VIRGINIA:



BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD



In the Matter of

David Thomas Daulton

VSB Docket No: 99-021-1487



DISSENTING OPINION

 

LARRY B. KIRKSEY AND H. TAYLOR WILLIAMS, IV, IN DISSENT:

 

The panel's debate in this matter involves the appropriate level of sanction.

 

We concur with the findings of misconduct by David Thomas Daulton (hereinafter referred to as "Daulton"). He is clearly in violation of the cited Disciplinary Rules. We, however, respectfully dissent as to the appropriate sanction.

Agreed, an attorney's failure to preserve the integrity of clients' property and the misconduct related thereto is a most serious ethical violation and results, predictably, in the loss of one's privilege to practice law. In the present matter, the majority of the panel favors revocation. We do not. Revocation of the license to practice fails to give sufficient weight to the mitigating circumstances for which, we opine, a lengthy suspension seems more appropriate under the facts specific to the violation by Daulton.

The absence of loss by and injury to any client ranks as the preliminary mitigating factor. Not one of the clients of Daulton's firm experienced a loss. With one exception, all of the funds subject to the misappropriation and misconduct were advances on fees earned and subject to being billed. Although not excusing the misconduct, the absence of loss to the clients mitigates in favor of a suspension of license.

Next, Daulton's disciplinary record and character mitigate the harsh sanction of revocation. Daulton has actively engaged himself throughout his legal career in the education of law students and fellow members of the bar in his focus area of practice, i.e., adoptions. In addition, his volunteer participation with the public in adoption associations not only is in mitigation of the sanction to be applied, but also is in commendation to his fitness to serve professionally.

Daulton has taken appropriate steps to cure the misconduct and to assure its non-recurrence in the future.

It also must be noted that Daulton has had no ethical complaint, founded or unfounded, since the occurrence of the present incident, more than five (5) years hence.

The purpose of lawyer discipline proceedings is to protect the public and the administration of justice from lawyers who have not discharged, will not discharge, or are unlikely to properly discharge their professional duties to clients, the public, the legal system, and the legal profession. Section 1.1 of the American Bar Association Standards for Imposing Lawyer Sanctions. Protection of the public is the primary purpose of lawyer sanctions. This primary purpose is met by removal of the respondent from the privilege to practice law. Removal of the privilege is accomplished either by suspension or by revocation. In the present case, the primary purpose is best served by a lengthy suspension of Daulton, giving due credit to the mitigating circumstances. The majority's decision to revoke, while meeting the primary purpose of lawyer sanctions, seems draconian and fails to give adequate weight to valid mitigating points.