BEFORE THE THIRD DISTRICT COMMITTEE -SECTION II
OF THE VIRGINIA STATE BAR
IN THE MATTER OF
JAMES ALFRED MCCAULEY
VSB Docket No. 99-032-2778
DISTRICT COMMITTEE DETERMINATION
(Dismissal with Terms)
On June 17, 2003, a hearing in this matter was held before a duly-convened panel from the Third District Committee, Section II, consisting of Richard Keith Newman, Esquire, Mr. John B. Daly, lay member, John Tracy Walker, IV, Esquire, William Jacob Viverette, Esquire, Thomas Ogburn Bondurant, Esquire, and Cary Atwood Ralston, Esquire, Chair. The bar appeared by its Special Counsel, Christopher C. Spencer and Robyn P. Ayers, and by its Assistant Bar Counsel Paul D. Georgiadis. The Respondent, James Alfred McCauley, was present and was represented by Charles F. Witthoefft, Michael L. Rigsby, and Rodney A. Smolla. Pursuant to Virginia Supreme Court Rules of Court Part Six, Section IV, Paragraph 13 H 2 l(2)(c), the Third District Committee - Section II, of the Virginia State Bar hereby serves upon the Respondent, James Alfred McCauley, the following Dismissal with Terms.
I. FINDINGS OF FACT
1. At all times material to these allegations, the Respondent, James Alfred McCauley, hereinafter “Respondent”, has been an attorney licensed to practice law in the Commonwealth of Virginia.
2. Respondent and his firm Marks & Harrison caused to be broadcast throughout Central Virginia television advertisements for legal services entitled “Shredder”, “Strategy Session,” “Stonewall,” and “Choker.”
3. Respondent is a principal and officer of Marks & Harrison and enabled the advertisements to be broadcast by entering into a Licensing and Service Agreement between Marks & Harrison and Market Masters-Legal.
II. NATURE OF MISCONDUCT
Such conduct on the part of Respondent constitutes misconduct in violation of the following Rule of the Virginia Rules of Professional Conduct:
RULE 7.1 Communications And Advertising Concerning A Lawyer's Services
(a) A lawyer shall not, on behalf of the lawyer or any other lawyer affiliated with the lawyer or the firm, use or participate in the use of any form of public communication if such communication contains a false, fraudulent, misleading, or deceptive statement or claim.
III. DISMISSAL WITH TERMS
Finding a violation of the aforesaid Rule of Professional Conduct, the Committee is dismissing this matter with terms, the compliance with such terms being a predicate for dismissal of this complaint. The following terms and conditions shall be met on or before 45 days from the service of this order upon Respondent, with service of this document deemed effective and served on the date when mailed to Respondent by certified mail, return receipt requested:
All current and future advertisements of the same nature as those introduced in evidence at the hearing shall:
1) contain the following disclaimer:
Dramatization by actors. The outcome of your case depends on its facts and merits and is not guaranteed. No comparison with other lawyers is stated or implied.
2) Said disclaimer shall appear in a type size that is at least five percent of the entire vertical broadcast signal, and the text of the disclaimer shall be of a color that contrasts with the background so that each word is clear and legible, and displayed for at least five seconds.
If, however, Respondent fails to meet the specified terms within the time set forth, the Third District Committee–Section II, shall impose a Public Reprimand. If an issue arises about the Respondent’s compliance with the terms, the district committee shall conduct a hearing as to whether the Respondent has fulfilled the terms and whether the alternate sanction of a Public Reprimand should be imposed. The Respondent will have the burden of proof at any such hearing.
Pursuant to Virginia Supreme Court Rules of Court Part 6, Section IV, ¶ 13(B)(8)(c), the Clerk of the Disciplinary System shall assess costs.
THIRD DISTRICT COMMITTEE - SECTION II
OF THE VIRGINIA STATE BAR
Cary Atwood Ralston
CERTIFICATE OF SERVICE
I certify I have this the _____ day of _________________, 2003, mailed by CERTIFIED MAIL, RETURN RECEIPT REQUESTED, a true and correct copy of the District Committee Determination (Dismissal with Terms) to the Respondent, James Alfred McCauley, Marks & Harrison, P.C., 1512 Willow Lawn Drive, P.O. Box 6569, Richmond, Virginia 23230-0569, his last address of record with the Virginia State Bar, and via First Class U.S. Mail, postage pre-paid, to Respondent’s counsel, Charles F. Witthoefft, Esquire, Hirschler Fleisher, P.C., P.O. Box 500, Richmond, Virginia 23218-500, to Rodney A. Smolla, Dean and Professor of Law, The T.C. Williams School of Law, University of Richmond, Virginia 23173, and to Michael L. Rigsby, Carrell, Rice & Rigsby, 7275 Glen Forest Drive, Suite 309, Richmond, Virginia 23226.
Paul D. Georgiadis
Assistant Bar Counsel