Legal mal suit against Tax Dept. attorney slated for mediation

By Lawrence Smith | Sep 24, 2010

CHARLESTON -– After expressing some reluctance, a Jackson County man agreed to mediate his legal malpractice suit against a state Tax Department attorney.

A hearing was held Sept. 14 in Kanawha Circuit Court on Donald McCune's case against Ellen F. Golden. Judge Charles E. King Jr. wanted to find out the status of the suit since more than year had passed without any activity in the case.

After announcing her intention to serve as Golden's attorney, Sherri Goodman, a former chief lawyer disciplinary counsel for the state Bar's Office of Disciplinary Counsel, asked that King send the case to mediation given the lack of activity. King replied, "Absolutely. I think that's a great idea."

However, McCune was less than enthusiastic about the idea. When asked by King if he agreed to mediation, McCune replied "No, sir, I do not."

King then informed McCune that every case that comes before him, especially those that have been on the docket for more than two years, goes to mediation before trial. If he makes a good-faith attempt to mediate his despite with Golden, and an agreement can't be reached, then King told McCune he is then welcome to ask for a trial date.

"Whether you like it or not," King said, "it's going to mediation."

Prior to conclusion of the hearing, Goodman asked the case be among those assigned to next month's Settlement Week Alternative Resolution by Mediation. Held the first full week in April and October, SWARM is a voluntary program that allows litigants an attempt to resolve their dispute with a mediator approved by the state Bar.

When informed there would be no cost to him to mediate the case if it becomes part of SWARM, McCune was more accepting of the idea. King said he would refer the case to the court administrator's office for consideration.

In his suit, McCune, 67, a retired businessman now living on Social Security, accused Golden, 55, of not filing a personal bankruptcy for him in 2003. After paying her the $730 fee, McCune said he made various attempts between then and 2008 to find out what, if anything she'd done, all to no avail.

Originally, McCune filed the suit in Kanawha Magistrate Court in August 2008 asking solely for return of the $730 fee Golden charged him. However, the case was later moved to circuit court when McCune wanted more money, including possible punitive damages.

Seven months prior to McCune's suit, Golden shut down her law practice after declaring bankruptcy. The action came in the midst of five other clients informing the U.S. District Bankruptcy Clerk's Office they, too, had issues with the way Golden was handling their bankruptcies.

U.S. District Bankruptcy Court Judge Ronald G. Pierson on March 10, 2008, barred Golden from filing any bankruptcies for a year. In addition to the one-year prohibition, Pierson ordered Golden to refund the five clients the $750 fee they paid her, and take continuing education in consumer bankruptcy, law office management and electronic filing with the federal courts.

Six months after Pierson's order, Golden was hired as an upper-level attorney for the state Tax Department.

Last June, Golden attempted to get McCune's case dismissed saying he missed the statute of limitations. However, King denied Golden's motion saying that McCune met the statute of limitations by six days.

During last year's dismissal hearing, Golden made a goodwill gesture to McCune by repaying him at least $200 of the original fee.

Kanawha Circuit Court case number 08-C-3187

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