Disciplinary charges filed against Morgantown attorney

CHARLESTON –- A Monongalia County attorney is accused of unethical conduct in three cases –- two civil, and one criminal –- in as many years.

The Lawyer Disciplinary Board on Sept. 26 filed a three-count statement of charges against Jennifer M. McGinley. In its statement, the Board accuses McGinley, 41, a sole practitioner in Morgantown of 17 violations of the Rules of Professional Conduct that stem from allegations of submitting false evidence in an estate matter, conversion of funds from a personal injury settlement and representing clients with conflicting interests in a criminal case all between 2008 and 2010.

A statement of charges acts like an indictment for disciplinary purposes.

Suspicious will

The first count against McGinley stems from a complaint filed against her by Jacques R. Williams, a fellow Morgantown attorney. Shortly after the death of his sister-in-law, Barbara Nelson on Jan. 30, 2008, Williams alleged McGinley presented him with what appeared to be Nelson's last will and testament.

The will dated July 17, 2007, left Nelson's estate to Kyle and Donna Ringer. Because the will was not witnessed, contained multiple errors that suggested other beneficiaries and had missing pages and clauses such as exact instructions Nelson left for the Ringers, Williams contested it after Kyle Ringer submitted it for probate on Feb. 6, 2008.

That same day, Williams was successful in getting a court order prohibiting the Ringers from either entering Nelson's home without permission of his wife, Janet, or disposing of any of the estate's assets. A week later, the Monongalia County Commission voted to refuse to accept the purported will into probate.

Three months later in response to requests for admissions, McGinley stated "'[i]nstructions were never written by Barbara S. Nelson.'" Rather, the instructions were given to Donna Ringer orally who wrote them down the same day Nelson prepared her will.

Included in the instructions was for McGinley to receive money from an unspecified car accident involving Nelson. However, the accident did not occur until Oct. 16, 2007.

Litigation in the Nelson estate continued until November 2008 when the case was dismissed. Because she did not have Nelson's will properly witnessed, and submitted false evidence to include the self-serving handwritten instructions from the Ringers, the Board charged McGinley with eight violations of the Rules of Professional Conduct including those dealing with competence, candor toward the tribunal, truthfulness in statements to others and fairness to opposing counsel and others.

Conversion of settlement

Five months after the dismissal of the Nelson estate dispute in Monongalia Circuit Court, McGinley negotiated a settlement in a personal injury case on behalf of Rhoda Mae Marchant and her son, Nathan Brown, against the Preston County Board of Education. The statement does not specify any details of the lawsuit expect the Board agreed to pay Marchant $19,000 to settle it.

According to the statement, the Board's insurance carrier, National Union Fire Insurance of Pittsburgh, on April 25, 2009, tendered McGinley two checks totaling $19,000. One was in the amount of her attorney fees of $4,000, and the other was for Marchant's and Brown's portion of the settlement.

Four days later, McGinley told Marchant she would be holding her check for a week to 10 days. When asked to put that in writing, McGinley in a letter dated April 30, 2009, said the hold was necessary to ensure Marchant's previous attorney who died did not have a lien on the settlement proceeds.

According to the statement, McGinley's letter stated "'[y]our funds will be placed in an interest bearing escrow account so that during the waiting period your money gains a bit of interest.'"

Almost a month later on May 22, McGinley wrote Brown a check for $15,000 and told him since the funds were being wired into her account, he could deposit the check after 5 p.m. The next day, Brown deposited the check keeping $2,000 in cash, and leaving the balance in his account.

However, a few days later, Brown received notice that McGinley's check was returned for insufficient funds. After threatening to bring suit against her in magistrate court, McGinley on June 3 met Marchant and Brown at the bank with a cashier's check for $10,500, and later wrote them a check for $4,824.27 from her office's operating account.

In response to Marchant's ethics complaint, McGinley said the error occurred when she failed to confirm the funds were transferred. Earlier this year, McGinley testified under oath that she transferred Brown's settlement funds from her operating account into an online escrow account where the $15,000 check was drawn, and the reason it was returned was due to another client cashing her settlement check the same day.

However, bank records obtained in the course of investigating Marchant's complaint showed no transfer of $15,000 from McGinley's operating account into Brown's escrow account. In fact, on May 31, 2009, the day Brown's check cleared her account, McGinley had a balance of $3,322.87.

Because she "improperly and illegally converted" funds belonging to Brown, and lied about it to both her client, and the Office of Disciplinary Counsel, the arm of the state Supreme Court that investigates attorney misconduct, the Board charged McGinley with five additional Rules violations including those dealing with safekeeping of property, and Bar admission and disciplinary matters.

Case conflict

The third count against McGinley stems from a complaint opened by ODC at the request of U.S. Magistrate Judge John S. Kaull and U.S. District Judge Irene B. Keeley. The pair forwarded orders removing McGinley from a criminal case where she had an apparent conflict of interest.

According to the statement, McGinley was attorney for Michael Pavlock and Richard Powell who were indicted on Jan. 2, 2010, by a federal grand jury on unspecified charges. However, the statement indicates the charges stem from an apparent Ponzi scheme they operated as far back as 1999.

Two of their largest investors were Robert Konchesky, and his sister, Edith. After serving her with a subpoena on May 5, 2009, to testify before the grand jury, FBI Special Agent Brian Fox was informed McGinley would be representing Edith.

Following the indictment, the U.S. Attorney's Office on Jan. 19, 2010, moved to have McGinley disqualified as Pavlock and Powell's attorney. The Office made the motion on the grounds McGinley had a conflict in representing them while not only being counsel of record for Edith Konchesky, but also representing Robert in other legal matters.

On Feb. 19, Kaull issued an order recommending McGinley be disqualified. In his order, Kaull said "it is inappropriate to permit McGinley to continue representing Pavlock when to do so would require her to cross examine her other clients: Robert Konchesky and Edith Konchesky."

Later on April 1, Keeley issued an order accepting Kaull's recommendation disqualifying McGinley as Pavlock and Powell's attorney. In her order, Keeley said despite Pavlock and Powell's desire to have her continue as their attorney that "McGinley's conflicts in the case are so deep and numerous that she cannot impartially evaluate the defendant's individual claims."

Also, Keeley said "For her to do so would violate each of the defendants' right to loyal and zealous representation" and "would violate her ethical duties as a lawyer under the West Virginia Rules of Professional Conduct." On April 22, Keeley denied a motion McGinley made April 12 to reconsider her ruling.

In the subsequent investigation, McGinley continued to deny a conflict between Pavlock, Powell and Konchesky's interests. According to the statement, she said her disqualification "'is, and was, ridiculous, and I believe wholly unconstitutional.'"

"'I pray that I never, ever see anything like it again in my future practice of law,'" she added. "'I went to law school to protect the constitution not to watch those who are supposed to protect it trample upon it.'"

Nevertheless, finding her "simultaneous representation of Pavlock, Powell, Mr. Konchesky and Edith Konchesky amounts to a clear, per se, unwaivable conflict of interest," the Board charged McGinley with four additional Rules violations including those dealing with misconduct.

An evidentiary hearing is scheduled in McGinley's case on Jan. 18 and 19 in Morgantown.

West Virginia Supreme Court of Appeals case number 11-1376