V I R G I N I A :



BEFORE THE FOURTH DISTRICT--SECTION II SUBCOMMITTEE

OF THE VIRGINIA STATE BAR





IN THE MATTER OF KENNETH HARRISON FAILS, II, ESQ.

VSB Docket # 01-042-1310



AGREED DISPOSITION



Pursuant to Virginia Supreme Court Rules of Court Part Six: IV, 13(B)(5)(c)(ii)(d)(i) and Council Rule of Disciplinary Procedure IV(B)(4), the Virginia State Bar, by Assistant Bar Counsel Seth M. Guggenheim, and the Respondent, Kenneth Harrison Fails, II, Esquire, hereby enter into an Agreed Disposition arising out of the above-referenced matter.

Both parties affirm that the proposed Subcommittee Determination of a Public Reprimand, a true copy of which is attached hereto and incorporated herein by reference, reflects the stipulated facts, violations, and disposition for the above-referenced matter.

Respondent understands that should the Subcommittee accept this agreed disposition by unanimous vote, the Subcommittee Determination will be signed by the Chair or Chair Designate and thereafter mailed without the necessity of any hearing or further notice to the parties. Further, it is understood and agreed by the parties hereto that should the Subcommittee refuse the agreed disposition neither party shall be bound by the stipulations or findings contained therein and these matters shall be heard by the full Committee.















SEEN AND AGREED TO:

THE VIRGINIA STATE BAR







______________________ Date:________

Seth M. Guggenheim

Assistant Bar Counsel







______________________ Date:________

Kenneth Harrison Fails, II, Esquire

Respondent







SUBCOMMITTEE ACTION



Pursuant to Virginia Supreme Court Rules of Part Six: IV, 13(B)(5)(c)(ii)(d)(i) and Council Rule of Disciplinary Procedure IV(B)(4), the duly convened Subcommittee of the Fourth District--Section II Committee of the Virginia State Bar hereby accepts the Agreed Disposition in this matter.



Date: __________ _________________________________



Date: __________ _________________________________



Date: __________ _________________________________

V I R G I N I A :



BEFORE THE FOURTH DISTRICT--SECTION II SUBCOMMITTEE

OF THE VIRGINIA STATE BAR



IN THE MATTER OF KENNETH HARRISON FAILS, II, ESQ.

VSB Docket # 01-042-1310



SUBCOMMITTEE DETERMINATION

PUBLIC REPRIMAND



On November 29, 2001, a meeting in this matter was held before a duly convened Fourth District--Section II Subcommittee consisting of Todd A. Pilot, Esquire, Charles A. Bish, and John Casey Forrester, Esquire, presiding.

Pursuant to Part 6, IV, 13(B)(5) of the Rules of the Supreme Court of Virginia, the Fourth District--Section II Subcommittee of the Virginia State Bar hereby serves upon the Respondent the following Public Reprimand, as set forth below:

I. FINDINGS OF FACT



1. At all times relevant hereto, Kenneth Harrison Fails, II, Esq. (hereafter "Respondent"), has been an attorney licensed to practice law in the Commonwealth of Virginia.

2. On or about October 21, 1998, Mrs. Ann C. Tornese (hereafter "Complainant") and her husband, Mr. Lin Tornese, engaged Respondent to handle certain litigation involving Mr. Tornese stemming from a dispute with a home improvement contractor.

3. The Respondent succeeded both in defending the claim asserted against Mr. Tornese in the Fairfax County General District Court and in obtaining a judgment against the home improvement contractor on the counterclaim that he had filed in that Court on Mr. Tornese's behalf.



4. The home improvement contractor appealed the judgment to the Fairfax County Circuit Court, and perfected his appeal by posting a cash bond with that Court in the sum of $2,902.

5. Before the case went to trial in the Circuit Court, the matter was settled. On or about the 20th day of April, 2000, the home improvement contractor's attorney memorialized the terms of settlement in a letter that was hand-delivered to the Respondent. Among other things, the settlement called for the home improvement contractor's payment to Mr. Lin Tornese in the sum of $4,500.00 on or before July 31, 2000. By agreement of the parties to the suit, an order dismissing the case was entered by the Circuit Court on April 21, 2000.

6. At the time that the Torneses orally approved settlement of the case, the Respondent informed them that the due date for payment was June 30, 2000. The Respondent did not timely transmit to his clients a copy of the April 20, 2000, letter embodying the terms of settlement. When June 30, 2000, arrived and the Torneses had received no payment, they contacted Respondent, who advised them that he had "misread" the settlement letter, and that the due date for payment was July 31, 2000.

7. When the settlement amount had not been paid by July 31, 2000, the Complainant and her husband left telephone messages for the Respondent several times and wrote to him on August 14, 2000. Despite such attempts to reach the Respondent, he failed and refused to communicate with the Torneses through the date the Complainant prepared her Complaint to the Virginia State Bar on August 23, 2000. In addition, Respondent failed to provide the Torneses with a copy of the April 20, 2000, letter regarding settlement, despite their requests therefor, until approximately September 27, 2000, well beyond the time a Complaint against Respondent had been filed in this matter with the Virginia State Bar.

8. At the time he settled Mr. Tornese's case and at the time of breach of the settlement terms, the Respondent did not know that the bond posted with the Circuit Court was for the

protection of his client, and that upon settlement of the matter the proceeds were thus available for immediate release on behalf of his client upon entry of a court order so directing.

9. Respondent did not know that upon breach of the settlement terms a suit should have been initiated to enforce Mr. Tornese's rights under the settlement. Rather, the Respondent believed that to enforce his client's rights, upon breach of the settlement terms, it was necessary to "vacate" the order of dismissal, which order had since become final, and to proceed on the original, underlying claim.

10. Due to Respondent's failure to attend to Mr. Tornese's legal matter and to possess the legal knowledge required to handle the matter properly, the Torneses discharged Respondent on or about October 23, 2000. The Torneses then engaged new counsel, who promptly secured the release and distribution of the appeal bond proceeds and recovered the balance due Mr. Tornese under the settlement terms by filing a warrant in debt against the home improvement contractor.



II. NATURE OF MISCONDUCT

The Subcommittee finds that the following Rules of Professional Conduct have been violated:

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.



(b) A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but may withdraw as permitted under Rule 1.16.



(c) A lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3.



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.



(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.



(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.

 

III. PUBLIC REPRIMAND



Accordingly, it is the decision of the Subcommittee to impose a PUBLIC REPRIMAND on Respondent, Kenneth Harrison Fails, II, Esquire, and he is so reprimanded.



FOURTH DISTRICT - SECTION II SUBCOMMITTEE

OF THE VIRGINIA STATE BAR





By __________________________________

Chair/Chair Designate









CERTIFICATE OF SERVICE



I certify that I have this 3rd day of December, 2001, mailed a true and correct copy of the Subcommittee Determination (PUBLIC REPRIMAND) by CERTIFIED MAIL, RETURN RECEIPT REQUESTED, to the Respondent, Kenneth Harrison Fails, II, Esq., Suite 920, 1850 M Street, N.W., Washington, D.C. 20035, his last address of record with the Virginia State Bar, and a copy delivered to Seth M. Guggenheim, Esq., Assistant Bar Counsel, at 100 North Pitt Street, Suite 310, Alexandria, Virginia 22314-3133.

_______________________________________

Chair/Chair Designate