Withholding of client’s retainer refund nets ethics charges against Huntington attorney

Updated 5 weeks ago Special to HuntingtonNews.Net
Withholding of client’s retainer refund nets ethics charges against Huntington attorney
R. Carson

 By Lawrence J. Smith

    CHARLESTON, W. Va. – A Huntington attorney is accused of failing to return a portion of the retainer he was paid to defend a former Cabell County employee on DUI-related charges.

            David R. Tyson is named in a single-count statement of charges filed Oct. 12 by the Lawyer Disciplinary Board.  The statement, which acts like an indictment for disciplinary purposes, accuses Tyson, 65, managing member of Tyson and Tyson, of failing to heed the Board’s directive to return nearly $700 to Ronald Steven Carson, Sr. upon conclusion of his son’s trial.

Carson. paid Tyson $5,000 to defend his son, Ronald Steven, Jr. Though a date is not provided, the statement says Tyson was paid with the understanding no plea bargain would be accepted.

According to court records, Carson, Jr., while entering Ohio River Rd. from his home in Lesage on April 5, 2015, struck a motorcycle operated by Justin Ryan Parsons, who later died.  Carson was later arrested after admitting to taking Xanax before operating his vehicle.

At the time, Carson was employed by the Cabell County Commission as the courthouse’s internet technology director.

In August 2015, Carson was indicted by a Cabell County grand jury on charges of DUI causing death, and negligent homicide.  Two years later, a jury found him guilty on both charges.

Putnam Circuit Judge Phillip M. Stowers, who was appointed to hear the case after all Cabell circuit judges recused themselves, sentenced Carson to a term of no less than two and no more than 10 years in prison.  The state Supreme Court in November affirmed Stowers’ sentence.

Records show Carson has since been released from incarceration.

Though a date is not provided, the statement maintains Carson, Sr. took issue with the work Tyson performed after he provided Carson, Jr. with an itemized billing statement.  After analyzing it, Carson, Sr. “opined [Tyson]’s fee should only have been $1,000 for the work he performed.

Additionally, the elder Carson said the only meaningful work Tyson did to aid in the younger’s defense was waive his preliminary hearing.

In response to Carson, Sr.’s complaint, the statement says Tyson provided explanations for his work that included “the research he performed, the multiple meetings he had with law enforcement and the special prosecutor assigned to the case [Tom Plymale from Wayne County], the process by which he reviewed the evidence and the pleadings he filed on his client’s behalf.” However, he acknowledged he failed to timely return phone calls, and the unearned portion of the retainer largely due to assisting his mother who was recovering from surgery.

 After finding Tyson committed no violations of the Rules of Professional Conduct, the Board’s investigative panel closed Carson, Sr.’s complaint on Jan. 27.  In a Jan. 31 letter, the Board instructed Tyson to refund Carson $654.75 within 30 days.

When Tyson failed to not only meet the deadline, but also respond to a March 10 follow-up letter, the Board directed the Office of Disciplinary Counsel to “give him one last opportunity to comply with its directive within 10 days of the date of the letter.” On June 25, ODC wrote Tyson to provide written proof he refunded Carson’s retain to avoid the complaint reopened.

According to the statement, ODC on July 23 received a letter dated June 29 from Tyson.  In it, he said he did not know where to mail the check since Carson, Jr. was in jail.

In a letter dated Aug. 10, ODC reminded Tyson that Carson Sr. was due the refund since he, and not Carson Jr., was his client.  It gave him a deadline of Aug. 20 to provide proof a refund of the unearned retainer was issued.

By failing to do so, Tyson is charged with two Rules violations – knowingly failing to respond to a lawful demand for information, and declining or terminating representation.

Tyson, via D. Scott Bellomy, partner with the Huntington law firm of Bellomy, Turner and Bartram, responded to the statement on Dec. 17.  In it, Bellomy said the statement should be dismissed since “the underlying claim is a result of a fee dispute.”

Additionally, Bellomy said the delay in returning the funds to Carson Sr. was due to “an office staff members [sic] serious health problems and illnesses.”  Eventually, Tyson’s paralegal sent Carson the retainer refund via certified U.S. Mail on Dec. 12.

 

 

            West Virginia Supreme Court, case number 18-0887 (Tyson discipline)

            Cabell Circuit Court, case number 15-F-337 (Carson criminal) 

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