BEFORE THE THIRD DISTRICT COMMITTEE, SECTION III,
OF THE VIRGINIA STATE BAR
IN THE MATTER OF
KENNETH HAMMOND TAYLOR
VSB Docket No. 03-033-2774
DISTRICT COMMITTEE DETERMINATION
(PUBLIC REPRIMAND WITH TERMS)
On January 13, 2004, a hearing in this matter was held before a duly convened Third District Committee, Section III, panel consisting of Joyce Rene Hicks, attorney member; Cullen D. Seltzer, attorney member; John D. Sharer, attorney member; Dr. Fredrick Rahal, lay member and Charlotte Peoples Hodges, Esquire, chair designate.
Kenneth Hammond Taylor appeared in person pro se and Linda Mallory Berry, appeared as counsel for the Virginia State Bar.
Pursuant to Part 6, Section IV, Paragraph 13.H.2.n. of the Rules of the Virginia Supreme Court, the Third District Committee, Section III, of the Virginia State Bar hereby serves upon the Respondent the following or Public Reprimand with Terms:
I. FINDINGS OF FACT
1. At all times relevant hereto, Kenneth Hammond Taylor (hereinafter Respondent or Mr. Taylor), has been an attorney licensed to practice law in the Commonwealth of Virginia.
2. In May 2001, Hugh Daniel Burkhart, Jr. (hereinafter Mr. Burkhart) retained Mr. Taylor to represent him in an employment matter. The Engagement Letter sent to Mr. Burkhart from Mr. Taylor after their initial interview called for a retainer in the sum of $2,500.00, which Mr. Burkhart paid on May 12, 2001.
3. According to the Engagement Letter, Mr. Taylor was to file an Employee Retirement Income Security Act (ERISA) action on Mr. Burkhartís behalf, and, in the Engagement Letter, Mr. Taylor stated that the litigation would be tried "to a jury verdict." Mr. Taylor represented himself to the Burkharts as a lawyer quite proficient and highly knowledgeable in ERISA matters.
4. The Engagement Letter called for the action to be brought in the U.S. District court for the Eastern District of Virginia against the Plan Administrator of Mr. Burkhart's employer Merck, Sharp and Dhome (Merck), for wrongful termination of long-term disability benefits according to the Health and Welfare Plan of Merck.
5. In 2001, the Merck's plan was administered by MetLife and, despite the fact that Mr. Burkhart had been re-evaluated that same year by Social Security and remained qualified since 1993 for Social Security disability benefits, MetLife did not find Mr. Burkhart "totally disabled."
6. In 2001, Mr. Burkhart was under the care of a pain management counselor, a pain expert/psychiatrist, a psychiatrist and a neurosurgeon for low back pain, chronic pain and attendant depression and none of these health care specialists were willing to dismiss Mr. Burkhart from care.
7. As part of what he described to the Burkharts as his winning legal strategy, Mr. Taylor advised Mr. Burkhart that it was prudent to ask Merck to re-hire Mr. Burkhart, and Mr. Burkhart did so in July 2001.
8. Merck interviewed Mr. Burkhart in August 2001, but, by September 24, 2001, the situation had deteriorated to a point where Merck designated Mr. Burkhart's dismissal date. Merck declared that, unless re-hired by September 30, 2001, Mr. Burkhart would lose all benefits of his Health, Prescription Drug and Dental Plans.
9. On November 13, 2001, Mr. Burkhart was denied employment with Merck. His benefits continued until December 31, 2002, due to a paperwork hold-up not attributable to Mr. Burkhart.
10. After September 2001, Mr. Burkhart was unable to contact Mr. Taylor by any means despite many efforts to do so. Mr. Burkhart believed that Mr. Taylor totally abandoned his case.
11. On December 13, 2001, Mr. Burkhart filed a complaint with the Virginia State Bar (the Bar) citing his inability to contact Mr. Taylor by telephone, facsimile, e-mail, first-class mail or certified mail, return receipt requested. He also complained of his inability to retrieve his file from Mr. Taylor for review by another attorney.
12. Mr. Burkhart also asked for assistance in getting a detailed billing statement from Mr. Taylor. At the request of Intake, Mr. Taylor sent Mr. Burkhart an itemized billing statement on March 19, 2002, which showed that Mr. Burkhart was entitled to a refund from Mr. Taylor for the sum of $750.00.
13. In his cover letter to the itemized billing, Mr. Taylor admitted in his to Mr. Burkhart that, "I did not complete the matter."
14. No refund was received by Mr. Burkhart and so he again enlisted the Bar's assistance. Because Mr. Burkhartís original complaint was closed after Mr. Taylor responded to the Bar and to Mr. Burkhart in March 2001, this disciplinary file was opened in March 2003. Mr. Taylor did not respond to this complaint; however, in April 2003, while being interviewed on an unrelated matter, Mr. Taylor admitted to the Bar that he neglected to refund Mr. Burkhart the sum of $750.00, representing unearned fees.
15. Mr. Taylor agreed to refund the money and to notify Bar Counsel when he did so. The Bar received no notification from Mr. Taylor regarding his compliance. In late September 2003, Mr. Burkhart complained to Bar Counsel that the refund had not been received. To date, the refund has not been paid to Mr. Burkhart by Mr. Taylor.
II. NATURE OF MISCONDUCT
RULE 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation (emphasis added) reasonably necessary for the representation.
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 1.15 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:
(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.
(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 1.16 Declining Or Terminating Representation
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, refunding any advance payment of fee that has not been earned and handling records as indicated in paragraph (e).
(c) fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6;
III. PUBLIC REPRIMAND WITH TERMS
Accordingly, it is the decision of the committee to offer the Respondent an opportunity to comply with certain terms and conditions, compliance with which will be a predicate for the disposition of a Public Reprimand with Terms of this complaint. The terms and conditions shall be met by the dates specified in each of the numbered paragraphs below.
1. No later than February 13, 2004, you shall certify in writing to Assistant Bar Counsel, Linda Mallory Berry, that you have done the following:
a) have executed an agreement with Lawyers Helping Lawyers;
b) have provided necessary authorization and/or releases to Lawyers Helping Lawyers so they can provide quarterly reports to the Virginia State Bar;
c) have provided necessary authorization and/or releases allowing any therapists, counselors or medical providers to communicate with Lawyers Helping Lawyers and/or the Virginia State Bar concerning your treatment; and
d) ensure that Lawyers Helping Lawyers provides a quarterly report to the Virginia State Bar on the fifteenth of each month, beginning May 15, 2004, for the period February through April 2004, to continue for the term of your agreement with Lawyers Helping Lawyers.
2. No later than July 13, 2004, the Respondent shall refund the amount of $750.00
to Hugh Daniel Burkhart.
3. No later than January 13, 2005, the Respondent shall complete 2 hours of continuing legal
legal education in Ethics and shall attend either the full spring risk management program
by Prolegia or the full fall risk management program by ANLIR. 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 jurisdiction in which he may be licensed to practice law. He shall certify
his compliance with the term set forth in this paragraph by delivering full and
properly executed Virginia MCLE Board Certification of Attendance Forms to the
Assistant Bar Counsel, Linda Mallory Berry, promptly following his attendance
of such CLE program(s).
Upon satisfactory proof that such terms and conditions have been met, this matter shall be closed. If, however, the terms and conditions are not met by the dates specified, a Show Cause will be issued and, upon a finding that you filed to comply with any of these terms, this District Committee shall direct a Certification for Sanction Determination to the Disciplinary Board with its recommendation for suspension.
Pursuant to Part Six, Section IV, Paragraph 13.b.8.c.(1) of the Rules of the Virginia Supreme Court, the Clerk of the Disciplinary System shall assess costs.
THIRD DISTRICT COMMITTEE, SECTION III,
OF THE VIRGINIA STATE BAR
Charlotte Peoples Hodges, Chair Designate
CERTIFICATE OF SERVICE
I certify that on this the ____ day of ________, 2004, I mailed by Certified Mail, Return Receipt Requested, No. 7106 4575 1294 4678 0778, a true copy of the District Committee Determination (Public Reprimand with Terms) to Kenneth Hammond Taylor, Respondent, at 1844 Timberly Waye, Richmond, VA 23230, his last address of record with the Virginia State Bar.
Linda Mallory Berry
Assistant Bar Counsel
IN THE MATTER OF
KENNETH HAMMOND TAYLOR
VSB Docket No. 03-033-2774
Complainant: Hugh Burkhart
ACCEPTANCE OF SERVICE
I certify that on this, the ________ day of ___________, 2004, I received by hand-delivery, a true copy of the District Committee Determination (Public Reprimand with Terms) from Linda Mallory Berry, Assistant Bar Counsel.
Kenneth Hammond Taylor