Publications

Virginia Lawyer Register - November 2011

Contents

In this issue:

Disciplinary Proceedings

Disciplinary Summaries

Final Ethics Opinions

Proposals For Public Comment

Notices to Members

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


Disciplinary Proceedings

 

Respondent’s Name Address of Record Action Effective Date
Circuit Courts
Raymond Lewis Palmer Richmond, VA Public Dismissal for Exceptional Circumstances August 25, 2011
    Public Admonition w/Terms August 25, 2011
Benjamin Thomas Reed Norfolk, VA Public Reprimand w/Terms September 12, 2011
Robert Henry Smallenberg Ashland, VA Suspension w/Term – 30 Days August 27, 2011
 
Disciplinary Board
Eileen Marie Addison Yorktown, VA Public Reprimand August 8, 2011
Stephen Alan Bamberger Dumfries, VA Public Reprimand August 23, 2011
Tracey Suzann Foughty-Deavers Fairfax, VA Revocation August 26, 2011
David McCrory Estabrook Arlington, VA Public Reprimand w/Terms June 20, 2011
Eugene Brian Harris Portsmouth, VA Revocation September 28, 2011
John Warren Hart Virginia Beach, VA Revocation August 16, 2011
Arnold Reginald Henderson V Richmond, VA Public Reprimand w/Terms July 13, 2011
Jeffrey Andrew Luhrsen Sarasota, FL Suspension – 30 Days August 26, 2011
Paul Hampton Thomson Winchester, VA Revocation August 24, 2011
Kristina Kittle Usry King George, VA Public Reprimand w/Terms June 24, 2011
 
District Committees
James Anthony Bullard, Jr. Richmond, VA Public Reprimand w/Terms September 15, 2011
Peyton Moncure Chichester III Richmond, VA Public Reprimand September 1, 2011
Seung OH Kang Annandale, VA Public Reprimand w/Terms July 21, 2011
Walter Ware Morrison Virginia Beach, VA Public Reprimand w/Terms July 26, 2011
 
Suspension – Failure to Pay Disciplinary Costs Effective Date Lifted
Sara Davis Harman Glen Allen, VA October 5, 2011  
John Arthur Elmendorf Germantown, MD September 26, 2011  
Joshua Jesse Robert Gessler McLean, VA August 31, 2011  
Steven Frank Helm Salem, VA September 28, 2011  
Joseph Dee Morrissey Glen Allen, VA September 30, 2011  
Tina Elizabeth Orr Virginia Beach, VA August 19, 2011  
Jesse Scott Shelor Vinton, VA September 6, 2011  
Gregory Allen Thomas Colonial Heights, VA October 3, 2011  
 
Suspension – Failure to Comply with Subpoena Effective Date Lifted
Joseph Rocco Caprio West Point,VA September 8, 2011 September 9, 2011
John Warren Hart Virginia Beach, VA July 19, 2011 July 27, 2011
David Glenn Hubbard Tysons Corner, VA August 31, 2011 September 9, 2011
Mary Meade Fairfax, VA August 26, 2011  
Tina Elizabeth Orr Norfolk, VA October 12, 2011  
Robert Henry Smallenberg Ashland, VA July 28, 2011 August 2, 2011
    August 4, 2011 August 8, 2011
    September 20, 2011 September 23, 2011
    September 20, 2011 October 3, 2011

 

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 Court

Raymond Lewis Palmer
Richmond, Virginia
10-033-082112
On September 8, 2011, a three-judge panel of the Circuit Court for the City of Richmond issued a public admonition with terms to Raymond Lewis Palmer for violating the professional rule that governs safekeeping property. The court also issued a dismissal for exceptional circumstances sanction for violating rules that govern diligence and declining and terminating representation. This was an agreed disposition of misconduct charges. RPC 1.3; 1.15 and 1.16
http://www.vsb.org/docs/Palmer-101311.pdf

Benjamin Thomas Reed
Norfolk, Virginia
10-021-082582, 10-021-084359, 11-021-085874
On September 12, 2011, a three judge circuit court panel with the Circuit Court of the City of Norfolk issued a public reprimand with terms to Benjamin Thomas Reed for violating professional rules that govern diligence and communication. This was an agreed disposition of misconduct charges. RPC 1.3(a); 1.4(a) (b)
http://www.vsb.org/docs/Reed-101311.pdf

Robert Henry Smallenberg
Ashland, Virginia
09-032-078278
Effective August 27, 2011, a three judge panel sitting at the Hanover County Circuit Court suspended Robert Henry Smallenberg’s license to practice law for thirty days and ordered him to pay $2,500 in restitution to a client for violating professional rules that govern diligence, communication, safekeeping of property, and declining or terminating representation. This was an agreed disposition of misconduct charges. RPC 1.3 (a); 1.4 (a); 1.15(c)(3); 1.15(c)(4); 1.16(d) and 1.16(e)
http://www.vsb.org/docs/Smallenberg-012811.pdf
 

Disciplinary Board

Eileen Marie Addison
Yorktown, Virginia
08-060-073840
On August 8, 2011, the Virginia State Bar Disciplinary Board imposed a public reprimand on Eileen Marie Addison for violating a professional rule that governs timely disclosure of existence of evidence that could help a defendant and for other misconduct. This is an agreed disposition of misconduct charges. RPC 3.8(d); 8.4(a)
http://www.vsb.org/docs/Addison-082511.pdf

Stephen Alan Bamberger
Dumfries, Virginia
08-052-073229
On August 23, 2011, the Virginia State Bar Disciplinary Board issued a public reprimand to Stephen Alan Bamberger for violating professional rules that govern competence and scope of representation. This was an agreed disposition of misconduct charges. RPC 1.1; 1.2 (a)
http://www.vsb.org/docs/Bamberger-090911.pdf

Tracey Suzann Foughty-Deavers
Fairfax, Virginia
11-000-088251
On August 26, 2011, the Virginia State Bar Disciplinary Board revoked Tracey Suzann Foughty-Deavers’s license to practice law for failing to notify clients of the February 11, 2011, and April 20, 2011, suspensions of her license to practice law. Rules Part 6, § IV, ¶ 13-29
http://www.vsb.org/docs/Deavers-101311.pdf

David McCrory Estabrook
Arlington, Virginia
08-052-071266
On June 20, 2011, the Virginia State Bar Disciplinary Board imposed a public reprimand with terms on David McCrory Estabrook for violating professional rules that govern frivolous claims, frivolous discovery requests, criminal or disciplinary charges intended solely to gain an advantage in a civil matter, taking legal action merely to harass or maliciously injure another, and committing a deliberately wrongful act that reflects adversely on a lawyer’s honesty, trustworthiness, or fitness to practice. This was an agreed disposition of misconduct charges. RPC 3.1, 3.4 (e) (I )(j); 8.4 (b)
http://www.vsb.org/docs/Estabrook_Final_2011-06-30.pdf

Eugene Brian Harris
Portsmouth, Virginia
10-000-08113, 10-000-078799
On September 27, 2011, the Virginia State Bar Disciplinary Board revoked Eugene Brian Harris’s license to practice law. In consenting to the revocation, Mr. Harris admitted that he was convicted of multiple felony counts of assault and battery of a police officer and larceny and that he could not successfully defend prosecution of charges based on the convictions. Rules Part 6, § IV, ¶ 13-28
http://www.vsb.org/docs/Harris-100311.pdf

John Warren Hart
Virginia Beach, Virginia
11-021-086720, 11-021-086858, 11-021-087568, 12-021-088557
On August 16, 2011, the Virginia State Bar Disciplinary Board revoked John Warren Hart’s license to practice law. In agreeing to the revocation, Mr. Hart acknowledged the material facts of pending disciplinary complaints and that he could not successfully defend them. He stipulated that he violated disciplinary rules that govern safekeeping property and misconduct that involves dishonesty, fraud, deceit, or misrepresentation and reflects adversely on an attorney’s fitness to practice. Rules Part 6, § IV, ¶ 13-28
http://www.vsb.org/docs/Hart-090911.pdf

Arnold Reginald Henderson V
Richmond, Virginia
09-032-077156, 10-032-080595
On July 13, 2011, the Virginia State Bar Disciplinary Board imposed a public reprimand with terms on Arnold Reginald Henderson V for violating professional rules that govern diligence, communication, and declining or terminating representation. This is an agreed disposition of misconduct charges. RPC 1.3(a); 1.4(a); 1.16(c-e)
http://www.vsb.org/docs/Henderson-082511.pdf

Jeffrey Andrew Luhrsen
Sarasota, Florida
11-000-087800
On August 26, 2011, the Virginia State Bar Disciplinary Board suspended Jeffrey Andrew Luhrsen’s license to practice law for thirty days, the same discipline imposed by the Supreme Court of Florida for ethical violations in that jurisdiction. The Virginia suspension became effective July 28, 2011 - the date that his Virginia license was summarily suspended pending a show cause hearing on the reciprocal discipline.
http://www.vsb.org/docs/Luhrsen-090211.pdf

Paul Hampton Thomson
Winchester, Virginia
12-000-088570
On August 24, 2011, the Virginia State Bar Disciplinary Board revoked Paul Hampton Thomson’s license to practice law. In consenting to the revocation, Mr. Thomson admitted that he was convicted of multiple federal crimes involving destroying evidence and possession of cocaine. His license had been summarily suspended since June 26, 2011. He pled guilty and was convicted in the U.S. District Court for the Western District of Virginia. Rules Part 6, § IV, ¶ 13-28
http://www.vsb.org/docs/Thomson-090911.pdf

Kristina Kittle Usry
King George, Virginia
08-032-072773
On June 24, 2011, the Virginia State Bar Disciplinary Board issued a public reprimand with terms to Kristina Kittle Usry for violating a professional rule that governs communication with persons represented by counsel. RPC 4.2
http://www.vsb.org/docs/Bamberger-090911.pdf

District Committee

James Anthony Bullard Jr.
Richmond, Virginia
10-032-083196, 10-032-084358, 10-032-082580, 10-032-083635
On September 15, 2011, a Virginia State Bar Third District-Section II Subcommittee issued a public reprimand with terms to James Anthony Bullard Jr., for violating a professional rule that governs diligence. This was an agreed disposition of misconduct charges. RPC 1.3 (a)
http://www.vsb.org/docs/Bullard-092611.pdf

Peyton Moncure Chichester III
Richmond, Virginia
09-031-079771
On August 25, 2011, a Virginia State Bar Third District—Section I Subcommittee imposed a public reprimand on Peyton Moncure Chichester III for violating professional rules that govern diligence, communication, conflict of interest, and declining or terminating representation. This was an agreed disposition of misconduct charges. RPC 1.3(a); 1.4(a); 1.7(a)(1); 1.16(a)(1), (d)
http://www.vsb.org/docs/Chichester-090911.pdf

Seung Oh Kang
Annandale, Virginia
06-053-3768
On July 21, 2011, a Virginia State Bar Fifth District-Section III Subcommittee issued a public reprimand with terms to Seung Oh Kang for violating disciplinary rules that govern competence and communication. This was an agreed disposition of misconduct charges. RPC 1.1; 1.4(c)
http://www.vsb.org/docs/Kang-072111.pdf

Walter Ware Morrison
Virginia Beach, Virginia
10-021-081857
On July 26, 2011, a Virginia State Bar Second District Subcommittee issued a public reprimand with terms to Walter Ware Morrison for violating a professional rule that governs communication. RPC 1.4(a)
http://www.vsb.org/docs/Morrison-072611.pdf


Final Ethics Opinions

Legal Ethics Opinion 1856
Scope of Practice for Foreign Lawyer in Virginia

Details: http://www.vacle.org/opinions/1856.htm

Proposals For Public Comment

The following proposal is published for public comment and is scheduled to be considered at the Virginia State Bar Council meeting on February 25, 2012. Comments should be submitted in writing to Karen A. Gould, Executive Director, Virginia State Bar, 7907 E. Main Street, Suite 1500, Richmond, VA 23219, no later than end of business day on the day of deadline.

Rules of the Supreme Court Proposed Amendments to Rule 13, Procedure for Disciplining, Suspending, And Disbarring Attorneys
Deadline for comment: February 1, 2012
On October 5, 2011, the Virginia State Bar Standing Committee on Lawyer Discipline (COLD) approved a proposed amendment that would require service as a district committee member as a prerequisite for nomination for Disciplinary Board service.
*   *   *
13-6 DISCIPLINARY BOARD

A. Appointment of Members. This Court shall appoint, upon recommendation of Council, 20 members of the Board, 16 of whom shall be active members of the Bar and four of whom shall be nonlawyers. One Attorney member shall be designated by the Court as Chair and two Attorney members as Vice Chairs, upon recommendations of Council. Before nominating any individual for membership on the Board, the Bar’s nominating committee shall first determine that the nominee is willing to serve on the Board and will conscientiously discharge the responsibilities as a member of the Board. All nominees shall have previously served on a district committee. The Bar nominating committee shall also obtain a statement from the nominees, in writing, that the nominees are willing to serve on the Board, if elected and appointed. In order to be considered as a potential appointee to the Board, each potential appointee shall execute the following: (1) a waiver of confidentiality with respect to his or her Disciplinary Record and any pending Complaints and a release allowing production of his or her Disciplinary Record and pending Complaints from any jurisdiction for purposes of the appointment process; and (2) an authorization for the Bar to conduct a criminal records check of all jurisdictions for any conviction of a Crime and provide the results to the members of Council and the staff of the Bar for purposes of the appointment process.

Details: http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/proposed-para13-6-db

 

Judicial Conference’s Five Advisory Committees Seek Comments on Proposed Amendments to Rules
The federal Judicial Conference Advisory Committees on the Appellate, Bankruptcy, Civil, Criminal, and Evidence rules have proposed amendments to their respective rules and requested comment. The proposed amendments, rules committee reports explaining the proposed changes, and other information are posted on the Judiciary’s Federal Rulemaking website at http://www.uscourts.gov/rules. The advisory committees welcome comment on all aspects of each proposal.

Comments on the proposed amendments should be provided as soon as possible. The comment deadline is February 15, 2012. All comments, including suggestions or other correspondence, may be submitted electronically to Rules_Comments@ao.uscourts.gov or in hard copy to the Secretary of the Committee on Rules of Practice and Procedure, Administrative Office of the United States Courts, Washington, DC, 20544. The advisory committees will review all timely comments. All comments are made part of the official record and are available to the public.

The Advisory Committees on the Appellate, Bankruptcy, Civil, Criminal, and Evidence rules will hold public hearings on the proposed amendments on the following dates:

  • Appellate Rules in Columbus, Ohio, on January 31, 2012, and in Washington, DC, on February 3, 2012;
  • Bankruptcy Rules in Washington, DC, on January 13, 2012, and in Chicago, Illinois, on February 10, 2012;
  • Civil Rules in Washington, DC, on November 7, 2011, in Phoenix, Arizona, on January 4, 2012, and in Chicago, Illinois, on January 27, 2012;
  • Criminal Rules in Phoenix, Arizona, on January 6, 2012, and in Washington, DC, on February 6, 2012; and
  • Evidence Rules in Phoenix, Arizona, on January 7, 2012, and in Washington, DC, on January 17, 2012.

Anyone wishing to testify must contact the committee secretary at the above address at least 30 days before the hearing.

After the public comment period, the advisory committees will decide whether to submit the proposed amendments to the Standing Committee on Rules of Practice and Procedure. At this time, the standing committee has not approved these proposed amendments, except to authorize their publication for comment. The proposed amendments have not been submitted to or considered by the Judicial Conference or the Supreme Court.


Rule Revision Proposals Published for Comment
The Advisory Committee on Rules of Court of the Judicial Council of Virginia has approved the draft rule revisions below for publication and receipt of comments from the public, the bench,  and the bar.  They relate to the developing option for “electronic filing” of cases in the Virginia courts.
Statutory changes were made by the General Assembly in the last two years authorizing the adoption and phase-in of procedures for electronic filing of cases in our courts.  A large task force with members from many constituencies in Virginia has been at work for more than two years on the mechanisms for electronic filing to make them simple, reliable and clear.
As part of the developing efforts to implement “e-filing,” the Advisory Committee was asked to review Rules 1:17 and 3:3, which have been part of the Rules of Court in Virginia for many years, to consider amendments needed in order to ready the Rules for the expected advent of e-filing as Virginia court technology moves forward.

Details: http://www.vsb.org/site/news/item/efiling-rule-revision-proposals

Notices to Members

MCLE Reporting Deadline Dec. 15, 2011
The MCLE Form 1, End of Year Report, will be mailed by November 8. You may certify attendance online or by mail. See Form 1 instructions. Reminder: New MCLE Requirements began Nov. 1, 2011.

Certify online: http://www.vsb.org/site/members/mcle-courses/

Details: http://www.vsb.org/site/members/faqs-2012-mcle-reg-changes

 

Amendments to Virginia Supreme Court Rules 1A:3 and Paragraph 13-6(F)
The Rule 1A:3 Study Committee received numerous comments in response to the proposed revisions to Virginia Supreme Court Rule 1A:3 and Part 6, § IV, ¶ 13-6(F) that would change the current procedure for revoking certificates issued to lawyers admitted to practice under the reciprocity rule. Many of those comments addressed admissions issues within the jurisdiction of the Court. The committee referred the comments to the Court and will wait for further direction.

Details: http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/rule-1a3-reciprocity

 

Rules of Professional Conduct
Proposed Amendments to Rule 7.1–7.5
Information About Legal Services

The council unanimously approved amendments to Rules 7.1-7.5 of the Rules of Professional Conduct proposed by the Standing Committee on Legal Ethics and by the Executive Committee. The proposed amendments would make these rules more general in their application by removing the specific examples of lawyer advertising statements or claims from the body of the rules to the comment section. They would also remove unnecessary and redundant language.

Proposed amended rules:
http://www.vsb.org/docs/Proposed_7_1–7_5.pdf

Current rules:
http://www.vsb.org/pro-guidelines/index.php/rules/information-about-legal-services/