VIRGINIA: BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

IN THE MATTER OF:

Timothy Wade Roof

VSB Docket No. 0021-0334

 

ORDER OF PUBLIC REPRIMAND WITH TERMS

THIS MATTER came on September 26, 2003, before a duly convened panel of the Virginia State Bar Disciplinary Board (the "Board"), consisting of Robert L. Freed (the "Chair"), Chester J. Cahoon, Jr. (Lay Member), William C. Boyce, Jr., Anthony J. Trenga and Peter A. Dingman, pursuant to a Subcommittee Determination (Certification) entered by a subcommittee of the Virginia State Bar Second District-Section I Committee on Lawyer Discipline (the "Certification"), served on Timothy Wade Roof ("Respondent") by certified mail sent April 15, 2003. The Virginia State Bar (the "Bar") was represented by Paul D. Georgiadis, Esq., Assistant Bar Counsel. Respondent was present in person with his counsel, Richard G. Brydges, Esq. The proceedings were recorded and transcribed by Donna T. Chandler of Chandler & Halasz, Registered Professional Reporters, Post Office Box 9349, Richmond, Virginia, 23227; telephone number (804) 730-1222.


Promptly after 9:00 a.m. (following disposition of another matter before the Board), this matter was called, and the Chair, with the consent of the counsel for the parties, dispensed with a statement of the procedures to be followed at the Hearing. The Chair then polled the members of the Board comprising the panel for this Hearing as to whether any of them were conscious of any personal or financial interest or bias which would preclude any of them from fairly hearing this matter. Each member, including the Chair, answering in the negative, the Hearing proceeded with the opening statements of counsel for the Bar and counsel for Respondent, the introduction of Bar Exhibits 1 through 23 previously filed and admitted without objection from Respondent, the testimony of Lillian Hassenfratz and Respondent, and the closing arguments of counsel, during which counsel for the Bar requested that the Board take notice of Legal Ethics Opinion No. 1606 issued November 22, 1994, which, again without objection, was done. The Board thereupon retired to consider whether or not the Bar had met its burden of proof as to any or all of the misconduct set forth in the Certification.

 

After deliberation and consideration of the evidence introduced at the Hearing and the arguments of counsel, the Board unanimously concluded that the Bar had, by clear and convincing evidence established the following facts:

 

1. that, during all relevant times, Respondent was an attorney, licensed to practice law in the Commonwealth of Virginia;

 

2. that, on or about November 20, 2000, Ms. Hassenfratz, acting for the benefit of a Virginia prison inmate, Arnold W. Butler, met with Respondent and employed him to assist with the evaluation, preparation and filing of one or more petitions for writ of habeas corpus;

 

3. that, it was the understanding of Ms. Hassenfratz that Respondent would review three handwritten draft petitions for writ of habeas corpus previously prepared by Mr. Butler, and, if one or more of the writs was deemed meritorious by Respondent, he would research relevant statutes, rules of court and case law, check internal citations, re-draft the petition(s) as necessary to eliminate extraneous or ill-founded arguments and grammatical imperfections, have the petition(s) typed and arrange for the filing of the petition(s);


4. that, Respondent understood that he had been engaged to review and evaluate the petitions, to make telephone calls to persons, such as Mr. Butler(s parole officer, identified in the handwritten petitions, to determine whether the sentences imposed were reasonable and recommend which, if any, of the petitions was worthy to be filed;

 

5. that, for the work to be undertaken, Respondent asked for and received from Ms. Hassenfratz a payment of $1,000.00, which Respondent regarded as a "non-refundable retainer";

 

6. that, considering the fee earned upon receipt, Respondent did not deposit the money into an escrow account, but instead immediately applied it as an earned fee;

 

7. that, Mr. Butler was, at the time Respondent was employed, an inmate at the Powhatan Reception & Classification Center in State Farm, Virginia, but was subsequently transferred to the Sussex State Prison in Waverly, Virginia, a move that was reported to Respondent(s office in February of 2001;

 

8. that, by his own testimony, Respondent, having done two to three hours of legal research, having read the three handwritten petitions prepared by Mr. Butler, having spoken to Mr. Butler(s parole officer on the telephone and having spoken on one or more occasions with Ms. Hassenfratz and members of Mr. Butler(s family, concluded by March of 2001 that Mr. Butler had a reasonable chance of success on the assertion of a claim that the sentences imposed by the Circuit Court of Fluvanna County were unreasonable;

 

9. that, the petition prepared by Mr. Butler recited June 4, 1999 (the Erroneous Sentencing Date"), as the sentencing date for the Fluvanna County charges, the deadline for the filing of a petition for writ of habeas corpus being two years from the actual date of sentencing;

 

10. that, between November 20, 2000, and March 17, 2001, Ms. Hassenfratz made several efforts to determine what progress, if any, Respondent was making with regard to Mr. Butler(s case and to encourage Respondent to proceed promptly;


11. that, on May 17, 2001, Respondent sent, by regular mail, a letter to Mr. Butler addressed to the wrong prison and advising him that Mr. Butler "should file the Writ of Habeas Corpus for Abermarle County through the prison. This needs to be done by June 6, 2001";

 

12. that, again according to his own testimony, Respondent chose the date June 6, 2001, on the basis of his belief that it was unlikely that a sentencing order would actually be entered on the same date as the actual sentencing hearing and therefore it was, in Respondent(s view, likely that the true deadline was one or two days after the June 4, 2001, date apparent from the petition drafted by Mr. Butler;

 

13. that, after being advised by Ms. Hassenfratz that the address of the May 17, 2001, letter was inaccurate, Respondent sent an identically-worded letter to Mr. Butler on May 24, 2001 (this letter was also incorrectly addressed, but was received by Mr. Butler);

 

14. that, in each letter, Respondent assured Mr. Butler that "I believe you should be able to receive a hearing and look forward to representing you at the hearing";

 

15. that, as of May 24, 2001, Mr. Butler did not have copies of the petition(s) which had been delivered to Respondent on November 20, 2000, and the prison did not afford Mr. Butler facilities under which he could file the petition;

 

16. that, Respondent actually intended to advise Mr. Butler that it was the petition with regard to the sentencing in Fluvanna County which had the best chance for success and should be filed, the reference in the May 17, 2001, and May 24, 2001, letters to "Abermarle County" was a mistake;


17. that, through the intercession of Ms. Hassenfratz, the petition for writ of habeas corpus regarding the sentencing in Fluvanna County, exactly in the condition it existed on November 20, 2000 (that is, in Mr. Butler(s handwriting and without change to the arguments or assertions originally drafted by him), was delivered to Mr. Butler at the prison, executed by him and returned to Respondent(s office with a United States Postal Service Priority Mail envelope and postage purchased by Ms. Hassenfratz, and was mailed, apparently without any indication of Respondent(s role in the case and/or his employment by Mr. Butler, to the Supreme Court of Virginia;

 

18. that, on June 15, 2001, Patricia H. Krueger, Chief Deputy Clerk of the Supreme Court of Virginia, wrote to Mr. Butler, advising him that his petition would be returned to him unless, within 14 days of that letter, Mr. Butler either furnished a $25.00 filing fee or, in lieu thereof, an in forma pauperis affidavit. Further, Ms. Krueger(s letter noted that there was no postmark on the envelope in which Mr. Butler(s petition was received and that "since there may be an issue about the timeliness of your petition, you need to provide a notarized statement" setting out the date on which his petition was deposited in the prison(s internal mail system;

 

19. that, Ms. Hassenfratz advised Respondent of the nature and contents of the letter sent by Ms. Krueger to Mr. Butler and Ms. Hassenfratz also provided to Respondent a money order in the amount of $25.00 to cover the filing fee;

 

20. that, Respondent did then forward the money order to the Supreme Court, together with an affidavit executed by Respondent attesting that, to the best of his knowledge, Mr. Butler(s petition was mailed on June 6, 2001;

 

21. that, the actual date of the entry of the sentencing order in Fluvanna County regarding Mr. Butler was June 18, 1999 (the "Actual Sentencing Date").
€ The Respondent took no action to substitute the Actual Sentencing Date for the Erroneous Sentencing Date set out in Mr. Butler's draft petition.

€ A telephone call was made from Respondent(s office to the Clerk of the Circuit Court for Fluvanna County on June 5, 2001, to learn the correct sentencing date and a fax with the correct sentencing date was sent to and received by Respondent(s office on June 6, 2001.
€ Although Respondent has a strong recollection that a cover letter identifying the correct sentencing date was sent to the Supreme Court with Mr. Butler(s petition, the Supreme Court(s records do not contain such a letter, nor is there a copy of such a letter in Respondent(s file;

22. that, on July 23, 2001, the Virginia Supreme Court found that Mr. Butler(s petition was not filed timely and dismissed the petition. This decision was based on the petition's recital of the Erroneous Sentencing Date. We note that the petition was timely filed based on the Actual Sentencing Date;

 

23. that, after the Virginia Supreme Court denied Mr. Butler(s petition as having been filed untimely, Respondent took no further action on behalf of Mr. Butler;

 

24. that, Ms. Hassenfratz wrote a letter to the Virginia Supreme Court seeking to correct the misstatement of the applicable sentencing date contained within the petition filed by Mr. Butler, but the Supreme Court, considering this letter as a motion for reconsideration, denied that motion.

Upon such findings of fact, the Board, again unanimously, found that the facts proved by the Bar, by clear and convincing evidence, demonstrated that Respondent, with regard to his employment on behalf of Mr. Butler, violated the following Virginia Rules of Professional Conduct:

RULE 1.3 Diligence
(a) A lawyer shall act with reasonable diligence and promptness in representing a client.

With regard to this finding, the Board took note of Respondent(s delay from November 20, 2000, to a date in late March 2001, in reaching a conclusion as to merits of Mr. Butler(s claims, during which time Respondent did only two to three hours of research and made no more than one or two telephone calls. We find that Respondent's lack of action constitutes an almost complete failure of the Respondent's obligations to act with diligence and promptness in representing Mr. Butler.

RULE 1.5 Fees
(a) a lawyer(s fee shall be reasonable...
With regard to this finding, the Board did not reach a conclusion as to whether the quoted fee would have been reasonable had Respondent acted with diligence to evaluate and properly assert Mr. Butler(s claims. In the circumstances of this case and considering the actual work done and/or omitted to be done by Respondent, the fee was found unreasonable.

RULE 1.15 Safekeeping Property
(a) All funds received or held by a lawyer or law firm on behalf of a client, other than reimbursement of advances for costs and expenses, shall be deposited in one or more identifiable escrow accounts maintained at a financial institution in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein...


While Ms. Hassenfratz and Respondent had somewhat different understandings as to the nature and extent of the services Respondent was to perform on behalf of Mr. Butler, each of them (and Mr. Butler, as evidenced by correspondence included among the Bar(s exhibits) understood that Respondent would perform services on behalf of Mr. Butler at sometime after November 20, 2000. Regardless of whatever differences in understanding existed: Respondent's counsel in his opening statement dropped Respondent's untenable claim that the $1,000 payment received from Lillian Hassenfratz was in the nature of a "retainer" for Respondent to be available or not take other conflicting client; and, in response to questions from the Board, the Respondent admitted that at the time he took the $1,000 payment that he had performed no services for Mr. Butler, and the all of the services that he was to have performed were all to be performed in the future.

LEO #1606, with which Respondent claimed to be familiar, provides, inter alia, "a retainer is not a prepayment for legal services to be rendered in the future, and is thus distinguished from advanced legal fees". Further, LEO #1606 provides "if the employment agreement provides for fees, regardless of their designation, to be applied to future services to be rendered by the attorney, the fee is not a retainer, but rather an advanced legal fee...".
And further, "fees paid in advance for particular legal services not yet performed are advanced legal fees regardless of the terminology used in the employment contract. Advanced legal fees are not violative of the Disciplinary Rules as long as they are properly deposited and identified as belonging to the client until earned. [emphasis added] The Committee had consistently opined that the element of payment for future legal services differentiates advanced legal fees from a retainer. [citation omitted] The two terms are not synonymous. Because advanced legal fees do not belong to the lawyer until the services are rendered, it is the opinion of the Committee that they must be deposited in an identifiable account (trust account) and remain the property of the client until they are earned by the attorney".

The LEO continues, "any fee arrangement involving advanced legal fees and providing for a non-refundable or minimum fee violates the Disciplinary Rules and is thus improper". [citation omitted] Regardless of whether the fee in which case was subject to refund or not, it should appropriately have been treated as an advanced legal fee and the property of the client, Mr. Butler. LEO #1606 also provides, "the term fixed fee is used to designate a sum certain charged by a lawyer to complete a specific legal task...a fixed fee is an advanced legal fee. It remains the property of the client until it is actually earned and must be deposited in the attorney(s trust account."

Whereupon, the Board announced its findings in this matter and invited the parties to present such evidence or arguments as they might deem relevant to the imposition of sanctions in this matter.


The Bar introduced evidence that, in September 2000, in a previous disciplinary matter, Respondent received a public reprimand with terms requiring him to consult with a CPA regarding trust accounting practices and to complete a Continuing Legal Education course of at least two hours dealing with trust accounting. That sanction arose in a matter in which Respondent received and incorrectly deposited a check made payable jointly to Respondent and his client comprising funds due partly to the client and partly to Respondent. The Bar, in this matter, advocated imposition of a sanction of suspension for one year and one day.

Respondent took the position that a lesser sanction should be imposed as Respondent in this case had a good faith belief that the $1,000.00 fee paid to him on November 20, 2000, could be properly treated as an earned, non-refundable retainer.

After further deliberation, the Board reached a non-unanimous resolution regarding appropriate sanctions in this case, two Members of the panel dissenting from the sanctions here imposed (and favoring a sanction of suspension, as set forth in their dissent). In consideration of the findings and conclusions of the Board upon the evidence produced in this matter, upon a majority vote, it is

ORDERED, that Respondent receive, and he is hereby given, a public reprimand with terms, and in default, in any manner, in the performance and full satisfaction of the terms hereby imposed, an alternative sanction of suspension of Respondent(s license to practice law in the Commonwealth of Virginia for one year and one day, such suspension to run from the date of a Show Cause Hearing determining that Respondent has failed to satisfy the terms of this Order.

FURTHER ORDERED, that the terms that Respondent shall be required to satisfy and perform to avoid the imposition of the alternative sanction are as follows:

(a) that, on or before October 15, 2003, Respondent shall refund to Ms. Hassenfratz $1,000.00 in collected funds, and shall certify to Bar Counsel by October 20, 2003, that such refund has been made;


(b) that, in addition to Continuing Legal Education ("CLE") requirements imposed on all members of the Bar, Respondent shall, on or before September 30, 2004, complete an additional 24 hours of CLE, not less than 12 hours of which shall be in courses eligible for ethics( credits as determined by the Virginia State Bar Mandatory Continuing Legal Education Board ("MCLE"), and Respondent shall physically attend all 24 hours of these additional CLE courses, certifying to Bar Counsel, not later than October 15, 2004, that this term has been satisfied. The certification to Bar Counsel may utilize MCLE form #2, but shall be sent to Bar Counsel and not to MCLE. The courses to be completed by Respondent shall be shall be attended out of the office at a CLE site and shall not be computer courses, telephone seminars, or any other type of seminar that can be completed by some type of electronic transmission; and, shall be subject to approval by Bar Counsel and shall be reasonably connected to the nature of Respondent(s practice;

(c) that, on or before October 20, 2003, Respondent shall obtain materials published by Virginia CLE regarding written fee agreements with clients and shall develop a form or forms to be used in his practice, submitting the same to Bar Counsel for approval, in Bar Counsel(s sole discretion, on or before November 1, 2003;

(d) that, for all new client matters undertaken by Respondent from October 15, 2003, to October 15, 2008, Respondent shall use a written fee agreement in form and content substantially identical to those approved by Bar Counsel pursuant to the foregoing term and Respondent shall certify to Bar Counsel on October 15, 2008, that he has fully complied with this term; and

(e) that, Respondent shall be guilty of no conduct occurring subsequent to September 26, 2003, and prior to September 26, 2008, found (and any appeal to the Virginia Supreme Court being resolved against Respondent) by any three-judge panel (designated in accordance with Virginia Code ( 54.1-3935), Virginia State Bar District Committee and/or the Virginia State Bar Disciplinary Board to constitute a violation of the Virginia Rules of Professional Conduct.

FURTHER ORDERED, that time shall be of the essence and all deadlines strictly enforced as to the terms herein above set out such that, on any proceeding to show cause arising from any asserted violation or failure to fully and punctually fulfill the terms herein set out, the only matter to be considered by the Board (or any three-judge panel designated in accordance with Virginia Code ( 54.1-3935) shall be whether or not Respondent can bear the burden of showing by clear and convincing evidence that he has in fact fully and punctually performed each and every term as herein set out.

FURTHER ORDERED, that the certifications required in this Order to be made by Respondent to Bar Counsel shall be delivered, on or before the date specified, to Paul D. Georgiadis, Assistant Bar Counsel, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia, 23219, or such other person or address as may be from time to time designated by the Office of Bar Counsel in writing mailed to Respondent at his then current address as registered with the Bar.

FURTHER ORDERED, that, pursuant to Part 6, Section iv, Paragraph 13.B.8.c., of the Rules of the Supreme Court of Virginia, the Clerk of the Disciplinary System shall assess costs.

FURTHER ORDERED, that the Clerk of the Disciplinary System shall send a true copy of this Order by certified mail, return receipt requested, to Respondent at his current address as registered with the Virginia State Bar, 5269 Revere Drive, Norfolk, VA 23502-4926, by first-class mail to Respondent(s counsel, Richard G. Brydges, Esq., Brydges O(Brien & Frucci, P.C., 1369 Laskin Road, Virginia Beach, Virginia, 23451, and by first-class mail or hand delivery to Paul D. Georgiadis, Assistant Bar Counsel, at 707 East Main Street, Suite 1500, Richmond, Virginia, 23219.

ENTER this ______ day of November, 2003.
VIRGINIA STATE BAR DISCIPLINARY BOARD

By: ___________________________________________
Robert L. Freed, 2nd Vice Chair