Board attorney's admission in e-mail grounds for disqualification, Evans says

By Lawrence Smith | Jun 25, 2010

CHARLESTON - Along with the pending fraud case, Cynthia Evans wants the attorney handling it gone.

Two weeks after filing her motion to dismiss a fraud lawsuit filed against her and her law firm -- Cynthia E. Evans, Attorney-at-Law -- by the Kanawha County Board of Education, Evans filed a motion to disqualify the Board's attorney, Vaughn T. Sizemore, from the case. In her June 3 motion, Evans says an e-mail message Sizemore sent to her last month is prejudicial to the Board since he admitted in it she'd done nothing wrong.

In his message dated May 3 -- that Evans included as an attachment to her motion -- Sizemore starts by saying "I don't believe you did anything wrong, but according to Judge Goodwin, the money the board paid to you should have gone to [Mark] Davis." Also he states the "claims by the board do not require that you did anything wrong" and he "was not implying that you had committed malpractice."

Sizemore continued by reminding Evans he attempted to "figure out a way to make the board happy with the least pain to you." However, when she rebuffed the numerous attempts to settle the dispute, Sizemore said he was left no option but to file the lawsuit against her.

"The board has a valid claim for the money, and is insisting upon receiving it," he said. "You offered no option where you would repay any of the money back."

"The board is a political subdivision funded by taxpayer dollars," Sizemore added. " It cannot have a missing $50,000 that it was not ordered to pay."

In concluding his message, Sizemore apologized for the situation, but reminded Evans the duty he owes to his client, and left the door open for a settlement.

"I know you blame Chuck [Bailey] and me, but it just isn't the case," Sizemore said. "Chuck has nothing to do with his and I hate that I do, but I represent the board and the board is insistent on being repaid."

"If there is any way you can think of to resolve this please let me know," he added. "Any proposal would have to be approved by the board, but I would hope there is something that would work for both you and the board."

Apparently, Evans intends to use Sizemore to her advantage as she says in her motion "he is a material witness whose testimony cannot be obtained elsewhere and is prejudicial to his client's claims."

In her motion, Evans cited both the state Supreme Court's 1994 decision in Musick v. Musick that gave circuit judges the ability to remove lawyers where their representation presents a conflict of interest or where the lawyer is a material witness, and the state Bar's Rules of Professional Conduct stating that "lawyers shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness" as grounds for disqualification.

After scheduling a hearing for Sept. 10 on Evans' motion to dismiss, Judge Jennifer Bailey recused herself from the case on June 11 citing a long-time acquaintanceship, and Evans' regular appearance in her court. Records show the case was reassigned to Judge Paul Zakaib.

As of presstime, Zakaib had yet to either schedule a hearing on the motion to disqualify or indicate if it would be considered during the Sept. 10 hearing.

Kanawha Circuit Court case number 10-C-772

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