BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD



IN THE MATTER OF ELI S. CHOVITZ



VSB Docket Numbers: 99-021-1626

99-021-2660

01-021-0217

ORDER OF SUSPENSION



THIS MATTER came on to be heard on August 24, 2001 before a panel of the Disciplinary Board consisting of William M. Moffet, Chair, Thaddeus T. Crump, Robert L. Freed, Karen A. Gould, and Roscoe B. Stephenson, III. The Virginia State Bar (hereinafter referred to as "VSB") was represented by Paul Georgiadis, Assistant Bar Counsel. The respondent, ELI S. CHOVITZ, was present and represented by Andrew A. Protogyrou, Esquire. Donna T. Chandler, Chandler & Halasz, Registered Professional Reporters, P. O. Box 9349, Richmond, VA 23227, 804-730-1222 recorded the hearing. The chair polled the panel to determine whether any member would be prevented from hearing the matters because of a conflict, actual or perceived. Each member, including the chair, responded in the negative. The three cases were heard separately on the issue of whether misconduct had occurred, with separate deliberations and findings following the evidence and argument in each case. Upon conclusion of the misconduct phase, the cases that resulted in findings of misconduct were consolidated to hear evidence of the proper sanction; after which the panel again deliberated and returned its decision. VSB pre-filed various exhibits in each of the three cases. No objection was raised to them. All exhibits, with the exceptions noted later in VSB Docket Number 01-021-0217, were received into evidence.

FINDINGS OF MISCONDUCT

VSB Docket Number:99-021-1626

Complainant:Susan W. Bushey

Estate of Ruth B. Porter, deceased



At the outset the respondent stipulated the findings of fact numbered 1 through 11, 14 and 15 in the certification. Both parties then presented evidence and argument, after which the Board deliberated. From the evidence and stipulation the Board finds that the following has been proven by clear and convincing evidence:

a) During all times relevant hereto, the respondent, Eli S. Chovitz, was an attorney licensed to practice law in the Commonwealth of Virginia.

b) On or about January 16, 1998, Susan W. Bushey (hereinafter referred to as "Bushey") and Robert H. Prouse retained respondent to assist them in the administration of the estate of Ruth B. Porter, deceased (hereinafter referred to as "the Estate").

c) Bushey and Prause were the sole heirs to the Estate which had as its chief asset a municipal bond worth approximately $20,000.

d) On or about March 30, 1998, Bushey and Prause qualified as administrators before the clerk of the Norfolk Circuit Court.

e) On or about March 30, 1998, respondent agreed in his letter to Bushey and Prause that he would draft and file an inventory for the Estate. Therein, he acknowledged a filing deadline of July 30, 1998.

f) Respondent further agreed in his March 30, 1998 letter to draft and file an affidavit in lieu of an accounting. Therein, he acknowledged a filing deadline of July 30, 1999.

g) On or about March 30, 1998, respondent sent to Bushey and Prause his invoice for $1,000 for past and future Estate services that included the drafting and filing of an inventory and affidavit in lieu of an accounting.

h) On or about April 1, 1998, Bushey paid respondent's $1,000 invoice in full.

i) On or about September 21, 1998, the commissioner of accounts issued a past-due notice to Bushey and Prause advising that the initial inventory due July 30, 1998 had not been filed.

j) On or about October 3, 1998, Prause wrote respondent a letter inquiring as to the status of the inventory.

k) Between November 12, 1998 and December 17, 1998, Bushey telephoned respondent no fewer than 10 times to inquire about and urge the completion and filing of the inventory.

l) On November 19, 1998, the commissioner wrote respondent stating that he had no record of the inventory being filed.

m) On December 11, 1998, respondent advised Bushey that he would mail Bushey the inventory for her approval and signature. Bushey never received the inventory.

n) Despite personal, written reminders from the commissioner dated October 1, 1998 and November 19, 1998, respondent still had not filed an inventory by February 26, 1999. The commissioner wrote respondent noting the delay and urged him to complete and file what the commissioner considered a "simple inventory."

o) On May 12, 1999, Bushey and Prause themselves filed an inventory and an affidavit in lieu of accounting which the commissioner approved to close the Estate.

p) Respondent did not refund any of the $1,000.00 fee to Bushey and Prouse. He admitted that none of the fee was placed in escrow as an advance for future services.(1) At this hearing he did indicate his willingness to refund $220.00 to them, but he did not at that time tender the refund.

From these findings the Board concludes that the respondent has violated the following disciplinary rules:

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.



The Board cannot conclude by clear and convincing evidence that the respondent violated DR 1-102 (A)(4) as alleged. VSB alleges that in the November 12, 1998 telephone conversation with Bushey respondent told her he had sent the estate inventory to the commissioner of accounts; and that in the December 11, 1998 telephone conversation with Bushey he told her he had mailed her the inventory. The respondent flatly denied these allegations. We had no testimony from Bushey, as she was unable to attend the hearing. Evidence of these alleged misrepresentations appears in VSB Exhibit 9 (Bushey's contemporaneous notes of these conversations) and VSB Exhibit 10, which tends to corroborate the November 12, 1998 conversation. Absent Bushey's testimony, with the opportunity to cross-examine, we resolve this conflict in favor of the respondent.

VSB Docket Number: `99-021-2660

Complainant:VSB/Commissioner of Accounts

Estate of Demetrio C. Dela Cruz, deceased



At the outset the respondent stipulated all findings of fact in the certification; provided, however, that there is an ambiguity between Finding #13 and VSB Exhibit 18 (the order of the Circuit Court of City of Virginia Beach entered January 24, 2000). The parties agreed that the order speaks for itself and overrides Finding #13 to the extent they conflict. Both parties then presented evidence and argument, after which the Board deliberated. From the evidence and stipulation the Board finds that the following has been proven by clear and convincing evidence:

a) During all times relevant hereto, the respondent, Eli S. Chovitz, was an attorney licensed to practice law in the Commonwealth of Virginia.

b) On or about December 10, 1982, respondent was retained by two heirs of Demetrio C. Dela Cruz, who had died on or about November 21, 1982.

c) On or about December 21, 1982, respondent qualified as administrator of the estate of Demetrio C. Dela Cruz, deceased.

d) On or about May 9, 1983, the commissioner of accounts sent respondent a past due notice regarding the inventory.

e) On or about May 12, 1983, respondent replied to the commissioner citing two months of absences due to illness. Therein he also cited "a considerable amount of money in the bank" of the decedent along with "considerable debts." Respondent requested a "reasonable amount of time" to complete the filing of the inventory.

f) In response to the commissioner's further notice of delinquency dated May 7, 1985, respondent replied on June 26, 1985 stating that "complications" previously cited "are resolved and in the very near future I will be in a posture to prepare and file the requisite papers which I believe will also include a final accounting."

g) By January 12, 1987, despite at least three further notices of delinquency, respondent still had not filed an inventory, much less any required accountings.

h) By December 5, 1994, respondent still had not filed the inventory, prompting a further letter of inquiry and late notice from the commissioner.

i) On or about September 19, 1996, the commissioner notified respondent of his delinquency in filing annual accountings.

j) Notwithstanding the September 19, 1996 notice, respondent had not replied by October 1, 1997.

k) On September 30, 1998, the commissioner gave notice for a show cause hearing pursuant to 26-18 of the Code of Virginia. Following continuances, the hearing was held on January 24, 2000.

l) On January 14, 2000, respondent filed an affidavit in lieu of an accounting. Therein he asserted that he had lost the Dela Cruz estate file as a result of moving his law practice.

m) On January 24, 2000, the Virginia Beach Circuit Court entered an order, VSB Exhibit 18, to remove the probate file from the court's docket but to keep it open until further order.

From these findings the Board concludes that the respondent has violated the following disciplinary rules:

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:



(3) 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 his client regarding them.



The Board cannot conclude by clear and convincing evidence that the respondent violated DR 9-102 (B)(4) as alleged.



VSB Docket Number:01-021-0217

Complainant:Michael K. Bynum, Jr.



At the outset the respondent stipulated the findings of fact numbered 1, 2, 3, and 6 in the certification. By agreement VSB Exhibit 4 and VSB Exhibit 5 were withdrawn from consideration. Both parties then presented evidence and argument, after which the Board deliberated. From the evidence and stipulation the Board cannot conclude by clear and convincing evidence that the respondent violated any disciplinary rules as alleged. The gist of the certification is that the respondent had a transcript of the circuit court proceedings in the complainant's case, and that he either lost it or refused to deliver it to the complainant on request. Respondent denied he ever acquired a copy of the transcript, claiming he had read the original in the court file. VSB was unable to prove by clear and convincing evidence that respondent actually possessed the transcript. Accordingly, we dismiss this complaint in its entirety.



DETERMINATION OF SANCTIONS

Having found misconduct in VSB Docket Number 99-021-1626 and VSB Docket Number 99-021-2660, the Board then heard evidence and argument in regard to sanctions. VSB introduced respondent's prior disciplinary record consisting of four district committee determinations, received collectively as VSB Exhibit A. The respondent again testified. He offered no explanation for his misconduct but to say that he devoted his time to other matters he considered to be of higher priority. He had lost the Dela Cruz file and all bank records associated with it, either by purging or in one of several moves of his law office over the years. He testified that he maintains elaborate calendars and a tickler system. He added that he has not purged old files for at least three years and probably will not again do so.

Following deliberation the Board determines that the proper sanction for this misconduct is a one-year suspension. The prior disciplinary record reveals serious instances of neglect strikingly similar to the misconduct demonstrated herein. Together they show a pervasive pattern of intentional neglect that has spanned many years. This misconduct has caused actual harm in the past; and in the instant cases there was certainly the serious potential for harm, though none could be proven. Respondent's own testimony confirms that his neglect of the instant cases resulted from the conscious choice of "priorities." This is no excuse. If anything, it is an aggravating factor. While we appreciate the respondent's 48 years of service to the bar, it is our duty to protect the public and maintain the integrity of the bar. Accordingly, we reject the respondent's request that these matters be sanctioned by public reprimand.

It is therefore ORDERED that the respondent's license to practice law in the Commonwealth is hereby SUSPENDED for the period of one year, commencing September 3, 2001.

It is further ORDERED pursuant to the provisions of Part Six, IV, 13(K)(1) of the Rules of the Supreme Court of Virginia, that the respondent shall forthwith give notice by certified mail, return receipt requested, of this suspension of his license to practice law in the Commonwealth of Virginia, to all clients for whom he is currently handling matters and to all opposing attorneys and the presiding judges in pending litigation. The respondent shall also make appropriate arrangements for the disposition of matters now in his care in conformity with the wishes of his clients. The respondent shall give such notice within fourteen days of the effective date of this suspension order, and make such arrangements as are required herein within forty-five days of the effective date of this order. The respondent shall furnish proof to the bar within sixty days of the effective date of this order that such notices have been timely given and such arrangement for the disposition of matters made. Issues concerning the adequacy of the notice and arrangements required herein shall be determined by the Disciplinary Board, which may impose additional sanctions for failure to comply with the requirements of this subparagraph.

It is further ORDERED that respondent shall furnish true copies of all of the notice letters sent to all persons notified of the suspension, with the original return receipts for said notice letters, to the clerk of the Disciplinary System, on or before November 2, 2001.

It is further ORDERED that pursuant to Part Six, IV, 13(K)(10) of the Rules of the Supreme Court of Virginia the clerk of the Disciplinary System shall assess costs.

It is further ORDERED that the clerk of the Disciplinary System send a copy of this Order to ELI S. CHOVITZ at his current address of record with the Virginia State Bar, St. Paul Building, Suite 503, 125 St. Paul's Boulevard, Norfolk, Virginia 23510 by certified mail, return receipt requested, and by regular mail, and that a copy be mailed to Andrew A. Protogyrou, Esquire, at his address of record, and to Paul Georgiadis, Assistant Bar Counsel.

ENTERED this day of _____________, 2001.

VIRGINIA STATE BAR DISCIPLINARY BOARD



By: _________________________________________

WILLIAM M. MOFFET, CHAIR



1. The certification did not allege a violation of DR 9-102 in regard to the handling of the advance fee. Without making a finding of misconduct we simply note that a properly drafted allegation would have been sustained on these facts.