VIRGINIA:

BEFORE THE THIRD DISTRICT COMMITTEE, SECTION III, OF THE
VIRGINIA STATE BAR

DISTRICT COMMITTEE DETERMINATION
(Public Reprimand with Terms)


IN THE MATTER OF OLIVER STUART CHALIFOUX
VSB DOCKET NO. 03-033-2071

On December 9, 2003, a hearing in this matter was held before a duly convened Third District panel consisting of William A. Broscious, Esquire; Cullen D. Seltzer, Esquire; Joyce Renee S. Hicks, Esquire; John D. Sharer, Esquire; George C. Hutter, Lay Member; and Michael N. Herring, Esquire, Chair.

Respondent, Oliver Stuart Chalifoux appeared in person pro se. Linda Mallory Berry, Assistant Bar Counsel, appeared as counsel for the Virginia State Bar.

Pursuant to Part 6, Section IV, Paragraph 13.H.2.n. of the Rules of he Virginia Supreme Court, the Third District of the Virginia State Bar serves upon the Respondent the following

 

Public Reprimand with Terms:

I. FINDINGS OF FACT

At all times relevant hereto, Oliver Stuart Chalifoux, (hereinafter Respondent), has been an attorney licensed to practice law in the Commonwealth of Virginia.

In November 2002, Ms. Erica F. Moore (Ms. Moore) hired Oliver Stuart Chalifoux (Mr. Chalifoux) to file her Chapter 13 Bankruptcy for $1,500.00.

At that time, Ms. Moore told Mr. Chalifoux that she would be unable to pay his entire fee at once. Mr. Chalifoux agreed that Ms. Moore could pay him on a weekly basis and that she would pay him part of his fee directly and the rest would be paid through the bankruptcy plan.

On November 7, 2002, Mr. Chalifoux received $400.00 from Ms. Moore as a partial payment in her Chapter 13 Bankruptcy.

Ms. Moore also provided Mr. Chalifoux with three of her pay stubs and with her expenses shortly after meeting with Mr. Chalifoux in November 2002. On November 8, 2002, Mr. Chalifoux filed the voluntary petition under Chapter 13, and he alleged in the voluntary petition that he agreed to accept $1,500.00 for his legal services and that, before the filing of the voluntary petition, he received $215.00 from Ms. Moore.

In addition, on the voluntary petition under Chapter 13, Mr. Chalifoux agreed to render legal service for all aspects of the bankruptcy case including "negotiations with secured creditors to reduce to market value; exemption planning; preparation and filing of reaffirmation agreements and applications as needed; preparation and filing of motions pursuant to 11 USC 522(f)(2)(A) for avoidance of liens on household goods."

Ms. Chalifoux stated that his fee does not include "representation of the debtors in any dischargeability actions, judicial lien avoidances, relief from stay actions or any other adversary proceedings."

The voluntary petition filing fee of $185.00 was paid on November 12, 2002, receipt number 84716. The case was numbered 02-69642 DOT.

Schedules and Statement of Financial Affairs incomplete filing were due by November 25, 2002, as were the Chapter 13 Plan and related motions and Notice Plan.

On November 22, 2002, Oliver Stuart Chalifoux, P.C., filed the Motion to Extend Time to File Chapter 13 Plan and related motions and the Notice and Motion to Extend Time to File Lists Schedules and/or Statements. Ms. Moore was not advised that Mr. Chalifoux filed for this extension nor did Mr. Chalifoux advise her of the reason for the extension request.

On November 26, 2002, Ms. Moore made a payment to Mr. Chalifoux of $100.00.

On December 11, 2002, Mr. Chalifoux, by letter, dismissed Ms. Moore as his client in connection with the Chapter 13 Bankruptcy case for "failure to abide by client-requested fee arrangements; and material misrepresentation of client's financial condition." Ms. Chalifoux reminded Ms. Moore that the "remaining lists, schedules, statements and Chapter 13 Plan associated with [her] bankruptcy case must be filed by Friday, December 13, 2002, lest [her] case be dismissed."

Mr. Chalifoux also called the Trustee, Robert Hyman, on December 11, 2002 and asked for advice. Mr. Hyman refused to give Mr. Chalifoux legal advice but told him that the case would be dismissed for failure to file schedules before Mr. Chalifoux would have a chance to appear before the bankruptcy court asking to be removed from the case. Mr. Chalifoux did not file a motion to withdraw as counsel.

On December 12, 2002, Ms. Moore wrote to the Trustee, requesting a continuance alleging that Mr. Chalifoux called her on December 11, 2002, and demanded full payment or he would withdraw as her lawyer. She asked for time to find another lawyer. Ms. Moore said she and Mr. Chalifoux had agreed on a payment schedule and Mr. Chalifoux said part of the fee would be included in the bankruptcy.

The Trustee denied her request for a continuance to find another lawyer and the reason given was "you have an attorney of record who needed to submit this request."

On December 17, 2002, Robert E. Hyman, Trustee, filed the Local Bankruptcy Rule Order dismissing the case for failure to file schedules, a statement of financial affairs and a Chapter 13 plan was entered, and the Chapter 13 Trustee's final Report and account on December 23, 2002.

Case number 02-69642 DOT was closed on January 2, 2003, and the Trustee was discharged.

During late December 2002, Ms. Moore left numerous messages with Mr. Chalifoux at his office before she was finally able to arrange with Mr. Chalifoux to get her file and paperwork.

Ms. Moore received no accounting for the fees she paid to Mr. Chalifoux.


II. NATURE OF MISCONDUCT

RULE 1.3 Diligence

(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 1.16 Declining Or Terminating Representation


(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

(1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is illegal or unjust;

(2) the client has used the lawyer's services to perpetrate a crime or fraud;

(3) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;

(4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(6) other good cause for withdrawal exists.

(c) In any court proceeding, counsel of record shall not withdraw except by leave of court after compliance with notice requirements pursuant to applicable rules of court. In any other matter, a lawyer shall continue representation notwithstanding good cause for terminating the representation, when ordered to do so by a tribunal.

(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).


III. PUBLIC REPRIMAND

Accordingly, it is the decision of the Third District Committee, Section III, to impose a Public Reprimand with Terms and the Respondent is hereby reprimanded. The terms are as follows:

1. Mr. Chalifoux shall arrange for the services of a consultant to conduct a field audit of his law practice. The cost of such an audit shall be borne completely by Mr. Chalifoux. The credentials and the identity of the proposed consultant(s) shall be presented for approval to the Office of Bar Counsel prior to the decision by Mr. Chalifoux to engage a specific consultant. The consultant shall review and make recommendations concerning proposed changes in and improvements to the everyday operation of Mr. Chalifoux's law practice. The report and recommendations made by the consultant shall be provided to the Office of Bar Counsel on or before March 31, 2004. The consultation shall include a follow-up and a final report of compliance to the Office of Bar Counsel on or before May 1, 2004.

2. In addition, Mr. Chalifoux is to develop and submit for Office of Bar Counsel's approval an engagement letter with specifies the amount that is to be paid by the client and the work that is to be done by Mr. Chalifoux for the stated fee. This engagement letter shall be prepared and submitted for approval to the Office of Bar Counsel on or before January 31, 2003. Once the proposed engagement letter has been reviewed and approved by Bar Counsel. Mr. Chalifoux shall use this to use the engagement letter with all current and future clients.

3. Finally, on or before March 31, 2004, Mr. Chalifoux is to complete the Virginia State Bar's Professionalism Course. Mr. Chalifoux is to receive no MCLE credit for his attendance. The location shall be of Mr. Chalifoux's choosing.


Upon satisfactory proof that such terms and conditions have been met, this matter shall be closed.

The Clerk of the Disciplinary System shall assess costs.

THIRD DISTRICT COMMITTEE,
SECTION III,
OF THE VIRGINIA STATE BAR




BY______________________
Michael N. Herring, Chair








CERTIFICATE OF SERVICE




I certify that I have this ___ day of December, 2003, mailed by CERTIFIED MAIL,

RETURN RECEIPT REQUESTED, No. 7106 4575 1294 4681 2158, District Committee

Determination (Public Reprimand with Terms) to the Respondent, Oliver Stuart

Chalifoux, at, 10132 West Broad Street, Lexington Office Park, Glen Allen, VA 23060,

his last address of record with the Virginia State Bar.





_____________________________
Linda Mallory Berry, Assistant Bar Counsel









Cc's for 3-III Letter to R





cc: Ericka F. Moore, Complainant
Linda Mallory Berry, Assistant Bar Counsel
Michael N. Herring, 3-III Committee Chair
John D. Sharer, 3-III Committee Secretary
Barbara S. Lanier, Clerk of the Disciplinary System
Cam Moffat, VSB Investigator