Two clients sue St. Albans attorney for retainer refunds

By Lawrence Smith | Jul 27, 2012


CHARLESTON – In addition to nearly 20 ethics complaints, a St. Albans attorney is contending with two cases from former clients seeking recovery of retainers they say he failed to earn.

Charles L. "Dusty" Phalen Jr. is named as a defendant in separate civil suits in Kanawha Magistrate Court by Karen Taylor and Jason Scott Falbo. Taylor and Falbo are hoping to recoup $3,000, and $2,200, respectively, from Phalen after he failed to do any work in their domestic cases.

Taylor and Falbo are two of the nine clients whose complaints were combined in a statement of charges filed against Phalen in December by the Lawyer Disciplinary Board. The statement accused Phalen of 47 violations of the Rules of Professional Conduct that included failing to diligently represent, and timely communicate with his clients.

In her complaint, Taylor alleged that Phalen failed to show for hearings in Roane County regarding unresolved matters in the divorce of Taylor's deceased husband, Max, and his ex-wife, Janice. According to the statement, Roane Family Law Judge Larry S. Whited on Feb. 16, 2011, ordered Max Taylor's estate to pay $10,803.53 to Janice's attorney, Anita Harold Ashley.

After filing her ethics complaint, Karen Taylor filed suit against Phalen on March 14, 2011. In it, she asked not only to be repaid her $3,000 retainer, but also $2,000 "for mental anguish and hardship this has caused me."

Records show a certified letter sent to Phalen containing a summons, and Taylor's complaint was returned on April 14, 2011, as unclaimed.

About the time Taylor filed her ethics complaint against Phalen, Falbo filed his. too. In it, he alleged Phalen failed to perform any work in filing a petition to modification of parenting time with his children.

During the April 16 evidentiary hearing, Falbo was adamant about getting his money refunded. The hearing panel told him, while it could recommend that, he would have to take the initiative to recoup his retainer via a civil suit.

In his suit filed May 1, Falbo said there should be little to dispute in his case as Phalen "admitted his guilt in a court hearing on April 16." He added there "should not be different rules for lawyers as other taxpaying citizens."

Records show Phalen on May 29 without comment denied Falbo's allegations. A hearing in the case is scheduled for Aug. 8.

Two prior suits settled

In addition to Taylor and Falbo, three other clients – Roy and Cheryl Hudson and David Lee Whitlock – filed civil suits against Phalen to recoup their retainers. Both cases have since been settled.

The Hudsons on Jan. 12 filed suit to reclaim $4,500 they paid Phalen to appeal a family law judge's order returning a foster child placed it their care to his biological parents. The Hudsons also filed an ethics complaint against Phalen which, like Taylor's and Falbo's, was part of the statement of charges.

At the evidentiary hearing, Phalen agreed to repay the Hudsons $3,000. The repayment was conditional on them agreeing not to make any attempts to collect on for nine months after the magistrate entered the order.

Records show, they reached the agreement on June 4. The agreement also stipulated that no interest would accrue to the next nine months.

A week after Phalen reached his agreement with the Hudsons, Magistrate Joe Shelton entered default judgment in Whitlock's favor for $575. In his suit filed April 3, Whitlock said Phalen failed to perform any work regarding the estate of Marie Phyllis Whitlock Bell.

Whitlock's case was not included in the statement of charges. It is unknown if he has filed a related ethics complaint that is among the 19 pending against Phalen.

Criminal charges for bad checks

Another client whose ethics complaint was part of the statement also filed a complaint against Phalen in magistrate court. However, hers was a criminal charge of writing a worthless check.

According to her complaint, Stollings hired Phalen to help get guardianship of her grandson. When he failed to act, she asked for a refund of the $1,500 she paid him.

On a date not specified, Phalen wrote her a check. However, it was returned for non-sufficient funds.

Records show, Stollings filed her worthless check complaint on May 26, 2011. When Phalen failed on make good on it by the next month, Shelton on July 6 issued a warrant for Phalen's arrest.

At the evidentiary hearing, Phalen paid her with a cashier's check.

Records show that isn't the only time Phalen was criminally charged with passing bad checks. Another occurred nearly 20 years ago.

On May 3, 1994, a felony worthless check charge was issued against Phalen when a check for $2,596.35 he wrote to J.L. Brannon was returned for non-sufficient funds. Because files in magistrate court are destroyed after 10 years, no detailed information about the case is available.

However, according to the computerized index, then-Magistrate Phyllis Gatson on July 7, 1994, accepted a motion from then-Assistant Kanawha County Prosecuting Attorney Steve Sluss to dismiss the charge after Phalen agreed to pay Brannon $3,569.35 plus $82 in court costs.

The time he wrote the bad check, Phalen was working as a family lawmaster, the precursor of today's family law judges. In 2008, he ran in the Democratic primary for one of the family judgeships in Kanawha County, but was defeated by Charleston attorney Sharon Mullens.

The Board has yet to make its recommendation to the state Supreme Court on what punishment Phalen should receive.

West Virginia Supreme Court of Appeals, case number 11-1746 (Phalen statement of charges); Kanawha Magistrate Court case numbers 94-F-719 (Brannon criminal worthless check), 11-C-700 (Taylor civil), 11-M-6234 (Stollings criminal worthless check), 12-C-265 (Hudson civil), 12-C-882 (Whitlock civil) and 12-C-1162 (Falbo civil)

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