VIRGINIA: BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

IN THE MATTER OF

Victor Alan Motley

VSB Docket Nos. 00-032-0680, 01-032-3160

ORDER

This matter comes on a certification from a Subcommittee of the Third District Disciplinary Committee, Section II, alleging a series of trust account violations, and in a separate incident, an instance of practicing law while suspended. A hearing was held on March 28, 2003 in Hearing Room B, of the State Corporation Commission, 1300 East Main Street, Second Floor, Richmond, Virginia 23219.

The Board consisted of Theophlise L. Twitty, Acting Chairman, Thaddeus T. Crump, William C. Boyce, Jr., David R. Schultz, and Frank B. Miller, III. The Respondent, Victor Alan Motley, appeared without counsel. Harry Hirsch, Deputy Bar Counsel, appeared as counsel for the Virginia State Bar. The proceedings were transcribed by Donna Chandler of Chandler & Halasz, P.O. Box 9349, Richmond, Virginia 23227, (804) 730-1222.

The Chairman polled the Board to determine if any conflicts existed which would prevent any member from hearing the case objectively and fairly, and all members answered in the negative.

Prior to taking evidence, Mr. Motley objected to the hearing going forward claiming that there was no proof of him being properly served. The Board overruled Mr. Motley's objection. Mr. Motley then demurred, claiming that the Bar could not proceed with an allegation of unauthorized practice of law since Mr. Motley had not been convicted in a criminal court of any such conduct. Mr. Motley's demurrer was denied due to the fact that no such demurrer had been filed in writing prior to the hearing.

Findings of Fact
VSB Docket No. 00-032-0680, VSB/Trust Account Violations

(1) At all times relevant hereto, the Respondent, Victor Alan Motley (hereinafter referred to as "Motley") has been a registered lawyer with the Virginia State Bar. Motley's license, however, was suspended for misconduct effective November 30, 2000, for a period of eighteen months. Motley's license was again suspended for failure to pay the assessment of disciplinary costs effective July 20, 2001. Motley's license remained suspended for this reason.

(2) On September 3, 1999, the Consolidated Bank & Trust Company of Richmond, Virginia, reported that two overdrafts had occurred as a result of the payment of two checks against insufficient funds from account number 1004135112, such account denominated "Victor A. Motley, Sr., Escrow Account, P.O. Box 25786, Richmond, Virginia 23260-5786". The first check, number 5994 was in the amount of $50.00 and the second check, number 5995 was in the amount of $74.30.

(3) Upon payment of check number 5994 in the amount of $50.00 the account balance, according to the monthly statement, was -$5.02.

(4) Upon payment of check number 5995 in the amount of $74.30 the account balance, according to the monthly statement, was -$79.32.

(5) Motley was notified by the bank of checks paid against insufficient funds on August 27, 1999. The notice indicated that the two checks had been paid and that a handling fee of $60.00 had been charged to the account and that the resulting account balance was -$139.32.

(6) On August 30, 1999, Mr. Motley deposited cash in the amount of $140.00 in order to bring the account up to a positive balance. The money deposited was at least in part Motley's personal funds.

(7) As a result of the bank's notification to the Bar, the Bar assigned Investigator David Abrams to examine Motley's trust account. Investigator Abrams discovered numerous occasions on which the account was out of trust, including numerous negative balances. Investigator Abrams discovered $712.00 in overdrafts.

(8) Investigator Abrams also determined that Motley earned interest on two occasions in the amount of $65.00 and $136.00.

(9) The Bar introduced a detailed accounting of Investigator Abrams's findings which was admitted into evidence.

(10) During the years 1998 and 1999, Motley failed to operate the account in accordance with the trust account requirements of Canon 9 of the Virginia Code of Professional Responsibility.

Nature of Misconduct

The Board finds by clear and convincing evidence that such conduct on the part of Victor Alan Motley constitutes misconduct in violation of the following provisions of the Virginia Code of Professional Responsibility:

DR 1-102. Misconduct
A lawyer shall not:
Commit a crime or other deliberately wrongful act that reflects adversely on the lawyer=s fitness to practice law.
The Board finds by clear and convincing evidence that Mr. Motley's course of conduct during this period constitutes a deliberately wrongful act in violation of this Section.

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

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:

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

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.

The Board finds by clear and convincing evidence that Motley's commingling of funds in the trust account violated these Sections.

Findings of Fact
VSB Docket No. 01-032-3160 (The Scholl Complaint)

(1) At all times relevant hereto, the Respondent, Victor Alan Motley (hereinafter referred to as "Motley") has been a registered lawyer with the Virginia State Bar. Mr. Motley's license, however, was suspended for misconduct effective November 30, 2000, for a period of eighteen months. Mr. Motley's license was again suspended for failure to pay the assessment of disciplinary costs effective July 20, 2001. Mr. Motley's license remained suspended for this reason.

(2) On June 11, 2001, Knanoni Bey (hereinafter referred to as "Bey") was involved in an automobile accident. Since Motley had provided legal services to Bey's family in the past, Bey contacted Motley for representation regarding the property damage and personal injuries sustained in the accident. It was agreed that Bey would pay Motley a percentage of the recovery for his services.

(3) Motley sent a letter dated June 12, 2001 by facsimile transmission to Meg Scholl, a claim representative for GMAC Insurance, and the complainant in this matter. The reference block in the letter noted the following: "Bey, Khanoni [sic], Social Security Number 154-72-3308, Your Insured - Mary Cosby". In the letter Motley stated the following:

"Please be advised that I am the settlement agent with respect to the above-referenced. Please direct all correspondence to the attention of the undersigned."

(4) The letter was typed on Motley's former law office letterhead stationery. Much of the letterhead, however, had been obscured with a felt tip marker. The letterhead, as presented to Ms. Scholls, read Victor A. Motley, Ltd., Tax ID Number 54-1585922. The address on the stationary remained the same as did the telephone number. The fax number had been obscured and a substitute fax number was provided.

(5) Finding the stationery suspicious, Ms. Scholl called the Virginia State Bar to determine the status of Motley's license, and determined that Motley had been suspended from the practice of law in November of 2000.

(6) Scholl then telephoned Motley about the letter and asked him if he represented Bey regarding property damage and personal injury claims. Motley stated that he did. Scholl asked Motley if he was taking a fee for his services and Motley confirmed that he was. Scholl tape recorded the telephone conversation and a transcript of the conversation was admitted into evidence.

(7) On June 18, 2001, Motley sent Scholl, by facsimile transmission, language from Unauthorized Practice Rule 2, Lay Adjusters, Rules of the Virginia Supreme Court, Part 6, Section 1. It was Motley's contention that he was acting as a "Settlement Agent" and not as a lawyer.

(8) Scholl pointed out to Motley that he could not represent Bey as a lay adjuster or "settlement agent" with respect to alleged property damage and personal injury resulting from the accident, since such a claim constituted a third party claim, pursuant to Unauthorized Practice Rule 2-105. Motley withdrew from representation.

(9) On June 19, 2001, Bey obtained the services of a properly licensed lawyer to represent him in this matter, which was subsequently settled.

(10) Practicing law while not properly licensed to do so is a class one misdemeanor in violation of Virginia Code Section 54.1-3904, of the Code of Virginia of 1950, as amended.

(11) Motley was acting as a lawyer when representing Bey in the personal injury matter in that he, by his own admission, gave advice regarding the potential defendant's liability as well as the value of the claim.

(12) Motley held himself out to Scholl as qualified or authorized to practice law in the Commonwealth of Virginia when in fact he was suspended.

(13) Under any circumstances, Motley was not qualified to act as a lay adjuster since the matter involved a third party claim.

(14) Motley's actions constitute the unauthorized practice of law.

Nature of Misconduct
The Board finds by clear and convicting evidence that such conduct on the part of Victor Alan Motley constitutes misconduct in violation of the following provisions of the Virginia Rules of Professional Conduct:

RULE 5.5 Unauthorized Practice of Law
A lawyer shall not:
Practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or

RULE 8.4 Misconduct

It is professional misconduct for a lawyer to:

violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

commit a criminal or deliberately wrongful act that reflects adversely on the lawyer's honest, trustworthiness or fitness as a lawyer;

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

Sanction
In determining the appropriate sanction, the Board considered Motley's disciplinary record. Motley's record consists of nine disciplinary sanctions, including two public reprimands, one of which was originally a private reprimand with terms with which Motley failed to comply thereby triggering the public reprimand; a private reprimand with terms, two dismissals with terms, three administrative suspensions for failing to pay costs associated with disciplinary proceedings, and an eighteen month suspension arising out of a real estate transaction and involving competence, neglect, failure to communicate, and trust violations.

To Motley's credit, the Board considered that none of the trust violations proven by the Bar in this case resulted in a loss to any client.

In view of Mr. Motley's lengthy record, a portion of which involves trust account violations, and in view of the fact that Mr. Motley continued to practice law after his license to do so was suspended, the Board finds that Motley's license should be, and hereby is revoked effective March 28, 2003.

Duties of the Respondent

It is ORDERED that, as directed in the Board's March 28, 2003 Summary Order in this matter, a copy of which was served on Respondent by certified mail, Respondent must comply with the requirements of Part 6, Section IV, Paragraph 13 M, of the Rules of the Supreme Court of Virginia. The time for compliance with said requirements runs from March 28, 2003, the effective date of the Summary Order. All issues concerning the adequacy of the notice and arrangements required by the Summary Order shall be determined by the Board.

It is further ordered pursuant to Paragraph 13 B.8.c.1 of the Rules of the Supreme Court of Virginia, that the Clerk of the Disciplinary System shall assess costs against the Respondent.

It is finally ordered that the Clerk of the Disciplinary System shall forward a copy of this order, by certified mail, return receipt requested, to the Respondent, Victor Alan Motley, at his address of record with the Virginia State Bar, P.O. Box 25786, Richmond, Virginia 23260-5786, and hand delivered to Harry M. Hirsch, Deputy Bar Counsel, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800.

ENTERED this ______ day of _______________, 2003.

VIRGINIA STATE BAR DISCIPLINARY BOARD

By:_________________________________________
Theophlise L. Twitty, Acting Chairman