BEFORE THE VIRGINIA
STATE BAR DISCIPLINARY BOARD
IN THE MATTER OF ROBERT EDWARD HOWARD
VSB Docket Nos. 04-000-0025
On July, 25, 2003 this matter came on for a show cause hearing why Respondent's license to practice law should not be revoked for failure to comply with an order of the Virginia State Bar Disciplinary Board. A hearing was held before a duly convened panel of the Virginia State Bar Disciplinary Board consisting of Peter A Dingman, Chair, Thaddeus T. Crump, lay member; Joseph R. Lassiter, Jr. and Henry Custis. While the panel did not consist of five members as required by Pt. 6, Sec. IV, Para. 13 B.4.i. of the Rules of the Virginia Supreme Court, the Respondent thereafter waived his right to be heard by a panel of five and accepted the decision of a panel of four(1).
All notices required by law were sent by the Clerk of the Disciplinary System. The Respondent, Robert Edward Howard appeared pro se. Seth M. Guggenheim, Assistant Bar Counsel, appeared on behalf of the Virginia State Bar. Theresa S. Griffith of Chandler & Halasz, Registered Professional Reporters, P. O. Box 9349, Richmond, Virginia 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 member, including the Chair, responded in the negative.
The Virginia State Bar filed as its Exhibit 1, the Notice To Respondent To Show Cause Why His License To Practice Law Should Not Be Revoked with its exhibits. The allegations in Exhibit 1 are as follows:
1. Robert Edward Howard, Esquire (hereafter "Respondent"), is an attorney licensed to practice law in the Commonwealth of Virginia.
2. On the 1st day of April, 2002, the Virginia State Bar Disciplinary Board entered an Order of Suspension against the Respondent, and the said Order was served upon the Respondent by certified mail on April 2, 2002.
3. A term of discipline imposed upon the Respondent, as set forth in the Order is as follows:
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).
4. The Respondent did not make the required certification of attendance to Bar Counsel, and was so advised by letter dated June 18, 2003.
5. In lieu of responding to Bar Counsel's letter of June 18, 2003, by furnishing evidence of compliance with the term of discipline set forth above, the Respondent sent Bar Counsel the letter dated July 1, 2003, stating that the required CLE credits had been obtained but were not properly reflected on the records of the Virginia State Bar.
6. The Order of the Virginia State Bar Disciplinary Board provides that if Respondent does not comply with the terms of discipline contained therein "in the manner and within the time specified [therein], then this Board shall impose an alternative disposition of revocation of his license."
7. The Respondent's license to practice law in the Commonwealth of Virginia must be revoked because he has failed to comply with a term of discipline as set forth in the said Order of the Virginia State Bar Disciplinary Board.
The Respondent stipulated Virginia State Bar Exhibit 1 and acknowledged that he had the burden of establishing that he had complied with Paragraph 4 of the Order of Suspension. Respondent further acknowledged that he had not reported his CLE credits in ethics to the Bar Counsel in the manner required by the Order, but maintained that he had reported them to the Bar by filing certificates with the CLE programs in the normal manner, that he had completed the required CLE credits in a timely manner, and that he had thus substantially complied with the Order.
The Respondent filed two exhibits. Respondent's Exhibit 1 consisted of six (6) preprinted Certification of Attendance Forms establishing that the Respondent had attended and completed a total of 16 hours of CLE in ethics prior to December 31, 2002. Eleven CLE hours were from ethics courses sponsored by the District of Columbia Bar; four CLE hours were from ethics courses sponsored by the National Bar Association, and one CLE hour was included in a course sponsored by the Virginia Trial Lawyers Association. Respondent's Exhibit 2 consisted of Virginia State Bar MCLE records showing that the Virginia State Bar had approved 13 of the 16 hours of CLE credit in ethics presented by the Respondent.
The matter was then argued by counsel for the Virginia State Bar and by the Respondent.
The Bar asserts that the Order of Suspension is very explicit, and quite clearly directs the Respondent to deliver the fully completed MCLE forms to bar counsel at a specific address at the office of the Virginia State Bar. This was not done.
Respondent notes that he was very aware of the requirement that he complete 16 hours of CLE in ethics, a substantial undertaking. Soon after entry of his Order of Suspension on April 1, 2002, he began taking courses in ethics, attending ethics courses in May, July, September, and December. He asserts that he submitted Certificates of Attendance "to the Bar" in the normal manner that he was accustomed to, not realizing that he was supposed to send them to bar counsel rather than to the Bar's CLE compliance office. In what Respondent thought was an abundance of caution, he attended a total of 16 hours, rather than 12. This proved to be wise, in that to date at least two of the ethics hours taken by Respondent have not been approved by the CLE office.
The issue before this panel is whether Respondent substantially complied with the agreed terms set forth in the Order of Suspension, and if so whether substantial compliance is sufficient to avoid imposition of the alternative sanction -- revocation of Respondent's license to practice law. The Dissent filed herein correctly assumes that one might consider the sanction of revocation to be too Draconian a remedy to impose against someone who has in a timely manner completed the ethics courses he has been required to attend, but has simply failed to report his attendance in the manner specified in the Order.
As quoted above, the Order states that "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". The Respondent has established that he has done this. The Order goes on to specify a manner of certification, to be completed "promptly" following his attendance. While Respondent's manner of certification does leave something to be desired, he did take steps to file Certificates of Attendance in the manner that he thought was acceptable. It might also be noted that the letter seeking his proof of compliance did not emanate from the office of bar counsel until June 18, almost six months after the Bar insists the certification should have been filed. After due deliberation, two of the Panel members are of the opinion that the Respondent has established that he has substantially complied with the prior Order of the Board. The remaining two members of the Panel were of the opinion that the Respondent had failed to show that he had not violated the Order of Suspension. Accordingly, the Motion to Show Cause is DISMISSED.
It is ordered that the Clerk of
the Disciplinary System forward a copy of this order, by certified mail to the
Respondent, 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 22314-3113.
ENTERED this ___ day of August,
VIRGINIA STATE BAR DISCIPLINARY BOARD
By: JOSEPH R. LASSITER, JR., Chair Designate
1. This Panel was originally constituted with five members, the fifth member being a recent appointee to the Disciplinary Board. It was later determined that the order appointing that individual to the Board was not officially entered until shortly after the day of the hearing. Both parties were notified of the discrepancy, and both the Bar and the Respondent elected to waive their rights to have this matter tried before a five member panel and to accept the decision of the remaining four members.