BEFORE THE SEVENTH DISTRICT COMMITTEE
OF THE VIRGINIA STATE BAR
IN THE MATTER OF WARREN ANTHONY PICCIOLO, ESQ.
VSB Docket No. 02-070-0732
On October 9, 2002, a hearing in this matter was held before the duly convened Seventh District Committee, consisting of Peter C. Burnett, Esq., Anne K. Crenshaw, Esq., Steven H. Gordon, Anne C. Hall, Frederick Warren Payne, Esq., Grant A. Richardson, Esq., Joseph W. Richmond, Jr., Esq., and John G. Berry, Esq., presiding.
Pursuant to Part 6, §IV, ¶13(H)(2)(l)(2)(d) of the Rules of Virginia Supreme Court, the Seventh District Committee of the Virginia State Bar hereby serves upon the Respondent the following Public Reprimand with Terms:
I. FINDINGS OF FACT
1. At all times relevant hereto the Respondent, Warren Anthony Picciolo, Esq. (hereinafter the Respondent), has been an attorney licensed to practice law in the Commonwealth of Virginia.
2. In April of 2000, the Complainant, Stuart J. FitzGibbon, hired the Respondent to help him recover back rent and payment for damages, caused by a tenant, to a rental property he owned. The Complainant paid the Respondent $400.00 in advance fees plus $42.00 in advance payment of costs. The parties did not execute a retainer agreement. The Respondent and the Complainant disagree about whether or not the Respondent would collect the judgement if he prevailed at trial.
3. The Respondent filed an unlawful detainer, and on September 18, 2000, won a judgment against the tenant in the amount of $2,177.00. On December 3, 2000, the former tenant's father sent a check, made out the Complainant in the amount of $1,952.00, to the Respondent. This amount was unsatisfactory to the Complainant and he refused to accept it as payment of the judgment. The Respondent kept the check and did nothing with it.
4. The Complainant attempted to contact the Respondent regarding the collection of the judgment, but the Respondent failed to answer any of the Complainant's phone calls, e-mails or letters. The Respondent also failed to withdraw from the Complainant's case. The Complainant asked the Respondent to return his file(s) but the Respondent has failed to return it. The Respondent's failure to communicate with the Complainant left the Complainant unable to make informed decisions about his case. The Respondent also failed to protect his client's interests because he failed to send the Client his file and the check.
II. NATURE OF MISCONDUCT
The Committee finds that the following
Disciplinary Rules have been violated:
RULE 1.4 Communication
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
RULE 1.16 Declining Or Terminating Representation
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, refunding any advance payment of fee that has not been earned and handling records as indicated in paragraph (e).
(e) All original, client-furnished documents and any originals of legal instruments or official documents which are in the lawyer's possession (wills, corporate minutes, etc.) are the property of the client and shall be returned to the client upon request, whether or not the client has paid the fees and costs owed the lawyer. If the lawyer wants to keep a copy of such original documents, the lawyer must incur the cost of duplication. Upon request, the client must also be provided copies of the following documents from the lawyer's file, whether or not the client has paid the fees and costs owed the lawyer: lawyer/client and lawyer/third-party communications; the lawyer's copies of client-furnished documents (unless the originals have been returned to the client pursuant to this paragraph); pleadings and discovery responses; working and final drafts of legal instruments, official documents, investigative reports, legal memoranda, and other attorney work product documents prepared for the client in the course of the representation; research materials; and bills previously submitted to the client. Although the lawyer may bill and seek to collect from the client the costs associated with making a copy of these materials, the lawyer may not use the client's refusal to pay for such materials as a basis to refuse the client's request. The lawyer, however, is not required under this Rule to provide the client copies of billing records and documents intended only for internal use, such as memoranda prepared by the lawyer discussing conflicts of interest, staffing considerations, or difficulties arising from the lawyer/client relationship.
Accordingly, it is the decision of the Committee to impose a Public Reprimand with Terms, compliance with which by June 1, 2003, shall be a predicate for the disposition of this complaint by imposition of a Public Reprimand with Terms. The terms and conditions which shall be met by June 1, 2003, are:
1. The Respondent shall maintain his membership in the Rockingham County Bar Association for the next year and shall establish a mentor relationship with an active member of the Rockingham Bar Association through the Association's mentor program. Such mentor shall be experienced in the area(s) of civil litigation and shall be approved by the Assistant Bar Counsel handling this case prior to the establishment of the mentor relationship. The mentor shall meet with the Respondent at least bimonthly for a period of one year after the establishment of the relationship, and monitor whether the Respondent's practice complies with the rules and opinions of the Virginia State Bar and provide support and advice to the Respondent in the area of civil litigation. The Respondent shall provide satisfactory evidence of his membership in the Rockingham County Bar Association and the name of his proposed mentor to the Assistant Bar Counsel handling these case by November 15, 2002. The mentor shall report to the Assistant Bar Counsel handling this case on a bi-monthly basis about whether or not the Respondent has cooperated fully with the mentor in ensuring the Respondent's compliance with rules and opinions of the Virginia State Bar.
2. The Respondent shall complete eight (8) hours of continuing legal education credits by attending courses approved by the Virginia State Bar in the areas law office management and/or ethics. His Continuing Legal Education attendance obligation set forth in this paragraph shall not be applied toward his Mandatory Continuing Legal Education requirement in Virginia or any other jurisdictions in which he may be licensed to practice law. He shall certify his compliance with the terms set forth in this paragraph by delivering a fully and properly executed Virginia MCLE Board Certification of Attendance Forms (Form 2) to Claude V. Worrell, II, Assistant Bar Counsel, at 100 North Pitt Street, Suite 310, Alexandria, VA 22314, promptly following his attendance of such CLE program(s).
3. The Respondent shall forthwith engage the services of law office management consultant Janean S. Johnston, 250 South Reynolds Street, #710, Alexandria, Virginia 22304-4421, (703) 567-0088, to review the Respondent's law practice and make written recommendations concerning the Respondent's practice policies, methods, systems, and procedures. The Respondent shall institute and thereafter follow with consistency any and all recommendations made to him by Ms. Johnston following her evaluation of the Respondent's practice. The Respondent shall grant Ms. Johnston access to his law practice from time to time, at her request, for purposes of ensuring that the Respondent has instituted and is complying with Ms. Johnston's recommendations. The Virginia State Bar shall have access (by way of telephone conferences and/or written reports) to Ms. Johnston's findings and recommendations, as well as her assessment of the Respondent's level of compliance with her recommendations. The Respondent shall be obligated to pay when due Ms. Johnston's fees and costs for her services (including provision to the Bar of information concerning this matter) in a maximum aggregate amount of $2,500.00. The Respondent will have discharged his obligations respecting the terms contained in this paragraph if he has fulfilled and remained in compliance with all of the terms contained herein through June 1, 2003.
4. Within ten (10) days of the date of this disposition, the Respondent shall return to the Complainant his file(s) and check in a manner that protects the client.
Upon satisfactory proof that the above noted terms and conditions have been met, a Public Reprimand with Terms shall then be imposed. If, however, the terms and conditions have not been met by January , an alternative sanction of certification to the Disciplinary Board of the Virginia State Bar shall be imposed.
Pursuant to Part Six, §IV, ¶13(B)(8)(c)(1) of the Rules of Virginia Supreme Court, the Clerk of the Disciplinary System shall assess costs.
SEVENTH DISTRICT COMMITTEE
OF THE VIRGINIA STATE BAR
John G. Berry, Chair
I certify that I have this _____ day of ___________________________, 2002, mailed a true and correct copy of the Committee Determination of a Public Reprimand with Terms by CERTIFIED MAIL, RETURN RECEIPT REQUESTED, to the Respondent, Warren Anthony Picciolo, Esq. at 57 South Main St., Suite 309, Harrisonburg, VA 22801, his last address of record with the Virginia State Bar.
Claude V. Worrell, II