Sustained Outrage

State Supreme Court to hear black lung ethics case

Updated: You can read the story about Wednesday’s arguments from today’s Gazette here.

Oral arguments are scheduled at the state Supreme Court today in the legal ethics case against Douglas Smoot, a Jackson Kelly lawyer who defends coal companies against black lung claims from former miners.

In 2009, the state bar’s Office of Disciplinary Counsel filed a formal charge against Smoot, alleging that in 2001, he wrongly withheld evidence from a miner with an eighth-grade education who was representing himself at the time. (You can read the Statement of Charge here, and Smoot’s response here.)

During two days of testimony in June 2009, Smoot acknowledged that he had removed the “narrative summary” portion of a doctor’s report before turning it over to over to Elmer Daugherty, a retired miner who spent 42 years underground. Smoot said he decided not to disclose this portion of the doctor’s report (without telling Daugherty about the missing portion) because he found the doctor’s opinion — as opposed to more objective, factual tests and X-rays — to be “equivocal” and “contradictory from one page to the next.”

But lawyer Robert Cohen, who frequently represented miners seeking black lung benefits and was eventually hired by Daugherty (and who is now a commissioner with the Federal Mine Safety and Health Review Commission), testified that the portion of the doctor’s report withheld by Smoot was “highly probative,” and represented the kind of reasoned medical opinion that judges rely on when deciding black lung cases. It was a clear, unequivocal indication that Daugherty had black lung disease, Cohen said at the time, “and any suggestion otherwise is just wrong.”

The three-member panel overseeing the case recommended that the charges against be dismissed, which prompted the Office of Disciplinary Counsel to appeal the case to the state Supreme Court. You can read the ODC’s appeal here, Smoot’s response here, and the ODC’s reply to Smoot here.

Interestingly, three parties filed “friend of the court” briefs in the case, urging the justices to reject the panel’s recommendation and to find that Smoot committed an ethical violation.

Here are excerpts from the amicus briefs filed by the United Mine Workers of America:

To find, as the Panel does, that Attorney Smoot altered Dr. Zaldivar’s medical report because he was following a “common practice” or was somehow confused by the “complexity” of Black Lung practice is absurd, especially in light of the fact that Attorney Smoot submitted to the same [Administrative Law Judge]  in the same case the complete medical exam report of Dr. Robert Crisalli, which included the narrative portion favorable to Attorney Smoot’s client. Attorney Smoot is an experienced Black Lung practitioner who has made a name for himself and his firm defeating coal miners’ Black Lung claims. The Panel’s decision to give him “the benefit of the doubt on his intent” is not only inconsistent with the applicable legal standard, it ignores facts tending to show Smoot altered Dr. Zaldivar’s exam report to gain an unfair advantage over the pro se claimant.

And the National Black Lung Association and Appalachian Citizens’ Law Center, Inc.:

The hearing panel was appropriately “bothered” by the practice of turning over an adverse medical examination report without disclosing that it was disassembled and incomplete but felt “constrained by the evidence…including all [Smoot’s] witnesses who testified that the actions of [Smoot] were consistent with Black Lung practice.” However, there are two significant errors in the panel’s assessment of the record. First, the fact that others may engage in misleading conduct does not, in any case, excuse [Smoot] any more than the speeder who protests that he was not going any faster than others who were also speeding. No matter how many attorneys send out incomplete “exam reports,” particularly to pro se litigants, the conduct still involves misrepresentation.

Second, the finding is factually incorrect. When Mr. Smoot was asked if he could name a single other West Virginia attorney who engaged in this practice, the only person he could name was Bill Mattingly, another attorney in his firm.

And by West Virginia Attorney General Darrell McGraw:

[T]he Report of the Hearing Panel Subcommittee incorrectly concluded that because it is a practice within the Federal Black Lung Bar not to provide complete records, that “[t]his leaves the Panel in the position of judging the motive of [Smoot] when he disassembled and provided only part of the report,” and that the “Panel is giving the Respondent the benefit of the doubt on his intent based on all of the above.” While fraud and dishonesty might require intent or motive, misrepresentation does not.

You can read earlier coverage by Ken Ward on Sustained Outrage here and over at Coal Tattoo here. A live webcast of the oral arguments is available here.