BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD
In the Matter of Francis Sullivan Callahan
Docket No. 01-000-1848

Order to Vacate
A Rule to Show Cause and Order of Suspension

This Matter came to be heard on March 13, 2001, by Motion to Vacate a Rule to Show Cause and Order of Suspension that was entered February 26, 2001 (the "Order of Suspension"), against Francis Sullivan Callahan ("Petitioner").

This matter was heard via a telephone conference call by a duly convened panel of the Virginia State Bar Disciplinary Board, consisting of William M. Moffet, presiding, Chester J. Cahoon, Jr., Robert E. Eicher, Janipher W. Robinson, and Robert L. Freed. Assistant Bar Counsel, Paul D. Georgiadis, Esquire, appeared on behalf of the Virginia State Bar, and Michael L. Rigsby, Esquire, appeared on behalf of the Petitioner. The court reporter for the proceeding was Tracy Stroh with Chandler & Halasz, Inc., Post Office Box 9349, Richmond, Virginia 23227, telephone (804) 730-1222.

Having considered all exhibits attached to Petitioner's motion and arguments by Assistant Bar Counsel and Petitioner's counsel, the Board is of the opinion that Part 6 §IV, Paragraph 13E of the Rules of Court ("¶ 13E"), which provides for the summary suspension of law licenses of attorneys who have "been found guilty of a Crime by verdict of a judge or jury" does not encompass attorneys who have entered guilty pleas to felony drug charges under Virginia Code §18.2-251, commonly referred to as the First Offender Statute. Accordingly, the Board's February 26, 2001 Rule to Show Cause and Order of Suspension and Hearing was improperly entered and is hereby rescinded and vacated.

Facts

1. Petitioner is an attorney duly licensed to practice law in the Commonwealth of Virginia and has been so licensed since May 1980.

2. Petitioner was arrested on October 26, 2000 for the attempted possession of Ecstasy, a controlled substance, in violation of Virginia Code § 18.2-250.

3. On January 31, 2001, Petitioner entered into a Plea Agreement with the Commonwealth. Petitioner pled guilty to the charge of attempted possession of Ecstasy and was placed on supervised probation for a period of one year. The Court deferred further proceedings against Petitioner and agreed to dismiss the charges against Petitioner at the end of his probation period if Petitioner complied fully with the terms of probation. Thereupon, the criminal case against Petitioner was continued until January 31, 2002.

4. On February 26, 2001 the Board entered an Order suspending Petitioner's license to practice law and requiring him to appear before the Board and show cause why his license should not be further suspended or revoked

Opinion

The issue presented is whether this Board has the authority to summarily suspend the license of an Attorney who has pled guilty to an offense pursuant to Virginia Code § 18.2-251 when the Attorney has not been found guilty of the offense by the Court?

¶13E of the Rules of Court prescribes the process for the summary suspension of one's license to practice law upon adjudication of a crime. In pertinent part, ¶ 13E states:

Whenever the Clerk of the Disciplinary System receives written notification from any court of competent jurisdiction stating that an Attorney has been found guilty of a Crime by verdict of a judge or jury..., the Board shall forthwith enter an order summarily suspending the license of the Attorney. . . [Emphasis added].

This provision for summary suspension is clearly predicated upon a finding of guilt by a judge or jury.

In the matter at hand, Petitioner clearly pled guilty to a charge of attempting to possess Ecstasy. The plea was entered pursuant to Virginia Code §18.2-251, the First Offender Statute. This statute provides that a Court:
...upon such [guilty] plea if the facts found by the court would justify a finding of guilt, without entering a judgment of guilt and with the consent of the accused, may defer further proceedings and place him on probation upon terms and conditions. [Emphasis Added].

This is exactly what occurred in Petitioner's criminal matter. The Felony Trial Order-First Offender entered by Judge Jack B. Stevens clearly states that:

there are sufficient facts that would justify a finding of guilt, and without entering a judgment of guilt and with the consent of the defendant, defers further proceedings and places the defendant on probation. . . [Emphasis Added].

Virginia Code §18.2-251 further provides that :

Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this section shall be without adjudication of guilt and is a conviction only for the purposes of applying this section in subsequent proceedings. [Emphasis Added].

The words in ¶13E that authorize the summary suspension of an attorney's license are clear and unequivocal. There must be notification from a Court that, "an attorney has been found guilty of a Crime." [Emphasis added]. Petitioner has not been found guilty of a crime. The Court has withheld its judgment. If Petitioner complies with the terms of his probation, the Court will not make a finding of guilt. To the contrary , the Court will, indeed must, dismiss the charges against Petitioner.

It is accordingly ORDERED that the Board's February 26, 2001 Rule to Show Cause and Order of Suspension and Hearing in this matter be, and hereby is, RESCINDED and VACATED.

Petitioner acknowledged that the Virginia State Bar has the authority to investigate this matter and, if the Bar thinks it appropriate, to present Charges of Misconduct. The Board wishes to make it very clear that while we do not believe we have the authority to suspend the Petitioner's license pursuant to ¶13E, our ruling does not in any way limit the Virginia State Bar's ability to investigate and present to this Board Charges of Misconduct arising out of this same conduct.

It is further ORDERED that the Clerk of the Disciplinary System send an attested true copy of this Order to the Respondent, Francis Sullivan Callahan, by Certified Mail, Return Receipt Requested, at his address of record with the Virginia State Bar, Suite 630, 229 West Bute Street, Norfolk, Virginia 23510, and to Michael L. Rigsby, Respondent's Counsel, at Midkiff & Hiner, P.C., Suite 160, 9030 Stoney Point Parkway, Richmond, Virginia 23235, and hand-deliver to Paul D. Georgiadis, Assistant Bar Counsel, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219.


Entered this ______ day of ____________, 2001.
The Virginia State Bar Disciplinary Board

By: _________________________________
William M. Moffet, 1st Vice Chair