VIRGINIA:

 

BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

 

 

IN THE MATTER OF                                                                   

 

DAVID NICHOLLS MONTAGUE        

 

VSB DOCKET NO. 03-010-2795
03-010-2797
02-010-1496
02-010-2592
03-010-0643

 

 

ORDER OF SUSPENSION

 

This matter came before the Virginia State Bar Disciplinary Board for hearing on October 24, 2003 at 9:00 a.m. The hearing was held before a duly convened panel of the Board consisting of Glenn M. Hodge, William M. Moffet, Ann N. Kathan, Thaddeus T. Crump, Lay Member, and Karen A. Gould, First Vice Chair.

            All required notices were sent by the Clerk of the Disciplinary System. The Virginia State Bar was represented by Edward L. Davis, Assistant Bar Counsel (ìBar Counselî). David Nicholls Montague, the Respondent in this proceeding (the ìRespondentî), appeared in person pro se. Jennifer L. Hairfield with Chandler and Halasz, P.O. Box 9349, Richmond, Virginia 23227, (804) 730-1222, having been duly sworn, reported the hearing.

            The Chair opened the hearing and the panel was then polled as to whether any member had any conflict of interest or other reason why the member should not participate in the hearing. Each member, including the Chair, answered in the negative.

The Prior Proceedings

            This matter arises out of multiple complaints filed against the Respondent, which have been designated by the Bar as docket numbers: (i) 03-0101-2795 (Complainant: VSB/Commissioner of Accounts)[1]; (ii) 03-010-2797 (Complainant: John Kitchens); (iii) 02-010-1496 (Complainant: Tony Ortega); (iv) 02-010-2592 (Complainant: Paul M. Menno); and (v) 03-0101-0643 (Complainant: Karen Orie). The complaints were referred to the Board by subcommittee and district committee certifications. Specifically, the matters of 02-010-1496, 02-010-2592, and 03-010-0643 were referred to the Board by Subcommittee Determinations issued by duly convened subcommittee panels of the First District Committee that found certification of the various charges of misconduct was appropriate.

The matters of 03-010-2795 and 03-010-2797 were referred to the Board by two District Committee Determinations issued by a duly convened panel of the First District Committee after the District Committee found that the Respondent had failed to comply with the stipulated terms of the Dismissal with Terms of June 19, 2002, and the District Committee then chose to impose the alternate sanction of certifying the matters to the Board.

These matters are governed by both the Disciplinary Rules of the revised Virginia Code of Professional Responsibility and the Virginia Rules of Professional Conduct because the complaints address events and issues arising both before and after January 1, 2000.[2]

            A pretrial conference was held on October 15, 2003, which was attended by Bar Counsel, the Respondent, who appeared pro se, and an officer of the Board. At the pretrial conference the Barís exhibits, designated as Exhibits 1-14 were admitted en masse without objection. The Respondent did not pre-file any exhibits nor did he file any witness lists. Prior to the Board hearing Bar Counsel and the Respondent were successful in stipulating to certain facts. Those Stipulations of Fact, which were admitted as Joint Exhibit 1, are set forth below.

 

 

Stipulations 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, except for a ninety-day period beginning June 28, 2002, when his license to practice law was suspended by the Virginia State Bar Disciplinary Board.

 

03-010-2795(a) and (b)

(Complainant: VSB/Commissioner of Accounts)

 

2.         On October 18, 1996, the Respondent qualified in the Circuit Court of the City of Hampton as Administrator CTA for the Estate of Helen Holmes Christy Harrison. The inventory for the estate was due to be filed with the Commissioner of Accounts by February 18, 1997. The Respondent did not file the inventory until September 23, 1997.

 

3.         The first settlement of accounts for the Estate of Helen Holmes Christy Harrison was due to be filed with the Commissioner of Accounts by February 18, 1998. On April 23, 1998, having received nothing from Mr. Montague, the Commissioner of Accounts issued a Notice of Delinquency to David N. Montague, Administrator CTA, of the Estate of Helen Holmes Christy Harrison. The notice required the first settlement of accounts to be filed within 30 days.

 

4.         On June 22, 1998, having received nothing from Mr. Montague, the Commissioner of Accounts issued a summons against Mr. Montague demanding him to file a first settlement of accounts with supporting documentation within 30 days of the date of service of the summons.

 

5.         On August 18, 1998, having received nothing from Mr. Montague, the Commissioner of Accounts filed a report with the Circuit Court of the City of Hampton requesting the court to order Mr. Montague to show cause why he should not be fined, held in contempt, removed from the estate, and required to forfeit the bond to pay for any expenditures, as well as requiring him to file the first settlement of accounts beginning October 18, 1997, through October 31, 1998, with supporting documentation.

 

6.         The Court issued the order, requiring Mr. Montague to appear in the Hampton Circuit Court on September 24, 1998.

 

7.         On September 24, 1998, the show cause hearing was held. Mr. Montague was not present at the start of the hearing, but responded to a telephone call from a clerk of the Court and appeared. Mr. Montague advised the Commissioner of Accounts and the Court that he had completed the accounting for the estate, but could not get it to balance. The Commissioner of Accounts had several suggestions for Mr. Montague, including having the heirs approve the balance as it was. The matter was continued to November 24, 1998, and the Court ordered Mr. Montague to appear on that date.

 

8.         On November 24, 1998, the proceeding convened. Mr. Montague appeared. He explained again that he had not been able to get the estate account to balance. The Court continued the matter to January 28, 1999.

 

9.         On December 4, 1998, Mr. Montague submitted to the Commissioner of Accounts a final accounting for the Estate of Helen Holmes Christy Harrison. He submitted another one in February 1999. All of the heirs were duly paid their distributions of property and cash, and the case was brought back to the Circuit Court in January, April and June of 1999. The final accounting was approved by an order entered on August 9, 1999. The show cause summons against Mr. Montague was then dismissed.

 

10.       On April 15, 1999, Mr. Montague and Cary S. Buttrill, a non-lawyer, qualified as coexecutors of the estate Mattie Lee Hellman Buttrill. The inventory was due to be filed on August 15, 1999. They did not file the inventory, however, until October 1, 1999, listing assets with a total value of $91,000 under their supervision and control.

 

11.       The first settlement of accounts was due by August 15, 2000. The two coexecutors failed to file the first accounting on time, resulting in delinquency letters from the Commissioner of Accounts on August 22, 2000, requiring that they file the first accounting within thirty days. They did not comply, so the Commissioner of Accounts issued summonses on October 4, 2000.

 

12.       Before he was served with his summons on October 19, 2000, Mr. Montague wrote to the Commissioner of Accounts on October 17, 2000 asking for a two-week extension. The Commissioner of Accounts gave him an extension to November 17, 2000. Thereafter, he failed to file the accounting again, and did not ask for an extension. However, Mr. Montague explained that the delay was occasioned by one of the heirsí failure to return receipts to him after repeated requests. There was no delay in the distributions to the heirs by Mr. Montague. The Commissioner of Accounts filed a report with the court on January 10, 2001 requesting a rule to show cause. The next day, January 11, 2001, Mr. Montague filed the accounting, which the Commissioner of Accounts approved with a few changes. Mr. Montague paid all of the late fees and charges out of his own pocket. The estate is now closed.

 

03-010-2797

Complainant: John Kitchens

 

13.       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. Kitchensí son seeking to have her new husband adopt Mr. Kitchensí son, who lived with the couple in Wyoming.

 

14.       Mr. Montague also represented Mr. Kitchens in his divorce in Virginia, and some related assault and battery charges brought by the second wife.

 

15.       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. Montagueís 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.

 

16. 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 sonís mother about the adoption. Ms. Davidson arranged dates and times for Mr. Kitchens to talk to her.

 

 

02-010-1496

Complainant: Tony Ortega

 

17.       On December 30, 1994, Tony Ortega, his wife, and his children were injured in a traffic accident. They engaged Mr. Montague to represent them. Mr. Montague settled the cases involving the wife and children to the satisfaction of his clients. Mr. Ortegaís case did not settle.

 

18.       On July 11, 1999, Mr. Montague tried Mr. Ortegaís case before a jury in the Circuit Court for the City of Hampton. He prevailed, and the jury returned a judgment in the amount of $5,049. This amount, however, was far less than Mr. Ortegaís total medical expenses, which exceeded $15,000. Mr. Montague explained that the jury was not impressed by the medical testimony or the approximately one hundred and thirty five chiropractic visits by Mr. Ortega.

 

19.       On July 15, 1999, the defendant driverís insurance carrier issued a check in the amount of $5,049, the full judgment, payable to Mr. Montague and Mr. Ortega. On July 22, 1999, Mr. Montague deposited the check in his attorney trust account. Mr. Montague withdrew his one-third attorneysí fee and some costs, leaving $3,223 on account. Mr. Montague paid the costs of videographer/court reporter and the attorney who examined the treating physician out of his own funds, approximately $703.

 

20.       Mr. Montague agreed to negotiate a reduction in the medical expenses for Mr. Ortega, but was unable to do so. Specifically, Mr. Montague proposed to his clients a reduction in medical expenses, or for the clients to declare bankruptcy if the creditors did not agree to the reduction. On July 16, 1999, the Ortegas contacted Mr. Montague and left a message for him not to appeal the case, and that they would wait on the bankruptcy petition until Mr. Montague talked to the creditors.

 

21.       Mr. Ortegaís medical care provider began to dun Mr. Ortega for payment, and threatened a garnishment action. There having been no payments toward his medical accounts, having received no funds from Mr. Montague, and having experienced difficulty in communicating with Mr. Montague, Mr. Ortega complained to the bar in October 2001. Mr. Montague would say that he attempted to stay in reasonable contact with the Ortegas.

 

22. In March 2002, after the bar complaint, Mrs. Ortega visited Mr. Montague and informed him that her husband was being transferred by the Air Force and that they were moving to Gulf Port, Mississippi. She said at that time that she wanted to get their accounts ìstraightened out.î Mrs. Ortega had a dispute with Mr. Montague over the billings for the various videotaped depositions.

 

23.       As of the date of the barís report to the subcommittee in November 2002, Mr. Montague had still not been able to negotiate any reductions in the medical expenses. Therefore, he offered to return the funds held in trust to the Ortegas. This offer was refused because of the dispute over the videotaped deposition fees. On October 17, 2003, Mr. Montague returned the funds to the Ortegas by mail.

 

24.       An audit of Mr. Montagueís trust account showed that the balance in the account was less than $3,223 on several occasions over the ensuing years, despite there having been no disbursements of the funds to Mr. Ortega or his case. At no time during the year 2001 did a balance of $3,223 remain in his trust account. In December 2000, the balance was only $825.41.

 

25.       Mr. Montagueís trust account subsidiary ledger failed to reflect the receipt or deposit of the $5,049 check from the insurance carrier. Mr. Montague did retain the deposit slip showing that the funds were deposited into his attorney trust account.

 

26.       Mr. Montague explained to the Virginia State Bar investigator that his inattention to bookkeeping led to the aforementioned trust account discrepancies. Subsequently, Mr. Montague discovered that he had a problem with alcohol.

 

27.       On November 1, 2001 and November 21, 2001, having received Mr. Ortegaís complaint, the Virginia State Barís Intake Department sent letters to Mr. Montague asking him to communicate with Mr. Ortega about the status of his negotiations with creditors, and to send the bar a copy of his correspondence with Mr. Ortega. Mr. Montague did not respond to either letter.

 

02-010-2592

Complainant: Paul M. Menno

 

28. In October 1999, Paul M. Menno hired Mr. Montague to complete his divorce, already in progress. On January 31, 2000, Mr. Montague was substituted as his counsel.

 

29. Mr. Mennoís prior attorney issued him a refund in the amount of $1,475, which Mr. Menno endorsed to Mr. Montague for attorneyís fees in October 1999.

 

30. On October 13, 1999, Mr. Montague deposited the $1,475 check, not into his attorney trust account, but to his operating account instead. Mr. Montagueís billing record reflects that at the time he received the check, he had devoted 2.5 hours to the case, and that by November 16, 1999, he had 5.6 hours in the case at $185 per hour, and that all of the funds had been earned by December 21, 1999.

 

31. Mr. Menno desired custody of the coupleís minor son, and on October 26, 1999, the court entered a consent order awarding joint custody of the son to Mr. Menno and his wife.

 

32. The following year, Mr. Montague endorsed a pendente lite order prepared by the wifeís attorney. The order awarded custody of the son to the wife, contrary to Mr. Mennoísí wishes. The court entered the order on August 17, 2000. Mr. Montague explained to the bar investigator that he ìmissedî the reference in the order about custody being awarded to Mrs. Menno. Mr. Montague would say that the custody issue had been handled by Mr. Mennoís first attorney, and that Mr. Montague, therefore, was not focused on this issue.

 

33. Mr. Montague attempted to correct the error, but the wifeís attorney would not agree. On August 31, 2001, in an attempt to correct the error, Mr. Montague sent a final decree of divorce to the wifeís attorney awarding joint custody of the son. The wifeís attorney did not respond to Mr. Montague until February 2002, and would not agree to the joint custody provision.

 

34. Unable to obtain a final decree of divorce or custody of his child, and having difficulty communicating with Mr. Montague, Mr. Menno complained to the bar in March 2002.

 

35. In the summer of 2003, joint and shared custody was awarded to Mr. Menno. The divorce is final. Mr. Montague continues to represent Mr. Menno.

 

03-010-0643

Complainant: Karen Orie

 

36.       During 1997-1998, Mr. Montague represented Karen Orie in her divorce. The divorce became final on December 11, 1998.

 

37.       Dissatisfied with her former husbandís cooperation in visitation, and his lack of payment against the marital debt, Ms. Orie hired Mr. Montague to assist her with these issues in April 2000. She paid Mr. Montague $150 in attorneyís fees and $19 in costs, for a total of $169.

 

38.       Mr. Montague explained to the barís investigator that the plan was to schedule the matter for hearing before a judge, and then have his client explain why she was aggrieved.

 

39.       Mr. Montague did not deposit the check in his attorney trust account, but placed it in his operating account instead.

 

40.       Mr. Montague took no further action in the matter.

 

41.       During 2000, Ms. Orie placed several telephone calls to Mr. Montague, but received no response, except for one occasion, when he advised her that he would ìget right on it.î

 

42.       Dissatisfied with his lack of progress in the case, Ms. Orie asked Mr. Montague for a refund by letter, dated August 10, 2000.

 

43.       Mr. Montague did not respond, so she wrote to him again on January 11, 2001. Mr. Montague did not respond to this letter either, although he explained later that he thought he had issued the refund after receiving this letter.

 

44.       Having received no response from Mr. Montague, Ms. Orie complained to the bar in September 2002.

 

45.       Mr. Montague did not respond to the bar complaint, and the bar referred the matter to the District Committee for investigation on October 10, 2002.

 

46.       During the course of the barís investigation, Mr. Montague issued the refund to Ms. Orie by letter, dated November 8, 2002, and furnished a copy to the bar investigator.

 

47.       On June 28, 2002, the Virginia State Bar Disciplinary Board suspended Mr. Montagueís license to practice law for a period of ninety days.

 

48.       Mr. Montague did not notify Ms. Orie about the suspension of his license in accordance with the Disciplinary Board Order, although she was his client. Mr. Montague would say that she was not an active client at the time, and that he, therefore, did not think about her when preparing the notices about his suspension.

 

 

ADDITIONAL STIPULATIONS CONCERNING REHABILITATION

 

49.       On June 17, 2002, Mr. Montague saw Michael E. Bohan, M.D. for a substance abuse assessment.

 

50.       Dr. Bohan furnished the bar with a letter, dated September 26, 2002, detailing his assessment, alcohol dependence.

 

51.       Thereafter, on September 5, 2002, Mr. Montague completed an intensive outpatient program with Caritas, conducted at Chessen and Associates, involving fifty-seven hours of group therapy and education on chemical dependence and related issues.

 

52.       Mr. Montague continues to see Douglas H. Chessen, M.D., M.B.A., on a quarterly basis for monitoring in accordance with terms previously imposed by the First District Committee.

 

53.       By letter dated May 9, 2003, Dr. Chessen reported to the bar that Mr. Montague said that he had not been able to reach a treatment contract with Lawyers Helping Lawyers because of a disagreement over the number of meetings that he should attend per month with Alcoholics Anonymous. Dr. Chessen arranged a reassessment, and recommended that Mr. Montague attend Alcoholics Anonymous twice a week, and obtain a sponsor to avoid a relapse, which he has done.

 

54.       By letter dated August 18, 2003, Dr. Chessen reported that Mr. Montague followed his advice, that he reported a new clarity of thinking as a result of not drinking, and that Mr. Montague also sees improved functioning at work. Dr. Chessen plans to see him on a quarterly basis to monitor his progress, with reports to the bar as directed.

 

Misconduct

 

            The Subcommittee and District Committee Certifications charged violations of the following provisions of the Disciplinary Rules and Rules of Professional Conduct:

03-010-2795(a)

(Complainant: VSB/Commissioner of Accounts)

 

DR 6-101. Competence and Promptness.

 

(A)      A lawyer shall undertake representation only in matters in which:

 

            (1)       The lawyer can act with competence and demonstrate the specific legal knowledge, skill, efficiency, and thoroughness in preparation employed in acceptable practice by lawyers undertaking similar matters, or

 

                        (2)       The lawyer has associated with another lawyer who is competent in those matters.

 

(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.

 

DR 7-105. Trial Conduct.

 

(A)      A lawyer shall not disregard or advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling.

 

03-010-2795(b)

(Complainant: VSB/Commissioner of Accounts)

 

            RULE 1.1 Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

 

            RULE 1.3 Diligence

 

(a) A lawyer shall act with reasonable diligence and promptness in representing a client.  

 

 

03-010-2797

Complainant: John Kitchens

            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

 

            (a)        Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a clientís interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, refunding any advance payment of fee that has not been earned and handling records as indicated in paragraph (e).

 

            (e)        All original, client-furnished documents and any originals of legal instruments or official documents which are in the lawyerís 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 lawyerís file, whether or not the client has paid the fees and costs owed the lawyer: lawyer/client and lawyer/third-party communications; the lawyerís 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 clientís refusal to pay for such materials a basis to refuse the clientís 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 law/client relationship.

 

 

02-010-1496

Complainant: Tony Ortega

DR 1-102. Misconduct

 

(A)  A lawyer shall not:

 

(3)    Commit a crime or other deliberately wrongful act that reflects adversely on the lawyerís fitness to practice law.

 

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

 

            [The Bar withdrew its allegations of misconduct under DR 6-101 (Competence and Promptness), except for (B).]

 

DR 6-101(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.

 

DR 9-102(A). See Complainant: Paul M. Menno below for the text of this rule.

 

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

 

(B)  A lawyer shall:

 

(3)    Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.

 

(4)    Promptly pay or deliver to the client or another as requested by such person the funds, securities, or other properties in the possession of the lawyer which such person is entitled to receive.

 

DR 9-103. Record Keeping Requirements.

 

(A)     Required Books and Records. As a minimum requirement, every attorney engaged in the private practice of law in Virginia, hereinafter called ìattorney,î shall maintain or cause to be maintained, on a current basis, books and records which establish his compliance with Disciplinary Rule 9-102. These records including all the reconciliations and supporting records required under Section (B) hereof shall be preserved for at least five years following completion of the fiduciary obligation and accounting period. For this purpose, the following books and records, or their equivalent, are required.

 

            (3)       Subsidiary ledger: A subsidiary ledger containing a separate account for each client and for every other person or entity from whom money has been received in trust shall be maintained. The ledger account shall by separate columns or otherwise clearly identify fiduciary funds disbursed, and fiduciary funds balance on hand. The ledger account for a client or a separate subsidiary ledger account for a client shall clearly indicate all fees paid from trust accounts.

 

RULE 1.3 Diligence

 

(a) A lawyer shall act with reasonable diligence and promptness in representing a client.

 

            The Bar withdrew its allegations of misconduct under Rule 1.4.

 

RULE 1.15(a) Safekeeping Property. See Complainant: Karen Orie below.

 

RULE 1.15 Safekeeping Property

 

            (c)        A lawyer shall:

 

(3) maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to the client regarding them; and

 

(4) promptly pay over or deliver to the client or another as requested by such person the funds, securities, or other properties in the possession of the lawyer which such person is entitled to receive.

 

            (f)        Required Escrow Accounting Procedures. The following minimum escrow accounting procedures are applicable to all escrow accounts subject to Rule 1.15(a) and (c) by lawyers practicing in Virginia.

 

                        (4)       Periodic trial balance. A regular periodic trial balance of the subsidiary ledger shall be made at least quarter annually, within 30 days after the close of the period and shall show the escrow account balance of the client or other person at the end of the each period.

           

(i)             The total of the trial balance must agree with the control figure computed by taking the beginning balance, adding the total of monies received in escrow for the period and deducting the total of escrow monies disbursed for the period; and

 

(ii)           The trial balance shall identify the preparer and be approved by the lawyer or one of the lawyers in the law firm.

 

(5)    Reconciliations.

(i)             A monthly reconciliation shall be made at month end of the cash balance derived from the cash receipts journal and cash disbursements journal total, the escrow account checkbook balance, and the escrow account bank statement balance.       

 

(ii)           A periodic reconciliation shall be made at least quarter annually, within 30 days after the close of the period, reconciling cash balances to the subsidiary ledger trial balance;

 

(iii)          Reconciliations shall identify the preparer and be approved by the lawyer or one of the lawyers in the law firm.

 

RULE 8.1 Bar Admission and Disciplinary Matters. See Complainant: Karen Orie for the text of this rule.

 

RULE 8.4 Misconduct

 

            It is professional misconduct for a lawyer to:

 

(b)           commit a criminal or deliberately wrongful act that reflects adversely on the lawyerís honesty, trustworthiness or fitness as a lawyer;

 

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

 

 

 

02-010-2592

Complainant: Paul M. Menno

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 party 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 1.1 Competence

 

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

 

RULE 1.3 Diligence

 

(a)    A lawyer shall act with reasonable diligence and promptness in representing a client.

 

RULE 1.4 Communication

 

(a)    A lawyer shall keep a client reasonably informed about the status of a matter

and promptly comply with reasonable requests for information.

 

 

The Bar withdrew its allegations of misconduct under Rule 1.15 since the trust fund issues arose in October 1999 and, thus, DR 9-102 is the relevant rule.

 

03-010-0643

Complainant: Karen Orie

RULE 1.3 Diligence

 

(a)  A lawyer shall act with reasonable diligence and promptness in representing a client.

 

(b)   A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but may withdraw as permitted under Rule 1.16.

 

RULE 1.4 Communication

 

(b)   A lawyer shall keep a client reasonably informed about the status of a matter

and promptly comply with reasonable requests for information.

 

RULE 1.15 Safekeeping Property

 

(a)   All funds received or held by a lawyer or law firm on behalf of a client, other than reimbursement of advances for costs and expenses, shall be deposited in one or more identifiable escrow accounts maintained at a financial institution in the state in which the law office is situated and no funds belonging to the lawyer or the law firm shall be deposited therein except as follows:

 

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

 

(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 it is 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.

 

            (c) A lawyer shall:

 

(4) promptly pay over or deliver to the client or another as requested by such person the funds, securities, or other properties in the possession of the lawyer which such person is entitled to receive.

 

RULE 3.4 Fairness To Opposing Party And Counsel

 

A lawyer shall not:

 

            (d) Knowingly disobey or advise a client to disregard a standing rule or ruling of a tribunal made in the course of a proceeding, but the lawyer may take steps, in good faith, to test the validity of such rule or ruling.

 

RULE 8.1 Bar Admission And Disciplinary Matters

 

            An applicant for admission to the bar, or a lawyer in connection with a bar admission application, in connection with any certification required to be filed as a condition of maintaining or renewing a license to practice law, or in connection with a disciplinary matter, shall not:

 

(c) fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6; or

 

Disposition

 

            After due deliberation, the Board made the following findings on the basis of clear and convincing evidence:

03-010-2795(a)

(Complainant: VSB/Commissioner of Accounts)

 

            1.         The Bar has furnished clear and convincing evidence that the Respondent engaged in conduct that violates Disciplinary Rule 6-101(A). The record clearly demonstrates that this matter was not handled in a competent manner. For example, the Respondent could not get the account to balance without suggestions and assistance from the Commissioner of Accounts.

 

            2.         The Bar has furnished clear and convincing evidence that the Respondent engaged in conduct that violates Disciplinary Rule 6-101(B). The Board specifically finds that the lengthy and frequent time delays in the Respondentís handling of the Harrison estate and his inability to balance the estate account without the assistance of the Commissioner of Accounts support a finding that the Respondent violated Disciplinary Rules 6-101(A) and (B).

 

            3.         The Bar has not furnished clear and convincing evidence that the Respondent engaged in conduct that violates Disciplinary Rule 7-105. The Boardís finding on this count is based upon the fact that, after receiving a telephone call from the court clerk, the Respondent did appear for the hearing (see Stipulation No. 7). Additionally, the Board finds that the Respondentís conduct does not rise to the level of misconduct contemplated and addressed by DR 7-105.

 

03-010-2795(b)

(Complainant: VSB/Commissioner of Accounts)

 

            4.         The Bar has not furnished clear and convincing evidence that the Respondent engaged in conduct that violates Rule 1.1. The Respondent filed an extension of time request, and no lengthy filing delays were involved in this matter.

 

            5.         The Bar has not furnished clear and convincing evidence that the Respondent engaged in conduct that violated Rule 1.3. The Boardís finding on this Rule is based on the same facts that it relied on regarding Rule 1.1 above.

 

03-010-2797

Complainant: John Kitchens

6.         The Bar has not furnished clear and convincing evidence that the Respondent engaged in conduct that violated Rule 1.4(c). Based upon the testimony of both the Respondent and Mr. Kitchens, the Board finds that no attorney/client relationship existed between them after April 4, 2000; thus, no violation of Rule 1.4(c) could occur beyond that date and no violation was shown between the effective date of that rule (January 1, 2000) and April 4, 2000.

 

7.            The Bar has furnished clear and convincing evidence that the Respondent engaged in conduct that violated Rule 1.16(a). While the Respondent was not counsel of record before the Wyoming court because he was not admitted in Wyoming, he was representing Mr. Kitchens until his representation was terminated on April 4, 2000, and, thereafter, had a duty to his former client to protect Mr. Kitchensí interests. By failing to forward correspondence and other information to Mr. Kitchens, which the Respondent either knew or should have known his client needed to have, he did not comply with this duty and his failure to comply was detrimental to Mr. Kitchens.

 

8.         The Bar has not furnished clear and convincing evidence that the Respondent engaged in conduct that violated Rule 1.16(e). There is no clear and convincing evidence that the Respondent purposefully purged the client file; the Respondent turned over to Mr. Kitchens all of the documents that were contained in the file, and, thus, complied with the rule.

 

02-010-1496

Complainant: Tony Ortega

            9.         The Bar has not furnished clear and convincing evidence that the Respondent violated DR 1-102(A)(3) and (4). The Board finds that the Respondent did not commit any deliberate acts that would fall within the Rule.

 

            10.       The Bar has furnished clear and convincing evidence that the Respondent violated DR 6-101(B). The Respondent held the money which either belonged to his client or the healthcare providers for over four years without taking proper steps to resolve the situation.

 

            11.       The Bar has furnished clear and convincing evidence that that the Respondent violated DR 9-102(A)(1), (A)(2), and (B)(3). The Respondent admitted that he removed his fee from the trust account before it was earned and that he did not comply with the rules regarding trust funds.

 

            12.       The Bar has not furnished clear and convincing evidence that the Respondent violated DR 9-102(B)(4).

 

            13.       The Bar has furnished clear and convincing evidence that the Respondent violated DR 9-103(A)(3). The Respondent admitted that he did not comply with the requirements of this rule.

 

            14.       The Bar has furnished clear and convincing evidence that the Respondent violated Rule 1.3. The Respondent was neither diligent nor prompt in his resolution of the medical lien issue.

 

            15.       The Bar has furnished clear and convincing evidence that the Respondent violated Rules 1.5(a), (c), and (f). The Respondent admitted that he did not comply with these trust fund rules and that there was a lengthy period of time in which he did not even open his bank statements to review the trust fund account.

 

            16.       The Bar has not furnished clear and convincing evidence that the Respondent violated Rule 8.1. No demand as contemplated by this rule was made upon the Respondent by the Bar.

 

            17.       The Board found that Rules 8.4(b) and (c) are reserved for intentional acts of egregious misconduct and that these rules are not relevant to this case. Thus, the Board declined to find violations under these rules.

 

02-010-2592

Complainant: Paul M. Menno

18.       The Bar has furnished clear and convincing evidence that the Respondent violated DR 9-102(A). The Respondent placed unearned fees into his operating account and not into his trust account.

 

19.       The Bar has furnished clear and convincing evidence that the Respondent violated Rules 1.1 and 1.3. The Board found that the Respondent did not provide competent representation based upon the combination to two facts: The Respondent failed to take notice of the custody issue in the pendente lite order and then when the issue was later discovered he did not act within a reasonable amount of time to remedy the error.

 

20.       The Bar has furnished clear and convincing evidence that the Respondent violated Rule 1.4.

 

03-010-0643

Complainant: Karen Orie

21.       The Bar has furnished clear and convincing evidence that the Respondent engaged in conduct that violates Rule 1.3(a). The Respondent agreed to represent Ms. Orie in this matter and then never took any action on the matter.

 

22.       The Bar has not furnished clear and convincing evidence that the Respondent engaged in conduct that violates Rule 1.3(b). While the Respondent did act negligently by failing to carry out the tasks he agreed to handle, the Respondentís failure to carry out his engagement was not intentional; the Board believes the Respondent that he let other matters take priority over Ms. Orieís project and did not intentionally fail to work on her project.

 

23.       The Bar has furnished clear and convincing evidence that the Respondent engaged in conduct that violates Rule 1.4(a). The Respondent did not keep Ms. Orie informed as to the status of her matter.

 

24.       The Bar has furnished clear and convincing evidence that the Respondent engaged in conduct that violates Rules 1.15(a) and (c)(4). The Respondent admitted that he failed to deposit advanced fees and expenses into his trust account and that he did not promptly return the funds to Ms. Orie after she requested that they be returned.

 

25.       The Bar has not furnished clear and convincing evidence that the Respondent engaged in conduct that violates Rule 3.4(d). Ms. Orie terminated her relationship with the Respondent before he was suspended from practicing law under the District Committee Dismissal With Terms; thus Rule 3.4(d) is inapplicable.

 

26.       The Bar has not furnished clear and convincing evidence that the Respondent engaged in conduct that violates Rule 8.1. No demand was made upon the Respondent by the Bar that falls within the intended coverage of Rule 8.1.

 

 

Sanction

 

            Thereafter, the Board received further evidence of aggravation and mitigation from Bar Counsel and the Respondent, including the Respondentís prior disciplinary record.[3] The Respondent tendered his curriculum vitae to the Board as his only exhibit in this matter and discussed at length the steps he has taken to address his alcohol and time management issues. The Board recessed to deliberate what sanction to impose upon its findings of misconduct by the Respondent. After due deliberation, the Board decided, unanimously, that a two (2) year suspension of the Respondentís license is appropriate.

            The facts and factors that were controlling in the Boardís decision to suspend the Respondentís license include:

(i) As reflected in the Respondentís curriculum vitae, the Respondent has an impressive background and has been an active member of the Bar and in his community for several decades. The Respondent has many notable accomplishments. Considering the Respondentís many years of practice and active participation in the Bar, the Board was astonished by the Respondentís lack of understanding as to the rules governing attorney trust accounts and client funds. The Respondent, through his own testimony, revealed that he still does not understand how to properly maintain his attorney trust account and how to handle client funds. The Respondent made admissions during the hearing that show the Respondent has not properly handled his attorney trust account and client funds for many years and still does not understand the applicable rules governing trust accounts. Furthermore, while the Respondent stated that he has changed his accounting practices, the Respondent presented no evidence whatsoever (i.e. account statements, account ledgers, trial balances, reconciliations, or witness testimony) to support such a statement.

(ii)       The Board was baffled by the Respondentís failure to bring any witnesses to the hearing and to present any, other than his curriculum vitae, documentary evidence. Other than his own testimony, the Respondent presented no evidence of his rehabilitation. The pattern of misconduct exhibited by the Respondent carries through all of the cases that were presented to the Board. The evidence of rehabilitation is limited to the Respondentís assertion that he has been rehabilitated. The Respondent was unable to provide any evidence that he had established any support system that will reinforce his rehabilitation efforts, insure that his rehabilitation continues and which would notify the Bar in a timely manner if he suffers a relapse that impacts his ability to practice law. This lack of evidence left the Board no alternative but to suspend the Respondentís license. The Board felt that revocation of the Respondentís bar license was not appropriate given the Respondentís many years of practice, his standing in the community, and his full and complete cooperation with the Bar throughout this proceeding.

Thereafter, the Board reconvened to announce the sanction imposed. The Chair announced that the appropriate sanction is the suspension of the Respondentís license for two (2) years.

            Accordingly, it is so ORDERED that the license of David Nicholls Montague to practice law in the Commonwealth of Virginia is hereby SUSPENDED FOR TWO (2) YEARS effective October 24, 2003.

            It is further ORDERED that the Clerk of the Disciplinary System shall mail an attested copy of this order to the Respondent, by certified mail, return receipt requested, at his address of record with the Virginia State Bar, 33-E West Queenís Way, Hampton, Virginia 23669, and shall deliver a copy of this order to Edward L. Davis, Assistant Bar Counsel, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2803.

            It is further ORDERED that the Respondent must comply with the requirements of Part 6, Section IV, Paragraph 13 M, of the Rules of the Supreme Court of Virginia and shall forthwith give notice, by certified mail, of the suspension of his license to practice law in Virginia to all clients for whom he is currently handling matters and to all opposing attorneys and the presiding judges in pending litigation. The Respondent shall also make appropriate arrangements for the disposition of matters then in his care in conformity with the wishes of his clients. All issues concerning the adequacy of the notice and required arrangements shall be determined by the Board, which may impose a sanction of revocation or further suspension for failure to comply with the requirements of this provision.

            It is further ORDERED that costs shall be assessed against the Respondent in accordance with the Rules of the Supreme Court of Virginia, Part Six, Section IV, Paragraph 13.B.8.c.

 

           

                                                ENTERED this ________________day of November, 2003

                                               

VIRGINIA STATE BAR DISCIPLINARY BOARD


          _____________________________________

Karen A. Gould, First Vice Chair

 



[1] This docket number actually includes two separate complaints: (i) 99-010-0343 brought by the Commissioner of Accounts in connection with the Estate of Helen Holmes Christy Harrison; and (ii) 01-010-1396 brought by the Commissioner of Accounts in connection with the Estate of Mattie Lee Hellman Buttrill. These cases will be referred to herein as 03-010-2795(a) and 03-010-2795(b), respectively.

 

[2] The Virginia Rules of Professional Conduct is the successor to the Virginia Code of Professional Responsibility. The Virginia Rules apply to misconduct arising after December 31, 1999; the Code of Professional Responsibility applies to misconduct arising before January 1, 2000.

 

[3] The Respondentís prior disciplinary record included a 90-day suspension in 2002 and a private reprimand in 2003.