Pursuant to Part 6:§ IV, ¶13(B)(5) of the Rules of the Supreme Court of Virginia, the First District Subcommittee of the Virginia State Bar hereby serves upon the Respondent the following
2. From 1988 through January 31, 1998, Mr. Marsey was employed as a full time associate at the law firm of Glasser & Macon, P.C., in Chesapeake, Virginia. Initially, his pay arrangement was a salary plus 50 percent of the receipts from cases he originated and brought to the law firm, and derived from his efforts in those cases. Subsequently, his salary was increased to $32,000 per year plus one third of the receipts derived from cases that he originated and brought to the law firm, and derived from his efforts in those cases.
3. During 1997, Messrs. Glasser
and Macon became aware of a client who was referred to their law firm by an
individual who had previously referred other clients to their firm. They were
previously unaware of the referral because, unbeknownst to them, Marsey had
referred the client to another law firm. When Marsey referred the client to
the other firm, he instructed the client to execute a retainer agreement with
the other law firm without reference to Glasser & Macon. The referral to the
other firm included an oral agreement to pay a portion of any recovery to Glasser
& Macon, all without the knowledge of Messrs. Glasser and Macon. Mr. Marsey
never opened a file on this case at the law firm of Glasser & Macon, and none
was ever created there. The client never executed a retainer agreement at Glasser
& Macon, and no evidence regarding the case existed there.
4. As a result of these actions, Glasser & Macon terminated Mr. Marsey's employment on January 31, 1998. During their exit discussions, Mr. Glasser inquired of Mr. Marsey about whether there were any other cases that Mr. Marsey had referred to other lawyers or law firms without advising them. Mr. Marsey responded that there were no such other cases.
5. Messrs. Glasser and Macon also asked Mr. Marsey to prepare a list of all outstanding and closed cases that he had been involved with while employed at the firm. In response, Mr. Marsey prepared and submitted a list.
6. After Marsey's termination from the firm, Glasser & Macon received correspondence from the law firm of Huff, Poole, & Mahoney enclosing a check in the amount of $8,333 payable to Steven Jay Marsey, Esq., and Glasser & Macon. The letter, addressed to Mr. Marsey, referenced the case of Botelis v. Oak Crest Manor, and indicated that the check was his firm's share of the settlement in that matter. The letter closed by thanking Mr. Marsey for referring the case to them. Messrs. Glasser and Macon had never heard of the case, and Mr. Marsey did not list it on the list of outstanding cases.
7. Unbeknownst to Messrs. Glasser and Macon, Mr. Marsey previously referred the Botelis case to the law firm of Huff, Poole, and Mahoney with the agreement that he would receive one third of any attorney's fees recovered. The case settled in November 1996 for a gross amount of $62,500. Huff, Poole and Mahoney received a 40 percent contingent fee of $25,000, and the check for $8,333 represented Mr. Marsey's share.
8. In anticipation of the settlement, Mr. Marsey wrote to Jeffrey F. Brooke at Huff, Poole, and Mahoney on October 22, 1996. In the letter, Marsey said that he intentionally failed to inform Glasser and Macon about the case, and asked that his check be made available for pick-up rather than mailed directly to Glasser & Macon, and that the check be made payable to Steven J. Marsey. In the letter, he misrepresented that he did not have an exclusive arrangement with Glasser & Macon. He said that Glasser & Macon would not appreciate being unable to participate in the recovery if they learned of their arrangement, and said that he appreciated Mr. Brooke's confidence in the matter.
9. In response, Huff, Poole, & Mahoney wrote to Mr. Marsey indicating that they planned to issue the check payable to Glasser & Macon, and Mr. Marsey. After receiving the letter, Marsey called Mr. Brooke demanding that the check be made payable to him only, that he had an agreement with Reeves Mahoney of that firm to receive payment that way. He said further that if they did not issue the check payable to him only, he would sue them for breach of contract, and that he would likely be fired from his job at Glasser & Macon.
10. Huff, Poole & Mahoney refused to issue the check to Mr. Marsey exclusively. Marsey then instructed Huff, Poole & Mahoney to withhold forwarding the $8,333.33 fee check until he requested it. Glenn A. Huff of that firm confirmed this in a letter to Mr. Marsey, dated November 13, 1996. Huff, Poole & Mahoney never received any request from Mr. Marsey to forward the check, so it forwarded the check to Glasser & Macon on March 24, 1998. Upon receipt of the letter and check on March 25, 1998, Mr. Glasser wrote to Mr. Marsey by Certified Mail, Return Receipt Requested. Although he signed for the letter, Mr. Marsey never responded.
11. As a result of his conduct, an arrest warrant issued charging Marsey with attempted embezzlement of greater than $200 from Glasser & Macon, a felony, in violation of Virginia Code Section 18.2-111 (1950). The grand jury returned an indictment, and trial was held on January 21, 2000 in the Circuit Court for the City of Chesapeake. Following the presentation of the Commonwealth's evidence, Mr. Marsey's counsel made a motion to strike. The Court denied the motion. Then, pursuant to an agreement with the Commonwealth, Mr. Marsey tendered a plea of guilty to trespass, a misdemeanor, in violation of 18.2-152.4. The Court accepted the plea and sentenced him to 12 months in jail, all suspended, 200 hours of community service, and two years of probation.
12. In referring the client in the Botelis matter to Huff, Poole & Mahoney, Marsey falsely stated that Glasser & Macon did not handle that kind of case, a slip and fall case. Glasser & Macon, however, did accept such cases.
13. During 1998, Marsey referred a married couple to attorney John W. Hart concerning a loan that the couple had from Isaac Glasser. Marsey mentioned the fact that he had filed a lawsuit against Glasser & Macon. When Mr. Hart mentioned the small amount of damages asked for in the suit, Marsey said that he wanted to make Mr. Glasser sweat. Marsey encouraged Mr. Hart to file a suit against Mr. Glasser on behalf of the couple without notifying Mr. Glasser, to further embarrass Mr. Glasser. He said that he wanted to harm Mr. Glasser's reputation. According to Mr. Hart, Marsey was attempting to provide a mechanism for the couple to avoid repaying its loan to Glasser & Macon. Mr. Hart, however, settled the dispute between the couple and Mr. Glasser.
14. Upon termination of Marsey's employment by Glasser & Macon, Mr. Glasser discovered that Marsey had used firm monies for his own personal use without authorization. Specifically, Marsey used funds from a law firm account to file lawsuits on behalf of himself and members of his families relating to rental property he owned, and other matters. The law suits were of no benefit to Glasser & Macon. When confronted about his use of the law firm's monies, Marsey reimbursed Glasser for those monies that Glasser & Macon knew about at the time. Subsequently, the firm's bookkeeper requested information about other monies used by Marsey for his personal benefit without reimbursement to Glasser & Macon. Marsey declined, saying, "Good luck, those are personal files, not at the office."
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 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.
FIRST DISTRICT SUBCOMMITTEE
OF THE VIRGINIA STATE BAR
John D. Eure, Jr.
Edward L. Davis
Assistant Bar Counsel