V I R G I N I A:

BEFORE THE DISCIPLINARY BOARD OF THE VIRGINIA STATE BAR

IN THE MATTER OF HELENA DAPHNE MIZRAHI

VSB Docket Number 00-042-1528


ORDER

On May 16, 2003 this matter came before a duly constituted panel of the Virginia State Bar Disciplinary Board upon certification of the Fourth Committee, Section II. The Panel consisted of Karen A. Gould, 2nd Vice Chair, Chester J. Cahoon, Jr., lay member, Bruce T. Clark, Larry B. Kirksey and Richard J. Colten. The Respondent appeared and was represented by Darrin P. Sobin. Yvonne L. Weight, Special Assistant Bar Counsel, appeared for the Virginia State Bar.

The Chair polled the panel members to determine whether any member had a personal or financial interest in the matter which might affect or could reasonably be perceived to affect his or her ability to be impartial in the proceeding. Each member, including the chair, verified that they had no known conflicts

 

I. FINDING OF FACTS

1. At all times relevant hereto, Helena Daphne Mizarhi (hereinafter the Respondent), has been an attorney licensed to practice law in The Commonwealth of Virginia.

2. The Respondent represented Landon T. A. Summers in Fairfax County Circuit Court post-divorce custody and visitation litigation. The Complainants in this matter, Joseph A. Condo and David Roop represented Marcia L. B. Summers in that litigation, with Mr. Roop acting as lead counsel. At the time of the events giving rise to these proceedings, issues concerning the prior order of the court addressing custody and visitation were on appeal to Virginia's appellate court.

3. On October 21, 1999, Circuit Court Judge Stanley P. Klein issued a Rule to Show Cause against Marcia L.B. Summers at the request of the Respondent and her client. The Rule was authorized by Judge Klein in a letter opinion to counsel dated October 19, 1999. In this letter, Judge Klein held that his court retained the authority to issue certain sanctions if Ms. Summers was found to be in violation of the court's prior custody and visitation order, but as this order was on appeal, the court could not consider amending the terms of the prior custody and visitation order without leave of the appellate court.

4. In his letter of October 19,1999, Judge Klein advised counsel that while The Rule was returnable to November 5, 1999, he was of the view that a hearing would, "clearly take longer than thirty minutes". Under the local rules of the Fairfax Circuit Court, motions expected to take longer than thirty minutes were not to be heard on normal motions days, but were to be set for hearing when more time was available. Judge Klein therefore encouraged counsel to contact the calendar control judge to get a trial date for a hearing on the Rule. Judge Klein also noted to counsel that as the Rule could not be heard on the Show Cause return date in reference to consideration of a change in the prior custody order unless and until leave of the Virginia Court of Appeals was obtained thereby allowing further hearings in the Circuit Court of Fairfax addressing these issues, counsel needed to give due regard to the time which would be required for one or both parties to move the appellate court for such leave.

5. On October 28, 1999, Mr. Roop wrote to the Respondent discussing several matters involving the case. One issue addressed was the need to contact the court's Calendar Control to obtain a date for hearing the pending Rule. In a response letter dated October 29, the Respondent replied that the hearing on the Rule had been set for November 5th and asked Mr. Roop to clarify his request to go to Calendar Control.

6. On November 3, 1999, the Respondent and Mr. Roop held one or more telephone conversations (Mr. Roop thought there might have been more than one phone conversation that day) addressing the issue of continuance. According to Mr. Roop, the Respondent advised him that she was unavailable to go to Calendar Control prior to November 5th although she gave no firm reason why. She further advised Mr. Roop that if he desired a continuance, he could present his request and the reasons for it on the 5th prior to the hearing. The Respondent had a different recollection of these conversations and stated that she advised Mr. Roop that she would agree to such a continuance. The Board find that the weight of the evidence prevails in favor of Mr. Roop's version of the Respondent's position because the Respondent followed up the conversation(s) with a letter addressed to Mr. Roop, (VSB Exhibit 8) dated November 3, 1999, which clearly demonstrates that as of the 3rd, she was not in agreement with a continuance. The contents of that letter are as follows:

Dear Mr. Roop:

In response to our telephone conference today, Judge Klein's Order dated October 19, 1999, wherein Ms. Summers is ordered to appear in the Fairfax Circuit Court on November 5, 1999, at 10:00 a.m., prevails over the Judge's letter that you reference. Therefore, it appears that your client must appear in Fairfax Circuit Court on November 5, 1999, at 10:00 a.m., before Judge Klein.


As you know, as Ms. Summer's attorney, you received Judge Klein's Order several weeks ago. Presumably, you informed your client of it. In addition, your client was personally served on November 2, 1999, as ordered. Therefore, I look forward to seeing you and your client on November 5, 1999, as ordered.
Additionally, I do not foresee the hearing taking longer than 30 minutes. The 13 exhibits that you wish to introduce are not relevant. In addition, the Judge has had these exhibits as an attachment to Ms. Summer's motion to bar entry of the Rule since September 1999.

7. Upon receiving the above letter on November 3rd, Mr. Roop faxed a notice to the Respondent that he intended to obtain a hearing/trial date from the Calendar Control Judge the following morning, November 4th. (Respondent's Exhibits, page 139.) The Respondent responded, via a letter faxed to Mr. Roop, which stated that she was unavailable the following morning. (Respondent's Exhibits, page 138.) In this letter, she gave no reason for her unavailability. She again advised Mr. Roop that if he desired a continuance, he could request it when the parties appeared before Judge Klein on November 5th. She did not advise Mr. Roop in this letter that she was in favor of a continuance, as she testified was the case at the hearing.

8. On November 4,1999, in accordance with the notice sent to the Respondent, Mr. Roop was heard by Judge Leslie Alden, sitting as calendar control judge. Mr. Roop advised Judge Alden of the Respondent's objections and gave her a copy of the Respondent's letter which had been faxed to him the previous day. Judge Alden set March 29, 2000, as the trial date and continued all matters, including the Rule to Show Cause, to such date. Late in the afternoon of the 4th, Mr. Roop faxed a letter to the Respondent advising her of the trial date set by Judge Alden. (Respondent's Exhibits at pages 141-42.) Both the Respondent and her client, whom she called as a witness on her behalf, acknowledged that they knew the continuance had been granted, because of this November 4th fax.

9. Due to the short passage of time between the entry of Judge Alden's order of continuation and the preparation of the Motions Day docket for November 5th, the clerk of the court failed to remove the Rule to Show Cause from the following day's schedule where it was shown as being set before Judge Marcus D. Williams. Nevertheless, all parties were aware prior to the morning of the 5th that the case was not to be heard that date.

10. Notwithstanding the above, the Respondent and her client appeared in Fairfax County Circuit Court on Friday, November 5, 1999. Mr. Roop, understanding that the matter was no longer on the Friday docket, was not present. However, Mr. Condo, Mr. Roop's partner who was aware of the case and its status, was by chance in Judge William's courtroom that morning in reference to another matter. Mr. Condo noted that the Respondent and her client were there.

11. Mr. Condo approached the Respondent and advised her that the date for the Rule and other matters had been continued to March 29, 2000, and, therefore, the matter should not have remained on the Friday motion's docket. Mr. Condo testified that the Respondent told him she understood that a trial date had been set, but she nonetheless intended to proceed before Judge Williams.

12. When the case was called, Mr. Condo testified that the Respondent advised Judge Williams that The Rule had been properly issued and served upon the Complainant and the Complainant had failed to appear. It was Mr. Condo's recollection that the Respondent did not inform Judge Williams of Judge Klein's directive to get a trial date nor did she advise Judge Williams that Judge Alden had already set a trial date continuing the matter in its entirety to March 29, 2000. The Respondent and her client testified that she did inform Judge Williams of the continuance, but she was seeking a different, earlier date than had been set the day before.

13. In response, Mr. Condo advised Judge Williams of Judge Klein's directive to counsel and of Judge Alden's decision to set a trial date. Upon hearing this from Mr. Condo, Judge Williams directed that the Respondent and Mr. Condo needed to go to Judge Alden's courtroom to resolve the matter. Mr. Condo had another matter requiring his attendance in Judge William's courtroom and as the Respondent indicated that she was unwilling to wait for him, Mr. Condo made a call to his office advising Mr. Roop to hurry to the courthouse to take care of the matter. As Mr. Roop had not anticipated being called to court that date, he was not appropriately dressed and therefore needed to return to his home to change before his appearance. For this reason, it was mid to late morning before he arrived at the court. At that time, Mr. Condo was still in Judge William's court and was unaware that Mr. Roop had arrived and was present in another courtroom.

14. Mr. Roop, having arrived at court, appeared with the Respondent before Judge Alden. According to the Respondent, before she was even permitted to speak, Judge Alden stated that she had previously set the hearing for March 29, 2000 and was unwilling to reopen the matter that morning. Judge Alden advised the Respondent that if she objected to what had occurred, the only appropriate action for the Respondent would be to file a motion for reconsideration in which case she (the Judge) would agree to reconsider the matter. Mr. Roop recalled the argument before Judge Alden differently and recalled that the Respondent presented her argument as to why the matter should be heard sooner than March 29th.

15. Believing the issues to have been now resolved, Mr. Roop left the courthouse, never having seen Mr. Condo. The Respondent, however, did not do leave the courthouse, choosing instead to see if she could arrange a meeting with the Chief Judge, The Honorable Bruce Bach, in order to seek his advice on what had happened and in the Respondent's words, "what she had done wrong". The Respondent was not able to see Judge Bach, but was able to speak with a clerk who, having heard the Respondent's story approached Judge Klein and obtained initial consent from Judge Klein to hear her request to the matter that same day even though the matter had already been heard that morning by both Judge Williams and Judge Alden. The Respondent had not requested that Judge Klein hear the matter, however, when the Respondent was advised that Judge Klein was willing to make himself available to hear the matter, she did not then advise the Judge's clerk that the matter had already been considered that very morning by two other judges. Instead, in compliance with the instructions of Judge Klein, she called Mr. Roop and left a message instructing him to again return to the courthouse and to report to Judge Klein's courtroom. The same message was conveyed by note to Mr. Condo, who was still in Judge Williams' courtroom.

16. Following the completion of his appearance before Judge Williams, Mr. Condo went to Judge Klein's courtroom. Once again, the Respondent restated her motion to be immediately heard on the Rule. According to the testimony of Mr. Condo, the Respondent failed to advise Judge Klein that the matter had been before both Judge Alden and Judge Williams earlier the same day. Mr. Condo himself did not yet know that Judge Alden had denied the Respondent's motion only an hour or so earlier.

17. Judge Klein, being unaware that Judge Alden had already ruled in the same matter just hours before, but recognizing that Judge Alden had ruled the previous day, declined to act in the matter and again advised the Respondent that the only proper thing for her to do would be to file a motion before Judge Alden for reconsideration of the scheduling order entered on the 4th.

18. The testimony of Mr. Condo stating that the Respondent had never mentioned to Judge Klein or to him that she had appeared earlier that same day before Judge Alden was supported by that of Mr. Roop. Having received the call to return to the courthouse, Mr. Roop arrived sometime around 1:30 p.m. While entering the court from the parking garage, he ran into Mr. Condo who had just left the hearing with the Respondent and Judge Klein. Being unaware that Mr. Roop had already been to the court and gone, Mr. Condo believed he was there for the first time in response to the call placed to him early that morning. As both Mr. Roop and Mr. Condo described it, Mr. Condo expressed strong displeasure with what he believed was Mr. Roop's failure to handle the matter in an appropriate manner. It was only after Mr. Roop explained to Mr. Condo that he had been present in Judge Alden's courtroom, following which Mr. Condo advised Mr. Roop what had just transpired in Judge Klein's court, that they both understood what had occurred.

19. At some point following the hearing before Judge Klein, the Respondent went to the Clerk's Office to obtain a copy of Judge Alden's Order of November 4th continuing the case. When it was provided to her, the Respondent related that she was upset to see that the order recited that she had "failed to appear" the previous day before the Calender Control Judge. In response, and for reasons which are difficult for the Panel to fathom, the Respondent then elected to file with the clerk an Order she had apparently prepared in anticipation of having the Rule heard on the 5th. This Order, which was endorsed by the Respondent and her client, contained serious misrepresentations of fact. For example, it recited that Ms. Summers failed to appear on November 5th, although in reality, she was under no obligation to do so as the case had been continued. In addition, the Order sought a transfer of custody from Ms. Summers to the Respondent's client even though the Respondent was fully aware that this issue was on appeal and as a matter of law was not a relief that could be granted by the circuit court absent leave of the Court of Appeals. No copy of the order as filed was sent to opposing counsel nor were they advised such a filing had been made.

 

II. FINDINGS OF THE PANEL

While the Panel is not unsympathetic to the Respondent and her apparent frustration and concerns in having her client's matter continued for an extended period, the Panel believes there is a definite line which exists between counsel's duty to zealously represent the interests of a client and counsel's duty as an officer of the court. In this case, whether well intentioned or not, the Panel finds the line between these sometimes conflicting duties was crossed.

While Respondent acknowledges that she had been advised by Mr. Roop in his letter of November 4th and again by Mr. Condo when he saw her in Judge William's court on the morning of the 5th that the case had been continued and while she represents that she appeared at the court on November 5th for the sole purpose of verifying the status of the case, and to be assured she was in attendance in the event the matter was not in fact continued, her prior correspondence addressed to Mr. Roop and the fact that she arrived in possession of an Order endorsed by both her and her client finding Ms. Summers in contempt for failure to appear on that date, November 5, 1999, run contrary to the Respondent's representations. We find that the Respondent's attempt to advance her case before Judge Williams, knowing it had been continued the previous day, and her failure to fully advise the judge of the events which had transpired before Judge Alden the previous day, along with her subsequent presentation before Judge Klein, at which time she failed to clearly advise the court or Mr. Condo that Judge Alden had only hours before refused to rehear the issue of scheduling the Summers case, constitute misrepresentation in violation of DR 1-102 (A) (1) and DR 1-102 (A) (4) which read as follows:

DR 1-102. Misconduct.
(A) A lawyer shall not:

(1) Violate a Disciplinary Rule or knowingly aid another to do so;

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



The Panel further finds that the filing of the Order in the Court's file on the afternoon of November 5th after the issue of the continuance had been addressed not once, but three separate times before three separate judges, which order contained both material misrepresentations of fact and sought relief which as a matter of law, the Respondent knew were not within the authority of the circuit court to grant in light of the pending appeal, violates DR 1-102 (A) (1), DR 1-102(A) (4) and DR 7-102 (A) (2) which read as follows:
DR 1-102. Misconduct.
(A) A lawyer shall not:

(1) Violate a Disciplinary Rule or knowingly aid another to do so;

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation that 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:

(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.

FOR THE REASONS SET FORTH ABOVE, respondent not having any prior disciplinary record, it is hereby ORDERED that the Respondent shall receive a PUBLIC REPRIMAND effective upon entry of this Order.

It is further ORDERED that, pursuant to the RULES OF THE SUPREME COURT, Part 6, § IV, ¶ 13 (B) (8) (c) (1), the Clerk of the Disciplinary System shall assess costs.

The Court reporters for this hearing were Sandra Lahane, CSR, 115 Orr Road, Alameda, California 94501 as to the testimony of Dr. Landon Summers, and Tracy J. Stroth, Chandler and Halasz, P.O. Box 9349, Richmond, Virginia 23227 (804) 730-1222 as to all other testimony taken.


It is further ORDERED that a copy teste of this Order shall be mailed by Certified Mail, Return Receipt Requested, to the Respondent, Helena D. Mizrahi, P.O. Box 7033, Alexandria, Virginia 22307, her last address of record with the Virginia State Bar and by First Class Mail, postage prepaid, to the Respondent's counsel, Darrin P. Sobin, Dove-Taylor and Sorbin, 15521 Real Estate Avenue, Second Floor, King George, Virginia 22485 and to Yvonne D. Weight, Special Assistant Bar Counsel, 221 South Fayatte Street, Alexandria, Virginia 22314 and Setg Guggenheim, Assistant Bar Counsel, Virginia State Bar, 100 N. Pitt Street, Suite 310, Alexandria, Virginia 22314.

ENTER THIS ORDER THIS______ day of May, 2003.


VIRGINIA STATE BAR DISCIPLINARY BOARD

BY:________________________________
Karen A. Gould, Second Vice Chair