BEFORE THE VIRGINIA STATE BAR
IN THE MATTER OF
JEFFREY BOURKE RICE
VSB DOCKET NO. 02-052-0197
came on to be heard on March 28, 2003, before a panel of the Disciplinary Board
consisting of Roscoe B. Stephenson, III, Esquire, First Vice Chair, Larry B. Kirksey,
Esquire, Chester J. Cahoon, Lay member, Joseph R. Lassiter, Jr., Esquire, and
H. Taylor Williams, IV, Esquire. The State Bar was represented by Noel D. Sengel,
Senior Assistant Bar Counsel. The respondent, Jeffrey Bourke Rice, appeared in
person and represented himself. The Chair polled the members of the Board Panel
as to whether any of them was conscious of any personal or financial interest
or bias which would preclude any of them from fairly hearing this matter and serving
on the panel, to which inquiry each member responded in the negative. Comiller
T. Boyd, court reporter, 105 St. Claire Lane, Richmond, Virginia, (804)644-2581,
after being duly sworn, reported the hearing and transcribed the proceedings.
The matter came before the Board
on the District Committee Determination for Certification by the Fifth District
Committee Section II.
I. FINDINGS OF FACT
VSB Exhibits 1 through 11 were admitted
without objection. The Bar and Respondent entered into a stipulation of fact
admitted as VSB Exhibit # 12 without objection. The Board makes the following
findings of fact on the basis of clear and convincing evidence:
- At all times relevant hereto,
Jeffrey Bourke Rice, hereinafter the "respondent", has been an attorney licensed
to practice law in the Commonwealth of Virginia and his address of record
with the Virginia State Bar has been 10521 Judicial Drive, Fairfax, Virginia,
22030. The respondent received proper notice of this proceeding as required
by Part Six, §IV, ¶13 (E) and (I)(a) of the Rules of Virginia Supreme
- The Complainant, Curtis Lee Thompson,
hereinafter referred to as "Thompson", was convicted in Madison County, Virginia,
of a number of felonies and was sentenced to serve five (5) years in the Virginia
State Penitentiary in December, 1999.
- Mr. Thompson was still being
housed in Culpeper County Jail in January, 2001, on behalf of Madison County.
- Mr. Thompson communicated with
respondent in January, 2001, requesting respondent to represent him on a motion
to be filed in Madison County Circuit Court asking the court to reconsider
its sentence imposed upon Thompson for his various felony convictions.
- Respondent quoted a fee to Thompson
of Seven Hundred Fifty Dollars ($750.00) to engage him for the representation.
Respondent had conversations with Thompson's mother and sister regarding payment
of the quoted fee. On or about February 8, 2001, Thompson paid to respondent
the sum of Seven Hundred Dollars ($700.00) to engage respondent in representation
in Madison County to request the court to reconsider the imposition of the
sentence previously imposed upon him in December, 1999, for various felony
- After Thompson had paid respondent
the fee of Seven Hundred Dollars ($700.00), Thompson faxed respondent a letter
dated February 21, 2001, requesting information about a court date and time
on the motion for reconsideration to be filed in Madison County. Additionally,
Thompson faxed a letter to respondent dated February 22, 2001, asking whether
or not respondent had filed the motion for reconsideration in Madison County.
- Pursuant to Virginia Code ß 19.2-203
the circuit court that sentences a defendant may reconsider the imposition
of a sentence upon a defendant "at any time before the person is transferred
to the Department [of Corrections]." Therefore, time was of the essence in
the representation undertaken by respondent on behalf of Thompson because
the local circuit court could only maintain jurisdiction to reconsider Thompson's
sentence while Thompson remained housed in the Culpeper County Jail.
- On March 21, 2001, respondent
filed a motion to re-consider Thompson's sentence and a praecipe noticing
the Commonwealth that the motion would be heard in the Madison County Circuit
Court on April 11, 2001.
- On March 22, 2001, custody of
Thompson was transferred from Culpeper County Jail to the Virginia Department
of Corrections. The transfer of custody to the Virginia Department of Corrections
deprives the Madison County Circuit Court of any further jurisdiction to modify
Thompson's sentence pursuant to Virginia Code ß 19.2-303.
- Madison County Circuit Court
has motion days on the second Wednesday of each month. Respondent did not
file a motion to reconsider on behalf of Thompson prior to the motion days
available on February 14, 2001, or March 14, 2001.
- Respondent attempted to explain
the delay as necessary because he was attempting to get a pre-sentence report
from Thompson's counsel who represented him in the trial and at sentencing.
Counsel delayed in sending the pre-sentence report to respondent, therefore
respondent obtained permission from the court to get a copy of the pre-sentence
report by order entered March 28, 2001. It should be noted that the motion
for reconsideration was filed one week prior to the entry of the order granting
respondent permission to get a copy of the pre-sentence report.
- Respondent further explained
the delay as being caused by Thompson's request for respondent to communicate
with two investigators to see if the investigators would be responsive to
receiving information from Thompson in return for assistance from the investigators
on the motion to ask the court to reconsider his sentence. It should be noted
that the two faxes sent by Thompson to respondent make no mention of the request
to speak to the investigators and that respondent did not produce any independent
evidence that he had spoken with the investigators on behalf of Thompson.
- Respondent did attend the hearing
in Madison County Circuit Court scheduled for April 11, 2001. The Court appropriately
denied the motion for reconsideration of Thompson's sentence because it no
longer had jurisdiction over Thompson. Thompson learned of the circuit court's
decision denying the request for reconsideration after he called the respondent's
- On October 22, 2002, respondent
was served in person with a summons to appear before the District Committee
for a hearing concerning this complaint. The hearing was scheduled for November
19, 2002. Respondent failed to appear at the hearing.
- Respondent attempted to explain
his failure to appear at the hearing on November 19, 2002, before the District
Committee by stating that he failed to put the hearing on his calendar. Respondent
stated that he had no scheduling conflicts for the hearing on November 19,
The Certification charged violations
of the following provisions of the Virginia Rules of Professional Conduct:
RULE 1.3 Diligence
- A lawyer shall act with reasonable
diligence and promptness in representing a client.
RULE 1.4 Communication
- A lawyer shall keep a client
reasonably informed about the status of a matter and promptly comply with
reasonable requests for information.
- A lawyer shall explain a matter
to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation.
- A lawyer shall inform the client
of facts pertinent to the matter and of communications from another party
that may significantly affect settlement or resolution of the matter.
RULE 8.1 Bar Admission and Disciplinary
An applicant for admission to the
Bar, or a lawyer in connection with a bar admission application, in connection
with any certification required to be filed as a condition of maintaining or
renewing a license to practice law, or in connection with a disciplinary matter,
- fail to respond to a lawful
demand for information from an admissions or disciplinary authority, except
that this rule does not require disclosure of information otherwise protected
by Rule 1.6.
Upon review of the foregoing findings
of fact, upon review of exhibits presented by Bar Counsel on behalf of the VSB
as Exhibits 1 through 11, and the stipulation of facts admitted as VSB Exhibit
12, upon evidence from witnesses presented on behalf of the Bar and upon evidence
presented by respondent in the form of his own testimony, and at the conclusion
of the evidence regarding misconduct, the Board recessed to deliberate. After
due deliberation the Board reconvened and stated its findings as follows:
- The Board determined that the
Bar failed to prove by clear and convincing evidence any violation of Rule
1.4(a), (b), and (c).
- The Board determined that the
Bar did prove by clear and convincing evidence that the respondent was in
violation of Rule 1.3 (a) and Rule 8.1(c).
Thereafter, the Board received further
evidence of aggravation and mitigation from the Bar and respondent, including
respondent's prior disciplinary record. The Board recessed to deliberate what
sanction to impose upon its findings of misconduct by respondent. After due
deliberation the Board reconvened to announce the sanction imposed. The Chair
announced the sanction as a one-year suspension of respondent's license to practice
law in the Commonwealth of Virginia. In announcing the sanction the Chair informed
respondent that the Board placed great emphasis on respondent's lengthy prior
disciplinary record, with references to similar types of misconduct and took
notice of the effort exerted by the Bar to have notice of the District Committee
hearing served upon respondent only to have respondent forget the hearing date
and fail to appear at the hearing.
Accordingly, it is ORDERED that
the license to practice law in the Commonwealth of Virginia of respondent, Jeffrey
Bourke Rice, shall be suspended for one (1) year effective March 28, 2003.
It is further ORDERED that the Clerk
of the Disciplinary System shall mail an attested copy of this order to respondent
at his address of record with the Virginia State Bar, being 10521 Judicial Drive,
Fairfax, Virginia 22030, by certified mail, return receipt requested, and by
regular mail to Noel D. Sengel, Senior Assistant Bar Counsel, Virginia State
Bar, Suite 310, 100 North Pitt Street, Alexandria, Virginia, 22314-3133.
It is further ORDERED that pursuant
to Part Six, §IV, ¶13.B.8.c. of the Rules of the Supreme Court of
Virginia, the Clerk of the Disciplinary System shall assess all costs against
It is further ORDERED that, as directed
in the Board's March 28, 2003, Summary Order in this matter, Respondent must
comply with the requirements of Part Six, §IV, ¶13(M) of the Rules
of the Supreme Court of Virginia. All issues concerning the adequacy of the
notice and arrangements required by the Summary Order shall be determined by
the Board, which may impose a sanction of revocation or suspension for failure
to comply with the requirements of this subparagraph.
ENTERED this ___________day of May,
Roscoe B. Stephenson, III, First
Virginia State Bar Disciplinary