"Why not give the whole report to the judge and let him decide what was most probative?" Ketchum asked.
"That was done eventually," Emch replied.
Justice Brent Benjamin asked how much could be removed from a doctor's report before it could no longer be called a report, as it was in the cover letter that accompanied the submission of the partial report to Daugherty and the administrative law judge.
Donahue argued that it was deceitful, and therefore an ethical violation, not to indicate that portions of the report had been removed.
"They took the report and tore it apart and only submitted the part they liked," she said. "It is somewhat plausible to say that the [full] report would never have come to light if [Daugherty] hadn't gotten counsel."
The litigation continued for three years after Smoot withheld part of the doctor's report.
Davis noted that when faced with a judge's order to disclose all of its information, Westmoreland decided to stop fighting Daugherty's claim.
Daugherty's lawyer, Robert Cohen, eventually pursued sanctions against Jackson Kelly from U.S. District Judge David Faber. Although Faber declined to impose sanctions, saying that a court was the wrong venue, he did forward the issue to the ODC.
"The court in no way approves the conduct of Jackson Kelly lawyers before the administrative law judge, assuming the alleged misconduct to have occurred," Faber wrote in his Aug. 30, 2006 order. He found Jackson Kelly's "excuses and arguments flimsy at best."
Steve Crislip, another Jackson Kelly lawyer representing Smoot, said that the statute of limitations had run out, and that it was wrong to proceed with charges against Smoot nine years after the incidents in question occurred.
"[Smoot] acted in good faith. He plays by the rules and he knows the rules," he said.
The United Mine Workers of America, the National Black Lung Association and Appalachian Citizens' Law Center Inc., and state Attorney General Darrell McGraw all submitted "friend of the court" briefs urging the justices to reject the panel's recommendation and to find that Smoot had violated his ethical obligations.
Reach Andrew Clevenger at acleven...@wvgazette.com or 304-348-1723.