VIRGINIA:

BEFORE THE VIRGINIA STATE BAR
DISCIPLINARY BOARD

IN THE MATTER OF VSB DOCKET NO. 02-010-1841
WESLEY LEE PENDERGRASS

ORDER

This matter came to be heard on February 7, 2003, upon an Agreed Disposition between the Virginia State Bar and the Respondent, Wesley Lee Pendergrass, Esq.

A duly convened panel of the Virginia State Bar Disciplinary Board consisting of Bruce T. Clark, Esq., Peter A. Dingman, Esq., Joseph A. Lassiter, Esq., V. Max Beard, Lay Member, and, Roscoe B. Stephenson, III, Esq., 1st Vice Chair, presiding, considered the matter by telephone conference. The Respondent, Wesley Lee Pendergrass, participated in the conference, pro se. Edward L. Davis, Assistant Bar Counsel, appeared on behalf of the Virginia State Bar.

It is the decision of the Virginia State Bar Disciplinary Board to accept the Agreed Disposition. The Stipulations of Fact, Disciplinary Rule Violation, and Disposition agreed to by the Virginia State Bar and the Respondent are incorporated herein as follows:


I. STIPULATIONS 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 November 20, 1997, a jury of the Circuit Court for the City of Newport News convicted Kermit Spence of second degree murder and the use of a firearm in the commission of a felony. The jury recommended a sentence of thirty-three years on the murder conviction and three years on the firearm conviction, for a net sentence of thirty-six years in prison. On January 14, 1998, the trial court imposed the sentences recommended by the jury. Mr. Pendergrass was Mr. Spence(s court-appointed counsel. He timely noted an appeal to the Court of Appeals of Virginia, and filed a petition for appeal.


3. On July 9, 1998, the Court of Appeals dismissed the appeal because Mr. Pendergrass failed to preserve the appellate issues at trial, as required by Rule 5A:18 of the Rules of the Supreme Court of Virginia. On August 10, 1998, Mr. Pendergrass filed a petition for appeal to the Supreme Court of Virginia. Mr. Pendergrass informed Mr. Spence about the dismissal of the appeal and the appeal to the Supreme Court by furnishing copies of the pertinent records to his client. On August 31, 1998, the Supreme Court dismissed the appeal because Mr. Pendergrass failed to file a notice of appeal, as required by Rule 5:14(a) of the Rules of the Supreme Court of Virginia.

4. By letter, dated November 25, 2001, Mr. Spence complained to the Virginia State Bar that he had heard nothing about the status of his appeal since Mr. Pendergrass appealed it to the Supreme Court of Virginia. He said that he had written to Mr. Pendergrass several times, but never received a response and, for this reason, he complained to the bar. The bar advised Mr. Pendergrass about the complaint. By letter, dated December 28, 2001, Mr. Pendergrass advised Mr. Spence about the dismissal of his appeal, and enclosed a copy of the Order entered on August 31, 1998.

5. Mr. Pendergrass said that he had previously notified Mr. Spence about the dismissal more than three years ago. Mr. Pendergrass, however, had no record or copies of correspondence in his file to confirm this. Mr. Pendergrass acknowledged that he did not advise his client that the appeal was dismissed because of Mr. Pendergrass( error. He also acknowledged that he did not tell his client about any potential post-trial remedies deriving from his error, such as a writ of habeas corpus for a delayed appeal.

II. DISCIPLINARY RULE VIOLATIONS

The parties agree that the aforementioned facts give rise to violations of the following Disciplinary Rules:

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.

(C) A lawyer shall keep a client reasonably informed about matters in which the lawyer(s services are being rendered.


(D) A lawyer shall inform his client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter.

RULE 1.4 Communication

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

III. DISPOSITION

Upon consideration of the Stipulations of Fact and Disciplinary Rule violations, the comments of counsel, and the Respondent(s prior disciplinary record, the Board accepts the agreed upon sanction of a one (1) year suspension of the Respondent(s license to practice law in the Commonwealth of Virginia, with all of the said suspension suspended for a period of one (1) year, subject to the following terms and conditions:

The Respondent, Wesley Lee Pendergrass, is placed on probation for a period of one (1) year, said period to begin upon entry of this Order. Mr. Pendergrass will engage in no professional misconduct as defined by the Virginia Rules of Professional Conduct during such probationary period. Any final determination of misconduct determined by any District Committee of the Virginia State Bar, the Disciplinary Board, or a three-judge court to have occurred during such period will be deemed a violation of the terms and conditions of the Agreed Disposition incorporated in this Order and will result in the imposition of the full one-year suspension of his license to practice law as an alternate sanction. The alternate sanction will not be imposed while Mr. Pendergrass is appealing any adverse decision which might result in a probation violation.
The imposition of the alternate sanction will not require a hearing before the Board on the underlying charges of misconduct stipulated herein if the Virginia State Bar discovers that the Respondent has violated any of the foregoing terms and conditions. Instead, the Virginia State Bar shall issue and serve upon the Respondent a Notice of Hearing to Show Cause why the alternate sanction should not be imposed. The sole factual issue will be whether the Respondent has violated the terms of the Agreed Disposition incorporated in this Order without legal justification or excuse. The imposition of the alternate sanction shall be in addition to any other sanctions imposed for misconduct during the probationary period.


Pursuant to Part Six, Section IV, Paragraph 13(K)(10) of the Rules of the Supreme Court, the Clerk of the Disciplinary System shall assess costs.


The court reporter who transcribed this proceeding is Donna Chandler, Chandler & Halasz, P.O. Box 9349, Richmond, Virginia 23227, (804) 730-1222.


A copy teste of this Order shall be served upon the Respondent, Wesley Lee Pendergrass, by Certified Mail, Return Receipt Requested, at 210 Florence Drive, Hampton, Virginia 23666-2931, his address of record with the Virginia State Bar and hand delivered to Edward L. Davis, Assistant Bar Counsel, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219.

ENTERED THIS _________ DAY OF ___________, 2003

THE VIRGINIA STATE BAR DISCIPLINARY BOARD


BY _______________________________________
Roscoe B. Stephenson, III
1st Vice Chair