IN THE MATTER OF DAVID NICHOLLS
VSB DOCKET NO. 01-010-2774
Complainant: John E. Kitchens
On June 6, 2002, a hearing in this matter was held before a duly convened First District Committee panel consisting of J. Wayne Sprinkle, Esquire, Robert W. Jones, Jr., Esquire, Robert L. Bailey, Lay Member, Durwood Curling, Lay Member, Tyrone J. Melvin, Sr., Lay Member, and John D. Eure, Jr., Esquire, Chair, presiding.
The Respondent appeared in person with his counsel, Michael L. Rigsby, Esquire. Edward L. Davis, Assistant Bar Counsel, appeared on behalf of the Virginia State Bar.
Pursuant to Part 6, §IV, ¶13(B)(7) of the Rules of the Supreme Court, the First District Committee of the Virginia State Bar hereby serves upon the Respondent the following Dismissal with Terms:
I. FINDINGS OF FACT
1. During all times relevant hereto,
the Respondent, David Nicholls Montague (hereinafter Respondent or Mr. Montague)
was an attorney licensed to practice law in the Commonwealth of Virginia.
2. On February 22, 2000, Mr. Montague
filed a responsive pleading on behalf of his client, John E. Kitchens, in the
state of Wyoming. Mr. Montague was not licensed to practice law there. The case
concerned the mother of Mr. Kitchens' son seeking to have her new husband adopt
Mr. Kitchens' son, who lived with the couple in Wyoming.
3. Mr. Montague also represented
Mr. Kitchens in his divorce in Virginia, and some related assault and battery
charges brought by the second wife.
4. Mr. Kitchens complained to the
bar that in the Wyoming adoption matter, Mr. Montague failed to protect Mr.
Kitchens or inform him about all of the notices and correspondence that Mr.
Montague received from Wyoming before the adoption became final.
He also said that Mr. Montague told
him not to respond to requests for interrogatories or the production of documents
because the response he previously filed with the Wyoming court said the same
5. The Wyoming court notified Mr.
Kitchens on February 25, 2000 that his response to the adoption action (filed
by Mr. Montague) would be filed pro se because Mr. Montague was not
licensed in Wyoming. On March 6, 2000, the Wyoming attorney who brought the
adoption action, Sue Davidson, complained to the Virginia State Bar about Mr.
Montague's unauthorized practice in filing the response in Wyoming. On April
4, 2000, Montague wrote to Ms. Davidson, telling her that he would have no further
involvement in the case, and told her to speak with Kitchens directly.
6. Ms. Davidson wrote him back on
April 7, 2000, telling him that until he formally withdrew, she had to communicate
with him directly, and had to provide him with future filings. She filed a notice
of hearing and motion to compel relating to the interrogatories in August 2000,
and sent copies to Mr. Montague only. She also filed a notice of hearing on
the final decree of adoption in May 2000, and sent a copy only to Mr. Montague.
(Previously, she sent the actual interrogatories and request for the production
of documents to both Mr. Montague and Mr. Kitchens on March 5, 2000.)
7. Mr. Montague received the notices
and motions filed by Ms. Davidson in May- August 2000, but did not notify Mr.
Kitchens or furnish them to him. The court awarded the adoption to Ms. Davidson's
client by order, entered September 7, 2000. Ms. Davidson did not send a copy
of the final adoption decree to either Mr. Montague or Mr. Kitchens.
8. On March 14, 2000, Mr. Kitchens
called Ms. Davidson saying words to the effect that he had a change of heart,
and wanted to talk to his son's mother about the adoption. Ms. Davidson arranged
dates and times for Mr. Kitchens to talk to her. On April 3, 2000, Ms. Davidson
wrote to Montague and furnished the dates. Mr. Montague did not inform Mr. Kitchens
about the letter, nor about the dates that Ms. Davidson arranged for him to
speak with his son's mother. Mr. Kitchens never got to speak with his son's
mother, and assumed that they had abandoned the adoption matter.
9. Mr. Kitchens met with Mr. Montague
in 2001 and learned for the first time that the adoption was final. He terminated
Mr. Montague, and asked for his file. Before delivering the file to Mr. Kitchens,
Mr. Montague purged the documents relating to the Wyoming adoption. Mr. Kitchens
had never seen some of the pleadings that Mr. Montague received until this hearing
before the First District Committee.
II. DISCIPLINARY RULE VIOLATIONS
II. DISCIPLINARY RULE VIOLATIONS
By unanimous decision, the Committee finds that the bar has proven by clear and convincing evidence that the Respondent violated the following Rules of Professional Conduct:
RULE 1.4 Communication
(c) A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter.
RULE 1.16 Declining Or Terminating Representation
(e) All original, client-furnished documents and any originals of legal instruments or official documents which are in the lawyer's possession (wills, corporate minutes, etc.) are the property of the client and shall be returned to the client upon request, whether or not the client has paid the fees and costs owed the lawyer. If the lawyer wants to keep a copy of such original documents, the lawyer must incur the cost of duplication. Upon request, the client must also be provided copies of the following documents from the lawyer's file, whether or not the client has paid the fees and costs owed the lawyer: lawyer/client and lawyer/third-party communications; the lawyer's copies of client-furnished documents (unless the originals have been returned to the client pursuant to this paragraph); pleadings and discovery responses; working and final drafts of legal instruments, official documents, investigative reports, legal memoranda, and other attorney work product documents prepared for the client in the course of the representation; research materials; and bills previously submitted to the client. Although the lawyer may bill and seek to collect from the client the costs associated with making a copy of these materials, the lawyer may not use the client's refusal to pay for such materials as a basis to refuse the client's request. The lawyer, however, is not required under this Rule to provide the client copies of billing records and documents intended only for internal use, such as memoranda prepared by the lawyer discussing conflicts of interest, staffing considerations, or difficulties arising from the lawyer/client relationship.
The Committee finds that the bar has not proven violations of the following Rules, and they are dismissed accordingly: Rule 1.4 (a) and (b), Rule 8.4 (c).
It is the unanimous decision of the Committee to offer the Respondent an opportunity to comply with certain terms and conditions, compliance with which will be a predicate for the disposition of this Complaint. The terms and conditions shall be met by the times set forth below:
Upon satisfactory proof that such terms and conditions have been met, this matter shall be closed. If, however, the terms and conditions are not met by the dates specified above, this Committee shall certify this matter for hearing before the Virginia State Bar Disciplinary Board.
Pursuant to Part Six, Section IV, (13)(K)(10), the Clerk of the Disciplinary System shall assess costs.
FIRST DISTRICT COMMITTEE
OF THE VIRGINIA STATE BAR
John D. Eure, Jr., Chair
I certify that I have this __________day of ___________, _________ caused to be mailed by CERTIFIED MAIL, RETURN RECEIPT REQUESTED, a true and correct copy of the District Committee Determination (Dismissal with Terms) to David Nicholls Montague, Esquire, Respondent, at First Floor, 1 East Queens Way, Hampton, Virginia 23669-4001, his address of record with the Virginia State Bar, and by regular mail to his counsel, Michael L. Rigsby, Esquire, at Midkiff, Muncie & Ross, PC, Suite 130, 9030 Stony Point Parkway, Richmond, Virginia 23235, his address of record with the Virginia State Bar.
Edward L. Davis, Assistant Bar Counsel