VIRGINIA:

BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD



IN THE MATTER OF

GREGORY CHARLES MITCHELL

VSB Docket No: 01-000-1888



ORDER AND OPINION

This matter came before the Virginia State Bar Disciplinary Board on September 17, 2003 upon an Agreement to Imposition of Reciprocal Discipline , as a result of a Rule to Show Cause and Order of Suspension and Hearing entered on August 28, 2003. A duly convened panel of the Virginia State Bar Disciplinary Board consisting of V. Max Beard, lay member, William C. Boyce, Jr., Glenn M. Hodge, H. Taylor Williams, IV, and Karen A. Gould, presiding, heard the matter. Noel D. Sengel, Senior Assistant Bar Counsel, appeared as Counsel to the Virginia State Bar ("VSB"), and David R. Rosenfeld appeared as counsel for the Respondent.

The proceedings were recorded by Tracy J. Stroh, a registered professional reporter, of the firm of Chandler & Halasz, P.O. Box 9349, Richmond, Virginia 23227, (804) 730-1222.

Having considered the Agreement to the Imposition of Reciprocal Discipline, the Board finds by clear and convincing evidence as follows:

STIPULATIONS OF FACTS

1. At all times relevant hereto, the Respondent, Gregory C. Mitchell, Esquire (hereinafter Respondent) has been an attorney licensed to practice law in the Commonwealth of Virginia.

2. On February 27, 1989, Louise A. Mitchell, a resident of Virginia and the Respondent's wife, was injured when the automobile she was driving was struck from behind by an vehicle driven by an employee of R.V. Upperman & Sons, Inc. ("Upperman & Sons"). Mrs. Mitchell hired the Respondent to represent her interests in any legal action stemming from the accident.

3. A physician at Washington Circle Orthopedic Group referred Mrs. Mitchell to W.S. Medical Systems, Inc. ("W.S. Medical") for treatment of her injuries. Mrs. Mitchell signed a Patient Registration Form for W.S. Medical, indicating that her matter was a legal case and that the Respondent was her attorney.

4. In June of 1990, Mrs. Mitchell executed W.S. Medical's Authorization and Assignment Agreement ("A&A"), whereby she authorized W.S. Medical to provide the Respondent with its medical reports related to her injuries, and directed the Respondent to "pay from the proceeds of any monies recovered in [her] case to W.S. Medical Systems, Inc. for their professional services, including fees for preparation and testimony."

5. On June 19, 1990, after reviewing the A&A, the Respondent executed the document, thereby agreeing to "withhold such sums from any settlement, judgment or verdict as may be necessary to adequately protect W.S. Medical Systems, Inc." After the Respondent signed the A&A, he returned it to W.S. Medical.

6. W.S. Medical provided Mrs. Mitchell with a "Tens" unit, an electronic pain-reduction device, and the equipment that accompanies the unit. Since the first Tens unit was ineffective and Mrs. Mitchell returned it, W.S. Medical provided a second unit to Mrs. Mitchell. The cost and services provided by W.S. Medical to Mrs. Mitchell was $1,031.00.

7. On February 21, 1992, the Respondent, on behalf of his wife and himself, filed a civil suit in the District of Columbia Superior Court, styled Mitchell, et al. v. R.V. Upperman & Sons, Inc., CA No. 92-2437. On April 17, 1992, Robert Boraks, Esquire filed a praecipe entering his appearance as co-counsel for Mrs. Mitchell and the Respondent.

8. A jury trial commenced on April 18, 1994. On April 22, 1994, a judgment was entered for $150,000.00 in favor of Mrs. Mitchell and $20,000.00 in favor of the Respondent, plus interest at five percent per annum. On May 18, 1994, the defendants filed a motion for a new trial, for remittitur, and for a judgment notwithstanding the verdict. In June of 1994, a member of the Respondent's staff informed W.S. Medical about the April, 1994 verdict.

9. From 1994 through 1999, W.S. Medical called the Respondent on numerous occasions to learn the status of the matter. From the end of June of 1994 until March of 1995, the Respondent failed to return telephone calls from W.S. Medical.

10. On April 19, 1995, following a hearing on the defendant's motions, the trial court vacated in part the original judgment against Upperman & Sons. Simultaneously, Upperman & Sons was ordered to pay $125,000.00 to Mrs. Mitchell and $20,000.00 to the Respondent. Additionally, Upperman & Sons was ordered to make interest payments on the amended judgment award until it was fully satisfied. The interest was to accrue beginning on April 22, 1994, the date of entry of the original judgment.

11. On April 25, 1994, Upperman & Sons' insurance provider, Travelers Property Casualty ("Travelers"), mailed the Respondent two checks. The first check was in the amount of $125,000.00 and the second was in the amount of $20,000.00. On May 19, 1995, the Respondent deposited both insurance checks into his IOLTA account at Crestar Bank, Account Number 202381544.

12. At the time he received the checks, the Respondent did not notify W.S. Medical that the original judgment had been vacated in part and that a modified judgment had been entered. Likewise, he failed to inform W.S. Medical that he had received the two checks from Travelers in satisfaction of the judgment award.

13. A handwritten, unsigned disbursement sheet dated May 30, 1995 reflects the Respondent's receipt of the $125,000.00 check and the $20,000.00 check from Travelers. The disbursement sheet also reflects a distribution of $36,250.00 to Mr. Boraks and $108,750.00 to Mrs. Mitchell.

14. On May 30, 1995, the Respondent issued to Mr. Boraks a trust account check in the amount of $36,250.00 as payment for Mr. Boraks' legal services. On June 2, 1995, the Respondent issued a trust account check in the amount of $108,750.00 to Mrs. Mitchell. As of June 5, 1995, the balance in the Respondent's trust account was $95.38 without any funds having been sent to W.S. Medical in payment of Mrs. Mitchell's bill.

15. On August 14, 1995, Travelers issued an interest payment to the Respondent and Mrs. Mitchell in the amount of $7,250.00. The payment of $7,250.00 in interest is not reflected on any disbursement sheet. However, Mrs. Mitchell approved a loan in that amount to the Respondent's business.

16. On March 23, 1995, the Respondent informed W.S. Medical that Mrs. Mitchell's lawsuit was being appealed. The Respondent and/or members of his staff continued to lead W.S. Medical to believe that Mrs. Mitchell's lawsuit remained on appeal form March of 1995 until April of 1998. In fact, no appeal was ever taken from the 1994 judgment or the amended 1995 judgment.

17. On or about April 3, 1998, the Respondent made efforts to return the Tens unit to W.S. Medical and requested that Mrs. Mitchell's outstanding bill be reduced. On or about February 19, 1999, W.S. Medical agreed to reduce Mrs. Mitchell's outstanding bill from $1,031.00 to $550.00, which the Respondent agreed to pay. However, after agreeing to pay $550.00, the Respondent sent no money to W.S. Medical. Subsequent to the initiation of the Bar complaints, the Respondent paid W.S. Medical the amount owed.

18. There was a Bar complaint filed in this matter in the District of Columbia as well as in Virginia. The complaint was litigated in the District of Columbia and by Opinion Order dated May 8, 2003, the District of Columbia Court of Appeals suspended the Respondent's license to practice law in the District of Columbia for a period of ninety (90) days. The Respondent and the Bar agree that the same sanction should be imposed in Virginia.

STIPULATIONS OF MISCONDUCT

The aforementioned conduct on the part of the Respondent constitutes a violation of the following Disciplinary Rules and Rules of Professional Conduct:

DR 9-102. Preserving Identity of Funds and Property of a Client.

(A) All funds received or held by a lawyer or law firm on behalf of a client, estate or a ward, residing in this State or from a transaction arising in this State, other than reimbursement of advances for costs and expenses, shall be deposited in one or more identifiable trust accounts and, as to client funds, maintained at a financial institution in a state in which the lawyer maintains a law office, and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:

(1) Funds reasonably sufficient to pay service or other charges or fees imposed by the financial institution may be deposited therein.

(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, and the portion belonging to the lawyer or law firm must be withdrawn promptly after they are due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.


RULE 1.15 Safekeeping Property

(b) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.


DR 7-102. Representing a Client Within the Bounds of the Law.

(A) In his representation of a client, a lawyer shall not:

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



RULE 4.1 Truthfulness In Statements To Others

In the course of representing a client a lawyer shall not knowingly:

(a) Make a false statement of fact or law; or



DR 1-102. Misconduct.

(A) A lawyer shall not:

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


RULE 8.4 Misconduct

It is professional misconduct for a lawyer to:

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

Upon consideration of the Agreement to Imposition of Reciprocal Discipline before this panel of the Disciplinary Board, it is hereby ORDERED that, pursuant to Part 6, IV, 13(I)(6) of the Rules of Virginia Supreme Court the license of Respondent, Gregory Charles Mitchell, Esquire, to practice law in the Commonwealth of Virginia shall be, and is hereby, suspended for a period of ninety days, commencing August 28, 2003, the date of the original Rule to Show Cause and Order of Suspension and Hearing.

IT IS FURTHER ORDERED that, as directed in the Board's August 28, 2003 Order in this matter, a copy of which was served on the Respondent by certified mail, the Respondent must comply with the requirements of Part 6, § IV, ¶ 13(M) of the Rules of Virginia Supreme Court. The time for compliance with said requirements runs from August 28, 2003, the effective date of the Rule to Show Cause and Order of Suspension and hearing. All issues concerning the adequacy of the notice and arrangements required by that Order shall be determined by the Board.

It is FURTHER ORDERED that the Clerk of the Disciplinary System shall send an attested and true copy of this order and opinion by certified mail, return receipt requested, to the Respondent, Gregory Charles Mitchell, Esquire at Building A4, 10605 Judicial Drive, Fairfax, VA 22030, to the Respondent's Counsel, David R. Rosenfeld, Esquire, 118 S. Royal St., 2nd Floor, Alexandria, VA 22314, and to Noel D. Sengel, Senior Assistant Bar Counsel, 100 North Pitt St., Suite 310, Alexandria, VA 22314.



The Clerk of the Disciplinary System shall assess costs pursuant to Part 6, § IV, ¶ 13(B)(8)(c) of the Rules of Virginia Supreme Court.

SO ORDERED, this _____ day of _________________________, 2003.





By:_____________________________________________

Karen A. Gould

1st Vice Chair of the Disciplinary Board