WEST VIRGINIA RECORD

CHARLESTON - For mishandling of funds awarded to a client from a personal injury settlement, the state Bar is seeking the disbarment of a Kanawha County attorney.

Among the cases the state Supreme Court is scheduled to hear when it returns for its Spring term on Jan. 12, is Lawyer Disciplinary Board v. Jeffrey L. Barton. The Board, the Bar's prosecutorial arm, is asking the Court to annul Barton's license for converting funds awarded to an elderly woman in a 2003 car wreck for his personal use.

In addition to the conversion, Barton, a Nitro attorney, is alleged to have charged the woman's estate a fee when her daughter, and executrix of the estate asked Barton to account for the settlement funds, and has been slow in paying money awarded her in a related legal malpractice case.

Where's the money?

According to court records, Freda Pringle retained Barton shortly after she was involved in an automobile accident on March 10, 2003. Records are unclear as to when, but Barton filed a lawsuit on Pringle's behalf in which the insurance companies involved agreed to pay her a combined $65,000.

Between July 25 and Sept. 9, 2003, Barton received three checks totaling the amount of the settlement, and placed the funds in his client trust account. Though he was unable to provide the Board a copy, Barton signed a retainer agreement with Pringle in which we would keep one-third of any settlement, and she would pay any costs and fees.

After Pringle died at age 92 on Feb. 15, 2004, her daughter, Karen Richardson, became executrix of her estate. On July 1, 2004, Richardson met with Barton, and asked he not only account for expenses paid on Pringle's behalf, but also turn over the balance of the settlement proceeds to the estate.

In response to both their initial meeting, and a follow-up letter dated July 22, 2004, Barton on July 28 notified Richardson no money was due the estate since "any money due to Freda Pringle was paid to her during her lifetime." For the accounting, Barton billed the estate $3,000.

A portion of the settlement was to pay an $18,500 Medicare lien, and a $2,200 bill to Beltone for hearing aids. Records show those remain unpaid all the while the balance in Barton's trust account for Pringle shrank from $65,000 from Sept. 9, 2003, after he received the final settlement check of $25,000, to - $451 on Sept. 30, 2005.

Ethics complaint, lawsuit filed

After Richardson filed an ethics complaint against Barton on April 6, 2006, he replied saying that he paid Pringle the $20,000 due her from the settlement prior to her death. However, admitting no wrong-doing, Barton offered to pay the outstanding bill to Beltone, Richardson $750 for "her work on the estate and in filing the ethics complaint" and the estate $8,000.00 "as full and final satisfaction of this complaint."

To bolster his claim he paid Pringle her share of the settlement, Barton provided copies of checks submitted to her in 2003, including one made payable to "cash" for $15,000. After a review of Pringle's account showed no deposit of $15,000, Richardson filed a legal malpractice suit against Barton in Kanawha Circuit Court.

Records show, Richardson, and Barton reached a settlement on May 1, 2007 in which he agreed to pay her $100,000 by Feb. 28, 2008.. Also, the terms called for Barton to refund the $3,000 fee he charged the estate for the July 2004 accounting.

For reasons not clear, Barton breached the settlement agreement causing $20,000 he paid toward it to be forfeited. A new agreement reached on Aug. 1, 2007, called for him to pay Richardson $103,000 plus the outstanding Medicare lien by Oct. 1, 2010.

Apparently, the terms of the settlement called for Barton to make monthly payments to Richardson since as the time the Board's Hearing Panel Subcommittee held its hearing on Richardson's complaint on April 6, he "had not made any good faith payment towards restitution since August of 2008." By then, records show Barton paid Richardson a sum of $46,000.

Seeking annulment, restitution

For failing to pay both the Medicare lien, and Beltone, and provide a timely and accurate accounting of the total $65,000, Barton was charged with two counts of violating the Rules of Professional Conduct that deal with safekeeping of property. His failure to provide Richardson her mother's case file yielded an additional charge of violating the Rule on declining or terminating representation.

Also, Barton was charged with at least two counts of misconduct in co-mingling the settlement funds, and converting for personal use, one count of excessive fees for the $3,000 he charged the estate for the July 2004 accounting that turn out to be fraudulent and one count of conducting prohibited transactions when in June and July 2006 he attempted to limited his liability from malpractice without first notifying her in writing that she was entitled to independent representation.

Along with annulment, the Board recommends that Barton, who was first admitted to the Bar on April 30, 1996, make a full restitution to the Pringle estate pursuant to the terms of Richardson's legal malpractice case. Also, the Board asks that should Barton seek readmission to the Bar, he must provide to the Board's satisfaction he made good on the settlement, undergo a supervised practice for two years and have a CPA conduct regular audits of his practice also two years..

In West Virginia, an annulment is an automatic five-year prohibition of practicing law.

Nothing intentional

Though Barton admits to mishandling the settlement, his attorney Michael Del Giudice says no money was intentionally stolen from Pringle. The co-mingling of funds was a result of poor recordkeeping, including the inability to locate records following an undated theft of his office.

The true issue in the case, Del Giudice said, was payment of the Medicare lien, and debt to Beltone. Though checks were submitted to both Richardson, and her attorney Kevin Hughart to satisfy these, they've allowed the lien and debt to stand.

Since the lawsuit is a separate legal matter, it's unfair for the Board to use it against him in the disciplinary case. Though as a sole practitioner he has been impacted by the recession as much as anyone, Del Giudice said Barton has made a good faith effort to satisfy the settlement he reached with Richardson.

Finally, given the fact that in his 13 years as an attorney the Richardson complaint was his first, Del Giudice said the recommendation for annulment is too harsh a punishment. Since Barton has cooperated fully with the Board's inquiry, and there is no evidence to suggest he intentionally stole money from Pringle, Del Giudice suggested that Barton receive a punishment that allows him to continue practicing law and "be taught proper office management, including, but not limited to, keeping monies separate, disbursing monies in lump sums rather than in small cash payments and other office management techniques to conform with the rules of professional responsibility."

Three discipline cases

The Barton case is one of three attorney discipline cases the Court is scheduled to hear Jan. 12. In fact, all three top the Court's docket that day.

Barton's case is between cases the Court will hear against G. Patrick Stanton Jr., and Kenneth E. Chittum. Stanton, and Chittum are lawyers in Clarksburg, and Bluefield, respectfully,

Stanton is accused of having a sexual encounter with a female inmate at the Pruntytown Correctional Center in 2005 while serving as director of the state Office of Consumer Advocacy. Prior to his arrival at PCC, Stanton informed officers he needing to schedule an attorney/inmate visit.

The case against Chittum involves allegations he attempted to cultivate a sexual relationship with a female inmate in which he was appointed as guardian ad litem for her divorce case, and failing to return items belonging to her in a timely manner. Also, Chittum is accused of co-mingling a $200,000 settlement his wife was awarded in a personal injury case with his business funds.

The Board is asking Stanton be admonished, and Chittum be reprimanded.

West Virginia Supreme Court of Appeals, case number 34623