IN THE MATTER OF ROBERT EDMUND LA
This matter was certified to the Virginia State Bar Disciplinary Board by the Fifth District Committee, Section III, and was heard on July 26, 2002, by a duly convened panel of the Disciplinary Board consisting of Karen Gould, presiding chair, Robert L. Freed, Theophlise L.Twitty, H.Taylor Williams, IV, and V. Max Beard, lay member. The Respondent, Robert Edmund La Serte, was present and represented by Rajeev Khanna, Esquire. The Virginia State Bar (hereinafter referred to as the (Bar() was represented by Seth M. Guggenheim, Assistant Bar Counsel. The proceedings were transcribed by Valarie L. Schmit of Chandler & Halasz, P.O. Box 9349, Richmond, Virginia 23227, (804) 730-1222. This matter was also heard together with the consent of the parties with VSB Docket #00-053-2018.
All required legal 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.
Findings of Fact
Upon consideration of the testimony presented and exhibits received, the Board makes the following findings of fact:
At all times relevant to this proceeding, the Respondent, Robert Edmund LaSerte has been an attorney licensed to practice law in the Commonwealth of Virginia.
In May of 1999, Steven and Sydelle P. Levy, parents of the Complainant, Captain Angel, hired the Respondent to prepare a deed conveying a piece of land in Stafford County, Virginia as a gift to Captain Angel. John Daniel Reaves, Esquire, the Respondent(s associate, prepared the deed for the Levys and Captain Angel under the supervision and as directed by the Respondent. It was the first time that John Daniel Reaves, Esq. had ever drafted a deed. The deed was executed on June 24, 1999, and filed by John Daniel Reaves in the land records of Stafford County on July 13, 1999. The deed prepared for the Levys and Captain Angel was a general warranty deed, not a deed of gift. The deed was defective as a general warranty deed in that it did not contain any tax map references, the parties( marital status, any references to prior deeds and incorrect information regarding metes and bounds. (VSB Exhibit #3g.)
On May 27, 1999, the Complainant, a physician who was a Captain in the United States Air Force and stationed in Florida, went to the Respondent(s office in Virginia, signed a fee agreement with the Respondent(s firm and paid $175.00 in advance fees for representation in the closing of a construction loan for the home she was building on the property in Stafford County, Virginia conveyed to her by her parents. (VSB Exhibit #3e.)
On July 23, 1999, the Respondent was notified by the lender that the closing
of Captain Angel(s construction loan was scheduled for July 29, 1999. The Respondent informed the lender and Captain Angel, through Mrs. Levy, that he could not go to closing on the date scheduled. (VSB Exhibit #7.) The closing was continued for ten days. The Respondent did not inform the Levys or the Complainant, Captain Angel that he was not registered to perform real estate closings under the Virginia Consumer Real Estate Settlement Protection Act. The Respondent testified that his retainer agreement with the Complainant did not require him to do a real estate closing. The Respondent testified that he was only employed by the Complainant to review legal documents and to appear at settlement to explain things to the client. The Complainant and Mrs. Levy contradicted the Respondent(s testimony regarding the scope of legal services that he had agreed to perform. The Board finds by clear and convincing evidence that the Respondent(s testimony is not credible and that he mislead Mrs. Levy and Captain Angel into believing that he was going to handle the closing for them. The Board further finds that neither the Respondent nor Mr. Reaves discussed the differences between a general warranty deed and a deed of gift with the client.
The Respondent then referred Captain Angel to Dennis Weipert, Esquire, who drafted a corrected deed, a deed of gift, conveying the property to Captain Angel, and handled the closing. (VSB Exhibit #3h.) Captain Angel was forced to pay an additional $583.99 in loan fees due to the delay in the closing caused by the Respondent, and $75.00 to Attorney Weipert to prepare the deed and additional funds to the settlement agent, Attorney Weipert(s title company, to conduct the closing. (VSB Exhibit #3i,3j,3k.)
(6) Captain Angel wrote to the Respondent on August 9, 1999 to request a refund of the $175.00 that she had advanced to the Respondent, the $75.00 she had to pay to Dennis Weipert to prepare another deed and to do the real estate closing, and the additional fees that she had to pay to close the loan because she lost her loan commitment ($583.99). (VSB Exhibit # 3b.) The Respondent failed to respond to Captain Angel(s letter and did not refund any portion of the advance fee that was paid by the Complainant, Captain Angel.
DECISION OF THE BOARD
Based upon the foregoing, the Board finds by clear and convincing evidence that undertook to represent a client in a matter in which he was not fully proficient and that he failed to associate another attorney who was competent. Respondent failed to discuss with the client what type of deed should be prepared and that Respondent(s associate, under his supervision and direction, prepared a deed that was woefully inadequate. The Board further finds by clear and convincing evidence that the Respondent failed to notify the client of his inability to perform real estate closings and failed to respond or to have his associate, Mr. Reaves, respond to the Complainant(s inquiries. The Board finds that these actions violated DR 6-101(A)(1) and (2) and DR 6-101 (C) of the Virginia Code of Professional Responsibility:
DR 6-101, Competence and Promptness.
A lawyer shall undertake representation only in matters in which:
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
The lawyer has associated with another lawyer who is competent in those matters.
(C) A lawyer shall keep a client reasonably informed about matters in which the lawyer(s services are being rendered.
The Board further finds that the
other charges of misconduct in VSB Docket No. 00-053-0760 have not been proven
by clear and convincing evidence and the Board dismisses all other charges under
this Docket Number.
Following the Board(s announcement of its findings with respect to the misconduct established, Assistant Bar Counsel and the Respondent were permitted to offer evidence in aggravation or in mitigation of such misconduct and to present argument.
Upon consideration whereof, it is ORDERED that Respondent be and he is hereby issued a PUBLIC REPRIMAND effective upon entry of this Order, with terms, which are as follows:
Within thirty days (30) of entry of the summary order, the Respondent is to make full restitution to the Complainant, Dr. Angel for the monetary losses she sustained. The restitution amount of Eight hundred Thirty Three Dollars and Eighty Nine Cents ($833.89) includes Five Hundred Eighty Three Dollars and Eighty Nine Cents ($583.89) for additional loan fees incurred due to the delay in closing caused by the Respondent, Seventy-Five Dollars ($75.00) in legal fees paid to Attorney Weipert, and One Hundred Seventy-Five Dollars ($175.00) as reimbursement for advance fees paid to the Respondent that were not refunded upon request by the Complainant. The Respondent is further ordered to pay restitution in the amount of Three Thousand Four Hundred Fifty Three ($3,453.00) since September 1, 1999 to Crestar Bank in VSB Docket Number 00-053-2018, also decided today. The Respondent is further ordered to pay interest on the aforesaid amounts to Dr. Angel and Crestar Bank in the amount of nine percent interest from September 1, 1999 until paid in full. In the alternative, if the Respondent does not comply with these terms within 30 days, then his license shall be revoked.
It is further ORDERED that, pursuant to Part Six, Section IV, Paragraph 13 (k)(10) of the Rules of the Supreme Court of Virginia, the Clerk of the Disciplinary System shall assess costs.
It is further ORDERED that the Clerk of the Disciplinary System send an attested true copy of this Order to Respondent Robert Edmund La Serte, Esquire, by certified mail, return receipt requested, at his address of record with the Virginia State Bar, 5827 Orchard Hill Lane, Clifton, Virginia 20124, to Rajeev Khanna, Respondent(s Counsel, 3912 Whispering Lane, Falls Church, VA 22041, and to Seth M. Guggenheim, Assistant Bar Counsel, Virginia State Bar, 100 N. Pitt Street, Suite 310, Alexandria, Virginia 22314.
ENTER: this _____ day of August, 2002
VIRGINIA STATE BAR DISCIPLINARY BOARD
Karen A. Gould, Second Vice Chair