V I R G I N I A:

BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

IN THE MATTER OF FRANCIS DOUGLAS FOORD, ESQUIRE

VSB Docket Numbers

00-041-1868

00-041-2098

01-041-0812

01-041-3134

02-041-1296

O R D E R

This matter came on January 2, 2003, to be heard on the Agreed Disposition of the Virginia State Bar and the Respondent, based upon the Certification of a Fourth DistrictSection I Subcommittee. The Agreed Disposition was considered by a duly convened panel of the Virginia State Bar Disciplinary Board consisting of Bruce T. Clark, Esquire, Joseph R. Lassiter, Jr., Esquire, Larry B. Kirksey, Esquire, Werner H. Quasebarth, lay member, and Roscoe B. Stephenson, III, Esquire, presiding.

Seth M. Guggenheim, Esquire, representing the Bar, and the Respondent, Francis Douglas Foord, Esquire, appearing pro se, presented an endorsed Agreed Disposition, dated December 23, 2002, reflecting the terms of the Agreed Disposition.

Having considered the Certification and the Agreed Disposition, it is the decision of the Board that the Agreed Disposition be accepted, and the Virginia State Bar Disciplinary Board finds by clear and convincing evidence as follows:

1. At all times relevant hereto, Francis Douglas Foord, Esquire (hereafter "Respondent"), has been an attorney licensed to practice law in the Commonwealth of Virginia.

As to VSB Docket No. 00-041-1868:

2. In or around February, 1997, Ms. Teresa J. Biter (hereafter "Complainant") retained the Respondent to represent her in a personal injury claim arising out of a motor vehicle accident that occurred on January 22, 1997.

3. The Complainant filed a Complaint with the Virginia State Bar, dated December 30, 1999, which the Bar received on January 4, 2000, alleging that the Respondent had made no contact with her in over six months, and that he did not return messages left on his answering machine.

4. Intake counsel for the Bar wrote to the Respondent on January 18, 2000, requesting that the Respondent communicate with the Complainant about the status of her case. By letter dated January 26, 2000, the Respondent wrote to intake counsel, attaching a copy of a letter dated January 26, 2000, purportedly sent to the Complainant. The letter to the Complainant stated, inter alia, the following: "Your case, Biter v. Harrington, Law Number 185779, is pending in Fairfax County Circuit Court. It is my hope that we can soon locate an address where the defendant can be served, and then proceed to trial." The letter also stated: "I will be contacting you in the near future, perhaps before this letter is delivered, in regard to several issues relating to your case."

5. On the strength of Respondent's aforesaid correspondence to the Bar, intake counsel closed the Bar's file on the matter on February 2, 2000. On February 23, 2000, intake counsel received another letter from the Complainant, again alleging that Respondent was failing to communicate with her. The Bar thereafter opened a formal Complaint against the Respondent.

6. On March 6, 2000, Bar Counsel directed a letter of that date to Respondent, enclosing the Complaint, and stating, inter alia, in bold, underlined text, the following: "please review the complaint and provide this office with a written answer, including an original and one copy of your response and all attached exhibits, within twenty-one (21) days of the date of this letter."

7. The Respondent made no written or other response to the Bar's March 6, 2000, letter, and the matter was forwarded by Bar Counsel for investigation and assigned to a Virginia State Bar investigator.

8. The investigation conducted by the Virginia State Bar revealed that:

a. The "case" referred to as "pending" in Respondent's aforesaid January 26, 2000, letter to the Complainant was filed by the Respondent on January 24, 2000;

b. The Respondent made no further contact with the Complainant following his aforesaid letter to her dated January 26, 2000;

c. The Respondent accepted full time employment as an assistant public defender while appearing as counsel of record in the suit filed on Complainant's behalf. The Respondent did not thereafter withdraw from representation or find substitute counsel for the Complainant, despite having been advised in writing by a Fairfax County Circuit Judge to "see that an Order of Substitution or other appropriate pleading is filed in a timely manner;"

d. The Respondent was noticed by the Court to appear on January 26, 2001, regarding a possible dismissal of the case for lack of service of process on the defendant within one year following the date of filing of the case; and

e. The Respondent made no appearance pursuant to the aforesaid Notice, and a Final Order was entered by the Court dismissing the case on January 26, 2001.

9. During an interview of the Respondent conducted in person by a Virginia State Bar investigator in Respondent's office in the Office of the Public Defender in Fredericksburg, Virginia, on November 28, 2000, the Respondent stated to the investigator that he would provide the investigator with a copy of the Respondent's file in Complainant's legal matter.

10. Despite the investigator's subsequent voice mail messages on December 21 and 28, 2000, and a January 5, 2001, message left with Respondent's clerical staff, the Respondent neither provided the investigator with a copy of the file nor responded to the investigator's three messages.

As to VSB Docket No. 00-041-2098:

11. On February 24, 2000, the Virginia State Bar opened a Complaint against the Respondent on the basis of written information it had received from a member of the Virginia State Bar concerning the status of certain client files remaining at Respondent's former place of employment.

12. On March 3, 2000, Bar Counsel directed a letter of that date to Respondent, enclosing the Complaint, and stating, inter alia, in bold, underlined text, the following: "please review the complaint and provide this office with a written answer, including an original and one copy of your response and all attached exhibits, within twenty-one (21) days of the date of this letter."

13. The Respondent made no written or other response to the Bar's March 3, 2000, letter, within twenty-one (21) days, or at any time thereafter.

14. During an interview conducted by a Virginia State Bar investigator on November 28, 2000, the Respondent stated that he was aware that if he did not respond to bar complaints the matters involved would have to be investigated.

As to VSB Docket No. 01-041-0812:

15. In or around October, 1999, Mr. Melvin Pittman (hereafter "Complainant") and Rhonda Pittman engaged the Respondent to recover damages from an individual who breached a contract with the Pittmans in connection with the sale of their motor vehicle.

16. The Pittmans paid Respondent legal fees of between $800.00 and $900.00, plus court filing fees. When the matter came on for trial, the Respondent had either lost or misplaced documentary evidence which had earlier been given to him by the Pittmans, and the party whom the Pittmans had sued prevailed at trial.

17. In view of the circumstances, the Respondent promised the Complainant that he would refund $250.00 of the legal fees that had been paid to him. Despite such promise, the Respondent never made a refund of any fees to the Complainant, and Respondent failed and refused to return the Complainant's four (4) telephone messages to him in this regard.

18. The Complainant filed a Complaint with the Virginia State Bar, and on October 25, 2000, Bar Counsel directed a letter of that date to Respondent, enclosing the Complaint, and stating, inter alia, in bold, underlined text, the following: "please review the complaint and provide this office with a written answer, including an original and one copy of your response and all attached exhibits, within twenty-one (21) days of the date of this letter."

19. The Respondent made no written or other response to the Bar's October 25, 2000, letter, within twenty-one (21) days, or at any time thereafter.


20. In an effort to interview the Respondent concerning this matter, a Virginia State Bar investigator telephoned the Respondent's office on December 21 and 28, 2000, and left messages on Respondent's voice mail. On January 5, 2001, the investigator telephoned the Respondent's office and requested that the clerical staff provide the Respondent with a personal message to call the investigator. The clerical staff informed the investigator that Respondent had been working throughout the time that the voice mail messages had been left; that Respondent was receiving his voice mail messages; and that they would provide the Respondent with the investigator's message.

21. Despite the efforts expended by the investigator, and notwithstanding the messages that had been left for him, as detailed in the foregoing paragraph, the Respondent did not return the investigator's calls, and was not interviewed respecting the Complaint filed in this matter.

As to VSB Docket No. 01-041-3134:

22. As of early May, 2000, the Respondent, as an assistant public defender, had been appointed to represent Mr. Larry Ray Martin (hereafter "Complainant") in a probation revocation proceeding scheduled in the Circuit Court of King George County, Virginia, for May 30, 2000.

23. The Complainant, who was incarcerated during the period of Respondent's representation, requested on numerous occasions that the Respondent visit him in jail for purposes of preparing for the scheduled hearing. In particular, the Complainant wrote a letter, dated May 3, 2000, to the Respondent, which the Respondent received on May 8, 2000. The letter stated, in pertinent part, as follows:

I would like you to come and see me way befer court. I dont want you to come a week or so befer court and try and get stuff done and then have to turn around and say we have to post pone it because you didn't have time to get stuff done. All I want you to do is find out the Full Fathers name of Mr Covington and their new address. his son is one of the reasons why Im going up for my back up time. And please tell the secs to except my Phone call and set up a phone appointment since I don't know when you are in the office please. I've called about 12 times and she wont except the call. Try and come see me next week.› please. [Errors in original.]


24. The Respondent did not visit or otherwise correspond with the Complainant pursuant to the Complainant's requests. Minutes before the scheduled hearing, the Respondent conferred with the Complainant. The Respondent developed no evidence for presentation at the hearing, and presented no evidence at the hearing which might have served to mitigate the severity of any sentence the Court was authorized by law to impose. The Court revoked the full term of Complainant's suspended sentence, a period of four (4) years, and ordered that it "run consecutive to any other sentence."

25. The Complainant filed a Complaint with the Virginia State Bar, and on June 26, 2001, Bar Counsel directed a letter of that date to Respondent, enclosing the Complaint, and stating, inter alia, in bold, underlined text, the following: "please review the complaint and provide this office with a written answer, including an original and one copy of your response and all attached exhibits, within twenty-one (21) days of the date of this letter."

26. The Respondent made no written or other response to the Bar's June 26, 2001, letter, within twenty-one (21) days, or at any time thereafter. During a personal interview conducted by a Virginia State Bar investigator on February 12, 2002, the Respondent stated that he did not respond to the Bar Complaint because he did not have the time.

As to VSB Docket No. 02-041-1296:

27. On or about October 31, 2001, Mr. Kenneth Lewis (hereafter "Complainant"), an incarcerated defendant with criminal charges pending against him in the King George County, Virginia, Circuit Court, filed a Complaint with the Virginia State Bar against the Respondent, who, as assistant public defender, was serving as Complainant's defense counsel. The specific allegations contained in the Complaint are not here presented as charges of misconduct against the Respondent.


28. On November 5, 2001, Bar Counsel directed a letter of that date to Respondent, enclosing the Complaint, and stating, inter alia, the following: "please review the complaint and submit a written answer within twenty-one (21) days of the date of this letter."

29. The Respondent made no written or other response to the Bar's November 5, 2001, letter, within twenty-one (21) days, or at any time thereafter. During a personal interview conducted by a Virginia State Bar investigator on February 12, 2002, the Respondent stated that he did not respond to the Bar Complaint because he did not have the time.

30. Aggravating factors recognized by the ABA include the following:

a. a prior disciplinary offense; and

b. a pattern of misconduct.

31. Mitigating factors recognized by the ABA include the following:

a. absence of a dishonest or selfish motive;

2. full and free disclosure to the Disciplinary Board and cooperative attitude toward these proceedings; and

3. remorse.

The Board finds by clear and convincing evidence that such conduct on the part of Francis Douglas Foord, Esquire, constitutes a violation of the following Disciplinary Rules of the revised Virginia Code of Professional Responsibility and of the Rules of Professional Conduct:

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.

(D) A lawyer shall inform his client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter.

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.

RULE 1.15 Safekeeping Property

(c) 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.

RULE 1.16 Declining Or Terminating Representation

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the Rules of Professional Conduct or other law[.]

 

RULE 8.1 Bar Admission And Disciplinary Matters

An applicant for admission to the bar, or a lawyer in connection with a bar admission application, in connection with any certification required to be filed as a condition of maintaining or renewing a license to practice law, in connection with a disciplinary matter, shall not:

(c) fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6; or

(d) obstruct a lawful investigation by an admissions or disciplinary authority.

RULE 8.4 Misconduct

It is professional misconduct for a lawyer to:

(b) commit a criminal or deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer; [or]

(c) engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation[.]

Upon consideration whereof, it is ORDERED that the Respondent's license to practice law in the Commonwealth of Virginia shall be suspended for a period of thirty (30) days, commencing on the 1st day of February, 2003; and it is further


ORDERED that pursuant to the provisions of Part Six, §IV, 13(M) of the Rules of the Supreme Court of Virginia, the Respondent shall give notice by certified mail, return receipt requested, of this suspension to all clients for whom he is 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 clients. The notice shall be given within fourteen (14) days of the effective date of his suspension and arrangements shall have been made within forty-five (45) days following the effective date of the suspension. Respondent shall also furnish proof to the Bar within sixty (60) days following the effective date of his suspension that such notices have been timely given and that such arrangements for the dispositions of matters have been 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. Respondent 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 the sixtieth (60th) day following the effective date of his suspension; and it is further

ORDERED that pursuant to Part Six, § IV, 13(B)(8)(c) of the Rules of the Supreme Court, the Clerk of the Disciplinary System shall assess costs against the Respondent.

The court reporter for this proceeding was Terry Griffith, Chandler & Halasz, Registered Professional Reporters, P. O. Box 9349, Richmond, VA 23227, telephone number (804) 730-1222.

It is further ORDERED that a copy teste of this Order shall be mailed by Certified Mail, Return Receipt Requested, to Francis Douglas Foord, at his address of record with the Virginia State Bar, Office of Public Defender, Suite 300, 2300 Fall Hill Avenue, Fredericksburg, VA 22401 and by first class, regular mail, to Seth M. Guggenheim, Assistant Bar Counsel, 100 North Pitt Street, Suite 310, Alexandria, VA 22314-3133.

ENTERED this _____›day of ___________________________, _______.


VIRGINIA STATE BAR DISCIPLINARY BOARD

______________________________________

Roscoe B. Stephenson, III, 1st Vice-Chair