Sustained Outrage

Legal ethics: Jackson Kelly and black lung cases


In the Gazette and in our Coal Tattoo blog, I’ve written today about a legal ethics case involving West Virginia’s largest and oldest law firm, Jackson Kelly.

To summarize, one of the firm’s lawyers if facing misconduct charges based on allegations that he covered up evidence that a coal miner had black lung disease. The Statement of Charge filed by an investigative panel of the state Lawyer Disciplinary Board against Jackson Kelly lawyer Doug Smoot is posted here, and Smoot’s response is posted here. I’ve also posted copies of the two lawsuits against the firm here and here.

As I reported on this, at least one person directly involved in the case suggested to me that such issues shouldn’t be publicized until the proceeding is finished — that the public doesn’t have a right to know about ethics cases involving West Virginia lawyers until the matters are decided one way or the other.

Things are viewed a little differently here at The Charleston Gazette … the paper’s late publisher, W.E. Chilton III, took the issue all the way to the state Supreme Court, winning  a ruling that opened lawyer disciplinary proceedings to public scrutiny.  Among the holdings in that 1985 ruling, Daily Gazette Co. vs. Committe on Legal Ethics of West Virginia:

— Where formal disciplinary charges in an attorney disciplinary proceeding are filed, following a determination that probable cause exists to substantiate allegations of an ethical violation, the hearing on such charges shall be open to the public, who shall be entitled to all reports, records, and nondeliberative materials introduced at such hearing, including the record of the final action taken

— Once a complaint of unethical conduct in an attorney disciplinary proceeding is dismissed for lack of probable cause, the public has a right of access to the complaint and the findings of fact and conclusions of law which are presented in support of such dismissal.

— The right of public access to attorney disciplinary proceedings precludes utilization of private reprimand as a permissible sanction.

— By-Laws and Rules and Regulations of the West Virginia State Bar which govern public disclosure of lawyer disciplinary matters are unconstitutional under West Virginia Constitution art. III, § 17, when they fail to protect and vindicate the public’s interest in the integrity of the judicial system by unreasonably restricting access to information concerning formal disciplinary actions against lawyers, integral parts of the judicial system.