VIRGINIA:



BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD



IN THE MATTER OF VSB Docket No. 01-010-1409 01-010-1795

WILLIAM MCLEOD FERGUSON, III

ORDER DISMISSING APPEALS


On September 12, 2002, the Virginia State Bar Disciplinary Board convened a telephone conference call to consider the Virginia State Bar's Motion to Dismiss the Respondent's Appeals of the First District Committee Determinations, the Respondent's Reply to the Motion, and the Bar's response thereto.

Edward L. Davis, Assistant Bar Counsel, appeared on behalf of the Virginia State Bar. The Respondent, William McLeod Ferguson, III, pro se, participated by telephone. John A. Dezio, Esquire, Chair, presided. The parties argued the matter, and the Board made the following findings:

1. That following hearings in these matters on April 4, 2002, the First District Committee imposed a Public Reprimand with Terms upon the Respondent in each of the two cases.

2. That on April 15, 2002, the First District Committee issued these dispositions to the Respondent by Certified Mail, Return Receipt Requested.

3. That on April 25, 2002, the Respondent noted his appeal and demanded that further proceedings be conducted before a three-judge court.

4. That in his notice of appeal, the Respondent certified that he had ordered the hearing transcripts from the court reporter, but did not state that he did so at his cost, as provided by the Rules of the Supreme Court of Virginia, Part Six, Section IV, Subparagraph 13.B.(10)(b).

5. That the Respondent never filed a transcript of the proceedings with the Clerk of the Disciplinary System as required by the Rules of the Supreme Court of Virginia, Part 6, Section IV, Paragraph 13.B. (10) (b), and never requested an extension.

6. That on September 6, 2002, the Bar filed a Motion to Dismiss the appeals for failure to file the transcripts.

7. That the Respondent filed a response to the bar's Motion to Dismiss the Appeals on September 12, 2002, the date of this telephone conference call, stating that he could not afford the advance costs that the court reporter required to produce the transcripts, and asked for the Board to issue an order requiring the court reporter to produce the transcripts or, in the alternative, to accept a statement of facts in lieu of the transcripts.

8. That in reply to the Respondent's response, the bar filed a letter from the court reporting service, dated September 12, 2002, explaining that the Respondent called to inquire about the transcripts on April 23, 2002, but that their office would not do the work without payment in advance, and did not consider it an order until the payment came in.

Pursuant to the Rules of the Supreme Court of Virginia, Part 6, Section IV, Paragraph 13.B. (10) (b), the transcript is a part of the record when it is received in the office of the Clerk of the Disciplinary System within 40 days after the filing of the Notice of Appeal. Forty days from the filing of the Notice of Appeal would have been June 4, 2002. Paragraph 13.B.(10)(b) reads further as follows:


Failure of the Respondent to make the transcript a part of the record as specified herein shall result in dismissal of the appeal by the Disciplinary Board, whether initiated by notice of appeal or written demand, and affirmance of the sanction imposed by the District Committee.


The Board finds further that it has no authority to order the court reporter to produce the transcripts, and that there is no authority for the Respondent to file a statement of facts in lieu of the transcripts. Regardless, any such filings would be untimely.

Accordingly, upon the failure of the Respondent to file the transcripts as required by Paragraph 13.B.(10)(b), and upon the failure of the Respondent to file for an extension of time in which to file the transcripts, the appeals of these matters to the Virginia State Bar Disciplinary Board are hereby DISMISSED WITH PREJUDICE, and the First District Committee's impositions of Public Reprimands with Terms are AFFIRMED and effective upon entry of this Order. In the Matter of Dominick Anthony Pilli, VSB Docket Number 99-051-0023, affirmed, Record Number 001990, Supreme Court of Virginia, February 16, 2001 (unpublished).

The two Public Reprimands with Terms having been stayed previously by the filing of the Notice of Appeal, it is further ORDERED that the deadlines for compliance with the terms imposed by the First District Committee shall run from the date of this telephone conference. Each of the dispositions has four terms with the same deadlines. The deadline for compliance with the first term of each disposition, therefore, shall be sixty (60) days from the date of the conference call, or November 11, 2002. The deadlines for compliance with the two provisions of the second term shall be six (6) months from the date of the conference call, or March 12, 2003, and twelve (12) months from the date of the conference call, or September 11, 2003. The deadline for compliance with the third term shall be twelve (12) months from the date of the conference call, or September 11, 2003, and the deadline for compliance with the fourth term shall also be twelve (12) months from the date of the conference call, or September 11, 2003.

The Clerk of the Disciplinary System shall forward an attested copy of this Order by Certified Mail, Return Receipt Requested, to the Respondent, William McLeod Ferguson, at 2600 Washington Avenue, Suite 204, Post Office Box 253, Newport News, Virginia 23607-0253, his address of record with the Virginia State Bar, and by hand to Edward L. Davis, Assistant Bar Counsel, at the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219.

The court reporter who transcribed these proceedings is Tracy Stroh of Chandler & Halasz, P.C., Post Office Box 9349, Richmond, Virginia 23222 (804) 730-1222.

In accordance with Paragraph 13(K)(10), Part Six, Section IV of the Rules of the Supreme Court of Virginia, the Clerk of the Disciplinary System shall assess costs.



Enter this _____ day of __________, 2002







By__________________________________

John A. Dezio, Chair

Virginia State Bar Disciplinary Board