St. Albans attorney suspended at least a year

By Lawrence Smith | Nov 22, 2012

CHARLESTON – Until at least this time next year, a St. Albans attorney is prohibiting from practicing law.

CHARLESTON – Until at least this time next year, a St. Albans attorney is prohibiting from practicing law.

The state Supreme Court on Nov. 16 accepted the recommendation of its Lawyer Disciplinary Board and ordered the suspension of Charles L. “Dusty” Phalen’s license for a year. The Court’s action came in response to formal disciplinary charges filed in December against Phalen, 56, of 47 violations of the Rules of Professional Conduct in failing to communicate with, and diligently represent, nine clients in their respective domestic cases.

According to the statement, which acts like an indictment for disciplinary purposes, Phalen neglected 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, the statement accused him of failing to communicate with the Office of Disciplinary Counsel, the arm of the Court that investigates attorney misconduct. In addition to not responding to the respective complaints until served with a subpoena, the statement said Phalen failed to comply with ODC’s request to provide a copy of billing statements 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 him in Kanawha Magistrate Court.

Prior to the evidentiary hearing held in April on the statement, Phalen refunded Coon and Stollings their retainers with a cashier’s check.

In recommending a suspension, the Board took into account Phalen’s stipulation to the statement prior to the evidentiary hearing, and his willingness to provide refunds of the unearned portion of his legal fees to the other clients who requested it. Also, the Board considered the fact the statement was the first formal disciplinary action against Phalen as an attorney in private practice since his admission to the Bar on May 19, 1981, as a mitigating factor.

Along with the suspension, the Court ordered that Phalen’s return to the practice of law next year not be automatic, but that he formally petition for reinstatement of his license. As a condition of reinstatement, the Court said he would need to prove he made retainer refunds to Hudson, Harshbarger, Taylor, Falbo and White in the amounts of $3,000, $2,000, $3,000, $2,200 and $3,000, respectively.

At the hearing, Phalen agreed to make a refund to Hudson via the collateral suit he filed against him in magistrate court. The agreement called for Phalen agreeing to pay Hudson the money on the condition he dismiss the suit, and wait nine months before making any efforts to collect it should he not pay him before then.

Additional conditions for his reinstatement included him taking nine additional hours of continuing legal education in office management, and paying the cost of the disciplinary proceeding. Upon reinstatement, the Court ordered Phalen’s practice be supervised for another year by an attorney approved by ODC.

Also prior to reinstatement, Phalen will have to answer to ODC why he failed 19 other clients whose complaints were pending prior to his suspension.

Phalen was represented by Mark Kelley with the Charleston law firm of Ray, Winton and Kelley.

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