CHARLESTON – Attorneys accused of failing to pursue an elderly couple’s flood claims and covering it up for over 10 years are asking the state Supreme Court to prevent enforcement of an order forcing one of them to testify about the case.
Attorneys representing Jim Humphreys, James F. Humphreys and Associates LC and attorney Timothy Barber filed the motion Aug. 12 with the state Supreme Court. They ask the Justices to prevent the enforcement of Circuit Judge Jack Alsop compelling Barber to testify about what they say is attorney-client privileged communications and to testify about his work product relating to his representation of Ira and Mavis Horne of Tazewell County, Va.
“This case presents the clear and simple issue of whether the trial court is justified in vitiating the legal protection afforded to attorney-client privileged communications and attorney work product,” the petition states. “The court … has ordered petitioners’ outside counsel Timothy Barber to give deposition testimony regarding his private communications with the petitioners and to provide substantial disclosure of his fact and opinion work product and to do so on or before Aug. 20, 2015.”
They claim Alsop has issued his order “without a single finding of fact that supports disregarding these privileges and without a single citation of legal authority or conclusion of law that authorizes the ordered discovery.”
“The trial court has plainly exceeded its legitimate authority, and petitioners have no other option but to seek relief from this court,” the petition states, saying they seek a Rule to Show Cause why the Writ of Prohibition should not issue and bar any further enforcement of Alsop’s discovery order.
The Hornes, who have lived on the property in Cedar Bluff near Bluefield for about 55 years, claim Humphreys and his firm “failed completely” to pursue claims that their home and property were damaged by flooding and rains resulting from Hurricane Camille in July 2001.
The Hornes, who both are in their 80s, say the damage to their home and other structures “were made significantly more severe due to the prior disruption of terrain caused by construction related to the Tazewell County Airport” located near their property.
In 2002, the Hornes approached Humphreys about representing them in possible flood litigation. Soon, they retained the firm to represent them in a case against the Tazewell County Airport Authority and others for flood damage.
“At no time did Mr. Humphreys, Tim Barber, or anyone on Mr. Humphreys’ behalf, ever tell me that we did not have a case they were willing to pursue, nor that our claim had been dismissed with prejudice by the court, nor that the statute of limitations had run on the filing of our case,” Ira Horne wrote in the ethics complaint he filed last year with the state’s Lawyer Disciplinary Board.
“I understand now through my lawyer (Charleston attorney Rod Jackson) that my case was never really filed in any court, but that by order dated March 6, 2006, … my claim was dismissed, along with the claims of the other Virginia flood victims, because the WV case involved only WV residents.”
The ethics complaint followed their filing of a complaint against Humphreys. The filing includes several correspondences that include comments such as “your complaint was filed.”
In their Supreme Court petition, Humphreys, his firm and Barber detail the facts of the case, adding that they have denied all liability.
It says the plaintiffs sought to depose Barber in May, but that he didn’t appear. The plaintiffs then sought to find Barber in contempt for his failure to appear. Barber then filed a Motion for Protective Order, citing privilege. He also was found to not be in contempt because the subpoena had not been properly served, but he was ordered to be deposed and to invoke privilege when appropriate.
During a July 6 deposition, Barber invoked privilege in response to questions. The plaintiffs then filed a motion on July 17 to compel his testimony. Alsop issued the Motion to Compel on July 29, and Barber didn’t receive it until July 31, according to the petition.
According to Alsop’s order, Barber’s “in camera” testimony on July 21 was taken without objection.
“The court finds that Mr. Barber should be compelled to submit to the deposition by the plaintiffs and that he may assert ‘attorney-client’ and/or ‘work product’ privilege as to his conclusions only as to the validity of the plaintiff’s case, but court may revisit this issue at a later date based upon the ‘crime-fraud’ exception,” Alsop wrote.
Barber has been in the news recently for comments he made while representing former state schools Superintendent Jorea Marple in a lawsuit against the state Board of Education.
He called the board’s attorneys from the firm of Pullin, Fowler, Flanagan, Brown & Poe, “a bunch of f’ing crooks,” but he later issued a public apology saying his comments were inappropriate.
In his 2014 ethics complaint, Ira Horne also included a transcript of a sworn statement by a former Humphreys law firm employee who says everyone at the firm knew they had missed the statute of limitations in the case.
“Mr. Humphreys, Mr. Barber, and perhaps others, misrepresented to me that my case had been filed, and was pending, when in fact it was never filed,” Horne wrote in the ethics complaint. “There was a concerted effort by Mr. Humphreys, Mr. Barber and perhaps others in Mr. Humphreys’ office to ‘stall’ me as long as possible in order for me either to forget about the case or die.”
In the former employees sworn statement, she says she was talking to Barber about how to get a raise at work.
“He told her that all she needed to do was mention Ira Horn(e) and he would give her a raise,” Horne writes. “It seems like my name was a buzz-word for ‘trouble’ around the Humphreys’ office.”
The employee also testified that she didn’t mention Horne’s name to Humphreys when seeking a raise because “I valued my life.”
In the amended lawsuit complaint, the Hornes detail alleged fraud and cover-up by Humphreys and his law firm regarding the representation of clients in flood litigation. Included in the documentation is one email in which an associate of Humphreys suggest “burn the files, delete them … and pretend we’ve never heard of them.”
The 52-page updated lawsuit provides more detail than the original complaint filed in September regarding the work of Humphreys’ law firm regarding litigation surrounding flooding in Tazewell County, Va., in 2001.
Included in the amended complaint and ethics complaint are several correspondences between Humphreys’ firm and residents of Cedar Bluff notifying them that the firm had decided to pursue the case and providing updates on the case despite the fact that in his response to the original complaint Humphreys denies he was the Hornes’ lawyer.
“For over 12 years, the plaintiffs were led to believe, through numerous communications, statements, personal visits and other interactions with the defendants and the lack of any indication to the contrary, that the defendants and their agents were representing them in their flood claims,” the amended complaint states. “There are numerous instances in which … the plaintiffs were never told the truth.”
Also included in the amended complaint is a claim that agents of Humphreys recorded telephone calls to the Hornes without authorization. Transcripts of some of the calls for the law firm are included in the exhibits.
The Hornes claim the defendants, in 2006, attempted to attach the plaintiffs’ claims to mass flood litigation in West Virginia on behalf of flood victims in the Mountain State who were harmed allegedly by activities of coal and timber companies.
The “West Virginia legal action had nothing whatsoever to do with the claims of the plaintiffs, or other individuals similar situated, arising in Tazewell County, Virginia,” the complaint states. “Rather, the West Virginia legal action applied only to property and claims arising in West Virginia and suffered by citizens of … a seven-county area.”
“The activities of the defendants and their agents … were a sham and constituted an improper, futile and fraudulent maneuver to give the impression that they were pursuing claims of the plaintiffs in some manner, when in fact they were not,” the Hornes’ original complaint states. “There was no reasonable, rational basis or substance to their actions.”
The claims of Horne and other Tazewell County residents were dismissed in West Virginia in April 2006.
The Hornes also say the defendants failed to keep them informed about their case and “fraudulently misrepresented” that the claims were being pursued.
Despite the Virginia plaintiffs being dismissed from the West Virginia litigation in 2006, Humphreys’ agents still were telling the plaintiffs they had a case in 2009 and 2010.
The amended complaint claims Timothy Barber, an agent of Humphreys, visited the Hornes in 2009 after another flood and told the Hornes that these cases “take a long time.”
“The plaintiffs now believe … Mr. Barber was interacting with the plaintiff Ira Horne as an agent of Mr. Humphreys, but was not a lawyer working on his case as Mr. Barber had led Mr.Horne to believe, and submit that the breath and depth of the deception perpetrated by Mr. Barber on Mr. Horne, and through him his wife, Mavis, is nothing short of appalling.
“Mr. Barber never had anything of a legal nature to do with the flood claims arising from the 2001 flood, or any flood cases, either in West Virginia or in Virginia. … Mr. Barber was only posing as an attorney for the Horne’s so he could gain the trust of the plaintiff Ira Horne and gain control over the situation with Mr.Horne by concealing that the Statute of Limitations had been missed and that nothing of substance had been done to prosecute the plaintiffs’ claims.
“Mr. Barber came to visit the plaintiff Ira Horne in order to deceive him and lead him to believe that the plaintiffs’ flood case was taking a long time to be resolved and to keep the truth from him until he forgot about the case or died.”
The complaint also says a former Humphreys employee said Barber served as “a buffer” between the Hornes and Humphreys and did Humphreys’ “bidding.”
“Mr. Barber was attempting to manage the risk of Mr. Humphreys and his law firm, and potentially others, from being discovered and sued, by maintaining a smooth situation and trying to keep the plaintiffs in this situation happy and content,” the complaint states. “Tim Barber served in essence as a ‘fixer’ for Mr. Humphreys and often attempted to solve many of Mr. Humphreys’ legal problems.”
It also claims the former employee says Barber “had little or no respect” for Humphreys and often made fun of him “because he apparently felt that Mr. Humphreys was not a real trial lawyer.”
The complaint claims Humphreys made it clear that Barber was the only person to speak with the Hornes about the case so someone else wouldn’t mistakenly tell him the case was marked as settled in the firm’s computer system or that the statute of limitations had expired.
“Mr. Horne’s name was a ‘buzz-word’ for ‘trouble’ around the Humphreys’ law office,” the complaint states. “Mr. Humphreys’ sensitivity was well known in the Humphreys law firm office and was a subject of humor on occasion.”
Another exhibit attached to the amended complaint is an email correspondence “at Humphreys request” regarding the status of the 21 Virginia flood cases.
Law firm employee Lisa Knight suggests this solution to David Cecil: “Burn the files, delete them out of PM (Practice Manager software) and pretend we’ve never heard of them – I’m joking. This one is all yours to answer.”
The same email notes that John Bailey, another Humphreys firm employee, “knew the Virginia airport people should not be included” in the West Virginia mass flood litigation.
The Hornes say they only recently learned on Aug. 6 that Humphreys and his firm hadn’t pursued any claims and that they had misled them.
The Hornes say they have suffered damages “in a myriad of ways,” including inability to recover the property and related damages and losses, humiliation of “being treated disrespectfully and in an unethical and improper manner” and the outrage of being purposefully lied to by the defendants and treated as “insignificant individuals who did not deserve even a modicum of honesty and fair dealing.”
In addition to the destruction and diminution of their property, Ira Horne also cites the inability to use woodworking equipment irreparably damaged in the flood to earn income from cabinetmaking.
The Hornes allege negligence, breach of fiduciary duty, fraud, misrepresentation, unjust enrichment, restitution and disgorgement of profits. They seek compensatory damages and punitive damages for the defendants’ “intentional, purposeful, reckless, fraudulent and reprehensible” gross misconduct as well as attorney fees and court costs.
Even when the Hornes’ complaint against Humphreys and his firm was near filing this fall, Humphreys and his agents “made a concerted effort” to “suppress the information of this former employee so that the truth of this outrageous conduct of the defendants would not be known.”
Included are transcripts of voicemails Barber left for the former employee in September.
“Humphreys called me this morning and told me that they went down to that storage place and found that there was a box of this stuff, this Ira Horne stuff and that it was checked out to YOU last year and that it’s never been returned, and of course, you know what they’re saying,” Barber said on Sept. 2. “But I just wondered what it is you know about that and why in the world you would have ever checked out a box of Ira Horne stuff. I have no idea. …
“Now, you want to make sure you tell me everything now, honey. I mean don’t leave anything out cause it’s all going to, it’s all going to be a lot of stuff connected with this stuff, a lot of stuff so you better …
“We got to get our, get it right, but the truth is and now real carefully, and I’m not suggesting your telling me anything other than that. I just want to make sure we get it right cause there is going to be a lot, a lot of stuff connected with this involved with Humphreys’ license and stuff so …”
In another voicemail, Barber accuses the former employee of dodging his calls.
“I’ve left you messages at your office and elsewhere,” he says. “I don’t know what the hell the deal is, but I’m getting a little put off about it to be honest with you.”
In a subsequent voicemail, Barber says “I hate like hell to have to leave a pointed message like this, but I have to cause I’ve tried several times to reach you. …
“All you have to do is say, ‘I don’t want to talk to you about anything including anything about this problem about the Horne matter.”
The former employee, however, claims Barber as the Virginia flood case files, according to the amended complaint. The former employee also is afraid of Barber and Humphreys.
“Mr. Humphreys was known around the Humphreys law office to have rages involving yelling at people and throwing things like staplers, and he also kept a gun in his desk drawer,” the amended complaint states, adding that after the Hornes file the suit against Humphreys, “he appeared to be near suicidal and was worried about his (law) license and that Mr. Humphreys was blaming everything on the former employee.”
The Hornes’ case has been assigned to Webster Circuit Judge Jack Alsop after all seven Kanawha circuit judges recused themselves. Alsop had a status/scheduling hearing set for Dec. 12 at the Webster County Courthouse.
On Sept. 25, the Hornes filed emergency motions “to preserve all relevant file materials,” “to require production of plaintiffs’ entire file” and “to preclude defendants and their agents from intimidating and harassing witnesses.”
In the Sept. 25 motions, the plaintiffs claim “the defendants now have exacerbated the circumstances substantially by failing to assure plaintiffs’ counsel upon repeated requests that all relevant file materials will be preserved; by failing to turn over the entire file of the plaintiffs upon repeated requests; and, through their agents, by intimidating and harassing one or more former employees of the defendants who are witnesses to the events surrounding the defendants’ representation of the plaintiffs.”
The motion for relief is “simple,” according to the filing, and “not in any way harmful to the defendants.” “The plaintiffs have good reason to be concerned about whether these materials will be preserved, in part because when they sought assurances through their counsel from counsel to the defendants that the materials would be preserved, no such assurances were forthcoming,” the motion states.
In addition, it says Humphreys’ firm has repeatedly, “persistently and aggressively” called a former employee who has facts about the case “to persuade the witness to conform her views of the facts in this matter to be consistent with the position of the defendants in order to protect them from potential liability.”
As of last week, five legal ethics complaints have been filed against Humphreys and his firm with the state Office of Disciplinary Counsel’s Lawyer Disciplinary Board related to these allegations.
The latest legal ethics complaint was filed last month with the state Office of Disciplinary Counsel’s Lawyer Disciplinary Board. Wade Gilbert Ferrell of Cedar Bluff, Va., filed this one.
The Ferrell complaint is similar to others filed in the last few months by three other Cedar Bluff men and another by the daughter of a Virginia couple who has filed the Kanawha County lawsuit against Humphreys and his firm.
Ferrell says he retained Humphreys and his firm to represent him sometime between July and September of 2001.
“Until recently, I believed Mr. Humphreys had filed a complaint on my behalf, and my case was being handled by him,” the complaint states. “He sent me correspondence indicating a complaint had been filed on my behalf in West Virginia in ‘In Re Flood Litigation.’ I saw a copy of the Flood Victim Newsletter that Ira Horne (the man who already has filed the lawsuit against Humphreys) had received, and I remember receiving a copy of same. …
“It said my complaint was filed. I recently learned that it was not true that my case was pending and that no complaint had been filed on my behalf by Mr. Humphreys.”
Ferrell included a copy of a March 6, 2006, court order from Raleigh Circuit Court showing his claim and claims by others was dismissed with prejudice. Also included was a letter from Humphreys’ firm explaining the ruling and saying the firm is working to determine its next step in the legal process.
“I never was informed about this court ruling by Mr. Humphreys or anyone at his office,” Ferrell wrote. “John Bailey, who was representing me at that hearing, was a lawyer from the Humphreys’ firm.”
Ferrell says his attorney told him his claim for flood damages never could have been properly filed in West Virginia because he lives in Virginia and the property is in Virginia. The West Virginia case was meant for plaintiffs in a seven-county area of southern West Virginia.
“He believes that to attempt to add my claim to the West Virginia action was an attempt to defraud the court,” Ferrell wrote, noting that his attorney consulted with an ethics expert about the matter.
In her complaint filed in September, Joyce Greeley of Salem, Ala., says her parents – the Hornes – had Humphreys and his firm represent them for flood damage at their home in Tazewell County, Va., starting in 2002.
She says her father “was consistently informed that his case was being ‘worked on,’ and periodically through at least 2009, lawyers – and he believes non-lawyers – from or on behalf of Mr. Humphreys visited him at his residence on at least 2-4 occasions to assure him that they were working on his case and that his type of case takes a long time.”
In her complaint, Greeley says some of the letters sent to her parents by Humphreys state that their case was part of this West Virginia litigation.
But, she alleges that is a lie.
“In August 2014, my father learned that the representations about his case were untrue,” she wrote. “That is, his case was never filed. He was never names as a plaintiff in the above-described lawsuit and, in fact, there had been court rulings that the statute of limitations had run and that his case of damage to property in Virginia could never have been properly filed in West Virginia.
“From information obtained from by parents’ lawyer, it is my belief that Mr. Humphreys knew the statute of limitations had run on my parents’ case, that he intentionally constructed a scheme to obscure this fact, and that he had directed his staff, including lawyers, to ‘cover-up’ this fact.”
She also notes that when Rod Jackson, an attorney representing the Hornes in their complaint against Humphreys, asked for the files from Humphreys regarding the Hornes, “he was not given the entire file.”
Humphreys, a prominent asbestos plaintiffs attorney, is a former member of the West Virginia House of Delegates and state Senate. He also ran for the U.S. House of Representatives in 2000 and 2002, losing to Shelley Moore Capito both times.
The Hornes are represented by Jackson as well as Robinson & McElwee attorneys John C. Palmer IV, Stephen D. Annand, Keith J. George and Devan K. Flahive.
Humphreys and his law firm are represented by Charleston attorneys Benjamin Bailey, Christopher Morris and Mary Pat Statler of Bailey & Glasser LP. Barber is representing himself, according to the petition.
Kanawha Circuit Court case number: 14-C-1684