Hampshire man investigated for unauthorized practice of law

CHARLESTON – The state Bar is investigating a Hampshire County man for practicing law without a license.

However, the man, who is a regional director for a statewide children's advocacy group, says the investigation is in retaliation to a complaint he filed with the Bar against a Mineral County attorney last year.

In a letter dated June 25, state Bar Executive Director Anita R. Casey informed Fred Schermerhorn of a complaint lodged against him for advertising for divorce work. Casey sent the letter on behalf of the Bar's Unlawful Practice of Law Committee.

"The West Virginia State Bar's Unlawful Practice of Law Committee has received a complaint that you may be advertising for divorce work in the State of West Virginia," Casey said in the letter.

"Our records do not indicate that you are licensed to practice law in the State."

In the letter, Casey requested Schermerhorn respond to the allegations by July 7 in preparation for the Committee's regularly scheduled meeting on July 10 at the state Bar Center in Charleston.

According to the Bar's Web site, the Unlawful Practice of Law Committee consists of seven members. They are Robert Douglas, Elliot G. Hicks, Robert B. Kuenzel II, Robert Kent Tebay III, Herschel H. Rose III, Colleen C. McCulloch and Mingo Circuit Judge Michael Thornsbury.

Rose, of the Rose Law Office in Charleston, serves as the committee's chairman.

Schermerhorn, who lives in Springfield, acknowledged receiving Casey's letter on June 30. According to his hand-written reply dated the next day, Schermerhorn denied ever advertising for any kind of legal work in West Virginia or anywhere else.

"I'm not a lawyer or portray myself to be a lawyer in any state," Schermerhorn said. "I am not licensed to practice law in any state.

"I deny the allegation of being involved in any legal work in WV or any other state."

In his letter, Schermerhorn, who outside his job as a federal corrections officer serves as Region 3 director for the Vienna-based Men and Women Against Discrimination, expressed bewilderment at why he is being targeted by the Bar. So he can better answer the allegation, Schermerhorn asked Casey to provide him a copy of the complaint, and the name of the person who filed it.

However, Schermerhorn was unequivocal in saying that the complaint was "filed out of nothing but retaliation" and considered it "a form of harassment due to me appealing the decision of the West Virginia Bar Disciplinary Counsel against one of your fellow attorneys in West Virginia."

Though he doesn't name her in his reply, Schermerhorn told The West Virginia Record he believes the person behind the complaint is Keyser attorney Kelley A. Kuhn.

When reached for a comment, Kuhn, who works in the law offices of Nelson A. Michael, said she was unaware of Bar's investigation until told about it by The Record.

"I did not file the complaint against him," Kuhn said. "I didn't file anything. I wasn't aware of that."

Still listed with prosecutor's office

Records show Schermerhorn filed a complaint against Kuhn with the Office of Disciplinary Counsel, the Bar's investigative arm, on Oct. 24. At the time, Kuhn was representing Schermerhorn's ex-wife, Krista, in their divorce proceeding.

According to his complaint, Schermerhorn accused Kuhn of threatening him with contempt to use as leverage in settling a property dispute with Krista, accusing him falsely of being involved in an automobile accident while under the influence of alcohol and performing personal work while employed as an assistant Mineral County Prosecuting Attorney.

In her replies dated Oct. 31 and Nov. 26, Kuhn denied the allegations. Though she admitted to initially saying in court Schermerhorn had been drinking while involved in an auto accident, she later corrected herself when she learned they were separate incidents.

"I misunderstood my client and believed the incidents were one in the same," Kuhn said. "As soon as I stated this my client corrected me and I advised the Court I was mistaken."

As to the allegation of moonlighting, Kuhn admitted to working as an assistant prosecutor, but left the office in September 1997.

Accompanying his complaint, Schermerhorn submitted a printout from FindLaw listing Kuhn in the active employment of the Mineral County Prosecutor's Office.

Kuhn said she was "unaware" of the FindLaw listing and "asked to have it corrected."

On April 22, Chief Lawyer Disciplinary Counsel Rachael Fletcher Cipoletti closed Schermerhorn's complaint finding "insufficient evidence to establish that Respondent violated the Rules of Professional Conduct." In her closing letter, Cipoletti said that "although Complainant's frustration is understandable," Kuhn had an "affirmative duty to put forth her best effort in representing her client and the zealous execution of this duty is not generally an ethical violation."

On May 11, Schermerhorn appealed Cipoetti's closing to the investigative panel of the Lawyer Disciplinary Board. Records show, on June 21, the panel upheld Cipoletti's finding 6-0.

In a letter dated June 30, Lawyer Disciplinary Counsel Charles A. Jones III informed Schermerhorn of the panel's decision.

A possible source

As he did in his reply, Schermerhorn told The Record he never has held himself out to be an attorney. Likewise, he has never "advertised" through any medium, including word-of-mouth, offering any legal services including divorce work.

The only conclusion Schermerhorn can draw from the Bar's allegation is that whoever filed the complaint against him, misconstrued one of the many letters he submitted to various eastern Panhandle newspapers during the last year. Because the Bar has not provided him any details on the allegation, he can't say for certain.

However, Schermerhorn said if a letter is the only piece of evidence the Bar has to base its investigation then they are on shaky legal grounds. His intent in writing all of his letters was to exercise his First Amendment right to alert people to problems in the state legal system, and inform readers what he and MAWAD were doing about it.

"What this is saying is that they [the Bar], is trying to prevent us from bettering the laws dealing child custody and divorce in West Virginia," Schermerhorn said.