VIRGINIA: BEFORE THE DISCIPLINARY BOARD

OF THE VIRGINIA STATE BAR



IN THE MATTER OF THOMAS C. SPENCER

VSB DOCKET NO. 98-080-0660

ORDER SUSTAINING MOTION TO STRIKE

On August 22, 2003, a hearing in this matter was held before a duly convened panel of the Virginia State Bar Disciplinary Committee consisting of Robert L. Freed, Chair; W. Jefferson O'Flaherty (lay member), Bruce T. Clark, James L. Banks, Jr. and H. Taylor Williams, IV. The Chair polled the members of the Panel as to whether any of them was conscious of any personal or financial interest or bias which would prevent him from fairly and impartially hearing the matter. Each member, including the Chair, answered in the negative.

The Respondent appeared in person represented by R. Paul Childress. The Virginia State Bar was represented by Edward L. Davis, Assistant Bar Counsel.

This matter was reported by Tracey J. Stroh, Chandler and Halasz, P.O. Box 9349, Richmond, Virginia 23227. (804) 730-1222

Upon completion of the Bar's case, counsel for the Respondent moved to strike the evidence presented by the Bar. In considering such a motion, the Panel is to determine if sufficient evidence was presented by the Bar that would under any set of circumstances support a conclusion that the Respondent engaged in the alleged misconduct that is the subject of the motion to strike. In undertaking such consideration, however, the Panel must not lose sight of the fact that no misconduct can be found unless the Bar has carried its burden by presenting clear and convincing evidence of the same.

In the cases at hand, the Panel finds that the Bar has failed to carry this burden. The documentary evidence and testimony presented by the Bar in these matters standing alone is found by the Panel to be insufficient to support a finding of misconduct. Through no fault of the Bar, the evidence which may have allowed the Bar to carry its burden is not available. Of the three key witnesses to these matters, two are known to be dead. The current whereabouts of the third are unknown. Based upon the information provided, it appears that he too may be deceased.

Whether the testimony of these missing witnesses would have vindicated the Respondent or faulted him will be forever unknown. The Panel has no authority to speculate upon such issues.

Accordingly, it is ORDERED that this matter be DISMISSED.

FURTHER, ORDERED that a copy of this Order shall be mailed by certified mail, return receipt requested, to Respondent at his address of record with the Virginia State Bar, Spencer & Taylor LLP, 401 Lime Kiln Road, Lexington, Virginia 24450, by first class mail to R. Paul Childress, Esquire, counsel for Respondent, 5911 West Broad Street P.O. Box 6357, Richmond, Virginia 23230, and by hand to Edward L. Davis, counsel for the Bar, 707 Eat Main Street, Suite 1500, Richmond, Virginia 23219



ENTER: the ___ day of ___________, 2003



__________________________________

Robert L. Freed, Second Vice Chair