(A) In his representation of a client,
a lawyer shall not:
(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such a claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.
Mr. Leach's filing of a creditor's bill subsequent to his former client's death is a claim that is unwarranted under existing law, as he then had no client to represent.
(3) Conceal or knowingly fail to disclose that which he is required by law to reveal.
Mr. Leach's failure to disclose
Stephan Simmons death constitutes a failure to disclose that which he is legally
required to reveal.
(5) Knowingly make a false statement of law or fact.
Mr. Leach's various filings subsequent
to his former client's death without revealing the fact of such death constitutes
a false statement of fact.
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 the state or from a transaction arising in the 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 practice, and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
(1) Funds reasonably sufficient to pay service or other charges or fees imposed by the financial institution may be deposited therein.
(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein and the portion belonging to the lawyer or law firm must be withdrawn promptly after they are due unless the right of the lawyer or law firm to receive it is disputed by the client in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
A violation of these rules was admitted by Mr. Leach.
(B) A lawyer shall:
(1) Promptly notify a client of the receipt of his funds, securities, or other properties.
(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe, deposit box, or other place of safekeeping as soon as practicable.
A violation of these rules was admitted by Mr. Leach.
Rules of Professional Conduct:
RULE 1.15 Safekeeping Property
(c) 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
Mr. Leach's failure to remit funds to Mr. and Mrs. Simmons, or to the court, following Mr. and Mrs. Simmons inquiry regarding their son's estate constitutes a violation of this Rule.
RULE 1.16 Declining or Terminating Representation.
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) The representation will result in violation of the Rules of Professional Conduct or other law;
Mr. Leach's continued purported
representation of Stephan Simmons subsequent to January 1, 2000 constitutes
a violation of this Section. Further, the Board finds that Mr. Leach represented
himself as counsel to Mr. and Mrs. Simmons in his November 15, 2001 letter to
Roy Lasris, Esquire. Mr. Leach, in his own testimony, acknowledged that his
letter could have had the effect of suggesting a lawyer client relationship
between Mr. Leach and Mr. and Mrs. Simmons.
RULE 3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) Make a false statement of fact or law to a tribunal;
Mr. Leach's failure to give Mr.
Smith credit for the previous sale of his real property in the garnishment action
filed against Mr. Smith constituted a false statement of fact to the tribunal.
RULE 8.4 Misconduct.
It is professional misconduct for a lawyer to:
(b) commit a criminal or deliberately
wrongful act that reflects adversely on the lawyer's honesty, trustworthiness,
or fitness as a lawyer;
Once again, Mr. Leach's failure to give Mr. Smith credit for the sale of his property in the garnishment action filed against Mr. Smith violated this Rule. In addition, Mr. Leach's continued participation in legal proceedings such as the garnishment subsequent to January 1, 2000, constitutes a violation of this rule.
(c) engage in professional conduct involving dishonesty, fraud, deceit, or misrepresentation.
Mr. Leach's letter to Mr. Lasris, in which he implied that he was acting as counsel for Mr. and Mrs. Simmons was deceitful conduct in violation of this Rule.
The Board finds that the Bar did not meet its burden with respect to the following Rules:
DR 5.101. Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.
(A) A lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client may be affected by his own financial, business, property, or personal interests, except with the consent of his client after full and adequate disclosure under the circumstances.
The Board feels as if this Rule pertains to conditions existing at the time the lawyer accepts employment. Mr. Leach's misconduct arose due to events and circumstances occurring after the acceptance of employment.
RULE 1.5. Fees.
(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood , if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
The Board finds insufficient evidence
to support violations of these Rules. The Board is of the opinion however that
the filing of the suit against Mr. and Mrs. Simmons for fees would constitute
a violation of these Rules but for the fact that the filing occurred subsequent
to this certification. The Board therefore will not consider the actions of
Mr. Leach which occurred following certification in a consideration of alleged
RULE 1.15 Safekeeping property.
(a) All funds received or held by a lawyer or law firm on behalf of a client, other than reimbursement of advances for costs and expenses, shall be deposited in one or more identifiable escrow accounts maintained at a financial institution in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
(1) funds reasonably sufficient to pay service or other charges or fees imposed by the financial institution may be deposited therein; or
(2) funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, and the portion belonging to the lawyer or law firm must be withdrawn promptly after it is due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.
The Board finds that none of Mr.
Leach's offending behavior in regard to safekeeping of property occurred subsequent
to the effective date of this Rule, January 1, 2000.
(c) A lawyer shall:
(1) promptly notify a client of the receipt of the client's funds, securities, or other properties;
(2) identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable;
The Board finds that none of Mr.
Leach's offending behavior in regard to receipt and identification of property
occurred subsequent to the effective date of this Rule, January 1, 2000.
RULE 3.1 Meritorious Claims And Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
The Board is of the opinion that
this Rule relates to the merits of a particular claim. We do not find that Mr.
Leach's claims were without merit.
Following the Board's announcement of its findings, the Bar introduced Mr. Leach's disciplinary record. Mr. Leach's record consists of three prior instances of discipline.
Mr. Leach was found to have engaged in misconduct on December 19, 1990. The misconduct was the failure to file a criminal petition for appeal. The matter was dismissed with terms, specifically, that Mr. Leach attend a professional responsibility course offered by the Committee on Lawyer Discipline. Mr. Leach complied with this term and the matter was closed.
Mr. Leach was disciplined on December 7, 1999 as a result of his mishandling his accounting responsibilities as the executor of an estate. Mr. Leach was privately reprimanded.
Finally, Mr. Leach was disciplined on August 20, 2003 for mishandling a bankruptcy case. Mr. Leach received a public reprimand with terms.
Mr. Leach presented two witnesses in mitigation of his misconduct. Mr. Leach's first witness was Leslie Wilmer Bailey, Jr., a practicing lawyer in Tennessee and Virginia. Mr. Bailey was an Assistant Commonwealth's Attorney in Scott County and the Lee County Attorney. He testified he has known Mr. Leach since law school. He is of the opinion that Mr. Leach's level of integrity is very high and that Mr. Leach cares greatly about his clients.
Dr. John Lanzalotti testified in support of Mr. Leach. He stated that he has known Mr. Leach for approximately twenty-one years and that Mr. Leach has great integrity. He is greatly surprised by the nature of these allegations.
Finally, Mr. Leach testified in his own behalf in mitigation. Mr. Leach testified that he takes great pride in his profession and enjoys the practice of law. He states that he was embarrassed by his mistakes. He further stated that "perhaps I got a little carried away".
The Board was impressed with the quality and sincerity of Mr. Leach's character witnesses. Both are highly respected men in their communities whose opinions are entitled to significant respect. Nevertheless, the opinions of these gentlemen cannot negate the egregious nature of Mr. Leach's admitted conduct.
The Board considers the following factors to be aggravating: Mr. Leach's record as previously discussed in this Order; Mr. Leach's selfish motives throughout this course of events; that Mr. Leach engaged in multiple instances of misconduct; Mr. Leach's refusal or reluctance to acknowledge the wrongful nature of his conduct; the fact that the victims of Mr. Leach's misconduct were vulnerable due to their age and the death of their son; and Mr. Leach's substantial experience.
The Board finds Mr. Leach's conduct to be reprehensible. Despite the fact of Mr. Leach's client's death, he continued the farce of representation for an additional four years. One could possibly understand an initial misstep due to the unusual circumstance of the death of a client, but no reasonable person could continue the deception for so long unless it was intentional.
It is apparent from the facts of this case that Mr. Leach's motivation for his misconduct was selfish. In every instance, he put his interest ahead of his deceased client's interest. Mr. Leach's sole concern in this case was to protect and collect his fee. Mr. Leach made the case his own, misappropriated Mr. Simmons' estate's money, and in essence misappropriated the action.
Perhaps most revealing, is the fact that Mr. Leach simply doesn't appreciate the gravity of his misconduct. He describes his conduct as a mistake in judgment and as having been "carried away". Mr. Leach's written response to Judge Powell's legitimate inquiry can only be described as defiant. Perhaps worst of all, Mr. Leach saw fit only a few weeks prior to this hearing, to sue Mr. and Mrs. Simmons for his fee and for defamation. Mr. Leach felt defamed by the fact that Mr. and Mrs. Simmons asked "where is this money?" Although the Board refrained from considering this suit in the misconduct phase of this hearing, the Board feels it is appropriate to consider it in the sanction phase. We find it to be a significant aggravating factor.
The Board is of the unanimous opinion that the only appropriate sanction sufficient to protect the public from Mr. Leach is revocation of his license to practice law. It is so ordered.
Duties of the Respondent
It is ORDERED that, as directed in the Board's August 21, 2003 Summary Order in this matter, a copy of which was served on Respondent by certified mail, Respondent must comply with the requirements of Part 6, Section IV, Paragraph 13 M, of the Rules of the Supreme Court of Virginia. All issues concerning the adequacy of the notice and arrangements required by the Summary Order shall be determined by the Board.
It is further ordered pursuant to Paragraph 13 B.8.c.1 of the Rules of the Supreme Court of Virginia, that the Clerk of the Disciplinary System shall assess costs against the Respondent.
It is finally ordered that the Clerk of the Disciplinary System shall forward a copy of this order, by certified mail, return receipt requested, to the Respondent, George Robert Leach, at his address of record with the Virginia State Bar, 1311 Jamestown Road, Williamsburg, Virginia 23185, by regular mail to Michael L. Rigsby, Respondent's Counsel, at Carrell, Rice & Rigsby, Forrest Plaza II, Suite 309, 7275 Glen Forest Drive, Richmond, Virginia 23226, and hand delivered to Harry M. Hirsch, Deputy Bar Counsel, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800.
ENTERED this ______ day of September, 2003.
VIRGINIA STATE BAR DISCIPLINARY BOARD
Roscoe B. Stephenson, III, Chairman