Virginia Lawyer Register - March 2009
In this issue:
- Sunsetting of SCOLAS
- Diversity Recommendations
- Amendment to Rule 1.17
- Legal Ethics Opinion 1848
- Payee Notification
View March Virginia Lawyer Register (PDF of mailed version with hyperlinks to additional materials)
|Respondent’s Name ||Address of Record||Action||Effective|
|* Timothy M. Barrett||Yorktown, VA||Revocation||August 1, 2008|
|Jennings T. Bird||Roanoke, VA||Public Reprimand||November 21, 2008|
|Steven Scott Biss||Petersburg, VA||Suspension — 1 year and 1 day||January 1, 2009 |
|Wade Trent Compton||Lebanon, VA||Suspension — 5 years w/terms||December 15, 2009|
|Johnnie Warren Tomlin||Roanoke, VA||Suspension — 5 days||February 23, 2009|
|Charles William Austin, Jr.||Richmond, VA||Revocation||January 23, 2009|
|Michael Jackson Beattie||Vienna, VA||Revocation||December 29, 2008|
|Adam Harrison Bryant||Austin, TX||Revocation||October 24, 2009|
|*** Ronald Marc Cohen||Arlington, VA||Revocation||November 21, 2008|
|Kelly Ralston Dennis||McLean, VA||Suspension — 6 months w/terms||February 20, 2009|
|** Walter Franklin Green IV||Harrisonburg, VA||Suspension — 18 months||August 22, 2008|
|Brian Merrill Miller||Fairfax, VA||Revocation||November 21, 2008|
|* Peter Paul Mitrano||Merrifield, VA||Revocation||December 12, 2008|
|John Lawson Moss||Tazewell, VA||Revocation||February 2, 2009|
|James Spaulding Powell||Golden, CO||Revocation||December 17, 2008|
|Peter Campbell Sackett||Lynchburg, VA||Public Reprimand w/terms||November 24, 2008|
|Uzair Mansoor Siddiqui||Manassas, VA||Revocation||January 23, 2009|
|Lindsey Owen Sutherland||Fairfax, VA||Suspension — 30 Days||December 12, 2008|
|Christopher J. Collins||Richmond, VA||Public Dismissal de Minimis||December 4, 2008|
|John O. Iweanoge||Washington, DC||Public Admonition||December 17, 2008|
|Judy Raye Moats||Fairfax, VA||Public Reprimand||December 15, 2008|
|Respondent’s Name||Address of Record||Effective Date|
|Alfred M. Tripp||Norfolk, VA||November 21, 2008|
|Suspension – Failure to Pay Disciplinary Costs|
|Respondent’s Name||Address of Record||Effective Date||Lifted|
|Jefrey Greg Booth||Norfolk, VA||December 18, 2008||January 5, 2009|
|Richard Alan Counts||Johnson City, TN||December 11, 2008|
|Robert Edward Mittendorff||Washington, DC||December 16, 2008 |
|Nazanin Malekalketab||Nasri Arlington, VA||December 16, 2008|
|Bernadette Wilbon O’Neal||Alexandria, VA||December 16, 2008|
|Andrew Trigg Sanders Jr.||Richmond, VA|
|*Respondent has noted an appeal with the Supreme Court of Virginia.|
|**Supreme Court of Virginia granted stay of suspension pending appeal.|
|***Respondent withdrew the appeal.|
The following are summaries of disciplinary actions for violations of the Virginia Rules of Professional Conduct (RPC) (Rules of the Supreme Court of Virginia, Part 6, § II, eff. Jan. ñ, 2000) or another of the Supreme Court rules (Rules). Copies of complete disciplinary orders are available at the Web link provided with each summary or by contacting the Virginia State Bar Clerk’s Office at (804) 775-0539 or email@example.com. VSB docket numbers are provided.
On September 23, 2008, Mr. Barrett filed an appeal of the following case with the Supreme Court of Virginia.
On August 1, 2008, a three-judge panel of the York County Circuit Court revoked Timothy Martin Barrett’s license to practice law for violating a professional rule that governs meritorious claims and contentions. Mr. Barrett repeatedly made frivolous pro se arguments to the Grayson County Circuit Court and to the Virginia Court of Appeals in arguing that as a noncustodial parent he had no duty to support his minor children. In revoking Mr. Barrett’s license, the court considered his record of litigation misconduct, which led to two previous license suspensions. RPC 3.1
On November 21, 2008, a three-judge panel in the Roanoke County Circuit Court imposed a public reprimand on Jennings T. Bird for violating a professional rule that governs fairness to opposing party and counsel. Mr. Bird released a witness in a custody dispute from a subpoena issued by opposing counsel. This was an agreed disposition. RPC 3.4(a)
On October 17, 2008, a three-judge panel of the Chesterfield County Circuit Court imposed a suspension of one year and one day on Steven Scott Biss, effective January 1, 2009. In a corporate and securities matter, he violated professional rules that govern competence, scope of representation, and misconduct that involves deliberately wrongful acts that reflect adversely on his fitness to practice. RPC 1.1; 1.2(c); 8.4(b)
On December 15, 2008, a three-judge panel of the Dickenson County Circuit Court suspended Wade Trent Compton’s license to practice law for five years with terms for violating professional rules that govern conflict of interest and misconduct that involves a criminal or deliberately wrongful act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer. Mr. Compton stipulated in an agreed disposition that he engaged in sexual conduct with clients while employed at a licensed legal aid society. RPC 1.7(a)(2); 8.4(b)
On January 29, 2009, a three-judge panel of the City of Roanoke Circuit Court suspended Johnnie Warren Tomlin’s license for five days, effective February 23, 2009, for violating the professional rule that governs misconduct by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness to practice. Without his wife’s knowledge, Mr. Tomlin signed her name to a special power of attorney, which he used to purchase a beach house and obtain a mortgage. This was an agreed disposition of misconduct charges. RPC 8.4(c)
06-031-0669, 07-031-2196, 09-031-075999
On January 23, 2009, the Virginia State Bar Disciplinary Board revoked Charles William Austin Jr.’s license to practice law. In an affidavit consenting to the revocation, Mr. Austin admitted to the material facts of allegations in three pending misconduct cases and said he could not defend himself if disciplinary charges were prosecuted. While representing clients in two actions for securities fraud, he told the clients that he had filed their complaints when he had not, and he made other misrepresentations. In a third case, he took funds he was not entitled to from a monetary settlement that should have been held in trust. Rules Part 6, §IV, ¶13.L
06-051-3317, 07-051-1351, 07-051-1867, 07-051-2331
On December 29, 2008, the Virginia State Bar Disciplinary Board revoked Michael Jackson Beattie’s license to practice law. In consenting to the revocation, Mr. Beattie admitted that he had violated disciplinary rules that govern competence, diligence, communication, disregarding court rules or orders, disruptive conduct toward tribunal, and supervision of nonlawyer assistants. The misconduct occurred in a civil representation and in appeals of cases that involved a complaint of workplace discrimination, workers’ compensation benefits, and an employee discharge. RPC 1.1; 1.3(a); 1.4(a),(b); 1.16(d)(e); 3.4(d); 3.5(f); 5.1(c)
On October 24, 2008, the Virginia State Bar Disciplinary Board revoked Adam Harrison Bryant’s license to practice law. He was convicted in the U.S. District Court for the District of Columbia of engaging in interstate commerce for the purpose of engaging in illicit sexual contact and of enticing a child or minor, both felony offenses. Mr. Bryant’s license was suspended October 2, 2008, pending the disciplinary hearing. Rules Part 6, §IV, ¶13.I.5
On January 20, 2009, Mr. Cohen filed an appeal of the following case with the Supreme Court of Virginia. He withdrew the appeal on February 20.
On November 21, 2008, the Virginia State Bar Disciplinary Board revoked Ronald Marc Cohen’s license to practice law. Mr. Cohen pled guilty in Arlington County Circuit Court to Internet solicitation of, and attempted indecent liberties with, a minor. His license has been suspended since July 24, 2008, pending a show cause hearing. Rules Part 6, §IV, ¶13.I.5.b
07-051-064900, 07-051-070590, 08-051-072502, 08-051-072990, 08-051-074032
On January 23, 2009, the Virginia State Bar Disciplinary Board suspended Kelly Ralston Dennis’s license to practice law for six months with terms, effective February 20, 2009. Mr. Dennis violated professional rules that govern diligence, communication, and safekeeping property. The violations occurred in five cases in which he failed to deposit clients’ fees into his trust account, as the professional rules require. The terms include unannounced inspections of his accounts by the Virginia State Bar for two years. RPC 1.3(a); 1.4(a),(b); 1.15(a)(1)(2),(c)(3)
05-070-4678, 06-070-0739, 06-070-2089, 06-070-2259
On August 25, 2008, Mr. Green filed an appeal of the following case with the Supreme Court of Virginia. On November 20, 2008, an amended notice of appeal was filed. On December 12, 2008, the Court granted a stay of suspension pending the appeal.
On August 22, 2008, the Virginia State Bar Disciplinary Board suspended Walter Franklin Green IV’s license to practice law for eighteen months for violating professional rules that govern communication, safekeeping property, and declining or terminating representation. The violations occurred during Mr. Green’s representations in a criminal matter and a lawsuit against an insurance company. Two cases against Mr. Green were dismissed. RPC 1.4(a),(b),(c); 1.15(a)(2); 1.16(d)(2)
07-053-0803, 07-053-1613, 07-053-2491, 07-053-2536
On November 21, 2008, the Virginia State Bar Disciplinary Board revoked Brian Merrill Miller’s license to practice law. He admitted that in four cases he had violated professional rules that govern diligence, communication, safekeeping property, declining or terminating representation, bar administration and disciplinary matters, and misconduct that reflects adversely on fitness to practice. Mr. Miller abandoned his practice and failed to respond to the VSB investigation of the complaints. He consented to the revocation. RPC 1.3(a),(b),(c); 1.4(a); 1.15(c)(1),(3),(4); 1.16 (d),(e); 8.1(c); 8.4(b),(c)
On January 20, 2009, Mr. Mitrano filed an appeal of the following case with the Supreme Court of Virginia.
On December 12, 2008, the Virginia State Bar Disciplinary Board revoked Peter Paul Mitrano’s license to practice law, based on his disbarment by the District of Columbia Court of Appeals. Should he apply for reinstatement in Virginia, in addition to the usual conditions he must also prove that he paid restitution to a client of $241,336.59, less any amount he can prove he was entitled to. Mr. Mitrano’s Virginia license was suspended on August 22, 2008, pending the December 12 hearing. Rules Part 6, §IV, ¶13(I)(7)
07-102-071016, 07-102-071189, 08-102-071564, 08-102-072295, 08-102-072297, 08-102-072416, 08-102-073045, 08-102-073116, 08-102-075544
On February 2, 2009, the Virginia State Bar Disciplinary Board revoked John Lawson Moss’s license to practice law for violating professional rules that govern competence; diligence; communication; safekeeping property, including record keeping requirements and accounting procedures; delivery of former client’s file; and misconduct that reflects adversely on a lawyer’s honesty, trustworthiness, or fitness to practice. In consenting to the revocation, Mr. Moss admitted to misconduct charges in nine pending disciplinary cases. In six of the cases, he failed to deposit client fees in his trust account, as the professional rules require. RPC 1.1; 1.3(a),(b),(c); 1.4(a),(b); 1.15(a)(1),(2), (c)(3),(4), (d)(1)(i-iv), (2)(i-iii), (e)(1)(i-v), (f)(2), (4)(i)(ii), (5)(i-iii), (6); 1.16(e); 8.4(b),(c)
On December 17, 2008, the Virginia State Bar Disciplinary Board revoked James Spaulding Powell’s license to practice law. In his consent to the revocation, Mr. Powell admitted that a client had given him money to settle a matter with the Internal Revenue System, but the check Mr. Powell issued to the IRS on the client’s behalf was returned for insufficient funds. He also admitted that, after a VSB suspension in 2006, he had failed to notify a client of the suspension. Rules Part 6, §IV, ¶13.L
On November 25, 2008, the Virginia State Bar Disciplinary Board imposed a public reprimand with terms on Peter Campbell Sackett for violating professional rules that govern diligence and safekeeping property. The misconduct occurred in connection with a real estate transaction. Mr. Sackett must hire a certified public accountant to bring his accounts into compliance. This was an agreed disposition. RPC 1.3(a); 1.15(c)(3), (e)(1)(i-v), (f)(4)(i),(ii), (5)(i-iii), (6)
On January 23, 2009, the Virginia State Bar Disciplinary Board revoked Uzair Mansoor Siddiqui’s license to practice law for violating professional rules that govern diligence; communication; safekeeping property, including recordkeeping; declining or terminating representation, including delivering a former client’s file; and bar admission and disciplinary matters. In consenting to the revocation, Mr. Siddiqui admitted that, in a domestic relations matter and a bankruptcy case, he had failed to communicate with clients and had not cooperated with the VSB investigation. In the bankruptcy case, he failed to deposit a client’s fee in his trust account, as the professional rules require. RPC 1.3(a),(b); 1.4(a); 1.15(a)(2), (c)(3), (e)(1) (i-v); 1.v6(d),(e); 8.1(c)
On December 12, 2008, the Virginia State Bar Disciplinary Board suspended Lindsey Owen Sutherland’s license to practice law for thirty days for violating professional rules that govern competence, diligence, communication, and declining or terminating representation. The cases involved a personal injury representation and a debt collection matter. RPC 1.1; 1.3(a); 1.4(a),(b),(c);1.16(d)
On December 4, 2008, the Virginia State Bar Third District-Section III Committee imposed a public dismissal de minimis on Christopher J. Collins for violating a professional rule that governs misconduct by committing a criminal or deliberately wrongful act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness to practice law. The subcommittee determined that, by taking photographs of a client whom he was defending in
a criminal matter, Mr. Collins violated the foundation of trust between an attorney and client. RPC 8.4(b)
On December 17, 2008, a Virginia State Bar Fourth District-Section I Subcommittee issued a public admonition to John O. Iweanoge for violating professional rules that govern competence, communication, and fee sharing. The discipline is in response to a public informal admonition issued to Mr. Iweanoge by the District of Columbia for misconduct in his handling of a personal injury lawsuit he filed in the Circuit Court of Prince George’s County, Maryland. This was an agreed disposition. RPC 1.1; v.4(a); 1.5(e)(1),(2),(3),(4)
On December 15, 2008, a Virginia State Bar Fifth District-Section II Subcommittee imposed a public reprimand on Judy Raye Moats for violating the professional rule that governs communication. In a real estate dispute, Ms. Moats failed to respond to the client’s inquiries in a timely manner. This was an agreed disposition. RPC 1.3(a),(b),(c); 1.4(a); 8.1(c)
The following proposals are published for public comment. All comments should be submitted in writing to Karen A. Gould, Executive Director, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, VA 23219, no later than end of business on the day of deadline.
Proposed Amendments to Bylaws of the Virginia State Bar and Council, Part II, Article VIII, §5; Rules of Court, Part 6, §IV, ¶10;
and Rules of Court, Part 6, §II, Rule 7.2
Deadline for comment: May 26, 2009
Upon the recommendation of Ethics Counsel, and with the approval of the Standing Committee on Lawyer Advertising and Solicitation (SCOLAS) and the Standing Committee on Legal Ethics, the Virginia State Bar is proposing that SCOLAS be sunsetted.
Details can be found at http://www.vsb.org/site/regulation/scolas-sunset
Proposed Amendments to Virginia State Bar Mission Statement; Rules of Court, Part 6, §IV, ¶9; Rules of Court, Part 6, §IV, ¶5; Bylaws of Council, Part II, Article VI, §1; Proposed Bylaws for Diversity Conference
Deadline for comments: May 26, 2009
The Virginia State Bar is seeking public comment on proposals that would broaden the agency’s responsibilities to include promotion of diversity in the legal profession.
The proposals, recommended by the Diversity Task Force, would amend the bar’s mission statement, establish a Diversity Conference, and designate a new seat on the VSB Council and Executive Committee for the conference’s chair.
The council will consider the proposals at its meeting on June 18, 2009, in Virginia Beach.
The Diversity Task Force, appointed by VSB President Manuel A. Capsalis, convened for the first time on July 28, 2008. It is chaired by former VSB president Joseph A. Condo.
The proposals are:
- To amend the VSB Mission Statement to add a diversity component:
Proposed Addition to VSB Mission Statement
The mission of the Virginia State Bar, as an administrative agency of the Supreme Court of Virginia, is (1) to regulate the legal profession of Virginia; (2) to advance the availability and quality of legal services provided to the people of Virginia;
and(3) to assist in improving the legal profession and the judicial system .; and (4) to promote diversity in the administration of justice and the practice of law.
- To amend the powers of the Virginia State Bar Council to include a power to “encourage and promote diversity in the profession and the judiciary.” See Proposed Addition to Paragraph 9, Organization and Government of the VSB. See Proposed Addition to Paragraph 9, Organization and Government of the VSB.
- To establish a Diversity Conference with a mission to “(1) foster and encourage diversity in the admission to the bar and advancement in the legal profession and the judiciary; (2) serve as a catalyst for creating leadership and bar service opportunities in the legal profession in Virginia; and (3) work to ensure that the legal system is responsive to the legal needs of the people of Virginia.”
The conference’s members would include local or specialty bar associations, law schools, and individual lawyers. The conference would be governed by a board, with a budget approved annually by the VSB Budget and Finance Committee. The board would comprise twelve governors elected by the conference members, three — including at least one layperson — appointed by the VSB president, and up to three elected as nonvoting honorary members. See Proposed Bylaws, VSB Diversity Conference.
- To add an ex officio seat designated for the chair of the Diversity Conference on the VSB Council and its executive committee. The council at present consists of eighty members, including three officers, and the executive committee has twelve members. See Proposed Amendment to Paragraph 5, Organization and Government of the VSB. See Proposed Amendment to Paragraph 5, Organization and Government of the VSB. Also, Proposed Amendment to Article VI, VSB Council Bylaws.
Deadline for comments: April 13, 2009
Pursuant to Part Six: Section IV, Paragraph 10(c)(iii) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics is seeking public comment on a proposed amendment to Rule 1.17 of the Rules of Professional Conduct.Proposed Legal Ethics Opinion 1848
Deadline for comments: April 13, 2009
Pursuant to Part Six: Section IV, Paragraph 10(c)(iii) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics is seeking public comment on proposed advisory Legal Ethics Opinion 1848, Use of Credit Cards for Legal Services.
Details can be found at http://www.vsb.org/site/regulation/legal-ethics-opinion-1848
Deadline for comment: May 26, 2009
The Public Protection Task Force has recommended that the Virginia State Bar support a statute requiring payee notification in Virginia. The statute would require insurers paying third-party liability claims to notify claimants at the time they disburse settlement proceeds of $5,000 or more to the claimants’ attorneys. The purpose of the rule is to reduce the opportunity for a dishonest attorney or staff member to misuse or misappropriate the settlement funds.
It is common practice for insurance carriers to pay settlements with checks made payable jointly to the claimant and the claimant’s lawyer. The insurance carrier does not typically notify the claimant when it makes payment to the claimant’s lawyer or other representative. This process provides several opportunities for misdirection of the client’s funds, such as unauthorized settlement of the claim, forgery of the claimant’s signature on the settlement documents, forgery of the claimant’s endorsement on the check, and misappropriation of the claimant’s share of the proceeds.
A dishonest lawyer may successfully conceal the unauthorized settlement and misappropriation for several years and to be unable to restore the claimant’s funds when the loss is finally discovered. The defalcation may not be discovered until after the statute of limitations has run on the underlying claim, thus preventing the clients from filing suit and pursuing their claims. When these matters are finally discovered, they damage the reputation of all lawyers and shake the public’s confidence in the entire legal process.
The proposed statute is based on the American Bar Association Model Payee Notification Rule, one of ten model rules endorsed by the ABA Standing Committee on Client Protection. The model rule has been adopted in thirteen states. According to the ABA and contacts in those states, payee notification measures deter lawyer misconduct, protect clients, and benefit client protection funds. They have proven to be inexpensive public protection tools with very little burden on insurance companies or lawyers.
In October 2007, the VSB Council, by a vote of 54 to 7, rejected a similar payee notification proposal. A month later, a circuit court put Stephen T. Conrad’s Woodbridge law practice into receivership at the request of the VSB. The receiver documented more than $4 million stolen from hundreds of clients. To date, the VSB has paid more than a half million dollars in receivership expenses. The VSB Clients’ Protection Fund has begun considering petitions filed by Conrad’s clients. The reimbursable losses are expected to exceed the per-attorney limit on claims, which is 10 per cent of the total fund value — in Conrad’s case, $411,165.
As a result of these developments, VSB President Howard W. Martin Jr. asked the Public Protection Task Force to reconsider the issue of payee notification. After an additional year of study, the task force voted unanimously on January 15, 2009, to resubmit a revised payee notification proposal to the council.
Among the objections to settlement notification in 2007 was concern that insurance companies might communicate improperly with represented parties. In response, the task force limited the notice to a copy of the cover letter or other evidence of payment, sent at the time the payment is mailed to the claimant’s attorney.
The claimant’s notification would be mailed to the last address know to the insurance company, rather than an address provided by the attorney, to make diversion of the letter less likely.
Responding to complaints that payee notification unfairly singles out plaintiffs’ attorneys, the task force notes that special rules or statutes have been created to address problems that arise in many areas of law where there is a need to protect the public. Special requirements are imposed in practices that involve real estate, insurance defense, prosecution and defense of criminal cases, collections, and representation of publicly held companies.
While the task force acknowledged that settlement notification would not prevent theft by lawyers who are intent on stealing, it would be a valuable additional tool for deterring such behavior and detecting it more quickly.
Richard M. Mendelson, the receiver in the Conrad case, related a story that demonstrates how payee notification can work: Conrad represented a father and son who were involved in separate motor vehicle accidents. One received his settlement; the other was defrauded out of his.
Conrad settled both cases without the clients’ knowledge or consent. However, the carrier in the son’s case was based in Pennsylvania, which has a payee notification law. When the son received the notice from the insurer, he went to Conrad’s office, and Conrad wrote him a check from his attorney trust fund. The father, whose case involved an insurer not subject to payee notification, did not find out that he had been victimized until the Conrad receiver contacted him.
Details can be found at http://www.vsb.org/site/public/proposed-payee-notification-statute
The VSB’s Standing Committee on Legal Ethics issued the following LEO as final on February 2, 2009:
Legal Ethics Opinion 1846
Is It Ethical for a Lawyer to Become a Member of a Lead-Sharing Organization?
Details can be found at http://www.vacle.org/opinions/1846.htm