VIRGINIA:

BEFORE THE DISCIPLINARY BOARD

OF THE VIRGINIA STATE BAR


IN THE MATTER OF VSB Docket No. 01-101-0653

PETER AUGUSTUS THEODORE


ORDER


This matter came on October 22, 2002, to be heard on the Agreed Disposition of the Virginia State Bar and the Respondent, Peter Augustus Theodore, based on the Certification of the Tenth District Subcommittee, Section I. The Agreed Disposition was considered by a duly convened panel of the Virginia State Bar Disciplinary Board consisting of V. Max Beard, Deborah A. Wilson, Peter A. Dingman, Carl A. Eason and John A. Dezio, presiding.

The Virginia State Bar, by Richard E. Slaney, Assistant Bar Counsel, and the Respondent, Peter Augustus Theodore, by his counsel, Rhetta M. Daniel, Esq., presented an Agreed Disposition endorsed by counsel and by Mr. Theodore.

Having considered the Certification and the Agreed Disposition, as well as the statements of counsel, and with one minor clarification, it is the Board's decision to accept the Agreed Disposition, and as such, the Board finds by clear and convincing evidence as follows:



I. STIPULATIONS OF FACT

1. At all times material to this Certification, the Respondent, Peter Augustus Theodore (Theodore) was an attorney licensed to practice law in the Commonwealth of Virginia.

2. In 1997, Theodore represented a James Reid (Reid) on a charge of capital murder in the Circuit Court of Montgomery County. Theodore and his co-counsel recommended Reid enter an Alford plea to the capital charge, and Reid did so. Reid was found guilty and sentenced to death.

3. Thereafter, new counsel was appointed for Reid and a habeas corpus petition was filed in the Supreme Court of Virginia (the Habeas Action).

4. At the request of the Attorney General's office, Theodore executed an affidavit (the Affidavit) which was filed in the Habeas Action.

5. The Bar's evidence would be that, in the Affidavit, Theodore made several assertions under oath which are false and/or misleading:

A. In paragraph 7, Theodore states "In Montgomery County, I represented Mark Lilly who was charged with capital murder. Lilly went to trial for first degree murder before a jury and was given a sentence less than his two co-defendants received who were both charged with the same murder."

In fact, as indicated by Lilly's conviction order, Lilly pled guilty, and did not have a jury trial.

B. In paragraph 7, Theodore states "In Montgomery County, I also represented Graham, who was charged in another case with capital murder. I was able to obtain a plea agreement by which Graham pleaded to first degree murder."

In fact, as indicated by Graham's conviction order, Graham was charged and pled guilty in Pulaski County, not Montgomery County.

C. In paragraph 10, Theodore discusses consulting with experienced defense counsel and capital resource groups both locally and elsewhere, and at the end of that paragraph states "No one recommended that he be tried by a jury." In paragraph 28,Theodore discusses expert opinion on whether Reid was incapable of forming the requisite intent to commit the crime charged, opines that no reasonably competent defense counsel would have presented such a defense, and concludes by stating "Everyone we consulted with agreed that our only chance was to plead guilty and present a strong case in mitigation."

Three local attorneys, Christopher Tuck, James Turk and Frederick Kellerman, would testify they advised Theodore not to plead Reid guilty.

D. In paragraph 28, when discussing a possible voluntary intoxication defense, Theodore states "In my experience, juries in Montgomery County do not generally accept voluntary intoxication as a defense to murder."

Theodore has never had a criminal jury trial in Montgomery County, and cannot identify a case in that County in which voluntary intoxication was raised as a defense to a capital murder charge.

6. In regard to the matters contained in 5A and 5B above, Theodore acknowledges those errors. His evidence would be those errors were inadvertent and he did not notice them at the time he signed the Affidavit. His evidence would further be that, upon discovery of those errors, he instructed the drafter of the Affidavit to correct them and promptly did so by signing a second affidavit which was thereafter filed in the subsequent federal habeas proceeding pending at that time.

7. In regard to the matter contained in 5C above, Theodore's evidence would be that he was never advised by any of the three attorneys referenced not to plead Reid guilty. Theodore's co-counsel has also previously stated under oath and would be expected to testify no one recommended that they plead Reid not guilty. The Bar's evidence would be that each of the three attorneys referenced did advise Theodore not to plead Reid guilty.

8. In regard to the matter contained in 5D above, both parties' evidence would be Theodore has never had a criminal jury trial in Montgomery County and is unaware of any case in that County where the defense of voluntary intoxication has been raised to a capital murder charge.

9. At the time of the events described above and continuing, Theodore has been diagnosed with intractable nephrolithiasis (kidney stones) and takes a variety of prescription medications to address this and other health difficulties.

10. Theodore has no prior disciplinary record.

II. DISCIPLINARY RULES

Assistant Bar Counsel, the Respondent and Respondent's Counsel agree that the evidence at a hearing would support a finding of a violation of the following Rule of Professional Conduct; and accordingly, the Board finds a violation of the following Rule of Professional Conduct:

RULE 3.3 Candor Toward The Tribunal

The remaining Rule violations charged in the Certification are dismissed.



III. DISPOSITION


Upon consideration whereof, it is ORDERED that the Respondent shall receive a Public Reprimand with Terms. The sole term shall be that Respondent immediately change his license status to disabled, and that he not thereafter change his license status unless and until he undergoes a comprehensive medical exam and cognitive tests (which exam and test results shall be provided Bar Counsel) and has a medical doctor and a psychiatrist opine he is fit and fully able to practice law. If and when, in the future, Respondent seeks to change his license status, any doubts about his competency or the sufficiency of such medical evidence shall be addressed by the Board. If Respondent violates the term described above, the Board shall impose upon him an indefinite disability suspension as an alternative sanction.

Pursuant to Part 6, Sec. IV, Para. 13.B.8.c. of the Rules of the Supreme Court of Virginia, the Clerk of the Disciplinary System shall assess costs.


It is further ORDERED that a copy teste of this Order shall be mailed by certified mail, return receipt requested, to the Respondent at his last address of record with the Virginia State Bar, P.O. Box 49, Blacksburg, Virginia 24063-0049, by regular mail to his counsel, Rhetta M. Daniel, Esq., at P.O. Box 5167, Richmond, Virginia 23220-0167, and hand delivered to Richard E. Slaney, Assistant Bar Counsel, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219.


Enter this Order this _____ day of October, 2002.



VIRGINIA STATE BAR DISCIPLINARY BOARD



By:_________________________________

John A. Dezio, Chair