BEFORE THE VIRGINIA STATE BAR DISCIPLINARY
IN THE MATTER OF
WALTER CORNELIUS WHITT, Jr. VSB
Docket No. 00-010-0904
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.
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.
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
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.
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.
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
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
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.
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.
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.
14. On or about December 15, 1999, Whitt accepted $800 toward a $5,000 fee to
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.
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.
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.
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
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
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
ROSCOE B. STEPHENSON, III, CHAIR DESIGNATE