WEST VIRGINIA RECORD

CHARLESTON – Former public defender John "Mack" Cavendish of Morgantown, who collected more than $60,000 on false bills, has lost his law license for three years.

The Supreme Court of Appeals suspended his license on June 15, finding that he violated duties to his clients, his profession and the public.

The Justices ruled that before he can petition for reinstatement, a doctor must certify that he is mentally and physically fit to practice law.

He must also make restitution to Daniels Capital Corporation, a lender that advances money to public defenders while they await payment.

Chief Justice Robin Davis and Justices Thomas McHugh and Brent Benjamin upheld recommendations of the Office of Disciplinary Counsel.

Justices Margaret Workman and Menis Ketchum dissented, with opinions to follow.

Cavendish passed the bar examination in 2005, and the Justices admitted him to the practice of law in 2006.

He worked at the firm of Campbell, Miller and Zimmerman in Charles Town for five months, and he maintained a solo practice for a few weeks after that.

On Aug. 21, 2006, he started working for the Public Defender Corporation in Martinsburg.

Two days later, he submitted a claim to Daniels Capital for $4,115.27.

When Daniels Capital receives an assignment of an amount due to a lawyer, it immediately pays 75 percent of the amount.

It pays the balance when it receives an assigned payment, minus a fee.

Cavendish continued submitting claims for thousands each month.

As a full-time public defender he should have closed his private practice in 90 days, but he continued representing clients on his own.

In 2007, chief public defender Deborah Lawson learned that he attended a hearing for an individual who wasn't a client of the corporation.

Lawson investigated and filed a complaint alleging he submitted 25 false applications to Daniels Capital, totaling $62,589.31.

Some applications reflected work he had performed for the Campbell firm, and some reflected work he had performed in solo practice.

At a committee hearing of the Office of Disciplinary Counsel, Cavendish stipulated that he misrepresented to Daniels Capital the amounts due to him.

He pleaded that his conduct was neither fraudulent nor intentional but was the result of memory loss from a cognitive impairment.

He introduced deposition testimony from his physician, Wilbur Sine, and medical records indicating he suffered from severe depression.

Cavendish testified that he lost many records in an automobile accident.

He said the accident required medications that adversely affected his mental functions.

Committee members recommended suspension, and the Justices adopted their view.

Their unsigned opinion stated that "the blanket assertions of Mr. Cavendish and his physician that depression caused or may have caused Mr. Cavendish's memory problems is insufficient to prove that his memory problems caused his misconduct."

They wrote that evidence indicated he was dishonest.

He violated duties to clients by failing to comply with the 90-day deadline to close his practice, they wrote.

"If Mr. Cavendish's misconduct truly was caused by an occurrence beyond his control, a lesser sanction would be appropriate," they wrote.

"Our review of the record indicates that Mr. Cavendish's testimony that he did not intend to falsely obtain money from Daniels Capital is not credible," they wrote.

Cavendish has agreed to make restitution to Daniels Capital, they wrote.

Andrea Hinerman represented the Office of Disciplinary Counsel. Cavendish represented himself.