BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD
IN THE MATTER OF VSB DOCKET NO. 95-102-0946
RICHARD ALLEN FRYE
ORDER ON SHOW CAUSE NOTICE AND
MOTION TO IMPOSE ALTERNATIVE SANCTION
On January 26, 2001, this matter came before the Disciplinary Board, consisting of, Donna A. DeCorleto, Robert E. Eicher, Karen A. Gould, Robert E. Freed and John A. Dezio, Second Vice Chair, on a Notice to Show Cause and Motion to Impose Alternative Sanction against Richard A. Frye.
The Respondent, Richard A. Frye, did not appear either personally or by a representative, although the Board finds that he was given proper notice of these proceedings. Richard E. Slaney, Assistant Bar Counsel, appeared for the Virginia State Bar ("VSB"). The hearing was transcribed by Victoria Halasz, Court Reporter, Chandler & Halasz, P.O. Box 9349, Richmond, VA 23227, telephone (804)730-1222.
This matter is governed by Rule 13(C) of the Rules of Court, Part Six, Section IV and Rule IV(D)(11) of the VSB Disciplinary Board's Rules of Procedure. The issue before the Board was whether Respondent had fulfilled the Terms imposed by the 1998 Order of the Disciplinary Board in this matter. It was Respondent's burden to prove by clear and convincing evidence that he had complied with the Terms imposed. If he failed to meet that burden, then, pursuant to the Terms of the Board's 1998 Order, the sanction of revocation of Respondent's license to practice law in the Commonwealth of Virginia would be imposed.
The undisputed evidence in this matter is as follows:
1. On November 25, 1998, the Disciplinary Board entered an Order in this matter. The Order accepted an Agreed Disposition, which was attached to the Order and incorporated therein by reference. It was admitted at the hearing of this matter as Exhibit A. The Order was duly served upon the Respondent, Richard Allen Frye (Mr. Frye), by certified mail sent from the Disciplinary System's Clerks Office on December 1, 1998.
2. By letter dated October 12, 2000, counsel for the Virginia State Bar (the Bar) wrote David Ross Rosenfeld (Mr. Rosenfeld), counsel of record for Mr. Frye, seeking proof that Mr. Frye had fulfilled the requirements of Terms numbered 3 through 9 inclusive, as set forth in the Agreed Disposition. This letter was admitted as Exhibit B.
3. By letter dated October 25, 2000, Mr. Rosenfeld advised he was no longer representing Mr. Frye and stated he forwarded a copy of Exhibit B to Mr. Frye for response. This letter was admitted as Exhibit C.
4. On November 29, 2000, counsel for the Bar wrote Mr. Frye directly, seeking any information regarding his compliance with the terms imposed. This letter was admitted as Exhibit D.
5. The Bar never received any of the reports required under the Agreed Disposition and Order; and, specifically, did not receive any quarterly reports from Mr. Frye's certified public accountant (Term 5 of the Agreed Disposition), did not receive any quarterly reports from Mr. Frye's mentor (Term 7 of the Agreed Disposition), and did not receive any quarterly reports from Mr. Frye's treating physician or therapist (Term 9 of the Agreed Disposition). The Bar also did not receive any response from Mr. Frye to the letters described above in paragraphs 2 and 4 above (Exhibits B and D).
6. The Agreed Disposition calls for "strict compliance with the terms set forthÖ." Mr. Frye has failed to comply with Terms numbered 5, 7 and 9 of the Agreed Disposition, as incorporated into the Board's November 25, 1998 Order.
7. The terms of the Agreed Disposition provided that:
[I]n the event that it is formally alleged by the Virginia State Bar that [Mr. Frye] has violated any of the foregoing terms, then his license to practice shall be summarily suspended and reinstated only when it is determined at said Show Cause hearing that in fact no violation occurred. The revocation of Respondent's license to practice law shall be in addition to any other sanction imposed for misconduct during the probationary period.
(Exhibit A, Agreed Disposition at 9.) The Agreed Disposition further provided that "[i]f at any time during the four year probationary period Respondent violates any one of the following terms, then Respondent's license to practice law shall be revoked." (Exhibit A, Agreed Disposition at 7.)
WHEREFORE, it is ORDERED that Mr. Frye's license to practice law in the Commonwealth of Virginia is hereby revoked, as called for in the Agreed Disposition and the Board's Order of November 25, 1998 accepting and incorporating the Agreed Disposition.
IT IS FURTHER ORDERED, pursuant to the provisions of Part 6, ß IV, 13 (K)(1) of the Rules of the Supreme Court of Virginia, as applicable, that Respondent shall forthwith give notice by certified mail, return receipt requested, of the revocation of his license to practice law in the Commonwealth of Virginia to any and all clients for whom he is currently handling matters and to all opposing counsel and presiding judges in any pending litigation in which he is involved. Respondent shall make appropriate arrangements, as applicable, for the disposition of matters then in his care conforming to the wishes of his clients.
Respondent shall give notice within fourteen days of the effective date of the revocation order, and shall make such arrangements, as are required herein within forty-five days of the effective date of the revocation order that such notices have been timely given and such arrangements for the disposition of matters made; all issues concerning the adequacy of the notice and arrangements required herein shall be determined by the Board; and it is
FURTHER ORDERED that Respondent, Richard A. Frye, shall, as appropriate, furnish true copies of all letters noticing the revocation of his license to practice law, with the original return receipts for said notice letters, to the Clerk of the Disciplinary System, within sixty days of the effective date of the revocation; and it is
FURTHER ORDERED that the Clerk of the Disciplinary System send an attested and true copy of this Opinion and Order to Respondent, Richard A. Frye, by certified mail, return receipt requested, at his address of record with the Virginia State Bar, and to Barbara Williams, Bar Counsel, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219.
Victoria Halasz was the reporter for the hearing and transcribed the proceedings.
The Clerk of the Disciplinary System shall assess costs pursuant to Part 6, ß IV, 13(K)(10) of the Rules of the Virginia Supreme Court.
ENTER THIS ORDER THIS __ DAY OF ______________, 2001
VIRGINIA STATE BAR DISCIPLNARY BOARD
John A. Dezio
Second Vice Chair