VIRGINIA:
BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD


IN THE MATTERS OF THOMAS EDWARD SMOLKA

VSB Docket Nos. 01-033-1945, 01-033-2106, 02-033-0295, 02-033-0829, 02-033-0962 and 02-033-1948

ORDER AND OPINION OF REVOCATION

This matter came to be heard on June 27, 2002 in the matters of Thomas Edward Smolka, VSB Docket Nos.01-033-1945, 01-033-2106, 02-033-0292, 02-033-0829, 02-033-0962 and 02-033-1948 before a panel of the Virginia State Bar Disciplinary Board convened in the State Corporation Commission, Courtroom A, located at Tyler Building, 1300 East Main Street, Second Floor, Richmond, Virginia and composed of Roscoe B. Stephenson, III, Chair, presiding, Werner H. Quasebarth, lay member, Joseph R. Lassiter, Jr., Anthony J. Trenga and Bruce T. Clark. The Virginia State Bar appeared through Bar Counsel, Barbara Ann Williams. The matter was presented to the Disciplinary Board by way of a Certification of the Third District Committee, Section III. The Respondent, Thomas Edward Smolka, did not appear, despite notice as required to his address on file with the Bar. Based on the stipulations and evidence presented, the Board revoked Respondent's license effective June 27, 2002 and in support of that revocation issues the following opinion and findings.


The Bar alleged the following general factual allegations:


1. At all times relevant to these proceedings, Mr.Smolka was an attorney licensed and in good standing to practice law in the Commonwealth of Virginia.


2. At all times relevant to these proceedings, Mr.Smolka's official address of record with the Virginia State Bar was Suite 122, 3126 West Cary Street, Richmond, Virginia 23221-3504.


3. "Suite 122" at 3126 West Cary Street in Richmond is actually a box maintained by Mail Boxes, Inc.


4. On or about October 3, 2001, the Virginia State Bar mailed, by certified mail, to Mr. Smolka's address of record and to a post office box in Cambria, California, where his mail was forwarded, subpoenas for production of trust account records relevant to these proceedings with a request that he accept service of the subpoenas by executing the enclosed certificates.


5. Mr.Smolka did not execute the certificates accepting service of the subpoenas, but he did write the bar and represent that he could not produce his trust account records because they purportedly were packed in luggage allegedly lost by American Airlines on or about August 12, 2001.


In addition, the Bar alleged the following as to:


VSB Docket No. 01-033-1945Complainant: Joseph D. Babcock


Factual Allegations


Mr. Babcock was convicted in the Circuit Court of the City of Norfolk of first degree murder and use of a firearm in the commission of a felony, fined $100,000 and sentenced to serve 83 years in the state correctional system on December10, 1996; the Supreme Court of Virginia denied Mr.Babcock's petition for appeal on September17, 1997.
In August or September 1999, Mr. Smolka was retained to file a habeas corpus petition on Mr.Babcock's behalf.
Mr.Smolka indicated that his fee would be $2500, and had Mr.Babcock sign a blank contract but never provided Mr.Babcock a copy of the contract.


Mr.Babcock's family sent Mr.Smolka a $1500 money order on or about August10, 1999, and a $10,000 life insurance policy naming Mr.Babcock as the beneficiary.


Mr.Smolka deposited the $1500 money order in his attorney trust account #2000002974637 at First Union National Bank on August20, 1999.


By August27, 1999, the balance of Mr.Smolka's attorney trust was $800.10.


Mr.Smolka visited Mr.Babcock at Buckingham Correctional Center on September9, 1999; after that visit, Mr.Babcock heard nothing from Mr.Smolka.


On or about December11, 1999, Mr.Babcock wrote the Virginia State Bar, indicating that he was unable to have a warrant in debt personally served upon Mr.Smolka because Mr.Smolka's office at 3126 Cary Street, Suite 122, Richmond, Virginia, was a mail box.


On December13, 1999, after learning the statutory deadline for filing a habeas petition had passed, Mr.Babcock wrote Mr.Smolka and requested him to return the $1500 he had been paid, the life insurance policy, Mr.Babcock's file and trial transcript, and a copy of the contract Mr.Babcock had signed.


On or about June16, 2000, Mr.Babcock wrote Mr.Smolka again, requesting return of the money, the life insurance policy, trial materials and his file.


On or about December21, 2000, Mr.Smolka had Mr.Babcock execute a release stating that Mr.Smolka was paid $1500 "for services, costs and expenses incident to meeting with [Mr.Babcock] at Buckingham Correctional Center and the review of certain materials."


The release further states that Mr.Smolka agreed to refund $500 of the monies paid and Mr.Babcock acknowledged receiving the refund when in fact he had not; the release further states that the $500 was consideration for the release of any and all claims Mr.Babcock might have against Mr.Smolka.


On or about January20, 2001, Mr.Babcock filed a bar complaint against Mr.Smolka indicating that Mr.Smolka had failed to return his money, the life insurance policy or provide him a copy of the blank contract Mr.Babcock signed.
On or about April 12, 2001, Mr.Smolka sent Mr.Babcock $500.


Charges of Misconduct
The foregoing allegations give rise to the following char Professional Responsibility and Rules of Professional Conduct; each Disciplinary Rule (DR) and Rule of Professional Conduct (RPC) allegedly violated is set out separately:

DR 1-101. Maintaining Integrity and Competence of the Legal Profession.
* * *
(B) A lawyer is subject to discipline if he as made a materially false statement in any certification required to be filed as a condition of maintaining or renewing his license to practice law.

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.

DR 2-105. Fees.

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

DR 6-101. Competence and Promptness.
* * *
(B) A lawyer shall attend promptly to matters undertaken for a client until completed or until the lawyer had 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.

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 a 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:
* * *
(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.

(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.

RULE 1.3 Diligence.

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

(b) A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but may withdraw as permitted under Rule 1.16.

* * *

RULE 1.4 Communication.

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

(c) 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 1.5 Fees

(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:

the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

the fee customarily charged in the locality for similar legal services;
the amount involved and the results obtained;

the time limitations imposed by the client or by the circumstances;

the nature and length of the professional relationship with the client;

the experience, reputation, and ability of the lawyer or lawyers performing the services; and
whether the fee is fixed or contingent.


(b) The lawyer's fee shall be adequately explained to the client. When the lawyer has not regularly represented the client, the amount, basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.

RULE 1.8 Conflict of Interest: Prohibited Transactions

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client;

the client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and
the client consents in writing thereto.

 

* * *


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 except as follows:


* * *


funds reasonably sufficient to pay service or other charges or fees imposed by the financial institution may be deposited therein; or

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 it is 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) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance or their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.

(c) A lawyer shall:

* * *
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.

RULE 8.1 Bar Admission and Disciplinary Matters
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, in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact;
* * *
(d) obstruct a lawful investigation by an admissions or disciplinary authority.
RULE 8.4 Misconduct
It is professional misconduct for a lawyer to:
* * *
(b) commit a criminal or other deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer;

II. VSB Docket No. 01-033-2106
Complainant: Debbie Gaffin

A. Factual Allegations

1. In November 2000, after seeing an advertisement in Prison Legal News Magazine, Debbie Gaffin retained Mr. Smolka to assist her husband, Michael Gaffin, in having his parole location transferred from San Jose, Santa Clara county, California, to Paradise, Butte County, California, where Ms. Gaffin lived.

2. The advertisement represented that Mr. Smolka was a lawyer, offered his services in parole matters and indicated he could be reached at 915 "L" St., Suite "C," Sacramento, California 95815-3705; (916) 444-1006.

3. Mr. Smolka told Ms. Gaffin that his main office was in Richmond, Virginia, and that the Sacramento office was a branch office.

4. Mr. Smolka led Ms. Gaffin to believe that he was licensed to practice law in California as well as Virginia, when in fact Mr. Smolka was not licensed to practice law in California.

5. On or about November 28, 2000, Ms. Gaffin executed a "Retainer Binder Agreement," providing that she would pay Mr. Smolka "a non-refundable flat fee of $2500," which she did.

6. On December 17, 2000, Mr. Gaffin was paroled to Santa Clara County, California; when Mr. Gaffin was paroled, the only parole transfer request in his parole file was one Ms. Gaffin made.

7. Between December 17, 2000 and January 4, 2001, Ms. Gaffin tried to reach Mr. Smolka twice every business day to no avail.

8. On January 24, 2001, Ms. Gaffin sent Mr. Smolka a letter terminating his services and requesting an itemized statement of services rendered.

9. Mr. Smolka never responded to Ms. Gaffin's request.

10. Ms. Gaffin submitted a bar complaint against Ms. Smolka to the Virginia State Bar on or about February 27, 2001.

B. Charges of Misconduct

The foregoing allegations give rise to the following charges of misconduct under the Rules of Professional Conduct; each Rule of Professional Conduct (RPC) allegedly violated is set out separately:

Rule 1.3 Diligence

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

(b) A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but may withdraw as permitted under Rule 1.16.
* * *
Rule 1.4 Communication

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

(c) 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 1.5 Fees

(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:

(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

(b) The lawyer's fee shall be adequately explained to the client. When the lawyer has not regularly represented the client, the amount, basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.

RULE 8.1 Bar Admission and Disciplinary Matters

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, in connection with a disciplinary matter, shall not:

(a) knowingly make a false statement of material fact;
* * *
(d) obstruct a lawful investigation by an admissions or disciplinary authority.

RULE 8.4 Misconduct

It is professional misconduct for a lawyer to:
* * *

(b) commit a criminal or other deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer;
* * *

III. VSB Docket No. 02-033-0295
Trust Account Overdraft Notification

A. Factual Allegations

1. On July 10, 16 and 20, 2001, the Virginia State Bar received notices of insufficient funds from First Union National Bank with regard to Mr. Smolka's trust account #2000002974637.

2. Bank records disclose that Mr. Smolka's account was out of trust on July 5, 12 and 16, 2001.

B. Charges of Misconduct

The foregoing allegations give rise to the following charges of misconduct under the Rules of Professional Conduct; each Rule of Professional Conduct (RPC) allegedly violated is set out separately:

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 except as follows:

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

(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 it is 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) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.

(c) 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.

RULE 8.1 Bar Admission And Disciplinary Matters

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, in connection with a disciplinary matter, shall not:

(a) knowingly make a false statement of material fact;
* * *
(d) obstruct a lawful investigation by an admissions or disciplinary authority.

RULE 8.4 Misconduct

It is professional misconduct for a lawyer to:
* * *
(b) commit a criminal or other deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer;
* * *
IV. VSB Docket No. 02-033-0829
Complainant: Delores E. Turner-Sherman


A. Factual Allegations

1. On October 18, 1999, Mr. Smolka entered into a Stipulation for Permanent Injunction in The Florida Bar v. Thomas E. Smolka, Individually, and d/b/a Thomas E. Smolka & Associates, Florida Bar File Nos. 19980039(02), 19980053(02), 19980084(02), 1998099(02), 19990026(02) and 19990060(02) (Supreme Court of Florida).

2. Among other things, the Stipulation for Permanent Injunction enjoins Mr. Smolka from holding himself out in Florida as an attorney, offering to provide legal advice or legal services in Florida, and establishing an office in Florida for the purpose of providing legal advice and/or legal services except as allowed by law.

3. In November 2000, Delores E. Turner-Sherman retained Mr. Smolka to represent her son, an inmate in the Florida prison system.

4. Mr. Smolka led Ms. Turner-Sherman to believe that he was an attorney licensed to practice law in Florida with an office in Tallahassee, Florida, when in fact Mr. Smolka was not licensed to practice law in Florida and had been enjoined from maintaining an office in Florida.

5. On or about November 4, 2000, Ms. Turner-Sherman signed a "Retainer Binder Agreement" describing the services Mr. Smolka agreed to provide.

6. "As compensation for the administrative services rendered," the Retainer Binder Agreement required Ms. Turner-Sherman to pay Mr. Smolka "a minimum non-refundable flat fee of $4,000" which Ms. Sherman agreed "to deposit into Smolka's account with First Union Bank, Account #2000002974637."

7. Ms. Turner-Sherman wired the money to Mr. Smolka's account; the funds were deposited on November 7, 2000.

8. Thereafter, Ms. Turner-Sherman repeatedly tried to contact Mr. Smolka by telephone, leaving messages on his answering machine, but he did not return her calls.

9. On or about March 13, 2001, Ms. Turner-Sherman received a letter from Mr. Smolka which stated that he had completed a "sentence structure analysis" of her son's prison sentence and did not find any discrepancies in sentencing documents, calculations of sentences or gain-time forfeitures, but that he would contact the Florida Parole Commission and request a special review hearing.

10. On or about May 1, 2001, Mr. Smolka wrote Ms. Turner-Sherman and her son, informing them that he had applied for the special review.

11. After hearing nothing more from Mr. Smolka but learning that he is licensed to practice law in Virginia, Ms. Turner-Sherman drove from her home in Fruitland Park, Florida, to Richmond, Virginia, to confront Mr. Smolka.

12. Ms. Turner-Sherman discovered that Mr. Smolka's purported Virginia office address, Suite 122, 3126 West Cary Street, is a Mail Boxes, Etc. location.

13. On or about August 10, 2001, Ms. Turner-Sherman contacted the Florida Parole Commission and learned that the only correspondence the commission had received regarding her son was a facsimile message from Mr. Smolka dated July 3, 2001, to which the commission had replied by letter dated July 30, 2001.

14. Ms. Turner-Sherman submitted a complaint about Mr. Smolka to the Virginia State Bar on or about September 25, 2001.

15. There was $16.03 in Mr. Smolka's attorney trust account #2000002974637 when the $4,000 that Ms. Sherman-Turner paid him was deposited on November 7, 2000; by November 16, 2000, Mr. Smolka's trust account balance was $16.03.

B. Charges of Misconduct

The foregoing allegations give rise to the following charges of misconduct under the Rules of Professional Conduct; each Rule of Professional Conduct (RPC) allegedly violated is set out separately.

RULE 1.3 Diligence

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

(b) A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but may withdraw as permitted under Rule 1.16.

RULE 1.4 Communication

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

(c) 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 1.5 Fees

(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

(b) The lawyer's fee shall be adequately explained to the client. When the lawyer has not regularly represented the client, the amount, basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.

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 except as follows:

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

(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 it is 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) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.

RULE 3.4 Fairness To Opposing Party And Counsel

A lawyer shall not:

* * *

(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.

RULE 8.1 Bar Admission And Disciplinary Matters

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, in connection with a disciplinary matter, shall not:

(a) knowingly make a false statement of material fact;

* * *
(d) obstruct a lawful investigation by an admissions or disciplinary authority.

RULE 8.4 Misconduct

It is professional misconduct for a lawyer to:

* * *

(b) commit a criminal or other deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer;

* * *

V. VSB Docket No. 02-033-0962
Trust Account Overdraft Notice

A. Factual Allegations

1. On September 6, 2001, the Virginia State Bar received a notice of insufficient funds from First Union National Bank with regard to Mr. Smolka's trust account #2000002974637.

2. Bank records disclose that Mr. Smolka presented check #2191 for $1,100.00 payable to himself on September 4, 2001, when the balance of his trust account was $685.44.
B. Charges of Misconduct

The foregoing allegations give rise to the following charges of misconduct under the Rules of Professional Conduct; each Rule of Professional Conduct (RPC) allegedly violated is set out separately.

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 except as follows:

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

(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 it is 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) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.

(c) 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.

RULE 8.1 Bar Admission And Disciplinary Matters

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, in connection with a disciplinary matter, shall not:

(a) knowingly make a false statement of material fact;
* * *

(d) obstruct a lawful investigation by an admissions or disciplinary authority.

RULE 8.4 Misconduct

It is professional misconduct for a lawyer to:
* * *
(b) commit a criminal or other deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer;
* * *

VI. VSB Docket No. 02-033-1948
Complainant: Catherine Green

A. Factual Allegations

1. On August 30, 2000, Ms. Green executed a Retainer Binder Agreement and paid Mr. Smolka what the agreement characterizes as a non-refundable flat rate fee of $1,000 for a meeting at Powhatan Correctional Center to discuss Mr. Smolka filing a petition for habeas corpus on her husband's behalf.

2. On October 23, 2000, Ms. Green executed a Retainer Binder Agreement and gave Mr. Smolka a credit check for $3,000 and agreed to pay him an additional $17,000.

3. It took Ms. Green a month to secure a loan for $17,000; during that period, Mr. Smolka called her repeatedly, demanding payment in full of the balance of his fee within thirty days.

4. After Ms. Green paid the balance of Mr. Smolka's fee, he rarely responded to inquiries about the status of Mr. Green's legal matter.

5. On May 5, 2001 and again on December 18, 2001, Mr. Green wrote Mr. Smolka, complaining about his lack of responsiveness.

6. On or about January 3, 2002, Ms. Green submitted a bar complaint against Mr. Smolka to the Virginia State Bar.

7. Mr. Smolka has not petitioned for habeas relief or initiated any other proceeding on Mr. Green's behalf.

8. Mr. Smolka deposited the $3,000 credit card check in his trust account #2000002974637 with First Union National Bank on October 6, 2000; by October 19, 2000, the balance of Mr. Smolka's trust account was $16.03

9. On November 24, 2000, $17,000 was deposited into Mr. Smolka's trust account as a result of the loan Ms. Green secured.

10. On November 27, 2000, Mr. Smolka's trust account balance was $5,617.93; on November 29, the balance was $2,028.45.

B. Charges of Misconduct

The foregoing allegations give rise to the following charges of misconduct under the Rules of Professional Conduct; each Rule of Professional Conduct (RPC) allegedly violated is set out separately:

RULE 1.3 Diligence

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

(b) A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but may withdraw as permitted under Rule 1.16.
* * *

RULE 1.4 Communication

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

(c) 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 1.5 Fees

(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

(b) The lawyer's fee shall be adequately explained to the client. When the lawyer has not regularly represented the client, the amount, basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.

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 except as follows:

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

(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 it is 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) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.

RULE 8.1 Bar Admission And Disciplinary Matters

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, in connection with a disciplinary matter, shall not:

(a) knowingly make a false statement of material fact;
* * *
(d) obstruct a lawful investigation by an admissions or disciplinary authority

RULE 8.4 Misconduct
It is professional misconduct for a lawyer to:
* * *
(b) commit a criminal or other deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer;

The cases were heard serially. After the receipt of evidence in each case, the Board retired to consider its findings of misconduct as to that case, considering only the evidence admitted in that case. With respect to all of the cases, the Bar moved into evidence its exhibits, including the deposition transcripts of complainants Joseph Babcock and Delores E. Turner-Sherman and also presented the testimony of complainants Debbie Gaffin and Catherine Green.


With respect to Docket No. 01-033-1945 (Complainant, Joseph D. Babcock), the Board after the presentation of the evidence adjourned and deliberated, following which it (1) found that the Bar had failed to prove with clear and convincing evidence violations of DR 1-101(B), DR 9-102(A)(1) and (2), and DR 9-102(B)(3) of the Disciplinary Rules and Rule 1.8, 1.15(a) and (b), Rule 8.1(a) and (d); (2) found that the Bar had proved with clear and convincing evidence violations of DR 1-102(A)(4), DR 2-105(A), DR 6-101(B) and (C), DR 9-102(B)(4), Rule 1.15(c)(4); and (3) in light of these findings, declined to rule with respect to allegations that the Respondent violated Rules 1.3, 1.4, 1.5 and 8.4, which became effective on January 1, 2000 and are duplicative of violations alleged and found to have been violated by the Respondent prior to January 2000. In that regard the Board specifically found that there was evidence to prove clearly and convincingly that the conduct in violation of the corresponding but superceded Disciplinary Rules continued and was ongoing after the effective date of the Rules of Professional Conduct, but the Board exercised its discretion to decline making additional findings under the new rules. It was the Board's express opinion that neither making additional findings of misconduct under the new rules nor declining to do so would make any difference as to the sanction imposed.


With respect to respect to VSB Dock No. 01-033-2106 (Complainant, Debbie Gaffin), the Board found that the Bar had proven by clear and convincing evidence that Respondent has violated Rules 1.3(a) and (b), 1.4(a), 1.5(a) and 8.4(b); and had failed to prove by clear and convincing evidence violations of Rules 1.4(b) and (c), 1.5(b), and 8.1(a) and (d).


With respect to the Bar's allegations of Trust Account Overdraft Notification, VSB Docket No. 02-033-0295, the Bar withdrew its allegations of a violation or Rule 1.15(b) and (c) and the Board found that the Bar had failed to prove by clear and convincing evidence violation of the remaining rule violations alleged.


With respect to VSB Docket No. 02-033-0829 (Complainant, Delores E. Turner-Sherman), the Bar withdrew its alleged violation of Rule 1.15(b) and the Board found that the Bar failed to prove by clear and convincing evidence the alleged violations of Rules 1.3(b), 1.4(b) and (c), 1.5(b), and 8.1(a) and (d); and found that the Bar had proven by clear and convincing evidence violations of Rules 1.3(a), 1.4(a), 1.5(a), 1.15(a), 3.4(d), and 8.4(b).
With respect to the Bar's allegations of Trust Account Overdraft Notice in VSB Docket No. 02-033-0962, the Board considered the evidence presented with respect to those allegations, and found that the Bar had failed to prove by clear and convincing evidence violations of the rules alleged.


With respect to VSB Docket No. 02-033-1948 (Complainant, Catherine Green), the Bar withdrew the alleged violation of Rule 1.15(b), and the Board found that the Bar had failed to prove by clear and convincing evidence alleged violations of Rules 1.4(c), and 8.1(a) and (d) and had proven by clear and convincing evidence that the Respondent had violated Rules 1.3(a) and (b), 1.4(a) and (b), 1.5(a) and (b), Rule 1.15(a), Rule 8.4(b).
Following all of the Board rulings set forth above, the Board deliberated concerning an appropriate sanction and determined, based on all the circumstances, including the repetitive, ongoing nature of the Respondent's conduct and his overall, continuing scheme to solicit and defraud clients, that the Respondent's license should be revoked.
Whereupon it is:


ORDERED that pursuant to Part 6, §IV, ¶13C.(3) of the Rules of the Virginia Supreme Court that the license of Respondent, Thomas Edward Smolka, to practice law in Virginia be, and the same hereby is, revoked effective June 27, 2002, as set forth in the Board's Order dated and entered June 27, 2002, attached hereto; it is
FURTHER ORDERED that, as directed in the Board's June 27, 2002, Summary Order in this matter, a copy of which was served on Respondent by certified mail, Respondent must comply with the requirements of Part 6, Section IV, Paragraph 13.K(1), of the Rules of the Supreme Court of Virginia. The time for compliance with said requirements runs from the June 27, 2002 effective date of the Summary Order. All issues concerning the adequacy of the notice and arrangements require by the Summary Order shall be determined by the Board.
FURTHER ORDERED that the Clerk of the Disciplinary System send an attested and true copy of this Opinion and Order to Respondent, Thomas Edward Smolka, by Certified Mail, Return Receipt Requested at his address of record with the Virginia State Bar, 990 Wales Road, Cambria, California 93428 and to Barbara Ann Williams, Bar Counsel, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, VA 23219-2800.
Victoria V. Halasz, P.O. Box 9349, Richmond, VA 23227, (804) 730-1222 was the reporter for the hearing and transcribed the proceedings.


The Clerk of the Disciplinary System shall assess costs pursuant to Part 6, §IV, ¶13(K)(10) of the Rules of the Virginia Supreme Court.


ENTER THIS ORDER THIS 12TH DAY OF
AUGUST, 2002


VIRGINIA STATE BAR DISCIPLINARY BOARD

By ___________________________________
Roscoe B. Stephenson, III, Chair Designate