Court suspends Charleston lawyer in black lung case

By Lawrence Smith | Nov 18, 2010


CHARLESTON –- Withholding records in a black lung case has resulted in disciplinary action against a Charleston attorney.

The state Supreme Court on Wednesday ordered Douglas A. Smoot's license suspended for one year. The Court found despite the case's ultimate dismissal, Smoot's failure to include a physician's narrative in a black lung claimant's discovery request was dishonest.

Formal disciplinary charges were brought against Smoot, 54, last year following a three-year investigation by the Office of Disciplinary Counsel. The U.S. District Court referred the matter to ODC after it dismissed a black lung claim first filed by Elmer Daugherty against his employer, Westmoreland Coal Company, in 2000.

Daugherty was examined by Dr. George L. Zaldivar on Feb. 7, 2001. Later that year in November, Smoot, with the firm of Jackson Kelly, submitted to Harold Leland, the administrative law judge, various documents, including Zaldivar's examination report in preparation for a January 2002 hearing.

Though the hearing was continued, and the case eventually reassigned to other attorneys, it was eventually discovered that Smoot did not include all of Zaldivar's report in his November filing. During a 2004 hearing, Smoot testified he did not include Zaldivar's five-page executive summary dated May 16, 2001, finding that Daugherty suffered from complicated pneumoconiosis.

In March, a hearing panel subcommittee of the Lawyer Disciplinary Board, the Bar's prosecutorial arm, recommended the charges against Smoot be dismissed since there was no clear and convincing evidence he violated any of the Rules of Professional Conduct. Though it was bothered by Smoot's actions, the panel said it found Smoot was under no obligation to disclose the summary, and it was a regular practice in black lung cases to disassemble reports.

However, the Court in a unanimous opinion written by Chief Justice Robin Jean Davis said the hearing panel should have given weigh to testimony offered Michael P. Lesniak, the administrative law judge who eventually heard the case, who testified in his legal career he never encountered an attorney tampering with evidence, and, to the best of this knowledge, it was not common practice to disassemble medical reports. Lesniak also noted that he expected a law firm like Jackson Kelly to know better.

The Court determined Smoot, by his actions violated Rule 3.4 by unlawfully altering Zaldivar's report. In doing so, the Court also said Smoot violated Rules 8.4 (c) and (d) which prohibits an attorney of engaging in "conduct involving dishonesty, fraud, deceit, or misrepresentation" and "prejudicial to the administration of justice," respectively.

In punishing Smoot, the Court took note that since he was admitted to the Bar on Sept. 15, 1981, the lack of prior disciplinary action against him. However, Davis said a suspension was necessary given the fact that Smoot's disassembly of the report was intentional.

"We also find the seriousness of the conduct to be an aggravating factor," Davis wrote. "Submitting an altered report to a tribunal is an affront to justice that simply cannot be tolerated.

"Finally," she added, "notwithstanding the excuses that have been provided by Mr. Smoot to explain his conduct, we find the evidence is sufficient to establish that he acted with a dishonest and selfish motive by advancing the interests of his client above the integrity and fairness of the litigation process."

In addition to the suspension, the Court ordered Smoot pay the cost of the disciplinary proceeding. Also, in order to be readmitted to the Bar when the year is complete, the Court ordered him to take nine hours of continuing legal education in ethics beyond the mandatory 24 hours of continuing education to maintain a license.

Justice Margaret A. Workman recused herself from the case. Retired Greenbrier Circuit Judge Frank E. Jolliffe was appointed in her place.

Smoot was represented by three of his Jackson Kelly law partners, Stephen R. Crislip, A.L. Emch and Ben McFarland.

West Virginia Supreme Court of Appeals, case number 37424

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