Publications

Virginia Lawyer Register - November 2010

Contents

In this issue:

Disciplinary Proceedings

Disciplinary Summaries

Approved Changes

Approved Ethics Opinions

Notices to Members

View November Virginia Lawyer Register (PDF of mailed version with hyperlinks to additional materials)


Disciplinary Proceedings

Respondent’s Name Address of RecordAction Effective Date
Circuit Courts
Hilton Gordon OliverVirginia Beach, VAPublic ReprimandSeptember 24, 2010
* Charles Lowenberg Pincus IIIVirginia Beach, VASuspension – 60 daysJuly 28, 2010
Disciplinary Board
James Anthony Bullard Jr.Richmond, VAPublic Reprimand w/TermsAugust 19, 2010
Michael Mitry Hadeed Jr.Alexandria, VASuspension – 2 yearsAugust 27, 2010
Dean Spiro KalivasSeattle, WARevocationJune 15, 2010
Kyle Cornelia LeftwichRichmond, VARevocationSeptember 16, 2010
Frederick Hope MarshRichmond, VASuspension – 3 yearsJanuary 1, 2011
Denis Joseph McCarthyBlackstone, VARevocationAugust 26, 2010
District Committees
Bennett Allan BrownFairfax, VA
Public Reprimand w/Terms 
Henry L. CarterOrange, VAPublic Dismissal De Minimis 
Charles William GittinsMiddletown, VA
Public Admonition w/Terms 
Daniele Eubanks HerndonWashington, DCPublic Reprimand w/Terms 
Harvey Latney  Jr.Richmond, VAPublic Dismissal for Exceptional Circumstances
 
Robert Charles Neeley Jr.Virginia Beach, VAPublic Reprimand w/Terms 
David O’Neil Prince
Richmond, VAPublic Admonition w/Terms 
Timothy James WallFredericksburg, VAPublic Reprimand  
Impairment Suspension
Effective Date
Gary Lance SmithWinchester, VAAugust 17, 2010
 
Suspension – Failure to Pay Disciplinary Costs
Effective DateLifted
Anthony Gerome Davis
Birmingham, ALOctober 5, 2010August 25, 2010
Crystal Anita Gist FisherWaldorf, MDAugust 10, 2010 
Walter Franklin Green IVHarrisonburg, VAOctober 5, 2010 
Jay Lawrence PickusRichmond, VAAugust 2, 2010 
John Lester Squires IIIRichmond, VAJuly 26, 2010
 
Timothy James WallFredericksburg, VAAugust 31, 2010 
Suspension – Failure to Comply with SubpoenaEffective DateLifted
Brian Gay
Virginia Beach, VASeptember 24, 2010
 
Denis Joseph McCarthyBlackstone, VAAugust 18, 2010 
*Supreme Court granted stay of suspension pending appeal.

 

Features

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. 1, 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 clerk@vsb.org. VSB docket numbers are provided.

Circuit Courts


Hilton Gordon Oliver
Virginia Beach, Virginia
09-022-079969
On September 24, 2010, a three-judge disciplinary panel in the Virginia Beach Circuit Court issued a public reprimand to Hilton Gordon Oliver for violating disciplinary rules that govern fairness to an opposing party or counsel and respect for rights of a third person. This was an agreed disposition of misconduct charges. RPC 3.4(j); 4.4
http://www.vsb.org/docs/Oliver-101110.pdf
———
Charles Lowenberg Pincus III
Virginia Beach, Virginia
09-021-076759
On August 10, 2010, the Supreme Court of Virginia granted a stay of the following suspension pending appeal.
Effective July 28, 2010, a three-judge court in the Circuit Court of Virginia Beach suspended Charles Lowenberg Pincus III’s license to practice law for sixty days for violating professional rules that govern fees and diligence. The misconduct occurred while he was serving as attorney-in-fact for an incarcerated client. RPC 1.3(a); 1.5(b)
http://www.vsb.org/docs/Pincus-092810.pdf

Disciplinary Board


James Anthony Bullard Jr.
Richmond, Virginia    
09-032-077894, 09-032-077767, 09-032-078765
Effective August 19, 2010, the Virginia State Bar Disciplinary Board imposed a public reprimand with terms on James Anthony Bullard Jr. for violating professional rules that govern diligence and communication. The misconduct occurred in his court-appointed representations on criminal appeals. This was an agreed disposition of misconduct charges. RPC 1.3(a); 1.4(a)
http://www.vsb.org/docs/Bullard-083110.pdf
———
Michael Mitry Hadeed Jr.
Alexandria, Virginia
10-000-077606
On August 27, 2010, the Virginia State Bar Disciplinary Board suspended Michael Mitry Hadeed Jr.’s license to practice law for two years, based on his 2009 conviction in the U.S. District Court for the Eastern District of Virginia, Alexandria Division, of conspiracy to commit immigration fraud and other charges. Rules Part 6, §IV, ¶ 13-22 A.
http://www.vsb.org/docs/Hadeed-102210.pdf
———
Dean Spiro Kalivas
Seattle, Washington
06-053-3184
Effective June 15, 2010, the Virginia State Bar Disciplinary Board revoked Dean Spiro Kalivas’s license to practice law. The board found he had failed to comply with professional rules that govern fees, safekeeping property, unauthorized practice of law, firm names and letterheads, and misconduct that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness to practice. The misconduct included trust account violations. This was an agreed disposition of disciplinary charges. RPC 1.5(c); 1.15(a)(1),(2); 5.5(a)(1); 7.5(a); 8.4(b)
http://www.vsb.org/docs/Kalivas-062510.pdf
———
Kyle Cornelia Leftwich
Richmond, Virginia
10-033-084258
On September 16, 2010, the Virginia State Bar Disciplinary Board revoked Kyle Cornelia Leftwich’s license to practice law. In consenting to the revocation, Ms. Leftwich acknowledged the truth of pending charges that she had violated disciplinary rules that govern dishonest conduct that reflects on a lawyer’s fitness to practice. She acknowledged she had diverted legal fees for her own use, rather than delivering the money to the law firm as she was contractually obliged to do. Rules Part 6, § IV, ¶ 13-28
http://www.vsb.org/docs/Leftwich-102210.pdf
———
Frederick Hope Marsh
Richmond, Virginia
09-032-077180, 09-032-076013, 08-032-075404
On September 29, 2010, the Virginia State Bar Disciplinary Board suspended Frederick Hope Marsh’s license to practice law for three years, effective January 1, 2011, for violating professional rules that govern diligence, communications, and conflicts of interest that include prohibited transactions. This was an agreed disposition of misconduct charges. RPC 1.3(a); 1.4(a); (1.7(a)(1),(2); 1.8(h)
http://www.vsb.org/docs/Marsh-101210.pdf
———
Denis Joseph McCarthy
Blackstone, Virginia
09-031-076135, 09-031-077245, 09-031-079279, 10-031-080381, 10-031-081999, 10-031-082265, 10-000-082305
On August 26, 2010, the Virginia State Bar Disciplinary Board revoked Denis Joseph McCarthy’s license to practice law. In consenting to the revocation, Mr. McCarthy acknowledged the material facts of disciplinary complaints that are pending against him and acknowledged that the bar could prove the allegations against him. Rules Part 6, § IV, ¶ 13-28
http://www.vsb.org/docs/McCarthy-090910.pdf


District Committees


Bennett Allan Brown
Fairfax, Virginia
09-051-078236
On July 9, 2010, the Virginia State Bar Fifth District Committee, Section I, imposed a public reprimand with terms on Bennett Allan Brown for failing to respond to a lawful demand for information from the bar during an investigation of a disciplinary complaint. RPC 8.1(c)
http://www.vsb.org/docs/Brown-Bennett_08-12-10.pdf
———
Henry L. Carter
Orange, Virginia
08-070-074634
On July 20, 2010, the Virginia State Bar Seventh District Committee issued a public dismissal de minimis sanction to Henry L. Carter for violating professional rule that governs conflict of interest: general rule. RPC 1.7(b)(1-4)
http://www.vsb.org/docs/Carter-082410.pdf
———
Charles William Gittins
Middletown, Virginia
10-070-082364
On September 3, 2010, a Virginia State Bar Seventh District Subcommittee issued a public admonition with terms to Charles William Gittins for violating a professional rule that governs fairness to opposing party and counsel. The Virginia sanction was in response to a finding by the staff judge advocate to the Commandant of the Marine Corps, Rules Counsel, that Mr. Gittins had violated a rule by engaging in conduct prejudicial to the administration of justice. RPC 3.4
http://www.vsb.org/docs/Gittins-102210.pdf
———
Daniele Eubanks Herndon
Washington, D.C.
11-041-084426
On September 22, 2010, a Virginia State Bar Fourth District-Section I Subcommittee issued a public reprimand with terms to Daniele Eubanks Herndon for violating professional rules that govern knowingly making a false statement of material fact and conduct that reflects adversely on a lawyer’s fitness to practice law. Ms. Herndon falsely certified that she had attended a mandatory continuing legal education teleconference. This was an agreed disposition of misconduct charges. RPC 8.1(a); 8.4(c)
http://www.vsb.org/docs/Herndon-100710.pdf
———

Harvey Latney Jr.
Richmond, Virginia
09-033-078040
On September 9, 2010, a Virginia State Bar Third District Subcommittee issued a public dismissal for exceptional circumstances sanction to Harvey Latney Jr. for violating disciplinary rules that govern safekeeping property and responsibilities regarding nonlawyer assistants. Due to embezzlement by his former assistant, Mr. Latney failed to pay funds he was holding from a special commissioner’s sale of real estate. This was an agreed disposition of misconduct charges. RPC 1.15(e)(1)(i-v),(2)(i-iii), (f)(1)(i),(ii),(iii)(a-c),(iv),(iv),(v),(vi)(2-4)(i),(ii),(5)(i-iii),(6); 5.3(a), (b), (c)(1),(2)
http://www.vsb.org/docs/Latney-090910.pdf
———
Robert Charles Neeley Jr.
Virginia Beach, Virginia
10-022-081894
On August 30, 2010, a Virginia State Bar Second District-Section II Subcommittee imposed a public reprimand with terms on Robert Charles Neeley Jr. for violating professional rules that govern diligence and communication. This was an agreed disposition of misconduct charges. RPC 1.3(a); 1.4(a)
http://www.vsb.org/docs/Neeley-090910.pdf
———
David O’Neil Prince
Richmond, Virginia
08-032-074356
On August 2, 2010, a Virginia State Bar Third District Subcommittee imposed a public admonition with terms on David O’Neil Prince for violating disciplinary rules that govern diligence, fees, safekeeping property, declining or terminating representation, and a deliberately wrongful act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness to practice. The subcommittee ordered Mr. Prince to refund a portion of the client’s fees. This was an agreed disposition of disciplinary charges. RPC 1.3(a),(c); 1.5(a)(1-8); 1.15(c)(3),(4), (d)(2)(iii), (e)(1)(i-iii),(v), (f)(2),(6); 1.16(a)(1), (c),(d); 8.4(a),(b)
http://www.vsb.org/docs/Prince-082410.pdf
———
Timothy James Wall
Fredericksburg, Virginia
08-060-074935
On August 11, 2010, a Virginia State Bar Sixth District Subcommittee issued a public reprimand to Timothy James Wall for violating disciplinary rules that govern communication, safekeeping property, declining or terminating representation, and failing to respond to a lawful demand for information from a disciplinary authority. The misconduct occurred when a client attempted to obtain a refund of unearned fees after a divorce representation. This was an agreed disposition of misconduct charges. RPC 1.4(a); 1.15(c)(4); 1.16(d); 8.1(c)
http://www.vsb.org/docs/Wall-100710.pdf
———

Approved Rule Changes


Rules of Professional Conduct 4.2, Comment [5]
Communication with Persons Represented by Counsel
Deadline for comment: September 15, 2010
Effective: November 1, 2010

The Supreme Court of Virginia approved the Virginia State Bar’s Rule 4.2 Task Force’s proposed amendment to Comment [5] of Rule 4.2 of the Rules of Professional Conduct to address the situation in which a defendant who is in custody, formally charged, and represented by counsel waives his rights under Miranda v. Arizona and wants to give a statement to a law enforcement officer without his counsel present.

The question addressed by the task force was: “If the law enforcement officer seeks legal advice from a commonwealth’s attorney regarding whether the officer may obtain a statement from the defendant under these circumstances, may the commonwealth’s attorney advise the police officer without violating Rule 4.2?”

Rule 4.2 had previously prohibited a lawyer from communicating with a person the lawyer knew to be represented by counsel unless the counsel for the represented person consented or the communication was authorized by law.

Rule 8.4(a) states that a lawyer cannot violate a professional rule through the agency or actions of another. A reading of the rule led to the conclusion that the commonwealth’s attorney could not ethically advise law enforcement officers to proceed with the custodial interview without notice to or consent from the accused’s lawyer.

The task force determined that the defendant’s waiver of his right to have his lawyer present when the accused desires to talk to a law enforcement officer presents a constitutional legal issue on which the commonwealth’s attorney should be permitted to give advice without fear of violating the cited rules. The amendment to Rule 4.2, Comment [5] clarifies that the commonwealth’s attorney can advise the law enforcement officer regarding the legality of an interrogation or the legality of other investigative conduct. The amendment to Comment [5] does not, however, authorize the commonwealth’s attorney to script or mastermind the police’s interrogation of the defendant.

Details: http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/rule-42-amendment-addressing-defendant-waiving-rights/


Final Legal Ethics Opinions


Legal Ethics Opinion 1802
Advising Clients on the Use of Lawful Undisclosed Recording
Details: http://www.vacle.org/opinions/1802.htm

Legal Ethics Opinion 1849
The Ethical Issues of Lawyers Testifying Under Oath in Court to Debts Owed by the Client
Details: http://www.vacle.org/opinions/1849.htm

Legal Ethics Opinion 1854
Settlement Negotiations in a Criminal Case
Details: http://www.vacle.org/opinions/1854.htm

Attorneys May Submit Ethics Questions by E-mail

The Virginia State Bar now responds to lawyer’s ethics questions submitted by e-mail, as well as telephone.
E-mail: Go to http://www.vsb.org/site/regulation/ethics/ and click the blue box, “E-mail Your Ethics Questions.”
Phone: Call (804) 775-0564 and leave a voice mail. Your call will be returned.
The ethics staff tries to respond to questions on the same business day they are received.

Highlights of the Virginia State Bar Council Meeting October 15, 2010

At its meeting on October 15, 2010, in Charlottesville, the Virginia State Bar Council heard the following significant reports and took the following actions:

UPL Prosecution
The council voted 64 to 1 to seek legislation in the 2011 General Assembly to extend the statute of limitation on prosecution of unauthorized practice of law and to increase the penalties for committing UPL, a misdemeanor under current law. Under the proposal, Virginia Code § 19.2-8 would be amended to allow prosecution within two years of the complainant’s discovery of the offense. In addition, restitution could be ordered in a criminal conviction under proposed amendments to § 54.1-3904, and, in a civil proceeding to enjoin unauthorized practice, a complainant could recover attorney fees, costs, damages, and civil penalties, including treble or punitive damages. The proposed statutory changes will be sent to the Supreme Court of Virginia for its consideration.

MCLE Rule Proposal Approved
The council approved proposed amendments to Rules of Virginia Supreme Court, Part 6, § IV, ¶ 17, that would increase the Mandatory Continuing Legal Education Board quorum needed to change MCLE regulations. The proposal also would give the council the authority to suspend a new or amended MCLE regulation until the Supreme Court has considered it. Under the proposal, approval by seven members of the twelve-member MCLE Board would be required for a regulation change to pass. A two-thirds vote would be required for the council to reject implementation of a regulation pending review by the Court. Proponents of the council-override measure said it would give the council input while maintaining the MCLE Board’s independence. The proposal was passed by a vote of 58 to 6. It will be sent to the Court for its consideration.

Paragraph 13 Proposals Approved
The council approved proposed changes to Rules of Virginia Supreme Court, Part 6, § IV, ¶ 13, that would establish procedural authority for regulating multijurisdictional practice by lawyers who are not members of the Virginia State Bar, but who are authorized to conduct a limited practice here. The proposed changes also would incorporate in Paragraph 13 requirements for persons serving as members of a district committee, the Disciplinary Board, and the Committee on Lawyer Discipline. These requirements are also found in the Bylaws of the Virginia State Bar. The proposals will be sent to the Court for its consideration.

Resolutions
The council approved without dissent resolutions honoring Leroy Rountree Hassell Sr. for his accomplishments during eight years as Virginia’s Chief Justice, and Cynthia Dinah Fannon Kinser on her election as Chief Justice for 2011-15.

Nominations Sought for District Committee Vacancies

The Standing Committee on Lawyer Discipline calls for nominations for district committee vacancies to be filled by the Virginia State Bar Council in June. Note that some of the vacancies may not become available because some incumbent members are eligible for reappointment.
To review qualifications for eligibility, see Rules of the Supreme Court of Virginia, Part 6, Section IV, Paragraph 13-4 – Establishment of District Committees, specifically 13-4.E (Qualifications of Members) and 13-4.F (Persons Ineligible for Appointment).

  • First District Committee: 2 attorney vacancies (one of whom is eligible for reappointment). 2 nonattorney vacancies (one of whom is eligible for reappointment). The vacancies are to be filled by members from the 1st, 3rd, 5th, 7th, or 8th judicial circuits.
  • Second District Committee, Section I: 1 attorney vacancy (who is eligible for reappointment). 3 nonattorney vacancies (one of whom is eligible for reappointment). The vacancies are to be filled by members from the 2nd or 4th judicial circuits.
  • Second District Committee, Section II: 4 attorney vacancies (3 of whom are eligible for reappointment). 1 nonattorney vacancy (who is eligible for reappointment). The vacancies are to be filled by members from the 2nd or 4th judicial circuits.
  • Third District Committee, Section I: 1 attorney vacancy; 3 nonattorney vacancies (1 of whom is eligible for reappointment). The vacancies are to be filled by members from the 6th, 11th, 12th, 13th, or 14th judicial circuits.
  • Third District Committee, Section II: 2 attorney vacancies; 1 nonattorney vacancy. The vacancies are to be filled by members from the 6th, 11th, 12th, 13th, or 14th judicial circuits.
  • Third District Committee, Section III: 3 attorney vacancies (2 of whom are eligible for reappointment); 2 nonattorney vacancies (1 of whom is eligible for reappointment). The vacancies are to be filled by members from the 6th, 11th, 12th, 13th, or 14th judicial circuits.
  • Fourth District Committee, Section I: 3 attorney vacancies; 1 nonattorney vacancy (who is eligible for reappointment). The vacancies are to be filled by members from the 17th or 18th judicial circuits.
  • Fourth District Committee, Section II: 3 attorney vacancies (1 of whom is eligible for reappointment); 1 nonattorney vacancy (who is eligible for reappointment). The vacancies are to be filled by members from the 17th or 18th judicial circuits.
  • Fifth District Committee, Section I: 2 attorney vacancies (1 of whom is eligible for reappointment); 1 nonattorney vacancy (who is eligible for reappointment). The vacancies are to be filled by members from the 19th or 31st judicial circuits.
  • Fifth District Committee, Section II: 3 attorney vacancies; 2 nonattorney vacancies (1 of whom is eligible for reappointment). The vacancies are to be filled by members from the 19th or 31st judicial circuits.
  • Fifth District Committee, Section III: 2 attorney vacancies; 1 nonattorney vacancy (who is eligible for reappointment). The vacancies are to be filled by members from the 19th or 31st judicial circuits.
  • Sixth District Committee: 2 attorney vacancies; 1 nonattorney vacancy (who is eligible for reappointment). The vacancies are to be filled by members from the 9th or 15th judicial circuits.
  • Seventh District Committee: 1 attorney vacancy (who is eligible for reappointment); 2 nonattorney vacancies. The vacancies are to be filled by members from the 16th, 20th, or 26th judicial circuits.
  • Eighth District Committee: 2 attorney vacancies (1 of whom is eligible for reappointment); 2 nonattorney vacancies (1 of whom is eligible for reappointment). The vacancies are to be filled by members from the 23rd or 25th judicial circuits.
  • Ninth District Committee: 3 attorney vacancies (2 of whom are eligible for reappointment); 2 nonattorney vacancies (1 of whom is eligible for reappointment). The vacancies are to be filled by members from the 10th, 21st, 22nd, or 24th judicial circuits.
  • Tenth District Committee, Section I: 3 attorney vacancies (1 of whom is eligible for reappointment). The vacancies are to be filled by members from the 27th, 28th, 29th, or 30th judicial circuits.
  • Tenth District Committee, Section II: 3 attorney vacancies; 2 nonattorney vacancies. The vacancies are to be filled by members from the 27th, 28th, 29th, or 30th judicial circuits.

Nominations, along with a brief résumé, should be sent by April 30, 2011, to Gwen Evans, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, VA 23219-2800

MCLE Board Postpones Effective Date of Amended Regulations

The Mandatory Continuing Legal Education Board has postponed until November 1, 2011, the implementation of amended regulations, including a requirement that four of the twelve hours of annual MCLE be live and interactive.
For the coming year, all twelve hours can be either prerecorded or live and interactive. But as of November 1, 2011, the amended MCLE Regulations 102, Requirements and Computations, requires:

      (a)    … Of the twelve credit hours required, no more than eight (8) may be earned from prerecorded courses.

http://www.vsb.org/docs/MCLE-regs-eff-110110.pdf
The MCLE Board decided on July 21, 2010, that more time is needed for lawyers and MCLE providers to clearly understand the regulations before they go into effect.

Reminder: MCLE Certification Can Be Filed Online

You can certify your Mandatory Continuing Legal Education classes attendance online by logging in to the VSB Member Portal at https://member.vsb.org/vsbportal/.
The Form 1 End of Year Report for 2010 compliance was mailed November 8 and is due back to the Virginia State Bar by December 15 from those who do not certify online. Instructions for Form 1 completion are posted at http://www.vsb.org/docs/mcle-form1.pdf. For more information, see http://www.vsb.org/site/members/mcle-courses/.

New Virginia Appellate Rules Are in Effect

Amendments to Parts 5 and 5A of the Rules of the Supreme Court of Virginia are among rule changes that went into effect July 1, 2010. The amendments affect appellate procedure in the Supreme Court of Virginia and the Virginia Court of Appeals. The current rules are posted on the Virginia’s Judicial System website at http://www.courts.state.va.us/courts/scv/rulesofcourt.pdf.

Your Virginia State Bar Card

Beginning in the 2010-11 fiscal year, Virginia State Bar members with active, active/Virginia corporate counsel, associate, military legal assistance attorney, judicial, and emeritus status will receive permanent bar cards.

Associate members will be sent a permanent bar card after they pay dues for 2010-11.

After paying their dues for 2010-11, active, active/VCC, active/MLAA, and emeritus members will receive temporary cards with an expiration date of December 31, 2010. In December, the bar will send them permanent cards with no expiration date. VSB members in other categories — corporate counsel registrants, retired, and disabled — no longer will be issued bar cards.

A member who changes status to active, associate, or emeritus will be sent the appropriate bar card at no charge. Replacement cards will be provided for a $10 fee.

Questions about bar cards should be addressed to the VSB Membership Department at membership@vsb.org or (804) 775-0530.

Virginia Lawyer Referral Service

Attorneys are needed throughout Virginia to provide half-hour legal consultations. The Virginia Lawyer Referral Service handles the paperwork. For information, or to apply online, see http://www.vlrs.net.

Have You Moved? Keeping in Touch with the VSB

To check or change your address of record with the Virginia State Bar, take the following steps: Go to the VSB Member Login at https://member.vsb.org/vsbportal/. Go to “Membership Information,” where your current address of record is listed. To change, go to “Edit Official Address of Record,” click the appropriate box, then click “next.” You can type your new address, phone numbers, and e-mail address on the form. Contact the VSB Membership Department (membership@vsb.org or (804) 775-0530) with questions.

Save the Date

Indigent Defense Seminar
The Seventh Annual “Indigent Criminal Defense: Advanced Skills for the Experienced Practitioner” seminar will take place April 29, 2011, in Richmond, Weyers Cave, and Wytheville.
The continuing legal education program is open without charge to public defenders and attorneys who accept court-appointed representations. Details and registration forms will be published in early January.