VIRGINIA:



BEFORE OF THE VIRGINIA STATE BAR DISCIPLINARY BOARD



IN THE MATTERS OF ELLEN COMPERE REYNOLDS

VSB Docket No. 00-090-2733 (VSB/Fitzpatrick)

VSB Docket No. 00-090-2892 (Coleman)



ORDER



THIS MATTER came to be heard on March 22, 2002, before a duly convened panel of the Virginia State Bar Disciplinary Board, consisting of Randy Ira Bellows, Second Vice Chair presiding, Richard J. Colten, William C. Boyce, Jr., Donna A. DeCorleto, and Theophlise L. Twitty.

The Respondent, Ellen Compere Reynolds, appeared in person and was represented by Michael L. Rigsby, Esquire. Paul D. Georgiadis, Esquire, Assistant Bar Counsel, appeared on behalf of the Virginia State Bar.

The proceedings were recorded by Donna T. Chandler, Chandler & Halasz, Inc., registered professional reporters, whose address is Post Office Box 9349, Richmond, Virginia 23227, and whose phone number is 804/730-1222.

This matter came before the Board by Certification of a Subcommittee of the Ninth District dated November 14, 2001. The Ninth District Certification consolidated both VSB docket numbers.

The factual basis of complaints considered by this Board is a result of complaints filed by David W. Coleman and a three-Judge panel of the Court of Appeals of Virginia. The latter complaint was filed on April 17, 2000, and was a result of the circumstances surrounding an appeal to that court wherein the Respondent, Ellen Compere Reynolds, was Special Counsel for and represented the Virginia Division of Child Support Enforcement, a division of the Department of Social Services. In order to address the issues raised in the Ninth District Subcommittee's Certification, each paragraph set out in the Findings of Fact and the Nature of Misconduct, as reported by the Subcommittee, will be set forth below in the same sequence, followed immediately thereby with this Board's findings and disposition.

The Certification to this Board is as follows:

I. FINDING OF FACT


1. At all times material to these allegations, Ellen Compere Reynolds, hereinafter "Respondent", has been an attorney licensed to practice law in the Commonwealth of Virginia.

The Panel finds that the Respondent, at all times relevant to this matter, has been an attorney licensed to practice within the Commonwealth of Virginia. Ellen Compere Reynolds has practiced in Virginia for in excess of six years.

2. On May 6, 1999, Reynolds appeared in Danville Circuit Court as Special Counsel for the Department of Child Support Enforcement in the case of DCSE ex rel. Brenda Hutcherson v. David Coleman. Hutcherson was appealing the J & D Court's reduction of Coleman's monthly child support to $298.58. David Coleman, hereinafter "Coleman", appeared pro se at this and subsequent proceedings.

The Panel finds that this Finding of Fact is accurate, and that the Respondent does not contest this allegation.

3. Following the hearing, Respondent tendered to the Court an order entered on May 24, 1999. The order included a finding for child support arrearage of $1,094.70, although neither the pleadings nor the evidence mentioned a current child support arrearage. As the Court dispensed with the requirement of presentment and signature per Rule 1:13, the Respondent tendered the order directly to the Court for entry without giving Coleman a chance to object.

The Panel confirms the accuracy of this finding, and it is not contested by the Respondent.

4. Respondent drafted the order and presented it for entry with a direction to the Clerk of the Court to mail the order to Coleman at 218 Third Avenue West, Danville, VA 24540, an address where Coleman had not lived for a number of years. During the course of several years of prior proceedings with Coleman, Respondent had served process upon Coleman at his current two addresses of 816 Shephard Avenue, Danville, VA or 4611 Raven Drive, Climax, N.C. Moreover, Respondent's first question at the hearing of May 6, 1999 asked and confirmed Coleman's physical address at the Climax, North Carolina address.

The Panel again finds the allegation to be accurate, and it is not disputed by the Respondent. However, the Respondent claims that she made an error in reviewing the Division's computerized records and used an "old" address, which was no longer valid, notwithstanding both that the computer records indicated that Mr. Coleman had moved from that address and that the Respondent acknowledged having served process upon Mr. Coleman at his correct address both prior and subsequent to the service in question. Respondent claims that she had no ulterior motive in using the invalid address for Mr. Coleman, and the Panel finds that the Bar has failed to sustain its position that suggested that the Respondent intentionally inserted the wrong address so that Mr. Coleman would not receive appropriate notice of the contents of the erroneous order specifying the arrearage.

5. As a result of Respondent's use of an old address, Coleman did not receive the erroneous order directly.

The Panel finds that this is an accurate representation. The Respondent did not offer any evidence to suggest otherwise, but maintains that her error was unintentional and based on her failure to obtain Mr. Coleman's accurate address from the computer records.

6. Upon learning of the arrearage order, Coleman moved the Court to vacate the order and was heard on July 27, 1999. Despite the lack of any evidence being presented to the Court at the May 6, 1999 hearing, Respondent represented to the Court that arrearage had been at issue at the May 6, 1999 hearing.

The Panel finds that this allegation has been established, by clear and convincing evidence, and is a basis for a finding of misconduct, which will be referred to below. The Bar proved, by clear and convincing evidence, a violation of DR 7-105(C)(1).

7. Coleman filed his appeal to the Virginia Court of Appeals and served Respondent with his Appellant's brief on or about September 25, 1999. Coleman's brief presented only two (2) issues in his Question Presented, with the first being the lack of evidence for finding an arrearage.

The Panel finds that this is an accurate statement, and the Respondent does not contest. However, Respondent states that she may have only "skimmed" the Appellant's (Coleman's) brief, and it did not become evident to her that Mr. Coleman's major complaint was that the May 24, 1999 Circuit Court order contained the arrearage adjudication without any evidence having been presented to the Court. The Respondent's statement strains credulity but the Board could not conclude, based on the evidence before it, that the respondent was deceptive with this Board.

8. Notwithstanding Coleman's briefing of the arrearage issue, Respondent failed to report the issue in her memorandum dated October 7, 1999 to her superiors and supervisors at the Office of Attorney General.

The Panel finds this allegation to be accurate. The Respondent does not contest its accuracy, although she continues to claim that she omitted discussion of the "arrearage issue" because she was essentially unaware of its significance notwithstanding Mr. Coleman's previously filed Motion to Vacate the May 24, 1999 Circuit Court order and his Appellant's brief filed on or about September 25, 1999 with the Virginia Court of Appeals. Both filings by Mr. Coleman clearly articulated his concern that the Respondent improperly inserted an erroneous finding in the May 24, 1999 order.

9. On October 21, 1999, Respondent filed her Appellee's brief with the Court of Appeals. Therein, Respondent failed to address, acknowledge, or attempt to explain the unsupported provision in the decree for the child support arrearage.

The Panel finds this allegation to be established. The Respondent's position is that the inclusion of the arrearage finding in the May 24, 1999 Circuit Court order was "harmless error" or, in the alternative, the Appellant (Coleman) was barred from presenting his argument to the Court of Appeals because he did not adequately preserve the issue in the Court below for appropriate appeal to the Court of Appeals. By maintaining that position up to and until confronted by the Judges of the Court of Appeals, this Panel believes that the Respondent participated in further misconduct, which will be addressed below. The Bar proved, by clear and convincing evidence, a violation of Rule 3.1.

10. Only when expressly confronted by a three judge panel of the Court of Appeals did Respondent acknowledge that she had no defense to the arrearage provision. As a result of Coleman's pro se appeal, the Court of Appeals reversed the trial court's award of the child support arrearage.

The Panel finds that this allegation is accurate. The Respondent claims that she brought her error to the attention of the Court of Appeals as soon as practicable. The Panel believes otherwise, and the Respondent's failure to disclose her error in including the arrearage in the May 24, 1999 order until confronted by the Judges of the Court of Appeals was continuing misconduct by the Respondent and a violation of Rule 3.1.

The Ninth District Subcommittee certified the following alleged violations of the Disciplinary Rules of the Virginia Code of Professional Responsibility and Virginia Rules of Professional Conduct:



II. NATURE OF MISCONDUCT



DR 1-102. Misconduct.

(A) A lawyer shall not:

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

The Panel finds that the Virginia State Bar did not prove, by clear and convincing evidence, a violation of DR 1-102, and the charge is therefore dismissed.


Rule 8.4. Misconduct.

It is professional misconduct for a lawyer to:

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

The Panel finds that the Virginia State Bar did not prove, by clear and convincing evidence, a violation of Rule 8.4, and the charge is therefore dismissed.


DR 7-105. Trial Conduct.

(C) In appearing in his professional capacity before a tribunal, a lawyer shall not:

(1) State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.

(2) Ask any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.

(3) Assert his personal knowledge of the facts in issue, except when testifying as a witness.

(4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.

(5) Intentionally or habitually violate any established rule of procedure or of evidence, where such conduct is disruptive of the proceedings.

(6) A lawyer shall not knowingly offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.


The Panel finds, by clear and convincing evidence, that the Respondent did violate DR 7-105(C)(1), in that the Respondent did state or allude to a matter that she had no reasonable basis to believe was relevant to the case or that would not be supported by admissible evidence. This violation essentially results from the Respondent's misleading the Circuit Court Judge when the trial Court addressed Mr. Coleman's Motion to Vacate the May 24, 1999 order, by erroneously informing the trial Court that, at the May 6, 1999 hearing, evidence had been presented that Mr. Coleman was in arrears in his child support. Violations of DR 7-105(C)(2), (3), (4), (5) and (6) have not been proven by clear and convincing evidence and those charges are, therefore, dismissed. In other words, the Board found that Reynolds did misstate the facts to the trial court, and had no reasonable basis to make the statement she made, but the Board also found that the Bar failed to carry its burden of proving that the misstatement was a knowing and intentional false representation.


RULE 3.4. Fairness to Opposing Party and Counsel.

A lawyer shall not:

(c) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.

(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.

(f) In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.

(i) File a suit, initiate criminal charges, assert a position, conduct a defense, delay a trial, or take other action on behalf of the client when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.

The Panel finds that violation of Rule 3.4 has not been proven by clear and convincing evidence, and the charge is, therefore, dismissed.


DR 7-102. Representing a Client Within the Bounds of the Law.

(A) In his representation of a client, a lawyer shall not:

(1) File a suit, initiate criminal charges, assert a position, conduct a defense, delay a trial, or take other action on behalf of his client when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another.

(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.

(3) Conceal or knowingly fail to disclose that which he is required by law to reveal.

(4) Knowingly use perjured testimony or false evidence.

(5) Knowingly make a false statement of law or fact.

(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.

(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.

(8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.

The Panel finds that the Virginia State Bar has failed to prove a violation of DR 7-102, and that allegation is, likewise, dismissed.

RULE 3.1. Meritorious Claims And Contentions.

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

The Panel finds, by clear and convincing evidence, that the Respondent violated Rule 3.1. The Respondent was in a position to acknowledge her error regarding the "arrearage issue" prior to or at least when she filed her Appellee's brief with the Court of Appeals on October 21, 1999, and she continued to be under an obligation to acknowledge her error on numerous occasions prior to arguing before the Court of Appeals. It should be noted that the Rules of Professional Conduct became effective January 1, 2000, slightly more than two months after the Respondent filed the Appellee's brief with the Court of Appeals. However, the Panel believes that the Respondent violated the Rule, in a continuing fashion, in that she consistently defended her position regarding the "arrearage issue" without a reasonable basis in fact or law. The Respondent's failure to correct or modify her position up until her argument before the Court of Appeals on April 4, 2000 is a violation of Rule 3.1 and has been established by clear and convincing evidence.


RULE 3.3. Candor Toward The Tribunal.

(6) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal;

(2) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

The Panel finds that the Virginia State Bar has failed to establish a violation of Rule 3.3 by clear and convincing evidence, and the charge is thereby dismissed.

The Board, after considering the testimony of eight witnesses, including the Respondent, plus a de bene esse deposition of The Honorable Sam J. Coleman, Judge of the Court of Appeals of Virginia, and after reviewing 24 exhibits introduced by the Virginia State Bar and 17 exhibits introduced by the Respondent, all without objection from opposing counsel, and having considered the Motion to Strike made by the Respondent, and denying same, and having heard argument, the Board deliberated. After an equally aggressive prosecution and defense, the Board unanimously determined that the Respondent be given a PUBLIC REPRIMAND inasmuch as the Board finds, by clear and convincing evidence, that the Respondent, Ellen Compere Reynolds, violated DR 7-105(C)(1) and Rule 3.1. Upon consideration of these matters, the Panel hereby issues a PUBLIC REPRIMAND effective upon entry of this Order.

The Clerk of the Disciplinary System shall assess costs pursuant to Part IV, Paragraph 13(k)(10) of the Rules of the Virginia Supreme Court.

IT IS ORDERED that the Clerk of the Disciplinary System shall send an attested true copy of this Order to the Respondent, Ellen Compere Reynolds, by certified mail, return receipt requested, at her address of record for the Virginia State Bar, Child Support Enforcement Division, Danville District Office, 155 Deer Run Road, Danville, Va. 24540, and to Michael L. Rigsby, Esquire, Respondent's counsel, Suite 160, 9030 Stoney Point Parkway, Richmond, Virginia 23235, and to Paul D. Georgiadis, Esquire, Assistant Bar Counsel, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia, 23219-2800.



ENTERED this __________ day of April, 2002.



VIRGINIA STATE DISCIPLINARY BOARD







By:_____________________________________

Randy Ira Bellows, Second Vice Chair