Who Pays the Legal Fees?

In a special session of the Pocahontas County Commission held on February 11^th the commissioners hired Attorney Gregory Tucker of Summersville to defend the county against a lawsuit filed by County Prosecutor Eugene Simmons. It was explained by the commissioners that this suit was filed by Simmons to require that Simmons’ legal fees be paid for by the County from an earlier legal action.

We have since learned that this all began on July 17, 2018 when Attorney Robert Martin, who was then employed by the Pocahontas County Commission, filed an official complaint with the West Virginia Lawyer Disciplinary Board alleging that County Prosecutor Eugene Simmons had violated the West Virginia Rules of Professional Conduct for lawyers.

This complaint was then investigated by the Lawyer Disciplinary Board and on June 24, 2019, that Board issued a decision officially closed that complaint against Simmons, stating:

“After review of the evidence in this matter, however, the Investigative Panel has determined that Probable Cause does not exist to charge Respondent (Eugene Simmons) with a violation of the Rules of Professional Conduct. There being no further action to be taken, this matter is closed. Closing ordered on the 8^th day of June, 2019, and ENTERED this, the 24^th day of June, 2019”

In defending himself from Martin’s complaint, Simmons incurred legal fees from his attorney, Robert B. Allen of the Charleston law firm of Kay Casto & Chaney in the amount of $23,570.49. That law firm and Simmons contend that as an elected official of Pocahontas County -County Prosecutor – Simmons is entitled to be indemnified by the county commission -which means the commission should pay any legal expenses he incurred from defending himself from unfounded allegations made against him while performing his official duties as County Prosecutor.  Allen cites several court cases supporting that contention.

Attorney Allen asserts that he sent the commission invoices for them to pay Simmons’ legal bill on July, 17, 2019 and again on October 14^th, however the Commission did not respond to either request for payment.

On January 17, 2020 Allen filed Civil Action number 20-C-03 (D) with the Circuit Court of West Virginia stating in part that:

“As a public official who has been required to incur attorney’s fees and expenses as a result of unwarranted and baseless ethics charges that arose from the good faith discharge of his official duties and which Plaintiff (Simmons) successfully defended against, Plaintiff has established a clear legal right to reimbursement of those fees and expenses.”

In this lawsuit, Allen asks the court to issue a writ of mandamus requiring the County Commission to indemnify Simmons and pay his legal fees.

It needs to be said that while this lawsuit has been filed, it still must be heard in court and the Commission has retained their Attorney, Gregory Tucker, who has yet to present the Commission’s side of this dispute to the court. Of course, we will cover the Commission’s response to this suit when it becomes a matter of public record, as well as keep you informed about any settlement or court rulings regarding this lawsuit.