The Kilgores Share A Last Name But They Trade Favors Like Family

The time had expired for filing a lawsuit in a client’s personal injury case, but attorney Frank Kilgore thought he knew a way to rewind the clock.

The St. Paul, Va., attorney made a phone call to another Kilgore – not a relative, but a fellow attorney who is a state delegate and employed by the fledgling university Frank Kilgore founded and oversees.

In the August 2006 conversation, Frank Kilgore asked Terry Kilgore, a senior Republican lawmaker from Gate City, Va., if he could add his name to the lawsuit to invoke a privilege granted to legislators who are lawyers. That privilege can extend the shelf life of a case – known as its statute of limitations – when a person in active litigation hires a legislator while the General Assembly is in session.

With the consent of Terry Kilgore, who was in special session, Frank Kilgore named him as his client’s attorney in the lawsuit and claimed the legislative privilege.

But the delegate never met with the client, performed any legal work for her, or signed his name to any of the court pleadings. Nor was the client involved in a pending legal action – the trigger language for asserting the legislative privilege – at the time the statute expired.

Both men are the subject of an investigation by the Virginia State Bar for possible ethical misconduct, according to sources with first-hand knowledge of the bar complaint and a document obtained by the Herald Courier. When contacted in early June, Frank Kilgore indirectly acknowledged the complaint, saying he would pursue legal action to force the newspaper to disclose its sources “if that’s in the paper.”

The investigation by the bar of the year-old complaint is a sign investigators are treating the case seriously, but does not amount to evidence that the two attorneys are guilty of any misconduct.
In separate interviews, both men said the lawsuit Frank Kilgore filed and ultimately abandoned was a good-faith misinterpretation of the law, and both maintained they acted ethically.

But the incident opens a window onto the decades-long relationship between one of Southwest Virginia’s preeminent movers and shakers and one of the region’s most powerful elected officials. It offers a revealing glimpse into the dynamic of that relationship, with the delegate willing to lend his name and legislative authority to help out in a $50,000 personal injury suit, relying on the good judgment of his friend and employer.

“Research it,” Terry Kilgore recalls telling Frank Kilgore in the phone conversation about the statute of limitations in his client’s case. “I’ll be more than happy to try to help her do that if you think I can.”

Ties and causes

The history between Frank Kilgore and Terry Kilgore, which stretches back to the early 1980s when one was a young lawyer and the other a law student, does not trace a blood or partisan line, but is a web of political, professional and personal ties.

Frank Kilgore, 55, is the son and grandson of coal miners; a hard-driving attorney who never went to law school but passed the bar on his own. An ex-Democrat and longtime environmental crusader, he has donated prolifically to Republican candidates in recent years.

Terry Kilgore, 46, hails from a family with preternatural political gifts, and serves as chairman of the Commerce and Labor Committee in the House of Delegates. Until recently, he was that body’s third-ranking Republican.

While chairman of the House’s Judicial Selection Subcommittee – a role in which he brokered consensus on judicial candidates with Senate members – Terry Kilgore supported the appointment of Frank’s wife, Teresa M. Chafin, as a juvenile and domestic relations court judge in 2002, and her elevation to circuit court three years later.

Frank gave Terry $11,000 during his 2005 re-election campaign, according to the nonprofit Virginia Public Access Project. Over the last decade, he has given more than $25,000 to Terry and his twin brother Jerry – the former state attorney general and unsuccessful Republican nominee for governor in 2005.

Frank Kilgore and Terry Kilgore describe each other as friends, but not of the sort whose families see each other socially. Still, Frank said he was outraged when Willie Mae Kilgore – the Scott County, Va., registrar and the mother of Terry and Jerry Kilgore – was sued for defamation just before the 2005 election. He viewed the suit as a below-the-belt political tactic.

He signed on as a defense co-counsel, filing sanctions against the plaintiff’s attorney and his former mentor, Gerald Gray, court records show. The case is set for trial in December.

“I had a Mama Kilgore,” he said in a May interview, referring to his deceased mother. “I was furious that anyone would pick on [Terry and Jerry’s] mother.”

Since the 2005 election, the ties between Frank and Terry have thickened.

Notwithstanding some of their political differences, the St. Paul attorney has been successful at enlisting the delegate – and other state lawmakers – in his causes, chiefly relating to the environment.
“He’s probably a little more to the left on a lot of those issues than I am,” Terry Kilgore said in a recent sit-down interview.

In the 2007 legislative session, Frank helped craft three successful bills that Terry sponsored – stiffening the penalties for polluting bodies of water and allowing probationers to perform recycling work at landfills and other waste disposal facilities.

Frank was also the driving force behind a budgetary amendment sponsored by Terry Kilgore and Sen. William Wampler, a Bristol Republican, for the state purchase of Brumley Mountain in Washington County, Va. That purchase added nearly 5,000 acres of protected state land to Virginia’s inventory and is the region’s first state forest, according to the Virginia Department of Forestry.

“One thing about Frank,” Terry Kilgore said, “he’s just a go-getter. That’s why I like Frank. He puts his heart and soul into everything.”

One of those things is the University of Appalachia College of Pharmacy in Grundy, Va., which Frank Kilgore founded in 2003. The school bills itself as a “model for progressive pharmacy practice and education in context with rural health care,” according to its Web site, and as a way to stimulate economic development through higher education.

In April 2006, Frank Kilgore, who chairs the university’s board, recruited an initially uninterested Terry Kilgore to be the school’s fundraiser-in-chief.

“I didn’t think I wanted to do that,” Terry Kilgore said of the pharmacy school offer. Asked what changed his mind, the delegate said: “Once I got over there and visited and talked to folks over in Buchanan County – they’re committed to this. I mean committed.”

As a popular state delegate, Terry has a broad network of deep-pocketed donors from Richmond to Washington, D.C., and can rely on them for contributions to the private pharmacy school.
The school will announce a $500,000 donation next week, largely thanks to a donor Terry cultivated, Frank Kilgore said on Friday.

Shortly after Terry accepted his new role as “dean of institutional advancement,” Frank asked a favor of his friend and new hire.

Frank Kilgore and Teresa Chafin, who sits as a judge in the 29th Judicial Circuit, wanted to build a house on property they owned a short distance away but which crossed into the next judicial circuit. He asked the delegate to introduce a bill to amend the residency requirements of a judge.

In January 2007, Terry Kilgore introduced a bill tailored to his friend’s situation, tacking on language that exempted from the residency requirement a sitting judge “who resides ... upon property that is located contiguous to his respective circuit.” 

“I’d do that for anybody that asks me to put a bill in that’s not out of bounds,” he told the Herald Courier in a recent interview. “I didn’t think it was that big a deal.”

But Terry Kilgore withdrew the bill after a Richmond Times-Dispatch reporter inquired about it, and Frank Kilgore asked him to.

“I told him, ‘I don’t ever want to be the source of someone being able to embarrass or hurt you politically,’ ” Frank Kilgore recalled in an interview.

This was early in February 2007. Just days earlier, Frank had begun to extricate himself and Terry from a second ill-fated collaboration: an unraveling lawsuit with both of their names on it.

Salvaging the statute

When Sherri Boardwine made an appointment with Frank Kilgore in August 2006, she had been a victim twice over – of a car accident on July 1, 2004, and of a law firm that mishandled her case by missing the deadline to file a lawsuit.

The statute of limitations in Virginia personal injury cases is two years. Boardwine had retained the Abingdon, Va., attorney David Scyphers in April 2006, according to an active lawsuit she has filed against him. Shortly after July 1, 2006, Boardwine learned that the statute had expired, and Scyphers told her to find another attorney to file a claim against his professional liability insurance.

She made an appointment with another Abingdon attorney on Aug. 16, but the attorney did not want to sue another local lawyer and referred Boardwine to Frank Kilgore, according to interviews and documents obtained by the Herald Courier.

Kilgore also declined to sue Scyphers but offered a novel alternative. Terry Kilgore was in special session, which began in April – before Boardwine’s statute of limitations expired. By claiming the delegate as her attorney, Frank Kilgore thought, he could resurrect the statute. He filed a lawsuit on Aug. 22 seeking $50,000 in damages.

The opposing attorney, representing the defendant’s insurance company, challenged the statute of limitations. Stephanie Cook, a Roanoke-based attorney, argued that “Terry and/or Frank Kilgore were not retained in a timely fashion and within the limits prescribed” under the relevant code section, according to a motion filed in the Circuit Court of Washington County, Va.
When contacted, Cook said she could not talk about the case.

But Boardwine, after her case collapsed, wrote that her attorneys had improperly claimed the legislative privilege, according to an affidavit attached to a bar complaint obtained by the Herald Courier.
Of the lawsuit’s claim that Terry Kilgore represented her, Boardwine wrote: “This allegation is untrue. I have yet to meet Delegate Kilgore.”

She “overheard” the phone conversation between the two attorneys, she wrote, but did not understand its meaning. “I did not understand that it was being asserted that Delegate Kilgore and Attorney Kilgore were my attorneys when the statute of limitations expired,” she wrote.

The affidavit bears Boardwine’s signature and is notarized, though the precise day on which it was signed in April 2007 is not discernible on the Herald Courier’s copy.

Reached by phone, the notary – a retired former co-worker of Boardwine’s – insisted she would not have notarized anything without a date, but she confirmed that she had seen and signed the document.
“I feel sure of that,” Velma Ezell, the notary, said of signing the affidavit. “There’s no problem there.”

Two sources with first-hand knowledge of the complaint also independently confirmed that a bar investigation into Frank Kilgore and Terry Kilgore is ongoing. The sources were contacted separately and agreed to speak on condition of anonymity because bar complaints are confidential, pending the bar’s determination of whether to file charges of misconduct.

Sherri Boardwine declined to speak in depth when contacted about her case. “The lawyers are handling it,” she said.

Anthony Collins, Boardwine’s current attorney who is suing Scyphers and who filed the bar complaint, spoke briefly with a reporter in March about the case but has not returned follow-up phone calls since.

“She came in to retain us when she discovered that the statute had run and her attorneys, Terry Kilgore and Frank Kilgore, that they were going to have to withdraw,” Collins said in a telephone interview. The statute expired in Scyphers’ hands, Collins said. He did not mention the bar complaint.

On Jan. 29, 2007, Frank Kilgore wrote to Boardwine that she would need to find someone else to sue Scyphers, and enclosed an order allowing he and Terry Kilgore to withdraw from the case, according to a letter obtained by the Herald Courier.

On March 27, 2007, Washington County Circuit Court Judge C. Randall Lowe signed the order of dismissal and Collins withdrew the suit.

Questions of interpretation

When asked about the case in early June, Terry Kilgore dismissed it as something he was peripherally involved in and that didn’t pan out.

“We knew the statute had run,” he said.

As a delegate, he uses the legislative privilege on a monthly basis to have his cases continued while in session and said that an extension to the statute of limitations was a “gray area” but “consistent” with the language of Code Section 30-5.

“I still think you could probably do it,” he said. “But we got out of the case. I mean, we were just trying to do the lady a favor.”

Terry Kilgore serves on a 10-member committee of the Virginia State Bar that adjudicates complaints that come from the 28th, 29th and 30th judicial circuits. A committee member who is the subject of a complaint must recuse himself from the proceeding, according to the bar’s guidelines.

He would not comment on the bar investigation.

But when Frank Kilgore was asked about the Boardwine case, he anticipated a reporter’s questions with some of his own.

“Who mentioned that case to you? Who mentioned the subsequent problems with the case to you?” he asked, initially refusing to discuss the case.

“There’s a pending action, and you know what it is. If that’s in the paper, I have to sue the Bristol paper to get your source, and then I’m going to sue and report [to the Virginia State Bar] whoever told you that if they’re a licensed attorney,” he said.

He added, “You cannot find anywhere in the public record any complaint against any lawyer unless it’s founded.”

But in the course of a half-hour telephone interview, he agreed to explain his interpretation of the code section on legislative privilege. He admitted that he misinterpreted the law but maintains that he acted ethically.

According to his reading of 30-5, a statute of limitations that expires while the General Assembly is in session would be extended for a client who hired a lawyer-legislator.

“You can’t hire the guys if they’re in Richmond during the session,” he pointed out.

Asked why he didn’t just sue Scyphers, Kilgore said, “There’s a lot of people I won’t sue.”

Boardwine, he said, “didn’t suffer one setback except for a small delay for me to see if I could salvage the statute of limitations. Except for people misusing someone’s lack of understanding of the legal system, I don’t think she would’ve been upset.”

Terry Kilgore, he added, “had very little information and depended on me to interpret the law properly, and I was wrong.”

There is a dearth of higher court opinions on how 30-5 applies to a statute of limitations, and several legal scholars who study civil procedure in Virginia said they were not familiar with the code section. But in 1992, the Virginia Supreme Court ruled that a defendant in a personal injury case had a “vested right to a defense of the statute of limitations” once it expired, meaning that retroactively extending the statute would violate the defendant’s constitutional property rights.

One expert who specializes in Virginia civil procedure was incredulous that an attorney would claim the legislative privilege to extend an expired statute of limitations.

“I think most people haven’t thought there is any possible argument that this could apply,” said Kent Sinclair, a professor at the University of Virginia Law School.

Reviewing the code section, he said, “The obvious intention is to deal with pending cases and not letting the episodic nature of General Assembly obligations disadvantage someone who is litigating while legislators are in session.”

The code section applies to “any party to an action or proceeding in any court,” and would not apply to a plaintiff – like Boardwine – who had not filed a lawsuit before the statute expired, Sinclair said. “There is no proceeding pending when you are injured, only after you file the lawsuit.”

If the opposite were true, the scholar said, it “would invite tremendous abuse by inviting people to retain legislators when their statutes had run.”

Even so, such an interpretation by a lawyer-legislator did not strike Sinclair as unethical in itself. He pointed to two circuit court cases in Norfolk, Va., in which judges ruled in favor of a Hampton Roads delegate seeking to extend a statute of limitations – though the cases did not deal with a statute that expired before a would-be plaintiff filed a lawsuit.

Though trial court decisions in general do not create a legal precedent, “there is nothing unethical about making that claim if two sitting circuit court judges thought that it had merit,” he said.

For his part, Frank Kilgore questioned why a reporter would probe into his ties with Terry Kilgore.

“I am at a loss as to how my relationship with Terry is very newsworthy,” he wrote in an e-mail.

He raised a similar point when asked about the Boardwine case.

Why, he wanted to know, was a reporter asking these questions. “Am I a public official? Is somebody under indictment?”

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YOU SHOULD KNOW

Click here to read the code section on legislative privilege.

TIMELINE

July 1, 2004
Sherri Boardwine is injured in a four-vehicle wreck in Washington County, Va.

April 2006
Boardwine retains attorney David Scyphers to file a personal injury lawsuit against a driver who crashed into her vehicle.

July 1, 2006
The statute of limitations expires for filing a lawsuit. Scyphers tells Boardwine to find another attorney to file a claim against his insurance because he missed the filing deadline.

Aug. 16, 2006
Boardwine meets with an Abingdon attorney who declines to sue Scyphers, but refers her to Frank Kilgore.

August 2006
Frank Kilgore asks Delegate Terry Kilgore to be his co-counsel on the case in an effort to resurrect the expired statute of limitations through a legislative privilege.

Aug. 22, 2006
Boardwine’s lawsuit is filed in the Circuit Court of Washington County, Va., and lists Terry Kilgore as her attorney and asserts the legislative privilege.

December 2006
Stephanie Cook, the defendant’s attorney, files a motion inquiring about when Boardwine retained Frank Kilgore and Terry Kilgore.

Jan. 29, 2007
Frank Kilgore informs Boardwine that she will need to find another attorney to sue Scyphers and asks her to release he and Terry Kilgore as her attorneys.

March 13, 2007
Cook files a motion challenging the statute of limitations in the case, and moves for lawsuit to be dismissed.

March 27, 2007
Frank and Terry withdraw from the case and the lawsuit is dismissed.

April 2007
Boardwine’s new attorney, Anthony Collins, files a bar complaint against Frank Kilgore and Terry Kilgore.

Feb. 15, 2008
Collins files a lawsuit against Scyphers. The action remains pending.