Court imposes sanctions in two disciplinary cases

By Lawrence Smith | Feb 5, 2010

CHARLESTON - In less than three weeks after hearing them, the state Supreme Court issued its rulings in two attorney discipline cases.

CHARLESTON - In less than three weeks after hearing them, the state Supreme Court issued its rulings in two attorney discipline cases.

The Court on Jan. 29 issued its opinions in the cases of Kenneth E. Chittum and Jeffrey L. Barton. Both cases came before the Court on Jan. 12.

The Court agreed with the recommendation of the Lawyer Disciplinary Board, the prosecutorial arm of the state Bar, that Chittum, a Bluefield attorney, be reprimanded for attempting to establish a sexual relationship with a client, and for co-mingling personal funds with those awarded to his wife from a personal injury settlement. In addition to the reprimand, the Court ordered Chittum to have not only his practice supervised by another attorney, but also his office be regularly audited by a certified public accountant for the next two years, take an additional nine hours of continuing education in the area of ethics and office management and pay the cost of the disciplinary proceeding.

In a unanimous, unsigned opinion, the Court said Chittum did not properly conduct himself in the sexual references he made in telephone calls, and letters between himself, and Deborah L. Stevenson while she was incarcerated in a federal prison in Florida. Chittum was appointed as Stevenson's guardian ad litem to aid in divorce proceedings filed by her husband in Mercer Circuit Court in 2004

Though they never had any sexual relations since they never met in person, Chittum's "telephone calls and letters implied the possibility of having a romantic relationship with Ms. Stevenson at some future date." Because she was in a "vulnerable position," the Court found Chittum's "flirtatious remarks" to be "inappropriate and prejudicial to the administration of justice."

"Under the circumstances," the Court said, "Ms. Stevenson might have felt obligated to respond to Mr. Chittum's flirtatious overtures to ensure that he would fully pursue her interests in the divorce proceeding."

One matter in which the Court disagreed with the Board was over delivery of Stevenson's personal belongings. In failing to timely deliver her belongings to Stevenson's grandmother as she requested, the Board charged Chittum violating the Rules of Professional Conduct regarding diligence.

However, the Court noted that Chittum on at least two occasions attempted to have the belongings delivered to the grandmother in Virginia. They were each time returned when she was not home to accept the delivery.

After the second time, Chittum left a voice-message with the grandmother, and kept the belongings in a storage facility when she did not return his call. He later learned she remarried, and moved.

Nevertheless, the Court ordered Chittum to again deliver Stevenson's belongings to her grandmother 30 days after the Board confirms her new address.

Prior to his appointment as Stevenson's guardian ad litem, Chittum and his wife received a settlement from a car wreck in which his wife was seriously injured. After receiving two $100,000 checks on Dec. 5 and 19, 2003, and paying McGinnis E. Hatfield $5,000 for the legal work he performed on their behalf, Chittum deposited the money into his business trust account when it should have gone into his client trust account.

During the next two weeks, Chittum wrote checks for household and office expenses from the business trust account. In March 2004, he wrote a check made to "cash" for $150 from the client trust account, and eventually emptied it in June 2005.

Though no client funds were misappropriated, the Court found Chittum committed a Rules violation in "failing to properly maintain and administer a separate client trust account and by commingling his personal money with client funds."

Barton disbarred

Because he did misappropriate client funds, the Court ordered Barton be disbarred. Additionally, the Court ordered Barton to pay $31,183.39 in restitution to the client's estate, and, should he decide to reapply for admission to the Bar in 2015, pay the cost of the disciplinary proceeding, provide evidence he paid the restitution and have his office supervised for two years including quarterly audits of financial records by a certified public accountant.

The Court found that from July 2004 until August 2008, Barton, a Nitro attorney, engaged in "a pattern of misconduct" in which he engaged in "a dishonest or selfish motive" in dealing with the estate of Freeda Pringle. After helping her settle with three insurance companies for $65,000 in 2003, Pringle died at age 92 in February 2004.

When Karen Richardson, Pringle's daughter, and the administratrix of her estate, asked Barton for an accounting of the remaining settlement proceeds. In July 2004, Barton notified Richardson by letter, after paying all fees, and costs associated with the lawsuit, Pringle received $20,000 which he paid her prior to her death.

Barton charged Richardson $3,000 to conduct the accounting.

However, Richardson disputed Barton's accounting showing Pringle's checking account between the time the settlement was reached, and her death showed no deposits from any checks written by Barton. Also, in the ethics complaint she filed in July 2006, Richardson noted an outstanding Medicare lien, and bill to Beltones for hearing aids totaling $20,700.

Shortly after filing her ethics complaint, Richardson filed a legal malpractice suit against Barton in Kanawha Circuit Court. In May 2007, they reached an initial agreement where Barton was to pay the estate $100,000 by February 2008.

A new settlement agreement was reached in Aug. 2007 with Barton agreeing to pay Richardson $103,000, including the fee he charged her to conduct the accounting, and pay the Medicare lien by Oct. 1, 2010, after agreeing to forfeit the $20,000 he initially paid toward the settlement. However, by the time his case came before the Court, he'd only paid the estate $46,000 with no payments made since August 2008.

Since any misappropriation of funds was not intentional, and a result of poor recordkeeping, Barton argued the Court should let him off with a mild punishment that allows him to continue practicing law while learning proper office management. Also, he maintained his settlement with Richardson in the civil suit negates any bad conduct.

The Court didn't buy Barton's arguments instead finding his "deceit was intentional and calculated to take advantage of the death of his client to cover up his monetary indiscretions."

"This argument is supported by the fact that he lied to the estate and created a fraudulent billing statement when confronted with a request for an accounting of the personal injury settlement monies," the Court said.

Also, though "separate and distinct from the ethics complaint," the Court said Barton cannot seriously argue his "settlement" in the legal malpractice suit shows a good faith effort to make amends with Richardson. The fact he has not honored his agreement to pay the Medicare lien, and the harm it has caused to Pringle's estate, is reason enough for a harsh punishment.

"Thus, the estate remains obligated for such payment, with an anticipated interest penalty to be imposed," the Court said. "Mr. Barton's deceit caused great harm both monetarily and emotionally to the persons associated with Ms. Pringle and her estate and has the potential to continue to cause harm due to the imposition of interest on the Medicare lien."

West Virginia Supreme Court of Appeals, case numbers 34733 (Chittum) and 34623 (Barton)

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