BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD





IN THE MATTER OF: )

)

Robert Arthur Blount ) VSB Docket No. 01-000-1208





ORDER OF RECOMMENDATION



THIS MATTER came on for hearing on December 14, 2001, upon the Petition of Robert Arthur Blount ("Blount" or "Petitioner") seeking reinstatement of his license and privilege to practice law in the Commonwealth of Virginia, filed with the Supreme Court of Virginia on October 6, 2000, and referred by the Court to the Virginia State Bar Disciplinary Board (the "Board") by letter dated November 28, 2000, for a recommendation. A hearing was held in Courtroom A of the State Corporation Commission before a duly convened panel of the Virginia State Bar Disciplinary Board consisting of Donna A. DeCorleto (Lay Member), Peter A. Dingman, Roscoe B. Stephenson, III, Theophlise L. Twitty and William M. Moffet (Chair, presiding).

BLOUNT appeared in person and represented himself. The Virginia State Bar appeared by its counsel, Barbara Ann Williams. The proceedings were transcribed by Tracy J. Stroh of Chandler & Halasz, registered professional reporters. Their address is P. O. Box 9349, Richmond, VA 23227.

PROCEDURAL FRAMEWORK

This matter came before the Board, pursuant to Part 6, Section IV, Paragraph 13, Subsection C(4)(g) and Subsection J, as a petition for reinstatement referred to the Board by the Court. Further, by letter dated September 17, 2001, the Supreme Court of Virginia advised the parties that Petitioner would not be required to comply with provisions of Paragraph 13, Subsection J(1) (which would normally require that Petitioner complete certain continuing legal education requirements and take and obtain a certain score on the Multistate Professional Responsibility Examination prior to the Board making a recommendation)or K(10) (which would normally require that he post a bond of $3,500.00 with his petition), prior to a hearing before the Board.

Blount surrendered his license to practice law on September 10, 1996, by letter addressed to the Clerk of the Disciplinary System, and his name was stricken from the Roll of Attorneys of this Commonwealth by order entered September 11, 1996. His resignation was pursuant to an agreed disposition in each of two disciplinary matters (In the Matter of Robert A. Blount, VSB Docket No. 95-010-0082; In the Matter of Robert A. Blount, VSB Docket No. 95-010-2100). At the hearing of these two complaints, Petitioner agreed to accept a private reprimand in each case and to surrender his license to practice law after the orders of reprimand were entered so that at the time he surrendered his license charges would not be pending against him.

In this procedural setting, the Board is required to make a recommendation to the Court as to whether Petitioner has demonstrated "by clear and convincing evidence that he [...] is a person of honest demeanor and good moral character and possesses the requisite fitness to practice law". In doing so, the Board gives consideration to as many of the "Ten Factors" first enunciated In the Matter of Alfred L. Hiss, VSB Docket No. 83-26 (1984), as are applicable to this situation. The Board finds that this case is distinguishable from one in which an attorney is suspended from practice based upon a finding of disability. Petitioner did not raise his medical condition or disability as a defense or mitigating factor in the two cases which resulted in private reprimands being imposed immediately prior to his surrender.

At the inception of the hearing, the Chair required each of the members of the panel, including the Chair, to state for the record whether any of them were conscious of any personal or financial interest which would present a conflict of interest in hearing this matter. Each of the panel members (including the Chair) answered in the negative. Then, the Chair advised Petitioner and the Bar how the hearing would proceed. Specifically, they were advised that pursuant to Paragraph 13, Subsection J(1), Petitioner had the burden of proving by clear and convincing evidence that he is a person of honest demeanor and good moral character and that he possesses the requisite fitness to practice law. Then, both sides were afforded an opportunity to raise any questions or objections they might have about the procedure as outlined by the Chair. Neither side had any questions about or objections to the said procedure.

THE PROCEEDINGS

The parties thereafter presented their witnesses, their exhibits and their arguments. In his opening statement, Petitioner asserted that he had surrendered his license because he was, in 1984, diagnosed as suffering from multiple sclerosis, a disease which he then believed to be progressive and incurable. As his symptoms worsened in the early 1990's, he said he began to limit his practice and to pursue the option of a career in education. He voluntarily resigned in 1996, he asserted, in order to pursue a career as a teacher, something he had always wished to do. Having found that career less satisfying than he had hoped, and with his condition substantially stabilized by a medicine he began taking in 1995, Petitioner stated that he now desires to return to the practice of law.

Petitioner presented the testimony of Harry New, a semi-retired real estate agent who has known Petitioner for 15 to 25 years in part through their activities on behalf of the Gideon Society and in part through having employed Blount as an attorney in several real estate matters prior to Petitioner's resignation from the Bar. Mr. New testified that he had observed Petitioner to be capable and ethically sound. Petitioner also called Rev. Samuel E. Hyde who had known Petitioner since the early 1970's and was familiar with Blount through Blount's representation both of Rev. Hyde and various religious organizations. Rev. Hyde testified that were Petitioner to be reinstated as an attorney Rev. Hyde would have no difficulty in employing him on his own legal matters as he had observed Petitioner's conduct prior to resignation and had subsequently observed his conduct in teaching constitutional law and church law to a seminary class and thought him to be able and capable. Rev. Hyde stated specifically that he has not observed any behavior which he thought demonstrated cognitive impairment by Petitioner.

Petitioner also testified, asserting that, as a result of medications he first began taking in the mid-1990's, his condition has substantially stabilized and he believes he is now capable of practicing law. He stated that, if reinstated, he would manage his practice to compensate for the effect of the symptoms of his illness. He would limit his practice to areas and circumstances less likely to impose stress upon him, a factor which appeared to aggravate the symptoms of his illness. Petitioner advised the Board that prior to his surrender of his license, the stress of two jury trials in one week had caused an exacerbation of his symptoms, rendering him temporarily blind in one eye and requiring him to be hospitalized. If reinstated, he said he would seek employment in jobs he believed would involve relatively low stress, identifying an Assistant Commonwealth's Attorney position as one such job. In addition, he would limit his practice to an area such as criminal law which he regarded as less stressful than other areas of the law. Admitting that he had occasionally had difficulties both as an attorney and in his education career as a result of an inability to remember names, Petitioner stated that this problem could be overcome by annotating files with the names of the client and any witnesses. On cross examination and upon questioning from the panel, Blount had difficulty, at first, recalling the circumstances of a traffic accident leading to a suspension of his driver's license, but subsequently explained it as a minor accident. He also testified that the plea agreement reached during the 1996 disciplinary hearings was entered into by his attorney without his knowledge or consent, yet the transcript of the hearing indicates that the specific terms of the agreement were set out on the record and the Petitioner indicated on the record that he understood each term of the agreement and agreed to each term.

The Bar, arguing that Petitioner remained unfit to practice due to the continuing symptoms of his illness, called among its witnesses Phyllis Booth, William Roger Hammond and Robert Earl Griffin, administrators of schools at which Blount has taught since 1995. These witnesses testified that Blount was not effective as a teacher, at least in part because of an inability to interact well with students. The witnesses stated that Petitioner had difficulty maintaining discipline because he could not remember student names. They stated that he failed to organize adequately, he lost students' homework assignments and he improperly supervised field trips. They also stated that he adopted what they considered an unacceptable teaching style and refused to change when instructed to do so. The Bar called Robert Haddad, a Virginia Beach attorney who represented one of Blount's former clients in a malpractice action against Blount stemming from a consumer fraud case pursued by Robert A. Blount and Associates (Petitioner's firm) during the years 1988 to 1992. Mr. Haddad testified that, in his opinion, Blount never understood the proper steps to perfect the client's claim for punitive damages. The malpractice action was settled with a recovery for the client.

The Bar also called Robert P. Hart, Ph.D., a clinical psychologist who examined Blount at the Bar's request. Dr. Hart reported that Petitioner was average to slightly above average in certain cognitive functions and was average to slightly below average in others, when compared to all adult males of similar age. Dr. Hart expressed concerns about Petitioner's adaptive functioning and both observed and reported tendencies toward denial of the symptoms of his illness and/or under-reporting of such symptoms. Dr. Hart felt that stress was likely to exacerbate Petitioner's symptoms and that Petitioner might not have sufficient judgment regarding his illness to recognize circumstances in which his symptoms might be interfering with his ability to practice law.

With the agreement of Petitioner, the Bar and Mrs. Blount, the Petitioner's wife was called as a witness. Mrs. Blount candidly advised the Board that based upon her observations of her husband she believes that he does have cognitive deficits, impaired judgment, difficulties with decision-making and a definite tendency to deny the significance and effect of his M. S. symptoms on his judgment and thinking. It is her opinion that these factors impacted Petitioner's ability to practice law prior to his resignation and would do so again were he reinstated. She noted that Petitioner had made factual errors in his testimony, incorrectly stating the ages of all three of his children and the name of the particular school one of his children was attending.

The Board also reviewed 35 exhibits submitted by the Bar and five exhibits submitted by Petitioner.





RECOMMENDATION

Having considered all of the foregoing, the Board recommends that the Supreme Court of Virginia deny the Petition. The Board finds that Petitioner has failed to prove by clear and convincing evidence that he is a person of honest demeanor and good moral character and possesses the requisite fitness to practice law, the standard articulated in Paragraph 13, Subsection J(1). The Board considered the Hiss factors, to the extent they are applicable to this situation. The Hiss factors the Board found to be applicable and our findings with regard to those factors are set out below:

1. The Petitioner's activities since disbarment, including, but not limited to, his conduct and attitude during that period of time. The testimony of Mr. New suggested that Blount has continued his work with the Gideon Society since his resignation. Rev. Hyde also indicated that Petitioner has continued to perform valuable services on behalf of religious organizations. The Bar presented evidence through witnesses and exhibits indicating that Petitioner's work experience since resignation had been less than satisfactory; however, there was no evidence that this less than satisfactory work performance was the result of dishonesty or intentional misconduct. The Board felt that his poor job performance was a reflection of, among other things, his cognitive impairment from M. S.

2 The Petitioner's present reputation and standing in the community. Petitioner did not present any evidence regarding his general reputation in the community at this time; however, several of the witnesses did testify that he was a person of honest demeanor and good moral character.

3. The Petitioner's familiarity with the Virginia Rules of Professional Conduct and his current proficiency in the law. Petitioner testified that in teaching constitutional and church law to seminary students and in teaching criminal law to sailors, through a college extension program, he had remained familiar with developments in the law. In responding to questions from the panel, Petitioner indicated he was not familiar with the Rules of Professional Conduct which became effective January 1, 2000. Thus, the Board does not believe Petitioner established by clear and convincing evidence that he is familiar with the Rules of Professional Conduct, nor does it believe that he established by clear and convincing evidence that he is currently proficient in the law other than possibly in a few limited areas. However, in light of the Virginia Supreme Court's September 17, 2001 letter to the Board stating that Petitioner did not need to comply with the CLE requirements or take and pass the Multistate Professional Responsibility Examination prior to his hearing before the Board, his failure demonstrate his familiarity with the Rules of Professional Conduct and his failure to demonstrate his current proficiency in the law were not factors in our decision. Stated another way, our decision to recommend against reinstatement was made independent of his failure to prove that he had met this criteria.

4. The Petitioner's sincerity, frankness and truthfulness in presenting and discussing factors relating to his disbarment and reinstatement. There were inconsistencies between Petitioner's testimony about the disciplinary proceedings and the transcript of that proceedings. There were other aspects of his testimony which were not consistent with the facts as the Board found them. However, it was the feeling of the Board that these inaccuracies were a function of the effects of the M.S. on his memory, rather than any intentional misstatements.

5. The impact upon public confidence in the administration of justice if the Petitioner's license to practice law was restored. Due to the particular circumstances of this case, the Board does not feel that the reinstatement of Petitioner's license would have an adverse impact upon public confidence in the administration of justice, if it was established that Petitioner has the requisite fitness to practice law. However, if he does not, it very well might. Thus, the threshold issue is, has the Petitioner proven by clear and convincing evidence that he has the requisite fitness to practice law. In this case, the issue becomes whether he has suffered cognitive impairment from the effects of M.S. and, if so, whether that cognitive impairment has impaired him to the extent that he lacks the requisite fitness to practice law. The Board had hoped that the evidence and the neuropsychological test results would support a finding that there was no such impairment. Unfortunately, the Board finds that the Petitioner has not proven by clear and convincing evidence that he has the requisite fitness to practice law. Rather, the evidence supports the unfortunate finding that the cognitive impairment the Petitioner suffers from as a result of M.S. has rendered him lacking the requisite fitness to practice law. Thus, the Board is compelled to recommend that the Supreme Court of Virginia deny Petitioner's petition.

As required by Paragraph 13K(10), the Board finds the cost of the proceeding to be as follows:

Copying $ 207.35

Transcript 1,121.85

Mailing of Notice of Hearing 12.05

Administrative Fee 750.00

Witness Fees(including expert fee) 5,393.75



Total $ 7,485.00





In consideration whereof, it is ORDERED that the Clerk of the Disciplinary System forward this Order of Recommendation and the record to the Virginia Supreme Court for its consideration and disposition. It is further ORDERED that the Clerk of the Disciplinary System forward an attested copy of this Recommendation Order by certified mail, return receipt requested, to the Petitioner at his address of record with the Virginia State Bar, 23 Cherbourg Drive, Newport News 23606, and to Barbara Ann Williams, Bar Counsel, Virginia State Bar, 707 East Main, Suite 1500, Richmond, Virginia 23219.

ENTERED this _____ day of February, 2002.





Virginia State Bar Disciplinary Board





_______________________________________

William M. Moffet, Chair