VIRGINIA:
BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

IN THE MATTER OF :
LYNN CURTIS BROWNLEY, : VSB DOCKET NO. 00-000-2897
:
Petitioner. :


ORDER OF RECOMMENDATION

This matter came on for hearing on May 25, 2001, upon the Petition for Reinstatement of Lynn Curtis Brownley to practice law in the Commonwealth of Virginia. A hearing was held before a duly convened panel of the Virginia State Bar Disciplinary Board consisting of Randy Ira Bellows, Richard J. Colten, Donna A. DeCorleto, Janipher W. Robinson, and William M. Moffet, Chairman, presiding.

 

LYNN C. BROWNLEY appeared in person and was represented by his counsel, James C. Roberts and James S. Crockett, Jr. James M. McCauley, Ethics Counsel, appeared as counsel for the Virginia State Bar. The hearing was transcribed by Donna T. Chandler, Court Reporter, P.O. Box 9349, Richmond, VA 23227, telephone (804) 730-1222.

 

On February 17, 1989, Mr. Brownley tendered a Petition to Surrender License, pursuant to Part 6, Section IV, Paragraph 13 (I) of the Rules for Integration of the Virginia State Bar. On April 4, 1989, the Supreme Court of Virginia entered an Order accepting Mr. Brownley's resignation and revoking his license to practice law in the Commonwealth of Virginia. On March 25, 1994, Mr. Brownley filed a Petition for Reinstatement of License to Practice Law. The Petition was referred to the Virginia State Bar Disciplinary Board for a hearing and recommendation. On August 26, 1994, the Board held a hearing on the 1994 Petition and on September 15, 1994, submitted an Order of Recommendation to the Supreme Court of Virginia that Mr. Brownley's license not be reinstated. On January 25, 1995, the Supreme Court of Virginia entered an Order denying Mr. Brownley's Petition. On May 2, 2000, Mr. Brownley filed the instant Petition for Reinstatement of License to Practice Law with the Supreme Court of Virginia. Once again, the Supreme Court of Virginia referred the Petition to the Board for a hearing and recommendation.


This matter is governed by the Rules of the Supreme Court of Virginia, Part Six, Section IV, Paragraph 13(J)(1). Pursuant to that provision, it is the Petitioner's burden to show 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.
The Board heard and considered the testimony of the Petitioner, the testimony of numerous witnesses called by the Petitioner, the testimony of several witnesses called by the Virginia State Bar, numerous letters, petitions and endorsements submitted by members of the bar and the public both for and against reinstatement, and the argument of counsel. The Board also reviewed the 1994 Petition, the instant Petition and the numerous exhibits and letters submitted in connection with both. The Board also viewed certain videotapes of Mr. Brownley's conduct which gave rise to his criminal conviction which were provided by the Virginia State Police It is to be noted that the Virginia State Bar opposed this Petition for Reinstatement.


In reinstatement cases, this Board has consistently relied upon the so-called "Hiss factors" to assist it in determining whether a petitioner has met his burden of proof. In the Matter of Alfred L. Hiss, Docket No. 83-26, opinion dated May 24, 1984. The Hiss factors are:
1. The severity of the Petitioner's misconduct, including, but not limited to, the nature and circumstances of the misconduct.
2. The Petitioner's character, maturity and experience at the time of his disbarment.
3. The time elapsed since the Petitioner's disbarment.
4. Restitution to clients and/or the Bar.
5. The Petitioner's activities since disbarment, including, but not limited to, his conduct and attitude during that period of time.
6. The Petitioner's present reputation and standing in the community.
7. The Petitioner's familiarity with the Virginia Rules of Professional Conduct and his current proficiency in the law.
8. The sufficiency of the punishment undergone by the Petitioner.
9. The Petitioner's sincerity, frankness and truthfulness in presenting and discussing factors relating to his disbarment and reinstatement.
10. The impact upon public confidence in the administration of justice if the Petitioner's license to practice law were to be restored.


In order to assess factors 1 through 10, above, it is necessary to review the circumstances giving rise to the revocation of Mr. Brownley's license in 1989 as well as what has transpired since that time. Addressing the Hiss factors seriatim, the Board finds:


1. The severity of the Petitioner's misconduct, including, but not limited to, the nature and circumstances of the misconduct.
Mr. Brownley was convicted of a felony, possession of cocaine, in 1989. Mr. Brownley was, over the course of several years, on a regular and frequent basis, purchasing illegal drugs for his and his wife's use. He arranged for these purchases, made these purchases, and used these drugs both inside and outside of Westmoreland County, Virginia, while at the same time serving as Commonwealth Attorney for Westmoreland County. The criminal conviction was as a result of a Virginia State Police undercover "sting" investigation culminating in two videotapes, the first depicting events happening on May 23, 1988, and the second of activity occurring on May 25, 1988. In the first video, Mr. Brownley is heard telling a Virginia State Police informant, who is providing him with cocaine, that he would put the informant in jail, and keep putting him in jail, if he did not provide him with cocaine. In the second video, the Petitioner told the informant not to "ever put me in a jam" because someday in the future the informant would "... need my ass" and that Mr. Brownley would be available to "... help every chance I can" should the need arise. Mr. Brownley was, at the time of the videos, the chief law enforcement official of Westmoreland County, and his various transactions in purchasing and using illegal drugs, along with his threats and promises to his supplier, were not only illegal, but were an egregious breach of the public trust.


2. The Petitioner's character, maturity and experience at the time of his disbarment.
Mr. Brownley was 36 years old and had been a licensed attorney for almost eight years at the time of his disbarment.


3. The time elapsed since the Petitioner's disbarment.
Mr. Brownley's license was revoked on April 4, 1989. Therefore, approximately 12 years have elapsed since he was disbarred.


4. Restitution to clients and/or the Bar.
The Board finds that restitution is not applicable under the circumstances of this matter.


5. The Petitioner's activities since disbarment, including, but not limited to, his
conduct and attitude during that period of time.

Mr. Brownley established that for the most part he has rehabilitated himself in the eyes of his local community. He is well liked by neighbors, friends and various politicians. He has many supporters. The Board reviewed numerous letters and petitions in favor of his reinstatement and relatively few letters in opposition. Overall, Mr. Brownley's conduct and attitude since his disbarment have been of a positive nature.


6. The Petitioner's present reputation and standing in the community.
The Petitioner's present reputation and standing in the community seems to be relatively good. Notwithstanding, one witness, a member of the Northern Neck Bar Association, testified that the arrest and conviction of the Commonwealth's Attorney had a devastating effect on the community and that Mr. Brownley's current reputation is that of being "not honest" and his moral character is in question. It should be pointed out that this testimony reflected a minority sentiment of all evidence presented to the Board.


7. The Petitioner's familiarity with the Virginia Rules of Professional Conduct and his current proficiency in the law.
Mr. Brownley has kept relatively current with developments in the law. He has done a significant amount of paralegal work and consulting concerning legal matters and has obtained approximately 93.5 CLE credits since his disbarment. Approximately 40 of those credits have been obtained in the last several months.


8. The sufficiency of the punishment undergone by the Petitioner.
It is apparent that Mr. Brownley has been punished for his offenses. He was convicted of a felony, was confined in jail, albeit only on weekends for a period of six months, has suffered both economically and emotionally, has experienced a failed marriage and has been held up to disgrace in the community. Additionally, Mr. Brownley has been without his license to practice law for twelve years.


9. The Petitioner's sincerity, frankness and truthfulness in presenting and discussing factors relating to his disbarment and reinstatement.
The Board found Mr. Brownley to be truthful and frank in presenting the circumstances leading up to his disbarment. Additionally, Mr. Brownley was both contrite and remorseful in his presentation. There is no credible reason to believe that Mr. Brownley was not truthful in his presentation even though some evidence was presented otherwise.


10. The impact upon public confidence in the administration of justice if the Petitioner's license to practice law were to be restored.
As often happens, this last Hiss factor is the most difficult to deal with in formulating a recommendation as to reinstatement. It is often said that this tenth element is the most important of the Hiss factors and should be given great weight and concern. In the instant case, there is unrebutted evidence that Mr. Brownley, the Commonwealth Attorney for Westmoreland County, while in the process of illegally using and buying cocaine from an undercover agent, both threatened to use the power of his office in a punitive sense and suggested that he would help that drug dealer . . ." every chance I can." Both actions demonstrate the most abusive use of power imaginable. As found by the Board which considered Mr. Brownley's first Petition for Reinstatement in 1994, the misconduct of Mr. Brownley is "shocking to the conscience." It remains so. Moreover, on each one of the numerous occasions when he made a drug buy in Westmoreland County, he not only broke the laws himself, but he also encouraged his dealer to break the law in the very jurisdiction where he was supposed to enforce the law. Then, out of obvious self-interest, he compounded the misconduct by failing to prosecute his dealer for dealing drugs. It is the combination of the felonious behavior and Mr. Brownley's outrageous abuse of his powers as the chief law enforcement officer in Westmoreland County that lead the Board to the conclusion that it must recommend against reinstatement. We conclude that if the Petitioner's license to practice law were restored, the confidence of the citizens of the Commonwealth of Virginia that justice would be administered in a fair and impartial manner would be undermined in a significant way.


Accordingly, we find that the Petitioner has failed to prove 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. Therefore, the Board respectfully recommends to the Supreme Court of Virginia that the Petition to Reinstate the license of Lynn C. Brownley be denied.


As required by Paragraph 13(K)(10)(e) of the Rules of Court, Part Six, Section IV, this Board finds the costs of this proceeding to be as follows:
Copying $2,387.09
Transcripts/Court Reporter $1,747.55
Mailing of notice of hearing $620.79
Witness fees $160.49
Administrative fee $300.00
Total $5,215.92

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 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, P.O. Box 2-H, Montross, Virginia 22520, and to James C. Roberts, Respondent's Counsel, Troutman, Sanders, Mays et al., P.O. Box 1122, Richmond, Virginia 23218-1122, and to James M. McCauley, Ethics Counsel, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia
ENTERED THIS _______ DAY OF _______________________, 2001.

____________________________________
William M. Moffet, Chair