September 19, 2002

PERSONAL AND CONFIDENTIAL



NOTICE OF HEARING

CERTIFIED MAIL

RETURN RECEIPT REQUESTED

NO. 7106 4575 1294 4327 6281



Samuel B. Davis, Jr., Esquire

437 Winterhaven Drive

Newport News, Virginia 23606



Re: In the Matter of Samuel B. Davis, Jr.

VSB Docket #02-010-0019



Dear Mr. Davis:

Pursuant to the Rules of Court, Part 6, Section IV: Paragraph 13(B)(6)(a), I am hereby serving you with Notice of Hearing in the above-referenced matter.

As mentioned in my prior correspondence, dated September 11, 2002, the hearing will be held on Thursday, November 7, 2002, beginning at 9:00 a.m. in the Newport News City Hall Council Chambers, First Floor, 2400 Washington Avenue, Newport News, Virginia. At that time, the First District Committee will consider allegations that you have engaged in conduct contrary to the Code of Professional Responsibility as set forth hereinafter:

1. During all times relevant hereto, the Respondent, Samuel B. Davis, Jr. (hereinafter, Respondent or Mr. Davis) has been a member of the Virginia State Bar in good standing. On January 30, 2002, he changed his membership status from retired to active.

The Inventory

2. On October 8, 1999, Mr. Davis qualified as executor for the estate of Louise Darden Haynes, his deceased aunt. The inventory was due to be filed with the Commissioner of Accounts on February 8, 2000. Mr. Davis did not file the inventory, and the Chief Commissioner of Accounts, Erwin B. Nachman, sent him a Delinquency Notice on March 7, 2000. The Notice directed Mr. Davis to file the inventory within ten days of the date of the letter, or he would issue a summons, resulting in a penalty of $50. The letter closed by stating that a penalty of $25 was being assessed against Mr. Davis for the Delinquency Notice, and expressly stated that the penalty may not be paid from any estate funds.

3. Mr. Davis responded to the Delinquency Notice by letter, dated March 16, 2000, requesting an extension because some estate assets were missing. By letter, dated April13, 2000, Mr. Nachman denied the request, and advised Mr. Davis that if he found the missing assets later, he could amend the inventory. He directed Mr. Davis to file the inventory forthwith, and said that he would withhold the issuing of a summons for ten days.

4. On May 2, 2000, Mr. Davis filed a handwritten inventory which Mr. Nachman returned, asking him to type the inventory. Mr. Davis did not file the inventory as directed, and Mr. Nachman issued a summons on June 23, 2000, requiring Mr. Davis to file the inventory within thirty days of the service of the summons. The summons was served personally on Mr. Davis on June 28, 2000.

5. Mr. Davis did not file the inventory within the thirty-day period. On August 7, 2000, Mr. Nachman sent Mr. Davis a bill for the $50 penalty resulting from the summons, and other estate expenses. Mr. Davis did not pay the bill, and Mr. Nachman sent him a second statement on September 22, 2000. Mr. Davis again did not pay as directed.

6. In August 2000, Mr. Davis delivered a printed inventory, dated July 29, 2000, along with a check in the amount of $25, the personal penalty for the prior Delinquency Notice. Despite Mr. Nachman's instructions to the contrary, Mr. Davis paid the penalty with a check drawn on estate funds. Accordingly, Mr. Nachman declined to file the inventory because Mr. Davis had not paid the fees and penalties as directed.

7. On November 16, 2000, Mr. Nachman filed a report with the Circuit Court for the City of Newport News, stating that Mr. Davis had not filed the inventory in conformity with the requirements of Section 26-12 of the Code of Virginia. The Court issued an order requiring Mr. Davis to appear on January 31, 2001 to show cause whether he should continue serving as fiduciary for the estate, or whether he should be removed, whether judgement should be entered against him, and whether the bond should be forfeited to pay the judgement.

8. In response to the show-cause order, Mr. Davis filed an objection, stating that he filed a printed inventory within thirty days of the service of the summons, and that Mr. Nachman's report was false. He requested the appointment of a grand jury and special counsel to investigate the matter, and to investigate the purported loss of estate property. (Previously, Mr. Davis sent the same request to investigate the missing property to the Commonwealth's Attorney and the Attorney General of Virginia, both of whom declined to do so.)

9. By letter, dated December 5, 2000, Mr. Nachman informed Mr. Davis that his inventory had not been deemed filed because he never paid the required fees, costs, and penalties. He also returned the $25 check to Mr. Davis, informing him again that the penalties could not be paid from estate funds. He also enclosed another billing statement, informing Mr. Davis that the show-cause would be dismissed if he paid the total fees, costs and penalties before the hearing date.

10. On January 30, 2001, the day before the show-cause hearing, Mr. Davis mailed payment of the fees, penalties and costs to Mr. Nachman. Mr. Nachman did not receive them until the following afternoon, after the show-cause hearing. On January 31, 2001, Mr. Davis failed to appear at the show-cause hearing as directed, and the court requested that a summons be issued to Mr. Davis to explain his delinquency and failure to appear in court. When Mr. Nachman received the checks later that day, he contacted the judge, who determined that the summons was not necessary. By letter dated February 5, 2001, Mr. Nachman informed Mr. Davis about this, and that the $100 penalty for the court appearance would be waived under the circumstances, but admonished Mr. Davis to be timely in his future filings.

The First Settlement of Accounts

11. The first settlement of accounts for the estate was due to be filed on February 8, 2001. Mr. Davis did not file the accounting. Accordingly, on March 21, 2001, Mr. Nachman sent a Notice of Delinquency to Mr. Davis, asking him to file the accounting within ten days. He also imposed a $25 penalty, and warned him that an additional penalty of $50 would be imposed if he had to issue a summons, and $100 if there were a show-cause to appear in circuit court.

12. Mr. Davis did not file the accounting as directed. On May 1, 2001, Mr. Nachman issued a summons to Mr. Davis requiring the return of the settlement of accounts within thirty days of the service of the summons. The Sheriff served the summons personally on Mr. Davis on May 8, 2001. Mr. Davis filed a document, dated May 16, 2001, and styled "Statement in Lieu of First Annual Accounting Pursuant to Section 26-20.1." Mr. Nachman determined that this was not a proper statement in lieu of an accounting, but a statement of intent to file a statement in lieu of an accounting. On May 25, 2001 and July 19, 2001, Mr. Nachman billed Mr. Davis for the filing fees and court costs, but Mr. Davis did not pay them.

13. Accordingly, on June 20, 2001, Mr. Nachman reported the delinquency to the Circuit Court for the City of Newport News, which issued an order requiring Mr. Davis and the surety company to appear before the Court on July 31, 2001, to show cause whether Mr. Davis' authority as administrator should be revoked, whether a judgement should be entered against him and the surety, and other relief.

14. On July 19, 2001, Mr. Davis filed a motion for all of the judges of the circuit to recuse themselves, which was granted. The show-cause hearing was continued to October 22, 2001, to be heard by the Honorable Leonard B. Sachs, Judge Designate ( Retired). On October 13, 2001, Mr. Davis filed a motion to disqualify Judge Sachs, arguing that the designation of a retired judge was unconstitutional, and requested the Clerk of the Circuit Court to deny Judge Sachs the use of the courtroom.

15. On the same date, Mr. Davis filed a request to issue subpoenas for the appearance of a local attorney, a local accountant, and the Vice President of an investment firm to appear at the show-cause hearing on October 22, 2001. All three witnesses had a role in another estate, that of Mr. Davis' former spouse. None of the three witnesses, however, had any knowledge or role in the estate of Louise Darden Haynes, and had no evidence to offer about Mr. Davis' failure to file the accounting. The judge quashed the subpoenas at the hearing on the basis that they were collateral to the proceedings.

16. By the time of the hearing, Mr. Davis had accrued penalties for the Delinquency Notice, Summons, and court appearance. Mr. Nachman also billed Mr. Davis for sending Mr. Nachman multiple facsimiles of odd content that had no relation to the case. By the time of the court hearing, what began as an $88 bill had risen to more than $400 because of Mr. Davis' refusal to pay it.

17. The court ordered Mr. Davis to obtain a mental health examination, and continued the matter. Mr. Davis obtained an evaluation and provided a copy of the narrative report, dated November 23, 2001, and a follow up report, dated December 6, 2001. The reports stated that Mr. Davis was competent, and that any behavior exhibited in the courts or associated with his legal practice was willful, and that he was prepared to suffer any sanctions that may be imposed upon him. Mr. Davis filed a motion to have Mr. Nachman removed as Commissioner of Accounts for this case.

18. The matter came to be heard again on May 24, 2002. The Court issued an Order holding that Mr. Davis had both failed and refused to comply with the requirements imposed by law upon fiduciaries without good cause, and removed him as administrator of the estate. The Court also enjoined him from sending any more facsimile messages to the offices of the Commissioners of Account, the Court, or to any person who requests that he not send them. (The Court subsequently removed this portion of the Order for being too broad.) It overruled his motion to remove Mr. Nachman, fined him $500, and ordered him to pay the outstanding fees and penalties within 90 days. Further, it imposed a sanction in the amount of $2,500 for filing frivolous pleadings, but suspended the sanction upon condition that he pay the fees, costs, and fines as ordered, and complied with the injunction. Finally, the Court enjoined him from issuing any subpoenas for documents, persons, or records without prior approval of the Court.

19. To date, Mr. Davis has not paid the fees, costs, and penalties as ordered.


The following Disciplinary Rules are affected:

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 3.1 Meritorious Claims and Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.


RULE 3.4 Fairness to Opposing Party and Counsel

A lawyer shall not:

A lawyer shall not:

RULE 4.4 Respect for Rights of Third Persons

In representing a client, a lawyer shall not use means that have no purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

RULE 8.4 Misconduct

It is professional misconduct for a lawyer to:

Sincerely,

Edward L. Davis

Assistant Bar Counsel



cc: John D. Eure, Jr., Esquire, Committee Chair

Robert W. Jones, Jr., Esquire, Committee Secretary

Committee Members

Edwin B. Nachman, Esquire, Complainant

Ronald Pohrivchak, VSB Investigator

Clerk of the Disciplinary System