V I R G I N I A:



BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD



IN THE MATTER OF CHARLES IVEY BILLMAN, ESQUIRE



VSB Docket Number 00-041-0035



O R D E R



This matter came on November 2, 2001, to be heard on the Agreed Disposition of the Virginia State Bar and the Respondent, based upon the Certification of a Fourth District-Section I Subcommittee. The Agreed Disposition was considered by a duly convened panel of the Virginia State Bar Disciplinary Board consisting of Donna A. DeCorleto, lay member, Peter Allan Dingman, Esquire, Roscoe Bolar Stephenson, III, Esquire, Herbert Taylor Williams, IV, Esquire, and William Morris Moffet, Esquire, presiding.

Seth M. Guggenheim, Esquire, representing the Bar, and the Respondent, Charles Ivey Billman, Esquire, appearing by his counsel, Jeffrey S. Shapiro, Esquire, presented an endorsed Agreed Disposition, dated October 31, 2001, reflecting the terms of the Agreed Disposition. The court reporter for the proceeding was Donna Chandler, P. O. Box 9349, Richmond, Virginia 23227, telephone (804) 730-1222.

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, Charles Ivey Billman, Esquire (hereafter "Respondent"), has been an attorney licensed to practice law in the Commonwealth of Virginia.

2. In or around August of 1998, Bobby Lee Malady, a prisoner incarcerated in a federal facility in Illinois, contacted Respondent requesting legal representation. Respondent agreed to represent Mr. Malady for a "flat fee" of $5,000.00, by writing and filing a motion under 28 U.S.C. 2255 to correct the sentence imposed by the federal court which sentenced Mr. Malady to the term he was then serving. A check in the sum of $5,000.00 was sent to Respondent on or about August 18, 1998, by Mr. Malady's mother, Louise Flieger Malady (hereafter "Complainant").

3. Unbeknownst to Mr. Malady at the time Respondent was engaged to handle Mr. Malady's legal matter, Respondent had agreed to pay one Robert Weigers, another federal prisoner incarcerated in the same facility as Mr. Malady, a "referral fee" of twenty percent (20%) of the fee charged Mr. Malady. Beyond serving as compensation for Mr. Weigers's having referred Mr. Malady to Respondent, the "referral fee" was also to cover the cost of Mr. Weigers's performance of legal research and the drafting of the motion required in Mr. Malady's case.

4. From the proceeds of the $5,000.00 received from Complainant, Respondent sent the referral fee in the sum of $1,000.00 to Mr. Weigers, in care of his wife. Mr. Weigers did not thereafter perform the services for which Respondent had paid him. While Respondent waited in vain for receipt of a draft of the motion from Mr. Weigers, Respondent was not forthright with Mr. Malady as to why Respondent had provided no work product to Mr. Malady for a period of months following Respondent's retention by Mr. Malady.

5. Months following his retention by Mr. Malady, Respondent concluded that Mr. Weigers, the prisoner he had engaged and paid to perform legal services on behalf of Mr. Malady, would not, in fact, be performing those services. Respondent thereupon, for the first time, explained to Mr. Malady his arrangement with Mr. Weigers, and began work associated with Mr. Malady's "2255" motion. Respondent thereafter learned that Mr. Malady had already filed an unsuccessful "2255" motion and that the documents Mr. Malady had produced, and which were to be the basis on which the "2255" motion was to be filed, were allegedly forged. Respondent then concluded that filing such a motion, a second time, would not be well taken.

6. On or about June 27, 1999, Complainant, by telephone, demanded a return of the money that she had paid to Respondent on behalf of her son. The Respondent refused at that time to return all or any portion of the Complainant's money, claiming that the time he devoted to researching Mr. Malady's legal matter and drafting the "2255" brief had "exhausted" the fee he had charged for handling the matter.

7. On or about June 28, 1999, some ten months after having been engaged by Mr. Malady for the sum of $5,000.00, Respondent sent Mr. Malady a letter enclosing documents which Mr. Malady was to complete and file on a pro se basis: a cover letter to the clerk of court; a partially completed seven-page pre-printed form petition under 28 U.S.C. 2241, with certain blanks filled in by hand; a one and one-quarter page typewritten attachment to the form petition, styled "Grounds for Relief;" photocopies of Mr. Malady's criminal records from the State of Missouri; and a money order to cover the filing fee. The "2241 petition" was prepared by Respondent following the closure of his Arlington, Virginia, law office, and while he was on a leave of absence and traveling in Alaska. He used the resources of a public library in Alaska in preparing the petition.

8. Notwithstanding his claim that the fee paid to him had been exhausted, the Respondent made no record of the time that he claims to have devoted to Mr. Malady's case, maintaining that he did not do so because he handled the matter on a "flat rate fee" basis.

9. Mitigating factors recognized by the ABA include the following:

a. absence of a prior disciplinary record;

b. inexperience in the practice of law; and

c. cooperative attitude toward disciplinary proceedings.

The Board finds by clear and convincing evidence that such conduct on the part of Charles Ivey Billman, Esquire, constitutes a violation of the following Rules of the Virginia Code of Professional Responsibility:

DR 1-102. Misconduct.



(1) Violate a Disciplinary Rule or knowingly aid another to do so.



(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on a lawyer's fitness to practice law.



DR 2-103. Recommendation or Solicitation of Professional Employment.



(D) A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client, except that he may pay for public communications permitted by DR 2-101 and the usual and reasonable fees or dues charged by a lawyer referral service and any qualified legal services plan or contract of legal services insurance as authorized by law, provided that such communication of the service or plan are in accordance with the standards of DR 2-101 or DR 2-103, as appropriate.



DR 2-105. Fees.



(B) The basis or rate of a lawyer's fee shall be furnished on request of the lawyer's client.



DR 3-102. Dividing Legal Fees with a Non-lawyer.



(A) A lawyer or law firm shall not share legal fees with a non-lawyer ***[.]



DR 3-104. Nonlawyer Personnel.



(C) A lawyer or law firm that employs nonlawyer personnel shall exercise a high standard of care to assure compliance by the nonlawyer personnel with the applicable provisions of the Code of Professional Responsibility. The initial and the continuing relationship with the client must be the responsibility of the employing attorney.



DR 6-101. Competence and Promptness.



(B) A lawyer shall attend promptly to matters undertaken for a client until completed or until the lawyer has properly and completely withdrawn from representing the client.



(C) A lawyer shall keep a client reasonably informed about matters in which the lawyer's services are being rendered.

DR 9-102. Preserving Identity of Funds and Property of a Client.



(B) A lawyer shall:



(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.



(4) Promptly pay or deliver to the client or another as requested by such person the funds, securities, or other properties in the possession of the lawyer which such person is entitled to receive.



Upon consideration whereof, it is ORDERED that:

1. Subject to the provisions of Paragraph 3 set forth below, the Respondent's license to practice law, be, and the same hereby is, suspended for a period of six (6) months, effective upon entry of this Order;

2. Respondent shall pay by certified, cashier's, or treasurer's check, made payable to the order of Louise Flieger Malady, the sum of $2,500.00. The payment that is due hereunder shall be made by delivery of a check, as aforesaid, to Seth M. Guggenheim, Assistant Bar Counsel, 100 North Pitt Street, Suite 310, Alexandria, Virginia 22314-3133 no later than January 31, 2002; and that

3. If the Respondent fails to comply with the terms set forth in the immediately preceding Paragraph 2, then, and in such event, this Board shall, as an alternative disposition to the six (6) month license suspension ordered pursuant to Paragraph 1, extend the period of license suspension by twelve (12) months, for a total period of license suspension of eighteen (18) months; and it is further

ORDERED that:

A. Pursuant to the provisions of Part Six, IV, 13(K)(1) of the Rules of the Supreme Court of Virginia, the Respondent shall forthwith give notice by certified mail, return receipt requested, of this suspension to all clients for whom he is currently handling matters and to all opposing attorneys and the presiding judges in pending litigation and that he shall also make appropriate arrangements for the disposition of matters that are in his care in conformity with the wishes of his clients. The notice shall be given within fourteen (14) days following the date of this Order and arrangements shall have been made within forty-five (45) days following the date of this Order. Respondent shall also furnish proof to the Bar within sixty (60) days following the date of this Order that such notices have been timely given and such arrangements for the dispositions of matters made. Issues concerning the adequacy of the notice and the arrangements required herein shall be determined by the Disciplinary Board, which may impose a sanction of revocation or suspension for failure to comply with the requirements of this Order. Respondent shall furnish true copies of all of the notice letters sent to all persons notified of the suspension, with the original return receipts for said notice letters, to the Clerk of the Disciplinary System, on or before the sixtieth (60th) day following the date of entry of this Order; and
B. Pursuant to Part Six, IV, 13(K)(10) of the Rules of the Supreme Court, the Clerk of the Disciplinary System shall assess costs against the Respondent.

It is further ORDERED that a copy teste of this Order shall be mailed by Certified Mail, Return Receipt Requested, to the Respondent, at his last address of record with the Virginia State Bar, and by first class, regular mail, to Seth M. Guggenheim, Assistant Bar Counsel and to Jeffrey S. Shapiro, counsel for Respondent.

ENTERED this day of ___________________________, 2001.





_______________________________ WILLIAM MORRIS MOFFET

Chairman

Virginia State Bar Disciplinary Board