Jackson Kelly still could have committed black lung fraud, miner claims

By Steve Korris | Jun 4, 2010

Smoot BECKLEY -– Just because a report from a panel cleared Jackson Kelly lawyer Douglas Smoot of ethics charges in a black lung case doesn't mean the firm hasn't committed constant fraud, miner Clarence Carroll alleges in U.S. District Court.

Smoot

Karlin

Peak

BECKLEY -– Just because a report from a panel cleared Jackson Kelly lawyer Douglas Smoot of ethics charges in a black lung case doesn't mean the firm hasn't committed constant fraud, miner Clarence Carroll alleges in U.S. District Court.

"First, the report is not a final decision of any court," Allan Karlin of Morgantown wrote for Carroll on June 2.

The West Virginia Office of Disciplinary Counsel objected to the report, he wrote, and the Supreme Court of Appeals set it for argument on Sept. 15.

Smoot sent most of a doctor's report to a claimant but didn't send the doctor's narrative.

Karlin and John Cline of Piney View intend to pursue a class action on behalf of miners who filed black lung claims that Jackson Kelly defended for mine owners.

Cline filed three suits in Raleigh Circuit Court last year, claiming the firm misrepresented evidence to claimants and administrative law judges.

Cline wrote, "Jackson Kelly's misconduct in these cases goes well beyond an attorney's duty of zealous advocacy and rises to the level of intentional conduct."

He sought a declaration that Jackson's conduct is unlawful, an injunction against future conduct, and other just and equitable relief.

For Jackson Kelly, Jeffrey Wakefield of Charleston removed the suits to federal court and asked District Judge Thomas Johnston to dismiss them.

He argued that the U.S. Department of Labor resolves black lung disputes and that no trial court, state or federal, had jurisdiction.

For the miners, Jane Peak of Karlin's firm moved for remand to Raleigh County.

"Federal law does not preempt West Virginia from prescribing rules that govern West Virginia attorneys when they represent clients in federal forums," she wrote.

"Federal law also does not preempt West Virginia from disciplining those attorneys when their behavior in federal forums fails to conform to those rules," she wrote.

For Jackson Kelly, Erica Baumgras of Charleston bounced back on May 12, arguing that the panel report in Smoot's favor relied on federal law.

"Providing the history, physical examination report and test results to the claimant without the accompanying narrative report from the physician was in compliance with the statutes, rules and regulations that apply to federal black lung proceedings," she wrote.

"Although this case does not seek to discipline attorneys, it does seek to regulate and govern the procedures for defending federal black lung claims," she wrote.

In Karlin's view, Smoot's case proved that state judicial bodies can interpret federal law in adjudicating matters that arise under state law.

"Plaintiffs believe the panel erred in apparently concluding that there was no ethics violation because Mr. Smoot's conduct failed to violate a specific black lung practice, statute or regulation," he wrote.

"Lawyers do not need a specific provision in the rules of civil procedure to remind them that conduct involving deceit and misrepresentation is unethical," he wrote.

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