Dues under investigation for new complaints of unethical behavior

By Lawrence Smith | Jun 1, 2007

CHARLESTON – In addition to its lawsuit, a Nicholas County finanical services company has filed a companion ethics complaint against a Kanawha County mental hygiene commissioner.

The complaint, records show, is one of three pending against him since his prior sanction by the state Bar Association for numerous ethical lapses.

On Jan. 17, Nicholas Mortgage and Loan of Summersville filed a lawsuit in Kanawha Circuit Court against Theodore R. "Ted" Dues Jr. and his wife, Mona. In its suit, Nicholas alleges the Dues committed fraud in the use and care of the two vehicles they refinanced from Nicholas in 2004.

Specifically, Nicholas, though its attorney J. Steven Hunter, alleges the Dues committed fraud with their 2001 Infiniti QX4, when they converted an insurance check, meant to pay for body work on the car, for their personal use, and when they lost possession of their 1989 Mercedes-Benz 420 SEL.

The latter instance, Nicholas alleges, came when the Dues allowed their son, Ted III, to use the Mercedes without insurance. In its complaint, Nicholas says information about the lost Mercedes came from Ted Dues' reply to an ethics complaint it filed against him with the Office of Disciplinary Counsel, the Bar's investigative arm.

"The Defendants now allege that the 1989 Mercedes Benz is no longer in their possession, but instead have claimed in a response to the West Virginia State Bar to have no idea of its whereabouts other than they illegally permitted their son to drive it and he 'lost' it," Nicholas said in its complaint.

Complaints apparent result of personal behavior

According to the ODC, Dues has three pending complaints against him. Two were filed in 2005, and one in 2006.

Because an investigation into the complaints is on-going, ODC could not comment further. Though he acknowledged one of the complaints is from his client, Hunter, likewise, couldn't comment any more in detail.

Like the one filed by Nicholas, the two other complaints apparently stem from Dues' possible violations of the Bar's Rule of Professional Conduct regarding his personal behavior. Records show that since 2004, Dues has handled little if any cases as a private practice attorney, and complaints filed against him subsequent to the Bar's most recent action against him have been dismissed.

Also, the Judicial Investigation Commission, which handles complaints against judicial officers, including mental hygiene commissioners, has no pending complaints against Dues.

Two complaints closed due to Court ruling

On March 1, 2004, the Lawyer Disciplinary Board, the Bar's prosecutorial arm, filed an 11-count statement of charges against Dues. In its statement, the Board said Dues committed 39 Rules violations in the cases of nine of his clients including failing to provide competent legal counsel, declining to terminate legal counsel and failing to respond to the ODC's inquiry.

Those clients, James C. Meeks, LaVern E. Ruth, Herbert and Hubert McKinney, Jennettia D. Spencer, Raymond J. Smith, Lois E. Heath, Jeffrey L. Moss, Ruth E. Royal and Nancy C. Cooper, all filed complaints unbeknownst to one another in 2003.

Though the Board recommended Dues be suspended from practicing law for 18 months and make restitution to his clients and the Bar, the state Supreme Court on Dec. 19, 2005 agreed only with the restitution recommendation. In a 4-1 ruling, the Court ordered Dues' license to practice law restricted to hearing mental hygiene cases for the next 24 months.

Though the Court's ruling did not go into effect until March 2006, records show Dues was already working as a mental hygiene commissioner as early as June 2005. In that month alone, Dues earned $11,258 hearing mental hygiene cases.

By the end of the fiscal year, records show Dues was the highest-paid mental hygiene commissioner in West Virginia earning $113,103.25.

Also, records provided by the state Department of Health and Human Resources show Dues was also working as hearing examiner about this time. From June 3, 2004 – three months after the statement of charges were brought against him – until Aug. 2, 2005, Dues was paid $31,072.50 for hearing 57 cases.

About the time the ODC was completing its investigation into the complaints of the nine clients, two of Dues' other clients filed complaints against him. Records show Janet C. Lucas of Elkview and Katherine Rucker of Clendenin filed complaints on Dec. 30, 2003 and Jan. 30, 2004, respectively.

In her complaint, Lucas alleged that she was fired from the United Steelworkers of America Local 14614 and its related insurance and pension board for cooperating in a U.S. Department of Labor investigation. Despite paying him a $5,500 retainer to file a wrongful termination suit, Lucas alleges Dues did little if anything to help her.

As previously reported in the Record, Rucker's allegations mirror those of Lucas'. Rucker alleges she was improperly terminated from Bob Peden Chevrolet in April 2001 after she complained to management of being sexually harassed by some of her co-workers.

Like Lucas, Rucker paid Dues a $5,500 retainer to take the case. However, unlike Lucas, Dues never filed the suit in circuit court.

According to records, the investigations into Lucas' and Rucker's complaints were closed as a result the Court's ruling on the statement of charges against Dues. In a letter to both Lucas and Rucker, Lawrence J. Lewis, ODC chief counsel, said because of the Court's ruling, they would have to seek relief elsewhere.

"The issue of Respondent's [Dues] culpability, if any, to Complainant is a matter beyond the jurisdiction of this office and lies within the jurisdiction of the courts," Lewis said in his letter.

On April 8, 2005, Rucker filed suit against Dues in Kanawha Magistrate Court for $5,000. When he failed to reply to her suit, Rucker received default judgment against him for $5,700
As of January, she has collected all but about $200 from Dues.

Former client misses deadline to file complaint

In addition to closing the cases on Lucas and Rucker, the ODC dismissed a compliant filed by Steven E. Ervin of Charleston. In his complaint filed Sep. 8, 2005, Ervin alleged that, like Lucas and Rucker, he paid Dues a $5,500 retainer only to see him perform little if any work.

According to his complaint, Ervin hired Dues on June 14, 1994 to purse a retaliation claim against his then-employer Union Carbide. The retaliation began, Ervin claims, when he agreed to provide testimony on a pending racial discrimination case one of his co-workers, Larry Rush filed against Carbide, a year earlier.

In a letter dated Dec. 8, 2005, Lewis told Ervin his complaint was being dismissed because the time which had elapsed between when Ervin knew of possible unethical conduct on Dues' behalf, and filing the complaint. The statute of limitations on filing a complaint is two years.

Despite Dues ceasing to serve as his counsel in May 1997, Ervin maintains he had a conversation with Dues on July 30, 2004 in which Dues said he would help Ervin reopen the case once the Court ruled on the statement of charges. However, Lewis said such a claim could not aid in moving the complaint forward.

"You attempt to avoid Rule 2.14 by alleging that on or about July 30, 2004, Respondent made the general statement he would help you when a collateral prosecution of the Respondent by this office was concluded," Lewis wrote. "However, such general statement made almost eight years after termination of an attorney-client relationship does not reopen the required time frame."

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