Bar warns Hayhurst not to bill for 'unrequested work'

CHARLESTON -- Six months before his suspension, the state Bar had strong words for Richard H. Hayhurst in his handling of a Wood County woman's defense in a contract dispute.

On June 2, the state Supreme Court suspended Hayhurst's law license following his conviction on charges of tax evasion. In November, Hayhurst entered a guilty plea in U.S. District Court to willfully failing to pay $405,000 including over $8,000 in withholding taxes over a three-year period.

In April, Hayhurst was sentenced to 21 months in prison, and ordered to begin paying the IRS $500 a month once he's released.

A month after entering his guilty plea, the Office of Disciplinary Counsel, the investigative arm of the state Bar, closed a ethics complaint it received from a Vienna woman who expressed dissatisfaction with the way Hayhurst handled her case. She alleged Hayhurst, among other things, failed to submit regular billing statements, and billed her for nearly $1,000 for three hours of unrequested work which included filing a motion to withdraw as attorney from her case.

Surprising bills

According to the complaint, Tobitha Pfalzgraf hired Hayhurst to defend her in a lawsuit filed by James Hardman in Wood Circuit Court. Records show Hardman, owner of Hardman Construction in Belpre, Ohio, filed suit on Dec. 15, 2006, to perfect a mechanic's lien he filed against her the month earlier seeking payment for $18,503.56 in repairs he made on her home.

During their initial meeting, Pfalzgraf expressed her desire to bring the case to a "quick conclusion." Despite offering to pay him a retainer, Hayhurst refused, and said " 'I will let you know when we get to $1,000.'"

In her complaint, Pfalzgraf says that Hayhurst never gave her a contract to sign nor quoted her an hourly rate.

Though records show Hayhurst did file an answer on Jan. 2, 2007, to Hardman's complaint, Pfalzgraf alleges that was about the only thing productive he did. In her complaint, Pfalzgraf maintains that despite sending him "copious amounts of paperwork," Hayhurst told her at follow-up meetings "'I haven't looked at your file'" and failed to respond to a March 14, 2007, discovery request from Hardman's attorney for production of documents.

Upon learning that Hayhurst failed to respond to the discovery request, and that Judge Robert A. Waters scheduled a hearing on a motion to compel and impose sanctions, Pfalzgraf dismissed him on July 5, 2007. After hiring a new attorney on July 13, Pfalzgraf was informed the hearing was two days later.

Two days after dismissing him as her attorney, Pfalzgraf says she received a bill from Hayhurst for $3,382.34. In her complaint, she says that was "the first indication that his services exceeded $1,000."

As a good faith gesture, Pfalzgraf on July 11 sent Hayhurst a check for $1,000. However, he returned it the next day, and threatened to sue her if she did not pay in full.

Records show Hayhurst filed a lien for unpaid attorney's fees on July 17.

Ten days later, Pfalzgraf received an updated billing statement. This one included $855 for three hours of work she did not request.

According to her complaint, Pfalzgraf avers Hayhurst charged her for preparation of his notice to withdraw as counsel, order of substitution as counsel, notice of attorney's lien and letter returning the check and threatening to sue her. In the letter attached to the updated billing statement, Pfalzgraf said Hayhurst threatened to notify all the credit bureaus of her delinquency on a monthly basis if she did not remit payment in full by Aug. 3.

Instead of remitting payment on that day, Pfalzgraf filed her complaint with the Bar.

Dispute ends, warning issued

After a two-year investigation, ODC closed Pfalzgraf's complaint on Dec. 10, 2009. In it, Chief Lawyer Disciplinary Counsel Rachel L. Fletcher Cipoletti noted that since the basis of the complaint constituted a fee dispute, Pfalzgraf and Hayhurst agreed to settle it through the Bar's Voluntary Fee Dispute Resolution Program.

However, Cipoletti said it was improper for Hayhurst to charge a client for services he performed after Pfalzgraf terminated him. Billing clients for work done after the attorney-client relationship has ended will not be tolerated, Cipoletti told Hayhurst.

"Respondent [Hayhurst] is strongly warned about this behavior and cautioned that similar actions in the future will result in disciplinary action," Cipoletti said.

Records show, Pfalzgraf and Hardman settled the civil suit on Jan. 15, 2008, for an undisclosed amount.

Last month, Hayhurst began serving his sentence for tax evasion at the Hazelton Penitentiary in Bruceton Mills.