VIRGINIA:

BEFORE THE FIFTH DISTRICT SECTION II SUBCOMMITTEE

OF THE VIRGINIA STATE BAR


IN THE MATTER OF

CHARLES JAMES SWEDISH, ESQ.

VSB Docket Nos. 01-051-0666, 01-051-1621, 02-051-0153, 02-051-2255


AGREED DISPOSITION

Pursuant to Part Six, § IV, ¶ 13(G)(1)(c) of the Rules of Virginia Supreme Court, the Virginia State Bar, by Senior Assistant Bar Counsel Noel D. Sengel, Esq., and the Respondent, Charles James Swedish, Esq., hereby enter into an Agreed Disposition arising out of the above-referenced matter.

Both parties affirm that the proposed Subcommittee Determination of a Public Reprimand with Terms, a true copy of which is attached hereto and incorporated herein by reference, reflects the stipulated facts, violations, and disposition for the above-referenced matter.

Respondent understands that should the Subcommittee accept this agreed disposition by unanimous vote, the Subcommittee Determination will be signed by the Chair or Chair Designate and thereafter mailed without the necessity of any hearing or further notice to the parties. Further, it is understood and agreed by the parties hereto that should the Subcommittee refuse the agreed disposition neither party shall be bound by the stipulations or findings contained herein and this matter shall be forthwith scheduled for a hearing by the full Committee.

________________________

Noel D. Sengel
Assistant Bar Counsel



________________________

Charles James Swedish
Respondent




SUBCOMMITTEE ACTION

Pursuant to Part Six, § IV, ¶ 13(G)(1)(c) of the Rules of Virginia Supreme Court, the duly convened subcommittee of the Fifth District Committee Section II of the Virginia State Bar hereby accepts the Agreed Disposition in this matter.



Date: __________ _________________________________



Date: __________ _________________________________



Date: __________ _________________________________



VIRGINIA:



BEFORE THE FIFTH DISTRICT SECTION II SUBCOMMITTEE

OF THE VIRGINIA STATE BAR


IN THE MATTER OF

CHARLES JAMES SWEDISH, ESQ.

VSB Docket Nos. 01-051-0666, 01-051-1621, 02-051-0153, 02-051-2255



SUBCOMMITTEE DETERMINATION

PUBLIC REPRIMAND WITH TERMS

On the 17th day of June, 2003, a meeting in this matter was held before a duly convened a subcommittee of the Fifth District Committee Section II consisting of Fred M. Haden, Esq., Joseph C. Fleig, and Stephen H. Ratliff, Esq., presiding.

Pursuant to Part 6, § IV, ¶ 13(G)(1)(c) of the Rules of Virginia Supreme Court, a subcommittee of the Fifth District Committee Section II of the Virginia State Bar hereby serves upon the Respondent the following Public Reprimand with Terms:

I. FINDINGS OF FACT

1. At all times relevant hereto the Respondent, Charles James Swedish, Esq. (hereinafter the Respondent), has been an attorney licensed to practice law in the Commonwealth of Virginia.

VSB Docket Number 01-051-0666

2. In May of 1999, the Complainant hired the Respondent to represent him in a divorce. The Complainant paid the Respondent $1,500 in advance fees. There was no written fee agreement.

3. On August 24, 1999, the parties signed a property settlement agreement prepared by the wife's attorney. On September 16, 1999, the wife's attorney filed a Bill of Complaint. On November 18, 1999, the Respondent filed an Answer to the Bill of Complaint and signed a Waiver of Service. The matter was set for an ore tenus hearing on December 15, 1999. However, by letter dated December 7, 1999, the wife's attorney informed the Respondent that the wife not longer wished to proceed with the divorce. The case was non-suited on December 15, 1999.

4. The Respondent contacted the Complainant and the Complainant told the Respondent that he wished to go ahead with the divorce. The Complainant gave the Respondent $76.00 for the fee for the filing of the Bill of Complaint. The Respondent told the Complainant that it would cost him another $750.00 in advance fees and that the Respondent would bill the Complainant on an hourly basis to complete the divorce. By letter dated January 11, 2000, Mr. Wade wrote the Respondent and told him that he could not pay him any more money. Mr. Wade also reminded the Respondent that the Respondent had told him that the divorce would cost Mr. Wade $1,500.00. Shortly thereafter, the Respondent told Mr. Wade that he would complete the divorce for $1,500.00 and "would get right on it."

5. In March of 2000, Mr. Wade went to the Fairfax County Circuit Court and discovered that the Respondent had not filed a Bill of Complaint in his divorce, despite the Respondent's assurance that he "would get right on it." By letter dated March 9, 2000, Mr. Wade wrote the Respondent, discharged him and requested a refund. The Respondent did not respond to this letter, provide Mr. Wade with a bill, or a refund of any unearned fees. The Respondent did not cash the $76.00 check for the filing fee.



VSB Docket Number 01-051-0153

6. On February 19, 2001, the Complainant hired the Respondent to represent him on felony criminal charges. The Respondent told the Complainant that he would charge the Complainant a total flat fee of $5,000.00 which would cover the whole case, including a trial and appeal. The Complainant made two initial payments totaling $3,000.00. The Respondent deposited both payments into his personal checking account, one for $2,000.00 on February 21, 2001 and one for $1,000.00 on March 12, 2001.

7. On February 20, 2001, the Respondent attended an arraignment. On February 21, 2001, the Respondent also met with the Complainant and his employers. The Complainant then decided to hire another attorney, who he felt had more experience pertinent to his case. On March 12, 2001, the Complainant informed the Respondent of this, asked the Respondent to send his file to his new attorney, and to reimburse him any unearned portion of his advance fee of $3,000.00. The Respondent did not provide the file at that time, but did agree to send the file to new counsel.

8. The Respondent sent a bill to the Complainant, quoting an hourly rate of $195.00 and totaling $2,973.75. The Respondent reimbursed the Complainant $26.25, by check written from his trust account. The Respondent did not return the Complainant's file. The Complainant sued the Respondent for the full $3,000.00 and subpoenaed his file. The Complainant's new attorney was able to review the file pursuant to the subpoena, but the Respondent never provided the Complainant or the Complainant's attorney with a copy of the Complainant's file.



VSB Docket Number 02-051-1621

9. In March of 2000, the Complainant hired the Respondent to defend him on criminal charges. In April of 2000, the Complainant was tried and convicted of obtaining property under false pretenses and forgery, and thereafter, sentenced to a term in the penitentiary. The trial judge appointed the Respondent to handle the Complainant's appeal.

10. On June 6, 2000, the Respondent filed a notice of appeal on behalf of the Complainant, and then a timely petition for appeal. On November 22, 2000, the Court of Appeals of Virginia denied the Complainant's appeal. The Respondent failed to inform the Complainant of the denial of his appeal, of his right to request a review by a three-judge panel and of his right to file an appeal with the Virginia Supreme Court. The Respondent also failed to request a review by a three-judge panel, and/or to file an appeal with the Virginia Supreme Court on the Complainant's behalf.

 

VSB Docket Number 02-051-2255

11. In December of 2000, the Complainant was convicted in Fairfax County of robbery and use of a firearm in the commission of a felony. In March of 2001, the Complainant hired the Respondent to represent him at sentencing, on appeal of his conviction, and on an additional unrelated charge of shooting into an occupied vehicle. The Complainant's family paid the Respondent $4,000.00. In late April of 2001, the Complainant was sentenced to the penitentiary on the charges of robbery and use of a firearm. In June, the Complainant entered a plea on the unrelated charge.

12. In May of 2001, the Respondent filed a Notice of Appeal in the robbery and use of a firearm case. In October of 2001, the Respondent filed a petition to withdraw pursuant to Anders v. Calif. By letter dated October 2, 2001, the Respondent informed the Complainant that trial counsel failed to preserve any issues for appeal, and the issue of ineffective assistance of counsel needed to be addressed through a habeas corpus petition. On October 9, 2001, the Court of Appeals of Virginia denied the Respondent's petition to withdraw, stating that the petition did not satisfy the requirements under Anders v. Calif. The Court directed the Respondent to file an amended petition within fifteen days.

13. The Complainant received notice that the Respondent's motion to withdraw pursuant to Anders v. Calif. was denied. Thereafter, the Complainant tried repeatedly to contact the Respondent to determine the status of his appeal and to inquire about filing a habeas corpus petition. The Respondent did not respond to the Complainant's letters or calls. On February 4, 2002, unable to contact his attorney and concerned about preservation of his rights, the Complainant filed a complaint with the Virginia State Bar.

14. The Respondent filed an amended petition on October 23, 2001. The appeal was denied on March 18, 2002 and the Respondent's petition to withdraw was granted.

 

II. NATURE OF MISCONDUCT

The Subcommittee finds that the following Disciplinary Rules have been violated:


RULE 1.3 Diligence

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


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 1.15 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.


RULE 1.16 Declining Or Terminating Representation

(e) All original, client-furnished documents and any originals of legal instruments or official documents which are in the lawyer's possession (wills, corporate minutes, etc.) are the property of the client and shall be returned to the client upon request, whether or not the client has paid the fees and costs owed the lawyer. If the lawyer wants to keep a copy of such original documents, the lawyer must incur the cost of duplication. Upon request, the client must also be provided copies of the following documents from the lawyer's file, whether or not the client has paid the fees and costs owed the lawyer: lawyer/client and lawyer/third-party communications; the lawyer's copies of client-furnished documents (unless the originals have been returned to the client pursuant to this paragraph); pleadings and discovery responses; working and final drafts of legal instruments, official documents, investigative reports, legal memoranda, and other attorney work product documents prepared for the client in the course of the representation; research materials; and bills previously submitted to the client. Although the lawyer may bill and seek to collect from the client the costs associated with making a copy of these materials, the lawyer may not use the client's refusal to pay for such materials as a basis to refuse the client's request. The lawyer, however, is not required under this Rule to provide the client copies of billing records and documents intended only for internal use, such as memoranda prepared by the lawyer discussing conflicts of interest, staffing considerations, or difficulties arising from the lawyer/client relationship.



III. PUBLIC REPRIMAND WITH TERMS

Accordingly, it is the decision of the Subcommittee to offer the Respondent an opportunity to comply with certain terms and conditions, compliance with which by October 31, 2003, shall be a predicate for the disposition of this complaint by imposition of a Public Reprimand with Terms. The terms and conditions which shall be met by October 31, 2003 are:

1. The Respondent shall complete four (4) hours of continuing legal education in the areas of ethics or law office management . His Continuing Legal Education attendance obligation set forth in this paragraph shall not be applied toward his Mandatory Continuing Legal Education requirement in Virginia or any other jurisdictions in which he may be licensed to practice law. He 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 Forms (Form 2) to Noel D. Sengel, Senior 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 read Virginia Legal Ethics Opinion #1606 and shall certify in writing to the assistant bar counsel handling this matter that he has done so.

Upon satisfactory proof that the above noted terms and conditions have been met, a Public Reprimand with Terms shall then be imposed. If, however, the terms and conditions have not been met by October 31, 2003, this matter shall be certified to the Virginia State Bar Disciplinary Board upon an agreed stipulation of facts and misconduct as the facts and misconduct are set forth herein for the sole purpose of the imposition of a sanction deemed appropriate by the Virginia State Bar Disciplinary Board.



FIFTH DISTRICT SECTION II SUBCOMMITTEE

OF THE VIRGINIA STATE BAR



By __________________________________

Chair/Chair Designate




CERTIFICATE OF SERVICE

I certify that I have this _____ day of _______________________, 2003, mailed a true and correct copy of the Subcommittee Determination (PUBLIC REPRIMAND WITH TERMS) by CERTIFIED MAIL, RETURN RECEIPT REQUESTED, to the Respondent, Charles James Swedish, Esq., at 107 Pleasant St., NW, Vienna, VA 22180-2944, his last address of record with the Virginia State Bar.

__________________________________

Noel D. Sengel