WEST VIRGINIA RECORD

CHARLESTON - In the midst of a new set of ethics charges, a South Charleston attorney has decided to bring his 30-year legal career to a close.

The state Supreme Court on May 13 ordered that Theodore R. "Ted" Dues Jr. be disbarred. The Court's order came in response to a petition submitted by the Office of Disciplinary Counsel, the investigative arm of the state Bar, on April 22 expressing Dues' desire to surrender his license.

Records show that Dues had a two-count statement of charges filed against him on Dec. 19 with the Lawyer Disciplinary Board, the Bar's prosecutorial arm. A statement of charges acts like an indictment for disciplinary purposes.

In its statement, the Board's hearing panel subcommittee alleged that Dues, 55, violated seven Rules of Professional Conduct in failing to adequately represent two clients, Jacinda E. Roberts and James R. Stuppio. Dues was charged in both counts with violating Rules 1.3, diligence, Rule 1.16, declining or terminating representation and 8.4, misconduct.

Dues was cited with an additional violation of Rule 1.4, communication, in Roberts' case.

Retainers yield no effort

According to the statement, Roberts paid Dues a $10,000 retainer in assist Keith and Todd Hayes in appealing a criminal conviction. It is unclear as to what the Hayes, who are brothers, were convicted of, and Roberts' relation to them.

Regardless, Dues "met with the Hayes' only twice and would not communicate or respond to calls or letters from his clients or any of their family members." In addition to failing to file their appeal, the statement alleges Dues refused to return their file after they terminated his services.

In his response to Roberts' complaints Dues stated that "there had been a flood in his office building due to a water main break and that many of his files were destroyed."

Also, Roberts averred that Dues did not return the balance of the retainer. However, in March 2006 he did offer to pay her $8,500, and make $200 monthly payments until he obtained a home equity loan.

Eventually, on May 26, 2006, Dues signed an agreement with Roberts to repay her the entire $10,000. According to the statement, the terms called for Dues to make monthly payments of $200 to the Campbell Law Office until the $10,000 was paid in full.

However, less than a year later on Feb. 10, 2007, Roberts informed ODC that Dues had made sporadic payments. By then, he made two payments totaling $600 and a third for $200 which was returned for insufficient funds.

Three days later, ODC received a letter from the attorney representing Stuppio. In the letter, the attorney, who is not identified in the statement, said Dues failed on honor an agreement to return a $5,500 Stuppio paid him almost two years earlier.

According to the statement, Stuppio met with Dues on July 19, 2005 to discuss assisting him in filing a legal action. The nature of the legal action is unclear.

However, shortly after the first meeting, Dues met with Stuppio at his home and agreed to take his case. Despite paying him the retainer, Dues "failed to pursue [Stuppio's] case and otherwise refused to communicate with him."

When Dues failed to turn the retainer over to the new attorney as promised, Stuppio filed a civil suit against him. After obtaining a favorable judgment, Dues paid Stuppio in full via a cashier's check in May 2007.

The past catching up

According to the statement, Roberts' and Stuppio's complaints were filed in 2005 and 2006, respectfully. It was around this time that the Court placed Dues on restrictive practice of hearing only mental hygiene cases for 24 months as punishment for mishandling the cases of nine other clients.

Though the restricted practice did not officially start until March 2006, records show Dues began hearing cases in Kanawha County in August 2005. By the end of the 2005-2006 fiscal year, his compensation for hearing mental hygiene cases was $113,103.25, making him the highest paid commissioner in the state.

Pursuant to the Court's order, after March 2008 the restriction on Dues' practice would be lifted provided he paid the cost of the disciplinary proceedings, made $13,000 in restitution to the nine clients and provided proof that his depression was under control. The Court cited Dues' battle with depression following a heart attack in 2002 and subsequent triple bypass operation in 2003 as a mitigating factor in their punishment.

However, Dues unexpectedly stopped hearing mental hygiene cases in August 2007, and has yet to make any restitution. Also, Dues was administratively suspended in January 2008 after he failed to pay his annual Bar dues, and disclose whether he was carrying malpractice insurance.

For his misconduct, the Board recommended that Dues be suspended for 18 months.

In the new statement of charges, which, ironically, was filed three years to the day the Court handed down its order in response to the previous statement, the Board found that aggravating factors existed for Dues to receive a harsh punishment. Those were his 31 years as an attorney, prior disciplinary action by the Court and a "pattern and practice of accepting retainers from clients, failing to provide legal services for the same and subsequently failing to timely return the unearned portion of the retainer."

According to ODC's petition, Dues, through his attorney Jeff Woods, decided in light of the evidence against him, a voluntary annulment would be better than continuing the disciplinary process. In West Virginia, an annulment is an automatic five-year prohibition from practicing law.

The West Virginia Record attempted to obtain a comment from Dues concerning his disbarment. Multiple messages left with him via e-mail were not returned by presstime.

West Virginia Supreme Court of Appeals No. 34626