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Kanawha family law candidates have significant back taxes, prior ethics violations
5/2/2008 7:00 AM By Lawrence Smith -Kanawha Bureau
 | | Charleston attorneys Charles L. "Dusty" Phalen Jr. and Sharon M. Mullens make the case why they should be elected as the 5th Division Kanawha Family Law Judge during a meet the candidate forum hosted by the Kanawha County Federation of Democratic Women held April 28 at the South Charleston Public Library. Records show along with arrearages for either city, state or federal taxes, both have been previously sanctioned for unprofessional conduct. (Photos by Lawrence J. Smith) | | |  | |
CHARLESTON - Along with arrearages for taxes, records show both candidates for the newly created family court seat in Kanawha County have been sanctioned by the State Bar or Supreme Court for unprofessional conduct.
In 2007, Gov. Joe Manchin signed into law a bill creating 10 new family court judges. Among the family law circuits that will receive a new judge starting in 2009 is the 11th in Kanawha.
Charles L. "Dusty" Phalen Jr. and Sharon M. Mullens are hoping to fill the seat in what will be the 5th Division. Currently, both have their own private law practice in Charleston, and are running as Democrats.
Also, in addition to being 52 years old, and an alumnus of West Virginia State University, both candidates have outstanding city, state or federal tax obligations of nearly $10,000 or more.
Likewise, both have been cited previously for ethics violations, including a reprimand given to Phalen for inappropriately using his position as a family law master to recruit a man into a network marketing business.
Back taxes for over 10 years
According to records on file in the Kanawha County Clerk's Office, the city of Charleston filed a lien filed against Phalen on April 17 for $8,360.99. The lien is for unpaid B&O taxes his firm owes from April 1998 to present.
That same day, the city also filed a lien against Mullens for $276.68 in unpaid 2nd quarter 2007 taxes. Likewise, records show Mullens has not paid B&O taxes from the 2nd quarter of 2006 through the 1st quarter of 2007.
The city filed liens of $563.27, 275.64 and 283.76 on July 24 and Oct. 11, 2007 and Jan 16, respectively. The last date, records show, is the same day Mullens filed to run for family law judge.
That's not all.
According to the Clerk's Office, Mullens has a cumulative of $33,817.26 in outstanding federal, state and local taxes.
The two largest liens were filed against Mullens were by the IRS on Nov. 9, 2000 and July 9, 2002 for $12,164.28 and $12,878.32, respectively. Both liens, records show, were for unpaid income taxes for 1996 through 2001.
The largest debt Mullens owes to the state of West Virginia is $2,183.90 for unpaid workers' compensation taxes. Records show, the Bureau of Employment Programs filed the lien on March 31, 2006 in an attempt to collect for the time period of April 1, 2003 through Sep. 30, 2004 and Jan. 1 through Sep. 30, 2005.
Records show Mullens' largest tax obligation to the city of Charleston is for $3,082.25. That lien was filed on April 19, 2005 for an unspecified time period.
One reprimand, one stern warning
Since his admission to the Bar in 1981, 19 complaints have been lodged against Phalen. Records show 13 were filed prior to 1992, with seven filed since 2004.
One filed in 2006 is still under investigation.
On May 31, 1991, the Bar's Committee on Legal Ethics, the precursor to the Lawyer Disciplinary Board, cautioned Phalen about his lack of communication with Rachel Lovejoy of St. Albans in filing a bankruptcy. According the findings of the Committee's investigative panel, Phalen transferred the case to William M. Watkins III on Jan. 31, 1990, without informing Lovejoy.
Watkins, who currently is a family law judge in Putnam County, and running for re-election, ultimately filed Lovejoy's bankruptcy petition after receiving a questionnaire, the panel found.
Fourteen years later, the Bar closed out a complaint filed by Richard D. Roark of Coal City. In his complaint filed Jan. 21, 2004, Roark alleged that Phalen, dressed in a black coat, offered to pay two men $100 if they would go into Roark's workplace, C&H Rauch Jewelry in Bluefield's Mercer Mall, and get Roark's business card and telephone number.
Phalen, the complaint says, made the trip to Bluefield on Dec. 12, 2003 following Roark's failure to show for a bankruptcy hearing in Beckley. According to the complaint, Phalen was representing Roark's ex-wife in a collateral divorce proceeding.
Records show that though Roark appeared at the federal courthouse in Beckley on time, his attorney failed to inform him that the bankruptcy was transferred to Bluefield.
According to his complaint, Roark said though the men refused Phalen's offer, he told them "he was involved in a lawsuit with me and that I was not supposed to be at work." Also, Phalen told one of the men, who was at the store to purchase an engagement ring, "'You don't need to be doing business with him anyway, he is an ass hole.' "
On May 26, 2005, the Board said Phalen's "comments to the Complainant's potential customers were uncivil, served no lawful purpose and violated the voluntary Standards of Professional Conduct." Though the Board did not bring a statement of charges against him, it did warn him that "a continuation or pattern of such conduct as demonstrated in this matter may rise to a violation of this provision of the Rules of Professional Conduct and that disciplinary action may be taken."
The absence of complaints between 1992 and 2003 is largely due to Phalen's serving as law master. According to Supreme Court records, Phalen was employed in that capacity part time from July 1, 1990 to Sep. 30, 1999, and then full-time from Oct. 1, 1999 to July 16, 2000.
His starting salary records show was $35,000. He received an increase of $2,500 and $3,000 on both July 1, 1994 and July 1, 1996, respectively before receiving a $19,500 boost when he went full-time.
However, on July 3, 1996, the Supreme Court found Phalen committed five violations of the Code of Judicial Conduct when he attempted to recruit a men petitioning for a reduction in child support into Amway. Finding that, among other things, he engaged in ex parte communications with a litigant in a pending or impending matter, the Court publicly reprimanded Phalen for his actions, and ordered him to the pay the costs of the disciplinary proceeding.
Admonishment for non-diligence
According to her disciplinary file, eight complaints have been lodged against Mullens between 1991 and 2002. In two cases, the Bar suggested she communicate better with those clients filing the complaint, and admonished her for not diligently representing a client in a third case.
On Aug. 13, 1992, David B. Evans lodged a complaint Evans expressing his dissatisfaction with her representation of him in several criminal matters. Among Evans' issues with Mullens was her failure to file a Rule 35 motion in one of his case despite assurances from her paralegal she would.
A Rule 35 motion is a correction or reduction of a sentence.
In her reply to the Committee's inquiry, Mullens said she did not file the motion "based on discussions with other criminal attorneys about the advisability of that course of action." Though the investigative panel found her conduct did not rise to level of a Rules violation, it did say "she should have communicated with Mr. Evans about her decision" which "would have prevented Mr. Evans' false impression that she was pursuing the matter."
"In the future, Ms. Mullens is encouraged to establish regular communications with her clients to keep them informed about their cases," Stephen Jory said in the Bar's Oct. 6, 1993 letter closing Evans' complaint.
However, an apparent breakdown in communication led Michael C. Jones of Hurricane to file a complaint against Mullens on July 24, 1995. According to his complaint, Jones, owner of Jones Concrete, alleges Mullens failed to appear during a hearing involving Jones in Putnam Circuit Court on June 16, 1995.
According to his complaint, Jones said he was encouraged to file it by Putnam Circuit Judge O.C. "Hobby" Spaulding who "told me the public needs protection against lawyers like her."
Though records are unclear as to the nature of the hearing, Jones entered into a retainer agreement with Mullens two months earlier. According to the agreement, Jones Concrete "would pay $250 a month [to Mullens] for the provision of 'legal services reasonably required.' "
In the course of its inquiry, the Board's investigative panel found that the retainer agreement did not "contain any reference to the scope of the representation. Also, no attorney of record was listed in Jones' case with the Putnam Circuit Clerk's Office.
Despite that, the Board did not find probable cause to issue a statement of charges against Mullens. This, records show, was due in part to conflicting information as to when she was informed about the hearing date.
Nevertheless, Paul M. Friedberg, the investigative panel's chairman, in his Jan. 9, 1997 closing letter encouraged Mullens "when accepting general retainers, Respondent should make it clear to the client what areas she will not handle."
About the time the Bar closed out the Jones' complaint, Karen Lewis Colagrosso of Lexington, North Carolina hired Mullens to assist her in obtaining a divorce from her husband, Stephen Lewis. As part of the divorce settlement, both Karen and Stephen were to split payment on the mortgage of the marital home 50/50, with Stephen paying off in full a lien against the home.
Subsequent to the settlement, Stephen became delinquent in making his share of the payments, and the home was lost to foreclosure. Records show Mullens agreed to file a contempt motion for Karen against Stephen for his failure to abide by the agreement.
Though Karen submitted paperwork to her in April 1998 to file a petition for contempt, Mullens never filed it. In her reply to the complaint, Mullens said she became ill about that time, had emergency gall bladder surgery in July and was unable to return to work until September.
According to her complaint, Karen said Mullens informed her of her illness, but said she would still file the contempt petition following her recovery. When she didn't Karen filed her complaint with the Bar on Dec. 7, 1998.
Slightly over two years to the day she filed her complaint, the Board found probable cause that Mullens violated Rule 1.3 of the Rules of Professional conduct which deals with an attorney's diligent pursuit in legal matters. The Board found that "Although her illness was the cause for at least part of the delay, Respondent still had a duty to advise Complainant that she would not be able to timely file the petition and give her the opportunity to seek other counsel."
On Dec. 9, 2000, Allan N. Karlin, the investigative panel chairman, closed the complaint against Mullens. In his closing letter, Karlin said the Bar admonished Mullens for not filing the contempt petition.
The West Virginia Record attempted to obtain a comment from both Phalen and Mullens regarding the tax arrearages, and prior disciplinary action. Mullens was not immediately available for comment, and Phalen did not return repeated telephone calls prior to presstime.
Because no Republican filed to run, whoever wins on May 13 will become judge, and serve, like all family law judges effective in January, for an eight-year term. The current salary of a family law judge in West Virginia is $82,500.
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