IN THE MATTER OF
WALTER CORNELIUS WHITT, Jr. VSB Docket No. 00-010-0904
COMES NOW the Virginia State Bar, by Counsel, pursuant to Part Six, Section IV, Paragraph 13(C)(5)(b) of the Rules of the Supreme Court of Virginia, and petitions the Virginia State Bar Disciplinary Board to enter an Order requiring Walter Cornelius Whitt, Jr. to appear before the Board on June 22, 2001 at 9:00 A.M., or as soon as possible thereafter, for a hearing to determine whether Misconduct has occurred and whether the imposition of immediate sanctions is reasonable and necessary. In support of its Petition, the Bar states as follows:
1. WALTER CORNELIUS WHITT, JR. (Whitt) has been and, as of the date of the filing of this petition, is an attorney duly licensed to practice law in the Commonwealth of Virginia.
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).
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. Whitt notified Ms. LaGasse that the matter would 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 Whitt failed to post the $4,000 bond. Whitt also failed to appear, although he was her hired counsel. 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 does not know what Whitt did with the money, and has been unable to locate him or contact him, his office having been locked and apparently abandoned.
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 does not know what Whitt did with his money, and has not been able to locate or contact Whitt, his office having been locked and apparently abandoned.
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 and Mr. Bonneville continued to consume beer in the vehicle during the arrest process. Whitt advised the arresting officer that he would serve as Bonneville's attorney. Accordingly, Mr. Bonneville paid Whitt $500.00 (five hundred dollars) to represent him. 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 does not know what Whitt did with his money, and has not been able 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., and some other physicians. Mr. Whitt filed the case in the Newport News Circuit Court, however, the defendants were never served. Accordingly, the defendants scheduled a hearing for March 28, 2001 on their motion to dismiss the case for failure to serve. Mr. Woodard appeared; however, Mr. Whitt failed to appear. The court dismissed the case for failure to serve the defendants. Mr. Woodard advanced Mr. Whitt $750.00 (seven hundred and fifty dollars) to defray some of the costs. Mr. Woodard does not know what Whitt did with his money, and has not been able to locate or contact Whitt, his office having been locked and apparently abandoned.
7. Pam Walker, the landlord for Whitt's office, advised the Virginia State Bar that Whitt has given her written notice of his intention to leave his office and not renew the lease as of May 1, 2001. He did not provide a forwarding address.
8. Whitt has been in substance abuse rehabilitation programs on two occasions during the past year. 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. 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 (17), VSB Docket Number 01-010-1719. The Court issued an order for Mr. Whitt to appear on December 16, 1999, however, Mr. Whitt failed to appear. In 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.
9. Following his release from the program in Winchester, 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.
10. 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. Whitt negotiated the check without informing Mr. Williams about the settlement, and without obtaining Mr. Williams' endorsement on the check. He 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 continues to dun Mr. Williams for payment. Whitt never provided his client with an accounting or explanation of his disposition of the rest of the funds.
11. 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.
13. 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.
14. A staff member from Whitt's office reported that he never deposited advanced fees from criminal cases into his attorney trust account and that Whitt said that if he missed a court date, it was because he indulged in cocaine.
15. 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.
16. On or about December 15, 1999, Whitt accepted a fee to defend Gail M. Parris in a federal criminal case then pending in Texas, allegedly by saying that he was licensed to practice law in Texas, when he was not. He also took a lien for unpaid fees in the criminal case in a civil action he was handling for the same client, thereby taking an interest in the outcome of the civil litigation. The client claims that he had a third party intimidate her into settling for an amount far less than she wanted. Mr. Whitt admits to never placing the check in his trust account. Mr. Whitt claims that he called and wrote the prosecuting attorney in Texas in anticipation of appearing there through local counsel. The Assistant U.S. attorney, however, denies this.
17. 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 foregoing allegations, if true, would indicate that Whitt has been and continues to be engaged in activity in violation of the following Virginia Rules of Professional Conduct: Rules 1.1 and 1.3, in that he has abandoned his office with several client matters pending, leaving the clients unable to retrieve their files or ascertain the status of their cases, and he has failed to account to the clients the disposition of their funds; Rule 1.8, in that he acquired a personal interest in the outcome of litigation; Rule 1.15 in that he is misappropriating client funds entrusted to him in his capacity as an attorney and is failing to properly maintain the books and records required for fiduciary accountings; Rule 3.4, in that he has repeatedly failed to appear in court; and Rule 8.4 in that he has embezzled client funds and spent them in furtherance of his personal interests, that by his own admission, he has used and possessed cocaine, a Schedule II controlled substance, that he has pled guilty to appearing drunk in public, that he has falsely advised a court that he had not used cocaine, and has falsely represented his ability to practice in Texas. 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 5-103(A), 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.
Upon consideration of the foregoing, the Virginia State Bar, by counsel, submits that there is reasonable cause to believe that Walter Cornelius Whitt, Jr. is engaging in misconduct which is likely to result in injury to, or loss of property of, one or more of his clients or third parties, and that the continued practice of law by the said Walter Cornelius Whitt, Jr. poses an imminent danger to the public necessitating an expedited hearing to be conducted by this Board pursuant to Part 6, Section IV, Paragraph (13)(C)(5)(b) of the Rules of the Supreme Court of Virginia.
Furthermore, the Virginia State Bar, by counsel, requests that the Board issue an Order summarily suspending the license of Respondent Whitt until the Board enters its Order upon such hearing pursuant to Part 6, section IV, Paragraph (13)(C)(5)(iv) of the Rules of the Supreme Court of Virginia.
Edward L. Davis
Assistant Bar Counsel
Edward L. Davis
Assistant Bar Counsel
707 East Main Street
Richmond, Virginia 23219-2803
COMMONWEALTH OF VIRGINIA
CITY OF RICHMOND, to wit:
This day Edward L. Davis appeared before me and made oath that the foregoing statements are true to the best of his knowledge and belief.
My Commission expires___________________________, _________.