IN THE MATTER OF THOMAS C.
VSB DOCKET NO. 98-080-0660
ORDER SUSTAINING MOTION
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)
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
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