VIRGINIA:



BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD



IN THE MATTER OF

ANDREW ROBERT SEBOK



VSB DOCKET NOS. 98-022-2586

99-022-0170

98-021-2742

98-021-2743

99-021-1231

99-021-0506



ORDER



THIS MATTER came to be heard on September 21 and 22, 2000, before a duly convened panel of the Virginia State Bar Disciplinary Board, consisting of William M. Moffet, Chair presiding, Richard J. Colten, Janipher W. Robinson, Werner H. Quasebarth, Lay Member, and Bruce T. Clark. The Respondent, Andrew Robert Sebok, was present and was represented by James C. Roberts. Charlotte P. Hodges, Assistant Bar Counsel, appeared on behalf of the Virginia State Bar.

All matters heard came before the Board on certifications of the Second District Subcommittee.

Following a two-day hearing and findings of misconduct as set out below, an Agreed Disposition as to the sanctions to be imposed was entered into between the parties. Having considered the cases before it, the Virginia State Bar Disciplinary Board makes the following findings by clear and convincing evidence.

At all relevant times hereto, the Respondent, Andrew Robert Sebok, has been an attorney licensed to practice law in the Commonwealth of Virginia.



VSB Docket #98-022-2586 (Audrey E. Noble)

1. In November of 1993, Audrey E. Noble retained the Respondent to represent her in a contested divorce. According to her testimony, he is still representing her.

2. On August 29, 1997, a Final Decree of Divorce ("the Decree") was entered by the Circuit Court of the City of Norfolk. Among other things, the Decree called for the division of Mr. Noble's military retirement, an annuity held by Mr. Noble and Mr. Noble's retirement pension with the City of Norfolk. These divisions were to be accomplished by the filing of appropriate "qualified domestic relations orders" (hereinafter QDRO) with each entity. The Decree directed that QDRO's were to be in place no later than October 1, 1997.

3. Thereafter, the Respondent failed to pursue completion of QDRO's as ordered in the Decree. As a result of such failure, Mrs. Noble has not received the support payments due her. As of the time of the hearing before the Board, over three years following entry of the Decree, two of the QDRO's were still not entered, the third having been entered a year following the original Decree.

Based upon the evidence presented, and the Respondent's own admissions, the Board finds violations of the following Disciplinary Rules of the Code of Professional Responsibility:

DR 6-101 Competence and Promptness.

(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.

DR 7-101 Representing a Client Zealously.

(A) A lawyer shall not intentionally:

(1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.

Based upon the testimony and exhibits presented, the Board finds that allegations that Respondent violated DR 6-101(C), 6-101(D), DR 7-101A(2) and A(3) were not proven by clear and convincing evidence.



VSB Docket #99-022-0170 (Ronald J. Brown)

On January 21, 1998, Respondent was appointed by the Circuit Court of the City of Norfolk to file an appeal for Ronald J. Brown, he having gained the right to do so after a habeus corpus. At the time, Mr. Brown was serving a twenty five year sentence.

2. The Respondent met with Mr. Brown's brother and the attorney who successfully filed the habeus corpus and assured them the appeal would be filed in a timely fashion.

3. The Respondent failed to file the Notice of Appeal with the trial court in a timely fashion and as a result the appeal was dismissed on May 8, 1998.

4. The Respondent admitted to the Virginia State Bar investigator that he had missed the filing date in the Brown matter and he took responsibility for such actions.

Based upon the evidence presented and the Respondent's own admission made to the Bar investigator, the Board finds violation of the following Disciplinary Rule of the Code of Professional Responsibility:

DR 6-101 Competence and Promptness.

(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.

Based upon the testimony and exhibits presented, the Board finds that allegations that the Respondent violated DR 6-101(C) and (D) were not proven by clear and convincing evidence.



VSB Docket #98-021-2742 and #98-021-2743

(Annie Fletcher & Reginald Fletcher, Sr.)



1. The Respondent was retained in mid September of 1997 by Annie Fletcher to represent her son, Reginald Fletcher, Jr., on appeal of a criminal conviction. Reginald Fletcher, Jr. had previously had a habeus corpus which he filed pro se denied by the Court of Appeals of Virginia and the Virginia Supreme Court.

2. The Respondent agreed to take the case upon payment of a $2,000.00 retainer. Mrs. Fletcher paid $1,000.00 towards the retainer in September of 1997. Mr. Reginald Fletcher, Sr., father of the defendant and former husband of Annie Fletcher, paid the remaining $1,000.00 in two equal installments in October and December of 1997. Both parents thereafter filed complaints leading to the assignment of the two VSB numbers listed above.

3. The Respondent met with Reginald Fletcher, Jr. in prison and reviewed extensive transcripts of the trial of Reginald Fletcher, Jr. and the trials of two of his co-defendants. However, the transcript of the retrial of one of the co-defendants was not available to him. Based upon this investigation, the Respondent developed a theory for appeal which hinged upon proving that inconsistent testimony concerning the events for which Mr. Fletcher was convicted, was given at the retrial of a co-defendant. The Respondent asserts that he attempted to explain this to Mr. and Mrs. Fletcher and attempted to make them understand that in order to pursue this matter further, a transcript of the co-defendant's trial needed to be obtained.

4. The Fletchers were unhappy with the advice given and the progress made on their son's case and, therefore, they requested that the Respondent refund the fee paid. This request was made on several occasions. Respondent refused to refund the fee.

While the Board finds that the Respondent's actions in reference to moving this matter forward were arguably appropriate and that the delay encountered arose from the Respondent's inability to secure the transcript of the co-defendant's trial, the Board does find violation of DR 6-101(C), which states "a lawyer shall keep a client reasonably informed about matters in which the lawyer's services are being rendered".

In reaching its decision, the Board recognizes that, although the Respondent was paid by Mr. and Mrs. Fletcher to assist their son, the Respondent's client was, at all times, Reginald Fletcher, Jr. As such, the Respondent had an affirmative duty to keep him fully apprised of the efforts being undertaken on his behalf and he had a right to know of the importance of the trial transcript in his case. The Respondent did not comply with this duty.

From the evidence presented, the Board finds violation of the following Disciplinary Rule:

DR 6-101 Competence and Promptness.

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

Based upon the testimony and exhibits presented, the Board finds that allegations that the Respondent violated DR 2-105(A), DR 2-108(D), DR 6-101(B) and DR 9-102(A) and (B) were not proven by clear and convincing evidence.



VSB Docket #99-021-1231 (Camille Ford)

1. In the first week of July, 1998, Pearline Ford met with the Respondent to seek his assistance in filing a motion on behalf of her daughter, Camille Ford, under 28 U.S.C. 2255 (2255 Motion). The Respondent agreed to undertake the work for a fee of $10,000.00. On July 10, 1998, Pearline Ford paid the Respondent $5,000.00 towards the fee. Thereafter, the parties agreed the balance of the fee could be paid at the rate of Five Hundred Dollars per month until paid in full. No written retainer agreement or engagement letter was prepared.

2. The Respondent stipulated at the hearing before the Board that the funds paid him by Ms. Ford were not placed in a client trust account until earned, but were immediately placed in Respondent's operating fund and used. In October of 1998, Respondent received an additional $1,000.00 from Ms. Ford. Respondent stipulated that these funds were handled in the same manner as the first payment.

3. Ms. Camille Ford's Petition for a Writ of Certiorari was denied by the Supreme Court of the United States on October 6, 1997. Based upon this date of denial, her 2255 Motion had to be filed no later than October 6, 1998. Respondent failed to file the Motion prior to said deadline.

4. The Respondent admitted to the Board that he did, in fact, file the 2255 Motion late, relying upon what his client and her mother had told him the due date for the filing of the 2255 Motion was, rather than independently confirming the deadline.

5. Due to Respondent's failure to file the 2255 Motion until October 22, 1998, it was dismissed by the United States District Court for the Eastern District of Virginia, Norfolk Division.

6. Following the denial of the Motion, Pearline Ford repeatedly attempted, without success, to obtain repayment from the Respondent. Ultimately, she sued him in General District Court seeking reimbursement. Just prior to the trial, Respondent offered Ms. Ford $4,000.00 to settle her claim. These funds were paid her in installments between May and July of 2000. Ms. Ford was never refunded the balance of the funds she had given the Respondent.

Based, in part, upon the evidence presented, and in part upon Respondent's own admissions and stipulations, the Board finds violation of the following Disciplinary Rules of the Code of Professional Responsibility:

DR 2-108 Terminating Representation.

(D) Upon termination of representation, a lawyer shall take reasonable steps for the continued protection of a client's interests, including giving reasonable notice to the client, allowing time for employment of other counsel, delivering all papers and property to which the client is entitled, and refunding any advanced payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by applicable law.

DR 6-101 Competence and Promptness.

(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.

DR 9-102 Preserving Identity of Funds and Property of a Client.

(A) All funds received or held by a lawyer or law firm on behalf of a client, estate or ward, residing in this State or from a transaction arising in this State, other than reimbursement of advances for costs and expenses, shall be deposited in one or more identifiable trust accounts and, as to client funds, maintained at a financial institution in a state in which the lawyer maintains a law office, and no funds belonging to the lawyer or law firm shall be deposited therein, except as follows:

(1) Funds reasonably sufficient to pay service or other charges or fees imposed by the financial institution may be deposited therein.

(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, and the portion belonging to the lawyer or law firm must be withdrawn promptly after they are due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event, the disputed portion shall not be withdrawn until the dispute is finally resolved.

(B) A lawyer shall:

(4) Promptly pay or deliver to the client or another as requested by such person the funds, securities, or other properties in the possession of the lawyer which such person is entitled to receive.

Based upon the exhibits and testimony presented, the Board finds the allegations that the Respondent violated DR 2-105(A), DR 6-101(A), (C) and (D), and DR 7-101(A) were not proven by clear and convincing evidence.



VSB Docket #99-021-0506 (Sonya N. Flores-Gonzalez)

1. The Respondent was retained on January 14, 1998, by Sonya N. Flores-Gonzalez to prepare and file an I-130 application (immigration petition) with the Department of Immigration and Naturalization Service (INS) on behalf of her husband, a foreign national then illegally in this country.

2. The Respondent was given a retainer fee of $1,000.00 for services to be performed. These funds were deposited in his personal account and, at such time, they were at least partly unearned.

3. The I-130 application was completed on January 14, 1998 and, by 8:30 p.m. of that day, the Respondent was instructed to file the same. Under the program then in existence, the deadline for the filing of the application was midnight of that day. To allow such filings, the INS office in Norfolk, Virginia remained open that day until midnight.

4. The application was not filed prior to the midnight deadline. Instead, Respondent mailed the application to the INS office in St. Albans, Vermont. The application was filed and stamped "received" by the INS office in St Albans, Vermont on January 17, 1998, three days after the deadline.

5. Had the filing been made in a timely fashion and were it in proper form, the complainant's husband would have been eligible for a green card and could have remained in the United States. As the application was rejected for untimely filing, in order to refile the application, Ms. Flores-Gonzalez' husband ultimately was required to return to his native land for a period of approximately four months.

6. That despite repeated requests from the client for a refund of the monies paid him, the Respondent failed to make such refund.

Based, in part, upon the evidence presented, and in part upon Respondent's own admissions and stipulations, the Board finds violation of the following Disciplinary Rules of the Code of Professional Responsibility:

DR 2-108 Terminating Representation.

(D) Upon termination of representation, a lawyer shall take reasonable steps for the continued protection of a client's interests, including giving reasonable notice to the client, allowing time for employment of other counsel, delivering all papers and property to which the client is entitled, and refunding any advanced payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by law.

DR 6-101 Competence and Promptness.

(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.

DR 9-102 Preserving Identity of Funds and Property of Client.

(A) All funds received or held by a lawyer or law firm on behalf of a client, estate or ward, residing in this State or from a transaction arising in this State, other than reimbursement of advances for costs and expenses, shall be deposited in one or more identifiable trust accounts and, as to client funds, maintained at a financial institution in a state in which the lawyer maintains a law office, and no funds belonging to the lawyer or law firm shall be deposited therein, except as follows:

(1) Funds reasonably sufficient to pay service or other charges or fees imposed by the financial institution may be deposited therein.

(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, and the portion belonging to the lawyer or law firm must be withdrawn promptly after they are due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event, the disputed portion shall not be withdrawn until the dispute is finally resolved.



(B) A lawyer shall:

(4) Promptly pay or deliver to the client or another as requested by such person the funds, securities, or other properties in the possession of the lawyer which such person is entitled to receive.

Based upon the testimony and exhibits presented, the Board finds that allegations that the Respondent violated DR 2-105, DR 6-101(C) and (D), and DR 7-101 (A) were not proven by clear and convincing evidence.



Sanctions

Thereupon, the Board heard evidence as to what sanctions should be imposed. Respondent presented evidence from several fact witnesses and two psychologists. In brief, the evidence presented was that Respondent was a respected and talented lawyer in the areas of criminal appellate work and immigration law for many years prior to 1996. The evidence was that he was extremely dedicated to pursuing his clients' interests prior to that date. Beginning in 1996, Respondent experienced several emotional traumas which sent him into a state of severe depression. These events included a divorce, financial reverses, loss of his office space and witnessing the execution of one of his clients with whom he had developed a personal relationship. When these events occurred, Respondent became depressed and despondent. His personality, as described by several witnesses, changed during this period. He became disorganized and incapable of keeping up with deadlines. He was in sole practice. Several of the complainants testified that they held no animus towards Respondent, as evidenced by the fact that complainant Noble had not terminated her employment of him as of the date of the hearing. Moreover, the evidence presented established that once Respondent got into treatment, started taking appropriate medication, took employment with another attorney who dealt with the fees received and employed a paralegal to assist him in keeping up with deadlines, the problems evidenced by his unacceptable conduct between 1996 and 1999 ceased to exist.

In hearing the above evidence, the Board was mindful of Part Six; Section IV, Paragraph 13.C(6)(e) of the Rules of Court which states:

If the Board finds that the misconduct was the result of a Disability, it may consider the Disability in mitigation of any discipline imposed.



With the above evidence and guiding rule in mind, the Board heard and accepted an agreed disposition as to sanctions which was presented to the Board by Respondent and the Virginia State Bar. In doing so, the Board found by clear and convincing evidence that Respondent's misconduct was due to a disability and it exercised its discretion to consider that disability in mitigation of the discipline imposed.

WHEREFORE, the Board hereby ORDERS as follows:

1. The Respondent's license to practice law in the Commonwealth of Virginia is suspended for a period of nine (9) months, effective October 13, 2000.

2. That for a period of three (3) years, commencing on September 21, 2000, the Respondent will attend counseling sessions at least four times a month with his clinical psychologist unless otherwise directed by his psychiatrist. In addition, the Respondent shall see his psychiatrist at least twice each year during the same period.

3. That for a period of three (3) years from September 21, 2000, the Respondent shall take all medications prescribed for him by his psychiatrist in strict accordance with the instructions given him in reference to such medications.

4. That during the said three year period, the Respondent shall provide the Virginia State Bar with a comprehensive medical release and will direct his treating psychiatrist and clinical psychologist to provide quarterly written reports to the Virginia State Bar on the progress of his therapy.

5. That for a period of three (3) years following the reinstatement of Respondent's license to practice law within the Commonwealth, he shall not practice as a sole practitioner, but shall instead practice in the employ of another attorney or attorneys licensed to practice within the Commonwealth of Virginia. During such time, he shall take no fees from clients directly, but shall instead allow his employer to manage such funds.

6. That for a period of three (3) years following the reinstatement of the Respondent's license to practice law within the Commonwealth of Virginia, the Respondent shall not allow his name to be placed on any lists of court appointed attorneys in any state or federal court.

7. That the Respondent shall make the following restitutions within the times indicated:

A. The Sum of Two Thousand Dollars ($2,000.00) to Pearline Ford within eighteen months of September 21, 2000.

B. The sum of One Thousand Dollars ($1,000.00) to Sonya N. Flores-Gonzalez within eighteen months of September 21, 2000.

C. The Sum of One Thousand Dollars ($1,000.00) each to Annie Fletcher and Reginald Fletcher, Sr. within twenty four months of September 21, 2000.

The Respondent shall provide written proof to the Virginia State Bar of compliance with this portion of the Order, such proof to be provided no later than thirty days following the final date upon which each of such payments are to have been made.

8. If at any time it is determined by the Board that the Respondent has failed to comply with any of the terms placed upon him herein, there shall be imposed an additional five year suspension of his license to practice law within the Commonwealth of Virginia.

It is further ORDERED that pursuant to the provisions of Part Six, Section IV, Paragraph 13(K)(1) of the Rules of the Supreme Court of Virginia, that Andrew Robert Sebok shall forthwith give notice by certified mail, return receipt requested, of the suspension of his license to practice law in the Commonwealth of Virginia, to all clients for whom he is currently handling matters and to all opposing attorneys and presiding judges in pending litigation. He shall also make appropriate arrangements for the disposition of matters then in his care in conformity with the wishes of his client. He shall give such notice within fourteen (14) days of the effective date of the Suspension Order, and make such arrangements as are required herein within forty five (45) days of the effective date of the Suspension Order that such notices have been timely given and such arrangement for the disposition of matters made. Issues concerning the adequacy of the notice and arrangements required herein shall be determined by the Disciplinary Board, which may impose a sanction of revocation or suspension for failure to comply with the requirements of the subparagraph.

It is further ORDERED that Andrew Robert Sebok shall furnish true copies of the notice letters sent to all persons notified of the suspension with the original return receipts for said notice letters to the Clerk of the Disciplinary System.

Pursuant to Part 6, Section IV, Paragraph 13(K)(10) of the Rules of the Supreme Court, the Clerk of the Disciplinary System shall assess costs. It is further ORDERED that a copy teste of this Order shall be mailed by certified mail, return receipt requested, to the Respondent at his last address of record with the Virginia State Bar, 154 Newtown Road, Virginia Beach, VA 23462; to his counsel of record, James C. Roberts, Esquire, Mays and Valentine, LLP, 1111 East Main Street, Richmond, Virginia 23219; and hand delivered to Charlotte P. Hodges, Assistant Bar Counsel, Virginia State Bar, 707 East Main street, Suite 1500, Richmond, Virginia 23219.

Tracy J. Stroh, Chandler & Halasz, P. O. Box 9349, Richmond, Virginia 23227, 804-730-1222, was the court reporter for the hearing.



ENTERED this Order this _____ day of _____________, 2000.

VIRGINIA STATE BAR DISCIPLINARY BOARD



By_______________________________________

William M. Moffet

First Vice Chair