CHARLESTON - If anything, a Charleston man has recouped $200 in a legal malpractice suit against a state Tax Department attorney he claims failed to file his bankruptcy case six years ago when she was in private practice.

On June 30, Ellen F. Golden extended a goodwill gesture to Donald McCune by offering to repay $200 from $730 McCune claims she owes him for not filing his bankruptcy case in 2003. Golden's offer came in the midst of hearing held on a motion she filed to dismiss McCune's suit before Kanawha Circuit Judge Charles E. King.

Originally, McCune filed the suit in Kanawha Magistrate Court in July 2008 asking solely for return of the $730 fee Golden charged him. However, the case was later moved to Kanawha Circuit Court when McCune wanted more money, including possible punitive damages.

After the hearing started, King asked McCune why it took him over six years to file his suit. The reason, McCune said, was a combination of frustration with Golden refusing to return his repeated telephone calls for the first year, and dealing with health challenges the second year.

In a complaint he filed against Golden with the Office of Disciplinary Counsel, the investigative arm of the state Bar, last May, McCune maintains that he was eventually successful in contacting Golden at her former office on Quarrier Street in Charleston on January 25, 2008. According to his complaint, Golden blamed McCune for it not being filed because he failed to keep in contact with her.

When McCune reminded her of the repeated telephone calls, and occasional visits, he made to her office between 2003 and 2004, Golden became angry, and hung up the telephone.

"I paid her money to file it [the bankruptcy], and she never filed it," McCune told King. "I would sit there [at home] all day for her to call, and she would never call."

McCune estimated that he is now between $30,000 and $40,000 in debt.

When King asked how much money McCune thought he should be awarded for Golden's inaction, he was at first hesitant to answer, but later said $10,000 "for all the aggravation I had to go through."

When it came her time to speak, Golden asked that King dismiss the case for three reasons. First, that it doesn't meet the court's jurisdictional limits, second, that the statute of limitations on filing the suit expired in December 2007 and third, because she was not served notice of the suit.

According to Golden, she only became aware of the suit when she was told about it, and went to the circuit clerk's office to see it. Also, Golden said that the only other time she communicated with McCune after he initially paid her was in the Fall of 2007.

"He never came to me to give me any information," Golden said.

McCune averred that he made a good-faith effort to serve Golden after he first filed the suit in magistrate court. Records show the clerk sent a certified letter to Golden at the mailing address she then had listed with the state Bar, but it was returned unclaimed.

When King asked Golden if she would still be willing to file McCune's bankruptcy, Golden said she couldn't because she was now working with the state Tax Department. However, she would be willing to help him find an attorney who would.

King followed up by asking if she would be willing to refund McCune his money. That's when Golden informed the court that at that moment was willing to pay McCune $200 from "money held in trust" for him.

After Golden walked across the courtroom and laid the $200 check on McCune's table, King asked him if he wanted it. Initially, McCune said no.

When he asked that if by accepting the check his case against Golden would be closed, King told him no. King said that the purpose of the hearing was to rule on Golden's motion to dismiss the case, not to rule on its merits.

Thereupon, McCune agreed to take the $200.

Before adjourning the hearing, King asked Golden if at anytime did she formally discharge McCune as a client. She answered no.

Following the hearing, Golden declined a comment. However, McCune was more open.

"I'm not disappointed about anything that happened here today," he said. "It's the fact that she irritated me, and so many other people, is why I filed this suit."

After shutting down, and declaring bankruptcy for her law firm, the Golden Law Office, in January 2008, Golden took a job as a mid-level supervising attorney with the Tax Department on Sept. 2, 2008. According to the state Auditor's Office, her salary is $55,188.

While the midst of her bankruptcy, U.S. District Bankruptcy Court Judge Ronald G. Pierson on March 10, 2008, barred Golden from filing any bankruptcies for a year. Pierson's order came at the request of the U.S. Bankruptcy Trustee which informed him that five clients had little to no contact with Golden for over a month after she filed their bankruptcies.

In addition to the one-year prohibition, Pierson ordered Golden to refund the five clients the $750 fee they paid her, and take continuing education in consumer bankruptcy, law office management and electronic filing with the federal courts.

Kanawha Circuit Court, Case No. 08-C-3187

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