St. Albans attorney facing suspension for neglecting clients' cases

By Lawrence Smith | Apr 20, 2012


CHARLESTON – A St. Albans attorney faces suspension of his license after agreeing he failed to communicate with, and diligently represent nine clients in their respective domestic cases.

A panel of the state Supreme Court's Lawyer Disciplinary Board held an evidentiary hearing April 16 on a statement or charges against Charles L. "Dusty" Phalen, Jr. The statement accused Phalen, 56, a sole practitioner in St. Albans, of 47 violations of the Rules of Professional Conduct in neglecting the cases of Rodney W. Hudson, Brandon L. Whaples, Bobby B. Breeden, Donna R. Coon, Fawney S. Harshbarger, Donna L. Stollings, Karen A. Taylor, Jason S. Falbo and Cynthia L. White.

Specially, the statement accused Phalen of doing little, if any, work in their cases, mostly divorces, after they paid him a retainer. Also, communication with the Office of Disciplinary Counsel proved difficult as in all cases Phalen responded to the complaints after being subpoenaed, and in several did not comply with a request to provide ODC a copy of a billing statement of the work he performed.

According to the statement, Phalen attempted to refund retainers of $1,000 and $1,500 to Coon and Stollings, respectively. However, the checks bounced which resulted in Stollings filing a worthless check complaint against Phalen in Kanawha Circuit Court.

Separately, Rodney Hudson filed suit in Magistrate Court to recoup the $4,500 he paid Phalen to help he, and his wife gain custody of a foster child placed in their care. In his complaint, Hudson alleged Phalen failed to keep him updated of the appeal of the family law judge's decision to circuit court which eventually decided the child should be returned to the custody of his biological parents.

Prior to the hearing, Phalen's attorney Mark Kelley announced Phalen was stipulating to the charges against him. Though he was not necessarily agreeing with all the fact as set forth in the statement, Kelley said Phalen was agreeing he did not diligently pursue his clients' cases, and timely communicate with them.

Also, he stipulated all but Breeden was due a refund of their retainers. It was not until he time to testify that Breeden told the panel he felt Phalen owed him $950 to finish his divorce and $800 to cover the cost incurred to hire a new attorney.

Prior to the hearing, Phalen provided cahier's checks to ODC to refund the retainers to Coon and Stollings. Also, he agreed to confess judgment for $3,000 in Hudson's case in magistrate court in exchange for him agreeing to dismiss the suit, and not attempting to collect on it for nine months after the dismissal.

In exchange for Phalen's stipulation, the panel said it was considering recommending he be suspended from practicing law for a year. As a condition of any reinstatement, the panel added that it was also recommending his practice be supervised, and he issue refunds to the remaining clients.

Prior to conclusion of the hearing, Phalen, who previously served as a family lawmaster from 1990 and 2000 and unsuccessfully ran for family court judge in 2008, said he was planning on contesting the allegations, and expecting a light punishment by the Court. However, upon reflection he felt stipulating to the allegations was the best way to not only show remorse, but also put everything behind him.

"I would be distorting the truth if I did not think I could escape with some supervision," Phalen said. "I'd be a fool to answer any other way than to say I find myself terribly sorry I'm here today."

Also, Phalen said he did not deliberately write bad checks to Coon and Stollings. However, he said after he wrote the checks, BB&T tapped his bank account to collect on debts his former law partner owed them.

Panel chairman J. Miles Morgan asked Senior Lawyer Disciplinary Counsel Andrea Hinerman to schedule a telephone conference early next month to not only discuss proposed findings of fact, but also on how to deal with Phalen's current clients. Protecting their interests, he said, is "the number one issue we need to deal with."

According to the state Bar's Web site, Phalen began practicing law on May 19, 1981.

West Virginia Supreme Court of Appeals case number 11-1746

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