VIRGINIA:

BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

IN THE MATTER OF JOHN LYDON MCGANN
Virginia State Bar Docket Number 98-041-0972

On August 24, 2001, this matter came before the Virginia State Bar Disciplinary Board on appeal from the Fourth District-Section I District Committee Determination imposing a Public Reprimand with Terms on the Respondent. A duly convened panel of the Virginia State Bar Disciplinary Board consisting of Donna A. Decorleto, Janipher W. Robinson, Theophlise L. Twitty, H. Taylor Williams, IV, and Randy I. Bellows, Second Vice Chair, presiding, heard the matter.

The Respondent, John Lydon McGann, appeared in person and pro se. Seth M. Guggenheim, Assistant Bar Counsel, appeared as Counsel for the Virginia State Bar. The court reporter for the proceeding was Comiller T. Boyd, 105 St. Claire Lane, Richmond, Virginia 23223, telephone (804) 644-2581. The Chair opened the proceeding by polling the Board members to ascertain whether any member had a conflict of interest that would preclude him or her from serving. There were no conflicts and the matter proceeded as scheduled. The Board heard oral argument and, based on such argument and the Board's review of the record and the briefs filed by the parties, rendered its decision, as described below.

I. STANDARD OF REVIEW
Pursuant to Part 6, Section IV, Paragraph 13(D) of the Rules of the Supreme Court, the Board's review of a District Committee Determination is limited to two matters. First, the Board must determine whether the District Committee Determination is "contrary to the law or is not supported by substantial evidence," see Part 6, Section IV, Paragraph 13(D)(4)(a).1 If the Board so finds, it shall dismiss the charges of misconduct; if it does not so find, it shall affirm the District Committee Determination. Second, if the Board affirms the District Committee Determination, it must then determine whether to "impose the same or lesser sanction as that imposed by the District Committee...." See Part 6, Section IV, Paragraph 13(D)(4)(b).

II. PROCEDURAL HISTORY
On July 12, 1997, five individuals ­ Omar Mendez-Rivas, Jorge Bonilla, Carlos Hernandez, Nilson Mosquera, and Wilfredo Rodriguez ­ were arrested in Arlington, Virginia, and charged with one count of receiving stolen property and two counts of credit card theft. The Respondent was retained to represent all five individuals. The Respondent succeeded in getting each defendant's bond reduced substantially. See Transcript of District Committee Hearing at pages 25-29.

On September 10, 1997, a preliminary hearing was held, during which the Respondent represented all five defendants. At the time of the preliminary hearing, the Assistant Commonwealth Attorney for the matter, Ms. Abigail Raphael, also made plea offers to each of the defendants, through the Respondent, in which she offered to reduce the three pending felony charges against each defendant to a single misdemeanor, which would have involved some incarceration for each defendant. The Respondent rejected the plea offer on behalf of all defendants. See Transcript of Disciplinary Committee Hearing at pages 29, 46; Brief of the Virginia State Bar at page 4. The case was subsequently indicted.

On September 18, 1997, the Respondent entered an appearance on behalf of all five defendants in the Arlington County Circuit Court and the matter was scheduled for trial on November 10, 1997. See VSB Exhibit 4 before the District Committee.2

On October 17, 1997, the Respondent filed a motion before the Arlington County Circuit Court seeking to withdraw from representing four of the five defendants on the basis of "a conflict of interest." See VSB Exhibit 3 before the District Committee.3 The Respondent did not seek to withdraw from his representation of Omar Mendez-Rivas. Alternatively, the Respondent sought a severance of each defendant from the trial of his co-defendants. Id.

Shortly thereafter, the Commonwealth Attorney's Office filed a motion seeking to disqualify the Respondent from representation of the fifth defendant, Mr. Mendez-Rivas, on the grounds of a conflict of interest. See VSB Exhibit 4 before the District Committee.

On November 5, 1997, both the Commonwealth's and the Respondent's motions were heard before the Honorable Paul F. Sheridan, Arlington County Circuit Court Judge. Judge Sheridan granted both motions, resulting in Respondent's removal from the entire case. See VSB Exhibit 5 before the District Committee.4

Subsequently, each of the five defendants retained or was appointed separate counsel. Four defendants pled guilty to misdemeanors and received jail sentences of approximately six months and one defendant's case was dismissed entirely. See Brief of Virginia State Bar at pages 5-6.

On or about September 15, 2000, the Respondent was served with a Notice of Hearing before the Fourth District-Section I, alleging violations of various provisions of the Code of Professional Responsibility, to wit, DR 2-108 (A)(1)("Terminating Representation"), DR 5- 105(A), (B) and (C) ("Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer"), DR 6-101(B)(C)(D) ("Competence and Promptness"), and DR 7-101(A)(3) ("Representing a Client Zealously").

On November 8, 2000, a hearing was held before the Fourth District Committee- Section I.5 At the conclusion of the hearing, the Committee found that the Respondent had violated the following provisions of the code, specifically:

DR 2-108. Terminating Representation.

(A) ... [A] lawyer shall withdraw from representing a client if:

(1) Continuing the representation will result in a course of conduct by the lawyer that is illegal or inconsistent with the Disciplinary rules....

DR 5-105. Refusing to Accept or Continue Employment if the Interests of Another Client May Impair the Independent Judgment of the Lawyer.

(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR5-105(C).

(C) In the situations covered by DR5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each, and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.

DR6-101. Competence and Promptness.

(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.

The District Committee found that the Bar had failed to carry its burden of proof with respect to the alleged violations of DR 5-105(A), DR 6-101(D) and 7-101(A)(3). The Committee then proceeded to consider the appropriate sanction. Among other matters, it was provided information concerning the Respondent's prior disciplinary record, which consisted of a dismissal with terms in 1994, a dismissal with terms in 1996, and a public reprimand in 1994 (which was the alternative disposition for the Respondent's failure to comply with the terms of a private reprimand with terms.) See Brief of the Virginia State Bar at page 15; see also Transcript of Disciplinary Committee Hearing at pages 176-178. The Committee imposed a public reprimand with terms, such terms being the Respondent's successful completion within one year of eight hours of approved continuing legal education (six hours in criminal defense and two hours in legal ethics), which could not be applied to the Respondent's Mandatory Continuing Legal Education obligations. See Committee Determination [of] Public Reprimand, with Terms (November 20, 2000) at pages 4-5. As required, the District Committee also set forth an alternative disposition, to wit, certification to the Disciplinary Board, in the event of the Respondent's noncompliance with the terms of the Public Reprimand.

The District Committee's determination was issued on November 20, 2000 and the Respondent filed a timely Notice of Appeal, as provided for in Part 6, Section IV, Paragraph 13(B)(10)(a) of the Rules of the Supreme Court. The filing of the appeal stayed the imposition of the Public Reprimand with Terms, see Part 6, Section IV, Paragraph 13(B)(10)(b) of the Rules of the Supreme Court; see also Letter from Barbara Sayers Lanier to John Lydon McGann, dated December 18, 2000.

Following the completion of the record, both the Respondent and the Bar filed briefs as required by Part 6, Section IV, Paragraph 13(D) and, on April 9, 2001, the matter was set down for oral argument before this Board to be heard on August 24, 2001.

On August 24, 2001, the matter was argued and decided.

II. DISCUSSION
The record upon which the District Committee based its Determination was substantial. Inter alia, the Committee had before it: (1) the pleadings in the criminal case that related to the alleged conflict of interest; (2) the transcript of proceedings before Judge Sheridan; (3) the testimony of the Assistant Commonwealth Attorney Raphael; and (4) the testimony of the Respondent, who was called by both Bar Counsel and Respondent's counsel.6

A discussion of the facts before the Disciplinary Committee make it absolutely clear that the Committee had substantial—indeed overwhelming—evidence from which to conclude that Respondent's conduct was in violation of the Disciplinary Rules.

We start from the unremarkable premise that it was not a per se violation of the Disciplinary Rules for the Respondent to represent multiple defendants in a criminal case. The District Committee recognized and acknowledged this7 and based its Determination on the specific facts of the representation in question. Those facts, briefly stated, are as follows:

Following the arrest of the five defendants, the Respondent was summoned by one of the defendants, Mr. Mendez-Rivas, to a holding cell, where he and his co-defendants were being detained. The Respondent was asked by Mr. Mendez-Rivas to represent all five defendants and he agreed to do so. (Transcript of Disciplinary Committee Hearing at page 56.)8 Respondent states that he offered all five defendants "a package deal." (Disqualification Hearing at page 8.) The Respondent communicated, however, only with Mr. Mendez-Rivas and had no conversation with any of the other four defendants whose representation he agreed to undertake.9

Between July 12, 1997 and the date of the preliminary hearing, September 10, 1997, the Respondent again had no communications with any of the defendants except Mr. Mendez-Rivas.10 He told Judge Sheridan the following: "I didn't see them after July 15th until the preliminary hearing, which was the middle of September. I had no meetings telephonically. I didn't see them in person. I wouldn't recognize them if I saw them, your Honor." (Disqualification Hearing at page 9.)11

The testimony presented at the Preliminary Hearing should have made it clear beyond question to the Respondent that he needed to withdraw from representing all five of the defendants. The content of the Preliminary Hearing was described by Ms. Raphael in both her testimony at the District Committee hearing, see Transcript of District Committee Hearing at pages 30-34, and in the Commonwealth's Motion to Disqualify Defense Counsel, from which these excerpts are taken:

During the preliminary hearing, an Arlington County police officer testified that on July 12, 1997 at approximately 2:00 a.m., he saw a white Geo Tracker automobile with five occupants. He saw the person in the middle of the back seat, later identified as Mosquera, throw items from the car as it was moving. The officer recovered these items, which were identifications belonging to John Abell, the owner of a car that was broken into in Washington, D.C. earlier in the evening.

The officer further testified that he then saw two people get out
of the car and throw items into a dumpster. These items were recovered
and included purses and other personal items that had been in Mr. Abell's
car before it was broken into. Testimony at the preliminary hearing also included the statements
that three of the defendants made to the police, after having been
advised of their Miranda warnings. Bonilla stated that two to three
of the other defendants, including Mosquera, threw the purses in
the trash. Mosquera stated that he observed his friends take purses
from a car in Washington, D.C. and bring them into the Geo
Tracker. Rodriguez, the driver of the car, stated that some of the
other defendants ran to the car with things in their hands
and someone said, "Let's get out of here." Rodriguez further stated
that he told others to throw things away because they were stolen
and that someone from the back seat of the car handed him one
of the stolen credit cards to use at the gas station.

VSB Exhibit 4 before the District Committee at pages 1-2. Ms. Raphael testified that she presented more testimony at the Preliminary Hearing than she would in a usual case and that she did so specifically for the purpose of helping the Respondent to recognize that he had a conflict of interest. See the testimony of Ms. Raphael at pages 29-30:

Q. Now, Mr. McGann represented all five defendants
at the preliminary hearing.

A. That's correct.

Q. That's undisputed. You heard in my opening
statement a representation I made that you had advised
Mr. McGann that in your opinion he had a conflict
of interest?

A. That's right.

Q. Did you state that to him categorically?

A. Yes. I mean it was absolutely clear to me
that there was no way one lawyer could represent
five co-defendants in this case, and I tried to persuade
him about that before the preliminary hearing took place.

Q. Now, you conducted—you are the prosecutor who
indeed conducted the preliminary hearing; is that correct?

A. That's right.

Q. And what is your best recollection of what transpired
at the preliminary hearing?

A. Well, as I mentioned before—and for those of you
who we've tried some cases together, you may know—
I usually try to put on a very lean preliminary hearing and
not have it be a discovery hearing. I just put on the evidence
necessary to make probable cause in the case.

But, because it was clear to me that Mr. McGann
didn't understand the conflict of interest in the case, I
chose to put on a lot of evidence, so that it would become
crystal clear to him that there was a conflict.

So, I called the police officers who got the statements
in these cases to testify to each statement that each
defendant made, which is something I normally would
not have done, because I wanted him to understand
there was no way he could be the lawyer in those cases.

The Preliminary Hearing established beyond question two matters critical to the conflict of interest analysis: First, the strength of the Commonwealth's evidence differed among the defendants, thereby presenting a potential avenue of defense to a defendant who could claim to be less culpable than his co-defendants. Second, it was now obvious that a key part of the Commonwealth's proof at trial would be the alleged statements made by three of the defendants against various co-defendants. It was virtually certain, therefore, that effective representation of one defendant might require impeaching certain statements allegedly made by another defendant. It is a point almost too obvious to note that a single attorney could not both conduct such an impeachment and defend against it at the same time. Equally certain was that it might be in one or more defendant's legal interest to explore with the Commonwealth Attorney the possibility of providing testimony against another defendant.12 Under these circumstances, it should have been obvious to the Respondent that no one lawyer could represent more than one defendant in this case. And it should also have been obvious to the Respondent that, if one lawyer was already representing all defendants, he had to withdraw from representing all defendants. Having formally been retained to represent each of the five defendants, Respondent could not simply drop four and retain one.

Nevertheless, for almost five weeks after the Preliminary Hearing, the Respondent took no steps to remedy the situation and, in fact, compounded the problem by entering his appearance in Arlington County Circuit Court on behalf of all five defendants. Then, with trial imminent, Respondent finally moved to withdraw based on a conflict of interest, a conflict he should have recognized and acted upon at a much earlier point in time. Unfortunately, Respondent sought to withdraw from the representation of only four of the defendants and to retain the defendant he referred to as his "spokesman," Mr. Mendez-Rivas. (Disqualification Hearing at page 12.) As stated above, the Commonwealth then moved to disqualify him from representation of Mr. Mendez-Rivas. The resulting hearing before Judge Sheridan needs to be quoted at some length to fully appreciate the Respondent's complete lack of appreciation of the nature of the conflict: THE COURT: * * * How can you represent anybody in this case? ** * You tell me how a lawyer can represent one of five after representing all five.

MR. McGANN: Because there is nothing—let's assume that I represent Mr. Omar Mendez-Rivas. There's nothing—there is nothing I could use or they could use against anybody else that I could—that could be prejudicial. There is nothing that has come to me in confidence from the other four defendants.

THE COURT: How can I know that?

MR. McGANN: Well, you could ask them. We never had a meeting. I don't know the telephone numbers. I don't speak Spanish. They don't speak English. I have no addresses for them. They've never contacted me. * * * Nothing has been said not only in confidence, but in any regard that I could use against one of them, if the Commonwealth cut a deal and one of them rolled over. There's nothing I could use in confidence and say, Mr. Rodriguez, Mr. Hernandez, you told me that. I can't say that because I never met with them. * * *

THE COURT: What if everybody goes to trial and the Commonwealth calls any one of the defendants who happens to want to testify? Can you cross- examine them?

MR. McGANN: I can, because I successfully, and I can impeach with anything else, that they cut a deal, and they agree not to prosecute in exchange for their testimony. Any lawyer could use that, that fact.

THE COURT: Against a former client in the same case? * * * And you would cross-examine him, it's your client in the same case that you would then impeach.

MR. McGANN: Well, I cannot impeach him. The only way I could impeach him would be to say, now, you're testifying and you have immunity from the prosecution. That's all. That is not something that I learned through my representation. That is something that any lawyer could do. What I'm telling your Honor is—

THE COURT: How could you impeach your client on any subject matter in the same case in which you had represented him?

MR. McGANN: I'm trying to draw a distinction.

THE COURT: I know what your distinction is: that unless you gained special knowledge from the attorney-client relationship in some privileged or other matter, that you're free to act as a lawyer. And you're not. In the same case in which you represent somebody, you can turn around, and your obligation to one client may require you to go after your other client's? You can't do that.

MR. McGANN: If your Honor please. These are paper clients, I call them, for lack of another word. I agreed—

THE COURT: Mr. McGann, are you telling me that your ethical obligations depend upon the degree of actual talking to the client?

MR. McGANN: If your Honor please, I am attorney of record. There is no question of that. But I think we've got to look underneath what that really means in this case. For I agreed as a courtesy merely, or as an accommodation to these gentlemen, five of them, to get them through the bond reduction. * * * I learned nothing about the merits of the case from any of them or from him [Mendez-Rivas]. I know nothing about the case anymore than your Honor does. I really don't . In fact, we're supposed to go to trial on the 10th, and none of them ever contacted me. And I have no way of reaching them. Next Tuesday is set for trial. I've had no contact with them. But that's not why I'm trying to get out. I know nothing. I can't hurt any of these gentlemen because I don't know anything to hurt them with. I represented them. I was the attorney of record. And then I signed on. They needed somebody. And I got them out of jail. I think I performed a marvelous service inasmuch as they had a $20,000 bond. But I never did anything to prepare for trial with them. I did nothing to learn about the merits of the case.

THE COURT: Mr. McGann, basically what you're saying is that the inadequacy of representation justifies the withdrawal. The failure to be prepared for trial justifies withdrawal. That's incomprehensible to me as an argument. * * *

MR. McGANN: If your Honor please, I tried to explain to Mr. Mendez-Rivas that if the five of them were tried together, and that's a separate motion to sever, they would probably all be found guilty. But I know you and you speak English and I can better prepare you for trial. But the others, I cannot.

THE COURT: Well, you knew that from the start.

MR. McGANN: I knew that from the start, your Honor, but still, I filed this motion maybe three weeks ago. I had no contact with clients, none. They just seemed irresponsible and careless. And I'm caring about their own future here.

THE COURT: Well, the very statements you're making now as their counsel show why you can't continue as anybody's counsel. You necessarily have to attack your own client.

MR. McGANN: But, your Honor, they're my clients for purposes of what, bond reduction, a mechanical act; two, for prelim? I learned nothing in the prelim about the case that can hurt them. They didn't testify, your Honor, and I didn't talk to them afterwards. I know nothing. You could have substituted anybody for me in this case. Anybody. I was a robot. * * *

MS. RAPHAEL: * * * I've discussed it with him up until today, and he still doesn't understand the conflict, which I find shocking. The law—

THE COURT: Well, I'm shocked, too. And, Mr. McGann, your argument, everything you say laminates the reason you can't represent these—you really don't understand the problem. * * * You have not expressed one iota of understanding of what it appears when you represent five people who have a potential for adversary deals with the Commonwealth, adversary testimonial benefits, different standing as to sentencing. You have not yet expressed the slightest sensitivity to what it appears if you represent one of the five, how the other four feel, that you were their lawyer, and now you are not, and there is this likelihood of at least negotiations, let alone trial tactics, causing you to become their opponent or adversary. I think it's overwhelming you can't represent anybody in this case.

Disqualification Hearing at pages 6-19.
The Rules of the Supreme Court only require that the District Committee's Determination be supported by "substantial evidence." Here, the evidence establishing violations of DR 2-108, DR 5-105 and DR6-101 is far more than "substantial." The evidence before the Committee clearly established that the Respondent's continuing representation of even one of the defendants was "inconsistent with the Disciplinary rules...," see DR 2-108, and that he violated the provisions of DR 5-105(B) and (C) by continuing to represent multiple defendants despite the clear potential adversity of his clients' interests and the other circumstances indicating that "the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client....," see DR5-105(B). While DR 5-105(C) provides that, under certain circumstances, an attorney may continue to represent multiple clients even when the terms of DR 5-105(B) applies, those circumstances were certainly not present in the instant case. In particular, it was not "obvious that he can adequately represent the interest of each [client]," see DR 5-105(C), and there was no consent from each defendant to multiple representation after "full disclosure of the possible effect of such representation...." See DR 5- 105(C).

In addition, there was more than substantial evidence in the record for the District Committee's Determination that the Respondent violated DR 6-101 (B) and (C) through his failure to "attend promptly to matters undertaken for a client" and through his failure to keep his clients "reasonably informed about matters in which the lawyer's services are being rendered." See DR 6-101(B) and (C). By his own admission, the Respondent did virtually nothing on the case from the time he was retained until the time he was removed, other than getting the defendants' bond reduced.13 And he obviously did not keep his clients "reasonably informed" about matters related to his representation. Indeed, the Respondent repeatedly emphasized to Judge Sheridan that he had virtually no contact with four of his clients at all.14

Finally, as to each of the findings of misconduct, we also find that they were not "contrary to the law" and, therefore, we affirm each finding of misconduct.

III. IMPOSITION OF SANCTIONS
Having affirmed the findings of misconduct, we now turn to the question of sanctions. In considering the appropriate sanction, the Board may impose either the same sanction imposed by the District Committee or a lesser sanction. It may not impose a greater sanction. See Part 6, Section IV, Paragraph 13(D)(4)(b).

In light of the Respondent's disciplinary record, as described above, which includes a prior public reprimand, and in light of the seriousness of the instant misconduct, we conclude that a Public Reprimand with Terms is warranted. The terms are as follows: By May 8, 2002, Respondent shall enroll in and attend six (6) credit hours of Virginia State Bar approved Continuing Legal Education in criminal defense and two (2) credit hours of Virginia State Bar approved Continuing Legal Education in legal ethics.15 Respondent's Continuing Legal Education attendance obligation set forth in this paragraph, aggregating eight (8) credit hours, shall not be applied toward Respondent's Mandatory Continuing Legal Education requirement in Virginia and any other jurisdiction in which he may be licensed to practice law. Respondent shall certify his compliance with the terms set forth in this paragraph by delivering a fully and properly executed Virginia MCLE Board Certification of Attendance Form (Form 2) to Seth M. Guggenheim, Assistant Bar Counsel, at 100 North Pitt Street, Suite 310, Alexandria, Virginia 22324, promptly following his attendance of such CLE courses. Upon satisfactory proof furnished by Respondent to the Virginia State Bar that the above Terms have been complied with, in full, a PUBLIC REPRIMAND, WITH TERMS shall then be imposed, and this matter shall be closed.

IV. SPECIAL NOTE
Before concluding this matter, the Board would take note of the Respondent's multiple personal attacks on individuals participating in the proceedings below, which appear in his Opening Brief. For example, one witness is accused of "dodg[ing] the truth like a cheap politician." The proceedings below are described as "the product of a runaway prosecution/Bar counsel." The District Committee is described as "woefully feckless" and its chairman described as someone who "has not been involved in a criminal case in the memory of anyone." The lay members are singled out because they "had to be tutored by bar counsel as to what a preliminary hearing was." Two members of the Disciplinary Committee are characterized, by name, as "court-appointed hacks" who "enjoy a reputation of pleading their clients guilty after maximizing the fee limit of their appointments." We find the Respondent's statements to be repugnant and inappropriate. Such personal attacks on participants in the Disciplinary System—particularly those who have given selflessly of their time to improve our legal profession and this Bar—have no place in these proceedings.

IV. COSTS
Pursuant to Part Six, Section IV, Paragraph 13(K)(10) of the Rules of the Supreme Court, the Clerk of the Disciplinary System shall assess costs against the Respondent.

It is further ORDERED that the Clerk of the Disciplinary System shall send an attested true copy of this Order by certified mail, return receipt requested, to Respondent, John Lydon McGann, 4101 Chain Bridge Road, Suite 206, Fairfax, Virginia 22030, his address of record with the Virginia State Bar, and to Seth M. Guggenheim, Assistant Bar Counsel, 100 North Pitt Street, Suite 310, Alexandria, Virginia 22314-3133.

ENTERED THIS _____ day of __________________, 2001
VIRGINIA STATE BAR DISCIPLINARY BOARD

By ______________________________
Randy I. Bellows, Second Vice Chair

Q: Well, what did you do between July when they were arrested and you visited them, and November 5th or whatever day it was when you were in front of Judge Sheridan? What did you do to prepare the cases of each of these individual defendants?

A: I did nothing. I knew the case. I knew the case inside out. It was simple. The Commonwealth had to prove its case. The five defendants did not have to prove they were innocent.