VIRGINIA:

BEFORE THE SECOND DISTRICT COMMITTEE ­ SECTION I
OF THE VIRGINIA STATE BAR


IN THE MATTERS OF WILBER THURSTON HARVILLE
VSB Docket No. 04-021-1489 (Hunt)
VSB DOCKET No. 04-021-0737 (Hill)

DISTRICT COMMITTEE DETERMINATION
(PUBLIC REPRIMAND)

On October 14, 2004, a hearing in these matters was held before a duly convened panel from the Second District Committee ­ Section I, consisting of Croxton Gordon, Esquire, James Lang, Esquire, Mr. Kurt Rosenbach, (lay member), Donald Schultz, Esquire, S. Clark Daugherty, Esquire, Mr. Robert W. Carter, lay member, and Afshin Farashahi, Esquire, Chair presiding. The bar appeared by its Assistant Bar Counsel Paul D. Georgiadis. The Respondent, Wilber Thurston Harville, was present and was represented by Andrew A. Protogyrou.
Pursuant to Virginia Supreme Court Rules of Court Part Six, Section IV, Paragraph 13(H)(2)(l)(2)(d), the Second District Committee - Section I of the Virginia State Bar hereby serves upon the Respondent, Wilber Thurston Harville, the following Public Reprimand.
VSB Docket No. 04-021-1489 (Hunt)
I. FINDINGS OF FACT
On or about August 7, 2002, Wilber Thurston Harville, hereinafter Respondent, was retained by Richard Hunt to represent him in a dispute with a credit card company by filing suit against the company, following Respondent's initial review and initial informal action in this regard in June, 2001.
When Mr. Hunt retained Respondent, Mr. Hunt paid Respondent $750.00 as an advance payment toward legal fees. Respondent indicated on his retainer agreement that the $750.00 was accepted as a "deposit". Respondent did not deposit said $750.00 into his escrow account, but rather deposited it into his operating account and spent it.
When Mr. Hunt retained Respondent on August 7, 2002, Respondent advised that he would complete the preparation of the Motion for Judgement within a few weeks. Notwithstanding this understanding, Respondent did not complete the drafting and filing of the Motion for Judgement until December 10, 2002.
After contacting Respondent several times during the ensuing months to learn the status of the matter, Mr. Hunt went to Respondent's office in early December, 2002 to meet with Respondent regarding the delay in the drafting and filing of the motion for judgement. Arriving at Respondent's office, Mr. Hunt found Respondent's office locked and dark, although it was during normal business hours. Returning to the office a few days later during business hours, Mr. Hunt found the office empty, with no signs of occupancy.
Respondent had moved over the weekend of Thanksgiving and had failed to notify Mr. Hunt of his move and of his new office address.
6. Mr. Hunt located Respondent by telephoning Respondent at his residence. Mr. Hunt advised Respondent that he was terminating Respondent. Respondent asked that he be given more time; Mr. Hunt agreed and Respondent thereafter filed a motion for judgement on December 10, 2002.

Upon Mr. Hunt's receipt of a copy of the motion for judgement on or about December 23, 2002, Mr. Hunt terminated Respondent.
During the approximately four months of the representation, all communications commenced from Mr. Hunts efforts. At no time did Respondent initiate communications with Mr. Hunt.
After terminating Respondent, Mr. Hunt telephoned Respondent and left a message requesting a partial refund of $500.00, with Respondent keeping $250.00 for his work to-date. Respondent not only failed to issue any refund, but failed to respond in any fashion to Mr. Hunt's message, including failing to acknowledge it or provide any accounting of fees charged against the $750.00 advance payment.
Thereafter, Mr. Hunt filed suit against Respondent for the return of his $750.00 advance payment.
From January 27, 2003-April 18, 2003, Respondent repeatedly thwarted service of process by avoiding service attempts at his address of record by both the Sheriff's office and a private process server on over 16 instances, including failing to respond to written and voice-mail messages that the Sheriff and the process server were attempting to serve him. During this time, Respondent had notice of the outstanding warrant in debt. This resulted in Mr. Hunt having to dismiss his action and re-file the warrant in debt against Respondent.
On the return date of July 2, 2003, Respondent appeared in Chesapeake General District Count and offered to settle Mr. Hunt's claim for a refund in exchange for Mr. Hunt's dismissal of the pending action. Respondent drafted and executed a settlement agreement calling for Respondent to pay Mr. Hunt $804.00 by August 2, 2003 and for Respondent to non-suit the pending circuit court action he had filed for Mr. Hunt on December 10, 2002.
Although Mr. Hunt dismissed the pending action against Respondent, Respondent did not pay Mr. Hunt. After agreeing to grant Respondent an additional two weeks to pay him, Mr. Hunt filed suit again against Respondent. On September 22, 2003, Mr. Hunt obtained a default judgement against Respondent.
After Mr. Hunt filed this instant bar complaint and after the subcommittee of the Second District Committee­Section I had referred this matter for a full district committee hearing, Respondent paid Hunt in full on or about June 4, 2004.
Respondent has not non-suited the Circuit Court action he filed on behalf of Mr. Hunt.
II. NATURE OF MISCONDUCT
Such conduct on the part of Respondent constitutes misconduct in violation of the following Rules of the Virginia Rules of Professional Conduct:
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.
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:
(1) funds reasonably sufficient to pay service or other charges or fees imposed by the financial institution may be deposited therein; or
(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 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 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; VSB DOCKET No. 04-021-0737 (Hill)
III. FINDINGS OF FACT
On or before July 23, 1998, Wilber Thurston Harville, hereinafter Respondent, was retained by Ruth Hill to represent her son Lloyd Hill on criminal charges pending in the Circuit Court of the City of Suffolk.
Following the entry of a guilty plea, Lloyd Hill was sentenced on August 20, 1999 to serve a prison term of 45 years. At the request of Lloyd Hill's mother, Mrs. Ruth E. Hill, Respondent thereafter agreed to appeal the matter.
On September 20, 1999, Respondent filed a Notice of Appeal. In the accompanying Certificate, Respondent stated that he had been appointed by the Court to represent the appellant, and therefore the filing fee for the appeal was waived. In fact, Respondent was never appointed on the appeal. Respondent did not accompany the Notice of Appeal with the required filing fee.
On October 21, 1999, Respondent filed a motion for extension of time to file the transcript in the appeal, one day after the deadline for requesting an extension had expired.
By order dated October 22, 1999, the Court of Appeals denied said motion for extension as not timely filed.
On December 14, 1999, the Clerk's Office of the Court of Appeals wrote Respondent advising that a filing fee of $25.00 was due by December 27, 1999 or else the appeal would be dismissed.
On December 30, 1999, the Court of Appeals dismissed the appeal for Respondent's failure to file a filing fee as requested.
Respondent did not ever advise Lloyd Hill of the dismissal of his appeal by the Virginia Court of Appeals, although he contends­and Mrs. Ruth E. Hill denies, that he advised Mrs. Ruth E. Hill of the denial of the appeal.
IV. NATURE OF MISCONDUCT
Such conduct on the part of Respondent constitutes misconduct in violation of the following Rules of the Virginia Rules of Professional Conduct:
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.
Although the bar alleged a violation of Rule 1.16(c), the Committee found that the bar failed to present clear and convincing evidence of such and dismissed the Rule violation.
V. IMPOSITION OF PUBLIC REPRIMAND
Accordingly, it is the decision of the Committee to impose a Public Reprimand on the Respondent, Wilber Thurston Harville, and he is so reprimanded.
Pursuant to Virginia Supreme Court Rules of Court Part 6, Section IV, ¶ 13(B)(8)(c), the Clerk of the Disciplinary System shall assess costs. SECOND DISTRICT COMMITTEE - SECTION I
OF THE VIRGINIA STATE BAR



By:
Afshin Farashahi
Chair Presiding

CERTIFICATE OF SERVICE

I certify I have this the _____ day of _________________, 2004, mailed by CERTIFIED MAIL, RETURN RECEIPT REQUESTED, a true and correct copy of the District Committee Determination (Public Reprimand) to the Respondent, Wilber Thurston Harville, Esquire
Suite 600, One Columbus Center, Virginia Beach, Virginia 23462 , his last address of record with the Virginia State Bar, and via First Class U.S. Mail, Postage Pre-paid, to Respondent's counsel, Andrew A. Protogyrou, Esquire, Protogyrou & Rigney, P.L.C, P.O. Box 3205, Norfolk, VA 23514.

__________________________________
Paul D. Georgiadis
Assistant Bar Counsel