VIRGINIA:

BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

IN THE MATTER OF ROBERT EDWARD HOWARD

VSB Docket Nos. 04-000-0025
04-000-0026
04-000-0027

DISSENT


I respectfully dissent from the result in this case. I do so with utmost respect for my colleagues on this panel, with deep appreciation for their thoughtful consideration in this case, and with recognition of the value of the Board's tradition of energetic debate followed by resolution by consensus. Nevertheless, I feel that the Respondent here failed to show good cause why his license should not be revoked, and the particular circumstances of this case compel me to register my disagreement with the result.

This case arose upon Respondent's stipulation that he

engaged in false, fraudulent, misleading, or deceptive advertising;
committed a deliberately wrongful act that reflected adversely on his fitness to practice law;
aided a nonlawyer in the unauthorized practice of law;
permitted a nonlawyer staff member to counsel clients about legal matters; and
failed to properly supervise a nonlawyer staff member.

The facts stipulated to show these violations involved the payment, by non-English speaking clients drawn to Respondent's law office by misleading advertisements in newspapers published in their native languages, of thousands of dollars in legal fees for inapplicable and inappropriate immigration procedures; and the theft of $4,000 from one client by the unsupervised staff member.

In another case, Respondent failed to pay a translator's bill. A judgment was obtained, but was released on Respondent's assurance of payment. Respondent then tendered a worthless check, which, despite correspondence demanding payment, was made good only after a criminal warrant issued for Respondent's arrest.

It was on these stipulated facts and admitted violations of the Code of Professional Responsibility that Respondent was disciplined. Facing a hearing before the Board, he chose to enter into an agreed disposition. The negotiated terms provided for a 60-day suspension of his license, restitution to the misled and ill-served clients of some money, and Respondent's attendance at 12 hours of continuing legal education on the topic of ethics. The requirements for certification of compliance with these terms were spelled out in explicit, unequivocal language in the Order of Suspension to which Respondent consented.

Just as clearly set forth was the alternative to compliance. "If the Respondent fails to comply with any of the terms set forth in the preceding Paragraphs 1 through 4, inclusive [the paragraphs specifying the terms Respondent agreed to fulfill] in the manner and at the time compliance with any such term is required, then, and in such event, the Virginia State Bar Disciplinary Board shall, as an alternative disposition to any discipline otherwise imposed by the Board, REVOKE the Respondent's license to practice law in the Commonwealth of Virginia." [emphasis added]

The Respondent did not comply with all the terms. He conceded as much before us at the hearing on July 25, 2003. One of the terms of disposition required Respondent to complete 12 hours of CLE in ethics courses by December 31, 2002, (without seeking MCLE credit for such courses) and certify compliance to Seth M. Guggenheim, Assistant Bar Counsel. Mr. Guggenheim's address was set out in the Order. The form for use in making this certification was specified. Respondent chose not to comply. Instead, prior to December 31, 2003, (Respondent was conscious of the deadline in Paragraph 4 of the Order) he sent some MCLE forms (listing fewer than 12 hours in credits) to the MCLE office where the credits were routinely added to his account.

When, in June, 2003, Mr. Guggenheim wrote the Respondent pointing out his failure to comply and setting a date by which a response was desired, Respondent waited beyond that date and then sent a letter suggesting that the MCLE office had somehow failed to properly record his course attendance. Even when confronted with a Show Cause Order setting a hearing as to why his license should not be revoked, Respondent made no further response. He arrived at the hearing with a raft of papers he claims reflect that he actually did take the required number of CLE credits. For purposes of this dissent, I assume that representation, made under oath, to be accurate.

Respondent did not, however, offer any acceptable explanation as to why he did not send the requisite forms to Mr. Guggenheim either by the date set in the agreed order, by the date specified in the June reminder letter, nor on any date prior to the date set to show cause why his license should not be revoked. Under oath, Respondent stated that he just did not think that strict compliance was that important. He argued, and the Board's decision in this case accepts, that substantial compliance with the course attendance requirement was adequate, notwithstanding Respondent's disregard of the certification obligation to which he agreed. The Board's opinion apparently proceeds from the premise that revocation is too Draconian a remedy to be imposed for what is essentially an administrative or bookkeeping error.

This member of the panel believes that premise to be inapposite to the facts of this case. I believe that the Board previously reviewed the admitted conduct of Respondent involving criminal conduct, fraud on vulnerable clients and dereliction of responsibility contributing to theft from one of those clients, and found revocation to be an appropriate sanction for that conduct. Respondent agreed to accept that sanction as an alternative to be imposed unless Respondent faithfully complied with clearly recited terms. Respondent then chose not to comply with those terms, but to substitute what he considered to be, in his personal view, acceptable alternative compliance.

I believe the result could give the impression that strict compliance with the terms of an alternative lesser sanction is not necessary. It might also be misread as suggesting that a show cause hearing is an invitation to revisit the terms of the Board's prior disposition of a matter. In my view, unless a respondent can demonstrate, by clear and convincing evidence, an unequivocal intent and effort to fully meet the terms of the prior order, that circumstances beyond that lawyer's control frustrated or prevented fulfillment of the terms, or that other relevant circumstances have changed, the judgment of the first panel as to the correct alternative ought to be imposed.

I would revoke Respondent's license. Thaddeus T. Crump joins in this dissent.



Peter A. Dingman


Thaddeus T. Crump