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Commission hires outside counsel

Jaynell Graham

The Pocahontas County Commission met in Special Session February 11 to deal with a one-item agenda: “Discuss and or act on retaining outside counsel for a pending Civil Action filed against the commission.”

At that meeting, the commission voted to hire Attorney Gregory A. Tucker, of Summersville, to represent them in the matter: “Eugene M. Simmons, Plaintiff, vs Pocahontas County Commission, Defendant, wherein Simmons is seeking reimbursement for attorneys’ fees and expenses.

The Civil Action is a result of an order entered June 24, 2019, by the Investigative Panel of the Lawyer Disciplinary Board which closed a complaint filed by Attorney Robert P. Martin against Prosecuting Attorney Eugene Simmons.

According to the Complaint for Mandamus filed January 17, 2020 by Kay Cast & Haney, Attorneys at Law, on behalf of Simmons:

“Martin filed the complaint against Simmons on or about July 19, 2018 alleging that Simmons ‘in his capacity as Prosecuting Attorney regularly and routinely, while carrying out his official duties, violated Rule 1. 1 of the Rules of Professional Conduct which requires lawyers to provide competent representation to his or her clients.’ The complaint further alleged that Simmons violated other ethical rules in the performance of his official duties as Prosecuting Attorney.

On September 12, 2018, Simmons, through his attorney, filed a Response to the Complaint and denied the allegations and submitted numerous exhibits as evidence to support his position.

On October 23, 2018, Martin filed a reply reiterating his allegations…

On December 18, 2018, Simmons responded to the reply, again denying any unethical conduct and providing additional evidence to support his position…

The Complaint for Mandamus states:

“Following investigation of the matter by the Office of Disciplinary Counsel and review by the Investigative Panel of the Lawyer Disciplinary Board, an Order closing Mr. Martin’s complaint was entered on June 24, 2019.

That Order states:

“Respondent, as a prosecutor, represents the interests of the State, not individual citizens, and thus, has obligations that require him to make decisions based on a number of factors. Furthermore, prosecutors are permitted the exercise of prosecutorial discretion in fulfilling his duties to the State and his actions in this capacity are generally not considered a violation of the Rules of Professional Conduct. The positions of the parties herein are in sharp dispute. After review of the evidence in this matter, however, the Investigative Panel has determined that probable cause does not exist to charge Respondent with a violation of the Rules of Professional Conduct. There being no further action to be taken, this matter is closed.”

The Complaint for Mandamus states that “throughout the proceedings before the Office of Disciplinary Counsel, Simmons personally incurred attorneys’ fees and expenses in defending against the unwarranted and baseless ethics charges brought against him by Martin, who at all relevant times had been retained by and was serving as counsel to the Pocahontas County Commission.”

The total amount of attorneys’ fees and expenses incurred by Simmons in defending against the complaint is $23,570.49.

Simmons’ counsel, Kay Casto & Chaney, PLLC, on two separate occasions made a demand upon the county commission for payment of these fees and expenses, setting forth in detail the legal basis for Simmons’ claim.

The legal basis presented in part states:

“As a public official who has been required to incur attorneys’ 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 and indemnification of those fees and expenses.”

The commission did not respond to the two letters, dated July 17, 2019 and October 14, 2019.

The Civil Action has been filed with the Circuit Court.

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