BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD
IN THE MATTER OF
JAMES FREDERICK PASCAL
VSB DOCKET NO. 02-031-4074
On October 24, 2003 this matter came before a duly constituted panel of the Virginia State Bar Disciplinary Board upon certification of a subcommittee of the Third District Committee, Section I. The Panel consisted of Peter A. Dingman, Chair, William C. Boyce, Jr., Joseph R. Lassiter, Jr.,Werner H. Quasebarth, lay member, and Deborah A. J. Wilson. James Frederick Pascal appeared pro se. Barbara Ann Williams, 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.
VSB Exhibits 1 - 17 were admitted without objection. Additional Exhibits were offered by the VSB and admitted as Exhibits 18 - 21, without objection. Respondent offered two exhibits, admitted as Respondentís #1 and #2.
I. FINDING OF FACTS
1. Mr. Pascal was admitted to the practice of law in the Commonwealth of Virginia on September 21, 1973.
2. On February 20, 2002, the Clerk of the Disciplinary System mailed Mr. Pascal a Notification of Assessment of Costs in the amount of $761.67 by certified mail. (VSB Ex 2).
3. The assessment stated: ìPlease remit the amount due within thirty days of the date of this letter. Should you fail to remit the amount due by March 20, 2002, your license will be administratively suspended and interest at the judgment rate shall commence on the costs assessed.î
4. Mr. Pascal signed the certified mail return receipt for the assessment on or about February 21, 2002.
5. On March 27, 2002, an Assistant Clerk repeatedly tried to reach Mr. Pascal by telephone to discuss the outstanding assessment.
6. On March 28, 2002, the Assistant Clerk finally reached Mr. Pascal and advised him that if the bar did not receive the $761.67 by 4:45 p.m. that day, he would be administratively suspended (VSB Ex. 3).
7. Mr. Pascal did not remit the assessed costs.
8. The Disciplinary Board administratively suspended Mr. Pascal on March 28, 2002, for failing to pay the costs.
9. The same day the Clerk of the Disciplinary System mailed Mr. Pascal a certified letter advising him of the administrative suspension and enclosing a copy of the suspension order. (VSB Ex. 4)
10. Mr. Pascal signed the certified mail return receipt for the administrative suspension order on March 29, 2002. Mr. Pascal admitted receiving the letter and reading it.
11. On May 1, 2002, Mr. Pascal participated as counsel in depositions taken in connection with a domestic relations matter in which Mr. Pascal represented the plaintiff. (VSB Ex. 7)
12. Mr. Pascal continued to hold himself out as plaintiffís counsel in subsequent discussions with opposing counsel, in the case of Siewert v. Norris, who did not learn that Mr. Pascal was suspended from the practice of law until on or about June 11, 2002. At that time opposing counsel left a voicemail inquiry with Mr. Pascal, and followed up with a letter dated June 25, 2002, (VSB Ex 10), but received no response.
13. Mr. Pascal was not reinstated to the practice of law until July 19, 2002, after he paid the costs as assessed.
14. On August 12, 2002, during a hearing in the Siewert v. Norris case, Mr. Pascal represented to the court that he did not know he was actually suspended from the practice of law until he received a telephone message from opposing counsel in June 2002. (VSB Ex. 15).
15. Mr. Pascal further represented to the court: ìMy first awareness that I was actually suspended arose in June when I received a telephone message from Ms. Costello. It was resolved in a few weeks after that. I paid them their money, and I was reinstated then and I am reinstated as I stand before you today.î (VSB Ex. 15).
B. Charges of Misconduct
The foregoing allegations give rise to the following charges of misconduct under the Rules of Professional Conduct:
RULE 3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(3) Make a false statement of fact or law to a tribunal;
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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 a 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.
* * *
SUMMARY OF DECISION
Respondent received a Private Reprimand with Terms from the Third District Committee, Section I. When he failed to complete the terms imposed, the sanction became a Public Reprimand. Upon imposition of the Private Reprimand, the Bar assessed costs against Respondent, which costs were not paid in a timely manner, resulting in administrative suspension. Respondent testified that he hand-delivered a letter on March 3, 2002, asking the Bar to reconsider the imposition of costs. However, the Bar has no record of receiving such letter (See Affidavit of VSB Clerk, VSB Ex. 19), and in fact March 3, 2002, was a Sunday. Respondent contended that he thought the filing of the alleged notice on March 3, 2002, pursuant to Rule 13(k)(10) requesting reconsideration would toll the administrative suspension of his license. Although respondent initially testified that he had no recollection of a conversation with Grace Massenburg, assistant VSB clerk, on March 28, 2002, advising him that his license would be suspended if the costs were not paid that day, he later testified that he did recall having the telephone conversation with Ms. Massenburg.
Respondent stated in closing argument that he had reason to believe that his license had been suspended, but that he was ìpushing the envelopeî by taking the position that his suspension had been stayed and continuing to practice law. Respondent never consulted the VSB to ascertain whether he had a petition pending or if the VSB had stayed suspension of his license.
The panel finds that Respondent knew or should have known that his license was suspended, and that he chose to continue practicing law, wilfully disregarding the suspension. Furthermore, the panel finds that Respondent misstated facts concerning the status of his license to a tribunal.
IMPOSITION OF SANCTION
The Board, having considered all evidence before it and having considered the nature of the Respondent's actions, and having considered the Respondent's prior disciplinary record, ORDERS pursuant to Part 6, Sec. IV, Para. I.f(2) of the Rules of the Virginia Supreme Court that the license of the Respondent, James Frederick Pascal, to practice law in the Commonwealth of Virginia be, and the same is hereby REVOKED effective October 24, 2003.
It is further ORDERED that Respondent must comply with the requirements of Part 6, Section IV, Paragraph 13(M) of the Rules of the Supreme Court of Virginia. All issues concerning the adequacy of the notice and arrangements required by the Order shall be determined by the Board. Pursuant to Part 6, Sec. IV, Para. 13.B.8.C of the Rules, the Clerk of the Disciplinary System shall assess costs.
It is further ORDERED that a copy testee of this Order shall be mailed by certified mail, return receipt requested, to the Respondent at his last address of record with the Virginia State Bar, 11417 Hilbingdon Road, Richmond, Virginia 23233, and hand delivered to Barbara Ann Williams, Bar Counsel, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2803.
Theresa S. Griffith, Chandler and Halasz, Inc., P.O. Box 9349, Richmond, Virginia 23227, 804/730-1222, was the reporter for the hearing and transcribed the proceedings.
ENTERED this ____ day of November, 2003.
VIRGINIA STATE BAR DISCIPLINARY BOARD
By: _____________________________________ Peter A. Dingman, Acting Chair