VIRGINIA:

BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

IN THE MATTER OF

WALTER CORNELIUS WHITT, Jr. VSB Docket No. 00-010-0904
00-010-1226
Respondent 00-010-1649
00-010-2506
00-010-2637
01-010-1719
01-010-2210
01-010-2304
01-010-2309
01-010-2310
01-010-0012

ORDER
These matters came to be heard on September 25, 2001 upon an Agreed Disposition between the Virginia State Bar, the Respondent, Walter Cornelius Whitt, Jr., and the Respondent's counsel, David J. Allmond, Esquire.
A duly convened panel of the Virginia State Bar Disciplinary Board consisting of Thaddeus T. Crump, Lay Member, Anthony J. Trenga, Esq., H. Taylor Williams, IV, Esq., Bruce T. Clark, Esq., and Roscoe B. Stephenson, III, Esq., Chair Designate, presiding, considered the matter by telephone conference. The Respondent's counsel, David J. Allmond, Esq., appeared on behalf of the Respondent. Edward L. Davis, Assistant Bar Counsel, appeared on behalf of the Virginia State Bar. The Respondent, Walter Cornelius Whitt, Jr., did not appear.
Upon due deliberation, it is the decision of the Virginia State Bar Disciplinary Board to accept the Agreed Disposition. The Stipulations of Fact, Disciplinary Rule Violations, and Disposition agreed upon by the Virginia State Bar, the Respondent and his counsel are incorporated herein as follows:
I. STIPULATIONS OF FACT
1. During all times relevant hereto, the Respondent, Walter Cornelius Whitt, Jr. (Whitt) has been an attorney licensed to practice law in the Commonwealth of Virginia until the Board's summary suspension of his license on April 27, 2001.
01-010-2310

2. On April 10, 2001, Mr. Whitt consented to an injunction and the appointment of a receiver pursuant to Section 54.1-3936 of the Code of Virginia (1950) as Amended. This followed the Virginia State Bar's filing of a complaint for this relief in the Circuit Court for York County. The bar's action resulted from several complaints in a short period of time alleging that clients had paid Mr. Whitt for representation in various matters, but that he failed to appear in court, failed to account for their money, and abandoned his office. On April 16, 2001, the Circuit Court for the County of York entered the order appointing a receiver and enjoining Mr. Whitt
from disposing of any property. The appointed receiver then commenced winding up Mr. Whitt's law practice. (A copy teste of the Order appointing such receiver is attached hereto as Exhibit A).

Receiver Clara P. Swanson, Esquire, would say that she found 165 open files in Mr. Whitt's office at the time that she assumed control of his practice pursuant to the Order appointing her as receiver. She would also say that Whitt maintained appropriate trust account records up until approximately two years ago, when he stopped depositing client advanced fees in his attorney trust account and stopped maintaining appropriate trust account ledgers and records.

01-010-2309

3. On or about March 15, 2001, Andra J. LaGasse paid Mr. Whitt $750.00 cash for attorney's fees to assist her in obtaining an appointment as guardian for the estate of her minor children. She also delivered a $4,000.00 (four thousand dollar) cashier's check to Whitt for the purpose of posting bond with the Newport News Circuit Court. The matter came to be heard in the clerk's office of the Circuit Court on April 3, 2001. Ms. LaGasse appeared as directed, but could not proceed, because no one posted the $4,000 bond. Whitt was not present. Whitt's former secretary, Donna Cellinesi, verified with the Virginia State Bar that Ms. LaGasse paid Whitt a total of $4,750.00. Ms. LaGasse did not know what Whitt did with the money, and was unable to locate him or contact him, his office having been locked and apparently abandoned. Whitt's trust account records reflect the deposit of the $4,000, and a gradual depletion of the funds by March 30, 2001. Subsequently, Mr. Whitt issued a refund to Mrs. LaGasse.

4. On January 10, 2001, Mark J. Bandrofchek paid Whitt $750.00 (seven hundred and fifty dollars) to defend him on a charge of drunken driving scheduled to be heard on April 3, 2001 in the Newport News Circuit Court. On April 3, 2001, Mr. Bandrofchek appeared as directed, but Mr. Whitt failed to appear. Mr. Bandrofchek did not know what Whitt did with his money, and was unable to locate or contact Whitt, his office having been locked and apparently
abandoned. Whitt's trust account records reflect no deposit of $750 in January or February 2001. In April 2001, Mr. Whitt's mother issued a full refund to Mr. Bandrofchek.

5. On February 8, 2001, Joshua Bonneville was arrested while operating a motor vehicle owned by Whitt. Mr. Bonneville was charged with driving while his operator's license was suspended, possession of marijuana, and drunk in public. Whitt was a passenger in the vehicle at the time. Whitt advised the arresting officer that he would serve as Bonneville's attorney. Thereafter, Mr. Bonneville could not reach Mr. Whitt to talk about the case, and Whitt failed to return his telephone calls. Mr. Bonneville so advised the York County General District Court the morning of his trial on April 9, 2001, and the court appointed an attorney to defend him. Mr. Whitt failed to appear for the April 9, 2001 trial. Mr. Bonneville was unable to locate or contact Whitt, his office having been locked and apparently abandoned.

6. William Woodard hired Mr. Whitt to represent him in a medical malpractice action against Dr. James Allen, M.D., the Riverside Regional Medical Center, and six other physicians and medical practices. On January 18, 2001, Whitt filed a motion for judgement in the Newport News Circuit Court. Dr. Allen and Riverside were timely served with the lawsuit; however, Mr. Whitt failed to have the remaining defendants served within one year. Counsel for the defendants not timely served with the lawsuit offered him the opportunity to endorse an order of nonsuit, but Mr. Whitt did not respond. Accordingly, counsel for those defendants scheduled a hearing for March 28, 2001 on their motion to dismiss the case for failure to serve. Counsel for Dr. Allen and Riverside scheduled a hearing the same day on their respective motions for a Bill of Particulars. Mr. Woodard appeared; however, Mr. Whitt failed to appear. The court ordered the plaintiff to file a Bill of Particulars by April 11, 2001 with respect to Dr. Allen and Riverside. The court dismissed the cases against the six other defendants for failure to timely serve the lawsuit. Defense counsel Carolyn Porter Oast would say that Whitt never responded to requests for admissions or interrogatories. Likewise, he did not file the Bills of Particulars. Mr. Woodard advanced Mr. Whitt $750.00 (seven hundred and fifty dollars) to defray some of the costs. Whitt did not deposit the check in his attorney trust account, but placed it in his general account. Mr.
Woodard did not know what Whitt did with his money, and was unable to locate or contact Whitt, his office having been locked and apparently abandoned.

7. Whitt was in substance abuse rehabilitation programs on three occasions beginning in July 2000. The first was from July 6, 2000 to August 2000 at the Virginia Beach Psychiatric Institute and the Williamsburg Place and Farley Pavilion in Williamsburg, Virginia. The other was from January 9, 2001 to February 7, 2001 at the Edgehill Recovery Retreat in Winchester, Virginia. The third program commenced in April 2001 shortly after Mr. Whitt consented to the appointment of a receiver to wind up his practice. At that time, Mr. Whitt returned to the Winchester program. He was released, and continues to reside in Winchester, Virginia. Whitt's admission to the second program followed his failure on November 1, 1999, to appear in the Newport News Circuit Court for the case of Commonwealth v. Steven J. Sobczak. The facts of this failure to appear are described in more detail below in Paragraph (15), VSB Docket Number 01-010-1719. The Court issued an order for Mr. Whitt to appear on December 16, 1999. Whitt appeared, and the Court continued the matter to December 11, 2000. Mr. Whitt, however, failed to appear on December 11, 2000. Accordingly, the Court issued a capias. On January 4, 2001, the York County Circuit Court executed the capias on Mr. Whitt, and he appeared in the Newport News Circuit Court on January 5, 2001. At that time, he advised the Court that he needed help with his substance abuse, and commenced the substance abuse treatment program in Winchester, Virginia.

01-010-2304

8. Following his release from his first stay in the Winchester program in February 2001, Mr. Whitt was arrested for public intoxication in the City of Newport News, Virginia, at about 4:00 A.M. on March 15, 2001. Mr. Whitt appeared in the Newport News General District Court the following morning, pled guilty to the charge, and paid a fine of $25.00 plus costs.

01-010-2210

9. During 1999 and 2000, Whitt represented one Larry N. Williams in a personal injury matter. On October 13, 1999, the liability carrier issued a check in the amount of $17,000 (seventeen thousand dollars) payable to Whitt and Mr. Williams as settlement of the case. Mr.
Williams would say that Whitt negotiated the check without informing Mr. Williams about the settlement, and that the purported endorsement by Mr. Williams on the reverse side of the check is not Mr. Williams' signature. Whitt also failed to deposit the check in his attorney trust account. On or about January 14, 2000, Whitt asked Mr. Williams to come to his office to receive payment for his personal injury settlement. Mr. Williams did as directed, and Whitt issued him a check in the amount of $8,000 drawn on Whitt's attorney trust account. Whitt's bank records reflect that the source of the $8,000 was a cash deposit made the same day. Whitt prepared an accounting indicating the amounts of money owed to the various medical care providers that treated Mr. Williams in relation to this personal injury case. Whitt, however, did not disburse any of the settlement funds to the medical care providers. One of the providers continued to dun Mr. Williams for payment. In April 2001, with the assistance of his parents, who provided the necessary funds, Whitt issued checks to the medical care providers. Because of the receivership, however, the checks were returned. Receiver Clara P. Swanson eventually paid the medical care providers with the approval of the court.

00-010-1649

10. Also during 1999 and 2000, Whitt represented one Edward A. Smith and his mother, Martha M. Smith in relation to injuries they sustained in a traffic accident. On January 5, 2000, State Farm Mutual Automobile Insurance Company issued a check in the amount of $4,817.71 (four thousand eight hundred seventeen dollars and seventy-one cents) representing medical payments coverage for Mr. Smith. The check was made payable to Mr. Smith and to Whitt. Whitt admitted to Virginia State Bar investigator Eugene L. Reagan (Reagan) that he did not deposit the check in his attorney trust account because he was abusing illegal drugs at the time, and that he placed the check in his operating account instead. Whitt also received a check from the liability carrier in the amount of $13,250 (thirteen thousand two hundred and fifty dollars), dated June 2, 2000, also made payable to Whitt and to Mr. Smith. Mr. Whitt admitted to Mr. Reagan that he failed to place this check into his attorney trust account as well, although he explained that he did so in order to disburse funds more quickly. Whitt, however, did not disburse Mr. Smith's share of the funds until June 21, 2000 and July 10, 2000. The June 21,
2000 check, drawn on Whitt's attorney trust account, did not clear the bank until Whitt's father deposited sufficient cash in Whitt's trust account to cover the check.

00-010-2637

11. Whitt also issued a check in the amount of $4,000 (four thousand dollars), drawn on his attorney trust account, to Martha Smith on June 16, 2000, representing her share of a personal injury settlement. Mrs. Smith's check was returned for insufficient funds, and would not clear until Mr. Whitt's father made a sufficient cash deposit into Whitt's attorney trust account to cover the check. Whitt did not maintain the required client subsidiary ledgers for his receipt and disbursement of client funds in either of these cases.

00-010-0904

12. A staff member from Whitt's office reported that he never deposited advanced fees from criminal cases into his attorney trust account. A review of Whitt's trust account records for December 2000 and January 2001 reflect a series of checks drawn on the trust account and made payable to three former members of Whitt's staff, Melissa Souther, Dawn Porter, and Dianna Cellinese. The three former staff members say that the checks were for their pay. Another check drawn on the trust account, dated December 20, 2000, was made payable to Michelle Jones with the annotation "Loveseat, couch, and chair." The check was for furniture that Whitt bought for Ms. Jones, a personal friend. Whitt also lent money from the trust account to Ms. Souther for a car loan, and repaid money he borrowed from Dawn Porter with checks drawn from the trust account.

00-010-1226

13. Mr. Whitt failed to respond to a bar inquiry issued in November 1999 concerning
a client, Clinton D. Cowles, who could not reach him. Mr. Whitt asked the bar for two extensions, but never responded. Mr. Whitt had filed a motion for judgement for Mr. Cowles that was served on the defendants by posting, but advised the client by letter that he would not pursue the case any further, and he ceased activity on the case without seeking permission from the court to withdraw.


00-010-2506

14. On or about December 15, 1999, Whitt accepted $800 toward a $5,000 fee to defend
Gail M. Parris in a federal criminal case then pending in the U. S. District Court for the Northern District of Texas. He took a lien for the remaining $4,200 in fees from the anticipated proceeds of a personal injury case he was also handling for Ms. Parris. At the time, Whitt was neither admitted to practice law in the state of Texas nor in the U. S. District Court for Northern Division of Texas. Mr. Whitt would say that he explained to Ms. Parris that he was not licensed to practice in the state of Texas nor in the U.S. District Court for the Northern District of Texas, and that he explained to her in great detail the steps that he would have to take to be admitted to practice in that state. Ms. Parris had previously entered into a plea agreement with the government through her Texas attorney, George Nelson, but withdrew it upon hiring Mr. Whitt. On December 20, 1999 Mr. Whitt forwarded an order of substitution to Mr. Nelson. By facsimile, dated December 20, 1999, Mr. Nelson advised Mr. Whitt that the U.S. Attorney and the court would not endorse the order without a motion for substitution of counsel, and unless Whitt was admitted to practice there at least on an interim basis. Mr. Whitt later spoke with the prosecuting attorney in Texas and wrote to her on February 15, 2000, about his intentions to become admitted to practice in the court. Mr. Whitt, however, never became admitted to practice there and never filed a motion to substitute himself as counsel. Accordingly, the court never substituted him as counsel.

On March 22, 2000, Mr. Whitt settled the personal injury case for the gross amount of $9,000 and collected the remaining $4,200 in criminal fees from the proceeds. There being no resolution of the criminal case, the government obtained an indictment against Ms. Parris, and the U.S. Marshall's arrested her in Virginia on April 5, 2000. Ms. Parris discharged Mr. Whitt and obtained other counsel who negotiated a plea agreement. Whitt refunded only half of the $5,000 fee, and did so with a check drawn on his general account on April 14, 2001. Mr. Whitt would say that he believed that he had earned his fees for his work from the criminal case, although he did not complete the case. Mr. Whitt admitted to the Virginia State Bar investigator that he never deposited the $9,000 personal injury proceeds check in his trust account, although he said that he did so in order to disburse funds more quickly.

01-010-1719

15. In November 1999, the Circuit Court for the City of Newport News found Mr. Whitt in contempt for failure to appear in the case of Commonwealth v. Steven J. Sobczak. Rather than fine or imprison him, the court continued the matter to December 2000, at which time Mr. Whitt failed to appear. The Court issued a capias and Mr. Whitt was arrested on January 4, 2001. He appeared in court on January 5, 2001 and advised the court that he had been clear of any drugs or alcohol since July 5, 2000. The court, however, ordered a drug screen at that time which was positive for the use of cocaine. Mr. Whitt then admitted to the court that he had used cocaine. The court continued the matter to April 9, 2001, however, Mr. Whitt did not appear. He was apprehended and appeared on April 10, 2001. The Court continued the matter again, ultimately dismissing it on June 11, 2001 following Mr. Whitt's participation in the Edgehill Recovery Retreat program in Winchester, Virginia.



01-010-0012

16. On June 28, 2000, Mr. Whitt visited a female client housed at the Peninsula Regional Jail in Williamsburg, Virginia. Several deputy sheriffs observed Mr. Whitt caressing his client, rubbing her legs, and kissing her on her cheek and hands during the visit. This resulted in the jail administrator issuing a letter to Mr. Whitt banning him from any further in-person contact visits with his clients at the jail. Mr. Whitt would say that he did not feel that his conduct was inappropriate at the time, that the client had never been in jail before, that he was well acquainted with the client, and that he was simply trying to provide aid and comfort to her at the time. Further, Mr. Whitt did not promptly receive Mr. Kuplinski's letter until much later, Mr. Whitt having moved his office. Mr. Whitt would say that if he had received the letter when issued, he would have explained his conduct to Mr. Kuplinski. Nonetheless, Mr. Whitt agrees that the bar could prove by clear and convincing that his conduct was beyond acceptable conduct at the jail and, therefore, inappropriate under the Rules of Professional Conduct.

II. DISCIPLINARY RULE VIOLATIONS

In accordance with the Agreed Disposition, the Board finds that the aforementioned facts give rise to violations of the following Disciplinary Rules:

Rules 1.1 and 1.3(a), (b), and (c), in that Mr. Whitt abandoned his office with several client matters pending, leaving the clients unable to retrieve their files or ascertain the status of their cases; failed to account to the clients the disposition of their funds; accepted a case in a court where he was not admitted to practice, and failed to become admitted to practice there, and failed to diligently pursue that case and other civil actions for which he was hired; Rule 1.4(a), (b), and (c) in that he failed to keep clients reasonably informed about the matters he was handling for them; Rule 1.15(a), (c), (d), (e), and(f) in that he failed to deposit client funds in his attorney trust account, misappropriated client funds entrusted to him in his capacity as an attorney, deposited non-client funds in the trust account, and failed to properly maintain the books and records required for fiduciary accountings; Rule 3.4(d), in that he repeatedly failed to appear in court when he was required to do so; and Rule 8.4(b) and (c), in that he misappropriated client funds and spent them in furtherance of his personal interests and, that by his own admission, used and possessed cocaine, a Schedule II controlled substance, pled guilty to appearing drunk in public, falsely advised a court that he had not used cocaine, and breached the rules of a local jail by having intimate contact with an inmate client. The aforementioned misconduct also affects the following Disciplinary Rules in effect before January 1, 2000: DR 1-102(A)(3), DR 1-102(A)(4), DR 2-108(C) and (D), DR 6-101(A), (B), (C), and (D), DR 7-101(A), DR 7-105(A), DR 9-102(A) and (B), and DR 9-103.

III. DISPOSITION

The Respondent and his counsel having agreed that Mr. Whitt does not desire to practice law at this time because he suffers from a Disability as set forth in Paragraphs 13(A) and (F), Part 6, Section IV, of the Rules of the Supreme Court of Virginia, and the Respondent having consented to the Board entering an Order suspending his license to practice law in the Commonwealth of Virginia for an indefinite period of time because of the Disability, in accordance with Paragraph 13(F),

The Respondent's license to practice law in the Commonwealth of Virginia is hereby SUSPENDED for an indefinite period of time in accordance with Paragraph 13(F), Part 6, Section IV of the Rules of the Supreme Court of Virginia immediately upon the entry of this Order.

In accordance with Paragraph 13(F)(1), the Respondent may seek to terminate this Disability suspension upon application to the Board; however, the burden of proving the termination of the Disability shall be on the Respondent. In accordance with Paragraph 13(F)(6), the Board shall hold a hearing on the issue of termination of the Disability promptly upon receipt of a request from the Respondent. The suspension shall be terminated only upon determination by the Board that the disability no longer exists. Further, in accordance with the Agreed Disposition, the bar will dismiss for exceptional circumstances all cases of misconduct now pending against the Respondent, who has stipulated to findings of fact and Disciplinary Rule violations. Further, in accordance with the Agreed Disposition, and Paragraph 13(F)(2), which provides that a finding of Disability shall not terminate misconduct proceedings involving a Respondent, the Board may impose discipline for the stipulated misconduct in the event the Respondent's license to practice law is restored. The Board, however, may also consider the finding of Disability as mitigation if it finds that the stipulated misconduct resulted from the Disability. The Board notes that the bar has agreed and stipulated that the misconduct stipulated herein resulted from the Respondent's Disability.

Pursuant to Part Six, Section IV, Paragraph 13(K)(10) of the Rules of the Supreme Court,
the Clerk of the Disciplinary System shall not assess costs unless and until such time that this Disability Suspension is terminated, and a disciplinary sanction is imposed in accordance with Paragraph 13(K)(10)(a).

The court reporter who transcribed this proceeding is Tracy Stroh, Chandler & Halasz, P.O. Box 9349, Richmond, Virginia 23227, (804) 730-1222.

It is ORDERED pursuant to the provisions of Part Six, Section IV, Paragraph 13(K)(1) of
the Rules of the Supreme Court of Virginia, that the 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 all clients for whom he is currently handling matters and to all opposing attorneys and presiding judges in pending litigation. The Attorney shall also make appropriate arrangements for the disposition of matters then in his care in conformity with the wishes of his clients. The Attorney shall give such notice within fourteen (14) days of the effective date of the suspension order, and make such arrangements as are required herein within forty-five (45) days of the effective date of the suspension order. The Attorney shall furnish proof to the bar within sixty (60) days of the effective date of the suspension order that such notices have been timely given and such arrangement for the disposition of matters made. Issues concerning the adequacy of the notice and arrangements required herein shall be determined by the Disciplinary Board, which may impose a sanction of revocation or suspension for failure to comply with the requirements of this subparagraph.

A copy teste of this Order shall be served upon the Respondent, Walter Cornelius Whitt, Jr., by Certified Mail, Return Receipt Requested, at F-1, 2524 George Washington Memorial Highway, Yorktown, Virginia 23693-3423, his address of record with the Virginia State Bar, and to his alternate address, c/o Walter C. Whitt, Sr., 310 Lakeland Crescent, Yorktown, Virginia 23693, by regular mail to his counsel, David J. Allmond, Esq., at Kershner & Moreno, P.C., Suite 103, 3720 Holland Road, Virginia Beach, Virginia 23542-2843, and by hand to Edward L. Davis, Assistant Bar Counsel, at the Virginia State Bar.


ENTERED THIS _________ DAY OF ___________, 2001

THE VIRGINIA STATE BAR DISCIPLINARY BOARD



BY ______________________________________________
ROSCOE B. STEPHENSON, III, CHAIR DESIGNATE