V I R G I N I A:



BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD





IN THE MATTER OF VSB Docket: 01-000-2639

DANA WILBUR JOHNSON





ORDER OF REVOCATION



This cause came to be heard the 25th day of May 2001, on a Rule to Show Cause and Order of Suspension entered by the Virginia State Bar Disciplinary Board on May 4, 2001. The May 4, 2001 Order required the Respondent to appear before the Board on May 25, 2001, "to show cause why his license to practice law in the Commonwealth should not be suspended or revoked."

On May 25, 2001, this cause was heard by a duly convened panel of the Virginia State Bar Disciplinary Board composed of John A. Dezio, Chair presiding, D. Stan Barnhill, Karen A. Gould, Werner H. Quasebarth, and Theophlise L. Twitty. Noel D. Sengel, Senior Assistant Bar Counsel, appeared as Counsel for the Virginia State Bar ("VSB"). Dana Wilbur Johnson ("Respondent") failed to appear.

The Chair opened the hearing by polling the Board members to ascertain whether any member had a conflict of interest that would preclude him or her from serving. There were no conflicts, and the hearing proceeded as scheduled.

The Virginia State Bar Exhibits 1 and 2 were admitted into evidence, without objection. Respondent did not submit any exhibits.

The evidence adduced at the hearing was that Respondent had been disbarred from the practice of law in Maryland by the Maryland Court of Appeals. Respondent had been charged with violations of the Maryland disciplinary rules regarding conflict of interest, candor toward a tribunal, the unauthorized practice of law, communications concerning a lawyer's services, misrepresentations regarding firm names and letterheads, and misconduct. He was found guilty of all charges, except for misrepresentation regarding firm names and letterheads. The Court found that Respondent had "made false statements to a tribunal, and he acted against the interests of [clients] during and after the sale of their home to him." Maryland Disbarment Order at 33-34, VSB Exhibit 2. The Maryland Court concluded that the appropriate sanction was disbarment.

The burden of proof was on Respondent in this show cause proceeding. The burden was on Respondent to persuade this Board that reciprocal recognition of the April 12, 2001 Disbarment Order entered by the Maryland Court of Appeals should not be granted. Respondent failed to put on any proof or argument that the Maryland Order should not be given reciprocal recognition. The Board adopts the findings of the Maryland Court of Appeals and finds that the Maryland Order should be given reciprocal recognition.

All procedural requirements have been complied with in terms of notification of the opportunity to be heard. Subsection (G), governing Disbarment or Suspension in Another Jurisdiction, provides in relevant part that: "[T]he Board shall forthwith serve upon the Respondent by certified mail (a) a copy of such certificate, (b) a copy of such order, and (c) a notice fixing the time and place of a hearing to determine what action should be taken by the Board." The Bar complied with this Rule by forwarding a certified letter dated May 4, 2001, together with attachments from the Clerk of the Disciplinary System, see VSB Exhibit No. 2. Although the letter was sent by certified mail, Respondent maintains that he was not at home when the Post Office attempted to serve the certified letter. He also did not read the additional copy he received of the Show Cause Order and Hearing notice, although it was in his office May 21st, because he was stressed by involvement in a criminal matter. See Respondent's Motion to Vacate, Para. 9. According to his Motion to Vacate, he read the Bar's Rule to Show Cause of and Order of Suspension and Hearing on May 25th, the date of the hearing. See Respondent's Motion to Vacate, Para. 9.

Subsection (G) further provides that, within fourteen days of the date of mailing, Respondent shall file a written response, which shall be confined to allegations that:

(1) the record of the proceeding in the other jurisdiction would clearly show that such proceeding was so lacking notice or opportunity to be heard as to constitute a denial of due process; or

(2) the imposition by the Board of the same discipline upon the same proof would result in a grave injustice; or

(3) the same conduct would not be grounds for disciplinary action or for the same discipline in this state.

Respondent did not file any response as required by subsection (G) within the fourteen-day period challenging the Maryland disciplinary proceeding.

Upon consideration of the matters before this panel of the Disciplinary Board, it is hereby

ORDERED that, pursuant to Part 6, IV, 13c. (3) of the Rules of the Virginia Supreme Court, the license of Respondent, Dana Wilbur Johnson, to practice law in the Commonwealth of Virginia be, and the same hereby is, revoked, effective May 25, 2001.

This matter also came to be heard on the 7th day of June 2001, on Respondent's Motion to Vacate the Show Cause Order and Order of Suspension entered by the Virginia State Bar Disciplinary Board on May 4, 2001. A duly convened panel of the Virginia State Bar Disciplinary Board composed of John A. Dezio, Chair presiding, D. Stan Barnhill, Karen A. Gould, Werner H. Quasebarth, and Theophlise L. Twitty, considered the matters raised by Respondent's Motion to Vacate, the Bar's Response to Respondent's Motion to Vacate and the Respondent's Reply to the Bar's Response, and the Bar's Reply to Respondent's Reply to Bar's Response to Respondent's Motion to Vacate and Request for hearing..

Rule XII of the VSB Disciplinary Rules of Procedure provides that a respondent may file a motion for reconsideration within ten days of the hearing before the Board. The Board will consider Respondent's Motion to Vacate as a motion for reconsideration under this Rule. The Rule further provides that

[s]uch motion shall be considered only to prevent manifest injustice upon the ground of



a. illness, injury or accident which prevent the respondent or a witness from attending the hearing and which could not have been made known to the Board within a reasonable time prior to the hearing, or



b. evidence which



(1) was not known to the Respondent at the time of the hearing and could not have been discovered prior to, or produced at, the hearing in the exercise of due diligence and



(2) would have clearly produced a different result if the evidence had been introduced at the hearing.



Accordingly, since Respondent's motion was filed within the requisite ten-day period, the Board still has jurisdiction of this matter, the memorandum opinion not yet having been entered, and will consider Respondent's motion.

Respondent's Motion to Vacate is denied for failure of the Respondent to produce the record upon which he relies to support the allegation that the Maryland proceeding was so lacking in notice or opportunity to be heard as to constitute a denial of due process, as required by Rule 13(G)(3). The Bar argued in its Response to Respondent's Motion to Vacate that this allegation was totally lacking in merit for the following reasons:

On the issue of notice and opportunity to be heard in the disbarment proceedings in Maryland, the Respondent was noticed for an Inquiry Panel hearing involving these matters on October 23, 1998. The hearing was continued to February 11, 1999 at the Respondent's request, and the Respondent appeared and was heard at the February 11, 1999 hearing by the Inquiry Panel (See VSB Exhibit #4). The Inquiry Panel found the Respondent had violated various Maryland disciplinary rules. The Maryland Review Board agreed with the Inquiry Panel's findings and directed the Attorney Grievance Commission of Maryland to file charges against the Respondent. The Attorney Grievance Commission did so in the Court of Appeals of Maryland (See VSB Exhibit #5). The matter was referred to a trial judge in the Circuit Court of Montgomery County. After a three-day hearing commencing September 18, 2000, at which the Respondent appeared and testified, the court made certain findings of fact and recommendations (See VSB Exhibit #6). The Respondent filed exceptions to certain of the trial court findings of fact and recommendations. On February 5, 2001, there was oral argument before the Maryland Court of Appeals on the Respondent's various exceptions to the trial court's rulings. On April 15, 2001, the Court of Appeals of Maryland filed its opinion in the matter disbarring the Respondent from practicing law in Maryland (See VSB Exhibit #2). The record shows the Respondent had at least two full evidentiary hearings in this case, and told his side of the story upon each occasion. There was certainly no lack of notice or opportunity to be heard in the Maryland proceedings.



Bar's Response to Motion to Vacate, Para. 4. The Exhibits cited in the Bar's Response and filed with the Clerk are incorporated herein by reference and are deemed to be filed in this proceeding.

The Board agrees with the Bar, based upon the evidence, that Respondent has failed to produce proof that he was denied notice and an opportunity to be heard in the Maryland disciplinary proceedings. Respondent carried the burden of proof on this issue and failed to adduce any proof, other than a bald statement that there was a denial of due process. His only argument was that the Virginia Supreme Court Rules envisioned a hearing and not reliance upon the record. Respondent's Reply at Para. 4. The Board does not agree with this proposition. Rule 13(G)(3) states that "[t]he Respondent shall have the burden of producing the record upon which he relies to support [his] allegations."

Even after being confronted with the facts as outlined in paragraph 4 of the Bar's Response to Respondent's Motion to Vacate, Respondent failed in his Reply to that Response to address the facts or arguments raised regarding the due process issue. Based upon the record produced by the Bar, the Respondent did have adequate due process notice and opportunity to be heard in the Maryland proceedings. The Board also finds that the misconduct found in the Maryland proceedings would warrant the same sanction in Virginia. Accordingly, the Board finds that the Respondent has failed to adduce proof that there was evidence that would have produced a different result at the hearing, and Respondent's Motion to Vacate is denied.

Pursuant to the Board's ruling that the Respondent's license be revoked, it is FURTHER ORDERED that pursuant to the provisions of Part 6, IV, 13 (K)(1) of the Rules of the Supreme Court of Virginia, as applicable, Respondent shall forthwith give notice by certified mail, return receipt requested, of the revocation of his license to practice law in the Commonwealth of Virginia to any and all clients for whom he is currently handling matters and to all opposing counsel and presiding judges in any pending litigation in which he is involved. Respondent shall make appropriate arrangements, as applicable, for the disposition of matters then in his care conforming to the wishes of his clients.

Respondent shall give notice within fourteen days of the effective date of the revocation order, and shall make such arrangements, as are required herein within forty-five days of the effective date of the revocation order that such notices have been timely given and such arrangements for the disposition of matters made; all issues concerning the adequacy of the notice and arrangements required herein shall be determined by the Board; and it is

FURTHER ORDERED that Respondent, Dana Wilbur Johnson, shall, as appropriate, furnish true copies of all letters noticing the revocation of his license to practice law, with the original return receipts for said notice letters, to the Clerk of the Disciplinary System, on or before July 24, 2001; and it is

FURTHER ODERED that the Clerk of the Disciplinary System send an attested and true copy of this Opinion and Order to Respondent, Dana Wilbur Johnson, by certified mail, return receipt requested, at his address of record with the Virginia State Bar, 7504 Burgess Lane, Ft. Washington, Maryland 20744, and toe Noel D. Sengel, Senior Assistant Bar Counsel, Virginia State Bar, 100 N. Pitt Street, Suite 310, Alexandria, Virginia 22314-3133.

Tracy J. Stroh was the reporter for the May 25, 2001 hearing and transcribed the proceedings. Her address and telephone number is: Chandler & Halasz, P.O. Box 9349, Richmond, VA 23227, (804) 730-1222.

The Clerk of the Disciplinary System shall assess costs pursuant to Part 6, IV, 13(K)(10) of the Rules of the Virginia Supreme Court.

ENTER THIS ORDER THIS __ DAY OF __________, 2001



VIRGINIA STATE BAR DISCIPLNARY BOARD





By ____________________________________

John A. Dezio

Chair