In the three suits against Jackson Kelly, Morgantown lawyer Al Karlin alleges that the firm's lawyers gave judges or the law firm's own experts only portions of key medical test results, withholding other evidence that proved miners had black lung. In some instances, Karlin alleges, Jackson Kelly withheld proof of black lung from miners who did not have attorneys helping with their benefits applications. Once those miners obtained lawyers, the firm tried to settle the cases and avoid revealing the fraudulent actions.
Jackson Kelly sought to have Kirkpatrick throw out the lawsuits, arguing among other things that any such civil lawsuits were pre-empted by the federal Black Lung Benefits Act.
But Kirkpatrick noted that the state Supreme Court had already ruled to suspend for one year the law license of Jackson Kelly attorney Douglas A. Smoot, concluding that Smoot had withheld evidence from retired miner Elmer Daugherty in a black lung benefits case.
Kirkpatrick wrote that "it is likely that the man on the street would be appalled at the ethical behavior exhibited by Mr. Smoot," but that Smoot apparently violated no rules of the federal black lung system.
"Nonetheless, in [the] Smoot [case], our Supreme Court of Appeals showed no compunction in promptly disciplining a lawyer for 'conduct involving dishonesty, fraud, deceit, or misrepresentation' exhibited in the representation of an employer in a federal black lung case," Kirkpatrick wrote.
"Surely, if it is acceptable that the state has the absolute right to discipline a lawyer for fraudulent conduct undertaken in the federal black lung arena, the premise that a victim of such fraud should be enabled to pursue civil redress in state court is only a short step away," Kirkpatrick said. "In fact, it is clear to this court that the state's right to sanction an attorney whose fraudulent conduct harms a black lung claimant, and the state's authority to provide a remedy for that claimant who was harmed by such conduct, should generally be on the same legal footing."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.