September 19, 2002
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.
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
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
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
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:
Edward L. Davis
Assistant Bar Counsel
cc: John D. Eure, Jr., Esquire, Committee Chair
Robert W. Jones, Jr., Esquire, Committee Secretary
Edwin B. Nachman, Esquire, Complainant
Ronald Pohrivchak, VSB Investigator
Clerk of the Disciplinary System