CHARLESTON – Even when her telephone is functioning, clients of a South Charleston attorney have had problems communicating with her.
Recently, The West Virginia Record reported on the U.S. Bankruptcy Court for the Southern District of West Virginia barring Ellen Golden from filing future bankruptcies for a year. The Court's decision came at the request of the U.S. Bankruptcy Trustee's Office who received complaints from five of Golden's clients saying she failed to return their repeated telephone calls.
Golden told The Record the lack of communication was a result of her telephone service provider failing to reroute calls for over a month from the office she closed on Quarrier Street in Charleston to her home in South Charleston.
Between 1999 and 2006, 11 complaints have been lodged against Golden with the Office of Disciplinary Counsel, the investigative arm of the state Bar. In six of those complaints, the Bar cited Golden for failing to communicate with her clients, including issuing her two admonishments in the same year.
Four complaints lead to warnings
On Jan. 31, 2001, records show Mark Kuhn lodged a complaint with ODC alleging that after retaining Golden to represent him in a child custody issue "he made several attempts to contact Respondent [Golden] by telephone or in person, but that she seldom met or spoke with him ..." Also, Kuhn alleged "that when they did speak she seemed unfamiliar with the case and disorganized."
In addition to the lack of communication, Kuhn alleged Golden failed to obtain service of process on a petition filed and disagreed with the fee she charged him.
Records show Golden did not deny the allegation of a lack of service on the petition. Though it was filed by Kuhn pro se before she was retained, Golden did provide the opposing party a notice of hearing.
Also, Golden admitted to not being familiar to Kuhn's case. The reason she said was due to "considerable turnover in her office staff and unfamiliarity with billing software."
As a result of Kuhn's complaint, Golden told ODC "she had already made changes to her office and staff to help the organization of her office and cases."
On Nov. 9, 2002, Allan N. Karlin, chairman of the Lawyer Disciplinary Board's Investigative Panel closed Kuhn's complaint.
In his closing letter, Karlin said that though Golden's "actions did cause some delay ... there is insufficient evidence that these occurrences rise to the level of ethical violations or misconduct or are anything other than isolated instances."
However, Karlin did say Golden is "cautioned to make sure she timely handles matters in the future."
On March 7, 2002, Stephanie Perry-Koon lodged her complaint against Golden. In her complaint, Perry-Koon alleged that after obtaining a divorce from her husband, Charles Michael Roth, in July 1996, Golden failed to secure a Qualified Domestic Relations Order with Charles' company, American Home Products.
The QDRO, records show, was to evenly divide their retirement and 401(K) plans.
According to her complaint, Perry-Koon alleged that she received a letter from AHP in April 2000 saying the QDRO had yet to be finalized. Though Golden told her she would check on the QDRO's progress with Roth's attorney, Peggy L. Collins, Perry-Koon said, "I never seemed to get an answer as to when we could get the paperwork completed."
Also, after Golden refused to return repeated telephone calls, Perry-Koon said she contacted AHP directly in April 2001 on what was need to complete the QDRO, and later retained new counsel, R. Joseph Zak, on Nov. 6, 2001.
In her reply to Perry-Koon's complaint, Golden said that though her representation of Perry-Koon ended in 1997, she did proffer a proposed QDRO in 1999. Additionally, Golden "admitted having no clear present recollection of why she did not act upon receiving forms for the company in 1999, but assumed it was because she required a new retainer to complete the additional services."
In his closing letter dated Nov. 18, 2002, Chief Lawyer Disciplinary Counsel Lawrence J. Lewis found that though records showed the attorney-client relationship between Perry-Koon and Golden ended in 1997, Golden "arguably held herself out as late as 1999 as representing the Complainant in attempts to finalize the QDRO."
Despite the confusion, Lewis found Golden had not violated any of the Rules of Professional Conduct.
However, Lewis said Golden is "cautioned to be more clear about the scope of her responsibilities to her clients both upon being retained and upon termination of the relationship."
Much like Kuhn, Jennifer Petty of Dawes retained Golden to represent her in a child custody issue. According to her compliant filed July 22, 2003, Petty alleges that after paying Golden a $1,000 retainer on Sept. 23, 2002 to assist she and her new husband in adopting her child, she spoke with Golden only three times between then and June 16, 2003.
The latter date, records show, is when Petty decided to retain new counsel after Golden failed to return her repeat telephone calls or answer her multiple letters. Also, that is day when Petty stopped by Golden's office to seek the return of both her case file and retainer.
Records show while Petty received the file, Golden promised to return the retainer by July 10. When she didn't, Petty filed her complaint.
In her reply, Golden said she explained to Petty the consequences of terminating the biological father's rights. However, they came to an understanding that upon Petty's instructions, Golden would send the father relinquishment papers or wait six months and ask the court to enter an abandonment order.
When Petty visited Golden's office in June, she informed her of not only her decision to retain new counsel, but also of a hearing in the child custody case later that week. Though Golden eventually returned the retainer, she said the delay in getting back to Petty was due to her being "tied up in office work."
Regardless, Golden "expressed regret concerning the outcome of these events and promised to keep her clients reasonably informed in the future."
As with Kuhn and Perry-Koon, Petty's complaint was closed due to insufficient evidence of Golden committing a Rules violation.
However, in his June 1, 2004 closing letter, Lewis "reminded" Golden "of her obligations pursuant to Rule 1.4 of the Rules of Professional Conduct."
Two weeks after ODC closed Petty's complaint, it received one from Carolyn A. Lamb of Nitro. Records show Lamb paid Golden a retainer of $500 to handle an estate matter for which Lamb was the executrix.
According to Lamb, she understood their agreement, which was entered on March 23, 2003, called for Golden to deduct any fees from the retainer, and notify Lamb when it was exhausted. However in May 2004 she was puzzled when Golden sent her a past due bill since Golden "did not return her telephone calls and did not keep her informed about the status of her case."
In her reply dated Aug. 24, 2004, Golden said she initially discussed the issue of communicating with Lamb in January 2004, and thought the issue was resolved. Part of the reason she hadn't discussed more in detail with Lamb, Golden said, was due to the difficulty in reaching the attorney for the other heirs.
Also, Golden said Lamb was correct in that she should not have received a past due bill. She blamed the billing software for the problem saying she has no "control over they way the software puts in the amount of past."
As a result of Lamb's dissatisfaction with her service, Golden offered to repay the $500 retainer. Records show she presented a copy of the check in her reply.
Despite other issues she had with Golden, Lamb, in a letter to ODC dated Sept. 1, 2004, "decided to let it go."
In her closing letter dated Aug. 30, 2005, Cheryl L. Connelly, chairwoman of the Board's Investigative Panel, said because "there is little written documentation in this case other than the few billing statements received by the Complainant…there is no clear evidence to support either parties' contention." Despite that Connelly reminded Golden of her obligation to "act with reasonable diligence in representing a client" and "keep[ing] a client reasonably informed about the status of matter."
Also, Connelly "warned" Golden "that similar conduct in the future ... may led to more severe sanction."
Eight months later, records show that's exactly what happened.
Two complaints result in disciplinary action
Two weeks prior to Connelly closing Lamb's complaint, ODC received one from Michael A. Stephens of Barboursville. Records show Stephens met with Golden on March 29, 2005, to consult with her about bringing a wrongful termination suit against Wal-Mart.
Six days prior to meeting with Stephens, Thomas H. Zerbe, a Charleston attorney, filed a complaint against Golden on behalf of his friend and client, Bobby Tucker of Dunbar. In his complaint, Tucker alleged that despite paying Golden a $1,000 retainer to help him modify his child support in May 2003, she failed to provide any legal assistance.
According to his complaint, Tucker retained Zerbe in October 2004 for the purpose of getting his money from Golden back when she did not return his repeated telephone calls. When Zerbe contacted Golden after several attempts in November 2004, she promised to return "every penny" of Tucker's money.
However, when she failed to do so by March 23, 2005, Zerbe filed Tucker's complaint. Though records are unclear if Stephens paid Golden a retainer, both he and his girlfriend made repeated attempts to contact her via telephone and U.S. Mail between March and August 2005 to no avail.
In her reply to Tucker's complaint, Golden said she prepared a motion on Tucker's behalf on Sept. 2, 2003, but was not aware it went unfiled and unserved until Zerbe brought it to her attention in November 2004. As a result of such oversight, Golden claimed in January 2005 "she fired her office staff and has since hired a new secretary and paralegal."
Furthermore, upon receiving the complaint, Golden returned to Zerbe both Tucker's file and $1,000 retainer.
Despite timely responding to Tucker's complaint, ODC went to the length to prepare a subpoena duces tecum when she failed to respond to their two prior letters dated Aug. 19 and Oct. 18, 2005.
However, on Nov. 3, Golden filed her reply before the subpoena could be served on her.
According to her reply, almost immediately after her visit with Stephens, Golden's mother took ill requiring several hospitalizations. After her mother passed on April 28, Golden said she had to take care of her 80-year-old father.
About the time her personal life was "straighten[ing] out" in August 2005, Golden said "she experienced and influx of bankruptcy clients who wanted their cases filed before changes occurred in the bankruptcy law in October 2005." Nevertheless, Golden admitted to putting Stephens' case on the back burner, but still offered to serve as his counsel before the statute of limitations expired on Jan. 15, 2006.
In a letter dated January 25, ODC inquired as to the status of the case. In her reply dated Feb. 2, Golden said she considered herself relieved as Stephens' counsel as he never signed and returned a copy of her Contract of Representation and Fee Agreement by January 15.
Despite being relieved as counsel in not only Stephens', but also Tucker's case, ODC did not consider her relieved of responsibility.
On April 11, 2006, Connelly closed both cases admonishing Golden for her behavior in each case.
Because Golden was negligent in not addressing Tucker's case for over 14 months, Connelly found Golden violated Rule 1.3, 1.4 and 5.3 dealing with diligence, communication and responsibilities regarding non-lawyer assistants, respectively. In addition to citing Golden for violating Rule 1.3 and 1.4 in Stephens' case, Connelly admonished Golden for violating Rule 8.1 (b) – failing to timely reply to ODC's inquiry.
In her closing letter in Stephens' case, Connelly noted that Golden's circumstances surrounding her mother and father, though tragic, are no excuse to neglect a client's interest.
"No professional shortcoming is more widely resented than procrastination and Complainant's interests have been delayed and possibly adversely affected by the Respondent's failure to act," Connelly said.
"Contrary to Respondent's assertion that in her opinion, it was her client's responsibility to contact her regarding his case, it is clearly expected under the Rules of Professional Conduct that a lawyer will take the appropriate measures to represent her client to the best of her ability and to protect her client's interests, including preserving her client's statute of limitations."
In a prior interview with The Record, Golden said the reason for the number of past and present complaints against her is that she "was in the position that gave rise statistically to the cases that result the most complaints." When asked why she decided to accept them given that fact, Golden declined further comment.