THE VIRGINIA STATE BAR DISCIPLINARY BOARD
IN THE MATTER OF JOSEPH WILLIAM KAESTNER
VSB Docket No. 97-032-1488
THIS MATTER came to be heard on December 15, 2000, upon the Certification dated February 11, 2000, of the Third District Committee, Section Two of the Virginia State Bar and upon proper notice to the Respondent, Joseph William Kaestner, and was heard by a duly convened Panel of the Virginia State Bar Disciplinary Board, consisting of John A. Dezio, presiding, Michael A. Glasser, Werner H. Quasebarth, Anthony J. Trenga, and Robert L. Freed.
Deputy Bar Counsel, Harry M. Hirsch, Esquire, appeared on behalf of the Virginia State Bar, and Craig S. Cooley, Esquire appeared on behalf of the Respondent, Joseph William Kaestner, who was present.
The court reporter for the proceeding was Donna T. Chandler, with Chandler & Halasz, Inc., located at Post Office Box 9349, Richmond, Virginia 23227, telephone (804) 730-1222.
Having considered the facts stipulated by Deputy Bar Counsel and Respondent, all exhibits introduced into evidence by Deputy Bar Counsel, without objection, and all other evidence introduced by Deputy Bar Counsel and Respondent, as well as arguments by Deputy Bar Counsel and the Respondent, the Virginia State Bar Disciplinary Board finds that by clear and convincing evidence that Deputy Bar Counsel has proved:
1. At all times relevant hereto the Respondent, Joseph William Kaestner, has been an attorney licensed to practice law in the Commonwealth of Virginia.
2. The Complainant, Michael Moss, and his wife ("Mr. and Mrs. Moss") retained Respondent to represent them in a suit brought against them by Romark Builders ("Romark"). Romark sued Mr. and Mrs. Moss for sums due concerning the construction of a home. Mr. and Mrs. Moss countersued. A trial was held in August, 1991, resulting in judgement for the plaintiff on the suit and judgement for Mr. and Mrs. Moss on their countersuit. The net amount due was approximately Four Thousand Five Hundred Fifty-Eight Dollars ($4,558.00) to Mr. and Mrs. Moss.
3. Respondent was asked to file a motion for reconsideration which he did. Respondent was also asked to appeal the case.
4. Respondent filed a notice of appeal in the Romark case. However, Respondent failed to perfect that appeal.
5. By letter dated March 10, 1992, Respondent wrote the following to Mr. and Mrs. Moss:
I received a copy of an order from the Virginia Supreme Court today. The Virginia Supreme Court has refused to hear your appeal of the Romark case. I am sorry for this turn of events.
In fact, there was no order from the Virginia Supreme Court to which the letter referred.
6. By letter dated April 3, 1992, Respondent wrote the following to Mr. Moss:
...there is absolutely nothing more than can be done. There is no further fight that can be waged nor is there anything further that you can do before the Virginia Supreme Court. I mean this most emphatically, there is absolutely nothing you can do further before the Virginia Supreme Court.
This language reinforced the incorrect representation present in Respondent's letter dated March 10, 1992, which stated that there had been an appeal to the Virginia Supreme Court.
7. By letter dated December 4, 1992, Respondent wrote to Mr. and Mrs. Moss regarding, inter alia, the Romark case. In the letter, Respondent stated that he "attempted to perfect the appeal"; and Respondent admitted that he decided that the appeal would not be successful, that he did not proceed with the appeal, and he failed to give Mr. and Mrs. Moss the opportunity to decide whether or not they wished the appeal to proceed.
8. Respondent failed to keep Mr. and Mrs. Moss informed about his representation, or the lack thereof, with respect to an appeal of the Romark case.
9. On April 5, 1999, a Subcommittee of the Third District Committee, Section Two of the Virginia State Bar found that the Respondent had committed Misconduct and approved an Agreed Disposition wherein a Private Reprimand with Terms was imposed. One of the terms imposed was that Respondent adhere to the provisions of an agreement dated December 30, 1998, between Respondent and Lawyers Helping Lawyers, a program for the Substance Abuse Committee of the Virginia Bar Association (the "Rehabilitation Agreement"). (Exhibit 8).
10. On February 11, 2000, the Third District Committee, Section Two of the Virginia State Bar found that the Respondent had failed to fulfill the terms of the Private Reprimand and certified this matter to the Virginia State Bar Disciplinary Board.
11. Respondent's conduct constitutes Misconduct in violation of the following Disciplinary Rules of the Virginia Code of Professional Responsibility:
DR 1-102. Misconduct.
DR 6-101. Competence and Promptness.
Accordingly and on a vote of three of the five members of this Panel, it is ORDERED that a Public Reprimand be and is hereby imposed on the Respondent upon the following Terms:
The Rehabilitation Agreement shall be re-instituted effective December 15, 2000. If for any reason, Lawyers Helping Lawyers is unwilling or unable to reinistitute the Rehabilitation Agreement, Respondent shall enter into an agreement substantially similar to the Rehabilitation Agreement reasonably acceptable to Bar Counsel with an organization or person reasonably acceptable to Bar Counsel by January 15, 2001. The Rehabilitation Agreement, or acceptable alternate agreement, shall remain in effect until December 15, 2002. Respondent shall comply with all of the terms, provisions, and conditions of the Rehabilitation Agreement until December 15, 2002. In addition, Respondent shall have no Sanction imposed against him by the Virginia State Bar prior to December 15, 2002.
The majority of this Panel is of the opinion that the failure of Mr. and Mrs. Moss to file the complaint in this matter for over five years, the lack of any clear, potential harm to Mr. and Mrs. Moss, the Respondent' s voluntary disclosure to his client in December of 1992, the Respondent's contributions to the Bar in the intervening years since the Misconduct occurred, the fact that the Subcommittee imposed only a Private Reprimand with Terms in this matter, and the progress that Respondent appears to have made in dealing with his alcoholism, mitigate against a Suspension and weigh in favor of the Public Reprimand with Terms imposed above. The majority is mindful of the factors underlying the dissent in this matter and are extremely respectful of the minority's opinions; however, on balance and by the slenderest of margins, the majority does not feel that a Suspension is warranted in this case at this time.
It is further ORDERED, that if the Respondent fails to adhere to and comply with all of the Terms imposed above, the Respondent's license to practice law in Virginia shall be SUSPENDED for a period of one year and one day, the Alternate Disposition required by the Virginia State Bar Disciplinary Board Rule of Procedure IV D(9) and the Rules of Supreme Court of Virginia, Part Six, ß IV, ¶ 13.C (6).
It is further ORDERED that the Clerk of the Disciplinary System shall assess costs pursuant to Part Six, ß IV, ¶ 13.K (10) of the Rules of the Supreme Court of Virginia.
It is further ORDERED that a copy teste of this Order shall be mailed by certified mail, return receipt requested, to the Respondent, Joseph William Kaestner, at his last address of record with the Virginia State Bar, mailed by regular U.S. mail to the Respondent's counsel, Craig S. Cooley, Esquire, Post Office Box 7268, 3000 Idelwood Avenue, Richmond, Virginia 23221 and hand-delivered to Deputy Bar Counsel, Harry M. Hirsh, Esquire, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219..
ENTERED THIS ______ DAY OF ____________, 2000.
THE VIRGINIA STATE BAR DISCIPLINARY BOARD
Robert L. Freed