Mineral County attorney charged with failing to communicate with clients

By Lawrence Smith | Dec 27, 2012

CHARLESTON– A Mineral County attorney has been cited for his alleged repeated failure to communicate with clients and the resulting ethics investigation.

The Lawyer Disciplinary Board on Oct. 31 filed a seven-count statement of charges against Chad B. Cissel. In the statement, the Board, the prosecutorial arm of the state Supreme Court, said Cissel, 37 and a sole practitioner in Keyser, kept four clients in the dark about their cases.

Those cases included a Lewis County businessman’s appeal to the court and a Tucker County man’s habeas corpus petition challenging his 30-year-old first-degree murder conviction that asserted newly discovered evidence proves his innocence.

A statement of charges acts like an indictment for disciplinary purposes.

According to the statement, Cissel in July 2008 was appointed to represent Jerry L. Burkhammer to appeal his conviction in Tucker Magistrate Court on a misdemeanor charge of violation of a protective order. After terminating his parental rights four years earlier, Judge Philip Jordan on Nov. 17, 2006 entered an order barring Burkhammer, who lives in Weston, from entering Tucker County until his biological daughter, Lindsay Brooke, turned 18 years old in 2014.

After he was observed in Tucker County attending a mud race in May 2007, Burkhammer was arrested and charged with not only violation of a protective order, but also attempt to commit conspiracy. Though convicted for violating the protective order, he was found not guilty the conspiracy charge.

Upon appealing his conviction to circuit court, Jordan denied it and ordered him to serve the maximum sentence of six months in jail without any credit for good time or trustee status.

After first filing a notice on July 28, Cissel on Sept. 2, 2008, filed Burkhammer’s appeal to the Supreme Court. In his brief, Cissel asked the court to overturn the conviction on the grounds of ineffective assistance of counsel and cruel and unusual sentence.

However, the court on Feb. 5, 2009, unanimously denied his appeal.

According to the statement, Burkhammer, who was released from jail a few weeks before the court denied his appeal, filed his complaint against Cissel on Oct. 6, 2010. In it, he alleged Cissel not only failed to keep him updated on the status of his appeal, but also raised issues of constitutional violations, and a conflict of interest.

In his complaint, Burkhammer says he asked Cissel to challenge his conviction on the grounds that Jordan’s 2006 order violated his right to freedom of travel. Also, he said that both Jordan and Magistrate Carol Irons should’ve recused themselves from hearing his case.

According to Burkhammer, Jordan, during one of the hearings in the abuse and neglect case, falsely accused him of being a pedophile. Also, he said not only did Irons serve as a bailiff during one or more the hearings during her term as sheriff, but also sometime following her election as magistrate, he confided to her his belief that he was being unfairly treated by the judicial system.

According to the statement, Cissel told Burkhammer, during what appeared to be their first and only meeting following his conviction, that he didn’t believe Burkhammer had a viable argument on the freedom of travel issue. He never addressed the conflict of interest issue.

Despite denying he failed to keep Burkhammer advised of the status of his appeal, the statement maintains Cissel twice ignored requests in May by the Office of Disciplinary Counsel, the arm of the Court that investigates attorney misconduct, for copies of any correspondence regarding the appeal.

Six months after Burkhammer filed his, Russell C. Phillips lodged a complaint against Cissel. In it, he alleged Cissel, for the previous 2 ½ years, did not respond to his repeated correspondence regarding a post-conviction habeas corpus petition.

In 1983, Phillips was convicted for murdering Timothy Roberts in Tucker County the year before. The trial was held in Mineral County.

According to the statement, Phillips in 2005 asked the WVU Innocence Project to examine his case. As a result, he maintained “third year law students have worked on his case and uncovered evidence to show he was innocent.”

Only after ODC subpoenaed him did Cissel respond to Phillips’ complaint, it is alleged. According to the statement, Cissel said he was awaiting the outcome of a hearing on DNA evidence before filing the habeas petition.

When reminded he was instructed by the circuit court on June 9, 2011, to write Phillips within 30 days to determine what action should be taken, Cissel said he would contact Phillips, respond to his ethics complaint and update ODC on the progress of the habeas petition.

According to the statement, he never did. Though he provided ODC a new address, a certified letter dated Feb. 10 sent to him there was returned.

The statement also accuses Cissel of neglecting Charles E. Bruffey’s and Joseph S. Bennett’s cases at the trial level. According to the statement, Cissel was appointed in October 2010 to represent Bruffey on robbery charges and Bennett on an unspecified date on charges of child neglect resulting in death and first-degree murder.

In his complaint, Bruffey alleged because Cissel did not respond to his letters or telephone calls, he was denied both a preliminary hearing and a bond reduction hearing. Following his indictment on Jan. 11, 2011, Bruffey asked for, and received, new counsel.

According to the statement, he lodged his ethics complaint the day before. In response to it after being subpoenaed, Cissel said, unless previously scheduled, he does not accept collect calls from inmates, and, prior to being relieved as counsel, he “believed that he made attempts to get Mr. Bruffey a bond reduction.”

According to the Cumberland Times-News, Bruffey was convicted in September 2011 for the Dec. 23, 2009, robbery of the Fort Ashby branch of M&T Bank. Currently, he is incarcerated at the Huttonsville Correctional Center in Randolph County.

When also asked about his actions in Bennett’s case, Cissel said, as a result of Bennett’s letter to the circuit court, he was relieved as counsel the day trial was to begin. Also, he claimed he hadn’t received a copy of Bennett’s complaint.

Despite pledging to file a response, he, like in Phillips’ case, never did, it is alleged. However, according to the statement, he did sign for the certified letter also dated Feb. 10 on Bennett’s complaint.

According to the Keyser News-Tribune, Bennett was indicted during the January 2011 term of the Mineral County grand jury for the July 2010 death of Alexis May Harbaugh, the infant daughter of his girlfriend. After agreeing to plead guilty to a charge of child neglect resulting in death after prosecutors offered to drop the first-degree murder charge for which he was indicted, Judge Lynn Nelson in March sentenced Bennett to a term of 3-15 years in prison.

Currently, he is incarcerated at the St. Mary’s Correctional Center in Pleasants County.

The statement accuses Cissel of violating Rules of Professional Conduct dealing with communication and failing to respond to a disciplinary inquiry. As of presstime, an evidentiary hearing on the statement had yet to be scheduled.

According to its website, Cissel was admitted to the state Bar on Sept. 26, 2000. Currently, he is administratively suspended from practicing law as a result of his failure to either pay his annual Bar dues or disclose if he has malpractice insurance.

West Virginia Supreme Court of Appeals, case number 12-1290

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