V I R G I N I A :



BEFORE THE THREE-JUDGE COURT PRESIDING

IN THE CIRCUIT COURT FOR THE CITY OF ALEXANDRIA



VIRGINIA STATE BAR, ex rel.

FIFTH DISTRICT- SECTION III COMMITTEE,



Complainant/Petitioner,

Chancery No. CH 03 001443

v. [VSB Docket No.: 00-053-2925]

 

JOEL ATLAS SKIRBLE,



Respondent.



O R D E R



This matter came before the Three-Judge Court empaneled on January 13, 2004, by designation of the Chief Justice of the Supreme Court of Virginia, pursuant to 54.1-3935 of the 1950 Code of Virginia, as amended. A fully endorsed Agreed Disposition, dated the 15th day of January 2004, was tendered by the parties, and was considered by the Three-Judge Court, consisting of the Honorable William R. Shelton and Ford C. Quillen, retired Judges of the Twelfth and Thirtieth Judicial Circuits, respectively, and by the Honorable Richard B. Potter, Judge of the Thirty-first Judicial Circuit and Chief Judge of the Three-Judge Court.

Having considered the Agreed Disposition, it is the decision of the Three-Judge Court that the Agreed Disposition be accepted, and said Court finds by clear and convincing evidence as follows:

1. At all times relevant hereto, Joel Atlas Skirble, Esquire (hereafter "Respondent"), has been an attorney licensed to practice law in the Commonwealth of Virginia.

2. On or about December 22, 1997, Malaika N. Mutere-Pirio, Ph.D., (hereafter "Complainant") retained the Respondent's law firm to handle a personal injury claim arising from an accident that had occurred earlier in that month at a retail store.

3. At the inception of the representation, the Complainant was presented with a contingent fee "Retainer Agreement," which both the Respondent and the Complainant signed on or about December 22, 1997. Inter alia, the agreement provided as follows:

It is hereby agreed that the undersigned will pay as a fee for services, one-third of any proceeds recovered on this claim if the matter is resolved by way of settlement or compromise prior to initiating litigation. In the event a law suit is instituted, the undersigned agrees to pay a fee for services, forty percent (40%) of any proceeds received from said claim, whether thereafter settled, or as a result of a court or jury award. ***



4. In neither the language quoted above nor elsewhere in the contingent fee agreement did the agreement state whether expenses were to be deducted before or after the contingent fee was calculated.

5. The agreement also provided that

***If the client at any time terminates this Agreement for any reason, it is agreed that the Firm shall be entitled to the applicable percentage of any settlement offer in existence at the time of termination for services rendered at it's fee [sic], including the negotiating and/or administering the undersigned's claim for Personal Injury Protection and/or medical payment benefits, plus any cost advanced to date. Alternatively, if no settlement offer exist [sic] as of the date of termination, the Firm shall be entitled to be compensated on the basis of quantum meruit, plus cost advanced to date and the Firm's regular hourly rates of $200.00 and hour [sic] for attorney time and $65.00 and hour [sic] for paralegal time.***



6. On the same date that Complainant executed the contingent fee agreement an associate in the Respondent's office telephoned a chiropractor and scheduled an appointment for the Complainant for a chiropractic evaluation and treatment that same afternoon. The chiropractic treatment continued thereafter until the chiropractor closed his office. The Complainant's final appointment with the chiropractor took place on or about June 17, 1998, in the Respondent's law offices, where the chiropractor was permitted to set up his equipment, render treatment, and dispense health care advice to the Complainant. Although it was the chiropractor's final appointment with the Complainant because he was discontinuing his practice, he nonetheless recommended to the Complainant, and made clear in his treatment notes, a specific course of further treatment in the event Complainant's symptoms continued. He also released her from his treatment at that time.

7. Without first communicating with the Complainant concerning the status of her health care needs pertaining to her injury, a "legal assistant" in Respondent's office sent a letter to the tortfeasor's insurance carrier, dated July 21, 1998, stating, in pertinent part, as follows:

As medical treatment for the above named claimant has apparently been completed, I am enclosing herewith a paginated copy of those documents indicating the damages ans [sic] losses suffered.



I will be contacting you within a week to seek a resolution of the claim.



The Complainant was not furnished a copy of, nor otherwise made aware of, the July 21, 1998, letter at the time it was sent to the adjuster, and first learned of its existence upon receipt of her file materials in February, 2000, following the termination of representation. At the time that the letter was sent, the Complainant's health care treatment related to the injury had not ended, and she continued to experience symptoms related to the injury.

8. The Complainant was told when she telephoned the Respondent's office concerning her need for further health care that a claim had already been submitted on her behalf for in excess of $22,000.00, even though she had not authorized a demand in that amount.

9. In July of 1999, the Respondent's office sent additional medical bills for the Complainant to the insurance adjuster, and the carrier raised its offer of settlement to $5,800.00.

10. In a facsimile transmission to the Respondent on November 18, 1999, the Complainant updated the Respondent on the status of her ongoing and contemplated health care, and further stated that "I doubt very much that I will be ready to settle my case by December 13th, [the expiration of the statute of limitations] so please advise me of my options."

11. The Respondent directed a facsimile to the Complainant ending his representation of the Complainant on November 22, 1999, stating, in pertinent part, as follows:

I am in receipt of your fax's [sic] of November 17th to Mr. Kaufman and November 18th to me.



After careful review I will no longer be able to proceed with my representation in your claim. Your view of the case and its value $5,000 [sic] for yourself after all bills are paid is not within the realm of possibility.



Your wish to "start over" with your treatment may be, as you suggest, medically necessary, but an [sic] Fairfax jury, in my opinion will never pay for it. This is a soft tissue case and Virginia juries are, regrettably, paying very little for this these [sic] type of injuries.



***

I will of course be putting a lien on this file for the work which this office has done to this point. It is one third of the offered amount of $6300 which is $2100.



12. Prior to discharging the Complainant from his representation, the Respondent did not comply with the Complainant's suggestion that he confer with her primary care physician respecting the health care treatment she was, and would in the future be, receiving in an effort to be cured of the injuries that were the subject of the personal injury claim that Respondent had been engaged to handle.

13. On or about November 30, 1999, the Respondent sent a letter to the insurance adjuster stating, in pertinent part, as follows:

Please be advised that we no longer represent the above name [sic] individuals [sic] in the case of their [sic] accident of December 14, 1997. Based on our retainer agreement we are entitled to one third of the offer received by the insurance company. Therefore we are assering [sic] the following lien:



$2,100.00 towards the offer of $6100 [sic] made on August 3, 1999.



Our total Lien [sic] would be in the amount of $2,100.00



14. Respondent's termination of legal services to the Complainant under the circumstances presented was not authorized by the contingent fee agreement. Moreover, the assertion of a lien by the Respondent, calculated as a percentage of an outstanding, unaccepted, settlement offer, was not provided for in the contingent fee agreement. Assuming, arguendo, that the provisions of the contingent fee agreement regarding the assertion of a lien were otherwise ethically permissible, such provisions would have applied to the Complainant's case only if the Complainant had discharged the Respondent.

15. Following Respondent's termination of legal services to Complainant, the Complainant continued receiving treatment for her injuries, filed suit with the assistance of the Respondent, pro se, to toll the statute of limitations, submitted additional medical bills to the insurance adjuster, negotiated with the adjuster, and settled her personal injury claim on her own for the sum of $17,000.00 in November of 2000. The sum of $2,100.00 was withheld from the funds tendered to the Complainant pending resolution of Respondent's aforesaid claim of lien.

16. On or about September 4, 2003, the Respondent instructed the tortfeasor's insurance carrier to release his claim of lien and to transmit the sum of $2,100.00 to the Complainant, and the carrier complied with Respondent's instruction.

THE THREE-JUDGE COURT finds by clear and convincing evidence that such conduct on the part of the Respondent, Joel Atlas Skirble, Esquire, constitutes a violation of the following Disciplinary Rules of the Virginia Code of Professional Responsibility:

 

DR 2-105. Fees.



(A) A lawyer's fees shall be . . . adequately explained to the client.



(C) A fee may be contingent on the outcome of the matter for which the service is rendered, except in criminal cases or other matters in which a contingent fee is prohibited by law. A contingent fee agreement shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial, or appeal, expenses to be deducted from the recovery, and whether expenses are to be deducted before or after the

contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a closing statement showing the fee and the method of its determination.



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.



(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.



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 DR 7-101(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.



(2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-108, DR 5-102, and DR 5-105.



UPON CONSIDERATION WHEREOF, the Three-Judge Court hereby ORDERS that the Respondent shall receive an ADMONITION, WITH TERMS, subject to the imposition of the sanction referred to below as an alternative disposition of this matter should Respondent fail to comply with the Terms referred to herein. The Terms which shall be met in accordance with the deadlines set forth below are:

1. Respondent shall accrue at least six (6) ethics credit hours by enrolling in and attending Virginia State Bar approved Continuing Legal Education program(s) in ethics prior to January 15, 2005; Respondent's Continuing Legal Education attendance obligation set forth in this paragraph shall not be applied toward Respondent's Mandatory Continuing Legal Education requirement in Virginia and any other jurisdictions in which he may be licensed to practice law. Respondent shall certify his compliance with the terms set forth in this paragraph by delivering a fully and properly executed Virginia MCLE Board Certification of Attendance Form (Form 2) to Seth M. Guggenheim, Assistant Bar Counsel, at 100 North Pitt Street, Suite 310, Alexandria, Virginia 22314, promptly following his attendance of such CLE program(s).

2. The Respondent shall promptly engage the services of law office management consultant Janean S. Johnston, 250 South Reynolds Street, #710, Alexandria, Virginia 22304-4421, (703) 567-0088, to review and make written recommendations concerning Respondent's personal injury practice policies, methods, systems, and procedures. Respondent shall institute and thereafter follow with consistency any and all recommendations made to him by Ms. Johnston following her evaluation of the Respondent's personal injury practice. Respondent shall grant Ms. Johnston access to his practice from time to time, at Ms. Johnston's request, for purposes of ensuring that Respondent has instituted and is complying with Ms. Johnston's recommendations. The Virginia State Bar shall have access (by way of telephone conferences and/or written reports) to Ms. Johnston's findings and recommendations, as well as her assessment of Respondent's level of compliance with her recommendations. Respondent shall be obligated to pay when due Ms. Johnston's fees and costs for her services (including provision to the Bar of information concerning this matter). Respondent will have discharged his obligations respecting the terms contained in this Paragraph if he has fulfilled and remained in compliance with all of the terms contained in this Paragraph for a period of two (2) years following the date of his engagement of Ms. Johnston's services.

Upon satisfactory proof furnished by Respondent to the Virginia State Bar that the above Terms have been complied with, in full, an ADMONITION, WITH TERMS shall then be imposed. If, however, Respondent fails to comply with any of the Terms set forth herein, as and when his obligation with respect to any such Term has accrued, then, and in such event, the Virginia State Bar Disciplinary Board shall be authorized, by agreement of the parties, to conduct a show cause hearing to determine if a sixty (60) day suspension of Respondent's license to practice law in the Commonwealth of Virginia should be imposed as an alternative disposition to the Public Reprimand, with Terms provided for herein; and 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 costs against the Respondent; and it is further

ORDERED that four (4) copies of this Order be certified by the Clerk of the Circuit Court of the City of Alexandria, Virginia, and be thereafter mailed by said Clerk to the Clerk of the Disciplinary System of the Virginia State Bar at 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800, for further service upon the Respondent and Bar Counsel consistent with the rules and procedures governing the Virginia State Bar Disciplinary System.

ENTERED this day of , 2004.



FOR THE THREE-JUDGE COURT:





________________________________________

RICHARD B. POTTER

Chief Judge of Three-Judge Court

 

 

WE ASK FOR THIS:





 

SETH M. GUGGENHEIM

VSB No. 16636

Assistant Bar Counsel

Virginia State Bar

100 N. Pitt Street, Suite 310

Alexandria, Virginia 22314

Phone: (703) 518-8045

Fax: (703) 518-8052





_____________________________

ROBERT L. TOMLINSON, II

Counsel for Respondent

VSB No. 23037

2009 14th Street, North, Suite 509

Arlington, Virginia 22201-2514

Phone: (703) 841-9400

Fax: (703) 524-8533