VIRGINIA:
BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

IN THE MATTERS OF
MICHAEL WILLS CULLINAN HARRIS

VSB DOCKET NOS. 01-032-0041 [LYNCH]
01-032-0042 [SCOTT]
01-032-0605 [JEFFERSON]
01-032-1084 [GARDNER]

ORDER OF DISABILITY SUSPENSION

THESE MATTERS CAME ON TO BE HEARD, on November 15, 2001, before a duly convened panel of this Board consisting of Chester J. Cahoon, Jr., Lay Member; Henry P. Custis Esq.; Peter A. Dingman, Esq.; Robert L. Freed, Esq. and John A. Dezio, Esq., Vice Chair, presiding. The panel met by telephone conference call.


Deputy Bar Counsel Harry M. Hirsch appeared on behalf of the Virginia State Bar. Michael L. Rigsby appeared on behalf of the Respondent, Michael Wills Cullinan Harris, who was not present.


The chair asked each member of the panel to indicate whether there was any personal or financial reason which would prevent any member from being able to act fairly and impartially as a member of the panel in deciding these cases. Each member of the panel responded negatively. Mr. Freed also disclosed certain facts which did not prevent him from being able to act fairly and impartially as a member of the panel in deciding these cases.


Upon consideration of the Subcommittee Determination (Certification) of the Third District Subcommittee, Section Two, and the Agreed Disposition presented by the parties, the Board approves the Agreed Disposition.


I. FINDINGS OF FACTS:

Accordingly, the Board makes the following findings of fact by clear and convincing evidence:

1. At all times relevant hereto the Respondent, Michael Wills Cullinan Harris [Harris], was an attorney licensed and authorized to practice law in the Commonwealth of Virginia. As of February 12, 2001, Harris' membership status with the Virginia State Bar is "associate" member; an associate member of the bar is not authorized to practice law in the Commonwealth of Virginia. The respondent would state if called to testify that he voluntarily changed his membership status upon the advice of his healthcare professionals.


VSB Docket No. 01-032-0041 [Lynch]:

2. On or about March 9, 2000, Complainant Sean Lynch [Lynch] and his wife met with Harris and asked him to prepare a last will and testament for each of them. Harris agreed to do so for a total fee of $400.00, payable in an immediate payment of $200.00 with the remaining $200.00 payable upon completion of the representation. Lynch and his wife paid Harris $200.00 that day and gave Harris information necessary in order to draft the wills.

3. Harris deposited the $200.00 into his operating account at Wachovia Bank on March 10, 2000.

4. After Lynch received drafts of the two wills by mail, he reviewed the drafts and called and spoke to Harris on or about April 17, 2000. In the telephone call, Lynch informed Harris of the existence of errors and that he was sending the drafts back to Harris with notations of the needed changes so corrected wills could be produced.

5. In his response to the bar, Harris indicated that he had had a telephone conversation with Lynch's wife on or about April 17, 2000 in which Ms. Lynch told Harris that there were errors in the wills. If called to testify, Lynch would deny that Harris talked with his wife at any time other than during the initial appointment.

6. Harris told the bar that he had mailed corrected wills to Lynch and his wife on May 14, 2000. If called to testify, Lynch and his wife would deny this.

7. Harris indicated to the bar that he had had a telephone conversation with Lynch on or about June 16, 2000, and Lynch had asked for a $150.00 refund. According to Harris, he told Lynch that he felt he had earned more than $50.00. If called to testify, Lynch would deny asking only for a $150.00 refund; instead, Lynch would state that he asked Harris why they had not received corrected wills and since Harris responded vaguely, Lynch asked for the return of the money paid; and in response, Harris stated that was not possible.

8. Neither Lynch nor his wife received any refund of funds paid to Harris. If called to testify, Lynch would state that neither he nor his wife received corrected wills from Harris.

VSB Docket No. 01-032-0042 [Scott]:

9. On or about March 8, 2000, Complainant Hylton B. Scott [Scott] and his wife met with Harris to obtain his services to prepare a last will and testament for each of them. Harris agreed to do so for an agreed upon fee of $400.00. Scott paid Harris $200.00 on March 8, 2000. If called to testify, Scott and/or his wife would state that Harris agreed that the balance of $200.00 was to be paid upon completion; and Harris told the Scotts that he would get draft documents to them within a week.

10. The Scotts received draft documents on or about April 17, 2000 from Harris. If called to testify, Scott would state that he had tried to reach Harris by telephone and unsuccessfully left approximately four telephone messages for Harris.

11. If called to testify, the Scotts would state that when they reviewed the drafts they became very concerned that the documents did not appear to be consistent with what they had told Harris on March 8, 2000, and the drafts contained the names of individuals who were unknown to the Scotts. If called to testify, Harris would deny the facts stated in this paragraph.

12. Scott called Harris and told him of the mistakes and that Scott would be sending the drafts back to Harris with notations of the errors so that Harris could correct the errors.

13. If called to testify, Scott would state that after a few weeks had passed since he had forwarded the drafts with noted errors back to Harris for revision, and having received no information from Harris, Scott again began calling Harris about twice a week; that Harris did not return the calls; that on the few occasions in which Scott was able to get through to Harris, Harris would indicate that he was with a client, or he was working on the revisions and he would mail them out the next day. If called to testify, Harris would deny the facts in this paragraph.

14. If called to testify, Scott would state that on or about June 19, 2000, Scott spoke with Harris who told him he had mailed the corrected wills to him that morning; that Harris never mentioned having mailed revised wills to him in May as indicated by Harris in his written response to the bar complaint; that in the conversation Scott asked for a refund of funds paid; and that Harris indicated to Scott that he would do so but did not know how much the refund would be and asked Scott to call back later.

15. On or about June 23, 2000, Scott called Harris again because he had not received the corrected wills. On this date, Scott again asked Harris for a refund and Harris indicated that would not be possible. Scott asked Harris what he was going to do to rectify the matter and Harris replied that he did not know and hung up the phone. According to Harris, he "told [Scott] that [he] was not able to talk with him anymore about it and [he] hung up the telephone".

16. Harris admits that he deposited the $200.00 into his operating account at Wachovia Bank on March 10, 2000.

17. If called to testify, Scott and/or his wife would state that they retained another attorney to write two wills for them, paying the new attorney a fee of $450.00.

18. Harris never returned any part of the funds paid to him by the Scotts. If called to testify, Scott and/or his wife would state that they never received revised wills from Harris.

VSB Docket No. 01-032-0605 [Jefferson]:

19. On or about March 31, 1999, Complainant Aubrey Jefferson [Jefferson], was sentenced for convictions of murder, conspiracy to commit murder, use of a firearm in the commission of a felony and conspiracy to use a firearm in the commission of a felony. Harris was court-appointed to represent Jefferson as trial counsel and as appellate counsel.

20. In an October 29, 2001 deposition in the instant bar case, Jefferson testified that after talking with Harris about the appeal on the date of his sentencing, Jefferson had no further communication with Harris and received no documents from Harris. Harris appealed the convictions to the Virginia Court of Appeals. If called to testify, Harris would state that he made copies of the notice of appeal that he was filing, which he provided at the sentencing hearing, both to his client, Mr. Jefferson, and to the Commonwealth's Attorney.

21. Harris did not send Jefferson a copy of the petition for appeal which he filed in the Virginia Court of Appeals. The Court of Appeals denied the petition by order entered August 19, 1999. Harris did not send Jefferson a copy of the Court of Appeals order or provide Jefferson any other notification of the denial of the petition for appeal. Harris did not appeal the case to the Virginia Supreme Court or take any other action in the Court of Appeals. If called to testify Harris would state that he did not send copies as he had already provided the notice of appeal to the defendant in person at the sentencing hearing; that both he and Mr. Jefferson were reluctant to pursue the appeal to the Supreme Court of Virginia; if the case were reversed and remanded, there was a possibility that Mr. Jefferson could be charged with capital murder.

22. According to Harris, on or about November 11, 1999, he received a telephone message from Juanita Jefferson, the mother of Jefferson, stating that they wished the case to be appealed. Harris returned the call by leaving a message indicating the case had been appealed. Harris admits that he did not include in that message the fact that the appeal had been denied.

23. According to Harris, on or about January 4, 2000, he received a telephone message from Tony Jefferson inquiring about the status of the appeal; Harris thought Tony Jefferson was perhaps a cousin of Jefferson. Harris returned the call by leaving a message with the information that the appeal had been denied on August 19, 1999.

24. In an October 29, 2001 deposition in the instant bar case, Jefferson testified that he found out about the denial of his appeal to the Virginia Court of Appeals after he wrote a letter to the Supreme Court of Virginia. The Supreme Court of Virginia received a letter from Jefferson on September 12, 2000. The Clerk sent Jefferson a reply letter dated September 13, 2000, informing him that his appeal had been refused by the Court of Appeals on August 19, 1999, that no notice of appeal had been filed in the Court of Appeals and that no timely petition for appeal had been filed with the Supreme Court of Virginia. In the reply letter the Clerk also referred Jefferson to Harris and sent Harris a copy of the letter.

25. Harris has informed bar Investigator Cam Moffatt that he does not know why he did not communicate with Jefferson about the denial of his appeal or why he did not appeal the case to the Supreme Court of Virginia.

26. If called to testify, Juanita Jefferson would state that she and her husband called Harris on several occasions to learn of the status of the appeal; that she was under the impression that Harris was pursuing the appeal and wanted to learn of its status; and that she learned of the denial of the appeal from Jefferson.

27. If called to testify, Juanita Jefferson would state that after the bar complaint was filed she obtained Jefferson's file from Harris.

28. An attorney who is court-appointed to appeal a criminal conviction has the duty to pursue the appeal through the Supreme Court of Virginia. Dodson v. Director, Dept. of Corrections, 233 Va. 303 91987), Kuzminski v. Commonwealth, 8 Va. App. 106 (1989), Virginia Legal Ethics Opinion 1005 (affirmed in Virginia Legal Ethics Opinion 1028).

VSB Docket No. 01-032-1084 [Gardner]:

29. On or about January 27, 2000, Complainant Nathan Gardner [Gardner] was sentenced on two convictions of operating a motor vehicle after having been declared a habitual offender, second or subsequent offense; the sentence was ten years in the Department of Corrections with eight years suspended. Harris was court appointed to represent Gardner at trial and on appeal.

30. Harris filed a notice of appeal on January 21, 2000. The date shown on the notice for the entry of the final judgment order of the circuit court was March 31, 1999, which was the sentencing date of Jefferson, not Gardner.

31. In or about May of 2000, Gardner was released on bond pending the outcome of his appeal. Gardner gave Harris an address and telephone number where he could be reached. Gardner called Harris twice to determine the status of his appeal and left Harris a telephone message in one of those calls. Harris did not call Gardner. If called to testify, Harris would state that Mr. Gardner advised Harris that the latter would be staying at the latter's prior residence upon making bond, for which both Harris and the court had been given a post office box mailing address; that no new telephone number was given at the time of the telephone conversation with Mr. Gardner while the latter was incarcerated.

32. The Court of Appeals denied the petition for appeal on July 12, 2000. Harris maintains that he sent a letter to Gardner dated July 17, 2000, which, inter alia, enclosed a copy of the Court of Appeals order.

33. On or about August 11, 2000, which was twenty-nine days after the denial of the appeal by the Court of Appeals and over six months after Gardner's sentencing, Harris filed a motion for a new trial in the Circuit Court of King and Queen County in which Harris stated that Gardner had been confused about his whereabouts on May 6, 1999, and that a new trial was requested on the basis that there are other witnesses who could testify as to Gardner's whereabouts on the offense date and that said witnesses can testify that Gardner was not operating a motor vehicle on that date. If called to testify, Harris would state that the motion for a new trial restates the facts admitted by Mr. Gardner in the latter's own letter to the King and Queen County Circuit Court; that he and Gardner spoke regarding the difficulty in the Supreme Court of Virginia granting an appeal where the defendant testified under oath and then recanted the testimony in a letter on file with the court where the defendant testified; that in the course of that conversation in May of 2000, Gardner wanted the testimony of his witnesses regarding his changed alibi to be heard by the Supreme Court of Virginia in considering his appeal, if his appeal to the Court of Appeals was denied; that Harris explained that this was not possible as such testimony was not presented at trial, and further explained that there would be a cost to Gardner associated with the new appeal as with the old; that Gardner expressed reservations about incurring more costs, stated that he would provide names and addresses in a timely fashion regarding a motion for a new trial so that his amended alibi evidence would be part of the record in this case.

34. In an October 10, 2001 deposition in the instant bar case, Gardner testified that in or about September of 2000, while Gardner was at work he was detained by a bondsman who informed him that his appeal had been denied and he had to be taken to jail; that Gardner called Harris and told him he had been arrested and asked Harris to appear at the show cause proceeding on bond revocation; that Gardner did not know of the denial of his appeal by the Court of Appeals until he was informed of that fact by the bondsman. If called to testify, Harris would state that Gardner acknowledged that Gardner's brother had advised Gardner that Gardner's appeal had been denied, but that the latter wanted Harris to call him rather than Gardner call Harris long distance.

35. On or about October 10, 2000, a hearing was held in which bond was revoked and the motion for a new trial was denied.

36. Harris maintains that he did not get an answer to his July 17, 2000, letter from Gardner and asked Gardner's brother to have Gardner contact him; that he filed the motion for a new trial when he did not hear from Gardner; that he did not receive any telephone messages or correspondence from Gardner during the time period from Gardner's release on bond to the date of the bond revocation/motion for new trial hearing.

37. An attorney who is court-appointed to appeal a criminal conviction has the duty to pursue the appeal through the Supreme Court of Virginia. Dodson v. Director, Dept. of Corrections, 233 Va. 303 91987), Kuzminski v. Commonwealth, 8 Va. App. 106 (1989), Virginia Legal Ethics Opinion 1005 (affirmed in Virginia Legal Ethics Opinion 1028). Harris did not appeal Gardner's convictions to the Supreme Court of Virginia.

 

II. DISCIPLINARY RULE VIOLATIONS:

The Board finds by clear and convincing evidence that such conduct on the part of Michael Wills Cullinan Harris constitutes misconduct in violation of the following provisions of the Virginia Code of Professional Responsibility and the Virginia Rules of Professional Conduct:

VSB Docket No. 01-032-0041 [Lynch]:
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.

RULE 1.15 Safekeeping Property
All funds received or held by a lawyer or law firm on behalf of a client, other than reimbursement of advances for costs and expenses, shall be deposited in one or more identifiable escrow accounts maintained at a financial institution in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
(a) funds reasonably sufficient to pay service or other charges or fees imposed by the financial institution may be deposited therein; or
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 it is 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.
(c) A lawyer shall:
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:
the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, refunding any advance payment of fee that has not been earned and handling records as indicated in paragraph (e).

VSB DOCKET NO. 01-032-0042 [SCOTT]:
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.

RULE 1.15 Safekeeping Property
(a) All funds received or held by a lawyer or law firm on behalf of a client, other than reimbursement of advances for costs and expenses, shall be deposited in one or more identifiable escrow accounts maintained at a financial institution in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
funds reasonably sufficient to pay service or other charges or fees imposed by the financial institution may be deposited therein; or
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 it is 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.
(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:
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, refunding any advance payment of fee that has not been earned and handling records as indicated in paragraph (e).

VSB DOCKET NO. 01-032-0605 [JEFFERSON]:
DR 2-108. Terminating Representation.
(A) Except as stated in paragraph (C), a lawyer shall withdraw from representing a client if:
(2) The lawyer's physical or mental condition materially impairs the lawyer from adequately representing the client; or
(D) Upon termination of representation, a lawyer shall take reasonable steps for the continued protection of a client's interests, including giving reasonable notice to the client, allowing time for employment of other counsel, delivering all papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by applicable law.
DR 6-101. Competence and Promptness.
(A) A lawyer shall undertake representation only in matters in which:
(1) The lawyer can act with competence and demonstrate the specific legal knowledge, skill, efficiency, and thoroughness in preparation employed in acceptable practice by lawyers undertaking similar matters, or
(2) The lawyer has associated with another lawyer who is competent in those matters.
(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.
DR 7-101. Representing a Client Zealously.
(A) A lawyer shall not intentionally:
(1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.
RULE 1.3 Diligence
(a) A lawyer shall act with reasonable diligence and promptness in representing a client.
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.

RULE 1.4 Communication

  1. A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
  2. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

VSB DOCKET NO. 01-032-1084 [GARDNER]:
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.
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.
RULE 1.16 Declining Or Terminating Representation
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:
the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or

 

III. DISPOSITION:

Upon consideration of the Agreed Disposition and evidence presented of the existence of a disability, the Board finds by clear and convincing evidence that Michael Wills Cullinan Harris suffers from a disability as set forth in Paragraphs 13(A) and (F), Part Six, Section IV, of the Rules of the Supreme Court of Virginia.
Accordingly, IT IS ORDERED that, effective November 15, 2001, the license of Michael Wills Cullinan Harris to practice law in the Commonwealth of Virginia is indefinitely suspended based upon the existence of a disability in accordance with Paragraph 13(F).

IT IS FURTHER ORDERED that the instant cases are dismissed without prejudice to the bar to bring these matters before the Board for the imposition of discipline based upon the facts and disciplinary rule violations stated in this Order after a future determination by the Board that the Respondent no longer suffers from a disability.

IT IS FURTHER ORDERED, pursuant to Part Six, Section IV, Paragraph 13(K)(1) of the Rules of the Supreme Court of Virginia, that Michael Wills Cullinan Harris shall forthwith give notice by certified mail, return receipt requested of the suspension of his license to practice law in the Commonwealth of Virginia to all clients for whom he is currently handling matters and to all opposing attorneys and presiding judges in pending litigation. He shall also make appropriate arrangements for the disposition of matters then in his care in conformity with the wishes of this clients. He shall give such notice within fourteen (14) days of the effective date of the suspension order and make such arrangements as are required herein within forty-five (45) days of the effective date of the suspension order. Michael Wills Cullinan Harris shall furnish proof to the bar within sixty (60) days of the effective date of the suspension order that such notices have been timely given and such arrangements for the disposition of matters made. Issues concerning the adequacy of the notice and arrangements required herein shall be determined by the Board, which may impose a sanction of revocation or suspension for failure to comply with the requirements of this paragraph.

IT IS FURTHER ORDERED, pursuant to Part Six, Section IV, Paragraph 13(K)(10) of the Rules of the Supreme Court of Virginia that the Clerk of the Disciplinary System shall not assess costs unless and until such time that the disability suspension is terminated and discipline is imposed.

IT IS FURTHER ORDERED that an attested copy of this Order shall be mailed by certified mail return receipt requested to the Respondent at his last address of record with the Virginia State Bar, Suite 500 B, 3108 North Parham Road, Richmond, VA 23294; an attested copy of this order shall be mailed to Michael L. Rigsby, Esq., Counsel for the Respondent; and a copy shall be hand-delivered to Deputy Bar Counsel Harry M. Hirsch.
VIRGINIA STATE BAR DISCIPLINARY BOARD

BY
John A. Dezio