Kohout “respectfully objects to the recommendations of the Hearing Panel Subcommittee for the annulment of Mr. Kohout’s license and to some of the findings of fact and conclusions of law therein,” the June 26 objections document states.
The attorney states that the conclusions of law made by HPS in the Galford matter are not supported by clear and convincing evidence and, where they are supported, they do not warrant the recommended discipline.
Kohout also said the recommended conclusions of law affirmed by the HPS regarding his interactions with former employees are not supported by clear and convincing evidence where the former employees colluded to submit a false affidavit in the underlying matter for the purpose of charging Kohout with fraud and where he had meritorious reasons for filing claims against the employees.
The HPS made an error of law in finding that Kohout had violated Rule 5.4 where he loaned funds to his employees were Rule 5.4 (a)(3) specifically permits compensation of non-lawyer employees and his actions did not compromise the purposes of the rule, according to the objections.
“The recommended discipline of the Hearing Panel does not reflect consideration o the mitigating factors in this matter,” the objections state.
Kohout claims that, in the Galford matter, the HPS’s finding based on underlying facts indicating that Kohout did not create a separate representation agreement with the Galfords prior to filing a notice of appeal in their case at the end of October 2013 is not clear and convincing evidence supporting a claim that he did not make efforts to notify and speak with the Galfords prior to filing the notice of appeal.
“There is no evidence that Mr. Kohout filed the Notice of Appeal for selfish or inappropriate motives or that he had any improper intent,” the objection states. “To the contrary, Mr. Kohout filed the Notice of Appeal to preserve the Galfords’ rights to appeal. There was no evidence that the Galfords or anyone was harmed by Mr. Kohout’s filing of the Notice of Appeal where he was doing more than what he was asked solely to protect the rights of his clients.”
Under these circumstances the evidence simply does not indicate that Kohout was willfully uncommunicative or unwilling to explain the situation to allow them to make informed decisions, according to the objection.
In the second matter, despite the evidence showing that the testimonies and the supporting affidavit of Ronald Kramer and Vanessa Lawson, former employees of Kohout, were themselves fraudulent and in the absence of any finding by Judge Phillip Gaujot that Kohout had engaged in any fraudulent behavior whatsoever, the HPS has recommendd that Kohout be found guilty of professional misconduct and moral turpitude in his attorney’s lien.
“This recommendation is simply not reasonable or supported by the evidence,” the objection states.
The HPS noted at length that Kohout had been previously disciplined and, while acknowledging that his former discipline is an aggravating factor, Kohout notes that this discipline occurred in 1995.
“Mr. Kohout is not agnostic to the gravity of the present charges against him or the gravity of the previous charges, but notes that these events took place over twenty years ago, that he worked assiduously to meet the requirements of the Bar in order to return to the practice of law and that the period of time in which these events occurred took place after seventeen years of practice in which he represented many parties without incident or complaint,” the objections state.
Kohout acknowledges that he has erred in numerous respects; however, there are mitigating factors that warrant the reconsideration of the HPS’s recommendation.
“Annulment is the most severe of the disciplinary measures that are available to the court and Mr. Kohout’s behavior, while errant and grave, does not reflect the disregard for the law and the Rules of Professional Conduct that has been typical of those practitioners whose licenses have been annulled in cases before this court.”
Kohout was recommended for disbarment in June by the Hearing Panel Subcommittee of the West Virginia Lawyer Disciplinary Board after former clients and employees alleged he violated the Rules of Professional Conduct in 2013 and 2014.
The charges against Kohout were filed in September. He faces four counts, including one from the Office of Disciplinary Counsel, two from former employees and one from a former client. Each alleges several violations of the Rules of Professional Conduct.
Rachel L. Fetty represents Kohout.
The matter is set for oral argument on Oct. 12.
Supreme Court of Appeals case numbers: 14-01-015, 14-01-274, 14-01-301, 14-01-382
