CHARLESTON – Douglas A. Smoot, a lawyer with the Jackson Kelly law firm, was scheduled for a hearing Thursday before the State Bar's Lawyer Disciplinary Board on allegations he withheld evidence in a black lung case.
Disciplinary counsel for the State Bar filed ethics charges against Smoot in February, alleging he did not provide a narrative from a physician that noted a coal miner was suffering from black lung.
On May 30, 2000, Elmer Daugherty filed a claim for black lung benefits against his employer, Westmoreland Coal Company. Smoot represented the coal company.
Daugherty was initially awarded benefits in Jan. 2001, but Westmoreland requested a formal hearing before an administrative law judge, according to the disciplinary counsel's complaint.
Part of the hearing process involved Daugherty's being examined by a physician at Westmoreland's request. Daugherty was examined by Dr. George L. Zaldivar on Feb. 7, 2001.
A few months later, Zaldivar sent Smoot a packet that included Daugherty's medical history, a physical examination report, test results and a narrative report. The narrative essentially diagnosed Daugherty with black lung.
Smoot then sent Daugherty, who was still without a lawyer, copies of everything but the narrative, which also wasn't supplied to the administrative law judge, the complaint says.
Daugherty got a lawyer, Robert F. Cohen, on March 30, 2004. An initial hearing before the administrative law judge was held in Oct. 2004. About a month prior to the hearing, Cohen had filed a request for production of documents related to Daugherty's case.
In response, another Jackson Kelly lawyer, Kathy L. Snyder, provided Daugherty with Zaldivar's narrative.
At the initial hearing, Cohen alleged that Smoot disassembled Zaldivar's report before turning it over to Daugherty. Cohen further alleged that Smoot only provided information to its medical experts that would be favorable to Westmoreland's case.
According to the complaint, another lawyer for Jackson Kelly, Dorothea Clark, admitted that the narrative had been extracted from the doctor's report prior to its being furnished to Daugherty.
The administrative law judge then granted Cohen's motion to compel Jackson Kelly to produce descriptions of all medical records it had pertaining to Daugherty. The judge then set another hearing for Nov. 10, 2004.
But prior to the hearing, Snyder notified the administrative law judge that Westmoreland had decided to accept the initial ruling and pay the award that had been granted Daugherty.
Cohen had asked the administrative law judge to certify the matter to the U.S. District Court due to the conduct of the Jackson Kelly lawyers. The judge twice declined to do so, urging the parties to work it out together.
But on Aug. 18, 2005, Cohen wrote the judge a letter saying that Smoot had not contacted him regarding coming to a reconciliation.
The judge then certified the matter to federal court, which ultimately decided the Office of Disciplinary Counsel would be a more appropriate venue to pursue ethics charges against Smoot.
Any final ruling on Smoot's law license will come from the West Virginia Supreme Court.
Meanwhile, lawyers for Jackson Kelly are named in two lawsuits in Raleigh County, according to the Charleston Gazette.
The allegations in those lawsuits are similar to the ones filed by the disciplinary counsel –- namely that Jackson Kelly lawyers withheld information from plaintiffs who did not have lawyers, but then tried to settle the claims when the plaintiffs retained counsel.
The disciplinary counsel's complaint outlines three rules of conduct it says Smoot violated pertaining to fairness to opposing parties, dealing with unrepresented people and misconduct.