Former Wyoming Co. attorney consents to disbarment

By Lawrence Smith | May 22, 2009

CHARLESTON - A former West Virginia attorney has surrendered her license following an investigation that found she filed bogus legal actions on behalf of at least three clients.

The state Supreme Court on March 26 ordered the disbarment of Jessica L. Toler. The Court's order came in response to a petition filed on March 5 by the Office of Disciplinary Counsel, the investigative arm of the state Bar, after Toler a month earlier communicated her desire to have her license annulled.

Toler's petition for voluntary annulment came in light of a three-count statement of charges filed against her with the Lawyer Disciplinary Board, the Bar's prosecutorial arm, on Oct. 30. A statement of charges acts as an indictment for disciplinary purposes.

According to the statement, Toler, 31, who practiced law in Mullens before moving to Jefferson Hills, Pa., a suburb of Pittsburgh, was accused of violating nine Rules of Professional Conduct in deceiving two clients that she filed lawsuits on their behalf, and failed to file a petition for modification of a child support order for a third. Toler's misconduct, records show, began as soon as she was admitted to the Bar on Sept. 24, 2002.

Phony lawsuits, settlements

Among Toler's first clients were Glen and Linda Laxton of Pineville. They consulted with her in September 2002 about filing a lawsuit against Equitable Production for the apparent effect Equitable's drilling of a gas well had on water pressure to the Laxton's home.

Between February and April 2003, Toler and Equitable exchanged letters concerning the Toler's allegations. On April 21, 2003, Equitable said its investigation determined that they were not liable for the Toler's water pressure problems since they began before the well was dug.

Apparently, Toler did not inform the Laxton's of that letter as, according the statement, she led them to believe a lawsuit had been filed. Though records do not state when Toler first informed the Laxtons the suit was filed, Linda in October requested that Toler substitute her name on the suit following Glen's death.

Six months later, Toler informed Laxton that a hearing was set in the case for May 23, 2006. However, a few days before the hearing, Toler called Laxton to inform her that a settlement had been reached, and "Equitable's attorneys" were prepared to pay her $65,000 by June.

According to the statement, Toler, in a letter dated May 25, 2006, sent Laxton a purported settlement and release dated May 23 which contained an unidentifiable signature for Equitable. Records are unclear as to when, but Laxton signed the settlement and release and returned it to Toler.

When she failed to receive her payment for the settlement, Laxton contacted Toler who informed her another hearing was set for Sept. 8, 2006. Growing suspicious, Laxton contacted Wyoming Circuit Judge John S. Hrko's office to confirm the hearing date.

When Hrko's secretary could find no record of the case, Laxton was asked to still come to court for the alleged hearing. After explaining her story to Hrko, he informed Laxton that Toler had never filed a suit, and the settlement agreement Toler had her sign was a fake.

About two months after meeting with Laxton, Hrko on Nov. 28, 2006, asked ODC to begin an investigation into Toler. Two weeks earlier, records show, Hrko met with Samuel Canada who Toler not only led to believe, like Laxton, filed a lawsuit on his behalf, but also provided him with a case number.

Records do not state a reason, but Canada wanted to file suit against Penn Virginia. Apparently, Toler did communicate to Penn Virginia Canada's intention as in a letter dated March 11, 2004 responded to Toler's letter setting forth Canada's claim for damages.

On July 24, 2004, Canada received a form letter from Toler informing all her clients that she would be moving to Jefferson Hills, but still keeping all her cases pending cases. Records do not state the reason for her move.

Nevertheless, Canada provided Hrko with documentation of numerous correspondence between he and Toler. That correspondence included "an agreed settlement offer for $125,000, actions taken by a collection agency, the seizure of company equipment to cover the settlement, and efforts to obtain the checks [Toler] told [him] she had received from Penn Virginia."

Apparently, Canada got wise to the fact that Toler may be misleading him as in letter she sent to him dated Nov. 10, 2006, Toler said he never provided her with any evidence of a claim against Penn Virginia, and him contacting Hrko was ex parte. Doing so, Toler concluded, destroyed their attorney/client relationship, and she was returning his file.

However, during a hearing held the next week, Canada testified that Toler told him on several occasions that she had checks for him, but could not send them with Hrko's permission. She had one check totaling $250,000 that she was prepared to deliver to him the day of a supposed injunction hearing.

During the hearing, Hrko asked Canada if he knew of the Laxton family. When he said he did not, Hrko explained the similarities between his case and theirs.

Along with his Nov. 28 letter, Hrko included a transcript of the Nov. 17 hearing. Two months later, Canada filed his own complaint against Toler which was merged into the one ODC opened at Hrko's request.

Family court flake-out

In addition to Laxton and Canada, the statement alleges Toler caused harm to Rodger D. Hancock II. Though she did not mislead him into believing he was due a settlement from a lawsuit, Toler for over 3 ½ years failed to file his modification for child support.

According to the statement, Hancock's four children had been living with him since July 2002 though custody was awarded to the children's maternal grandparents in Missouri. In March 2003, Hancock, who was still paying $400 in monthly child support, paid Toler $750 to petition the family court in Missouri to modify the support order.

Because his work scheduled would frequently keep him away from home, Hancock's wife would call Toler to check on the status of the modification petition. As late as May 2006, Toler informed Mrs. Hancock, she was still awaiting on the judge in Missouri to send her some paperwork.

When Toler failed to return multiple telephone calls in August and September 2006, Mrs. Hancock called the court in Missouri to check on the petition's status. It was then she learned that Toler had not filed anything on Rodger's behalf.

Also, Mrs. Hancock learned that Rodger was arrears $22,000 to the Missouri Family Support Center. According to the statement, he stopped paying child support assuming Toler "had filed the appropriate paperwork and the matter would soon be resolved."

Shortly after learning of her failure to file his modification petition, Hancock hired a new attorney. However, Toler did not refund Hancock's $750 retainer.

'Pattern of misconduct'

In its statement, the Board charged Toler with violating three counts each of Rules 1.3, diligence, and 1.4, communication, two counts each of Rule 8.4, misconduct, and one count Rule 1.16, declining or terminating representation.

Also, the Board recommended that any discipline imposed on Toler by the Court should consider her "pattern and practice of misconduct by failing to communicate with her clients; failing to diligently pursue cases on behalf of her clients; making material misrepresentations to her clients; and falsifying documents" as an aggravating factor. However, that became unnecessary when on Feb. 9 Toler filed her petition for voluntary annulment of her license.

In West Virginia, an annulment in an automatic five-year prohibition from practicing law. Despite moving there in 2004, records with Pennsylvania Supreme Court's Disciplinary Board show that Toler was never licensed in the Keystone State.

West Virginia Supreme Court of Appeals, Case No. 34600

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