V I R G I N I A:

BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

IN THE MATTER OF WILLIAM AUGUST BOGE, ESQUIRE

VSB Docket Numbers 00-053-2749
00-053-3273
01-053-0751
01-053-1830

O R D E R

This matter came on December 9, 2002, to be heard on the Agreed Disposition of the Virginia State Bar and the Respondent, based upon the Certification of a Fifth District­Section III Subcommittee. The Agreed Disposition was considered by a duly convened panel of the Virginia State Bar Disciplinary Board consisting of Bruce T. Clark, Esquire, Joseph Roy Lassiter, Jr., Esquire, Gordon P. Peyton, Esquire, Mr. V. Max Beard, lay member, and John A. Dezio, Esquire, presiding.

Seth M. Guggenheim, Esquire, representing the Bar, and the Respondent, William August Boge, Esquire, appearing pro se, presented an endorsed Agreed Disposition, dated November 26, 2002, reflecting the terms of the Agreed Disposition.

Donna Chandler of Chandler & Halasz, P.O. Box 9349, Richmond, Virginia 23227, telephone (804) 730-1222, transcribed the proceedings.

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, William August Boge, Esquire (hereafter "Respondent"), has been an attorney licensed to practice law in the Commonwealth of Virginia.

As to VSB Docket No. 00-053-2749:

2. The Respondent represented Ms. Angelina M. Yanello (hereafter "Complainant") as court-appointed counsel in connection with a sentencing hearing conducted on or about August 27, 1999, in the Prince William County, Virginia, Circuit Court. The Complainant had earlier pled guilty to the charges for which she was sentenced, and was represented by different counsel at the time her guilty pleas were entered.

3. The Complainant was sentenced to a term of incarceration by the Court. Thereafter, the Virginia State Bar received a written Complaint from the Complainant, stating that she had made written request of the Respondent for her file, but that she had not received any response from him.

4. On April 19, 2000, Virginia State Bar intake counsel sent a letter to the Respondent requesting that he respond to the Complainant's request for her file, indicating that a resolution of the matter would avoid the necessity of the Bar's opening a formal ethics inquiry.

5. On April 20, 2000, the Respondent sent a letter to the Complainant stating, inter alia: "Please allow me at least two (2) business days to get the file in the mail, as it is quite voluminous and will require some time to copy." The Respondent also wrote directly to the Bar on the same date, indicating that he would "forthwith" send the Complainant her file.

6. As of May 24, 2000, the Complainant had yet to receive her file from the Respondent, and so advised the Bar by letter of that date. Consequently, on June 5, 2000, the Bar's intake counsel directed yet another letter to the Respondent reminding him of the prior correspondence relative to the matter, and requesting that he provide the Bar with an update on the situation within ten (10) days following the date of intake counsel's letter.

7. Having received no response from Respondent to the June 5, 2000, letter, intake counsel directed yet another letter to Respondent on June 23, 2000, asking for a response within five (5) days following that date, indicating that it would be "highly likely" that an active investigation file would be opened in the event Respondent did not respond to the Bar.

8. The Respondent did not respond to intake counsel's June 23, 2000, letter and an active investigation file was opened and assigned to Bar Counsel. On July 14, 2000, Bar Counsel directed a letter of that date to Respondent, enclosing the complaint, and stating, inter alia, in bold, underlined text, the following: "please review the complaint and provide this office with a written answer, including an original and one copy of your response and all attached exhibits, within twenty-one (21) days of the date of this letter."

9. The Respondent made no written or other response to the Bar's July 14, 2000, letter, and the matter was forwarded by Bar Counsel for investigation on August 29, 2000, and was thereafter assigned to a Virginia State Bar investigator.

10. The Virginia State Bar investigator interviewed the incarcerated Complainant by telephone on November 17, 2000, and was advised that the Complainant had received her file from the Respondent toward the end of June, 2000. On November 21, 2000, the Respondent provided the Virginia State Bar investigator with documentation supporting Respondent's assertion to the investigator that he had mailed the Complainant her file on June 20, 2000.


As to VSB Docket No. 00-053-3273:

11. On March 2, 1999, Ms.Debra G. Whitney-Sundberg (hereafter "Complainant") retained the Respondent to handle a personal injury claim.

12. Between March 2, 1999, and May 6, 2000, when Complainant discharged him as her counsel, the Respondent did not gather all evidence pertinent to the matter and did not make demand on the tortfeasor's insurance carrier and/or file suit against the tortfeasor.

13. During the period of Respondent's representation, the Respondent failed to return many of Complainant's calls to him.

14. After discharging the Respondent, the Complainant went to his office to retrieve her file. Although the Respondent was not in his office at the time, the Complainant was able to retrieve her file.

15. After discharging the Respondent and retrieving her file, the Complainant attempted to settle her personal injury claim on her own, and without benefit of counsel. The insurance carrier refused to enter into settlement negotiations with the Complainant unless and until it received from Respondent a letter stating that he no longer represented the Complainant and that he asserted no lien against any proceeds of settlement for legal fees.

16. On July 20, 2000, Bar Counsel directed a letter of that date to Respondent, enclosing a Complaint thatComplainant had filed with the Bar in this matter, and stating, inter alia, in bold text, the following: "please review the complaint and provide a written answer, including an original and one copy of your response and all attached exhibits, within twenty-one (21) days of the date of this letter." The Respondent failed to file a written response to the Complaint with the Bar as required by the said letter, either within twenty-one (21) days, or at any time thereafter.

17. On August 29, 2000, the Respondent was interviewed by a Virginia State Bar investigator respecting these matters. At that time, the Respondent stated that he would immediately write a letter to the insurance company in question, stating that he no longer represented the Complainant and that he asserted no liens for fees. He further promised to send a copy of that letter to the Virginia State Bar investigator.

18. The investigator did not thereafter receive from the Respondent a copy of the letter that he was to write the insurance carrier, as promised, in furtherance of Complainant's attempts to settle her claim on her own. Accordingly, the investigator left at least one message for the Respondent, per business day, between September 5 and September 13, 2000, none of which was returned. The investigator left several messages per day for the Respondent on every business day between September 15 and October 6, 2000, again to no avail.

19. On October 20, 2000, Bar Counsel issued a subpoena to the Respondent, compelling his attendance at the Northern Virginia Office of the Virginia State Bar on November 6, 2000. On the latter date the Respondent appeared pursuant to the subpoena, and conceded to the Virginia State Bar investigator that he had yet to write the letter to the insurance carrier with which Complainant was attempting to negotiate a resolution of her personal injury claim. Bar Counsel directed the Respondent to write the letter in question before leaving the Bar offices, with which direction Respondent complied.


As to VSB Docket No. 01-053-0751:

20. Respondent was appointed by the Prince William County, Virginia, Circuit Court as co-counsel for Alan Kenneth Abraham to handle the appeal of Mr. Abraham's convictions of criminal charges in that Court. The Respondent had earlier served as co-counsel at trial on a retained basis.

21. On August 21, 2000, the Virginia State Bar received a Complaint filed by Mr. Abraham's wife, Ms. Ari D. Abraham (hereafter "Complainant"). The Complaint alleged, inter alia, that the Respondent had not communicated with her incarcerated husband for over one (1) year; that Respondent was avoiding contact with Complainant and her husband; that Complainant's telephone calls and her husband's written requests to Respondent for information concerning Mr. Abraham's appeal went unanswered; that the source of Complainant's and her husband's knowledge that his appeal had been denied by the Court was the Internet; and that Mr. Abraham had received no documentation concerning his case from the Respondent.

22. On September 6, 2000, Virginia State Bar intake counsel sent a letter to the Respondent requesting that he make specific responses to the Complaint, indicating that a resolution of the matter would avoid the necessity of the Bar's opening a formal ethics inquiry. 23. Having received no response from Respondent to the September 6, 2000, letter, intake counsel directed yet another letter to Respondent on September 22, 2000, asking for a response within five (5) days following that date, indicating that it would be "highly likely" that an active investigation file would be opened in the event Respondent did not respond to the Bar.

24. The Respondent did not respond to intake counsel's September 22, 2000, letter and an active investigation file was opened and assigned to Bar Counsel. On October 20, 2000, Bar Counsel directed a letter of that date to Respondent, enclosing the complaint, and stating, inter alia, in bold text, the following: "please review the complaint and provide a written answer, including an original and one copy of your response and all attached exhibits, within twenty-one (21) days of the date of this letter." The Respondent failed to file a written response to the Complaint with the Bar as required by the said letter, either within twenty-one (21) days, or at any time thereafter.

25. During an interview respecting these matters conducted in Respondent's office on November 15, 2000, the Respondent represented to a Virginia State Bar investigator that he would write a letter to Mr. Abraham, informing him of the status of his appeals and of his then-existing options. On November 21, 2000, the investigator reminded Respondent of his promise to write the aforesaid letter, and the Respondent stated that he would send such letter on November 22, 2000, by mail to Mr. Abraham, and by fax to the investigator. Neither the investigator, nor the Complainant, nor Mr. Abraham ever received any such letter from the Respondent.

26. The Virginia State Bar investigator made several requests of the Respondent, beginning in November, 2000, that he furnish Mr. Abraham with Mr. Abraham's file. Despite promises made to the investigator by the Respondent that he would furnish Mr. Abraham with his file, the Respondent at no time furnished the file to Mr. Abraham or to the Complainant.


As to VSB Docket No. 01-053-1830:

27. On December 22, 2000, the Virginia State Bar received a Complaint filed by Mr. Dewain A. Moten (hereafter "Complainant"). The Complaint alleged, inter alia, that the Respondent, as Complainant's court-appointed counsel, "never sent" the Complainant's "brief or opposition for [Complainant's] appeal."

28. On January 8, 2001, Virginia State Bar intake counsel sent a letter to the Respondent requesting that he respond to the Complainant's request by communicating with the Complainant concerning the status of his appeal, and that he advise the Virginia State Bar in writing of his action taken pursuant to the Bar's request. Intake counsel's letter indicated that a resolution of the matter would avoid the necessity of the Bar's opening a formal ethics inquiry.

29. Having received no response from Respondent to the January 8, 2001, letter, intake counsel directed yet another letter to Respondent on January 29, 2001, asking for a response within five (5) days following that date, indicating that it would be "highly likely" that an active investigation file would be opened in the event Respondent did not respond to the Bar.

30. The Respondent did not respond to intake counsel's January 29, 2001, letter and an active investigation file was opened and assigned to Bar Counsel. On February 22, 2001, Bar Counsel directed a letter of that date to Respondent, enclosing the complaint, and stating, inter alia, in bold text the following: "please review the complaint and provide a written answer, including an original and one copy of your response and all attached exhibits, within twenty-one (21) days of the date of this letter." The Respondent failed to file a written response to the Complaint with the Bar as required by the said letter, either within twenty-one (21) days, or at any time thereafter.

31. A Virginia State Bar investigator interviewed the Respondent in Respondent's office on March 27, 2001, at which time Respondent advised the investigator that he, the Respondent, filed the Complainant's Petition for Appeal a day late, which resulted in dismissal of the Petition for Appeal by the Virginia Court of Appeals on June 23, 2000. The Respondent also advised the investigator that he, the Respondent, never notified the Complainant that his appeal had been dismissed and that he did not advise the Complainant of the availability of a habeas corpus petition as an avenue for reinstatement of Complainant's right of appeal.

32. Aggravating factors recognized by the ABA include the following:

a. prior disciplinary offenses; and

b. a pattern of misconduct.

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

a. absence of a dishonest or selfish motive;

b. full and free disclosure to the Disciplinary Board and cooperative attitude toward these proceedings;

c. character and reputation;

d. remorse; and

e. interim rehabilitation.

The Board finds by clear and convincing evidence that such conduct on the part of William August Boge, Esquire, constitutes a violation of the following Disciplinary Rules of the revised Virginia Code of Professional Responsibility and of the Rules of Professional Conduct:

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.

RULE 1.3 Diligence

(a) A lawyer shall act with reasonable diligence and promptness in representing a client.

(b) A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but may withdraw as permitted under Rule 1.16.

(c) A lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3.

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.

(c) A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter.

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.

RULE 8.1 Bar Admission And Disciplinary Matters

An applicant for admission to the bar, or a lawyer in connection with a bar admission application, in connection with any certification required to be filed as a condition of maintaining or renewing a license to practice law, in connection with a disciplinary matter, shall not:

(c) fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6[.]

Upon consideration whereof, it is ORDERED that the Respondent's license to practice law in the Commonwealth of Virginia shall be suspended for a period of sixty (60) days, commencing on the 1st day of January, 2003; and it is further

ORDERED that pursuant to the provisions of Part Six, §IV, ¶13(M) of the Rules of the Supreme Court of Virginia, the Respondent shall give notice by certified mail, return receipt requested, of this suspension to all clients for whom he is 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 of the effective date of his suspension and arrangements shall have been made within forty-five (45) days following the effective date of the suspension. Respondent shall also furnish proof to the Bar within sixty (60) days following the effective date of his suspension that such notices have been timely given and that such arrangements for the dispositions of matters have been 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 effective date of his suspension; and it is further ORDERED that pursuant to Part Six, §IV, ¶13(B)(8)(c) 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 address of record with the Virginia State Bar, 9315 Center Street, Suite 103, Manassas, Virginia 20110, and by first class, regular mail, to Seth M. Guggenheim, Assistant Bar Counsel, Virginia State Bar, 100 North Pitt Street, Suite 310, Alexandria, Virginia 22314-3133.
ENTERED this _ day of ___________________________, 2002.

_______________________________
JOHN A. DEZIO
Chair
Virginia State Bar Disciplinary Board