IN THE MATTER OF
MICHAEL DANA EBERHARDT VSB DOCKET NO. 00-010-0625
ORDER OF SUSPENSION
This matter came for hearing on March 23, 2001 upon the certification of the First District Committee pursuant to Part 6, Section IV, Paragraph 13(B)(7)(d) of the Rules of the Supreme Court of Virginia.
The Respondent, Michael Dana Eberhardt, appeared in person with his counsel, William R. Savage, III. Edward L. Davis, Assistant Bar Counsel, appeared for the Virginia State Bar.
The Virginia State Bar Disciplinary Board Panel consisted of Karen A. Gould, Dennis P. Gallagher, Lay Member, Robert E. Eicher, Richard J. Colten, and Michael A. Glasser, Acting Chair, Presiding.
Prior to the hearing, the Respondent, his counsel, and the Virginia State Bar entered into the following stipulations of Fact and Rule Violations and tendered the same to the Board:
1. During all times relevant hereto, the Respondent, Michael Dana Eberhardt (hereinafter Respondent or Mr. Eberhardt), was an attorney licensed to practice law in the Commonwealth of Virginia.
2. On December 20, 1996, the Circuit Court for the City of Suffolk sentenced Complainant Latourey Urquhart to a net sentence of eighteen years to serve on various felony convictions. His court-appointed counsel was Mr. Eberhardt. Mr. Urquhart advised Mr. Eberhardt of his desire to appeal his case to the Supreme Court of Virginia if unsuccessful at the Court of Appeals.
3. Mr. Eberhardt timely noted an appeal to the Court of Appeals of Virginia. On August 26, 1997, the Court of Appeals denied Mr. Urquhart's petition for appeal, and Mr. Eberhardt promptly notified his client. He then filed a petition for appeal to the Supreme Court of Virginia, but failed to file a notice of appeal with the Court of Appeals as required by Rule 5:14(a) of the Rules of the Supreme Court of Virginia. Mr. Eberhardt would say that he filed the Notice of Appeal, but with the wrong court. Accordingly, the Supreme Court of Virginia dismissed the petition for appeal on October 21, 1997.
4. Mr. Eberhardt did not notify his client about the dismissal. Mr. Eberhardt would say that this was because the Supreme Court of Virginia never notified Mr. Eberhardt about the dismissal. Mr. Urquhart would say that during February, 1999, he contacted Mr. Eberhardt's office where a receptionist told him that they had heard nothing about his appeal. Having heard nothing further from Mr. Eberhardt, Mr. Urquhart wrote to the Supreme Court of Virginia himself in August of 1999 and learned for the first time that the case had been dismissed because of Mr. Eberhardt's procedural error. He then lodged a complaint with the Virginia State Bar. Mr. Urquhart would also say that on November 11, 1999, he wrote to Mr. Eberhardt requesting a copy of his file, and that Mr. Eberhardt did not respond. According to Mr. Eberhardt, he did not receive the letter.
5. According to Mr. Eberhardt, he did not receive the complaint that Mr. Urquhart filed with the Virginia State Bar, and did not know that the Supreme Court of Virginia had dismissed the appeal until he spoke with the Virginia State Bar investigator on December 15, 1999. On February 11, 2000, he sent Mr. Urquhart appropriate habeas corpus materials, and prepared the case file for mailing.
6. Mr. Eberhardt provided the Virginia State Bar investigator with a copy of a cover letter from Mr. Eberhardt to Mr. Urquhart, dated February 14, 2000, enclosing a copy of the case file and trial transcripts. Mr. Urquhart, however, never received the letter (VSB Exhibit 4), and Mr. Eberhardt did not deliver the file to Mr. Urquhart until the day of the hearing in this matter before the First District Committee on June 1, 2000, when Mr. Eberhardt hand delivered the file to Mr. Urquhart during a recess. According to Mr. Eberhardt, this was due to an oversight.
II. STIPULATION AS TO MISCONDUCT
The parties agree that the foregoing facts could give rise to violations of 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 found that the evidence was sufficient to find by clear and convincing evidence that the Respondent had violated the following Disciplinary Rules specified in the Stipulation:
DR 6-101(B) and (C)
Thereupon, the Board heard evidence as to what sanctions should be imposed. The bar offered copies of the Respondent's prior disciplinary record consisting of one Dismissal with Terms, two Private Reprimands with Terms, and one Public Reprimand. Three of the prior dispositions involved misconduct similar to the case before the Board.
The Respondent offered his own testimony regarding the factual situation that surrounded the incident of misconduct, and his hiring of a Virginia State Bar Risk Manager to review his office procedures. The Respondent also offered affidavits from other attorneys concerning his reputation in the community, and a report from the Risk Manager. The Respondent explained that he was carrying far too many cases during the time in question and that because of this and the accompanying stress, he did not attend to certain matters. He explained that he removed himself from the court-appointed attorneys' list as a result of the bar complaints, and reduced his practice. He hired the Risk Manager at the suggestion of the Virginia State Bar after the instant complaint.
Following the presentation of evidence and the findings of misconduct set forth above, the parties entered into an Agreed Disposition as to the sanctions to be imposed. Upon consideration of the evidence, the Board accepted the Agreed Disposition as to sanctions that was presented to the Board by the Virginia State Bar, the Respondent, and his counsel.
WHEREFORE, the Board hereby ORDERS as follows:
The Respondent's license to practice law in the Commonwealth of Virginia is SUSPENDED for a period of thirty (30) days, effective September 1, 2001, subject to the following terms:
1. The Respondent is placed on probation for a period of one year beginning September 1, 2001. The Respondent will engage in no professional misconduct as defined by the Virginia Rules of Professional Conduct during this probationary period. Any final determination of misconduct by any District Committee of the Virginia State Bar, the Disciplinary Board, or a three-judge court to have occurred during such period will be deemed a violation of these terms and conditions and will result in the imposition of a one-year suspension of his license to practice law as an alternate sanction. The alternate sanction will not be imposed while the Respondent is appealing any adverse decision which might result in a probation violation.
2. The Respondent will ensure that Risk Manager Janean Johnston prepares two additional reports at six-month intervals concerning the operation and management of his law practice, and that she furnishes a copy of each report to the Virginia State Bar. The first report must be filed with the Virginia State Bar by March 1, 2002, and the second by September 1, 2002.
The imposition of the alternate sanction will not require a hearing before the Board on the charges of misconduct from the case currently before the Board if the Virginia State Bar discovers that the Respondent has violated any of the foregoing terms and conditions. Instead, the Virginia State Bar shall issue and serve upon the Respondent a Notice of Hearing to Show Cause why the alternate sanction should not be imposed. The sole factual issue will be whether the Respondent has violated the terms of this Order of Suspension without legal justification or excuse. The imposition of the alternate sanction shall be in addition to any other sanctions imposed for misconduct during the probationary period.
Pursuant to Part Six, Section IV, Paragraph 13(K)(10) of the Rules of the Supreme Court,
the Clerk of the Disciplinary System shall assess costs.
It is further ORDERED, pursuant to the provisions of Part Six, Section IV,
Paragraph(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 the 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 presiding judges in pending litigation. The Respondent shall also make appropriate arrangements for the disposition of matters then in his care, in conformity with the wishes of his clients. The Respondent shall give such notice within 14 days of the effective date of the suspension order, and make such arrangements as are required herein within 45 days of this effective date of the suspension order. The Respondent shall furnish proof to the Bar within 60 days of the effective date of the suspension order that such notices have been timely given and such arrangements for the disposition of matters made. Issues concerning the adequacy of the notice and the arrangement required herein shall be determined by the Virginia State Bar Disciplinary Board, which may impose a sanction of revocation or suspension for failure to comply with the requirements of this subparagraph.
The Court Reporter who transcribed the proceedings was Donna Chandler of Chandler and Halasz, Richmond, Virginia (804) 730-4681.
A copy teste of this order shall be served upon this Respondent, Michael Dana Eberhardt, by certified mail, return receipt requested, at 429 North Main Street, Suffolk, Virginia 23434-4424, his address of record with the Virginia State Bar; and by regular mail to his counsel, William R. Savage, III, at Post Office Box 1876, Suffolk, Virginia 23434-1876, his address of record at the Virginia State Bar; and to Edward L. Davis, Assistant Bar Counsel, Assistant Bar Counsel, at the Virginia State Bar, Eighth and Main Building, Suite 1500, 707 East Main Street, Richmond, Virginia 23219.
THE VIRGINIA STATE BAR DISCIPLINARY BOARD
Enter this ________ day of ____________, 2001
Michael A. Glasser, Acting Chair