IN THE CIRCUIT COURT FOR THE CITY OF ROANOKE
VIRGINIA STATE BAR, EX REL )
EIGHTH DISTRICT COMMITTEE, )
v. ) Chancery No. 00-1064
BARRY L. FLORA, )
COMES NOW the Virginia State Bar, by Edward L. Davis, Assistant Bar Counsel (Bar Counsel), and the Respondent, Barry L. Flora (Respondent), and his counsel, William B. Hopkins, Jr., Esquire, and tender to this Honorable Court the following Agreed Disposition for its consideration.
I. STIPULATIONS OF FACT
1. During all times relevant hereto, the Respondent, Barry L. Flora (hereinafter Respondent or Mr. Flora) was an attorney licensed to practice law in the Commonwealth of Virginia.
2. On August 27, 1997, in the United States District Court for the Western District of Virginia, Mr. Flora pled guilty to a one-count criminal Information charging him with a violation of Title 18, United States Code, Section 1033(b)(1), misappropriation of insurance business funds by a company officer. The plea was pursuant to a nine-page plea agreement between the United States and Mr. Flora. After reviewing the pre-sentence report, Mr. Flora's Sentencing Memorandum, the Government's Response, testimony and the argument of counsel, the Court sentenced Mr. Flora to 24 months of supervised probation and imposed a $7,200.00 fine.
3. The Information that Mr. Flora pled guilty to is attached hereto as Exhibit A.
4. If this case should go to trial, the Respondent would say that he denies First Security Bank was mislead as to the ultimate recipient of the loan proceeds. Respondent asserts that he told the Bank's President, Gary Peck, the purpose of the loan and the loan application was filled out in accordance with Mr. Peck's instructions. Moreover, Respondent denies he had any intention to mislead anyone with regard to the purpose of the loan. At sentencing on his federal charge, Judge Turk, the sentencing judge, stated he did not believe Mr. Flora had any intention to defraud anyone.
5. First Security Bank subsequently failed and the note
Mr. Flora executed to secure the loan was sold to Commercial Financial Services, Inc. The note had a principle balance of $33,000.00 still due and owing to First Security Bank on the day that the bank was taken over by the FDIC in May, 1991. In 1995 and 1996, Mr. Flora paid Commercial Financial Services, Inc., a $13,000.00 compromise settlement to cancel the note.
6. In addition to the instant offense, the investigation by the United States, which was not part of the charged offense, showed other exchanges of money in the relationship between Mr. Roberts and Mr. Flora through Mr. Flora's real estate escrow account. Specifically,
a. On January 25, 1990, Mr. Roberts and Mr. Flora traveled to Floyd, Virginia, to meet with Samuel Shutters, Vice President of Blue Ridge Bank. Mr. Roberts had a long-standing banking relationship with Mr. Shutters and had arranged to introduce Mr. Flora for the purpose of Flora obtaining a loan. Mr. Flora filled out a loan application indicating that the loan was for business operations. That same day, Mr. Flora received the $19,425.00 loan proceeds check, number 6710, deposited the check into his law firm Real Estate Escrow Account, and wrote Escrow Account Check No. 71764 to William C. Roberts in the amount of $19,425.00, referencing the same $19,425.00 loan check from Blue Ridge Bank, Number 6710, in his escrow account cash receipts and fees charged journal.
b. In January, 1990, Mr. Flora asked Joseph Millehan, a friend of Mr. Flora, to loan him $25,000.00. On January 25, 1990, Mr. Millehan went to Gary Peck at First Security Bank and obtained a $25,000.00 loan. The same day Mr. Millehan took the proceeds check, Number 001388, and the loan documents to Mr. Flora. Mr. Flora deposited the $25,000.00 proceeds check into his law firm Real Estate Escrow Account and wrote Escrow Account Check No. 71765 to William C. Roberts for $25,000.00, referencing the same $25,000.00 loan check from First Security Bank, Number 001388, in his escrow account cash receipts and fees charged journal.
II. NATURE OF MISCONDUCT
Bar Counsel and the Respondent agree that the foregoing Stipulations of Fact could give rise to violations of the Disciplinary Rules listed below. If, however, this case should go to trial, Respondent would dispute that he was guilty of any violations of the Disciplinary Rules.
DR 1-102. Misconduct.
(A) A lawyer shall not:
(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 reflects adversely on a lawyer's fitness to practice law.
DR 9-102. Preserving Identity of Funds and Property of a
(A) All funds received or held by a lawyer or law firm on behalf of a client, estate or a ward, residing in this State or from a transaction arising in this State, other than reimbursement of advances for costs and expenses, shall be deposited in one or more identifiable trust accounts and, as to client funds, maintained at a financial institution in a state in which the lawyer maintains a law office, and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
(1) Funds reasonably sufficient to pay service or other charges or fees imposed by the financial institution may be deposited therein.
(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, and the portion belonging to the lawyer or law firm must be withdrawn promptly after they are due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
DR 9-102. Preserving Identity of Funds and Property of a
(B) A lawyer shall:
(4) Promptly pay or deliver to the client or another as requested by such person the funds, securities, or other properties in the possession of the lawyer which such person is entitled to receive.
III. STIPULATION AS TO DISPOSITION
The Respondent and Bar Counsel agree that the sanction in the matter now pending is a 30-day suspension of the Respondent's license to practice law in the Commonwealth of Virginia, subject to the following terms and conditions:
The Respondent, Barry L. Flora, agrees to be placed on probation for a period of one (1) year, said period to begin on the date that this Honorable Court enters an Order accepting this Agreed Disposition. Mr. Flora will engage in no professional misconduct as defined by the Virginia Rules of Professional Conduct during such one-year probationary period. Any final determination of misconduct, arising from any act during such probationary period determined 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 the terms and conditions of this Agreed Disposition and will result in the imposition of an additional one year and 11-month suspension of his license to practice law as an alternate sanction. The alternate sanction will not be imposed while Mr. Flora is appealing any adverse decision which might result in a probation violation. The starting date of Mr. Flora's 30-day suspension shall be February 24, 2001.
The imposition of the alternate sanction will not require a
hearing before the three-judge court on the underlying charges of misconduct described herein 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 Agreed Disposition 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.
Edward L. Davis, Assistant Bar Counsel
Barry L. Flora, Respondent William B. Hopkins, Jr.
Counsel for the Respondent