovery, and the recovery arrested the misconduct and recurrence of that misconduct is unlikely."

This along with Dues showing "no evidence of a dishonest or selfish motive" and expressing "remorse," Davis said, would make the board's 18-month suspension recommendation too harsh. Instead, because of his prior experience "without incident" as a mental hygiene commissioner, and in spite of "recent [health] difficulties," Davis said the public would best served by Dues doing mental hygiene work for the next two years.

"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.

Benjamin dissents

In his dissenting opinion, Justice Brent D. Benjamin agreed with the majority that some factors in Dues' actions were mitigating, but they should be viewed in light of the total impact of how his actions impacted his clients' ability to receive due process.

Though Dues should receive empathy for his "physical and mental health problems," Benjamin said, he "violated a sacred trust … [b]y impairing his client's legal rights, including in some cases, missing filing deadlines."

Benjamin also took issue with the majority declining to accept the board's recommendation Dues be supervised for an additional 24 months after completing his restriction as a mental hygiene commissioner. Despite his current recovery, Dues could at any time experience a relapse, and potentially harm a client, Benjamin said.

"Depression can be a recurrent illness and stress is often a trigger for relapse," Benjamin said. "Under the majority's approach there is no safety net to protect Mr. Dues' clients should the stress of a return to the practice of law trigger a relapse of severe depression."

Dues non-responsive

Attempts to obtain a comment from Dues were unsuccessful, as some telephone listings for him have been disconnected. One listing for Dues was to a fax machine.

As of press time, Dues hadn't replied to faxed request for comment.

Also, a woman who answered the telephone at the Kanawha County Circuit Court's Mental Hygiene Office said Dues was not expected to return to the office immediately due to being hospitalized.

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