VIRGINIA:

BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

IN THE MATTER OF  

RAYMOND WILLIAM KONAN, ESQUIRE                                                     

VSB DOCKET NOS.

00-052-3465 & 01-052-0361

            This matter was certified to the Virginia State Bar Disciplinary Board by a Subcommittee of the Fifth District Committee, Section II, and was heard on June 27, 2003, by a duly convened panel of the Disciplinary Board consisting of Karen A. Gould, 2nd Vice Chair, Carl Eason, Frank B. Miller, III, W. Jefferson O’Flaherty, lay member, and Taylor Williams, IV.  The Respondent, William Konan, appeared pro se.  Noel Sengel, Senior Assistant Bar Counsel, appeared as counsel for the Virginia State Bar (hereinafter “VSB”).  The proceedings were transcribed by Donna T. Chandler of Chandler & Halasz, P.O. Box 9349, Richmond, VA  23227, (804) 730-1222.

            All required notices were properly sent by the Clerk of the Disciplinary System.

            The Chair polled the panel members to determine whether any member had a personal or financial interest in this matter that might affect or reasonably be perceived to affect his or her ability to be impartial in this proceeding.  Each member, including the Chair, responded in the negative.

            VSB Exhibits 1 through 90 were admitted without objection during the liability phase of the hearing and additional Exhibits 91 and 92 were admitted during the sanctions phase.  The Respondent had Exhibits 1 through 89 admitted without objection during the liability phase and Exhibit 90 admitted during the sanction phase. 

            The Bar called Thomas Koerner to testify in Docket Number 01-052-0361 and James P. Szymkowicz to testify in Docket Number 00-052-3465.  Mr. Konan was the only witness to testify during his case in both matters.  During the sanctions phase of the hearing, after it had been determined that the Bar had proven by clear and convincing evidence that there were violations of the disciplinary rules, the Bar called Alexandre Konanykhine to testify on the impact Mr. Konan’s actions had on him.

Stipulations

            The parties stipulated to the following facts:

1.         At all times relevant hereto, Raymond William Konan, Esq. (hereinafter the Respondent), has been an attorney licensed to practice law in the Commonwealth of Virginia.  Mr. Konan received proper notice of this hearing at his last address of record with the Virginia State Bar.

Virginia State Bar Docket Number 00-052-3465

2.         In December of 1997, J.P. Szymkowicz, Esquire filed two actions for his client, Alexandre Konanykhine, Konanykhine v. Izvestia Newspapers, et al., At Law Number 97-1139, and Konanykhine v. Kommersant Publishing House, et al., At Law Number 97-1206, in the Arlington County Circuit Court, alleging defamation.  Izvestia Newspapers (Izvestia) was not represented by counsel.  Kommersant Publishing (Kommersant) was represented by Mays &

Valentine, LLP of McLean, VA, and Chadbourne & Parke, LLP, and Chadbourne & Parke of Moscow, Russia.


3.         In June of 1998, the Respondent entered his appearance in the Izvestia case as counsel for one of the defendants, Vladimir Nadeine, whose article in the Izvestia newspapers allegedly defamed Mr. Konanykhine.  The Respondent filed an answer to Mr. Konanykhine’s motion for judgment and requests for admissions. 

4.         In November of 1999, Mr. Szymkowicz served requests for discovery on Mr. Nadeine.  Mr. Nadeine’s deposition was scheduled for November 17, 1999, but did not occur.  Mr. Szymkowicz filed a motion to compel Mr. Nadeine’s response to the discovery requests and on December 3, 1999, the Court granted the motion.  On December 9, 1999, only four days before the trial, the Respondent filed Mr. Nadeine’s answers to the discovery request.  On December 10, 1999, by agreement between Mr. Symkowicz and the Respondent, Mr. Nadeine was dismissed without prejudice as a defendant in the Izvestia case.  On December 21, 1999, despite this dismissal and the fact that the December motion to compel had been issued against Mr. Nadeine, the Respondent’s own client, the Respondent filed two motions for sanctions against Mr. Konanykhine.  These motions were dismissed.

5.         On December 13, 1999, the jury found in favor of the Plaintiff, Mr. Konanykhine, in the Izvestia case and awarded him a judgment of $33,500,000.00.  Judge William T. Newman entered the final order in the case on December 16, 1999.   On December 13, 1999, during the trial in the Izvestia case (during which no counsel appeared on behalf of Izvestia), the Respondent made an oral motion for amicus curiae involvement, in full view and hearing of the jury, on behalf of Mr. Nadeine, even though Mr. Nadeine had been dismissed from the case.

6.              Also on December 13, 1999, the Respondent filed a motion for judgment

 against Mr. Konanykhine on behalf of Mr. Nadeine, alleging that Mr. Konanykhine had induced Mr. Nadeine to publish his article about Mr. Konanykhine, for which Mr. Konanykhine had always intended to file the defamation suit against Mr. Nadeine.  The motion included claims for

fraud, intentional infliction of emotional distress, tortious interference with a contractual relationship, and malicious prosecution.

7.         On December 18, 1999, Mr. Szymkowicz wrote to the Respondent, requesting that he dismiss Mr. Nadeine’s suit against Mr. Konanykhine because, as presented, the case did not state facts upon which relief could be granted.  On December 21, 1999, and again on December 26, 1999, the Respondent wrote to Mr. Symkowicz to offer terms of settlement and mutual releases of all claims.

8.         On December 28, 1999, Mr. Szymkowicz, on behalf of Mr. Konanykhine, filed a demurrer, plea in bar, motion for bill of particulars, counterclaim and motion for sanctions in Mr. Nadeine’s case against Mr. Konanykhine.

9.         On December 23, 1999, even though his client Mr. Nadeine had been dismissed from the case, and even though the Respondent had been present for at least a portion of the trial, the Respondent filed a motion to disclose the identity of the court reporter who had recorded the Izvestia trial on December 13, 1999.  On December 30, 1999, and January 3, 2000, the

Respondent wrote to Mr. Szymkowicz demanding clarification of “questionable statements” that Mr. Konanykhine made during the Izvestia trial.  On January 4, 2000, Mr. Szymkowicz wrote to the Respondent that his client would not comment on the Respondent’s allegations.


10.       On January 5, 2000, the Respondent filed a motion for reconsideration of the Izvestia judgment, supposedly on behalf of Mr. Nadeine, even though Mr. Nadeine had been dismissed as a defendant in the suit by the Court.  The Respondent also wrote to Mr. Szymkowicz informing him that if Mr. Konanykhine paid Mr. Nadeine $475,000.00, he and Mr. Nadeine would release both Mr. Konanykhine and Mr. Szymkowicz from liability, even though Mr. Szymkowicz was not a party to the suit.  The Respondent also stated that he was ninety-five to ninety-nine percent sure that the Court would grant his motion to revoke the judgment in favor of Mr. Konanykhine, and possibly would dismiss the suit with prejudice.  On or about January 10, 2000, Mr. Nadeine terminated the Respondent’s legal services.  On January 13, 2000, after the Clerk’s Office had closed, the Respondent attempted to remove his motions from the Court’s January 14, 2000 docket, but without success.  He also filed a motion to withdraw as counsel for Mr. Nadeine in Mr. Nadeine’s suit against Mr. Konanykhine.  On January 14, 2000, Mr. Szymkowicz appeared to argue the motions.  The Respondent did not appear.  The court sanctioned the Respondent and his client $1,000.00 for filing the motions.  However, these sanctions were later rescinded.

11.       Also on January 14, 2000, the Respondent filed a notice of appeal on behalf of Izvestia after receiving a telephone message from Izvestia.  On that same day, Mark MacDougall, Esquire, of the firm Akin, Gump, Strauss, Hauer & Field, LLP, called Mr. Szymkowicz and informed him that his firm represented Izvestia in its appeal of the verdict.   At a later time, Mr. Mcdougall did state the Respondent had been briefly retained by Isvestia, and then replaced his firm.  


12.       Also on January 14, 2000, Mr. Nadeine faxed a letter to Mr. Szymkowicz, informing him that as of January 10, 2000, he had released the Respondent as his counsel in his suit against Mr. Konanykhine, and that he would be representing himself until he found new counsel.  Mr. Nadeine stated he would also seek reconsideration of several motions which the Respondent had filed in the suit against Mr. Konanykhine.  On January 20, 2000, the Court entered the order allowing the Respondent’s withdrawal as counsel for Mr. Nadeine.  By a formal agreement dated January 26, 2000, Mr. Nadeine rehired the Respondent.  Prior to that date, on January 14, 200, Mr. Nadeine contacted the Respondent to apologize for terminating his services and began the process of rehiring him.

13.       On January 19, 2000, the Akin Gump firm filed a notice of appeal of the Izvestia verdict, without mentioning the notice of appeal previously filed by the Respondent.  Akin Gump filed the notice of appeal one day too late.  Subsequently, the Akin Gump firm relied upon the notice of appeal filed by the Respondent in pursuing the appeal.

14.       The trial in Mr. Konanykhine’s suit against Kommersant Publishing began on January 19, 2000.  That morning, the Respondent entered his appearance as counsel for Kommersant, having been retained by the company just that morning.  At the trial, the jury found in favor of Mr. Konanykhine and awarded him $3,000,000.00, less than the $200,000,000.00 requested.

15.       By second facsimile letter, Mr. Nadeine informed Mr. Szymkowicz that the Respondent’s representation of him had ended in the Izvestia case when Mr. Nadeine was dismissed from the Izvestia case, noting that the dismissal was without his knowledge or consent.  Mr. Nadeine also requested copies of the motions that the Respondent had supposedly filed on Mr. Nadeine’s behalf in the Izvestia case, without Mr. Nadeine’s consent.  Later, Mr. Nadeine contradicted these assertions.

16.       On January 28, 2000, Mr. Szymkowicz filed a motion to strike the notice of appeal of the Izvestia verdict and the pleadings in the suit against Mr. Konanykhine filed by the Respondent, but the court denied his motion.  On February 10, 2000, the Respondent filed a

motion to withdraw as counsel for Izvestia, with the Akin Gump firm entering its appearance as substitute counsel. 

17.       On January 31, 2000, the Respondent filed a demurrer in Mr. Nadeine’s case against Mr. Konanykhine.  In this demurrer, he attempted to use the fact that the statute of limitations had run as a defense to Mr. Konanykhine’s claims.  Under § 8.01-235 of the Code of Virginia, this defense cannot be established by a demurrer.  On February 9, 2000, the Respondent filed a Response to Mr. Konanykhine’s motion to strike his pleadings, including an affidavit from Mr. Nadeine confirming and ratifying the pleadings filed by the Respondent.

18.       On March 2, 2000, on behalf of Mr. Konanykhine, Mr. Szymkowicz served a first consolidated discovery request on Mr. Nadeine, through the Respondent, in the suit against Mr. Konanykhine.  On March 23, 2000, the Respondent served his client’s response to the request.  In the response, Mr. Nadeine refused to respond to all eighteen interrogatories propounded.  On March 24, 2000, Mr. Szymkowicz filed a motion to compel Mr. Nadeine’s responses to discovery.  On March 31, 2000, the Court granted the motion and gave Mr. Nadeine seventeen days to file a proper response.  On April 17, 2000, the Respondent filed a second response to interrogatories for Mr. Nadeine without Mr. Nadeine’s signature under oath as required by Rule 4:8 of the Rules of Virginia Supreme Court.  On May 17, 2000, Mr. Szymkowicz filed a second motion to compel, which was set for hearing on May 26, 2000.  The Respondent failed to appear at that hearing and the Court sanctioned him $1,050.00.

19.       The Respondent filed a notice of appeal of the Kommersant verdict.  Mr. Szymkowicz filed a motion for a protective order to prevent the filing of the Kommersant trial transcript.  The motion was scheduled for hearing on March 31, 2000, but the Court did not hear arguments that day. The transcript was filed on March 31, 2000.  The Respondent did not file a petition for appeal of the Kommersant verdict by the May 12, 2000 deadline.  The Respondent states that he did not do so because the Isvestia judgment was vacated on March 10, 2000.

20.       On June 13, 2000, the Court dismissed with prejudice Mr. Nadeine’s claims of fraud, intentional infliction of emotional distress, and tortious interference with a contract against Mr. Konanykhine, and the malicious prosecution claim without prejudice.  The Court sanctioned the Respondent and Mr. Nadeine $5,000.00 for filing the claims. 

21.       In a deposition on June 23, 2000, Mr. Nadeine said that he had no knowledge that his claims against Mr. Konanykhine had been dismissed on June 13, 2000.  Also on June 23, 2000, the Respondent filed a motion for sanctions in Mr. Nadeine’s suit against Mr. Konanykhine.  The Respondent also filed an amended motion for judgement in the case which contained only the claim of malicious prosecution.  On July 28, 2000, the Court granted Mr. Konanykhine’s demurrer, dismissed the case, and awarded $22,680.61 in sanctions against the Respondent.  The Respondent filed a motion for reconsideration which was denied on August 11, 2000.  The Court again sanctioned the Respondent, in the amount of $2,000.00.  On August 31, 2000, the Court found the Respondent in contempt of court for his failure to pay any of these sanctions.  The Respondent states that the order requiring him to pay sanctions had no date by which the payments were due.

22.       The Respondent filed a notice of appeal of the dismissal of the case against Mr. Konanykhine.  He filed his statement of facts for appeal on September 25, 2000, after the statutory due date had passed.  By order entered October 13, 2000, the Court ruled that the

Respondent’s statement of facts for appeal, in addition to being untimely filed, was incomplete, and struck it from the record. 

23.       By order entered November 9, 2000, Judge Newman found the Respondent in contempt of court.

24.       On November 27, 2000, the Respondent filed a motion to vacate the November 9, 2000 order of contempt.  By opinion dated September 25, 2001, the Virginia Court of Appeals  affirmed the contempt order of November 9, 2000.  The Respondent then attempted to appeal the Virginia Court of Appeals ruling to the Virginia Supreme Court.  His petition for appeal was denied certiorari.  The Respondent then filed a petition for rehearing which was denied by order entered June 7, 2002.

Virginia State Bar Docket Number 01-052-0361

25.       In 1996, the Complainant, Thomas F. Koerner, Jr., Esq., filed a libel action on behalf of his client, Zahid Hameedi, against a publication, the Urdu Times, in the Circuit Court of Arlington County, Hameedi v. Urdu Times, Inc., et al., At Law 96-765.  On or about June 18,

1999, the Respondent, counsel for the defendants, filed a motion to have the case dismissed, with the consent of Mr. Hameedi.  The agreed consent order reserved the issue of attorney’s fees for later consideration. 

26.       On June 25, 1999, Judge William T. Newman, Jr. heard arguments by counsel on the Respondent’s motion for attorney’s fees and then denied the motion.  However, the judge did not direct either counsel to prepare an order, and did not enter an order of his own.

27.       On August 12, 1999, Judge Benjamin Kendrick entered the consent order, signed by both parties, dismissing the case, and reserving the the issue of attorneys fees for later consideration.  On August 17, 1999, Judge Kendrick entered another order, prepared by the Respondent and filed by the Respondent with the original motion, which order dismissed the case but granted the Respondent’s motion for attorneys’s fee for his client in the amount of $1,870.00.  The Complainant had not signed that order.  On September 30, 1999, the Respondent faxed the Complainant a letter regarding the attorney’s fees ordered by Judge Kendrick. After nearly a year had passed without any action by opposing counsel, on August 10, 2000, the Respondent faxed the Complainant another letter demanding payment of the attorney’s fees.  On September 22, 2000, the Complainant filed a motion to vacate Judge Kendrick’s order of August 17, 1999 and enter Judge Newman’s original ruling of June 25, 1999, on the basis of a clerical error.

28.       On October 6, 2000, the Complainant’s motion was heard.  Judge Kendrick vacated and set aside his order of August 17, 1999.

29.       The Respondent appealed the order of October 6, 2000 to the Virginia Supreme Court, claiming that Judge Kendrick lacked jurisdiction to set aside the order he entered on August 17, 1999 granting attorney’s fees.  During oral argument, a Supreme Court justice asked the Respondent if he had had an obligation to be honest and candid with Judge Kendrick.  The Supreme Court determined that Judge Kendrick did have jurisdiction to set aside the order granting attorney’s fees because of a clerical error.  The Court affirmed Judge Kendrick’s vacation of his August 17, 1999 order on the basis of a clerical error only.  The Court noted that it was troubled by the position the Respondent took before Judge Kendrick.

Charges Certified to the Disciplinary Board

The Subcommittee Certification charged the Respondent with the following ethical violations from the Disciplinary Rules and analogous Rules of Professional Conduct for the conduct that occurred in 2000 and thereafter:

DR 1‑102. Misconduct.

(A)      A lawyer shall not:

(3)       Commit a crime or other deliberately wrongful act that reflects adversely on the lawyer's fitness to practice law.

(4)       Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on a lawyer's fitness to practice law.

DR 6‑101.  Competence and Promptness.

(A)      A lawyer shall undertake representation only in matters in which:

(1)       The lawyer can act with competence and demonstrate the specific legal knowledge, skill, efficiency, and thoroughness in preparation employed in acceptable practice by lawyers undertaking similar matters, or

(2)       The lawyer has associated with another lawyer who is competent in those matters.

(B)       A lawyer shall attend promptly to matters undertaken for a client until completed or until the lawyer has properly and completely withdrawn from representing the client.

(C)       A lawyer shall keep a client reasonably informed about matters in which the lawyer's services are being rendered.

(D)      A lawyer shall inform his client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter.


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.

(3)       Conceal or knowingly fail to disclose that which he is required by law to reveal.

(5)       Knowingly make a false statement of law or fact.

RULE 1.1   Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

RULE 1.3   Diligence

(a)        A lawyer shall act with reasonable diligence and promptness in representing a client.

(b)       A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but may withdraw as permitted under Rule 1.16.

(c)        A lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3.

RULE 1.4   Communication

(a)        A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b)       A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

(c)        A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter.

RULE 3.1   Meritorious Claims And Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

RULE 3.4   Fairness To Opposing Party And Counsel

A lawyer shall not:

(i)        File a suit, initiate criminal charges, assert a position, conduct a defense, delay a trial, or take other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.

RULE 8.4   Misconduct

It is professional misconduct for a lawyer to:

(b)       commit a criminal or deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer;

(c)        engage in professional conduct involving dishonesty, fraud, deceit or misrepresentation…..

Disciplinary Rule Findings

            After hearing the testimony present, the arguments of the Bar and the Respondent, and having considered the stipulations entered into by the parties and the documentary evidence presented, as well as the Rules of Court, statutes and calendars of which the Board took judicial notice, the Board makes the following findings:

VSB Docket No. 01-052-0361 (aka “the Koerner matter”)

            In VSB Docket No. 01-052-0361 (aka “the Koerner matter”), the Board finds that the Bar failed to prove by clear and convincing evidence that Mr. Konan had violated DR 7-102(A)(1) and Rule 3.4.  The Board further finds, however, that the Bar proved by clear and convincing evidence that Mr. Konan violated DR 1-102(A)(3) and (4) prior to 1999 and analogous Rule 8.4 for the period when the Rules of Professional Conduct were effective in 2000.

            While basing its decision upon all the evidence adduced in this matter at the hearing, as well as the documentary evidence, the Board was particularly influenced in the Koerner matter by the fact that the Respondent pursued collection of the attorneys’ fees supposedly awarded by Judge Newman when he knew or should have known that the Order awarding the attorneys’ fees had been entered in error.  His client’s motion for attorneys’ fees had previously been denied by one judge.  (Stipulation ¶ 26.)  The case had already been dismissed, yet the order granting the attorneys’ fees referred again to dismissal of the action.  (VSB Exhibits 81 and 82.)  In addition, Mr. Konan had done nothing to bring on for hearing the issue of the attorneys’ fees such as a motion for reconsideration.  There were no endorsement of the sketch order by plaintiff’s counsel, nor was there a recitation in the order that the court was dispensing with endorsement as was required by the Rules of the Supreme Court of Virginia.  (VSB Exhibit 82.) 

Mr. Konan tried to excuse his actions in pursing collection of the $1870 by saying that his initial fax to the plaintiff’s counsel simply asked him how he or his client plans to “handle this.”  (VSB Exhibit 83.)  This disingenuous explanation is belied, however, by the testimony of Mr. Koerner in which he described their subsequent telephone conversation as involving a demand by Mr. Konan to pay the attorneys’ fees.  It is also belied by the subsequent written communication from Mr. Konan in which he stated that “I wrote to you about this needed payment last year, but we still have not received any payment or payment plan….”  (VSB Exhibit 84.) 

After plaintiff’s counsel filed a motion to vacate the order awarding attorneys’ fees, Mr. Konan further engaged in unethical conduct by failing to disclose in his response the salient fact that one judge had already denied the request for attorneys’ fees.  (VSB Exhibit 87.)  After the order was vacated (VSB Exhibit 85), Mr. Konan pursued the matter by appealing the decision to the Virginia Supreme Court.  When asked by one of the justices of the Supreme Court whether he owed a duty of candor to the circuit court judge regarding the denial of the request of attorneys’ fees (having failed to mention it in his argument), Mr. Konan responded that his duty was to his client.  This evidence was presented through the testimony of Mr. Koerner and was unrebutted by Mr. Konan.  The Supreme Court commented in its order that it was “troubled by the position taken by counsel before that court.”  (VSB Exhibit 90.) 

The Board felt that the conduct proven by the Bar in connection with the Koerner matter was egregious and was a violation of DR 6-102(A)(3) and (4) in that it was a deliberately wrongful act that reflects adversely on the lawyer's fitness to practice law, as well as being deceitful.

VSB Docket No. 00-052-3465 (aka “the Szymkowicz matter”

 or “Russian newspaper cases”)

            In VSB Docket No. 00-052-3465 (aka “the Szymkowicz matter” or “Russian newspaper cases”), the Board finds that the Bar failed to prove violations of DR 7-102(A)(1) and Rule 3.4, but finds that the Bar proved violations of the following rules by clear and convincing evidence:  DR 1-102(A)(3) and (4) and analogous Rule 8.4 covering the conduct occurring subsequent to adoption of the Rules of Professional Conduct; DR 6-101 and analogous Rules 1.1, 1.3 and 1.4; and DR 7-102(A)(2), (3), and (5), and analogous Rule 3.1.

            While basing its decision upon all the evidence adduced in this matter at the hearing, as well as the documentary evidence, the Board was persuaded that Mr. Konan had engaged in violations of these disciplinary rules by his pattern and practice of forging ahead with positions that were not well based in law or fact.  For instance, after his client, Mr. Nadeine had been dismissed from a lawsuit  brought by Alexandre Konanykhine against Izvestia Newspapers and Mr. Nadeine (hereinafter the “Izvestia lawsuit”), Mr. Konan appeared in court during the trial and asked the court to permit him to participate as an amicus curiae.  His brief filed in support of that motion (VSB Exhibit 14) referred to Rule 5:30 of the Rules of the Supreme Court as the predicate for this action.  Even at the time of the Disciplinary Board hearing, Mr. Konan testified that Supreme Court Rule 5:30 was the basis for filing an amicus curiae brief in circuit court.  When it was pointed out to him that Rule 5:30 dealt with procedure for amicus curiae in the Supreme Court, Mr. Konan then resorted to arguing that there was no authority that established he could not request the trial court’s permission to appear as an amicus curiae.

            Another example of Mr. Konan’s ill founded and vexatious actions was his filing a motion for sanctions in the Izvestia lawsuit, again after his client had been dismissed, seeking an award of attorneys’ fees and expenses incurred in defense of that matter amounting to $6,315.  (VSB Exhibit 18.)  One of the bases of the motion for sanctions was that Mr. Konanykhine was in contempt of court for refusing to sit for deposition as ordered by the court.  (Id.)   There was no order requiring Mr. Konanykhine to sit for deposition.  There was no order finding that Mr. Konanykhine was in contempt of court.  There was an order that required Mr. Konan’s client, Mr. Nadeine, to sit for depositions, “when both Plaintiff and Defendant Nadeine can be present, no later than Friday, December 10, 1999.”  (VSB Exhibit 12.)

Mr. Konan also filed a motion to disclose the identity of the court reporter who transcribed the Izvestia trial (VSB Exhibit 19) after his client had been dismissed from the case.  The motion for sanctions and the motion to disclose the identity of the court reporter, as well as two other motions filed by Mr. Konan seeking to overturn the Izvestia judgment (VSB Exhibit 25), although he was not representing any party in the litigation at that time, were denied by the court.  (VSB Exhibit 30.)

Mr. Konan’s services were terminated by his client, Mr. Nadeine in January of 1999.  (VSB Exhibit 14.)  Mr. Szymkowicz, Mr. Konanykhine’s attorney, received a fax from Mr. Nadeine on January 14, 2000, notifying him of this fact.  (VSB Exhibit 28.)  In this fax, Mr. Nadeine stated that he would seek reconsideration of several recent legal motions, “launched by my former attorney without my knowledge and approval.”  Mr. Konan pointed to an affidavit attached to his answer to the Symkowicz complaint as being proof that Mr. Nadeine was lying when he made the statement that he (Mr. Konan) had acted without authorization.  Upon further questioning of Mr. Konan by the Board, it was clear that the affidavit in the Disciplinary Board’s file attached to the answer was not executed by Mr. Nadeine, although Mr. Konan indicated that an executed copy of the affidavit was included in the materials as an exhibit.  Later in the hearing, Mr. Nadeine pointed to VSB Exhibit 44 as being the same affidavit.  However, that affidavit, while similar in content is dated February 8, 2000, as opposed to the affidavit attached to the answer, which is dated February 4, 2000.  Mr. Konan frankly admitted that he drafted the affidavit, which the Board felt was a self-serving document.  The Board is of the opinion that the earlier fax by Mr. Nadeine was a more reliable indicator of what had actually transpired at the time.  This conclusion is bolstered by another memorandum from Mr. Nadeine, albeit undated, in which he states “his duty to represent me was terminated after he agreed to my dismissal from the hearing KONANYKHINE v. IZVESTIA without my knowledge and approval.”  (VSB Exhibit 34.)  Mr. Nadeine further stated, “As for this time, Mr. Konanykhine failed to provide me with documents pertaining to all the Motions made upon my name after December 15, 1999.”  Mr. Symkowicz testified that he believed Mr. Nadeine had mistakenly referred to Mr. Konanykhine in this sentence, when he meant to refer to Mr. Konan, because Mr. Konanykhine, Mr. Symkowicz’s client, had never provided Mr. Nadeine with any documents.

            Mr. Konan also filed a motion for judgment against Mr. Konanykhine on behalf of Mr. Nadeine for “Fraud, Malicious Lawsuit, Interference with Contract Business and Intentional Infliction of Emotional Distress.”  (VSB Exhibit 15.)   Plaintiff’s counsel, Mr. Szymkowicz, wrote to Mr. Konan and asked that the lawsuit be dismissed as not properly founded in law or fact.  (VSB Exhibit 16.)  Mr. Konan’s response to this letter was to write and demand $725,000 from Mr. Konanykhine (VSB Exhibit 17), which demand was later reduced to $475000.  (VSB Exhibit 25.)  Mr. Szymkowicz testified that he felt these letters were basically extortion attempts on the part of Mr. Konan, in that the lawsuit filed on Mr. Nadeine’s behalf was not well based in fact or law and the letters referred to dismissal of Mr. Konan’s claims against he and his client, when there were no such claims pending or asserted. 

            Another example of Mr. Konan engaging in wrongful conduct by playing fast and loose with the truth is demonstrated by an order entered by the Arlington County Circuit Court on March 13, 2000, granting Mr. Konanykhine’s motion to strike statements which falsely claimed that he had violated a court order.  (VSB Exhibit 47.)  The statements were made by Mr. Konan in pleadings filed on behalf of Mr. Nadeine, the plaintiff in that lawsuit.

After filing the lawsuit against Mr. Konanykhine on behalf of Mr. Nadeine, Mr. Konan failed to follow through in answering discovery propounded by the defendant.  Because of this, the defendant was forced to file a motion to compel.  That motion was granted on March 31, 2000.  (VSB Exhibit 48.)  Mr. Konan then failed to comply with the court’s order of March 31, 2000, which resulted in the court entering a further order on May 26, 2000, granting a second motion to compel and sanctioning Mr. Konan and his client $1,050.  (VSB Exhibit 49.)  No testimony or explanation was provided by Mr. Konan at the hearing before the Disciplinary Board explaining why the failure to comply with the first order granting the motion to compel was anything but the result of incompetence on his part. 

Meanwhile, Mr. Konanykhine had filed responsive pleadings to the Nadeine lawsuit, seeking to have it dismissed for failure to state a claim and other reasons.  (VSB Exhibit 21.)  The Nadeine lawsuit against Mr. Konanykhine was dismissed by the court on June 13, 2000, although Mr. Konan was permitted to amend the “Malicious Lawsuit” count if he could plead sufficient facts to state a claim.  (VSB Exhibit 51.)  The court awarded $5,000 to Mr. Konanykhine for attorneys’ fees against Mr. Konan and his client for having to defend against a motion for judgment which had been filed without any basis in fact or law.  (Id.)  Mr. Konan did file an Amended Motion for Judgment, but it was also dismissed, and the court awarded $22,680.61 against Mr. Konan alone for filing pleadings “which were not well grounded in fact or warranted by existing law or a good faith argument for the extension, modification or reversal of existing law in violation of Va. Code § 8.01-271.1.”  (VSB Exhibit 55.)  After Mr. Konan filed a motion for reconsideration of the issue of the sanctions awarded (VSB Exhibit  56), the court denied the motion and awarded Mr. Konanykhine an additional $2,000 in sanctions from Mr. Konan, finding that the motion for reconsideration was also in violation of Va. Code § 8.01-271.1.

Mr. Konan failed to pay the sanctions awarded against him to Mr. Konanykhine in a timely fashion.  After a hearing in which it was found that he had failed to establish an inability to pay the sanctions, Mr. Konan was found to be in contempt of court.  (VSB Exhibit 62.)  After Mr. Konan promised to post bond to appeal the sanctions awards, but failed to do so, he was then found to have willfully attempted to mislead the court in a filing in connection with an appeal of the award of sanctions, and the contempt and sanctions awards were reinstated.  (VSB Exhibit 68.)  Appeals of the court’s orders resulted in the orders being affirmed by the Virginia Supreme Court.  (VSB Exhibits 70-76.)

Mr. Konan defended his actions in the Nadeine v. Konanykhine case, including the actions that resulted in the five orders assessing sanctions against him and being held in contempt of court, as justified and appropriate, on the basis that they were undertaken in defense of his clients.  He expressed no remorse for his conduct during the liability phase of the hearing for his actions.

Another defamation lawsuit brought by Mr. Konanykhine against Kommersant Publishing was defended by Mr. Konan, who was hired at the last moment before trial.  A 3 million dollar judgment resulted, which Mr. Konan was supposed to appeal.  The appeal was dismissed because the transcript was not timely filed.  Mr. Konan claimed that he did not file the transcript because his client had decided not to pursue the appeal, but this argument simply does not make sense because the transcript was filed, albeit late.

The facts discussed above are examples of the conduct engaged in by Mr. Konan.  There was additional testimony and documentary evidence of similar behavior.  It was the totality of the evidence, as established by the testimony and the documentary evidence, that persuaded the Board that Mr. Konan had engaged in a pattern and practice of ill founded and vexatious litigation, and that he did not consider himself bound by any duty of truthfulness.  He played fast and loose with the truth in his factual representations to the court, as well as in his legal pleadings, irrespective of whether they were well based in law or fact. 

After the Board made its finding that Mr. Konan had violated the disciplinary rules set forth above, it learned of his disciplinary record.  Upon finding that Mr. Konan had been found guilty of similar behavior in another matter and received a public reprimand (in addition to a private reprimand in another matter) and after hearing Mr. Konanykhine testify of the impact Mr. Konan’s actions had upon him, as well as Mr. Konan’s testimony during the sanctions phase, the Board voted to revoke Mr. Konan’s license to practice law, feeling that he was a danger to the integrity of the legal system in Virginia.

ACCORDINGLY IT IS ORDERED that the license of Raymond William Konan be, and the same is hereby REVOKED effective June 27, 2003.  It is further ORDERED that, as directed in the Board’s June 27, 2003, Summary Order in this matter, Respondent must comply with the requirements of Part Six, Section IV, Paragraph 13.M, of the Rules of the Supreme Court of Virginia. All issues concerning the adequacy of the notice and arrangements required by the Summary Order shall be determined by the Board. 

It is further ORDERED that costs shall be assessed against the Respondent in accordance with the Rules of the Supreme Court of Virginia, Part Six, Section IV, Paragraph 13.B.8.c, and the Respondent shall comply therewith. 

It is FINALLY ORDERED that the Clerk of the Disciplinary System forward a copy of this order to the Respondent, by certified mail, at his address of record with the Virginia State Bar, and to Noel Sengel, Senior Assistant Bar Counsel, 100 N. Pitt St., Suite 310, Alexandria, VA  22314.

ENTERED this ____ day of July, 2003.

VIRGINIA STATE BAR DISCIPLINARY BOARD

By: _______________________________________

Karen A. Gould, 2nd Vice Chair