VIRGINIA:

BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

IN THE MATTER OF ROBERT EDWARD HOWARD

VSB Docket Nos. 99-042-2586

00-042-0234

00-042-1889



ORDER OF SUSPENSION

On March 22, 2002 this matter came on for hearing upon certification by the Fourth District Committee, Section II, of the Virginia State Bar dated August 16, 2001. The hearing was held before a duly convened panel of the Virginia State Bar Disciplinary Board consisting of William M. Moffet, Chair, presiding, and James L. Banks, Jr., Thaddeus T. Crump, Karen A.Gould, and Roscoe B. Stephenson, III.

All notices required by law were sent by the Clerk of the Disciplinary System.

The Respondent appeared in person, pro se.

Seth M. Guggenheim, Esquire appeared as counsel for the Virginia State Bar.

Tracy J. Stroh, Chandler & Halasz, P.O. Box 9349, Richmond, VA 23227, (804) 730-1222, having been duly sworn, reported the hearing.

The Chair opened the hearing by polling all members of the panel as to whether there existed any conflict or other reason why any member should not sit on the panel. Each, including the Chair, responded in the negative.

The Virginia State Bar filed five exhibits which were received and accepted into the record without objection. They consist of: the Certification dated August 16, 2001 (VSB #1), the Answer to Certification filed by Respondent September 21, 2001 (VSB #2), a Stipulation (VSB #3), the Respondent's prior disciplinary record (VSB #4), and the advertisement at issue in these cases (VSB #5). The Respondent did not file any exhibits.

The facts and misconduct of the case were presented by way of a stipulation, VSB #4. In addition, the Respondent made a statement to the Board and answered questions. The Board also directed brief questions to the Virginia State Bar investigator. The Board adopted the stipulation of facts, as expanded by the Respondent's and the investigator's testimony, as its findings of fact, by clear and convincing evidence, and the Board adopted the stipulation of misconduct as its findings of misconduct. The stipulation is now set out verbatim and incorporated into this order:

STIPULATION

On this 14th day of February, 2002, come Seth M. Guggenheim, Esquire, counsel for the Virginia State Bar, and Respondent Robert Edward Howard, Esquire, and tender the following Stipulation:

A. STIPULATION OF FACTS

The parties stipulate that the following constitute facts which the Virginia State Bar shall be deemed to have proven in the referenced matters by clear and convincing evidence:

1. Beginning April 20, 1995, Robert Edward Howard, Esquire (hereafter "Respondent"), has been an attorney licensed to practice law in the Commonwealth of Virginia.

As to VSB Docket No. 99-042-2586:

2. At the time of the events referred to in Paragraphs 2 through 11, inclusive, hereof, Respondent's law firm of "Howard & Howard" was running an advertisement in the Vietnamese language in one or more Northern Virginia newspapers having circulation within the Vietnamese

community. The advertisement depicted by photograph Respondent, Ms. Janice L. Howard, and one Larry Nguyen, who was identified in Vietnamese as a legal assistant.

3. The advertisement referred to in Paragraph 2 stated that Howard & Howard "specialize[d]" in certain identified practice areas, among which was "Immigration, Sponsorship, Visitor's and Student's Visas."

4. At all times pertinent to the allegations contained in Paragraphs 2 through 11, inclusive, hereof, neither Respondent nor any other attorney employed by Respondent and/or his law firm either "specialized in" or even handled immigration matters, although Respondent had an attorney available to whom such matters might be referred.

5. In response to the advertisement referred to above, Tri Minh Nguyen (hereafter "Complainant No. 1") went to Respondent's office on or about March 29, 1995, and met with the legal assistant, Larry Nguyen, concerning Complainant No. 1's need to obtain immigration status adjustments on behalf of members of his family from "public interest parolees" to legal permanent residents. Complainant No. 1 was charged fees in the sum of $1,520.00. He paid the sum of $1,020.00 on the occasion of his visit, and returned to Respondent's office a few days thereafter and paid the remaining balance due.

6. The legal assistant, Larry Nguyen, thereafter informed Complainant No. 1 that he had to undergo an expensive application process. Complainant No. 1 spent additional sums totaling almost $1,500.00 in medical and application fees. Following his numerous calls made to Respondent's office, the legal assistant took Complainant No. 1 in December, 1996, to a lawyer in Washington, D.C., who charged Complainant No. 1 an additional $1,000.00. The legal assistant explained to Complainant No. 1 that the lawyer in charge of immigration in Respondent's office was "too slow" and the Washington, D.C., lawyer's involvement would expedite the processing of the immigration matters.

7. Approximately two more years elapsed following Complainant No. 1's payment to the Washington, D.C., lawyer, with no results. Then, Complainant No. 1 discovered via a Vietnamese-language article that the procedures that had been identified to him as necessary to effect his family's objectives were not the correct ones. Complainant No. 1 thereafter determined that his family members were not yet even eligible for the status adjustments for which he had paid Larry Nguyen. When Complainant No. 1 brought this to the attention of the Washington, D.C., attorney, the attorney made a full refund of the sums that had been paid to him.

8. Complainant No. 1 wrote a letter to Respondent on March 15, 1999, expressing specific areas of dissatisfaction with the legal services of Respondent's office, and requesting, among other things, case files and an accounting of the services that had allegedly been performed.

9. Respondent never replied directly to Complainant No. 1 in response to Complainant No. 1's letter of March 15, 1999. Instead, Respondent referred the matter to Larry Nguyen. Thereafter, Complainant No. 1 received a letter from "American International Consulting Group, Inc.," advising Complainant No. 1, among other things, that Respondent's law firm "was never retained for this particular case."

10. During the investigation of this matter conducted by the Virginia State Bar Respondent stated that he had no knowledge of Complainant No. 1's legal matters, and stated to the Virginia State Bar that inasmuch as Howard & Howard "did not have anyone on staff who specialized in handling immigration matters" it was the firm's policy "to refer such cases to other attorneys who did specialize in such matters." The investigation conducted by the Virginia State Bar elicited no evidence which suggests that Respondent had actual knowledge of the transactions occurring between Larry Nguyen and Complainant No. 1 at the time such transactions were occurring.

11. As of the time Complainant No. 1 filed a Complaint with the Virginia State Bar, Respondent had not been able to account to Complainant No. 1 as requested by Complainant No. 1, had made no refund of sums paid by Complainant No. 1 to Respondent's legal assistant, and had not indemnified Complainant No. 1 for sums expended by Complainant No. 1 in furtherance of the legal assistant's instructions that expensive, inappropriate, and inapplicable immigration procedures be followed.

As to VSB Docket No. 00-042-0234:

12. On or about March 18, 1996, Binh Trung Nguyen (hereafter "Complainant No. 2") went to Respondent's law offices to seek assistance in the application of a student visa for his niece in Vietnam. Complainant No. 2 was on that occasion greeted by legal assistant Larry Nguyen, who had a plaque on his desk containing the title "Manager." At the time of Complainant No. 2's visit, and at all pertinent times thereafter, neither Respondent nor any other attorney employed by Respondent and/or his law firm handled immigration matters, although Respondent had an attorney available to accept referrals of such matters.

13. On the occasion of the March 18, 1996, visit Complainant No. 2 paid the legal assistant a fee in the sum of $2,000.00. Complainant No. 2 understood from the legal assistant that Complainant No. 2 would be assisted in the procurement of a "Form I-20" and the filing of an "Affidavit of Support" on behalf of his niece.

14. In or around August, 1996, the legal assistant in Respondent's law office called Complainant No. 2 to the Respondent's law office, and asked for three checks totaling $10,250.00. Complainant No. 2 complied with the legal assistant's request, and delivered such checks, which were allegedly to defray college tuition and English as a Second Language classes for the niece in connection with the immigration matter.

15. Despite the Respondent's legal assistant's/"manager's" collection in Respondent's law office of sums aggregating $12,250.00 in connection with Complainant No. 2's niece's immigration matter, no positive results were achieved on behalf of the niece. In fact, Complainant No. 2 eventually determined that the processes identified to him by Respondent's legal assistant were inapplicable to and wholly inappropriate for an individual in the niece's circumstances.

16. Complainant No. 2 received a refund directly from the college in question of the college tuition that he had paid, but he has never received a promised refund from Respondent's legal assistant, who had converted to his own use $4,000.00 of Complainant No. 2's funds. To date, Complainant No. 2 has sustained unrecovered losses in this matter in the principal sum of $6,000.00, exclusive of interest and other substantial sums paid directly to third parties in furtherance of the niece's immigration matter.

17. On or about June 14, 1999, Complainant No. 2 sent Respondent a detailed letter explaining the unsatisfactory circumstances stemming from the engagement of Respondent's law office, through its legal assistant, to handle the immigration matter in question. Among other things, the letter requested an explanation as to certain fees paid by Complainant No. 2. Respondent never replied directly to Complainant No. 2's written inquiry. The investigation conducted by the Virginia State Bar elicited no evidence which suggests that Respondent had actual knowledge of the transactions occurring between Larry Nguyen and Complainant No. 2 at the time such transactions were occurring.

18. As of the time Complainant No. 2 filed a Complaint with the Virginia State Bar, Respondent had not been able to account to Complainant No. 2 as requested by Complainant No. 2, had made no refund of sums paid by Complainant No. 2 to Respondent's legal assistant, and had not indemnified Complainant No. 2 for sums expended by Complainant No. 2 in furtherance of the legal assistant's instructions that expensive, inappropriate, and inapplicable immigration procedures be followed.

As to VSB Docket No. 00-042-1889

19. In or around January, 1999, Michael Zogby, trading as MZ Translating & Interpreting Services, was engaged by Respondent to perform translation services during a trial in Arlington County, Virginia, in which Respondent participated.

20. Mr. Zogby rendered an invoice to Respondent in the sum of $245.00 for the services performed.

21. After the invoice remained unpaid by Respondent for approximately one year, Mr. Zogby filed suit and obtained a judgment against Respondent.

22. Thereafter, Respondent advised Mr. Zogby that if Mr. Zogby released the judgment Respondent would pay him immediately. Accordingly, Mr. Zogby advised the court that the judgment was satisfied, and Respondent mailed Mr. Zogby a check, dated December 6, 1999, signed by Respondent, and drawn on an account in the name of Howard & Howard, Attorneys at Law, in the sum of $245.00.

23. Respondent's check was subsequently returned to Mr. Zogby by reason of "insufficient funds." On or about December 21, 1999, Mr. Zogby's firm sent a certified letter to Respondent demanding that within five days following Respondent's receipt of the letter Respondent pay the principal amount of the check, together with a $5.00 returned check charge.

24. Notwithstanding Respondent's receipt of the certified letter, and telephone calls placed by or on behalf of Mr. Zogby to Respondent respecting the matter, Respondent did not make response.

25. Mr. Zogby reported the matter to the Fairfax County, Virginia, Police Department, which obtained authorization from the Commonwealth's Attorney's Office to procure a criminal warrant against Respondent charging him with issuing a worthless check.

26. After the warrant had been authorized, but before it had been procured, a Police Department detective contacted Respondent, who finally paid the debt due Mr. Zogby's firm.

B. STIPULATION OF MISCONDUCT

The parties stipulate that the aforementioned conduct on the part of the Respondent constitutes a violation of the following Disciplinary Rules of the Virginia Code of Professional Responsibility:

DR 1-102. Misconduct.

(A) A lawyer shall not:

(3) Commit a . . . deliberately wrongful act that reflects adversely on the lawyer's fitness to practice law.


DR 2-101. Publicity and Advertising.

(A) A lawyer shall not, on behalf of himself or any other lawyer affiliated with him or his firm, use or participate in the use of any form of public communication if such communication contains a false, fraudulent, misleading, or deceptive statement or claim. . . .


DR 3-101. Aiding Unauthorized Practice of Law.

(A) A lawyer shall not aid a nonlawyer in the unauthorized practice of law.



DR 3-104. Nonlawyer Personnel.

(A) A lawyer or law firm may employ nonlawyer personnel to perform delegated functions under the direct supervision of a licensed attorney, but shall not permit such nonlawyer personnel to:

(1) Counsel clients about legal matters[.]

(C) A lawyer or law firm that employs nonlawyer personnel shall exercise a high standard of care to assure compliance by the nonlawyer personnel with the applicable provisions of the Code of Professional Responsibility. The initial and the continuing relationship with the client must be the responsibility of the employing attorney.

(D) The delegated work of nonlawyer personnel shall be such that it will assist only the employing attorney and will be merged into the lawyer's completed product. The lawyer shall examine and be responsible for all work delegated to nonlawyer personnel.


C. STIPULATION REGARDING DISCIPLINE TO BE IMPOSED

Recognizing that the Virginia State Bar Disciplinary Board is not bound by a stipulation between the parties regarding any discipline to be imposed by the Board, the Virginia State Bar asserts that the following terms of discipline are appropriate under the circumstances, and the Respondent hereby agrees that, if such discipline is imposed, he consents to the imposition of the following terms, and waives any right to appeal he might otherwise have. The Respondent, however, reserves the right to appeal the imposition of discipline more severe than is set forth below.

1. Subject to the provisions of Paragraph 5 set forth below, the Respondent shall receive a suspension of his license to practice law in the Commonwealth of Virginia, for a term not to exceed sixty (60) days, with any such suspension to commence no earlier than April 1, 2002.

2. Respondent shall pay by certified, cashier's, or treasurer's check, made payable to the order of Tri Minh Nguyen, the principal sum of $3,020.00, with interest thereon at the rate of 9.0% per annum, from March 29, 1995, until paid. Such payment, inclusive of principal and all interest, shall be made by delivery of a check, as aforesaid, to Seth M. Guggenheim, Assistant Bar Counsel, 100 North Pitt Street, Suite 310, Alexandria, Virginia 22314-3133 no later than April 1, 2002.

3. Respondent shall pay by certified, cashier's, or treasurer's check, made payable to the order of Binh Trung Nguyen, the principal sum of $6,000.00, with interest thereon at the rate of 9.0% per annum, from August 13, 1996, until paid. Such payment, inclusive of principal and all interest, shall be made by delivery of a check, as aforesaid, to Seth M. Guggenheim, Assistant Bar Counsel, 100 North Pitt Street, Suite 310, Alexandria, Virginia 22314-3133 no later than April 1, 2002.

4. Respondent shall accrue at least twelve (12) ethics credit hours by enrolling in and attending Virginia State Bar approved Continuing Legal Education program(s) in ethics prior to December 31, 2002; Respondent's Continuing Legal Education attendance obligation set forth in this paragraph shall not be applied toward Respondent's Mandatory Continuing Legal Education requirement in Virginia and any other jurisdictions in which he may be licensed to practice law. Respondent shall certify his compliance with the terms set forth in this paragraph by delivering a fully and properly executed Virginia MCLE Board Certification of Attendance Form (Form 2) to Seth M. Guggenheim, Assistant Bar Counsel, at 100 North Pitt Street, Suite 310, Alexandria, Virginia 22314, promptly following his attendance of such CLE program(s).

5. If the Respondent fails to comply with any of the terms set forth in the preceding Paragraphs 1 through 4, inclusive, 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.

D. STIPULATION REGARDING CONDUCT OF HEARING

The parties further stipulate that:

1. The Virginia State Bar shall be permitted, if it be so advised, to present documentary and/or testimonial evidence, without objection by the Respondent on hearsay grounds, relevant to the matters set forth in this Stipulation, including the presentation of Respondent's disciplinary record.

2. The Respondent shall be permitted to present such evidence as he may desire in support of the imposition of the proposed discipline set forth in this Stipulation, and/or in opposition to the imposition of discipline more severe than as proposed by the parties.

E. RESPONDENT'S ACKNOWLEDGMENT REGARDING ENTRY OF AN ORDER

The Respondent acknowledges that the Board shall enter an Order consistent with its determination made at the time of the hearing in these cases, and that such Order shall include provisions set forth in Part Six, IV, 13(K)(1) and (10) of the Rules of the Supreme Court of Virginia.

SEEN AND AGREED:



THE VIRGINIA STATE BAR



/S/

Seth M. Guggenheim, Esquire

Assistant Bar Counsel







/S/

Robert Edward Howard, Esquire

Respondent



Thereupon, the Board proceeded to consider disposition of the stipulated ethical violations. The Virginia State Bar made it known that the Respondent had a prior record of a private reprimand with terms issued September 3, 1997 arising from a yellow page advertisement found to be misleading. The Respondent complied with all terms of that order. Bar Counsel did note the Respondent's cooperation in disposition of the present cases. The Board then heard argument from both parties on the matter of disposition.

To properly place in perspective the disposition of the first two cases (VSB Docket No. 99-042-2586 and No. 00-042-0234) it is appropriate to discuss the conclusions the Board drew from the stipulated facts and brief testimony it received. At first blush the stipulation gives the impression of a conspiracy between the Respondent and his assistant, Larry Nguyen, whereby they would prey upon a class of potential clients, Vietnamese immigrants (presumably an isolated and somewhat vulnerable class), using the fraudulent advertisement that offered non-existent immigration services. To the degree that we should adopt the view just stated, the misconduct would also include rather serious Canon 9 violations. Had the Board found an active conspiracy of that nature disbarment would have been the disposition. As it was, Bar Counsel was convinced, and we in turn became convinced that nothing of that sort had happened.

The nature of the offending advertisement has some bearing. The stipulation describes it as fraudulently seeking clients for immigration services not offered by the Respondent. The full breadth of the advertisement is not set out in the stipulation. The actual advertisement, VSB #5, offered services in many facets of legal practice:

. . . accidents, especially those involving injuries and death; bankruptcy proceedings; family law - separation, divorce, child-support; traffic offenses - drunk driving, driving without a license; immigration, sponsorship, visitor and student visas; business contracts; wills, trust letters; and other matters relating to law.

The only category of service not handled directly by the Respondent was immigration services. We believe the Respondent did have an ongoing arrangement with another attorney to handle immigration matters. Viewed in its entirety, we think the advertisement is less offending than it would be had it only offered immigration services.

We are persuaded that the problems with the first two complainants arose because Larry Nguyen willfully embezzled the fees they paid and concealed his wrongdoing from the Respondent. The Respondent knew nothing of an attorney-client relationship with these two clients until he received the letters mentioned in paragraphs 8 and 17 of the stipulation. The Respondent first learned that fees had been collected by Larry Nguyen, and evidently embezzled, when the investigator for the Virginia State Bar so advised on March 30, 2000. By that time Larry Nguyen was no longer employed by the Respondent. The Respondent was not an active participant in Larry Nguyen's wrongful acts. Because of the embezzlement he never received the client funds, and therefore committed no Canon 9 violations. Nonetheless, we find that he wholly failed to, "exercise a high standard of care to assure compliance by the nonlawyer [ his employee-Nguyen] personnel with the applicable provisions of the Code of Professional Responsibility," as required by DR 3-104.(C).

We also find fault with the way the Respondent handled these client problems once they came to light. Certainly he should have tried to identify and correct the problems by contacting these complainants directly. It was irresponsible to refer these problems to Larry Nguyen for correction. The Respondent knew from March 30, 2000 that fees were collected from these clients and embezzled, yet as of the date of this hearing he had taken no action to refund these fees or otherwise make restitution. On that point, Respondent testified he was told by Bar Counsel to wait until resolution of the Bar complaints. We think the better course would have been to correct the wrongdoing promptly upon discovery.

Having received and adopted the stipulation, and having heard all the evidence and arguments of counsel, the Board finds that the stipulated disposition is appropriate with a 60 day suspension.

ACCORDINGLY IT IS ORDERED that the license of Robert Edward Howard be, and the same is hereby SUSPENDED for a period of 60 days, effective April 1, 2002, and he is directed to comply with the terms and conditions set out in the stipulation set out above. It is FURTHER ORDERED that if he does not comply with the terms set out above in the manner and within the time specified above, then this Board shall impose an alternative disposition of revocation of his license. While the Board does not have the authority to impose a suspension with terms and an alternative disposition absent agreement of both parties, in this case both parties have agreed and, therefore, this suspension with the terms and alternative disposition specified above are hereby imposed.

It is FURTHER ORDERED that pursuant to the provisions of Part Six, Section IV, Paragraph 13.K(1), of the Rules of the Supreme Court of Virginia, the Respondent shall forthwith give notice by certified mail, return receipt requested, of this 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 the presiding judges in pending litigation. The Respondent shall also make appropriate arrangements for the disposition of matters now in his care in conformity with the wishes of his clients. The Respondents shall give such notice within fourteen (14) days of the effective date of this suspension order, and make such arrangements as are required herein within forty-five (45) days of the effective date of this order. The Respondent shall furnish proof to the Bar within sixty (60) days of the effective date of this order that such notices have been timely given and such arrangement 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 additional sanctions for failure to comply with the requirements of this subparagraph..

It is FURTHER ORDERED that pursuant to Paragraph 13.K(10) of the Rules of the Supreme Court of Virginia, the Clerk of the Disciplinary System shall assess costs against the Respondent.

It is FINALLY ORDERED that the Clerk of the Disciplinary System forward a copy of this order to the Respondent, by certified mail, at his address of record with the Virginia State Bar, 2207 Fort Ward Place, Alexandria, VA 22304, and to Seth M. Guggenheim, Assistant Bar Counsel, Virginia State Bar, 100 N. Pitt Street, Suite 310, Alexandria, VA 22314-3133.





ENTERED this ____ day of ____________________ , 2002.

VIRGINIA STATE BAR DISCIPLINARY BOARD



By: _______________________________________

WILLIAM M. MOFFET, Chair