VIRGINIA:

BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

IN THE MATTERS OF VSB Docket Nos.

00-021-1013

MICHAEL DENIS KMETZ 00-021-1276

00-021-1782



ORDER OF ADMONITION

THIS MATTER came on to be heard on December 14, 2001 before a panel of the Disciplinary Board consisting of Randy Ira Bellows, Esq., Panel Chair, Robert L. Freed, Esq., Joseph R. Lassiter, Jr., Esq., H. Taylor Williams, IV, Esq., and Chester J. Cahoon, Jr. The Virginia State Bar (hereinafter referred to as the "Bar") was represented by Paul Georgiadis, Assistant Bar Counsel. The respondent, Michael Denis Kmetz, was present and represented by Andrew A. Protogyrou, Esquire and J. Barry McCracken, Esquire. Catherine M. K. Blalock, Chandler & Halasz, Registered Professional Reporters, P. O. Box 9349, Richmond, VA 23227, 804-730-1222, recorded the hearing. The chair polled the panel to determine whether any member had any business or financial interest or any personal bias that would impair or could be perceived to impair his ability to hear this matter fairly and impartially. Each member, including the chair, responded in the negative. The three cases were heard separately on the issue of whether misconduct had occurred, with separate deliberations and findings following the evidence and argument in each case.

FINDINGS

A. Procedural History

Respondent is charged with committing deliberately wrongful acts in three cases involving three unrelated clients. All three allegations of misconduct involve the purported fabrication of letters to the clients after the fact to establish that notification of decisions by appellate courts was communicated to clients in a timely manner. The three complaints of misconduct were filed by Respondent's clients in July, 1999 (Madison), December, 1999 (Powell), and January, 2000 (Landry). A subcommittee of the district committee was convened on June 27, 2001, and certified all three cases to the Disciplinary Board. Paul D. Georgiadis, Assistant Bar Counsel, represented the Bar before the subcommittee and the Board. The certifications were served on Respondent July 16, 2001. On September 25, 2001, the Bar notified Respondent that the cases would be heard on December 14, 2001. A pre-hearing order was issued by the chair of the panel on September 28, 2001. On October 19, 2001, Respondent retained Andrew A. Protogyrou, Esquire, to represent him. Mr. Protogyrou moved for a continuance due to an anticipated scheduling conflict. The motion was denied by order entered October 30, 2001. J. Barry McCracken was associated as co-counsel by Respondent and Mr. Protogyrou and both he and Mr. McCracken appeared on behalf of Respondent at the hearing.

The panel convened on December 14, 2001, to hear evidence in the three cases. The Bar moved to consolidate the three cases for hearing, in which case evidence on all three alleged offenses would be presented together. The Respondent asked that each case be heard separately. The panel held that the three offenses had been certified separately by the Second District Committee (Section I), no motion had been filed by the Bar to consolidate the cases for hearing, nor had consolidating the cases been addressed at the pre-hearing conference held on September 25, 2001. Nor did the Bar file a motion to have the evidence from one proceeding admitted in the other proceedings as "similar acts" evidence. The motion to consolidate, therefore, was denied.


B. VSB Docket No. 00-021-1782 (Complainant: Holly M. Landry)

Respondent was court-appointed to defend Holly M. Landry ("Landry"), who was charged with capital murder. Following her conviction and imposition of a life sentence by the Circuit Court of the City of Norfolk, Respondent was appointed on December 2, 1997, to represent Landry on appeal. Respondent timely filed appeals to the Court of Appeals and the Supreme Court of Virginia, which were denied August 4, 1998, and October 29, 1998, respectively. Landry wrote the Bar on January 12, 2000 (Board Ex. 1), claiming that Respondent was not answering her letters, that she had only just learned on January 6, 2000, that her appeal to the Supreme Court had been denied in October, 1998, and that her time to file a habeas corpus petition had expired.

Landry alleged that she could prove Respondent's failure to keep her informed because the prison keeps a record of all of her legal mail. By letter to bar counsel dated March 5, 2000, Mr. Kmetz responded to Ms. Landry's allegations (Bar Ex. 3). Respondent noted that he handled both appeals and appeared before the Supreme Court to argue for a writ of error, which was denied in October, 1998. He stated in his letter that he forwarded a copy of the opinion to Landry within a day or two of receiving it, and that the letter was never returned to his office by the postal service. He further stated that he received a call from Landry's counselor at Fluvanna Correctional Facility in October, 1999, and advised her that the petition for a writ had been denied by the Supreme Court. Respondent asserted that the evidence against Landry was overwhelming, and that it was only through his efforts that the Commonwealth's efforts to seek the death penalty were thwarted. By letter dated March 13, 2001 (Bar Ex. 2), Respondent furnished bar counsel with copies of two letters dated August 6, 1998 (Bar Ex. 2) and November 3, 1998 (Bar Ex. 2). These two letters form the crux of the case: the Bar contends that they were fabricated by Respondent to disprove Landry's claim that she never received notice that her appeal had been denied.

Respondent's August 6, 1998 letter purports to transmit to Landry a copy of the Court of Appeals decision denying her Petition for Appeal, and advising her that he would appeal the denial to the Supreme Court. The November 3, 1998 letter purports to enclose a copy of the Supreme Court's decision denying her petition for appeal, advising her of her habeas corpus rights and confirming that Respondent no longer represents her. The parties stipulated that Landry would have testified that she did not receive the two letters in question. (Bar Ex. 4). The parties further stipulated that on or about September 15, 2001, Landry did receive an envelope addressed to her at Fluvanna that had copies of transmittal letters to the clerks of both courts, presumably notices of the petition for a writ filed with the Supreme Court after the Court of Appeals denied her appeal. (Bar Ex. 4).

On or about June 4, 1998, Landry was transferred from the Virginia Correctional Center for Women in Goochland ("Goochland") to Fluvanna. (Bar Ex. 4). Respondent's letters of August 6, 1998 and November 3, 1998 were addressed to Goochland. Charlene Parish, mailing supervisor at Goochland, testified that she personally retrieved the mail from the post office in Goochland each morning and sorted it at the correctional center. All mail from attorneys, courts or the Virginia State Bar ("legal mail") is date stamped, logged in, and taken to the inmates by the evening shift supervisor. Two to six bins of mail are received by Goochland each day. Parish agreed on cross examination that Goochland receives "tens of thousands" of pieces of legal mail a year, but testified on redirect that Goochland receives two to seven pieces a day. Inmates are not infrequently transferred from one correctional facility to another. "Legal mail" sent to an inmate at Goochland who has been transferred to another facility is returned to sender. On the other hand, non-legal mail, which is not logged in, is forwarded to the inmate at the current facility to which he or she may have been transferred.

The critical issue is whether the letters in question were fabricated, and the key defect in the Bar's contentions is the lack of corroborating evidence to establish that the letters were fabricated. First, there are no inherent inconsistencies within the four corners of the documents which suggest that they are fabricated. Second, there are a number of explanations as to what may have happened to the letters, which would not constitute fabrication: (1) Respondent gave the letters to his secretary but she failed to mail them; (2) the postal service failed to deliver the letters to Goochland and failed to return them to Respondent; (3) the letters arrived at Goochland and were treated as regular mail, not logged in, and forwarded to Landry, who received them but does not admit receiving them; (4) the letters were forwarded to Landry and lost in forwarding. Third, the Board did not have before it an independent review by the Bar of Respondent's file, which might have been helpful, even if not dispositive.

It is well established that, in misconduct proceedings, the Bar has the burden of proof and it must carry that burden by "clear and convincing" evidence. See Disciplinary Board Rule of Procedure IV(D)(9)(A). In this case, as stated above, the critical issue is whether the letters were fabrications. Given the absence of clear and convincing evidence that the letters were indeed fabrications, the Board finds that the charges of misconduct, specifically allegations of violations of DR 6-101 and DR 2-108 of the Virginia Code of Professional Responsibility, and Rule 8.4 of the Virginia Rules of Professional Conduct, must be deemed unproven.

C. VSB Docket No: 00-021-1276 (Complainant: James C. Powell)

The second matter involves the appeal of a civil case to the United States Court of Appeals for the Fourth Circuit. Once again, the case turns on a letter written by Respondent to the client, advising the client of the decision in the case. This time the letter was written to the correct address; however, the client testified that the letter was not received.

Respondent, who did not try the case in the federal district court, was retained by James C. Powell to handle the appeal. Respondent filed the appellate brief on or about December 21, 1998. Powell, a Norfolk police officer, testified that he communicated with Respondent's receptionist, by telephone or by stopping by the office, monthly, from February 17, 1999, to August 25, 1999. On September 7, 1999 he scheduled an appointment for September 28. 1999, but that morning the receptionist called for Respondent to cancel the appointment. He again spoke to the receptionist on October 13, 1999, his call was not returned, and when Powell called again on October 27, 1999, at 10:15 a.m., Powell testified that Respondent happened to answer the telephone. Respondent informed him that his appeal had been denied on June 8, 1999, and Powell came in to pick up his file at 2:15 p.m. the afternoon of October 27, 1999. Contained in the file which Powell picked up from Respondent's office on October 27, 1999, was a copy of a letter from Respondent dated June 8, 1999, purporting to transmit to Powell a copy of the Fourth Circuit opinion denying his appeal, and advising Powell of his right to petition either the appellate court for a rehearing en banc or the Supreme Court of the United States for a writ of certiorari. The copy of the letter from the Fourth Circuit transmitting the opinion to Respondent was date stamped "June 8, 1999", and the Fourth Circuit Court of Appeals confirmed that the opinion was mailed June 8, 1999. Respondent's letter transmitting the opinion to Powell was also dated June 8, 1999, an impossibility. However, Respondent testified that his receptionist must have failed to advance the date stamp when she stamped the morning mail, and that when he typed the transmittal letter to the client, he probably picked up the erroneous date off of the opinion itself or the erroneous date stamp. Powell testified that the first time he saw the June 8, 1999 letter was when he picked up his file on October 27, 1999. However, when Powell filed his complaint with the Bar in January, 2000, he alleged that he did not learn of the existence of the letter denying the appeal until January 10, 2000.

An investigation of Respondent's computer was conducted by the Bar. Kmetz testified that the hard drive on the computer that he used to prepare the June 8th letter (and the letter in Madison, below) crashed some time after June 8, 1999 and he purchased a new computer in May, 2000. The old computer was given to his paralegal. There was no server at the time. There were no backups. The investigation failed to reveal any pertinent information which would tend to prove or disprove fabrication of the letters in question.

The panel finds that the Bar has failed to prove by clear and convincing evidence that the June 8, 1999 letter was fabricated by Respondent. Respondent claims to have mailed the letter and Powell's testimony does not establish by clear and convincing evidence either that the letter was never mailed or that it was a fabrication.(1)

There is nothing within the four corners of the letter to suggest that it was fabricated, other than the erroneous date, which was explained. Respondent's file was not introduced, so the panel does lack some context in which to judge the June 8, 1999 letter. Having failed to establish that the letter was fabricated, it follows that the allegation of a violation of Rule 8.4 of the Virginia Rules of Professional Conduct must be deemed unproven.

However, Respondent is also charged with failure to keep the client informed. Respondent denied communicating with Powell on any occasion from December 21, 1998, when he mailed the appellate brief to Powell until October 27, 1999, when respondent picked up his file, other than his contention that he mailed the opinion to Powell on June 8, 1999. Powell contends that he communicated with Respondent's office monthly; Respondent denies that such communications occurred. Powell contends that he talked to Respondent on the morning of October 27, 1999, Respondent contends that Powell talked to his secretary.

The panel finds by clear and convincing evidence that one communication from December 21, 1998 to October 27, 1999, in the context of this proceeding, was insufficient to keep his client reasonably informed about the matter for which the lawyer's services had been retained. Therefore, we find the Respondent to have violated DR 6-101(C).

D. VSB Docket No: 00-021-1013 (James Lamont Madison) The third case also involved a criminal appeal. Once again, the critical issue in the case involves the alleged transmittal to the client of the opinion denying an appeal by letter dated July 15, 1998. Respondent was appointed to represent James Lamont Madison on December 4, 1997, by the Norfolk Circuit Court to handle his criminal appeal. On June 11, 1998, Madison was transferred from Southampton Reception and Classification Center to Brunswick Correctional Center, where he was on July 15, 1998. On July 13, 1998, the Court of Appeals denied his appeal, and Respondent allegedly transmitted the decision to him by letter dated July 15, 1998, correctly addressed to Brunswick. The letter was never received by Madison, and never logged in as legal mail by Brunswick.

Once again, as in the other two matters, the Board weighed the evidence in this case without reliance upon, or reference to, the facts established in the other matters. Given that the Bar bears the burden of proving its allegation by clear and convincing evidence and given the Respondent's representation that the letter was in fact sent to Madison on July 15, 1998, see VSB Exhibit 3, and given the presumption afforded by the "mailbox rule", we find that the Bar has failed to carry its burden. We recognize that the complainant would testify that he did not receive the letter and that the Brunswick Correctional Center does not have a record of the letter having been received. Those two facts alone, however, do not establish by clear and convincing evidence that the Respondent fabricated the letter and then made false statements to the Bar to hide his failure to notify the complainant of the denial of his appeal. Therefore, we find that the Bar has not proven violations of DR 6-101 of the Virginia Code of Professional Responsibility and Rule 8.4 of the Virginia Rules of Professional Conduct.

DETERMINATION OF SANCTION

Respondent testified that he became a licensed attorney in New Jersey in 1985 and entered active duty in 1986. Between 1986 and 1991 he served as a Navy JAG and, for a period of time prior to 1991, served as a Special Assistant United States Attorney in the Office of the United States Attorney for the Eastern District of Virginia.(2) In 1991, Respondent was admitted to the Virginia State Bar. He has no prior disciplinary record. The obligation to keep a client "reasonably informed about matters in which the lawyer's services are being rendered," see DR 6-101, is a fundamental requirement in the practice of law. A failure to comply with these requirements has potential serious adverse consequences for the client and warrants discipline. Because this is the Respondent's first finding of misconduct, the panel finds that the appropriate sanction is an admonishment.

It is FURTHER ORDERED that the Clerk of the Disciplinary System shall send an attested copy of this Order to the Respondent, Michael Denis Kmetz, at his address of record with the Virginia State Bar, Jones, Shelton & Malone, P.C., 1218 Sun Trust Center, 500 East Main Street, Norfolk, Virginia 23510, and to Andrew A. Protogyrou, Respondent's Counsel, Protogyrou and Rigney, P.L.C., 215 City Hall Avenue, P.O. Box 3205, Norfolk, Va. 23514-3205, and Joseph B. McCracken, Respondent's Counsel, Suite 504, 125 St. Paul's Boulevard, Norfolk,

Va. 23510-2734, and hand-delivered to Paul D. Georgiadis, Assistant Bar Counsel, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Va. 23219.



Pursuant to Part Six, Section IV, Paragraph 13(K)(10) of the Rules of the Virginia Supreme Court, the Clerk of the Disciplinary System shall assess costs.

Entered, this ____ day of March, 2002.

VIRGINIA STATE BAR DISCIPLINARY BOARD



________________________________________

Randy Ira Bellows, Second Vice Chair

1. In this connection, it is worth noting that the law traditionally affords litigants a presumption arising out of evidence that a particular item was mailed. The "mailbox rule" has been characterized as follows: "It is presumed, in the absence of evidence to the contrary, that a notice mailed to an individual in the ordinary course of business was received by that individual. This presumption arises when it appears from the record that the notice was properly addressed and duly mailed. The appearance of a properly addressed copy in the case record, together with the mailing custom or practice of the Office itself, will raise the presumption that the original was received by the addressee." Lepre v. Department of Labor, 275 F.3d 59, 62 (C.A.D.C. 2001). Here we have a copy of the letter and the Respondent's representation that it was mailed.

2. Respondent's work history is not typically a part of the written record submitted to the Board prior to a hearing, and it was not a part of the written record in this case. When Respondent disclosed during his testimony that he had been assigned as a Navy JAG to be a Special Assistant United States Attorney in the Eastern District of Virginia (which would have been at some point between 1986 and 1991), the panel chair, who is a current Assistant United States Attorney in the Eastern District of Virginia, immediately stopped the proceedings to advise the parties of his present employment and asked each party whether it objected to the chair's service on the panel. Neither the Bar nor the Respondent objected.