VIRGINIA:

BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

IN THE MATTER OF VSB Docket No. 00-010-2935
JAMES A. WINSTEAD


ORDER OF SUSPENSION

This matter came to be heard on September 17, 2001 upon an Agreed Disposition between the Virginia State Bar, the Respondent, James A. Winstead, and the Respondent's counsel, Larry W. Shelton, Esquire.

A duly convened panel of the Virginia State Bar Disciplinary Board consisting of Thaddeus T. Crump, Lay Member, Peter A. Dingman, Esq., Karen A. Gould, Esq., Roscoe B. Stephenson, III, Esq., and John A. Dezio, Esq., 1st Vice Chair, presiding, considered the matter by telephone conference. The Respondent, James A. Winstead, appeared with his counsel, Larry W. Shelton, Esq. Edward L. Davis, Assistant Bar Counsel, appeared on behalf of the Virginia State Bar.

Upon due deliberation, it is the unanimous decision of the Virginia State Bar Disciplinary Board to accept the Agreed Disposition. The Stipulations of Fact, Disciplinary Rule Violations, and Disposition agreed to 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, James A. Winstead (hereinafter Respondent or Mr. Winstead) was an attorney licensed to practice law in the Commonwealth of Virginia.

2. During 1997, complainant Esther Booker filed a claim for benefits with the Virginia Workers' Compensation Commission. A hearing was scheduled for October 21, 1997, however, Mrs. Booker's attorney withdrew. Mrs. Booker met with Mr. Winstead on October 10, 1997, and paid him $350.00 to assist her in the matter. She paid $50.00 on October 10 and the remaining $300.00 on October 14, 1997. The receipt indicates that the payment was "for legal services to be rendered to/for Mrs. Esther Booker by Mr. James A. Winstead and Associates."

3. On October 20, 1997, Mr. Winstead filed a motion to continue the hearing. Mr. Winstead endorsed the motion as counsel for the claimant "for this motion only." Counsel for the insurer opposed the motion, and the motion was denied. As a result, on October 21, 1997, Mr. Winstead filed a request to withdraw Mrs. Booker's claim without prejudice in order to enable her to refile her claim at a later date. The request that Mr. Winstead prepared referred to him as Mrs. Booker's attorney.


4. Thereafter, Mr. Winstead took no further action in the matter until the following year when, on October 23, 1998 he wrote to Dr. A. Jamali requesting copies of all medical reports relating to Mrs. Booker. He enclosed an authorization for release of medical information endorsed by Mrs. Booker. The letter, endorsed by Mr. Winstead, stated "This office represents Ms. Esther Booker in a claim for worker's compensation benefits."

5. On October 30, 1998, Mr. Winstead wrote to the Workers' Compensation Commission to request a new workers' compensation claim form for Mrs. Booker. His letter stated "I represent Ms. Booker who previously filed a claim for benefits but subsequently withdrew the same without prejudice." The Commission responded by letter, dated November 3, 1998, enclosing a new Claim for Benefits form.

6. Thereafter, Mr. Winstead did not give the new claim form to Mrs. Booker, and took no further action in the matter. According to Mrs. Booker, she inquired on occasion of Mr. Winstead about the status of the matter, and he would inform her that he was working on it. Subsequently, Mrs. Booker consulted another attorney and learned that the deadline for refiling her claim had expired. In response to Mrs. Booker's bar complaint, Mr. Winstead said that Mrs. Booker's $350.00 payment was only to help her obtain a continuance of her October 21, 1997 hearing, that she did not hire him to help her obtain workers' compensation benefits. He said, however, that having failed to deliver the new claim form to Mrs. Booker, that he had to accept the blame for her not refiling her claim.

II. DISCIPLINARY RULE VIOLATIONS

The parties agree that the aforementioned facts give rise to violations of the following Disciplinary Rules:

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.

(C)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.

III. DISPOSITION

Upon consideration of the Stipulations of Fact and Disciplinary Rule violations, the comments of counsel, and the Respondent's prior disciplinary record, the Board by unanimous decision accepts the agreed upon sanction. Accordingly, the Respondent's license to practice law in the Commonwealth of Virginia is hereby suspended for a period of one (1) year, with all but thirty (30) days of the said one year suspension suspended for a period of one (1) year (a net active suspension of his license to practice law for thirty (30) days) to begin sixty (60) days from the date that the Board enters this Order accepting the Agreed Disposition, subject to the following terms and conditions:

The Respondent, James A. Winstead, is to be placed on probation for a period of one (1) year, said period to begin the date that the Board enters an Order accepting this Agreed Disposition. Mr. Winstead will engage in no professional misconduct as defined by the Virginia Rules of Professional Conduct during such one-year probationary period. Any final determination of misconduct determined by any District Committee of the Virginia State Bar, the Disciplinary Board, or a three-judge court to have occurred during such period will be deemed a violation of the terms and conditions of this Agreed Disposition and will result in the imposition of the full one-year suspension of his license to practice law as an alternate sanction. The alternate sanction will not be imposed while Mr. Winstead is appealing any adverse decision which might result in a probation violation.


The imposition of the alternate sanction will not require a hearing before the Board on the underlying charges of misconduct stipulated herein if the Virginia State Bar discovers that the Respondent has violated any of the foregoing terms and conditions. Instead, the Virginia State Bar shall issue and serve upon the Respondent a Notice of Hearing to Show Cause why the alternate sanction should not be imposed. The sole factual issue will be whether the Respondent has violated the terms of this Agreed Disposition without legal justification or excuse. The imposition of the alternate sanction shall be in addition to any other sanctions imposed for misconduct during the probationary period.

 

Pursuant to Part Six, Section IV, Paragraph 13(K)(10) of the Rules of the Supreme Court, the Clerk of the Disciplinary System shall assess costs.

The court reporter who transcribed this proceeding is Valerie Schmidt, 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, James A. Winstead, by Certified Mail, Return Receipt Requested, at 308 Mapleshore Drive, Chesapeake, Virginia 23320-6920, his address of record with the Virginia State Bar, by regular mail to his counsel, Larry W. Shelton, Esq., at Shelton & Malone, P.C., Suite 1218, 500 East Main Street, Norfolk, Virginia 23510, 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 _______________________________________
JOHN A. DEZIO, FIRST VICE CHAIR