VIRGINIA:



BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD



IN THE MATTERS OF

JAMES KEVIN CLARKE

 

VSB Docket Nos. 00-031-2428, 01-031-0039,

01-031-1085, 01-031-2626, 01-031-3163,

and 02-031-1723


ORDER AND OPINION

These matters came before the Virginia State Bar Disciplinary Board ("Board") upon certification from the Third District Subcommittee, Section I, and were heard on December 13, 2002, by a duly convened panel consisting of Thaddeus T. Crump, Lay Member, James L. Banks, Jr., Ann N. Kathan, Joseph R. Lassiter, Jr. and John A. Dezio, Chair. The Respondent, James Kevin Clarke, (hereinafter "Mr. Clarke" or "Respondent") was present with counsel, Craig S. Cooley and Barbara Ann Williams, Bar Counsel, represented the Virginia State Bar (hereinafter "the Bar").

The Chair polled the panel members to determine whether any member had a personal or financial interest in this matter that might affect or reasonably be perceived to affect his or her ability to be impartial in this proceeding. Each member, including the chair, verified that they had no conflicts.

FINDINGS OF FACT AND MISCONDUCT

The Board adopts the Stipulated Allegations of Fact and Findings of Misconduct submitted by the Bar and the Respondent, and finds as follows:

I. General Findings of Fact


1. The respondent, James Kevin Clarke, was admitted to the Virginia State Bar on May 3, 1994.

2. Mr. Clarke was an active member of the Virginia State Bar, in good standing to practice law in the Commonwealth of Virginia, at all times relevant to these proceedings.

3. Mr. Clarke has no prior attorney disciplinary record.

II. VSB Docket No. 00-031-2428 (Stephen L. Brown)

4. On January 8, 1999, Mr. Clarke conferred with Stephen L. Brown in the Petersburg jail about Mr. Brown's desire to petition the Petersburg Circuit Court for a reduction of his felony sentence for breaking and entering.

5. Following that meeting, Mr. Clarke determined that an error had been made in calculating Mr. Brown's sentence, concluded that the facts supported the conviction and conferred with the Assistant Commonwealth's Attorney.

6. On January 15, 1999, Stephen L. Brown retained Mr. Clarke to represent him and paid Mr. Clarke $500, after executing an Information and Fee Agreement.

7. On March 5, 1999, after speaking with several witnesses, Mr. Clarke visited Mr. Brown at the Petersburg jail and provided him copies of a motion to reduce sentence and a motion to postpone transfer into the Department of Corrections.

8. Mr. Clarke filed both motions on March 8, 1999.

9. On July 1, 1999, Mr. Clarke wrote Mr. Brown and advised him that the judge preferred to decide the issues in question based solely upon the motions filed, but that he was still trying to set a hearing date and would keep Mr. Brown informed of his progress.

10. On July 1, 1999, Mr. Clarke wrote potential witnesses, requesting that they draft letters that could be submitted to the court in lieu of testimony.

11. Mr. Clarke also wrote Mr. Brown's probation officer, who had prepared the sentencing calculation, citing the alleged errors therein.

12. By letter dated July 19, 1999, the probation officer advised Mr. Clarke that there was indeed an error in scoring but that error actually inured to Mr. Brown's benefit.

13. On August 6, 1999, Mr. Brown wrote Mr. Clarke inquiring about the status of his case and threatening to file a bar complaint.

14. By letter dated August 26, 1999, Mr. Clarke told Mr. Brown what he had learned, and suggested that if Mr. Brown retracted his request for a sentence reduction, Mr. Clarke would reimburse him the retainer he had paid.

15. Meanwhile, Mr. Brown wrote Mr. Clarke requesting him to acknowledge the representation and indicating that he had not heard from Mr. Clarke since July 1, 1999.

16. On September 17, 1999, Mr. Brown wrote Judge Oliver Pollard, Jr., inquiring about the status of sentence reduction motion.

17. Mr. Brown did not receive Mr. Clarke's letter dated August 26, 1999, until September 28, 1999.

18. On October 6, 1999, Mr. Brown wrote Mr. Clarke, advising him that he wished to retract his request to reduce his sentence and that he wanted to be reimbursed for the retainer fee that he paid Mr. Clarke.

19. On or about November 9, 1999, Mr. Brown submitted a bar complaint against Mr. Clarke, alleging that Mr. Clarke had abandoned his case after accepting a retainer for legal services.

20. Intake attempted to deal with Mr. Brown's complaint proactively and granted Mr. Clarke's request for an extension of time to respond to the complaint.

21. Although Mr. Clarke advised Intake that he would refund Mr. Brown's retainer, Mr. Clarke never responded to the bar complaint.

22. During the course of the bar's investigation of Mr. Brown's complaint, Mr. Clarke did not respond to Bar Investigator David Abrams' numerous requests for an interview.

The foregoing allegations give rise to the following charges of misconduct under Rules of Professional Conduct:

DR 6-101. Competence and Promptness.

(C) A lawyer shall keep a client reasonably informed about matters in which the lawyer's services are being rendered.


RULE 8.1 Bar Admission And Disciplinary Matters

[A] lawyer . . . in connection with a disciplinary matter, shall not:

(d) obstruct a lawful investigation by an admissions or disciplinary authority.



III. VSB Docket No. 01-031-0039 (Rodney Webb)

23. On or about July 19, 1994, Rodney Webb pled guilty in Petersburg Circuit Court to three felony charges of cocaine distribution and one felony charge of conspiracy to distribute cocaine; he received a suspended sentence, which included 20 years of good behavior.

24. On January 25, 1998, by telephone, Mr. Clarke discussed with Mr. Webb at great length charges pending against Mr. Webb in Prince George County and obtained a list of possible witnesses.

25. On January 26, 1998, after Mr. Clarke had reviewed the general district court file, Mr. Webb retained him to represent him on charges of cocaine possession in Prince George County.

26. By February 6, 1998, Mr. Clarke had met with the Commonwealth's Attorney and Assistant Commonwealth's Attorney, contacted the arresting officer, spoke with a State Trooper involved in Mr. Webb's prior arrest, obtained a copy of the certificate of analysis and researched recent case law.

27. Mr. Clarke convinced the court to order a psychological evaluation of Mr. Webb, and after he was found competent to stand trial and not insane at the time of the offense, represented Mr. Webb at a preliminary hearing on June 15, 1998, at which time the charge was certified to circuit court.

28. Mr. Webb was released on bond pending trial, but on August 6, 1998, was arrested in the City of Petersburg for 18 felonies including grand larceny, forgery, uttering and related charges.

29. The Prince George County Circuit Court revoked his bond and Mr. Webb was incarcerated; the Petersburg charges were transferred from general district court to juvenile and domestic relations district court because the victim was Mr. Webb's mother.

30. A September 1, 1998 trial date in Prince George County was continued, after Mr. Clarke requested that the judge recuse himself; the trial was reset for October 8, 1998.

31. Mr. Clarke filed a motion to suppress the Commonwealth's evidence but withdrew that motion after Mr. Webb pled guilty to cocaine possession on October 10, 1998.

32. On October 26, 1998, Mr. Clarke successfully argued a motion to reduce Mr. Webb's bond from $20,000 with surety to $10,000 with surety, but the bond was still to high for Mr. Webb to post, and he remained in the Petersburg City Jail.

33. On December 8, 1998, the Prince George County Circuit Court sentenced Mr. Webb to five years with all but 12 months suspended.

34. During his representation of Mr. Webb on the cocaine possession charge in Prince George County, Mr. Clarke expended an exceptional amount of time and energy, not only frequently meeting with his client in jail and attempting to allay his anxieties, but also meeting with his client's mother and various witnesses.

35. After the Prince George County matter was resolved, Mr. Clarke focused on the Petersburg charges, and regularly communicated with Mr. Webb, his father and mother, the prosecuting attorney, and the clerk of court about the status of Mr. Webb's case.

36. At the preliminary hearing in the Petersburg Juvenile and Domestic Relations General District Court on March 25, 1999, Mr. Clarke obtained a nolle prosequi from the Commonwealth on all charges.

37. As a result of Mr. Webb's arrest and conviction in Prince George County, he was brought before the Circuit Court of the City of Petersburg to show cause why his previously suspended sentence in that jurisdiction should not be revoked.

38. While he was serving time in the Riverside Regional Jail on the Prince George drug conviction, Mr. Webb was seriously injured in a fight with another inmate.

39. Due to the severity of Mr. Webb's injuries, in April 1999, Mr. Clarke successfully moved to have the unserved portion of Mr. Webb's sentence on the Prince George drug conviction suspended, to have Mr. Webb released from jail and to delay the show cause hearing on whether the suspended sentence handed down by the Petersburg Circuit Court should be revoked.

40. Mr. Clarke drove Mr. Webb to see his doctor on more than one occasion and provided the prosecuting attorney with periodic updates on Mr. Webb's condition.

41. On December 20, 1999, the Petersburg Circuit Court entered an order substituting Mr. Clarke as counsel for Mr. Webb on the Petersburg drug charges, although Mr. Clarke had been assisting Mr. Webb prior to that time.

42. On April 3, 2000, Mr. Webb sent Mr. Clarke a certified letter complaining that he was unable to get in touch with him; the letter was returned to Mr. Webb unclaimed.

43. By letter dated June 21, 2000, in connection with the proposed revocation of Mr. Webb's suspended sentence based upon the Petersburg drug conviction, the Petersburg Circuit Court notified Mr. Webb and Mr. Clarke that "[d]ue to difficulty and delay in scheduling a hearing date in this matter, the Court is requiring your appearance on July 19, 2000 at 9:00 a.m. in the Petersburg Circuit Court. Both parties must be present" (emphasis in the original).

44. Mr. Clarke contends that he either received the court's letter of June 21, 2000, after the court date had already passed or did not open the letter until after the court date had passed and therefore did not knowingly disobey the court's ruling.

45. On July 10, 2000, the Virginia State Bar received a bar complaint from Mr. Webb, dated June 28, 2000, complaining that Mr. Clarke had "disappeared."

46. When Mr. Clarke failed to appear for the revocation hearing on July 19, 2000, the circuit court issued a Rule to Show Cause requiring Mr. Clarke to appear before the court on August 14, 2000, and show cause why he should not be held in contempt for failing to appear on July 19.

47. At the hearing on August 14, 2000, the court held Mr. Clarke in contempt for his failure to appear, gave him a suspended jail sentence, imposed a $50 fine and banned him from serving as court-appointed counsel in the 11th Circuit, which to that point had been a major part of his practice.

48. On September 15, 2000, Mr. Clarke paid the $50 fine on the Rule to Show Cause.

49. Mr. Clarke did not submit a written response to Mr. Webb's bar complaint.

50. During the course of the bar's investigation of Mr. Webb's complaint, Mr. Clarke did not respond to Bar Investigator David Abrams' numerous requests for an interview.

The foregoing allegations give rise to the following charges of misconduct under 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 8.1 Bar Admission And Disciplinary Matters

[A] lawyer . . . in connection with a disciplinary matter, shall not:

(d) obstruct a lawful investigation by an admissions or disciplinary authority.

IV. VSB Docket No. 01-031-1085 (Mr. and Mrs. Robert T. Gunn)

51. On March 20, 2000 Derrick S. Gunn, son of Mr. and Mrs. Robert T. Gunn, was convicted in the Circuit Court of Powhatan County of one count of arson and sentenced to serve ten years in jail, with nine years suspended.

52. A few days before July 18, 2000, Mr. Clarke spoke to Mr. Gunn by telephone and agreed that Mr. Clarke's fee for representing Derrick on appeal would be $1,000, of which $500 was to be a retainer

53. On July 18, 2000, Mr. Gunn met with Mr. Clarke and paid him $500.

54. Before cashing the $500 check on July 20, 2000, Mr. Clarke spent several hours researching relevant arson case law; Mr. Clarke never requested Mr. Gunn to pay the $500 balance.

55. In Mr. Clarke's file is an unsigned letter to Mr. Gunn dated September 6, 2000, reassuring Mr. Gunn that Mr. Clarke was working on the appeal and promising to arrange a meeting to review what he had prepared.

56. Mr. Gunn did not receive Mr. Clarke's letter, and on or about October 3, 2000, Mr. and Mrs. Gunn filed a bar complaint against Mr. Clarke, claiming that they had been unable to contact Mr. Clarke.

57. After receiving two letters from Intake Counsel attempting to deal with the Gunn's bar complaint in a proactive manner, Mr. Clarke wrote Derrick on November 20, 2000, and sent him a copy of the Petition for Appeal and a motion submitting himself as Derrick's counsel on appeal.

58. Mr. Clarke failed to advise Derrick or his parents that the Court of Appeals denied the Petition for Appeal on January 8, 2001, although Derrick is copied on a letter dated January 21, 2001, requesting oral argument before a three-judge panel.

59. Mr. Clarke failed to advise Derrick or his parents that on March 23, 2001, the Court of Appeals denied the petition for appeal for the reasons stated in the order entered on January 8, 2001.

60. Mr. Clarke also failed to advise Derrick or his parents that he could appeal the Court of Appeals' decision to the Supreme Court of Virginia.

61. Mr. Clarke did not respond in writing to the Gunn's complaint.

62. During the course of the bar's investigation of the Gunn's complaint, Mr. Clarke did not respond to Bar Investigator David Abrams' numerous requests for an interview.

The foregoing allegations give rise to the following charges of misconduct under 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.

(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.

RULE 8.1 Bar Admission And Disciplinary Matters

[A] lawyer . . . in connection with a disciplinary matter, shall not:

(d) obstruct a lawful investigation by an admissions or disciplinary authority.

V. VSB Docket No. 01-031-2626 (Kenneth Church)

63. On or about February 16, 1999, Kenneth Church retained Mr. Clarke to represent him on breaking and entering, grand larceny and bomb threat charges in the Colonial Heights General District Court.

64. Mr. Clarke had previously represented Mr. Church on numerous occasions.

65. Even though the Colonial Heights charges were serious and extensive, Mr. Clarke agreed to accept a fee of $1,500, including a $500 retainer.

66. Mr. Clarke appeared on Mr. Church's behalf on at least five occasions in general district court, not only for matters directly associated with the charges, but also with respect to alleged violations of Mr. Church's pre-trial release and probation, bond revocation, request for bond reinstatement, and an additional, unrelated general district court matter.

67. In circuit court, Mr. Clarke made many appearances on Mr. Church's behalf, and on December 21, 1999, Mr. Church entered into a plea agreement, with sentencing set for April 10, 2000.

68. In March 2000, Mr. Church's pre-trial case worker noted several alleged violations of the conditions of Mr. Church's release and set them for hearing along with Mr. Church's sentencing.

69. Shortly before April 10, 2000, Mr. Church fled the jurisdiction.

70. Although Mr. Clarke appeared for the sentencing hearing, Mr. Church did not, and a capias was issued for his arrest.

71. Mr. Church was captured and returned to Virginia; his sentencing hearing was held on July 11, 2000.

72. Despite numerous violations of the conditions of Mr. Church's pre-trial supervision and his flight from justice, Mr. Clarke convinced the court not to deviate from the sentencing guidelines and sentenced him at the midpoint of the guidelines.

73. Mr. Clarke's representation of Mr. Church lasted 17 months, and involved an enormous amount of time and effort, including almost weekly contact with Mr. Church's pre-trial case worker.

74. Nonetheless, Mr. Church paid very little toward Mr. Clarke's fee and often failed to keep appointments with his counsel.

75. After Mr. Church was convicted and sentenced, he asked Mr. Clarke to file a sentence reduction motion; Mr. Clarke advised Mr. Church that the would not file the motion unless Mr. Church paid him the balance due for Mr. Clarke's prior fee, for which Mr. Church had previously signed an Acknowledgment and Affirmation of Debt .

76. On December 15, 2000, Mr. Church borrowed $250 from his former employer and paid Mr. Clarke that amount and indicated that his brother would pay the remaining balance.

77. The balance was never paid.

78. Mr. Clarke did not respond in writing to Mr. Church's complaint.

79. During the course of the bar's investigation of Mr. Church's complaint, Mr. Clarke did not respond to Bar Investigator David Abrams' numerous requests for an interview.

The foregoing allegations give rise to the following charges of misconduct under 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 8.1 Bar Admission And Disciplinary Matters

[A] lawyer . . . in connection with a disciplinary matter, shall not:

(d) obstruct a lawful investigation by an admissions or disciplinary authority.

VI. VSB Docket No. 01-031-3163 (Hassan Shabazz)

80. Hassan Shabazz was found guilty in the Circuit Court of Nottoway County of three counts of robbery and three counts of use of a firearm in the commission of a robbery; he was sentenced on December 22, 1999, to serve 20 years with 113 years suspended .

81. On or about January 20, 2000, the Circuit Court of Nottoway County appointed Mr. Clarke to represent Hassan Shabazz on the appeal of his criminal conviction.

82. Mr. Clarke filed a Notice of Appeal with the Court of Appeals on Mr. Shabazz's behalf on January 21, 2000.

83. Mr. Shabazz learned that Mr. Clarke had been appointed to represent him when Mr. Clarke visited him at the Piedmont Regional Jail on February 4, 2000.

84. Mr. Shabazz did not hear anything from Mr. Clarke since February 4, 2000, although Mr. Shabazz and members of his family attempted to contact Mr. Clarke.

85. Mr. Shabazz learned that the Court of Appeals had denied his appeal on June 21, 2000, after he wrote the court.

86. By the time Mr. Shabazz learned his appeal had been denied, the deadline for appealing to the Supreme Court of Virginia had passed.

87. Mr. Clarke met with a bar investigator and reviewed Mr. Shabazz's complaint.

The foregoing allegations give rise to the following charges of misconduct under 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.


VII. VSB Docket No. 02-031-1723 (Costella L. Forney)

88. In 1999, Mr. Clarke was appointed to represent Costella L. Forney on armed robbery charges pending in the Richmond Circuit Court.

89. On or about December 18, 2001, Ms. Forney filed a bar complaint against Mr. Clarke, alleging that he had failed to provide her a copy of her file despite her repeated requests.

90. The Virginia State Bar tried to deal with the complaint proactively by requesting Mr. Clarke to either provide Ms. Forney a copy of her file or explain to her why he could not.

91. Mr. Clarke did not respond to the Virginia State Bar's efforts to resolve the complaint outside the disciplinary process or respond to the bar complaint after a disciplinary file was opened.

92. During the course of the bar's investigation of Ms. Forney's complaint, Mr. Clarke did not respond to Bar Investigator David Abrams' numerous requests for an interview.

The foregoing allegations give rise to the following charges of misconduct under 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 1.16 Declining Or Terminating Representation

(e) All original, client-furnished documents and any originals of legal instruments or official documents which are in the lawyer's possession (wills, corporate minutes, etc.) are the property of the client and shall be returned to the client upon request, whether or not the client has paid the fees and costs owed the lawyer. If the lawyer wants to keep a copy of such original documents, the lawyer must incur the cost of duplication. Upon request, the client must also be provided copies of the following documents from the lawyer's file, whether or not the client has paid the fees and costs owed the lawyer: lawyer/client and lawyer/third-party communications; the lawyer's copies of client-furnished documents (unless the originals have been returned to the client pursuant to this paragraph); pleadings and discovery responses; working and final drafts of legal instruments, official documents, investigative reports, legal memoranda, and other attorney work product documents prepared for the client in the course of the representation; research materials; and bills previously submitted to the client. Although the lawyer may bill and seek to collect from the client the costs associated with making a copy of these materials, the lawyer may not use the client's refusal to pay for such materials as a basis to refuse the client's request. The lawyer, however, is not required under this Rule to provide the client copies of billing records and documents intended only for internal use, such as memoranda prepared by the lawyer discussing conflicts of interest, staffing considerations, or difficulties arising from the lawyer/client relationship.

RULE 8.1 Bar Admission And Disciplinary Matters

[A] lawyer . . . in connection with a disciplinary matter, shall not:

(d) obstruct a lawful investigation by an admissions or disciplinary authority.

PUBLIC REPRIMAND WITH TERMS

The Board, having considered all evidence before it and having considered the nature of the Respondent's actions, the lack of a prior disciplinary record, Respondent's mitigating factors, and based upon the Proposed Disposition signed and agreed to by both Bar Counsel and Respondent's Counsel, hereby imposes upon the Respondent, effective upon entry of this Order, a Public Reprimand with Term and such terms are as follows:

1. By December 31, 2002, Mr. Clarke shall make arrangements to be seen and evaluated by a psychologist and/or psychiatrist approved by Bar Counsel and Lawyers Helping Lawyers.

2. The purpose of the evaluation shall be to determine if Mr. Clarke has a condition that currently impairs his fitness to practice law.

3. Mr. Clarke shall execute whatever medical releases are necessary for the psychologist, psychiatrist and any other therapists, counselors or medical providers with whom he has consulted or been treated by, to upon request produce his records and communicate with the Virginia State Bar and Lawyers Helping Lawyers.

4. The evaluation shall be completed no later than January 31, 2003, and the provider who sees and evaluates Mr. Clarke shall submit a written report of his or her findings to Bar Counsel and Lawyers Helping Lawyers within one week of the evaluation.

5. If it is determined that Mr. Clarke has a condition that currently impairs his fitness to practice law, he shall follow the course of treatment recommended by the provider, and no later than February 14, 2003, enter into a Monitoring Agreement with Lawyers Helping Lawyers.

6. Mr. Clarke shall comply fully with the terms of the Monitoring Agreement, and Lawyers Helping Lawyers shall provide the Virginia State Bar quarterly reports on his progress through December 31, 2004.

7. If the provider determines that Mr. Clarke has a condition that materially impairs his fitness to practice law, a Suspension for Disability shall be imposed until such time as Mr. Clarke proves that the Disability no longer exists pursuant to Part Six, Section IV, Paragraph 13.I.5.e.(2) of the Rules of Court.


Upon satisfactory proof that all terms and conditions have been met, these matters shall be closed. Mr. Clarke's failure to comply with any one or more of the agreed terms and conditions will result in the imposition of the alternative sanction of a Two Year Suspension. The imposition of the alternative sanction shall not require any hearing on the underlying charges of Misconduct, if the Virginia State Bar discovers that Mr. Clarke has failed to comply with any of the agreed terms or conditions. In that event, the Virginia State Bar shall issue and serve upon Mr. Clarke a Notice of Hearing to Show Cause why the alternative sanction of a two year suspension should not be imposed. The sole factual issue will be whether the Mr. Clarke has violated one or more of the terms of the Public Reprimand without legal justification or excuse. The imposition of the alternative sanction shall be in addition to any other sanction imposed for misconduct during the probationary period.

It is ORDERED that pursuant to Rules of Court, Paragraph 13.B.8.c., the Clerk of the Disciplinary System shall assess costs.

It is further ORDERED that a copy teste of this Order shall be mailed by certified mail, return receipt requested, to the Respondent at his last address of record with the Virginia State Bar, 1325 Greycourt Avenue, Richmond, VA 23227, to Respondent's counsel, Craig S. Cooley, 3000 Idlewood Avenue, P. O. Box 7268, Richmond, VA 23221-0268, and hand delivered to Barbara Ann Williams, Bar Counsel, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219.

Terry Griffith, Chandler and Halasz, Inc., P.O. Box 9349, Richmond, Virginia 23227, 804/730-1222, was the reporter for the hearing and transcribed the proceedings.



ENTERED this ____ day of December, 2002.



VIRGINIA STATE BAR DISCIPLINARY BOARD

 

By: _____________________________________ John A Dezio, Chair