Law firm, six attorneys accused of concealment in legal malpractice suit

By Chris Dickerson | Nov 21, 2017

HUNTINGTON – A regional law firm and six of its attorneys are named as defendants in a legal malpractice suit for allegedly concealed and withheld documents from a client.

HUNTINGTON – A regional law firm and six of its attorneys are named as defendants in a legal malpractice suit for allegedly concealing and withholding documents from a client.

John M. Bourdelais and JMB Commercial Properties filed their complaint in Cabell Circuit Court against Dinsmore & Shohl LLP and Huddleston Bolen LLP, which merged into Dinsmore in 2015. Also listed in the complaint are attorneys Richard J. Bolen, Cindy D. McCarty, T. Matthew Lockhart, John H. Mahaney, Daniel A. Earl, Christopher J. Plybon and Brian S. Sullivan. All of the individuals except Sullivan work out of Dinsmore’s Huntington office. Sullivan is a partner based in the firm’s Cincinnati headquarters.

According to the complaint, Bourdelais and his company hired the five Huntington attorneys when they were with Huddleston Bolen to represent them in a federal case that was filed in 2011 and dismissed in 2013. He says he paid for those legal services to the tune of about $200,000.

In February, Huddleston Bolen merged with Dinsmore and became the firm’s Huntington branch. In April, the plaintiffs hired attorney Roy D. Baker of Baker Law Offices in Huntington to review business matters, including the work of the attorneys on the 2011 federal case.

In April 2015, Baker consulted with Renee Frymyer of the state Office of Disciplinary Counsel, who told Baker that “It is generally understood today, however, the client ‘documents’ do include electronic data and email communications as well as papers and other tangible material.”

On June 3, 2015, Bourdelais wrote personal letters to each of the five former Huddleston Bolen attorneys expressing “his deep anger” for their refusal to provide him with the “complete original of his client file and for their decision to show his personal and business records to the attorneys at Dinsmore & Shohl LLP, including Brian S. Sullivan, Esquire without first getting his permission.”

On June 4, 2015, Baker provided Sullivan with another exchange with Frymyer that said the ODC believed “a former client does not have to provide any reason whatsoever to the law firm when requesting a complete copy of their file from the law firm since the file is the legal property of the client.”

On June 17, 2015, Bourdelais and JMB filed a civil lawsuit in Cabell County against the Huddleston defendants and Dinsmore to secure the full and complete client file. It also alleged breach of contract, breach of fiduciary duty and civil conspiracy. It also references Sullivan, who told Baker that “until we understand from you what this is all about, we will not provide some of the information you seek.”

Bourdelais and JMB say the defendants in that 2015 case and their counsel “have vigorously resisted and refused to provide the plaintiffs with the full and complete original of their client file by contending that certain ‘internal emails’ were not part of the plaintiffs’ client file” despite three separate affidavits sworn to by Robert H. Davis Jr., former chief disciplinary prosecutor to the West Virginia State Bar.

“Davis concluded that the defendants had breached their professional duties owed to the plaintiffs by not providing the plaintiffs with the full and complete original of their client file,” the latest complaint states.

The complaint also notes that Cabell Circuit Judge Jane F. Hustead held that the defendants’ objection that internal firm communications are privileged is not a valid objection.

It also says Hustead ordered the defendants to file an Amended Privilege Log detailing the specific privilege that applies to each specific document contained on the privilege log, but that the defendants refused to comply with her order. That caused Hustead to issue a sanction and fine of $1,000 to the defendants and their counsel, which is Offutt, Nord & Burchett of Huntington.

“And I’m not making him drop his motion for sanctions,” Hustead said during an April 13, 2016, hearing on the 2015 case. “Although, again, I don’t usually do sanctions. I think I’ve only done it twice in my entire eight years on the bench. But I will sanction you at this point in time for the amount of $1,000 – that’s the highest I’ve ever gone – for failing to abide by my prior order.”

The 2015 case still is pending, according to court records.

On April 22, 2016, the defendants turned over the internal email documents to Bourdelais. That’s when he learned that the five Huddleston attorneys and possibly others exchanged email communications and agreed to “intentionally and fraudulently conceal and withhold from Mr. Bourdelais certain documents that were being subpoenaed on his behalf from another client represented by Huddleston Bolen, LLP, in regard to the discovery that he was paying his attorneys from Huddleston Bolen, LLP, to conduct on his behalf in regard to the federal court action.”

Bourdelais says those actions constitute fraud and concealment of a conflict of interest that compromised and damaged their representation of Mr. Bourdelais and the plaintiffs’ legal rights in the federal court action. He says this also constitutes legal malpractice, a breach of contract, breach of fudiciary duty, unjust enrichment, misrepresentation and civil conspiracy.

In exhibits filed with the complaint, Baker includes an email exchange with D.C. Offutt, who represents the defendants.

“There is no fudiciary duty,” the Feb. 17, 2017, email from Offutt states. “Please refrain from asking me stupid questions which have no relevance to this case. It’s a waste of my time.”

Bourdelais and JMB seek joint and several damages, including attorney fees and court costs of $200,000 that was paid to the defendants for their work on the 2011 federal case as well as pre- and post-judgment interest. They also seek compensatory and punitive damages from this matter as well as attorney fees and court costs.

Sullivan, on behalf of the defendants, declined comment, saying the firm does not discuss pending litigation.

The case has been assigned to Circuit Judge Greg Howard.  

Cabell Circuit Court case number 17-C-303

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