Trial continued in client's breach suit against St. Albans attorney

By Lawrence Smith | Aug 16, 2012


CHARLESTON – A Fayette County man has vowed to make the trek to Charleston as many times at it takes to recover money he says a St. Albans attorney stole from him.

"It was big waste of time and gas, and I'm going to add it to the bill," said Jason Falbo outside Kanawha Magistrate Court on Aug. 8.

"Hopefully, we'll get him next time."

Falbo, 41, of Fayetteville, was referring to Charles Lee "Dusty" Phalen. A bench trial on a breach of contract suit Falbo filed against Phalen was postponed after Special Magistrate Brenda Chapman announced Phalen two days earlier moved for, and was granted, a continuance.

A retired magistrate from Cabell County, Chapman was appointed by the state Supreme Court to hearing all cases assigned to Carol Fouty, who was suspended April 9 following a statement of charges filed against her with the Judicial Hearing Board. After Fouty announced her resignation Aug. 3, Chief Kanawha Circuit Judge Louis H. "Duke" Bloom appointed her assistant, Kristen Vieweg, to fill Fouty's vacancy.

In his suit filed May 1, Falbo sought return of the $2,200 he paid Phalen to file a petition in Kanawha Family Court for modification of parenting time with his children. Upon paying him the money, Falbo alleges Phalen did no work, and failed to return any telephone calls.

According to Falbo, his case is assigned to Judge Michael J. Kelly. He says he wants his money returned so he can hire a new attorney to do want Phalen didn't.

Prior to filing his suit, Falbo lodged a complaint against Phalen with the Office of Disciplinary Counsel, the arm of the Court that investigates attorney misconduct. On Dec. 23 ODC brought a statement of charges against Phalen accusing him of 47 violations of the Rules of Professional Conduct in neglecting Falbo's and eight other former clients' cases.

During an April 16 evidentiary hearing on the statement before a subcommittee of the Lawyer Disciplinary Board, Falbo asked that the Board's punishment of Phalen include refunding his retainer. J. Miles Morgan, the panel's chairman, told Falbo, while the Board could recommend Phalen make restitution, his best course of action in getting his money back was through a civil suit.

Prior to conclusion of the hearing, the panel said it was tentively recommending that Phalen be suspended for a year, and make restitution to some of his clients. It has yet to formally file its recommendations with the Court.

Since the hearing, 19 other clients have filed ethics complaints against Phalen.

As of presstime, the bench trial in Falbo's suit had yet to be rescheduled.

Kanawha Magistrate Court case number 12-C-1162

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