Ermlich Opinion

VIRGINIA:

BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

IN THE MATTER OF

ARTHUR C. ERMLICH

VSB Docket No. 02-021-0046 (Kern)

ORDER OF SUSPENSION OF 30 DAYS

This matter was certified to the Virginia State Bar Disciplinary Board ("Board") by the Second District Committee, Section I, and were set for hearing on October 24, 2003 before a duly convened panel. On October 20, 2003, this matter was presented for approval of an agreed disposition to a duly convened panel consisting of Robert L. Freed, Esquire, Chair, Peter A. Dingman, Esquire, Robert E. Eicher, Esquire, David R. Schultz, Esquire, and Mr. Thaddeus T. Crump, lay member.

Pursuant to Virginia Supreme Court Rules of Court Part 6, Section IV, ¶ 13B5c., the Virginia State Bar, by Paul D. Georgiadis, Assistant Bar Counsel, and the Respondent, by counsel Robert F. Haley, II, entered into a proposed agreed disposition and presented it to the convened panel.

The Chair polled the panel members to determine whether any member had a personal or financial interest in this matter that might affect or reasonably be perceived to affect his or her ability to be impartial in this proceeding. Each member, including the Chair, verified that they had no conflicts.

I. FINDINGS OF FACT

During all times relevant hereto, Arthur C. Ermlich ("Respondent") was an attorney licensed to practice law in the Commonwealth of Virginia.

On May 19, 1997, Respondent received settlement checks totaling$38,000 for the settlement of the personal injury claims of his client, Shirley Dawson.

On May 29, 1997, Dawson executed Respondent's settlement statement that reflected out-standing charges owed and to be paid by Respondent as attorney for Shirley Dawson to Donald F. Kern, DDS of $14,878.92 for dental repairs for injuries suffered. The settlement statement further reflected Respondent's legal fee of $5,700.00.

Sometime shortly thereafter, Dawson changed her mind regarding Dr. Kern's claims for $14,878.92 and revoked her consent to Respondent to pay Kern's full amount or any amount whatsoever. While Dawson contended that she had an agreement to pay $7,800.00 to Dr. Kern, she directed Respondent to pay Kern no money.

In spite of the disputed claims to the funds by client Dawson and Dr. Kern, Respondent disbursed all funds between May 30, 1997 and June 20, 1997 without paying any of Dr. Kern's claim. Disbursements included $15,000 to the Internal Revenue Service.

Thereafter, Dr. Kern filed suit in the Virginia Beach Circuit Court against both Dawson and Respondent for his outstanding dental invoice.

On September 8, 1999 the matter was tried. The jury awarded and the Court entered an order awarding Dr. Kern a judgement against Respondent and Dawson in the amount of $12,648.00 plus interest from March 25, 1996 and attorney's fees of $4,455.00.

Notwithstanding the judgement, Respondent did not make any payment until he paid Kern $3,000.00 on or about April 26, 2001.

II. NATURE OF MISCONDUCT

The Board finds that such conduct on the part of the Respondent violates the following Discipline Rules and Rules of Professional Conduct:

DR 9-102. Preserving Identity of Funds and Property of a Client.

(A) All funds received or held by a lawyer or law firm on behalf of a client, estate or a ward, residing in this State or from a transaction arising in this State, other than reimbursement of advances for costs and expenses, shall be deposited in one or more identifiable trust accounts and, as to client funds, maintained at a financial institution in a state in which the lawyer maintains a law office, and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:

...

(B) A lawyer shall:

(4) Promptly pay or deliver to the client or another as requested by such person the funds, securities, or other properties in the possession of the lawyer which such person is entitled to receive.

RULE 1.15 Safekeeping Property

(b) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.

promptly pay or deliver to the client or another as requested by such person the funds, securities, or other properties in the possession of the lawyer which such person is entitled to receive.

IMPOSITION OF SANCTION OF

SUSPENSION OF THIRTY (30) DAYS

The Board, having considered all evidence before it and having considered the nature of the Respondent's actions, and having considered the Respondent's disciplinary record, ORDERS pursuant to Part 6, Sec. IV, Para. 13I 2f.(d) of the Rules of the Virginia Supreme Court that the license of the Respondent, Arthur C. Ermlich, to practice law in the Common-wealth of Virginia be, and the same is, hereby suspended for thirty days (30) days, effective September 28, 2005, running consecutive to his current three year suspension.

It is further ORDERED that Respondent must comply with the requirements of Part 6, Section IV, Paragraph 13.M., of the Rules of the Supreme Court of Virginia. The time for compliance with said requirements runs from the date of this Order. All issues concerning the adequacy of the notice and arrangements required by the Order shall be determined by the Board, unless Respondent timely demands the matter be adjudicated by a three judge circuit court panel. Pursuant to Part 6, Sec. IV, Para. 13.B.8.c. of the Rules, the Clerk of the Disciplinary System shall assess costs.

It is further ORDERED that a copy teste of this Order shall be mailed by certified mail, return receipt requested, to the Respondent, Arthur C. Ermlich, P.O. Box 6972, Virginia Beach, Virginia, 23456, his last address of record with the Virginia State Bar; by first class mail, postage prepaid, to his counsel of record, Robert F. Haley, II, Marcari, Russotto, & Spencer, P.C., ; and hand delivered to Paul D. Georgiadis, Assistant Bar Counsel, Virginia State Bar, Eighth & Main Building, Suite 1500, 707 East Main Street, Richmond, Virginia 23219- 2800.

Terry Griffith, Chandler and Halasz, Inc., Court Reporters, P.O. Box 9349, Richmond, Virginia 23227, 804/730-1222, was the reporter for the hearing and transcribed the proceedings.

ENTERED this day of October, 2003.

VIRGINIA STATE BAR DISCIPLINARY BOARD

By: _____________________________________ Robert L. Freed, Chair