VIRGINIA:



BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD



IN THE MATTER OF VSB Docket #97-032-1488

JOSEPH WILLIAM KAESTNER



CONCURRENCE AS TO FINDINGS OF MISCONDUCT;

DISSENT AS TO SANCTION TO BE IMPOSED



We concur with the findings of the majority concerning the violation by Respondent of the Disciplinary Rules. We dissent regarding the appropriate sanction.

According to the Standards for Imposing Lawyer Sanctions, published by the American Bar Association, Rule 4.62, (1991)

Suspension is generally appropriate when a lawyer knowingly

deceives a client, and causes injury or potential injury to his

client.



During the hearing, the Respondent conceded that he lied to his clients regarding the status of their appeal to the Virginia Supreme Court. In doing so, he breached a keystone duty of the attorney-client relationship - the duty to deal honestly with the clients. Had the respondent perfected the appeal as instructed by the clients, there is the possibility that the client's legal position could have improved. Not only was the appeal not perfected, but deception was employed by the Respondent to initially cover the omission.

A subcommittee of the Third District Committee, Section II, on these facts, previously sanctioned the Respondent with a public private reprimand and terms similar to those the majority imposes here. The matter comes to the Disciplinary Board based on a certification by the Third District Committee, Section II following a Show Cause hearing which determined the Respondent had failed to fully comply with the terms imposed.

Based on this factual background and the presence, in our opinion, of factors that, on balance, are aggravating, including the Respondent's prior disciplinary offenses, we feel a suspension of the Respondent's license to practice law for one year and one day would be an appropriate sanction.



VIRGINIA STATE BAR DISCIPLINARY BOARD



________________________________

JOHN A. DEZIO, 2nd Vice-Chair







__________________________________

MICHAEL A. GLASSER, member of panel




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