Weirton attorney faces contempt charges

By Lawrence Smith | Mar 19, 2009

CHARLESTON - For the third time already this year, the state Bar is asking the state Supreme Court to hold an attorney in contempt for failing to abide by the terms of a previous disciplinary order.

On April 8, the Court is scheduled to hear oral arguments in a petition for contempt filed by the Office of Disciplinary Counsel, the Bar's investigative arm, against David A. Barnabei. In its petition, ODC alleges Barnabei, 50, a Weirton attorney, has failed to comply with terms of a reprimand the Court issued him in September.

According to court records, Barnabei, who was first admitted to the Bar on May 14, 2003, was reprimanded by the Court on Sept. 25. In addition the reprimand, the Court ordered that his practice be supervised for a year, he undergo psychological evaluation and submit written reports to ODC, complete six additional hours of continuing legal education to be split evenly between ethics and criminal law and pay the cost of the disciplinary proceeding.

The cost, records show, came to $1,499.17.

The Court's reprimand was punishment for a three-count statement of charges ODC filed against Barnabei on January 8, 2008 alleging eight violations of the Rules of Professional Conduct. A statement of charges acts as an indictment for disciplinary purposes.

In its statement, ODC alleged Barnabei failed to properly handle the cases of Dennis E. Mayhew, John W. Cecil and Okey N. White Jr. Records show Barnabei was the court-appointed counsel for all three in their separate criminal cases.

When each filed their respective complaints with ODC, Barnabei did not reply until served with a subpoena duces tecum to appear at ODC's office in Charleston. In addition to charging him with a Rules violation in failing to timely answer an investigative inquiry, ODC charged Barnabei with failing to properly communicate with both Mayhew and White, diligently handle Cecil's case and timely terminating his representation of White.

In its investigation, ODC discovered that despite being granted an extension on March 17, 2006, Barnabei never filed an appeal in White's conviction for sexual abuse by a parent. When the deadline to file came and when on May 9, 2006, White filed his complaint on June 27, 2007.

In his statement to ODC, Barnabei said that around the time the appeal was to be filed, personal problems surfaced in his life causing him to take nine months off from work. He admitted that he informed neither the court nor White he was taking leave.
Also, he admitted he never provided White a copy of the trial transcripts he made him pay in advance. Though White's file was eventually delivered to his new court-appointed counsel, Barnabei failed to notify ODC of that fact despite their direction to do so.

Continuing to ignore requests

Records show, ODC first contacted Barnabei on Oct. 27 requesting he provide proof of compliance with the Court's order. The letter also asked he provide the name of both his treating psychologist, and the name of the attorney he wanted to supervise him.

When he failed to reply to that letter, ODC sent a follow-up letter dated Nov. 20. In the letter, Chief Disciplinary Counsel Rachel Fletcher Cipoletti gave Barnabei until Dec. 1 to respond or risk being cited for contempt.

When Barnabei failed to respond to the second letter, Cipoletti filed a contempt petition on Dec. 5. In addition to failing to comply with the previous disciplinary order, ODC is asking the Court to hold Barnabei in contempt for failing to respond to a complaint filed against him by Dann R. Stamp on Oct. 27.

When Barnabei failed to reply to ODC's initial request within 20 days, records show he was sent a certified letter on Dec. 4 asking he reply by Dec. 15 or again be served with a subpoena duces tecum. Apparently, he did not respond as ODC has not filed any new petitions, and Barnabei has not submitted a reply brief to ODC's original contempt petition.

In his petition, ODC is asking the Court to suspend Barnabei's license until he can prove he's complied with the Sept. 25 disciplinary order.

Third attorney cited

Barnabei is not the first attorney this year ODC has asked the Court to hold in contempt for disobeying a prior disciplinary order. Similar to Barnabei, ODC in January asked the Court to suspend the license of Morgantown attorney Joan A. Mooney for failing to respond to their repeated requests she nominate a supervising attorney, and prove that she'd taken the additional continuing education requirements and paid the cost of the disciplinary proceeding.

On Feb. 27, the Court found Mooney in contempt, and ordered the indefinite suspension of her license.

Also, despite it accepting his petition for voluntary disbarment, ODC is asking the Court to hold former Hampshire County attorney Donald P. Cookman in contempt for ignoring his prior Court-ordered discipline. ODC maintains Cookman has failed to make restitution to two clients totaling $4,000, and pay another $4,000 for the cost of his disciplinary proceeding.

Ironically, Cookman, like Barnabei, was first disciplined by the Court on Sept. 25, and will also have his contempt petition argued on April 8.

West Virginia Supreme Court of Appeals, Case Nos. 33802 (original Barnabei reprimand) and 34707 (contempt petition)

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