WEST VIRGINIA RECORD

CHARLESTON – Instead of doing the arguing, some state attorneys and law firms were the subjects of the state Supreme Court’s oral arguments held April 16-17.

Charleston attorney Michael Clifford is defending himself from a conflict-of-interest complaint, while the Charleston firm Tabor Lindsay & Associates is appealing an order that denied it insurance coverage from a complaint filed by a former client.

Also, the statewide law firm Bowles Rice is defending itself from a claim that it wrongly did not pay an engineering firm a share of the fees it won in a multimillion dollar case.

The claim involving Richard D. Lindsay and Pamela Lindsay was the second case heard April 16. In it, the Lindsays, doing business as Tabor Lindsay & Associates, are appealing a 2011 summary judgment ruling by Kanawha Circuit Judge Charles E. King.

The ruling said the Attorneys Liability Protection Society did not have to defend or indemnify the Lindsays in a lawsuit filed by Ronnie Smith.

Smith and his late wife Nancy Smith hired DiTrapano, Barrett & DiPiero for a medical malpractice claim in 1990.

Rudolph DiTrapano enlisted the Lindsays’ firm to litigate the case because of its medical malpractice expertise. The lawsuit was settled in 1995 and the Nancy E. Smith Irrevocable Trust was established to receive the proceeds. Nancy Smith passed away in 1998.

Ten years later, Ronnie Smith filed a lawsuit against the Lindsays’ firm, alleging that it had wrongfully caused a check to be issued in Pamela Lindsay’s name in the amount of $290,000.

King’s ruling says the Lindsays’ firm did not report Smith’s claim to ALPS during the 2008 and 2009 policy periods, instead retaining defense counsel on its own.

“In applying for the 2008 and 2009 policies, TL&A completed and executed application forms that each asked if any claims had been asserted against the firm or any of its members during the past five years and whether TL&A was aware of any circumstances that could give rise to a claim,” King wrote.

“In each instance, TL&A responded to this question by checking the box for ‘No.’”

The firm provided notice to ALPS of the claim on May 20, 2010, saying it had not reported the case earlier because it looked upon it as a “nuisance case.”

ALPS’ denial to defend and indemnify the Lindsays’ firm was based on the fact that the claim was first asserted in 2008, more than two years before the inception of the firm’s 2010 policy.

In response, the Lindsays’ firm filed a third-party complaint against ALPS. The firm’s brief says allegations that Pamela Lindsay had misappropriated the $290,000 check were eventually dropped, but Smith still claims she wrongfully endorsed his name on a check and failed to deposit sums paid to her from the settlement funds into the trust.

“A reasonable individual could interpret, due to a lack of information to the contrary, that a ‘potential claim’ may not be covered and could reference claims sounding in intentional conduct,” the Lindsays’ appeal brief says.

“Because ALPS forwarded literature to TL&A stating that TL&A was encouraged, but not required, to report ‘potential claims,’ ALPS should have been estopped from asserting that the strict application of the claims-made-claims-reported policy provisions should control.”

Also argued on April 16 was Clifford’s petition for a writ of prohibition against the Office of Disciplinary Counsel and Lawyer Disciplinary Board.

Clifford is arguing that the disciplinary boards don’t have the authority to file a complaint against him because, in the underlying case, a motion to disqualify him as counsel for a woman had been filed, rejected by a judge and never appealed.

Clifford was representing Sandra Shaffer in a civil lawsuit against the City of Charleston, the Kanawha County Commission, James Hunt and David H. Armstrong in Kanawha Circuit Court.

It was alleged that the defendants destroyed and damaged her property during a search conducted pursuant to a warrant issued in an investigation into three sniper-style murders in 2003 in Kanawha County.

At that time, Clifford was the Kanawha County Prosecuting Attorney.

In a Sept. 12, 2011, order, Judge James Stucky rejected a motion to disqualify Clifford from representing Shaffer because of a conflict of interest.

“The court finds, as a matter of law, that the defendants have not met the burden of the substantial relationship test to show a nexus between the sniper case (which is criminal in nature) and the civil suit filed by Mrs. Shaffer, so as to render Mr. Clifford disqualified,” Stucky ruled.

In December 2011, Shaffer asked to have Clifford and any other lawyers from his firm removed from the case because he was “there for the publicity and not for helping me get a new home or belongings.”

Stucky granted the request on March 8, 2012.

On July 5, the disciplinary boards sent Clifford a letter that said the conflict-of-interest complaint would be closed with an admonishment if Clifford did not object. Clifford objected 11 days later.

A statement of charges against Clifford was filed Sept. 24.

“Clearly, Respondents do not have the authority to act as an appellate court over circuit court judges,” Clifford’s petition says.

“If one circuit court judge is unable to directly or indirectly correct or interfere with another circuit court judge’s ruling, then similarly Respondents cannot have the authority to directly or indirectly contradict the ruling issued by Judge Stucky.”

The ODC and LDB argue a motion for disqualification of an attorney is not dispositive as to violations of the Rules of Professional Conduct.

“(The Supreme Court) may allow the circuit courts to control the cases before those courts, but (the Supreme Court) has maintained jurisdiction on disciplinary matters,” their brief says.

Gaddy Engineering’s appeal of a Roane Circuit Judge Thomas C. Evans III decision was heard April 17.

That lawsuit alleged Gaddy Engineering was promised one-third of the fees Bowles Rice attorney Tom Lane would receive from a verdict in a case against Columbia Natural Resources.

That lawsuit resulted in a $404 million verdict, one of the largest in state history. Attorneys were awarded $125 million, though not all of it went to Bowles Rice.

Gaddy’s complaint alleged the attorneys “secretly agreed with other Tawney attorneys to divide the total attorney fees in a manner that yielded defendants far less than one third of the amounts received by the Gaddy/Bowles Rice clients” and that the amount was hidden from Gaddy.

Gaddy accused Lane and his firm of professional negligence, breach of contract, fraud, conversion and misrepresentation, among other things.

The lawyers in the Tawney case represented about 10,400 leasers in a class action lawsuit against NiSource Inc. and Chesapeake Energy. Lawyers from four law firms — The Masters Law Firm, Bowles Rice, Carey Scott and Douglas and The Segal Law Firm — represented the plaintiffs.

The 2007 verdict initially awarded $94 million of past royalty, $40 million in interest, $134 million in compensatory damages and $270 million in punitive damages to landholders. But the gas companies reached a settlement agreeing to pay $380 million. In exchange, they agreed to drop appeals pending before the U.S. Supreme Court.

Evans’ decision granted Bowles Rice’s motion for summary judgment on claims for negligence, gross negligence, intentional breach, negligent misrepresentation, conversion, promissory estoppel, unjust enrichment and quantum meruit.

From the West Virginia Record: Reach John O’Brien at jobrienwv@gmail.com.