IN THE MATTER OF DAVID BAFUMO, ESQUIRE
VSB Docket # 00-051-1567
Came this matter to be heard on the Agreed Disposition of the Virginia State Bar and the Respondent, based upon the Certification of the Fifth District Committee Section I. The Agreed Disposition was considered by a duly convened panel of the Virginia State Bar Disciplinary Board consisting of Richard J. Colten, Esquire, Karen A. Gould, Esquire, Roscoe B. Stephenson, III, Esquire, Thaddeus T. Crump, Lay Member and William M. Moffet, Esquire, presiding.
Noel D. Sengel, Esquire, representing the Bar, and the Respondent, David Bafumo, Esquire, by his counsel Timothy J. Battle, Esquire, presented an endorsed Agreed Disposition reflecting the terms of the Agreed Disposition.
Having considered the Certification and the Agreed Disposition, it is the decision of the Board that the Agreed Disposition be accepted, and the Virginia State Bar Disciplinary Board finds by clear and convincing evidence as follows:
1. At all times relevant hereto, the Respondent, David Bafumo, Esquire (hereinafter Respondent), has been an attorney licensed to practice law in the Commonwealth of Virginia.
2. The Respondent represented Seyed Hassan Ghasemi Hosseini, the complainant in a divorce action, Hosseini v. Mashalian, In Chancery No. 157702, in the Fairfax County Circuit Court. The Respondent filed a Bill of Complaint in the case on September 23, 1998. On March 9, 1999, the Respondent filed a Final Decree, VS-4 form and a notarized Waiver of Service of Process and Notice (hereinafter Waiver), which appeared to have been signed before a Notary Public by the defendant, Afsane Mashalian, on December 24, 1998. Ms. Mashalian's signature on the Waiver was notarized by Azar M. Menhaji, a staff person at Tate & Bywater, the law firm where the Respondent was employed. The Final Decree was entered on May 28, 1999 by the Honorable Circuit Court Judge Stanley P. Klein, awarding custody of the couple's children to the Respondent's client.
3. Sometime later, because the Respondent was unavailable, Mr. Ghasemi hired new counsel in order to enforce the custody provisions of the Final Decree in his divorce. On or about July 16, 1999, an emergency custody hearing was held in the Circuit Court of Fairfax County. Afsane Mashalian attended the hearing and denied having signed the Waiver. She filed a Bill of Complaint seeking to invalidate the decree of divorce.
4. By letter dated July 29, 1999, the Respondent informed his former client, Mr. Ghasemi, that he had become aware that Ms. Mashalian had not signed the Waiver before a Notary Public. The Respondent noted that under Disciplinary Rule 4-101(D)(2), he, the Respondent, was obligated to reveal to the Court any information which establishes that a client has perpetrated a fraud upon a tribunal. The Respondent requested that Mr. Ghasemi himself inform the Court of the fraud, or he, the Respondent, would have to do so.
5. By letter dated August 10, 1999, the Respondent wrote to Judge Stanley P. Klein, who had presided over the Ghasemi divorce, to inform him that the Respondent's former client Mr. Ghasemi "had perpetrated a fraud upon the Court in connection with the case." The Respondent stated that Mr. Ghasemi had admitted that Ms. Mashalian had not signed the Waiver in front of a Notary Public. The Respondent stated further that, "The Waiver of Service and Notice was signed and notarized in Fairfax County on December 24, 1998, and mailed to his office."
6. On November 16, 1999, a hearing was held on Ms. Mashalian's Bill of Complaint seeking to invalidate the divorce decree. Testimony was taken regarding the signing and notarization of the Waiver. At that hearing, the Respondent testified that he had instructed his client in person and Ms. Mashalian by a cover letter attached to the Waiver that Ms. Mashalian had to sign the Waiver in front of a Notary Public. The Respondent testified that he first learned that Ms. Mashalian had not signed the Waiver before a Notary Public when he talked to counsel for Mr. Ghasemi after the July 16, 1999 hearing. The Respondent also testified that he spoke with Mr. Ghasemi and Mr. Ghasemi assured him that Ms. Mashalian had signed the Waiver, and had done so before witnesses, though not in front of a Notary Public because of time constraints.
7. Azar M. Menhaji, an attorney admitted to practice in New Jersey and an applicant to the Virginia State Bar, was an administrative employee at Tate & Bywater. At the same hearing, Ms. Menhaji testified that she notarized Ms. Mashalian's signature without Ms. Mashalian appearing before her to sign the document in her presence or to acknowledge her signature in anyway. At the conclusion of the hearing, after the testimony of additional witnesses, the court determined that Ms. Mashalian had signed the Waiver, though not in front of a Notary Public, and awarded Mr. Ghasemi $800.00 in attorney's fees for his defense in the matter, to be paid by Ms. Mashalian.
8. The Respondent now admits that he allowed Ms. Menhaji to notarize Ms. Mashalian's signature on the Waiver without Ms. Mashalian appearing before Ms. Menhaji to sign or acknowledge her signature. The Respondent notes that he and Ms. Menhaji both believed the signature to be genuine. The Respondent further admits that the statements he made in his letter of August 10, 1999 to Judge Klein were misleading, and that he testified falsely about the notarization of the Waiver during the November 16, 1999 hearing.
9. Mitigating factors recognized by the ABA include the following:
(A) The Respondent has no prior disciplinary record.
(B) At the time of events outlined above, the Respondent had been actively engaged in the practice of law for little more than a year. Not long after these events, the Respondent stopped practicing law, and obtained other non-law related employment.
(C) The Respondent has made full and free disclosures during the course of the investigation and has exhibited a cooperative attitude during these proceedings.
(D) The Respondent is remorseful for his behavior in this instance and accepts full responsibility for his misconduct.
(E) The Respondent has witnesses who would testify to his good character and reputation.
The Board finds by clear and convincing evidence that such conduct on the part of David Bafumo, Esquire constitutes a violation of the following Rule(s) of the Virginia Code of Professional Responsibility:
DR 1-102. Misconduct.
(A) A lawyer shall not:
(4) Engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation which reflects adversely on
a lawyer's fitness to practice law.
Upon consideration whereof, it is ORDERED that the Respondent shall receive effective this date a two-year suspension of his license to practice law.
It is further ORDERED that pursuant to the provisions of Part Six, §IV, ¶13(K)(1) of the Rules of the Supreme Court of Virginia, the Respondent shall give Notice by Certified Mail, Return Receipt Requested, of the Suspension of his license to practice law in the Commonwealth of Virginia, to all clients for whom he is currently handling matters; to all opposing attorneys; and to all presiding judges in pending litigation within fourteen (14) days of the effective date of this order; and the Respondent shall make immediate appropriate arrangements for the disposition of all matters presently in the Respondent's care in conformity with the wishes of each of the Respondent's clients within forty-five (45) days of the effective date of this order.
It is further ORDERED that within sixty (60) days of the effective date of this order the Respondent shall furnish true copies of all of the Notice letters sent to the above-listed persons, with all of the original Certified Mail Return Receipts for said Notice letters, to the Clerk of the Disciplinary System, and within sixty (60) days of the effective date of this Order shall certify to the Clerk of the Disciplinary System that said arrangements have been made.
Pursuant to Part Six, §IV, ¶13(K)(10) of the Rules of the Supreme Court, the Clerk of the Disciplinary System shall assess costs.
It is further ORDERED that a copy teste of this Order shall be mailed by Certified Mail, Return Receipt Requested, to the Respondent David Bafumo, Esquire at 4118 Tall Pine Dr., Franklinton, NC 27525, his last address of record with the Virginia State Bar, and by regular first-class mail the Respondent's Counsel, Timothy J. Battle, Esquire, at P.O. Box 19631, Alexandria, VA 22320-0631, and to Senior Assistant Bar Counsel Noel D. Sengel, Virginia State Bar, 100 North Pitt Street, Suite 310, Alexandria, VA 22314.
William M. Moffet, Chair