VIRGINIA:

BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD


IN THE MATTER OF
KENNETH H. FAILS, II VSB Docket No. 99-042-2832


ORDER

On August 24, 2001, this matter came before the Virginia State Bar Disciplinary Board upon a certification of charges of misconduct dated February 20, 2001, from the Fourth District-Section II Committee. A duly convened panel of the Virginia State Bar Disciplinary Board consisting of Randy Ira Bellows, Second Vice Chair, presiding, Donna A. DeCorleto, Janipher W. Robinson, Theophlise L. Twitty and H. Taylor Williams, IV, heard the matter.
The respondent, Kenneth H. Fails, II, appeared in person and pro se. The Virginia State Bar was represented by Seth M. Guggenheim, Assistant Bar Counsel. The court reporter was Comiller T. Boyd. Her address is 105 St. Claire Lane, Richmond, Virginia, 23223, (804)644-2581. The Chair opened the proceedings by polling the board members to ascertain whether any member had a conflict of interest that would preclude him or her from serving. There were no conflicts and the matter proceeded as scheduled.

I. PROCEEDINGS BEFORE THE DISTRICT COMMITTEE
On February 20, 2001, this matter came on to be heard before the Fourth District-Section II Committee on a Notice to Show Cause to the respondent, Kenneth H. Fails, II, regarding his alleged failure to comply with the terms of a prior Private Reprimand with Terms, imposed on July 13, 2000, and why the imposition of the alternative disposition, certification of charges of misconduct to the Virginia State Bar Disciplinary Board, was not appropriate. The District Committee determined to impose the alternative disposition, i.e., certification to the Board.
A. The District Committee's Findings of Fact
The District Committee made five findings of fact, each of which the Respondent has admitted, see Respondent's Answer to Certification (April 19, 2001) and which the Board, therefore, adopts. The findings are as follows:
1. At all times relevant hereto the Respondent, Kenneth Harrison Fails, II, Esq. (hereinafter the Respondent), has been an attorney licensed to practice law in the Commonwealth of Virginia
2. On October 29, 1998, Respondent's license to practice law in the Commonwealth of Virginia was "administratively" suspended by the Virginia State Bar for Respondent's failure to comply with Paragraphs 11, 13.2, 18 and 19, Part Six, Section IV, of the Rules of the Supreme Court of Virginia.
3. Respondent was notified of the suspension of his license to practice law in the Commonwealth of Virginia by letter dated October 29, 1998, which was sent to him via certified mail, return receipt requested. The letter was delivered to and signed for by an agent of the Respondent on October 30, 1998.
4. The period during which Respondent's license to practice law was suspended began on October 29, 1998, and ended on August 19, 1999, on which latter date Respondent was once again authorized to practice law in the Commonwealth of Virginia.
5. During the period that his license to practice law was suspended, and following Respondent's knowledge of the fact that his license was so suspended, Respondent engaged in the practice law in the Commonwealth of Virginia. In addition to practicing law in other cases, Respondent participated actively as attorney of record for plaintiffs in a case filed in the Circuit Court of Fairfax County, Virginia, styled Steven Massie, et al. vs. Thomas Gorman, et al., At Law No. 176347. Respondent filed pleadings, argued motions, attended a status conference, and otherwise participated actively as counsel of record in the case over a period commencing on November 19, 1998, and continuing at least through May 7, 1999.
B. Nature of Misconduct Found by the District Committee
The District Committee found that the following Disciplinary Rules had been violated:
DR 1-102. Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule or knowingly aid another to do so.

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(3) Commit a crime or other deliberately wrongful act that reflects adversely on the lawyer's fitness to practice law.

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflect adversely on a lawyer's fitness to practice law.

II. PROCEEDINGS BEFORE THE BOARD

As stated above, Respondent filed an answer to the Certification admitting all of the Findings of Fact contained in the Committee Determination (Certification). At the hearing before the Disciplinary Board, the Virginia State Bar submitted four exhibits without objection from respondent. Exhibit 1 was an affidavit certifying that Kenneth Harrison Fails, II, was an active member of the Virginia State Bar in good standing. Exhibit 2 was a copy of a letter dated July 13, 2000, addressed to Kenneth Harrison Fails, II, from Frank Salvato, Chair of the Fourth District-Section II Committee, advising respondent of the District Committee Determination of a Private Reprimand with Terms. The Private Reprimand with Terms was included as an enclosure to the letter. Exhibit 3 was a copy of a letter dated March 13, 2001, addressed to Kenneth Harrison Fails, II, from Barbara Sayers Lanier, Clerk of the Disciplinary System, advising Respondent of the hearing date before the Disciplinary Board and serving the Committee Determination (Certification) upon
Respondent in compliance with the Rules of the Supreme Court. Attached to that letter as an enclosure was the Committee Determination (Certification) dated February 20, 2001. Exhibit 4 was the Answer to Certification filed by Kenneth H. Fails, II, respondent, wherein he admits all five paragraphs in the Findings of Fact contained in the Committee Determination (Certification).
After due deliberation, the Panel adopted the Findings of Fact, as found by the District Committee, and concluded further that Respondent had violated the following Disciplinary Rules:
DR 1-102. Misconduct.
(A) A lawyer shall not:
(1) Violate a Disciplinary Rule or knowingly aid another to do so.

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(3) Commit a crime or other deliberately wrongful act that reflects adversely on the lawyer's fitness to practice law.

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflect adversely on a lawyer's fitness to practice law.

Whereupon, summation was heard from Assistant Bar Counsel for the Virginia State Bar and from respondent on the issue of punishment. After due deliberation it was the decision of a majority of the Panel members to suspend the license of the respondent, Kenneth Harrison Fails, II, to practice law in the Commonwealth of Virginia for a period of three (3) months beginning August 24, 2001, and ending November 24, 2001, four (4) members voting in favor of this disposition and one (1) member dissenting.
Given that the Respondent practiced law while under administrative suspension for approximately a ten-month period, a suspension of that duration, as requested by the Bar, could have been justified. However, there were several factors that mitigated against a ten-month suspension, including (1) the Respondent's forthrightness and candor in admitting his misconduct; (2) the clear impression that Respondent appreciated the gravity of his misconduct and accepted responsibility for it; and (3) the significant steps that Respondent has taken in recent months which would suggest that this misconduct would not reoccur in the future. The Panel determined that a suspension was required in light of the seriousness of the Respondent's misconduct. As to the length of the suspension, the Panel determined that a three-month suspension was of sufficient duration to convey to the respondent how seriously the Panel regarded his misconduct but that the suspension should be of limited duration in order that it not have the practical effect of undoing the significant positive steps that Respondent has recently taken.
It is therefore ORDERED that the Respondent's license to practice law in the Commonwealth of Virginia is hereby SUSPENDED for the period of ninety (90) days, effective August 24, 2001.
It is further ORDERED, pursuant to the Rules of the Supreme Court, Part Six, § IV, ¶13(K)(1), that respondent, Kenneth Harrison Fails, II, shall forthwith give notice, by certified mail, of this suspension to all clients for whom he is currently handling matters and to all opposing attorneys and the presiding judges in pending litigation and that he shall also make appropriate arrangements for the disposition of matters that are in his care in conformity with the wishes of his client. The notice shall be given within fourteen (14) days of the date of the suspension and arrangements shall have been made within forty-five (45) days of the date of the suspension. Respondent shall also furnish proof to the Bar within sixty (60) days of the date of suspension that such notices have been timely given and such arrangements for the dispositions of matters made. Issues concerning the adequacy of the notice and the arrangements required herein shall be determined by the Disciplinary Board, which may impose a sanction of revocation or suspension for failure to comply with the requirements of this order.
It is further ORDERED that Kenneth Harrison Fails, II, 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 October 22, 2001.
Pursuant to Part Six, § IV, ¶13(K)(10), of the Rules of the Supreme Court, the Clerk of the Disciplinary System shall assess costs against the respondent.
It is further ORDERED that the Clerk of the Disciplinary System send an attested true copy of this Order to the Respondent, Kenneth Harrison Fails, II, by Certified Mail, Return Receipt Requested, at his address of record with the Virginia State Bar, Suite 920, 1850 M Street, NW, Washington, DC 20036, and sent to Seth M. Guggenheim, Assistant Bar Counsel, 100 N. Pitt Street, Suite 310, Alexandria, Virginia 22314-3133.

SO ORDERED, this ___ day of ______________, 2001

VIRGINIA STATE BAR DISCIPLINARY BOARD

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Randy I. Bellows, Second Vice Chair


Dissenting Opinion

Donna A. DeCorleto, in dissent:

I concur with the finding of misconduct in the matter of Kenneth Harrison Fails, II (VSB Docket No. 99-042-2832) and I concur with the need for a suspension, but I dissent from the length of the suspension imposed by the Board. Mr. Fails has demonstrated a pattern of disregard for the rules applying to attorneys licensed to practice in the Commonwealth of Virginia. First, he failed to meet the requirements to pay bar dues and meet the CLE requirements imposed on all attorneys in Virginia. Then, he knowingly ignored the administrative suspension imposed upon him by the Virginia State Bar by not only continuing to work with existing clients, but also taking on new clients during the suspension period. When this was detected, he was given rather generous terms by the Fourth District-Section II Committee of the Virginia State Bar, terms involving monthly visits to a mentor for 18 consecutive months. He again failed to comply with those terms.


Mr. Fails needs to develop a respect for the rules that govern attorneys in Virginia and must accept that those rules do apply to him if he wishes to remain an attorney licensed to practice in Virginia. A ten-month suspension merely reinstates the punishment that was originally imposed and sends Mr. Fails the message that Bar rules and actions are not optional. A three- month suspension is not a sanction, it is a reward for ignoring the long suspension and other terms imposed. The three-month suspension also sends a message to other attorneys and the public that Bar rules can be ignored repeatedly and successfully.
Accordingly, I concur in the findings of misconduct, but dissent from the short length of the suspension imposed by the panel.