VIRGINIA:



BEFORE THE FIRST DISTRICT COMMITTEE

OF THE VIRGINIA STATE BAR



IN THE MATTER OF



WESLEY LEE PENDERGRASS

VSB Docket No. 00-010-3192



DISTRICT COMMITTEE DETERMINATION

(PUBLIC REPRIMAND WITH TERMS)



On February 7, 2002, a hearing in this matter was held before a duly convened First District Committee panel consisting of J. Wayne Sprinkle, Esquire, Eugene M. Jordan, II, Esquire, Damian P. Dwyer, Esquire, Robert W. Jones, Jr., Esquire and John D. Eure, Jr., Esquire, Chair, presiding.

The Respondent appeared in person pro se and Edward L. Davis, Assistant Bar Counsel, appeared on behalf of the Virginia State Bar.

The lay member designated for the hearing had taken ill and could not appear, and no other lay member was available to appear in his stead. A quorum otherwise being present, and there being no objection from the Respondent, the Committee proceeded without a lay member.

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 Public Reprimand with Terms:

I. FINDINGS OF FACT

1. During all times relevant hereto, the Respondent, Wesley Lee Pendergrass, (hereinafter Respondent or Mr. Pendergrass) was an attorney licensed to practice law in the Commonwealth of Virginia.



2. On April 6, 2000, the Circuit Court for the City of Newport News sentenced the Complainant, Jason A. Brown, to a net sentence of five years to serve in the Virginia Department of Corrections on his convictions of armed robbery and use of a firearm in the commission of a felony. Mr. Pendergrass was Mr. Brown's court-appointed defense counsel.



3. Mr. Brown advised Mr. Pendergrass that he desired to appeal his convictions, and Mr. Pendergrass noted an appeal to the Court of Appeals of Virginia on April 26, 2000. Thereafter, Mr. Pendergrass took no further action with respect to the appeal, and the Court of Appeals dismissed it accordingly on September 20, 2000.



4. The following year, on January 16, 2001, Mr. Pendergrass filed a Motion for Reconsideration of Sentence on behalf of Mr. Brown in the Circuit Court for the City of Newport News. The motion was based upon Mr. Brown's cooperation with police in other unrelated matters. At the time, the Hampton Circuit Court had already reduced a felony to a misdemeanor in consideration of Mr. Brown's cooperation with the authorities. The Newport News Circuit Court, in its discretion, chose not to hear the motion.



5. Evidence adduced at the hearing indicated that Mr. Brown repeatedly wrote to his attorney throughout the matter asking him to communicate with him. Unable to verify whether Mr. Pendergrass had noted his appeal, he complained to the Virginia State Bar in June 2000. Mr. Pendergrass responded to the complaint and visited Mr. Brown at the jail on July 18, 2000 to discuss his appeal.



6. In his response to the bar complaint, dated July 17, 2000, Mr. Pendergrass said that Mr. Brown desired an appeal, and that Mr. Pendergrass would meet all deadlines and protect all of his rights accordingly. Mr. Pendergrass took the initial steps to perfect the appeal, and ordered the trial transcript, which became part of the record. He did not know he was required to notify the Commonwealth's Attorney about the receipt of the transcript, in accordance with Supreme Court Rule 5A:18, and did not do so.



7. Mr. Pendergrass testified that when he met with Mr. Brown at the jail following the bar complaint, he advised Mr. Brown not to pursue the appeal because the sentence modification motion was the only viable option. He said that in response, Mr. Brown told him to do what he thought was best, and that Mr. Pendergrass allowed the appeal to lapse accordingly. Mr. Pendergrass acknowledged that Mr. Brown never expressly authorized him to forego the appeal, and that he never sought a written waiver of the appeal from Mr. Brown.



8. Mr. Brown testified that he never wanted his attorney to forego the appeal, and that he never agreed to a sentence modification motion in lieu of an appeal. A significant piece of evidence was a letter from Mr. Brown to the Virginia State Bar, written immediately after the July 18, 2000 meeting. In the letter, Mr. Brown complained about how Mr. Pendergrass urged him to drop his appeal when he wanted Mr. Pendergrass to pursue his appeal. He said further that he told Mr. Pendergrass during the meeting not to drop his appeal. At the time, the appeal was still pending.



II. MISCONDUCT



By unanimous decision, the Committee finds that Virginia State Bar has proven violations of the following Rules of Professional Conduct by clear and convincing evidence:



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 Committee finds that the bar did not prove violations of the following Rules of

Professional Conduct, and they are dismissed accordingly: Rule 1.4 (b) and (c).

 

III. PUBLIC REPRIMAND WITH TERMS



Upon consideration of the evidence and the Respondent's prior disciplinary record, which includes two instances of similar misconduct, 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 a Public Reprimand with Terms of this Complaint. The terms and conditions shall be met by the times set forth below:



1. Within six months of this hearing, or by August 7, 2002, the Respondent shall attend an approved Continuing Legal Education (CLE) course that includes the subject of Appellate Criminal Practice for no annual CLE credit. The Respondent may call the Virginia State Bar Department of Continuing Legal Education at (804) 775-0577 for information on available courses. The Respondent shall seek approval of the course from Assistant Bar Counsel Edward L. Davis before attending. The Respondent shall certify his attendance at the course to Assistant Bar Counsel Edward L. Davis.



2. Within six months of this hearing, or by August 7, 2002, the Respondent shall attend a

CLE Course on the subject of law office management or risk management for no annual CLE credit, subject to the same conditions mentioned above in term (1).



3. Within thirty (30) days of completing the CLE course on law office management or risk

management, or by September 7, 2002, the Respondent shall write to the Virginia State Bar, in care of Edward L. Davis, Assistant Bar Counsel, a detailed letter about how he has changed or modified his docket control system.



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 the 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







By____________________________

John D. Eure, Jr., Chair





CERTIFICATE OF SERVICE



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 (Public Reprimand with Terms) to Wesley Lee Pendergrass, Esquire, Respondent, at Suite 327, 2013 Cunningham Drive, Hampton, Virginia 23666-2304, his last address of record with the Virginia State Bar.





_________________________________

Edward L. Davis, Assistant Bar Counsel