Jackson Kelly is the state's oldest and largest law firm, and the coal industry has long been one of its major clients, a fact that the firm touts on its website.
"Jackson Kelly's lawyers aren't afraid to get their hands dirty and are frequently found at our clients' operations on surface mines, prep plants, underground mines and mine offices investigating accidents, providing training or preparing for trial," the website says.
So far this week, Jackson Kelly has refused to comment on the allegations made in the center's report.
The firm's general counsel, Steve Crislip, said Jackson Kelly is "restricted in our comments by client and professional obligations." Crislip also passed on an e-mail message in which he told the center it would be "incomplete if not misleading" to report on the issue until the legal cases involved are resolved.
In legal briefs, though, Jackson Kelly has spelled out its position, saying it is common practice and perfectly legal to withhold the sorts of records that it did not disclose in the Fox case.
"Relying on a large, well-settled body of federal law, Elk Run's counsel did not disclose the non-testifying experts' opinions to anyone in order to preserve their privileged status under the work product doctrine," Jackson Kelly lawyer Kathy Snyder wrote in one legal brief. "This scenario, repeated daily by attorneys in every type of adversarial litigation, does not constitute fraud of any sort."
During the oral argument in Richmond on Tuesday, Jackson Kelly lawyer Al Emch said the Fox case is really "Litigation 101" that focuses on the incorrect reading by a lower court of the ability of lawyers to protect certain materials under the "work-product" privilege.
"This cancer, if you will, and pardon the bad pun ... this decision, this mistake, this error, this misinterpretation, is the reason we are here," Emch said. "It's the essence of the work-product privilege."
But in their legal brief, Cline and Karlin allege "the fraudulent conduct of Elk Run's attorneys was a deliberate scheme to directly subvert the judicial process.
Jackson Kelly lawyers, Cline and Karlin say, knew that Gary Fox "had a progressive and irreversible disease." But, they say, the firm continued to fight Fox's black lung benefits claim by implementing "a scheme to undermine the adjudication process with false evidence."
Karlin told the 4th Circuit there are larger issues at play about whether the black-lung benefits system is fair to disabled miners.
"There are some problems in the black lung system with how some attorneys litigate in the black lung system," Karlin said.
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.