West Virginia Record

Wednesday, October 16, 2019

Court reprimands Jefferson Co. attorney for conflict in divorce case

By Lawrence Smith | May 6, 2011

CHARLESTON -– The state Supreme Court has disciplined an eastern Panhandle attorney for his conflict of interest in a domestic relations case.

The Court on March 14 adopted the recommendations of its Lawyer Disciplinary Board in reprimanding Kirk H. Bottner. The Board made its recommendation in February following a complaint lodged against him by Jennifer Kathleen Maddalino-Purdy, 38, of Leesburg, Virginia alleging Bottner,43, of Martinsburg, prepared documents in her divorce while representing her ex-husband.

According to the report of the Board's Hearing Panel Subcommittee, Boyd Purdy, Maddalino-Purdy's ex-husband, filed for divorce in 2006 after six years of marriage. His petition was filed on Sept. 6, and assigned to Jefferson Family Law Judge Sally Jackson.

A final hearing on the divorce was scheduled for Nov. 17, 2006. Shortly before it, Maddalino-Purdy, who was not represented by an attorney, met with Bottner and Purdy, and signed a separation and property settlement agreement. The agreement gave Boyd primary custody of their son, who would remain with him in Charles Town until they moved to Leesburg in January.

Upon discovering she had yet to file an answer to Boyd's petition, Bottner obtained a blank form from Jackson's office in which he "then sat with the document on his knee, asked [her] questions about it and checked boxes and filled in blanks with her responses." According to the report, Maddalino-Purdy after reading the answer Bottner prepared returned it to Jackson's assistant, who notarized it prior to the hearing.

A month later, Jackson granted the Purdy's divorce which included Boyd having primary custody of their son.

Three months later, Maddalino-Purdy obtained an attorney, Robert Aitcheson, who asked the final divorce order be vacated on the grounds she did not understand the implications of her answers. Particularly, he maintained she was unclear of the wording of paragraph five in Boyd's divorce petition which stated he "is the appropriate parent to receive temporary and permanent primary legal, physical and custodial allocation, subject to [Maddalino-Purdy's] right of custodial allocation."

In not objecting to that, she was deprived of her custody rights, Aitcheson said.

Along with the one to vacate the order, Aitcheson made a motion to disqualify Bottner from continuing to represent Purdy. Though Jackson denied it, she granted the motion to vacate the divorce on May 25, 2007.

After seven months of negotiations, Boyd and Jennifer reached a new settlement agreement and parenting plan. According the report, the revised agreements, which were approved on January 10, 2008, gave primary custody of their son to Jennifer.

Sometime thereafter, Maddalino-Purdy filed her complaint against Bottner. The Board on April 12, 2010, filed a statement of charges against Bottner finding he violated the Rules of Professional Conduct dealing with conflict of interest, dealing with an unrepresented person and misconduct.

A statement of charges acts like an indictment for disciplinary purposes. The misconduct charge was later dismissed.

In its report, the Board noted that Bottner, prior to aiding Maddalino-Purdy in filing her answer to the divorce petition, was Boyd's attorney, and not hers. However, the Board said him doing that "after having hard only Mr. Purdy's version of events, and without completely explaining, the consequences to her admissions to [her] certainly caused confusion."

"Similarly," the Board added, "the burden should not be placed on [Maddalino-Purdy] to determine [Bottner's] role in a matter when it is [he] who is the experienced domestic relations attorney and who should know what can occur when counsel prepares an answer for an unrepresented party in a divorce action."

Along with the reprimand, the Court adopted the additional sanctions recommended by the Board recommended. Those include Bottner perform 45 hours of pro bono legal work within the next year, take three hours of continuing education in the area of conflict avoidance and pay the costs of the disciplinary proceeding.

The reprimand is the first formal disciplinary action taken against Bottner, a partner in the Charles Town law firm of Bottner and Skillman, since his admission to the state Bar on Sept. 30, 3006. He was represented by Christopher K. Robertson from Jackson Kelly's Martinsburg office.

West Virginia Supreme Court of Appeals case number 35535

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