V I R G I N I A:

BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD


IN THE MATTER OF MARK DOUGLAS HENSHAW, ESQUIRE

VSB Docket # 01-053-2861

O R D E R

This matter came on July 18, 2003, to be heard on the Agreed Disposition of the Virginia State Bar and the Respondent, based upon the Certification of a Fifth District-Section III Subcommittee. The Agreed Disposition was considered by a duly convened panel of the Virginia State Bar Disciplinary Board consisting of V. Max Beard, lay member, Ann N. Kathan, Esquire, Bruce T. Clark, Esquire, Janipher Winkfield Robinson, Esquire, and Roscoe B. Stephenson, III, Esquire, presiding.

Seth M. Guggenheim, Esquire, representing the Bar, and the Respondent, Mark Douglas Henshaw, Esquire, represented by Glenn H. Silver, Esquire, presented an endorsed Agreed Disposition, dated July 8, 2003, reflecting the terms of the Agreed Disposition. The court reporter for the proceeding was Valerie Schmidt, Chandler & Halasz, Richmond, Virginia 23227, telephone (804) 730-1222.

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, Mark Douglas Henshaw, Esquire (hereafter "Respondent"), has been an attorney licensed to practice law in the Commonwealth of Virginia.

2. In or around the summer of 2000, Ms. Michelle Hamburg (then known as Michelle Lorusso) retained the Respondent for a flat fee of $2,000.00 to collect sums due Ms. Hamburg (hereafter "Complainant") from an individual to whom she had made loans.

3. In the months immediately following his retention by the Complainant, the Respondent took little or no action on the Complainant's behalf, despite his advice at the inception of the representation that the prompt filing of litigation, without prior notice to the debtor, was the best course so as to minimize the debtor's opportunity to hide assets.

4. In October, 2000, the Respondent informed the Complainant that he had filed her case, and that the sheriff's department would serve the suit papers. Thereafter, the Respondent informed the Complainant that the sheriff had been unsuccessful in serving the suit papers, and that service of the suit might have to be made by a private process server.

5. The Complainant supplied the Respondent with a public location and time on February 5, 2001, at which the defendant could be served by a private process server. On February 9, 2001, the Respondent called the Complainant and informed her that the defendant had been served by the private process server whom he had engaged for that purpose. He also informed her that the defendant would have the opportunity to answer the suit and that a trial date would be likely set for March or April of 2001.

6. After the passage of approximately two weeks from the February 9, 2001, conversation, the Complainant contacted the Respondent and asked for more information concerning the status of her lawsuit. Not satisfied with the Respondent's answers to her inquiries, the Complainant requested that she be provided with copies of all documents related to her case.

7. The Respondent asked the Complainant why she needed the requested documents, and she replied that she wanted to see proof of the Respondent's work. He promised to send out the requested copies at the beginning of the following week, and he called the Complainant on Monday of the following week and stated that the documents had been mailed.

8. The Complainant did not receive the requested documents by mail, as promised, and contacted the Respondent who stated that he would check with his secretary and call the Complainant back. When the Respondent did not call the Complainant back, she attempted without success to reach him by phone for a period of almost one week. When the Complainant reached the Respondent on Friday, March 9, 2001, she insisted on personally picking up the documents related to her case from the Respondent at his office over the weekend. The Respondent initially agreed, and then canceled the meeting.

9. On Monday, March 12, 2001, the Respondent called the Complainant to advise that he would be faxing her the requested documents. During that conversation, in response to Complainant's inquiries about the documents she would be receiving, the Respondent denied that he had ever stated to her that the sheriff had attempted service of process. He further stated that he was unsure if the defendant had been served by the private process server on February 5, 2001.

10. Following her telephone conversation with the Respondent on March 12, 2001, the Complainant and her friend independently checked with the clerk of the court in which the Complainant's suit was allegedly pending. Each was told by the clerk's office that no record of any such suit existed. The Complainant thereafter confronted the Respondent, who claimed that it must be a "mistake" and that the Complainant should again check with the clerk's office. He did not tell the Complainant that he had filed the suit in question that very morning.

11. The Complainant thereafter stated an intention to bring these matters to the attention of the Virginia State Bar; whereupon, the Respondent offered to return the Complainant's legal fees; admitted that he had never had the defendant served; and promised to handle her case at no charge.

12. The Complainant thereafter discharged the Respondent and he promptly returned the Complainant's documents and refunded her legal fees. He further took care to assure that Complainant's case would not be further prejudiced.

13. The investigation conducted by the Virginia State Bar revealed that the suit filed on Complainant's behalf was filed on March 12, 2001. During the investigation, the Respondent represented to a Virginia State Bar investigator during an interview conducted on February 25, 2003, that:

a. It was his and the Complainant's agreed strategy that the defendant would be served by special process server with pleadings in a lawsuit that had not been filed, in an attempt reach an out-of-court settlement;

b. He had informed the Complainant on the morning of March 12, 2001, that he had only filed suit on that morning;

c. The Complainant was aware of and in agreement with everything that he had done; and

d. He had at no time ever lied to or intentionally misled the Complainant.

14. Although the Respondent did concede to the Virginia State Bar investigator during the interview that he failed to communicate properly with the Complaint and to give her case the attention it deserved, his statements to the investigator as set forth in Paragraphs 13a through d, inclusive, hereof, were themselves deliberate misrepresentations of the truth.

15. Respondent's statements to the Complainant that he had filed suit as of October, 2000; that the sheriff was unsuccessful in effecting service; that a special process server was successful in serving process on February 5, 2001; that he had never told her that the sheriff's office was unsuccessful in serving process; and that documents related to her case had been mailed to her were deliberate misrepresentations of the truth.

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

a. absence of a prior disciplinary record;

b. character or reputation; and

Upon consideration whereof, it is ORDERED that:


The Respondent's license to practice law in the Commonwealth of Virginia be, and the same hereby is, suspended for a period of thirty (30) days, to commence on August 14, 2003, as representing an appropriate sanction if this matter were to be heard; and it is further

ORDERED that:

A. 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 be made within forty-five (45) days of the effective date of the suspension. Respondent shall also furnish proof to the Bar within sixty (60) days of 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, or, alternatively, by a three-judge circuit court, either of which tribunals may impose a sanction of revocation or additional 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
B. Pursuant to Part Six, IV, 13(B)(8)(c) of the Rules of the Supreme Court of Virginia, the Clerk of the Disciplinary System shall assess costs against the Respondent.

It is further ORDERED that a copy teste of this Order shall be mailed by Certified Mail, Return Receipt Requested, to the Respondent, at his address of record with the Virginia State Bar, Wells and Henshaw, Suite 202, 9253 Mosby Street, Manassas, VA 20110-5039, and by first class, regular mail, to Glenn H. Silver, Esquire, Respondent's counsel, Silver and Brown, PC, Suite 101, 1062 Jones Street, P.O. Box 1108, Fairfax, VA 22030, and to Seth M. Guggenheim, Assistant Bar Counsel, Virginia State Bar, 100 N. Pitt Street, Suite 310, Alexandria, Virginia 22314.

ENTERED this day of ___________________________, 2003.

_______________________________

Roscoe B. Stephenson, III, Chair

Virginia State Bar Disciplinary Board