WEST VIRGINIA RECORD

CHARLESTON – Two former clients of a South Charleston attorney who filed separate malpractice suits against him are staking their claim to a portion of the $100,000 he earned working as mental hygiene commissioner.

Jason Davis, of Scott Depot, and Jeannettia D. Spencer, of Dunbar, filed separate actions in their respective suits against Theodore R. "Ted" Dues, Jr.

Davis seeks to collect on a $75,000 judgment awarded him in 2003 while Spencer hopes to reopen the 2004 civil suit she settled with Dues earlier this year.

Both cases are in Kanawha County Circuit Court (Case Nos. 98-C-3011 and 04-C-2231).

On Dec. 19, 2005, the West Virginia Supreme Court ruled on an 11-point statement of charges brought against Dues by the Lawyer Disciplinary Board, the prosecutorial arm of the state Bar Association (Lawyer Disciplinary Board v. Theodore R. Dues, Jr., a member of the West Virginia State Bar, Case No. 31713). The statement of charges stemmed from the complaints filed with the Office of Disciplinary Counsel by nine of Dues' clients in 2003.

Spencer was among those who filed a complaint.

In a 4-1 ruling, the Court found that Dues failed to provide competent legal counsel, declined to terminate legal counsel and failed to reply to the ODC's inquiry as charged in the Board's statement. However, citing mitigating factors such as his physical and mental health, the Court rejected the Board's sentencing recommendation of an 18-month suspension for Dues as "not appropriate."

Instead, the Court restricted Dues' ability to practice law to mental hygiene work for the next 24 months. Mental hygiene commissioners are typically appointed yearly by the chief judge of each judicial circuit to hear cases for those who've been deemed to be a danger to themselves or others as a result of mental illness or addiction.

Though the Court's ruling come in December, Dues started working as a commissioner in June 2005. According to records provided by the Court, between then and May 2006, Dues was paid $113,103.25 for his work as a commissioner.

Hoping to satisfy $94,615.75 judgment

Armed with that information, Davis, though his attorney, South Charleston Mayor Ritchie A. Robb, filed a motion on Aug. 24 to garnish Dues' wages. According to court records, Robb filed an identical motion a year earlier to garish the wages Dues was then earning as a hearing examiner for the state Department of Health and Human Resources.

By then, however, Dues had left the employ of DHHR, and was hearing mental hygiene cases. According to information obtained under the Freedom of Information Act, Dues was compensated $31,072.50 for hearing 57 cases between June 3, 2004 and Aug. 2, 2005. The motion by Robb to garnish Dues' wages is an effort to collect on a $75,000 judgment awarded Davis by a Kanawha County jury in 2003.

In 1998, Davis brought suit against Dues for legal malpractice alleging "negligence, misrepresentation and breach of contract in not filing an appeal" when he erroneously filed a wrongful termination suit against the Charleston Fire Department on Davis' behalf in federal district court.

According to the motion, Dues has only paid $1,000 toward satisfying the judgment. Along with court-imposed costs and 10 percent annual interest, the amount Dues owes is $94,615.75.

According to the motion, Dues' employer, the Supreme Court, must begin garnishing wages "the lesser of 1) 20 percent of the defendant's wages after deductions of all state and federal taxes, or 2) the amount of the defendant's wages, after deductions of all state and federal taxes, that for each week exceeds 30 times the federal minimum hourly wage."

Because Dues is one of eight people working a rotating schedule as a Kanawha County mental hygiene commissioner, it is not immediately clear how much of his wages will be garnished to satisfy Davis' judgment.

Improperly influencing a decision to settle

The amount of work Dues performs as commissioner is a bone of contention in Spencer's motion. Filed Thursday, Sept. 14, Spencer's motion asks the judgment awarded in her favor in January be set aside due to "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial."

Spencer brought her suit of legal malpractice against Dues in 2004 while awaiting the outcome of the ODC's investigation. She alleged that on April 29, 2003 Dues, without her knowledge or consent, "voluntarily dismissed" a medical malpractice suit she filed against a Charleston anesthesiologist in 2000.

Both sides agreed to mediate the suit with retired Justice Thomas E. McHugh serving "voluntarily" as mediator. According to Spencer, the negotiations took place on one day, Jan. 26, with Spencer initially asking for a settlement of $75,000, and Dues countering with an offer of $500.

Dues' offer, McHugh told Spencer, was the best he could make since he was only working one to two days a week as a commissioner, and might not be working there much longer. Spencer says she was lead to believe Dues was financially destitute.

" 'Believe me, Ms. Spencer, he [Dues] has nothing'," Spencer said McHugh told her.

However, McHugh was successful in getting Dues to agree to a settlement of $2,000. According to court records, he was to pay it in two installments with the first coming on Feb. 15, and last on March 15.

Unbeknownst to Spencer was the check Dues received for $9,808.50 three days prior to their settlement. That check, according to records, brought to $94,236.50 what Dues earned as mental hygiene commissioner.

Also, Dues' workload was not cut-back until Feb. 1 when Judge Louis H. "Duke" Bloom, Kanawha County's chief circuit judge, appointed five additional attorneys to handle mental hygiene cases. Until then, Dues, along with Jim Crewdson and Thomas M. Hayes, heard mental hygiene cases with each man rotating responsibilities on a weekly basis during the day with Dues agreeing to hear all night cases.

In a previous interview with the Record, Spencer said had she known what Dues was earning as commissioner, "I would never have settled it." His failure to disclose that during the negotiations, Spencer said in her motion, constitutes a "fraud" on the court, and at least one reason why her case against him should be reopened.

"Mr. Dues successfully executed an 'unconscionable plan or scheme upon the court…designed to improperly influence the court in its decision," Spencer wrote. "The expressed goal was to pretend to be destitute and in such poor health that he had no means to support himself thus any significant judgment that would be assessed."

Dues denies allegations and receiving process

When reached for a comment via telephone Tuesday Sept. 19 concerning Spencer's motion, Dues declined to comment saying "I haven't seen it." However, records show that service of process was made on Dues earlier that morning.

According to the Kanawha County Sheriff's Department Legal Process Division, Deputy R. Huffman delivered Spencer's motion to 111 Court Street, the address of the Kanawha County Judicial Annex. The papers were accepted by Dues' wife, Mona, who works as a juvenile referee, in her courtroom at 10:15 a.m. Tuesday.

Before he abruptly hung up the telephone, Dues denied allegations he negotiated the settlement in bad faith, and, as far as he was concerned, the case is over.

"It's over," Dues said. "The case was dismissed with prejudice. I'm not really interested to hear what she [Spencer] has to say. She needs to get on with her life."