Thomas granted time to find records
Former county commissioner to be released Sunday
ST. CLAIRSVILLE — Former Belmont County commissioner and former lawyer Mark Thomas was in court Friday, days before his scheduled release from jail to arrange his compliance to a court order to turn over documents from his time serving as power of attorney to a client in his legal practice.
Belmont County Common Pleas Judge John Vavra ruled Thomas will have until another hearing March 15 to comply.
Thomas is currently serving the last of a 30-day sentence for contempt of court for failing to comply with an order to turn over the documents to the plaintiff’s attorney within the allotted time. According to the Belmont County Jail, he will be released at 9 a.m. Sunday.
According to court records, Vavra had ordered Thomas in November to supply files for a trustee client named Alma Lukas by Jan. 4. Lukas’ agent, Kathy Amos, had filed a civil case against Thomas earlier in 2018. According to the court, Thomas had power of attorney for Lukas several years ago. Amos was later invested with Lukas’ power of attorney and said Thomas failed to turn over documents, prompting Amos to sue for an injunction ordering that Thomas provide those records.
Thomas appeared with his attorney, Don Tennant, who said he was working pro bono. Thomas appeared in good spirits during the hearing, where he wore civilian attire. He has maintained throughout the proceedings that he had intended to comply with court orders.
“The court wanted to have him in today to establish new deadlines and guidelines,” Vavra said from the bench. “(The contempt penalty) is now behind us. We now need to move forward. This case is not ended of course. We’re right back where we started from. We need to secure Mr. Thomas’ compliance with the rule of the court that he return all of his files.”
Vavra said Thomas acknowledged that there is additional material and was asking for a schedule to provide it.
Tennant confirmed this, adding that he has limited familiarity with Thomas’ case.
“Mr. Thomas has accepted the punishment of the court,” he said. “We look at the record here and acknowledge that he could have done better communicating with the court and it was a mistake not to hire counsel or have counsel present to help with that effort.”
Tennant said there were additional documents found late in the process prior to Thomas’ incarceration and were not handed over due to the time frame.
“He had communicated with (Andrew) Walther (the plaintiff Amos’ attorney) that he would turn over these additional items, but there was just no coordination between the two of them to meet up again,” Tennant said. “If in fact there are additional documents, Mr. Thomas would appreciate the court’s time to search for them and give them to Mr. Walther. However, if in fact the search in a good faith way has been conducted and there are no additional documents that were either created and/or kept, it is our position under the law that he should not be held in contempt at that point, for he cannot find and deliver things that were never either produced initially or kept during the timeframe of his power of attorney for Ms. Alma Lukas.”
“Under oath, he swore that he would provide all this information by Nov. 30, 2018…He did not comply,” Vavra said. “You’re asking us to allow him credibility in the future if in fact he says ‘I can’t find them,’ or ‘I don’t have them’ or ‘I can’t locate it’ or ‘It doesn’t exist.’ You’re asking us again to rely upon credibility in the future which he has not demonstrated in the past.”
“I’m not asking for credibility, but I am pointing out that even if he does in good faith search…files are protected by attorney/client privilege with respect to all of the other files that are at his office. For example I don’t think that I could assist in searching for those records because I would not have the authority of all those clients to even see that they have a file at his office,” Tennant said.
“The court is not going to cite him in contempt if he can’t comply, but that’s not the issue. The issue is we’re going to have to have a good faith and honest effort to search for and provide any and all records,” Vavra said, adding that the court will ask for an affidavit from Thomas indicating he has done so.
Walther told Vavra while Thomas has provided documents, more were expected.
“I’m concerned that we’ve seen some things in the records we’ve received that have for instance said ‘Final Notice,’ and we’ve received nothing else besides that final notice,” he said. “This is to the benefit of a client that Mr. Thomas had had for 30-plus years. A very nice, elderly lady.”
Walther commented further afterward that he hoped to received all records. He added that the records he has thus far received were in good order. In January, Walther said he estimated receiving only 5 percent of the records he had expected. He would not speculate on the percentage of records he was currently waiting for.
“I believe we’ll have cooperation, and in 30 days we’ll know if I’m right or wrong.”
Thomas, a Democrat, was defeated in his bid for re-election as a county commissioner in November by Republican Jerry Echemann. His law license was suspended for five years in Ohio in May. In August 2017, he consented to voluntary disbarment in West Virginia as he faced charges in Ohio County for allegedly embezzling $36,000 from a client. He was acquitted of those charges April 11.