VIRGINIA: BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

 

IN THE MATTER OF: )  
  ) VSB Docket Nos. 99-033-3099;

Terry Lee Van Horn ) 00-033-3186; and 01-033-1633

 

         

 

ORDER OF SUSPENSION

 

THESE MATTERS came on April 26, 2002, before a duly convened panel of the Virginia State Bar Disciplinary Board (the "Board"), comprised of Randy Ira Bellows (Chair), Richard J. Colten, Donna DeCorleto (Lay Member), Carl Eason and Peter A. Dingman, pursuant to a Subcommittee Determination and Certification from the Virginia State Bar Third District Committee, Section III. Terry Lee Van Horn ("Respondent" or "Van Horn") appeared in person and was represented by counsel, Michael L. Rigsby. The Virginia State Bar (the "Bar") appeared by its counsel, Barbara Ann Williams.

The matter was called at 9:00 a.m., in the Green Courtroom of the United States Fourth Circuit Court of Appeals, Richmond, Virginia. As a preliminary matter, the Bar withdrew paragraph 16 of the Certification. The Chair then swore the Court Reporter, Vicki Halasz, and polled the members of Board sitting for this hearing as to whether any of them had any personal or financial interest which would interfere with or influence their unbiased determination of these matters. Each member of the Board, including the Chair, responded in the negative. Respondent, by counsel, also informed the Board that he was withdrawing his objection to consolidation of these matters for hearing.


Various proceedings followed which, however, were rendered moot by the ultimate disposition of this matter. After consultation, Counsel for the Bar and Counsel for Respondent advised the Board that the parties had reached an agreement as to the appropriate disposition of all three matters raised in the Certification. Respondent and the Bar stipulated and agreed that, had the hearing proceeded to completion, the evidence produced would be sufficient to sustain, by clear and convincing evidence, findings of misconduct as to each violation of a Disciplinary Rule set forth in the Certification. The allegations set forth in the Certification were as follows:

 

VSB Docket No. 99-033-3009

Complainant: Commissioner of Accounts

 

A.    Factual Allegations

 

1.         On or about March 6, 1992, Mr. Van Horn qualified as executor of the Estate of Rosella Gibbs Groves.

 

1.              Mrs. Rosella Groves's son Robert George Groves, Jr. was the only heir to his mother's estate.

 


2.              Mr. Groves, who resided in Norwich, England, passed away in 1997; he is survived by his wife Joyce Groves, who resides in England.

 

3.              On or about September 15, 1994, Richard C. Manson, Jr., Commissioner of Accounts of the Circuit Court of the City of Richmond, issued a summons to Mr. Van Horn for his failure to file an inventory of the estate; an account of all money and other property he had received as fiduciary, including vouchers for all disbursements of monies or personal property; and broker confirmations of securities the respondent held as fiduciary, along with a statement or certificate of every bank in which money was deposited.

 

4.              Mr. Van Horn did not comply with the summons; therefore, on December 12, 1994, the Commissioner of Accounts requested the Honorable Randall G. Johnson to set the matter for hearing on January 17, 1995.

 

5.              A Show Cause Order was issued on December 13, 1994.

 

6.              On or about January 13, 1995, Mr. Van Horn submitted an Inventory and First Accounting.

 

7.              The Show Cause hearing was continued until March 13, 1995, based upon Mr. Van Horn's partial compliance with the statutory requirements.

 

8.              On June 1, 1995, the Commissioner of Accounts wrote Mr. Van Horn inquiring, among other things, what had happened to approximately $4,200.00 remaining in the estate.

 

9.              Mr. Van Horn did not reply to the Commissioner of Accounts's letter dated June 1, 1995.

 

10.           On July 10, 1995, the Commissioner of Accounts's Office left a telephone message with Mr. Van Horn's office indicating that a response was needed to the Commissioner's letter dated June 1, 1995.

 

11.           On September 20, 1995, the Commissioner of Accounts issued a summons to Mr. Van Horn for his failure to provide supporting documentation for the first accounting he filed for the period March 6, 1992 to February 22, 1994, and to file an accounting for the period beginning February 23, 1994.

 

12.           On September 22, 1995, Mr. Van Horn wrote the Commissioner of Accounts but not address the issue of what had happened to the approximately $4,200.00 remaining in the estate.

 


13.           On November 21, 1995, the Commissioner of Accounts faxed Mr. Van Horn a copy of his September 22, 1995 letter, indicating that he hoped to resolve all issues by mid-October, and requesting the respondent to provide a status report.

 

14.           On February 22, 1996, the Commissioner of Accounts mailed Mr. Van Horn a copy of a letter from McDaniel Rucker Insurance Agency, inquiring about the status of Mrs. Rosella Groves's estate, and added a handwritten note: APls. Advise me the exact status of these, in writing, no later than 2/29/96.

 

15.           Mr. Van Horn did not reply to the Commissioner's request. [WITHDRAWN BY THE BAR]

 

 

16.           On March 8, 1999, the Commissioner of Accounts again requested Mr. Van Horn to provide final documentation indicating what final distributions were made and to provide receipts therefore.

 

 

17.           After Mr. Van Horn failed to respond fully to the summons issued on September 20, 1995, the Commissioner of Accounts caused a Show Cause Order to be issued by the Circuit Court of the City of Richmond on or about June 9, 1999.

 

 

18.           On or about June 21, 1999, the Commissioner of Accounts reported to the Virginia State Bar, pursuant to Virginia Code'26-18, that Mr. Van Horn had failed to make the required settlement within thirty days after service of the summons issued on September 20, 1995.

 

 

19.           In a letter to Bar Counsel dated July 16, 1999, Mr. Van Horn stated that the summons issued in September 1995 had been dismissed after he filed the required accounting, which was approved. Mr. Van Horn also acknowledged receiving approximately $4,000.00 Ain satisfaction of my fees for services as Executor and to the beneficiary for services rendered in his absence," and indicated that at the show cause hearing on June 28, 1999, Athe Court seemed satisfied with my explanation, which is basically what I have included in this response, and continued the matter until July 26, 1999 for receipt of the accounting and final disposition of the issue."

 

 

20.           On or about July 23, 1999, Mr. Van Horn submitted a Final Account, which states that the balance in Dominion Bank Account No. 74-346680446 of $4,181.90 was Atransferred to Terry L. Van Horn [in] Satisfaction of Executor Fees, Attorneys Fees for Services Rendered, Beneficiary Robert G. Groves, Jr."

 

 

23.           On July 23, 1999, Mr. Van Horn sent Bar Counsel a letter stating his letter dated July 16, 1999, incorrectly indicated that the required accounting had been filed and approved.

 


24.           On July 27, 1999, the Commissioner of Accounts wrote Mr. Van Horn, seeking more information about when, how and why the $4,181.90 fee was paid to him, whether the beneficiary consented to the payment and how it was documented.

 

25.           Mr. Van Horn did not reply to the Commissioner of Accounts' letter dated July 27, 1999.

 

 

26.           On or about August 16, 1999, after Mr. Van Horn filed the final accounting, the Show Cause Order was dismissed even though the accounting was deficient.

 

 

27.           On September 14, 1999, the Commissioner of Accounts again wrote Mr. Van Horn requesting information necessary to resolve the accounting and advising that the Commissioner would take formal exception to the accounting filed with the court if Mr. Van Horn failed to provide the requested information.

 

 

28.           Mr. Van Horn did not reply to the Commissioner of Accounts's letter dated September 14, 1999.

 

 

29.           On or about October 4, 1999, the Commissioner of Accounts issued a report disallowing fees claimed by Mr. Van Horn as executor in the amount of $4,181.90.

 

 

30.           Mr. Van Horn received fees totaling $2,500.00 for his work as executor and another $1,500.00 as attorney's fees, in addition to the $4,181.90 he claimed as fees.

 

 

31.           The Groves believed that Mrs. Rosella Groves's estate was closed in 1994 and did not know $4,181.90 remained in the estate.

 

 

32.           The Groves never approved disbursement of $4,181.90 to Mr. Van Horn as fees.

 

 

B.    Charges of Misconduct

 

The foregoing allegations give rise to the following charges of misconduct under Code of Professional Responsibility; each Disciplinary Rule (DR) allegedly violated is set out separately:

 

DR 1‑102. Misconduct.

 

(A)      A lawyer shall not:

 

*          *          *

 


(4)       Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on a lawyer's fitness to practice law.

 

DR 2-105. Fees.

 

(A)      A lawyer's fees shall be reasonable and adequately explained to the client.

 

*          *          *

 

DR 6‑101. Competence and Promptness.

 

*          *          *

 

A lawyer shall attend promptly to matters undertaken for a client until completed or until the lawyer has properly and completely withdrawn from representing the client.

 

(C)          A lawyer shall keep a client reasonably informed about matters in which the lawyer's services are being rendered.

 

VSB Docket No. 00-033-3186

Complainant: Shirley R. Crittenden

 

A. Factual Allegations

 

·     In June 1996, Shirley R. Crittenden consulted Mr. Van Horn about her marital situation.

 

2.              Mrs. Crittenden was subsequently served with divorce papers; and on or about October 13, 1999, she paid Mr. Van Horn $3,500.00 to represent her in the divorce proceedings.

 

3.              When Mr. Van Horn agreed to represent Mrs. Crittenden, she had already been served with a bill of complaint, interrogatories and requests for production, and a pre-equitable distribution hearing had been noticed for October 19, 1999.

 

 

4.              At their October 13th meeting, Mrs. Crittenden reviewed the outstanding discovery requests with Mr. Van Horn and provided information responsive to the requests.

 

 

5.              Mr. Horn made handwritten notes about the discovery responses on a legal pad.

 

 

6.              Mr. Van Horn told Mrs. Crittenden that McClanahan Ingles, her husband's counsel, would have to subpoena the information she did not have and advised her not to attend the pre-equitable distribution hearing on October 19th.

 


7.              After the pre-equitable distribution hearing, Mr. Van Horn advised Mrs. Crittenden that Mr. Ingles was unwilling to discuss anything and that a commissioner would be assigned to the case.

 

 

8.              On or about October 21, 1999, Mr. Van Horn wrote Mr. Ingles a letter, assuring him that Mrs. Crittenden's discovery responses, which were overdue, would be completed no later than October 27, 1999.

 

 

9.              Mrs. Crittenden was unaware that Mr. Van Horn had failed to serve her discovery responses, or that on or about November 8, 1999, Mr. Ingles had filed and served a motion to compel and notice that a hearing on the motion would be held on January 18, 2000.

 

 

10.           Early in November 1999, after Mrs. Crittenden called to inquire about the status of the divorce proceedings, Mr. Van Horn told her that he had not heard from her husband's counsel, that he did not know whether a commissioner had been assigned and that he would let Mrs. Crittenden know when he heard something.

 

 

11.           On or about November 15, 1999, after Mrs. Crittenden's husband complained that Mr. Van Horn was over-complicating things and would not speak to his attorney, Mrs. Crittenden advised Mr. Van Horn that her husband was willing to negotiate and instructed Mr. Van Horn to arrange a meeting.

 

 

12.           Mr. Van Horn scheduled a meeting in December 1999, but his secretary subsequently called Mrs. Crittenden and informed her that her husband's attorney had canceled the meeting, stating that he did not have enough information to conduct a meaningful meeting.

 

 

13.           Mrs. Crittenden followed up with Mr. Van Horn the same day, and Mr. Van Horn assured her that Mr. Ingles had everything he needed to know.

 

 

14.           Early in January 2000, Mrs. Crittenden called Mr. Van Horn to inquire about the status of the divorce proceedings; Mr. Van Horn told her that no date had been set with the commissioner and not to worry.

 

 

15.           Mr. Van Horn did not appear at the hearing on January 18, 2000, at which time the court ordered Mrs. Crittenden to file full responses to the outstanding discovery requests no later than February 1, 2000, and to pay Mr. Ingles $450.00.

 

 

16.           The court entered an order to this effect on January 24, 2000; Mrs. Crittenden knew nothing about the hearing or the order.

 

 


17.           On or about February 15, 2000, Mrs. Crittenden was served with a motion for sanctions for failing to abide by the court order and notice of a hearing to be held on the sanctions motion on April 11, 2000.

 

18.           After she was served with the motion and notice, Mrs. Crittenden tried unsuccessfully to contact Mr. Van Horn over a three-day period.

 

 

19.           Finally, Mr. Van Horn directed his secretary tp set up a meeting with Mrs. Crittenden on or about February 18, 2000, at which time, Mrs. Crittenden again reviewed her responses to the outstanding discovery requests with Mr. Van Horn.

 

 

20.           On February 29, 2000, Mrs. Crittenden executed responses that Mr. Van Horn had prepared to the outstanding discovery requests.

 

 

21.           On or about March 10, 2000, Mrs. Crittenden sought a second opinion about the seriousness of the sanctions motion from attorney Susanne Schilling, who advised Mrs. Crittenden that she was in big trouble and that Mr. Van Horn would have to get the contempt matter dismissed before Ms. Schilling would get involved.

 

 

22.           On or about March 13, 2000, Mrs. Crittenden met with Mr. Van Horn, who assured her that he would take care of the contempt matter, stating that he was in trouble, not her.

 

 

23.           Mr. Van Horn told Mrs. Crittenden that Mr. Ingles had all the information he needed and that it would not be necessary for Mrs. Crittenden to appear at the contempt hearing, asking her to Atrust him."

 

 

24.           During the weeks of March 20 and 27, Mrs. Crittenden called Mr. Van Horn several times to find out whether the contempt matter had been dismissed and spoke to Mr. Van Horn's secretary.

 

 

25.           On April 7, 2000, Mr. Van Horn's secretary left Mrs. Crittenden a voice mail message, confirming that she did not have to go to court because Mr. Van Horn said he would go to court and Aget his wrist slapped."

 

 

26.           Worried about the gravity of the situation, on April 11, 2000, Mrs. Crittenden appeared in court, only to learn that Mr. Van Horn had failed to advise her that the hearing had been continued.

 

 

27.           When Mrs. Crittenden spoke to Mr. Van Horn the next day, he told her that she did not have to attend the hearing, which had been continued to April 14, 2000.


28.           Mr. Van Horn did not tell Mrs. Crittenden that he had not provided the discovery responses she executed on February 29, 2000, to opposing counsel until April 11, 2000.

29.           On April 14, 2000, Mrs. Crittenden appeared in court with Mr. Van Horn and was shocked when Mr. Van Horn answered Aboth" in response to the court >s question as to whether she or Mr. Van Horn were responsible for the failure to respond to the outstanding discovery requests.

 

 

30.           After hearing the evidence, the court struck Mrs. Crittenden's answer and cross-bill, barred from presenting any evidence in the divorce proceedings and ordered her to pay Mr. Ingles another $450.00 by May 1, 2000.

 

 

31.           Mrs. Crittenden obtained new counsel, Terrence R. Batzli, who was substituted as her counsel in the divorce action and filed a motion for reconsideration.

 

 

32.           The hearing on the motion for reconsideration was set for June 6, 2000; on or about that date, the parties entered into a Memorandum of Agreement.

 

 

33.           The Final Decree of Divorce was entered on June 20, 2000.

 

 

34.           After Mrs. Crittenden filed a bar complaint against him, Mr. Van Horn sent her an itemized statement and a $355.00 refund from the $3,500.00 retainer she had paid him.

 

 

B. Charges of Misconduct

 

The foregoing allegations give rise to the following charges of misconduct under the Code of Professional Responsibility and the Rules of Professional Conduct. Each DR relates to misconduct that occurred before January 1, 2000, and each Rule of Professional Conduct (ARPC") relates to misconduct that occurred after that date:

 

DR 2‑105. Fees.

 

·              A lawyer's fees shall be reasonable and adequately explained to the client.

 

***      *          *

 

DR 6‑101. Competence and Promptness.

(A)      A lawyer shall undertake representation only in matters in which:

 

(1)       The lawyer can act with competence and demonstrate the specific legal knowledge, skill, efficiency, and thoroughness in preparation employed in acceptable practice by lawyers undertaking similar matters, or


(2)       The lawyer has associated with another lawyer who is competent in those matters.

 

(B)       A lawyer shall attend promptly to matters undertaken for a client until completed or until the lawyer has properly and completely withdrawn from representing the client.

 

©         A lawyer shall keep a client reasonably informed about matters in which the lawyer's services are being rendered.

 

(D)      A lawyer shall inform his client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter.

 

DR 7‑101. Representing a Client Zealously.

 

(A)      A lawyer shall not intentionally:

 

(1)       Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7‑101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.

 

(2)       Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2‑108, DR 5‑102, and DR 5‑105.

 

(3)       Prejudice or damage his client during the course of the professional relationship, except as required under DR 4‑101(D)

 

RULE 1.3        Diligence

 

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

 

(ii)           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.

 


(jj)           A lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3.

 

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.

 

(kk)        A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

 

·     ©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 1.5        Fees

 

(a)            A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:

 

(1)           the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

 

(2)           the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

 

 

(3)           the fee customarily charged in the locality for similar legal services;

 

 

(4)           the amount involved and the results obtained;

 

 

(5)           the time limitations imposed by the client or by the circumstances;

 

 

(6)           the nature and length of the professional relationship with the client;

 

 

(7)           the experience, reputation, and ability of the lawyer or lawyers performing the services; and

 

 

(8)           whether the fee is fixed or contingent.

 

 

(b)           The lawyer's fee shall be adequately explained to the client. When the lawyer has not regularly represented the client, the amount, basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.

 

 


RULE 3.4        Fairness To Opposing Party And Counsel

 

A lawyer shall not:

 

*          *          *

 

(c)            Knowingly disobey or advise a client to disregard a standing rule or a ruling of a tribunal made in the course of a proceeding, but the lawyer may take steps, in good faith, to test the validity of such rule or ruling.

 

 

VSB Docket No. 01-033-1633

Douglas O. Tice, Chief Judge, United States Bankruptcy Court, Eastern District of Virginia, Richmond Division

 

A.    Factual Allegations

 

1.              In August 1997, Christopher N. Babcock and Brenda G. Babcock consulted Mr. Van Horn to obtain advice about their bankruptcy options; the Babcocks subsequently retained Mr. Van Horn to prepare and file a chapter 7 bankruptcy petition, schedules, statement of affairs, statement of intent, to render advice with respect to scheduling of their property and potential exemptions of such property, to represent them at the first creditors' meeting and assist in the administration of their chapter 7 case.

 

2.              The Babcocks paid Mr. Van Horn a $450 retainer.

 

 

3.              Mr. Van Horn filed a chapter 7 petition on January 13, 1998, listing the total value of the Babcocks' scheduled assets as approximately $14,300.00.

 

 

4.              On March 3, 1998, the trustee filed an objection to the debtors' claimed exemptions.

 

 

5.              The Babcocks promptly contacted Mr. Van Horn when they received the objection, and he assured them that he would respond to the trustee's objection.

 

 

6.              The trustee repeatedly attempted to contact Mr. Van Horn concerning the objection and, after receiving no response, wrote the Babcocks and instructed them to park their vehicles and to advise the trustee of the vehicles' location.

 

 

7.              The Babcocks immediately contacted Mr. Van Horn, who advised them that they did not have to heed the trustee's instructions and that he would contact the trustee directly to resolve the matter.

 

 


8.              Two hearings were held on the trustee's objection, and Mr. Van Horn failed to appear at either hearing despite having received proper notice.

 

9.              Mr. Van Horn filed to file any response to the trustee's objection and instructed the Babcocks not to appear at the hearings.

 

 

10.           The court entered an order denying the Babcocks' claimed exemptions on March 18, 1999.

 

 

11.           On March 13, 1999, the Babcocks attended a Rule 2004 examination, at which time they fully cooperated with the trustee and testified that Mr. Van Horn had advised them not to abide by the trustee's directions and requests.

 

 

12.           The trustee failed a complaint on July 13, 1999, seeking turnover of the Babcocks' assets and monetary damages.

 

 

13.           After Mr. Van Horn failed to file an answer to the trustee's complaint, the trustee filed a motion for default.

 

 

14.           A hearing was held on September 22, 1999, on the motion for default; the court entered an order on November 23, 1999, revoking the Babcocks' chapter 7 discharge and granting judgment in favor of the trustee for $14,300.00, as well as awarding monetary sanctions against the debtors in the amount of $4,527.60

 

 

15.           On June 1, 2000, the Babcocks' new bankruptcy counsel, the Boleman Law Firm, P.L.C., as new bankruptcy counsel, they filed a motion to determine whether the fees they had paid Mr. Van Horn exceeded the reasonable value of the legal services he provided.

 

 

16.           Mr. Van Horn filed no response, and on June 22, 2000, the court entered an order finding that Mr. Van Horn's compensation exceeded the reasonable value of his services and requiring Mr. Van Horn to return the $450.00 that the Babcocks had paid him.

 

 

17.           Mr. Van did not comply with the court's order.

 

 

18.           The Babcocks' new counsel subsequently requested the court to reinstate their discharge under chapter 7, to hold Mr. Van Horn in contempt for his violation of the court's June 22, 2000 order awarding him to refund his fee, and to allow the Babcocks' to recover attorney's fees and costs in the amount of $2,563.00 as further sanctions against Mr. Van Horn.

 

 


19.           The court granted the Babcocks' motion for contempt and awarded them monetary sanctions in the amount of $2,563.00, in addition to the sum of $450.00 that Mr. Van Horn was ordered to pay the Babcocks on June 22, 2000, but the court declined to reinstate the Babcocks' chapter 7 discharge.

 

B.    Charges of Misconduct

 

The foregoing allegations give rise to the following charges of misconduct under the Code of Professional Responsibility and the Rules of Professional Conduct. Each DR relates to misconduct that occurred before January 1, 2000, and each RPC relates to misconduct that occurred after that date:

 

DR 2‑105. Fees.

 

(A)      A lawyer's fees shall be reasonable and adequately explained to the client.

 

*          *          *

 

DR 6‑101. Competence and Promptness.

(A)      A lawyer shall undertake representation only in matters in which:

 

(1)       The lawyer can act with competence and demonstrate the specific legal knowledge, skill, efficiency, and thoroughness in preparation employed in acceptable practice by lawyers undertaking similar matters, or

 

(2)       The lawyer has associated with another lawyer who is competent in those matters.

 

(B)       A lawyer shall attend promptly to matters undertaken for a client until completed or until the lawyer has properly and completely withdrawn from representing the client.

 

©         A lawyer shall keep a client reasonably informed about matters in which the lawyer's services are being rendered.

 

(D)      A lawyer shall inform his client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter.

 

DR 7‑101. Representing a Client Zealously.

 

(A)      A lawyer shall not intentionally:

 


(1)       Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7‑101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.

 

(2)       Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-108, DR 5-102, and DR 5-105.

 

(3)       Prejudice or damage his client during the course of the professional relationship, except as required under DR 4-101(D)

 

DR 7‑105. Trial Conduct.

 

(A)      A lawyer shall not disregard or advise his client to disregard a standing rule of a tribunal or a ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule or ruling.

 

*          *          *

 

RULE 1.5        Fees

 

(a)            A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:

 

(1)           the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

 

(2)           the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

 

 

(3)           the fee customarily charged in the locality for similar legal services;

 

 

(4)           the amount involved and the results obtained;

 

 

(5)           the time limitations imposed by the client or by the circumstances;

 

 

(6)           the nature and length of the professional relationship with the client;

 

 

(7)           the experience, reputation, and ability of the lawyer or lawyers performing the services; and

 

 

(8)           whether the fee is fixed or contingent.

 


RULE 3.4        Fairness To Opposing Party And Counsel

 

A lawyer shall not:

 

*          *          *

 

(d)           Knowingly disobey or advise a client to disregard a standing rule or a ruling of a tribunal made in the course of a proceeding, but the lawyer may take steps, in good faith, to test the validity of such rule or ruling.

 

AGREED DISPOSITION

The Board having considered the agreement of the parties and deeming it to be reasonable, well taken and in the best interests of the public, the Bar and Respondent, the Board accepted the agreed disposition, the terms of which are as follows.

 

A SUSPENSION of Respondent's license for a period of three years, commencing on May 27, 2002, and conditioned upon Respondent's satisfaction of the following conditions:

1.         Within one hundred eighty (180) days after April 26, 2002, Respondent will secure, at his sole cost and expense, complete physical, psychiatric and neuropsychological examinations and reports from one or more competent healthcare professionals to be agreed by Respondent and the Bar. Respondent will execute all necessary releases and direct the healthcare professionals to provide copies of such reports and all underlying notes, test results and other data related to the examinations to the Bar.

2.         Such examinations and reports will be repeated not less often than annually during the term of the suspension, with a final report to be delivered to the Bar, including an evaluation of Respondent's fitness to resume the practice of law, on a date not less than sixty (60) days prior to May 27, 2005.


3.         Respondent and the Bar further stipulated and agreed that should Respondent fail to obtain the examinations and reports and to secure the delivery of the reports, together with all underlying notes, test results and other data, to the Bar as contemplated in the foregoing conditions, then the appropriate alternative discipline to be imposed upon such a violation of these conditions shall be revocation of Respondent's license. Upon consideration of the stipulations and agreements of the parties, the Board does find as follows:

That, the Bar has sustained its burden, by clear and convincing evidence, upon the stipulation and agreement of the parties, in establishing that Respondent is guilty of each and every act of misconduct and violation of the Disciplinary Rules and Rules of Professional Conduct charged in the Certification; and

That, the disposition agreed to by the parties is appropriate.

In consideration whereof, it is

ORDERED that Respondent be, and he hereby is, suspended from the Bar of the Supreme Court of Virginia for a period of three (3) years, commencing on May 27, 2002, and conditioned upon Respondent's prompt and complete satisfaction of the conditions hereinabove set out. In the event of any failure of Respondent to satisfy these conditions, the Bar may proceed by Petition for Rule to Show Cause to establish such fact and, in the event that such fact is established, by clear and convincing evidence, then Respondent's license shall be revoked; and further


ORDERED that Respondent shall forthwith give notice, by certified mail, return receipt requested, of the suspension of his license to practice law in the Commonwealth of Virginia to any and all clients for whom he is currently handling matters and to all opposing counsel and presiding judges in any pending litigation in which he may be an attorney of record. Respondent shall also make appropriate arrangements for the disposition of matters now in his care in conformity with the wishes of his clients. Such notice shall be given within fourteen (14) days of the effective date of this Order set forth adjacent to the signature of the Chair below and Respondent shall make the necessary arrangements within forty-five (45) days of the effective date of this Order. Within sixty (60) days of the effective date of this Order, Respondent shall furnish proof to the Bar that such notices have been timely given and such arrangements properly made. All issues concerning the adequacy of the notice and arrangements required herein shall be determined by the Board, which may impose a sanction of revocation or further suspension for failure to comply with the requirements of this Order; and further

ORDERED that the Clerk of the Disciplinary System shall assess costs against Respondent pursuant to Paragraph 13K(10), of Part VI of the Rules of the Supreme Court of Virginia; and further

ORDERED that a copy of this Order shall be mailed to Respondent by certified mail, return receipt requested, at his address of record with the Bar, 513 Forest Avenue, Richmond, Virginia, 23229, to Respondent's counsel, Michael L. Rigsby, Esquire, Midkiff Muncie & Ross, P.C., 9030 Stoney Point Parkway, Suite 160, Richmond, Virginia, and Barbara Ann Williams, Esquire, Bar Counsel, Virginia State Bar, Eighth and Main Building, 707 E. Main Street, Suite 1500, Richmond, Virginia, 23219.

So ordered this ______ day of ___________________, 2002.

VIRGINIA STATE BAR DISCIPLINARY BOARD

 

 

By:            ___________________________________________

Randy Ira Bellows, Chair