VIRGINIA:

IN THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

VIRGINIA STATE BAR EX REL
FIRST DISTRICT COMMITTEE

Complainant

v.


DIANNE THERESA CARTER MISCELLANEOUS NO. 12496-RW


ORDER OF SUSPENSION
WITH TERMS

This matter came to be heard on July 14, 2003, upon an Agreed Disposition between the Virginia
State Bar, and the Respondent, Dianne Theresa Carter.

A duly appointed Three-Judge Court consisting of the Honorable Von L. Piersall, Jr., Retired, the Honorable John E. Clarkson, Retired, and the Honorable Bruce H. Kushner, Chief Judge, presiding, considered the matter by telephone conference. The Respondent, Dianne Theresa Carter, Esquire, participated in the conference with her counsel, C. Flippo Hicks, Esquire. Edward L. Davis, Assistant Bar Counsel, appeared on behalf of the Virginia State Bar.

Upon due deliberation, it is the decision of the Three-Judge Court to accept the Agreed Disposition, subject to some modifications to the terms as set forth in this Order. The Stipulations of Fact, Disciplinary Rule Violations, and Disposition agreed to by the Virginia State Bar and the Respondent, as modified, are incorporated herein as follows:


I. STIPULATIONS OF FACT

1. During all times relevant hereto, the Respondent, Dianne Theresa Carter (hereinafter
Respondent or Ms. Carter) was an attorney licensed to practice law in the Commonwealth of Virginia.


02-010-0198
Complainant: Mrs. Micah Smith

2. On January 12, 2001, Mrs. Micah Smith hired Ms. Carter to assist her with a separation agreement. She paid Ms. Carter $1,000 toward an agreed fee of $2,000. Dissatisfied with Ms. Carter's lack of progress or communication in the matter, Mrs. Smith terminated her by letter, dated February 26, 2001. She asked for a refund of the $1,000. Ms. Carter refused, so Mrs. Smith brought a warrant in debt. The court held that Ms. Carter was entitled to $500 for services performed, and directed her to refund the remainder to Mrs. Smith. Mrs. Carter issued the refund on September 17, 2001.

3. Mrs. Carter met with the Virginia State Bar investigator and explained that she did not deposit the $1,000 into her trust account because she thought that she had earned it upon receipt. She explained further that she did not maintain a client ledger card, but merely made notes on the file to indicate what she had done on the case. She said that she performed quarterly reconciliations of her trust account, but could not produce any copies for the investigator.

4. On three occasions, May 24, 2001, June 8, 2001, and July 31, 2001, the Virginia State Bar's intake department sent Ms. Carter letters seeking to resolve the complaint without initiating a formal ethics inquiry. Ms. Carter, however, did not respond to any of the letters, and the bar launched a formal investigation. Mrs. Carter explained that she did not respond to the letters because of health problems.


II. NATURE OF MISCONDUCT

The parties agree that the foregoing facts give rise to violations of the following Rules of Professional Conduct:

RULE 1.3 Diligence

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

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.

RULE 1.15 Safekeeping Property


  1. All funds received or held by a lawyer or law firm on behalf of a client, other than reimbursement of advances for costs and expenses, shall be deposited in one or more identifiable escrow accounts maintained at a financial institution in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
funds reasonably sufficient to pay service or other charges or fees imposed by the financial institution may be deposited therein; or

funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, and the portion belonging to the lawyer or law firm must be withdrawn promptly after it is due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.

(c) A lawyer shall:

maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to the client regarding them; and

(e) Record-Keeping Requirements, Required Books and Records. As a minimum requirement every lawyer engaged in the private practice of law in Virginia, hereinafter called "lawyer," shall maintain or cause to be maintained, on a current basis, books and records which establish compliance with Rule 1.15(a) and (c). Whether a lawyer or law firm maintains computerized records or a manual accounting system, such system must produce the records and information required by this Rule.

In the case of funds held in an escrow account subject to this Rule, the required books and records include:

(iii) subsidiary ledger. A subsidiary ledger containing a separate account for each client and for every other person or entity from whom money has been received in escrow shall be maintained. The ledger account shall by separate columns or otherwise clearly identify escrow funds disbursed, and escrow funds balance on hand. The ledger account for a client or a separate subsidiary ledger account for a client shall clearly indicate all fees paid from trust accounts;

iv reconciliations and supporting records required under this Rule;

the records required under this paragraph shall be preserved for at least five full calendar years following the termination of the fiduciary relationship.


(f) Required Escrow Accounting Procedures. The following minimum escrow accounting procedures are applicable to all escrow accounts subject to Rule 1.15(a) and (c) by lawyers practicing in Virginia.

(4) Periodic trial balance. A regular periodic trial balance of the subsidiary ledger shall be made at least quarter annually, within 30 days after the close of the period and shall show the escrow account balance of the client or other person at the end of each period.

The total of the trial balance must agree with the control figure computed by taking the beginning balance, adding the total of monies received in escrow for the period and deducting the total of escrow monies disbursed for the period; and

(ii) The trial balance shall identify the preparer and be approved by the lawyer or one of the lawyers in the law firm.

(5) Reconciliations.

A monthly reconciliation shall be made at month end of the cash balance derived from the cash receipts journal and cash disbursements journal total, the escrow account checkbook balance, and the escrow account bank statement balance;

(ii) A periodic reconciliation shall be made at least quarter annually, within 30 days after the close of the period, reconciling cash balances to the subsidiary ledger trial balance;
(iii) Reconciliations shall identify the preparer and be approved by the lawyer or one of the lawyers in the law firm.

Receipts and disbursements explained. The purpose of all receipts and disbursements of escrow funds reported in the escrow journals and subsidiary ledgers shall be fully explained and supported by adequate records.

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:

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; or


STIPULATIONS OF FACT (Continued)

02-010-0199
Complainant: Mrs. Flora Smith

5. In August 2000, Mrs. Flora Smith hired Ms. Carter to assist her with an estate and land dispute matter. She paid Ms. Carter $450. Thereafter, Ms. Carter became unresponsive to Mrs. Smith's attempts to contact her. In April 2001, Mrs. Smith was able to reach Ms. Carter, who said that she did not recall the case, but would get back to her. Having heard nothing from Ms. Carter, and unable to reach her, Mrs. Smith sent her a letter, dated April 27, 2001, by certified mail, requesting a refund of her money. Receiving no response from Ms. Carter, Ms. Smith complained to the bar in June 2001.

6. Ms. Carter met with the Virginia State Bar investigator and explained that shortly after she agreed to review the case, she determined that the issues were too difficult for her to pursue. She said that she did not get far before she decided that she could not solve this problem for Mrs. Smith.

7. Ms. Carter said that she did speak with the complainant, but that when she talked to her, she could not locate her file. She issued a refund to Mrs. Smith on December 15, 2001, about five months after the bar complaint. The refund check was drawn on her general account. She explained that she considered the $450 a flat fee for service; therefore, she deposited it into her general account. She said that the delay in issuing the refund was because of her medical problems.

8. On June 27, 2001, July 17, 2001, and August 8, 2001, the Virginia State Bar's intake department sent Ms. Carter letters seeking to resolve the complaint without initiating a formal ethics inquiry. Ms. Carter, however, did not respond to any of the letters, and the bar launched a formal investigation.


II. NATURE OF MISCONDUCT

The parties agree that the foregoing facts give rise to violations of the following Rules of Professional Conduct:

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.

RULE 1.15 Safekeeping Property

All funds received or held by a lawyer or law firm on behalf of a client, other than reimbursement of advances for costs and expenses, shall be deposited in one or more identifiable escrow accounts maintained at a financial institution in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:

funds reasonably sufficient to pay service or other charges or fees imposed by the financial institution may be deposited therein; or

funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, and the portion belonging to the lawyer or law firm must be withdrawn promptly after it is due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.

  1. A lawyer shall:
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.

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:

  1. 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; or
STIPULATIONS OF FACT (Continued)

02-010-0200
Complainant: VSB/Trust Account


9. On May 7, 2001, Wachovia Bank notified the Virginia State Bar that check number 392, drawn on Ms. Carter's attorney trust account, was drawn against insufficient funds. On June 4, 2001, June 19, 2001, and July 31, 2001, the Virginia State Bar's intake department sent Ms. Carter letters seeking to resolve the complaint without initiating a formal ethics inquiry. Ms. Carter, however, did not respond to any of the letters, and the bar launched a formal investigation. Ms. Carter met with the Virginia State Bar investigator and explained that her failure to respond to the letters was because of health problems.

10. Ms. Carter said that after ruling out other possibilities, the only explanation for the overdraft was that she thought that she had more funds in the trust account than were actually in the account. She could not tell the investigator what she thought was in the account at the time that she wrote check number 392. She said that she did not maintain any type of cash receipt or cash disbursement journal, or any kind of summary displaying deposits and disbursements from the account. She said that she did not have a check register or check book that would list a balance remaining in her account. She said that her checks for this account are loose, and when she needs to issue checks, she pulls as many as she needs and issues them. When asked how, without a check book register, she knows how much money is in her trust account at any particular time, she just calls the bank and inquires as to what funds remain in the account.

11. Ms. Carter also told the investigator that prior to December 31, 2001, she had not done any regular reconciliations of her trust account. She said that she now intends to perform monthly reconciliations. Further, she said that prior to December 31, 2001, she did not maintain any client subsidiary ledger cards. She said that her practice was merely to make notations on each client folder as to receipts and disbursements. She said that as of January 1, 2002, she started to maintain client cards, and had ordered the standard ledger sheets that had yet to come in.

II. NATURE OF MISCONDUCT

The parties agree that the foregoing facts give rise to violations of the following Rules of
Professional Conduct:

RULE 1.15 Safekeeping Property

  1. A lawyer shall:

    1. maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to the client regarding them; and
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.

(e) Record-Keeping Requirements, Required Books and Records. As a minimum requirement every lawyer engaged in the private practice of law in Virginia, hereinafter called "lawyer," shall maintain
or cause to be maintained, on a current basis, books and records which establish compliance with Rule 1.15(a) and (c). Whether a lawyer or law firm maintains computerized records or a manual accounting system, such system must produce the records and information required by this Rule.

In the case of funds held in an escrow account subject to this Rule, the required books and records include:

(iii) subsidiary ledger. A subsidiary ledger containing a separate account for each client and for every other person or entity from whom money has been received in escrow shall be maintained. The ledger account shall by separate columns or otherwise clearly identify escrow funds disbursed, and escrow funds balance on hand. The ledger account for a client or a separate subsidiary ledger account for a client shall clearly indicate all fees paid from trust accounts;

iv reconciliations and supporting records required under this Rule;

the records required under this paragraph shall be preserved for at least five full calendar years following the termination of the fiduciary relationship.

  1. Required Escrow Accounting Procedures. The following minimum escrow accounting procedures are applicable to all escrow accounts subject to Rule 1.15(a) and (c) by lawyers practicing in Virginia.
(4) Periodic trial balance. A regular periodic trial balance of the subsidiary ledger shall be made at least quarter annually, within 30 days after the close of the period and shall show the escrow account balance of the client or other person at the end of each period.

The total of the trial balance must agree with the control figure computed by taking the beginning balance, adding the total of monies received in escrow for the period and deducting the total of escrow monies disbursed for the period; and

(ii) The trial balance shall identify the preparer and be approved by the lawyer or one of the lawyers in the law firm.

(5) Reconciliations.

A monthly reconciliation shall be made at month end of the cash balance derived from the cash receipts journal and cash disbursements journal total, the escrow account checkbook balance, and the escrow account bank statement balance;

(ii) A periodic reconciliation shall be made at least quarter annually, within 30 days after the close of the period, reconciling cash balances to the subsidiary ledger trial balance;

(iii) Reconciliations shall identify the preparer and be approved by the lawyer or one of the lawyers in the law firm.

Receipts and disbursements explained. The purpose of all receipts and disbursements of escrow funds reported in the escrow journals and subsidiary ledgers shall be fully explained and supported by adequate records.

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:

  1. 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; or

STIPULATIONS OF FACT (Continued)

00-010-2149
Complainant: Ada Moore

12. On May 13, 1997, Ada Moore hired Ms. Carter to assist her with the administration of her deceased mother's estate. The written fee agreement provided for Ms. Carter to "assist in qualification as administratrix and in filing all necessary documents with Newport News Circ. Ct." The agreement provided for a 5% flat fee, with $400 to be paid at the outset.

13. On May 21, 1997, with Ms. Carter's assistance, Ms. Moore qualified as executrix for the estate of Nina S. Barnes, deceased, in the Newport News Circuit Court. By letter dated May 30, 1997, the Commissioner of Accounts reminded her that the inventory was due no later than September 21, 1997, and that the first accounting was due no later than September 21, 1998. The Commissioner of Accounts sent a copy of this letter to Ms. Carter.

14. On May 21, 1997, following Ms, Moore's qualification as executrix, she and Ms. Carter went to Central Fidelity Bank where they closed the deceased's bank account and opened an estate account, styled "The Estate of Nina Shields Barnes By Ada H. Moore and Dianne T. Carter, Atty." At that time, Ms. Carter asked Ms. Moore to endorse ten estate checks to her in blank so that Ms. Carter could pay some estate bills. The same day, Ms. Carter made one of the checks to herself in the amount of $5,219.87. This represented her 5% fee, although the fee agreement provided for only $400 to be paid at the outset. Ms. Carter negotiated the check, and it cleared the bank on May 23, 1997.

15. Ms. Moore understood that Ms. Carter would prepare and file the inventory. She did not do so, however, and the Commissioner of Accounts issued a delinquency notice to Ms. Moore on October 22, 1997, with a copy to Ms. Carter. Ms. Moore tried to contact Ms. Carter but received no response until she had left several messages by telephone and facsimile. When Ms. Carter finally spoke to Ms. Moore, she assured Ms. Moore that she would attend to the inventory, but she did not. This resulted in the Commissioner of Accounts issuing a summons to Ms. Moore on April 28, 1998. At that time, Ms. Moore chose to hire another attorney, but contacted Ms. Carter first. Ms. Carter asked Ms. Moore to let her complete the work. After three days, however, she had not done so, and Ms. Moore hired another attorney.

16 The new attorney filed a first accounting on December 29, 1998, showing total assets of $111,391.73. While reviewing the inventory, the Commissioner of Accounts noticed Ms. Carter's fee of $5,219.87. By letter, dated January 22, 1999, he asked Ms. Carter to provide her time records and retainer agreement so that he could determine whether the fee was appropriate. Ms. Carter did not comply with the request, and the Commissioner of Accounts issued a subpoena duces tecum for the records on February 10, 1999, returnable on February 20, 1999 at 4:00 p.m. Ms. Carter delivered the records at 4:15 p.m. on February 20, 1999.

17. Ms. Carter explained to the Commissioner of Accounts that she had no time records because her fee was based on 5% of the gross estate. By letter dated March 3, 1999, the Commissioner of Accounts explained that it was the policy of his office never to allow a fee based on a percentage unless all of the residuary beneficiaries agreed. Further, she had not done the work contracted for. He allowed her time to provide further information in support of her fee, but she failed to do so. The Commissioner of Accounts determined that she was entitled to a fee of no more than $550, assessed a fee of $300 against her, and directed her to meet with Ms. Moore's new counsel to make arrangements for the return of the excess fees to the estate.

18. Ms. Carter did not return any of the fees, and on May 20, 1999, Ms. Moore's new counsel filed a warrant in debt for $5,750. On July 6, 1999, Ms. Carter discussed settlement with Ms. Moore's counsel, admitting that she was responsible for the fee, and admitting further that the amount was understated by $200. By letter dated July 14, 1999, Ms. Moore's counsel indicated that he would have Ms. Moore sign a release as soon as Ms. Carter paid the $5,950 as agreed. Ms. Carter failed to respond. Ms. Carter later agreed to pay $3,000, and on August 20, 1999, executed a promissory note for the balance, payable by September 24, 1999. Ms. Carter failed to pay the balance as agreed. Following numerous failed attempts to contact Ms. Carter, Ms. Moore's counsel sued Ms. Carter on the promissory note. Ms. Carter did not appear in court, and Ms. Moore's counsel obtained a judgement against her on January 27, 2000. Ms. Carter finally paid the balance on March 25, 2000, but never paid the attorney's fees.

19. In response to the bar complaint in February 2000, Ms. Carter said simply that she and Ms. Moore had resolved their differences, and that she understood that the complaint was to be withdrawn. The complaint, however, was never withdrawn.

20. On November 20, 2000, Ms. Carter met with the Virginia State Bar investigator and explained that she had very limited experience with estate work. She said that she knew that the inventory was due on September 21, 1997, and that it was not her intention to delay, but she was not sure why the delay occurred. She said that as the attorney it was her responsibility to properly guide her client in the estate matter. She said that her inexperience in estate matters lead her to have problems just figuring out how to do the estate, and what needed to be done. She explained that she deposited the $5,219.87 fee into her attorney trust account. At the time that she agreed to reimburse the estate, however, she had only $3,000 available.

II. NATURE OF MISCONDUCT

The parties agree that the foregoing facts give rise to violations of the following Rules of
Professional Conduct:

DR 2-105. Fees.

(A) A lawyer's fees shall be reasonable and adequately explained to the client.

DR 6-101. Competence and Promptness.

(A) A lawyer shall undertake representation only in matters in which:

(1) The lawyer can act with competence and demonstrate the specific legal knowledge, skill, efficiency, and thoroughness in preparation employed in acceptable practice by lawyers undertaking similar matters, or

(2) The lawyer has associated with another lawyer who is competent in those matters.

(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.

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

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.


01-010-0715
Complainant: Mrs. Twana D. McCoy

By agreement of the parties, this portion of the case is dismissed for lack of clear and convincing evidence, in accordance with the Rules of the Supreme Court of Virginia, Part 6, Section IV, Paragraph 13.I.2(f)(1)

STIPULATIONS OF FACT (Continued)

01-010-0973
Complainant: VSB/Commissioner of Accounts


21. On February 19, 1996, Mary Witherspoon Adams died without a will. On March 1, 1996, Ms. Carter qualified as administratrix of the estate. By letter, dated May 14, 1996, the Commissioner of Accounts, D. Wayne Moore, advised Ms. Carter that an inventory was due on or before July 1, 1996, and that an accounting was due within sixteen months of the date of her qualification.

22. Ms. Carter did not file the inventory, and Mr. Moore issued a delinquency notice on November 20, 1996, directing her to furnish the inventory within ten days. Ms. Carter failed to comply with the notice, and Mr. Moore issued a summons on May 13, 1997 that was served personally on Ms. Carter on May 20, 1997. Ms. Carter failed to comply with the summons, although she called Mr. Moore's office on June 19, 1997, explaining that the executor had passed away, and that she was expecting a new appointment and filing by mid-July 1997. By letter dated December 23, 1997, Mr. Moore advised her that both the inventory and accounting were delinquent, and that her message of June 19, 1997, was unclear to him, because Ms. Carter had qualified as fiduciary for the estate. His letter directed her to file the inventory and accounting within thirty days.


23. Ms. Carter failed to file the inventory and accounting as directed. On July 7, 1998, one of Mr. Moore's staff called Ms. Carter, who said that she would have the inventory the following week. This did not occur, and on August 8, 2000, Mr. Moore issued another delinquency letter, directing her to file the records or contact his office within ten days, or a summons would issue. This did not occur, and he issued a summons on September 6, 2000, that was served on James Carter at Ms. Carter's office on September 12, 2000. She did not comply with the summons, and Mr. Moore made a report of her delinquency to the circuit court, which scheduled a show-cause hearing for December 1, 2000. On December 1, 2000, the court held Ms. Carter in contempt, fined her $500, ordered her to file the inventory before December 15, 2000, to file the accountings on or before January 3, 2001, and to pay all fees and costs by February 15, 2001.

24. On December 15, 2001, Ms. Carter filed an accounting. Mr. Moore determined it to be deficient, however, because it listed an estate bank account rather than the decedent's bank accounts as of the date of death.

17. On January 4, 2001, Ms. Carter submitted an accounting that was incomplete, in improper form, and rejected by the Commissioner of Accounts. In a four-page letter, dated January 11, 2001, Mr. Moore detailed the problems with the inventory and accounting, and directed Ms. Carter to submit a revised accounting within thirty days. Among the problems he saw with the accounting were Ms. Carter's payment to herself of a 5% fiduciary fee, $3,770.92, on March 6, 1996, when she had never filed the accountings in a timely manner. He was also concerned about several disbursements that did not appear to be related to the estate.

18. On January 16, 2001, Ms. Carter met with Mr. Moore to discuss the issues set forth in his letter. Mr. Moore extended all of the deadlines to February 15, 2001. On February 14, 2001, Ms. Carter requested an extension to March 15, 2001 for medical reasons, which Mr. Moore granted. Ms. Carter, however, did not file a revised inventory or accounting as directed, and did not pay the fees and costs. Accordingly, on March 22, 2001, Mr. Moore filed another report to the circuit court, and the court scheduled another show-cause hearing for April 11, 2001.

19. On April 11, 2001,the court found Ms. Carter in contempt again, and fined her $500, suspended on the condition that she comply with the order. Among the terms of the order were that she pay all fees and costs and return to the estate her $3.770.92 fee by June 15, 2001, and file her inventory and accounting by June 1, 2001.

20. Ms. Carter did not comply with the order. Following another series of court appearances, the court removed her as administratrix on April 8, 2002.


II. NATURE OF MISCONDUCT

The parties agree that the foregoing facts give rise to violations of the following Rules of
Professional Conduct:

DR 2-105. Fees.

(A) A lawyer's fees shall be reasonable and adequately explained to the client.

DR 6-101. Competence and Promptness.

(A) A lawyer shall undertake representation only in matters in which:

(1) The lawyer can act with competence and demonstrate the specific legal knowledge, skill, efficiency, and thoroughness in preparation employed in acceptable practice by lawyers undertaking similar matters, or

(2) The lawyer has associated with another lawyer who is competent in those matters.

(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.

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

DR 7-105. Trial Conduct.

(A) A lawyer shall not disregard or advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling.

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.
To the extent that the misconduct occurred after January 1, 2000, the following Rules of Professional Conduct are alleged to have been violated:

RULE 1.1 Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

RULE 1.3 Diligence

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

RULE 1.5 Fees

A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

the fee customarily charged in the locality for similar legal services;

the amount involved and the results obtained;

the time limitations imposed by the client or by the circumstances;

the nature and length of the professional relationship with the client;

the experience, reputation, and ability of the lawyer or lawyers performing the services; and

whether the fee is fixed or contingent.

RULE 1.15 Safekeeping Property

  1. A lawyer shall:
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.
RULE 3.4 Fairness To Opposing Party And Counsel

A lawyer shall not:

  1. Knowingly disobey or advise a client to disregard a standing rule or a ruling of a tribunal made in the course of a proceeding, but the lawyer may take steps, in good faith, to test the validity of such rule or ruling.
STIPULATIONS OF FACT (Continued)

01-010-1403
Complainant: Mr. Lee Shields, #280985


21. On January 6, 2000, the Circuit Court for the City of Newport News sentenced Mr. Lee Shields to a total of 24 years to serve upon his convictions of aggravated malicious wounding, attempted armed robbery, and related firearms offenses. Ms. Carter was his court-appointed counsel. Ms. Carter filed a Notice of Appeal, and on March 29, 2000, the Circuit Court filed the record with the Court of Appeals.

22. Rule 5A:12 of the Rules of the Supreme Court of Virginia provides that the petition for appeal must be filed no more than forty days after the filing of the record. Ms. Carter, however, never filed a petition for appeal. By order, entered May 17, 2000, the Court of Appeals dismissed the appeal accordingly. On December 8, 2000, Mr. Shields complained to the presiding judge, the Honorable Randolph T. West, that Ms. Carter had failed to respond to his inquiries about the status of the appeal. By letter, dated December 11, 2000, Judge West removed Ms. Carter as counsel, citing Ms. Carter's failure to file the petition for appeal, and appointed another attorney. The other attorney obtained habeas corpus relief for a delayed appeal.

23. On April 6, 2001, Ms. Carter advised the Virginia State Bar investigator that she could not recall whether she prepared the petition for appeal in this case, but knew that she did not file it She explained that she began to feel fatigue in 2000 and saw a physician, who wrote a letter on February 13, 2001, explaining that she had life-threatening anemia that reached its peak in January 2001, and that he instructed her to reduce her workload because increased stress could aggravate her condition.


II. NATURE OF MISCONDUCT

The parties agree that the foregoing facts give rise to violations of the following Rules of
Professional Conduct:

RULE 1.1 Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

RULE 1.3 Diligence

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

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.

  1. 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.

III. DISPOSITION

In accordance with the Agreed Disposition, Dianne Theresa Carter's license to practice law in the Commonwealth of Virginia is hereby Suspended for a period of two (2) years, effective September 1, 2003, subject to the following terms and conditions:


1. In accordance with the Agreed Disposition, the Respondent, Dianne Theresa Carter, is hereby placed on probation for a period of two (2) years, said period to begin the date that her license to practice law is reinstated, or September 1, 2005, whichever occurs earlier. Ms. Carter will engage in no professional misconduct as defined by the Virginia Rules of Professional Conduct during such two-year probationary period. Any final determination of misconduct determined by any District Committee of the Virginia State Bar, the Disciplinary Board, or a three-judge court to have occurred during such period will be deemed a violation of the terms and conditions of this Agreed Disposition and will result in the imposition of the alternate sanction, the Revocation of the Respondent's license to practice law in the Commonwealth of Virginia. The alternate sanction will not be imposed while Ms. Carter is appealing any adverse decision which might result in a probation violation.

2. By agreement of the parties, the terms are modified as follows:

Before the end of her two-year period of probation, the Respondent, Dianne Theresa Carter, will pay all funds and attorneys fees owed because of her misconduct that have not already been paid, including the attorneys fees owed to counsel for Ada Moore, and attorneys fees owed to counsel for the bonding company in the Grozier matter. Any failure by the Respondent pay the funds as agreed will be deemed a violation of the terms and conditions of this Agreed Disposition and will result in the imposition of the alternate sanction, the Revocation of the Respondent's license to practice law in the Commonwealth of Virginia

The imposition of the alternate sanction will not require a hearing before the Three-Judge
Court or the Virginia State Bar Disciplinary Board on the underlying charges of misconduct stipulated to in this Agreed Disposition if the Virginia State Bar discovers that the Respondent has violated any of the foregoing terms and conditions. Instead, the Virginia State Bar shall issue and serve upon the Respondent a Notice of Hearing to Show Cause why the alternate sanction should not be imposed. The sole factual issue will be whether the Respondent has violated the terms of this Agreed Disposition without legal justification or excuse. The imposition of the alternate sanction shall be in addition to any other sanctions imposed for misconduct during the probationary period. All issues concerning the Respondent's compliance with the terms of this Agreed Disposition shall be determined by the Virginia State Bar Disciplinary Board, unless the Respondent makes a timely request for hearing before a three-judge court.


Upon the suspension of her license, the Respondent must comply with the requirements of Part 6,
Section IV, Paragraph 13.M of the Rules of the Supreme Court of Virginia and notify all appropriate persons about the suspension of her license if she is handling any client matters at the time. If the Respondent is not handling any client matters on the effective date of her license suspension, she shall submit an affidavit to that effect to the Clerk of the Disciplinary System at the Virginia State Bar. All issues concerning the adequacy of the notice and arrangements required by Paragraph 13.M shall be determined by the Virginia State Bar Disciplinary Board, unless the Respondent makes a timely request for hearing before a three-judge court.
The court reporter who transcribed these proceedings is Cathy Edwards, of Ronald Graham and Associates, Inc., 5344 Hickory Ridge, Virginia Beach, Virginia 23455-6680, (757) 490-1100.


A copy teste of this order shall be served by the Clerk of this Court upon the Respondent, Dianne Theresa Carter, by certified mail, return receipt requested, at Suite 406, 606 Denbigh Boulevard, Newport News, Virginia 23608, her address of record with the Virginia State Bar; and by regular mail to her counsel, C. Flippo Hicks, Esquire, Post Office Box 1300, Gloucester, Virginia 23061, and to Edward L. Davis, Assistant Bar Counsel, at the Virginia State Bar, Eighth and Main Building, Suite 1500, 707 East Main Street, Richmond, Virginia 23219.
Pursuant to Part 6, Sec. IV, Para. 13.B.8(c) of the Rules, the Clerk of the Disciplinary System shall assess costs.
ENTERED THIS _________ DAY OF ___________, 2003


CIRCUIT COURT OF THE CITY OF NEWPORT NEWS



_______________________________________
Bruce H. Kushner, Chief Judge
Three-Judge Court


_________________________ _________________________
Von L. Piersall, Jr., Judge John E. Clarkson, Judge
Three-Judge Court Three-Judge Court


WE ASK FOR THIS:


________________________________
Edward L. Davis
Assistant Bar Counsel



________________________________
C. Flippo Hicks, Esquire
Counsel for the Respondent