IN THE MATTER OF RAYMOND WILLIAM KONAN, ESQUIRE
VSB Docket # 98-052-2517
This matter came on the 5th day of February, 2002 to be heard on the Agreed Disposition of the Virginia State Bar and the Respondent, based upon the Certification of the Fifth District Committee Section II. The Agreed Disposition was considered by a duly convened panel of the Virginia State Bar Disciplinary Board consisting of Peter A. Dingman, Esquire, Karen A. Gould, Esquire, Roscoe B. Stephenson, III, Esquire, James A. Banks, Jr., Esquire and John A. Dezio, Esquire, presiding.
Noel D. Sengel, Esquire, representing the Bar, and the Respondent, Raymond William Konan, Esquire, by his counsel, Timothy A. Battle, Esquire, presented an endorsed Agreed Disposition.
Having considered the Certification and the Agreed Disposition, it is the decision of the Board that the Agreed Disposition be accepted, and the Virginia State Bar Disciplinary Board finds by clear and convincing evidence as follows:
1. At all times relevant hereto, the Respondent, Raymond William Konan, Esquire (hereinafter Respondent), has been an attorney licensed to practice law in the Commonwealth of Virginia.
2. In June of 1991, Paula Savage, the Complainant in this matter, purchased a home at 8522 Cottage Street, Vienna, VA, in Fairfax County, in her sole name. Ms. Savage was unmarried at the time she purchased the home. On November 28, 1992, Ms. Savage married the Respondent, and they resided together in Ms. Savage's home at 8522 Cottage Street. In July of 1996, Ms. Savage and the Respondent ceased marital cohabitation, and on November 1, 1996, the Respondent moved from the Cottage Street address.
3. During 1992 and 1993, Ms. Savage and the Respondent hired contractors to remodel the basement of the Cottage Street house. The contractors terminated their work on the basement remodeling of 8522 Cottage Street in late 1993.
4. In January of 1997, Ms. Savage hired Denman A. Rucker, Esquire to represent her in obtaining a divorce from the Respondent. Mr. Rucker contacted the Respondent in January of 1997 regarding the divorce. Mr. Rucker and the Respondent did not reach an agreement as to a property settlement.
5. On July 18, 1997, the Respondent filed a mechanic's lien in the land records of Fairfax County against the property located at 8522 Cottage Street, Vienna, VA. Pursuant to Virginia Code ß 43-1, et seq., the Fairfax County Circuit Court ruled that the Respondent was not entitled to file a mechanic's lien against the property, and failed to file the mechanic's lien in a timely manner.
6. In September of 1997, Mr. Rucker filed a bill of complaint for divorce on Ms. Savage's behalf in Arlington County. The Respondent filed an answer and a cross-complaint, though not so named.
7. On November 25, 1997, Mr. Rucker filed a petition to have the mechanic's lien filed by the Respondent declared invalid, and noticed the matter for hearing on December 19, 1997, a regularly-scheduled civil motions day in Fairfax County Circuit Court. On December 19, 1997, Judge Dennis Smith continued the case, over Mr. Rucker's objection, upon the Respondent's claim that it would require three hours to hear the matter. The case was continued until April 6, 1998 for a full three-hour hearing. The Court suggested that the Respondent review the facts of the matter thoroughly before proceeding to hearing on April 6, 1998, because the matter on its face indicated sanctions might be appropriate against the Respondent.
8. The matter was heard on April 6, 1998 by Judge William Plummer, and the Court declared the mechanic's lien invalid. Mr. Rucker asked for sanctions at that time. Judge Plummer ruled that the Respondent had not been given adequate notice of the sanctions motion because no sanctions had been requested in the original petition.
9. On April 10, 1998, after the mechanic's lien had been declared invalid, the Respondent filed a motion in Fairfax County Circuit Court for a Declaratory Judgment of Constructive Trust on the property located at 8522 Cottage Street.
10. On April 13, 1998, Mr. Rucker filed a motion for sanctions against the Respondent in the matter of the mechanic's lien and noticed the motion for April 17, 1998. On April 17, 1998, the sanctions motion was heard by Judge Dennis Smith. Judge Smith determined that the Respondent had not been given the requisite one week notice of the motion required by the local rules and continued the sanctions motion over until May 8, 1998 so that the Respondent could be given a proper notice. In order to prevent the twenty-one day period in which the court could amend its order from expiring, Judge Smith suspended Judge Plummer's order of April 6, 1998 until May 8, 1998 solely for the purpose of a hearing on the sanctions motion.
11. On April 17, 1998, the Respondent's motion for a Resulting or Constructive Trust on Paula Savage's home was heard by Judge Jane Roush, with only the Respondent appearing. Mr. Rucker did not appear and states he did not do so because he was unaware the matter was on the docket. In any event, Judge Roush denied the Respondent's motion without prejudice for the Respondent to address the matter in the context of an equitable distribution hearing in the pending Arlington divorce matter.
12. Ms. Savage had a contract for the sale of her house at 8522 Cottage Street which was scheduled to go to settlement on April 21, 1998. The Respondent knew of the scheduled settlement and of Ms. Savage's plans to move to upstate New York. On April 20, 1998, the day before the scheduled settlement and after the Respondent's mechanic's lien had been declared invalid, the Respondent faxed a misleading letter to Ms. Savage's real estate agent to stop the sale of the house. The settlement did not occur on April 21, 1998. It did occur several days later, but only after Ms. Savage incurred additional legal fees, agreed to escrow her funds from the sale of the house until the expiration of the appeal period for the various court orders issued in the matter, and to pay the costs of any defense required during the period of appeal.
13. On May 8, 1998, the Fairfax County Circuit Court sanctioned the Respondent $2,500.00, pursuant to Virginia Code ß 8.01-271.1, for his actions regarding the mechanic's lien. The Respondent paid the $2,500.00
The Board finds by clear and convincing evidence that such conduct on the part of Raymond William Konan, Esquire constitutes a violation of the following Rule(s) of the Virginia Code of Professional Responsibility:
DR 1-102. Misconduct.
(A) A lawyer shall not:
(4) Engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation which reflects adversely on
a lawyer's fitness to practice law.
DR 7-102 Representing a Client Within
the Bounds of the Law.
(A) In his representation of a client,
a lawyer shall not:
(1) File a suit, initiate criminal
charges, assert a position, conduct a defense, delay a trial, or take other
action on behalf of his client when he knows or when it is obvious that such
action would serve merely to harass or maliciously injure another.
(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.
It is hereby ORDERED that the Respondent shall receive a Public Reprimand with Terms as representing an appropriate sanction if this matter were to be heard. The terms and conditions shall be met by June 1, 2003 are as follows:
1. The Respondent shall become a member of and maintain his membership in the Fairfax Bar Association for the 2002 and 2003 membership years and shall establish a mentor relationship with an active member of the Fairfax Bar Association through the Fairfax Bar Association's mentor program. Such mentor shall be experienced in the area of civil litigation in state court and shall be approved by the Assistant Bar Counsel handling this case prior to the establishment of the mentor relationship. The mentor shall meet with the Respondent at least monthly for a period of one year after establishment of the relationship, and monitor whether the Respondent's practice complies with the Rules of Professional Conduct and the Legal Ethics Opinions of the Virginia State Bar and provide support and advice to the Respondent in the area of civil litigation. The Respondent shall be candid with the mentor regarding the facts of the matters being discussed and use the mentor as a sounding board before filing matters in court. The Respondent shall provide satisfactory evidence of his membership in the Fairfax Bar Association and the name of his proposed mentor to the Assistant Bar Counsel handling this case by April 30, 2002. The mentor shall report to the Assistant Bar Counsel handling this case on a monthly basis as to whether or not the Respondent has cooperated fully with the mentor in ensuring the Respondent's compliance with the Rules of Professional Conduct and Legal Ethics Opinions of the Virginia State Bar.
2. The Respondent shall complete 12 hours of continuing legal education in the area of civil litigation, approved by Virginia MCLE, in addition to the mandatory continuing legal education hours required to maintain his license to practice law in the Commonwealth of Virginia. Upon completion of such term, the Respondent shall provide the the Assistant Bar Counsel assigned to this case a copy of the MCLE form for each such course showing the course name, the number of hours of the course attended, and the date and location of the course.
Upon satisfactory proof that the above noted terms and conditions have been met, a
Public Reprimand with Terms shall then be imposed, and this matter shall be closed. If,
however, the terms and conditions have not been met by June 1, 2003, the Respondent's license
to practice law in the Commonwealth of Virginia shall be suspended for a period of three months.
It is further Ordered that, pursuant to The Rules of the Supreme Court of Virginia, Pt. 6, ß IV, Para. 13, (K)(10), the Clerk of the Disciplinary System shall assess costs against the Respondent.
It is further ORDERED that a copy teste of this Order shall be mailed by Certified Mail, Return Receipt Requested, to the Respondent, at 6001 Arlington Boulevard, Suite T-10, Falls Church, VA 22044, his last address of record with the Virginia State Bar, and by regular first-class mail the Respondent's Counsel, Timothy J. Battle, Esquire, 112 South Alfred Street, P.O. Box 19631, Alexandria, VA 22320-9631, to Senior Assistant Bar Counsel Noel D. Sengel, Virginia State Bar, 100 North Pitt Street, Suite 310, Alexandria, VA 22314.