`VIRGINIA:





BEFORE THE FIFTH DISTRICT SECTION I SUBCOMMITTEE

OF THE VIRGINIA STATE BAR





IN THE MATTER OF GARY M. BRENEMAN, ESQUIRE

VSB Docket No. 00-051-0899





AGREED DISPOSITION

 

Pursuant to Virginia Supreme Court Rules of Court Part Six: IV, 13(B)(5) and Council Rule of Disciplinary Procedure IV(B), the Virginia State Bar, by Senior Assistant Bar Counsel Noel D. Sengel, and the Respondent, Gary M. Breneman, Esq., hereby enter into an Agreed Disposition arising out of the above-referenced matter.

Both parties affirm that the proposed Subcommittee Determination of a Public Reprimand, a true copy of which is attached hereto and incorporated herein by reference, reflects the stipulated facts, violations, and disposition for the above-referenced matter.

Respondent understands that should the Subcommittee accept this agreed disposition by unanimous vote, the Subcommittee Determination will be signed by the Chair or Chair Designate and thereafter mailed without the necessity of any hearing or further notice to the parties. Further, it is understood and agreed by the parties hereto that should the Subcommittee refuse the agreed disposition neither party shall be bound by the stipulations or findings contained herein and this matter shall be forthwith scheduled for a hearing by the full Committee.


SEEN AND AGREED TO:

THE VIRGINIA STATE BAR



________________________

Noel D. Sengel

Senior Assistant Bar Counsel







________________________

Gary M. Breneman

Respondent







SUBCOMMITTEE ACTION


Pursuant to Virginia Supreme Court Rules of Part Six: IV, 13(B)(5)(b)(4) and Council Rule of Disciplinary Procedure IV(B)(4), the duly convened subcommittee of the Fifth District Section I of the Virginia State Bar hereby accepts the Agreed Disposition in this matter.



Date: __________ _________________________________



Date: __________ _________________________________



Date: __________ _________________________________



VIRGINIA:



BEFORE THE FIFTH DISTRICT SECTION I SUBCOMMITTEE

OF THE VIRGINIA STATE BAR





IN THE MATTER OF GARY M. BRENEMAN, ESQUIRE

VSB Docket No. 00-051-0899





SUBCOMMITTEE DETERMINATION

PUBLIC REPRIMAND



On the 7th day of March, 2002, a meeting in this matter was held before a duly convened Fifth District Section I subcommittee consisting of Susan R. Salen, Esq., Stephen A. Wannall, and Sean P. Kelly, Esq., presiding.

Pursuant to Part 6, IV, 13(B)(5) of the rules of the Supreme Court, the Fifth District Section I Subcommittee of the Virginia State Bar hereby serves upon the Respondent the following Public Reprimand:

I. FINDINGS OF FACT

1. At all times relevant hereto the Respondent, Gary M. Breneman, Esq. (hereinafter the Respondent), has been an attorney licensed to practice law in the Commonwealth of Virginia.

2. On June 3, 1999, the Complainant, Diana S. Shepherd, hired the Respondent to produce a last will and testament, health care declaration, medical power of attorney and durable power of attorney for her. On that day, the Complainant paid the Respondent $150.00 in advanced fees, which was half of the Respondent's $300.00 fee. The check cleared the Complainant's bank account on June 7, 1999. The Respondent informed the Complainant that he would mail to her drafts of her documents within approximately a week. The Respondent made a tentative appointment for June 17, 1999 for the Complainant to come back to his office to sign the documents. In the interim, they would discuss any necessary changes to the document.

3. By June 17, 1999, the date of her next appointment with the Respondent, the Complainant still had not received the drafts of her documents from the Respondent. On June 17, 1999, the Complainant called the Respondent to ask him whether or not she should still come to his office for their appointment. She left a voice mail message for him; he did not respond. She went to his office for her appointment but the Respondent never arrived. The next day, the Respondent left a message on the Complainant's voice mail apologizing for missing their appointment. She, in turn, called the Respondent but could never get in touch with him. On July 13, 1999, the Complainant wrote the Respondent a letter, reiterating the fact that she had not received her draft documents, nor had she been able to contact him. She fired the Respondent and requested that he return to her any unearned portion of the advanced fee.

4. After receiving no response from the Respondent, the Complainant filed her complaint with the Virginia State Bar on October 1, 1999. On October 20, 1999, the Bar sent its opening letter to the Respondent, providing the usual twenty-one days from the date of the opening letter for the Respondent to answer the complaint. On November 29, 1999, forty days after the date of the opening letter to the Respondent, the Bar received the Respondent's answer, stating that he had returned the Complainant's full advanced fee of $150.00 and provided her with the draft of documents which had been completed before his termination. The Respondent stated that he had earned the entire advanced fee.

5. The Bar referred the case to the Fifth District Committee Section I and for further investigation. In August of 2001, Bar investigator R. Kenneth Smith spoke with the Complainant in regards to his investigation of her complaint against the Respondent. The Complainant confirmed that the Respondent had returned her advanced fee of $150.00 and provided her with draft documents. Investigator Smith also attempted to contact the Respondent to question him about the complaint. The Respondent did not respond to the messages that Investigator Smith left on his voice mail. On September 13, 2001, Investigator Smith sent a letter to the Respondent requesting that the Respondent contact him.

6. On September 19 and 21, 2001, the Respondent left telephone messages for Investigator Smith in response to Investigator Smith's letter of September 13, 1999. In turn, Investigator Smith made several phone calls to the Respondent, but the Respondent's voice mail was full and would not allow him to leave a message. Investigator Smith then faxed a message to the Respondent requesting that the Respondent call him. The Respondent called Mr. Smith

and left a message, indicating that he would call again with a date and time when they could discuss Ms. Shepherd's case. As of October 3, 2001, the Respondent had not called again, and his voice mail was still full.

 

II. NATURE OF MISCONDUCT

The Subcommittee finds that the following Disciplinary Rules have been violated:

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:

(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.


Maintaining the Integrity of the Profession

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.


III. PUBLIC REPRIMAND

Accordingly, it is the decision of the Subcommittee that a Public Reprimand shall be imposed, and this matter shall be closed.





FIFTH DISTRICT SECTION I SUBCOMMITTEE

OF THE VIRGINIA STATE BAR





By __________________________________

Chair/Chair Designate






CERTIFICATE OF SERVICE


I certify that I have this 12th day of March, 2002, mailed a true and correct copy of the Subcommittee Determination (Public Reprimand) by CERTIFIED MAIL, RETURN RECEIPT REQUESTED, to the Respondent Gary M. Breneman, Esquire, at P.O. Box 3808, Reston, VA 20195, his last address of record with the Virginia State Bar, and a copy thereof by first class mail, postage prepaid, to Noel D. Sengel, Senior Assistant Bar Counsel, at 100 North Pitt Street, Suite 310, Alexandria, Virginia 22314-3133.







_______________________________________

Chair/Chair Designate