Smith accused of communication failure in two other cases

By Lawrence Smith | Jan 26, 2012

CHARLESTON – Records show prior to his disbarment, Martin R. Smith Jr. failed to communicate with two clients about their cases.

Not included in the July 2011 statement of charges that lead to his disbarment earlier this month were complaints filed against Smith by Curtis Overbaugh of Richwood and David A. Frampton of Cross Lanes. In their respective complaints filed almost a year apart, both men say Smith failed to not only perform any meaningful work, but also keep them updated on the status of their lawsuits.

In his complaint filed April 15, 2010, Overbaugh said he and Slim Jordan met with Smith on Sept. 26, 2008, to help them obtain information from the city of Richwood, and file a petition in Nicholas Circuit Court for the removal of unnamed city officials. When Smith agreed to take the case, Overbaugh paid him a $3,000 retainer.

However, Overbaugh said Smith failed to provide any progress reports on filing the lawsuit. After a year passed, he asked Smith for a refund of his retainer.

In response to Overbaugh's complaint, Smith denied any lack of communication. Not only did he travel to Richwood to meet with him after he and Jordon met him in Charleston in 2008, but he also was waiting for Overbaugh to send him additional information to use in filing the suit.

Nevertheless, Smith admitted that a family emergency would prohibit him from completing work on the case. In his sworn reply dated June 1, 2010, Smith said he returned the unearned portion of Overbaugh's retainer.

In closing Overbaugh's complaint on March 4, Chief Lawyer Disciplinary Counsel Rachael L. Fletcher Cipoletti warned Smith about his lack of diligence and communication. Also, she cautioned him that "failure to adhere to these duties in the future may lead to more severe sanction."

In his complaint filed May 18, Frampton said he hired Smith to represent him in medical malpractice suit. Between September 2009 and November 2010 -– the time he was suspended for failing to complete mandatory continuing legal education –- Frampton says he paid Smith $4,076.

After becoming suspicious when Smith failed to provide him any updates on the status of his suit which included a certified letter that was returned unclaimed, Frampton called the Kanawha Circuit Clerk's Office in April 2011. It was then he learned Smith never filed his lawsuit.

In his response dated June 27 to Frampton's complaint, Smith said he stopped working on the case upon learning his license was suspended. Also, he said a "family illness and injuries he sustained in a vehicle accident also prevented him from taking action in the matter."

Nevertheless, Smith said he would make arrangements to reimburse Frampton. It remains unclear if he did.

The investigation into Frampton's complaint was closed Jan. 17 due to Smith's disbarment. In closing it, Cipoletti informed Frampton his complaint would be placed in a reinstatement file should Smith seek readmission to the Bar starting in 2017.

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