VSB DOCKET NO. 00-070-0532 (Adkins)

VSB DOCKET NO. 99-070-2906 (Paleos)

VSB DOCKET NO. 00-070-2737 (Cubbage)


THIS MATTER came to be heard on September 28, 2001, October 25, 2001, and October 26, 2001, before a duly convened panel of the Virginia State Bar Disciplinary Board, consisting of Randy Ira Bellows, Second Vice-Chair presiding, Janipher W. Robinson; Anthony J. Trenga; Bruce T. Clark; and Werner H. Quasebarth, Lay Member.

The respondent, Robert Brown Patterson, appeared pro se at the first day of hearings and was represented subsequently by Paul D. Scanlon. Claude V. Worrell, Assistant Bar Counsel, appeared on behalf of the Virginia State Bar.

This matter came before the Board by certification of a subcommittee of the Seventh District dated February 22, 2001. The matter was considered by the subcommittee on June 21, 2000, as to VSB Docket Numbers 00-70-0532 and 99-070-2906. The matters set forth in VSB Docket Number 00-070-2737 were considered at a hearing conducted on February 9, 2001. The Seventh District certification consolidated all three VSB Docket Numbers.

The factual basis of the complaints considered by this panel span a period of time commencing in 1993 and continuing to the present. They primarily arise from the Respondent's relationship with a single client, Eugene N. Hooper, and a protracted series of litigations which surround Mr. Hooper and several of his creditors. In order to address the issues raised in the Seventh District's certification, each paragraph set out in the Statement of Facts and Nature of Misconduct, as reported by the subcommittee, will be set forth in the same sequence, followed immediately by the findings of this panel.

They are as follows:

1. At all times relevant hereto, Robert B. Patterson (hereinafter the Respondent) has been an attorney licensed to practice law in the Commonwealth of Virginia.

The panel finds that the Respondent, at all times relevant to this matter; has been an attorney licensed to practice within the Commonwealth of Virginia.

2. Respondent defended Eugene N. Hooper in a note collection trial in Fairfax County Circuit Court filed by the Gemini Corporation and James B. Britt. On the morning of the trial, prior to the commencement of the trial, the Respondent forced Mr. Eugene Hooper to sign a consent order giving Respondent judgement for Respondent's legal fees against Mr. Hooper in the amount of $682,328.29. Respondent threatened to walk away from the case if Mr. Hooper did not sign the order. As a result, Mr. Hooper signed the order.

The panel finds the allegations set forth in paragraph two of the certification are factually inaccurate. The testimony of the Respondent, that of his client, Mr. Eugene N. Hooper, and several depositions submitted during the hearing all place the signing of the consent order at or around January 13, 1996, a little less than two weeks prior to the commencement of the Gemini trial. Moreover, Mr. Hooper testified that he believed that he had time to replace the Respondent as his counsel for the trial and that he signed the consent judgement not because he was forced to do so, but because he wanted Respondent to continue representing him as he was a "smart lawyer". We, therefore, decline to find that the Respondent forced Mr. Hooper into signing the consent judgement order.

The panel considered if the Respondent's actions in seeking a judgement against his client violated DR 5-101(A), which reads:

DR 5-101(A) A lawyer shall not accept employment if the exercise of his professional judgement 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 panel finds that, at the time Respondent accepted employment to represent Mr. Hooper against Gemini, several months prior to January 13th date, the fee issue had not yet reached the point of conflict. At the time Respondent accepted the case, he was not involved in a suit against Mr. Hooper. Moreover, even if such conflict existed, or later arose, it is evident from the testimony that any such conflict was knowingly waived by the client.

We likewise find the Bar has failed to prove by clear and convincing evidence that Respondent's conduct violated DR 7-101(A)(3).

The panel next considered if Respondent's conduct violated DR 2-105, which reads as follows:

DR 2-105 Fees.

The panel finds the Bar has failed to prove violation of DR 2-105 by clear and convincing evidence. It is apparent from the evidence presented by both Respondent and the Bar that the relationship between the Respondent and Mr. Hooper was unique. Mr. Hooper amassed a considerable fortune as a professional real estate developer with over fifty years experience. It is obvious that he is a sophisticated and astute individual fully capable and willing to question his counsel on any issues which he might perceive affected his interests. He testified that during his career he had been involved in a large number of litigations and had employed a wide range of attorneys.

Beginning in 1993, the Respondent represented Mr. Hooper in a number of extremely complex issues involving large sums of money. No credible evidence was presented to lead the panel to believe Mr. Hooper was not provided with billing and fee information adequate to satisfy him.

Paragraphs 3, 4, 5 and 6 of the subcommittee findings reads as follows:

3. Following a three day trial held on January 24, 25 and 29, 1996, Gemini and Britt prevailed and the Court entered judgment against Mr. Hooper in the amount of approximately $884,569. On February 2, 1996, the Respondent filed the consent order for legal fees that he had Mr. Hooper sign. The Final Judgment Order from the three day trial was entered on February 5, 1996. On May 1, 1996, the respondent filed the February 2, 1996 consent order in the Circuit Court of Jackson County, North Carolina. On May 17, 1996, a second Consent Order for Judgment against Hooper and in favor of the Respondent was entered in the Circuit Court for Fairfax County, Virginia. The second Consent Order for Judgment is not materially different from the Order entered on February 2, 1996, except for the fact that it awards the Respondent six percent (6%) interest from February 2, 1996.

4. Gemini and Britt domesticated their judgment in the Circuit Court of Montgomery County, Maryland. That Court issued a Changing Order allowing Gemini and Britt to garnish the proceeds of Hooper's interest in the Andrew Manor Shopping Center Limited Partnership, a Maryland Limited Partnership. The sole asset of the Andrews Manor Shopping Center Limited partnership (hereinafter, Shopping Center). Mr. Hooper was general partner in the Andrews Manor Shopping Center Limited Partnership.

6. On or about July 23, 1997, Hooper assigned his interest in the Andrews Manor Shopping Center Limited Partnership in favor of Mr. Patterson. The Shopping Center was sold in 1998 and yielded proceeds of more than $500,000. Following the sale of the Shopping Center, the Respondent made every effort to halt or minimize the distribution of the proceeds of the sale to Gemini and Britt.

As these paragraphs do not allege violations of the disciplinary rules, they require no comment from the panel.

Paragraph 7 of the subcommittee's charge reads as follows:

7. Respondent filed a complaint under RICO laws in the United States District Court for the Eastern District of Virginia against Gemini and Britt which was later dismissed. In that case, Judge Gerald Bruce Lee granted summary judgment in favor of Gemini and Britt, et al., and found that Mr. Patterson failed to comply with the discovery order of Judge Jones and continuously violated the Local Rules of the United States District Court and the Federal Rules of Civil Procedure. Judge Lee sanctioned the Respondent $14,236.64.

The panel finds by clear and convincing evidence that in reference to his handling of the RICO claim filed in the Federal District Court for the Eastern District of Virginia, the Respondent violated the following disciplinary rules:

DR7-101. Representing a Client Zealously.

(A) A lawyer shall not intentionally:

(1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by aceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitment, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process.

(2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-108, DR 5- 102, and DR 5-105.

(3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 4-101(D).

DR 7-105 Trial Conduct.

(A) A lawyer shall not disregard or advise his client to disregard a standing rule of a tribunal or ruling of a tribunal made in the course of a proceeding, but he may take appropriate steps in good faith to test the validity of such rule, or ruling.

Following the filing of the RICO suit, the Respondent testified that he learned his client had retained other counsel to assist him in moving assets into newly created legal entities. Respondent believed this was being done in part to prevent collection of his consent judgment. Perceiving he had reached a point of irreconcilable conflict with his client, Respondent sought leave of Court to withdraw from the RICO case. Permission to withdraw was denied. Nevertheless, Respondent testified that he terminated work on the case. For this reason, the panel finds this conduct violated the disciplinary rules cited above.

Paragraph 8 of the subcommittee's findings reads a follows:

8. In July 1998, Mrs. Patterson filed a motion in Fairfax County Circuit Court to enforce her interest in the assigned $682,000 judgment awarded in the February 2, 1996 and May 17, 1996 court orders. The order should have been filed in Montgomery County, Maryland as that Court had in rem jurisdiction. On September 28, 1998, the Fairfax County Circuit Court decided that Mrs. Patterson must seek relief in the Circuit Court of Montgomery County, Maryland. Ultimately, Mrs. Patterson withdrew her attempts to intervene and the Charging Order was affirmed.

As this paragraph does not allege violations of disciplinary rules, it requires no comment from this panel.

Paragraph 9 of the subcommittee's findings reads as follows:

9. On September 28, 1998, the same day the Fairfax Circuit Court ruled against Mrs. Patterson, Mr. Hooper filed a pro se petition for voluntary bankruptcy under Chapter 11. Based upon his own filing for Bankruptcy, Hooper moved to remove the case concerning the enforcement of the Charging Order to the Maryland Bankruptcy Court. The case was removed to Maryland Bankruptcy Court on October 8, 1998. The case was dismissed on October 26, 1998, Hooper, by and through the Respondent or with Respondent's help, again removed the case concerning the enforcement of the Charging Order to United States District Court in Maryland based upon diversity jurisdiction and federal question jurisdiction. On December 2, 1998, Judge Deborah Chasnow of the United States District Court in Maryland ordered that the case be sent back to the Circuit Court of Montgomery County, Maryland. Judge Chasnow found there to be no federal question as the bankruptcy has been dismissed and found no diversity jurisdiction because Mr. Hooper lives, in Virginia. The Verified Complaint for Injuctive Relief which was filed in US District Court avers that Hooper is a Virginia resident and Hooper's affidavit confirmed that "I reside in Falls Church, [Virginia]." This is an accurate statement of residence. Judge Chasnow noted that Respondent contacted Mr. Hooper at his Falls Church address and that the bankruptcy had been dismissed at the time the second removal was filed. Judge Chasnow reserved the issue of sanctions for later review. On June 21, 1999, United States District Court Judge Deborah Chasnow found that the case was removed in bad faith at the behest of the Respondent, or in close cooperation with the Respondent, for the sole purpose of delaying the collection of a valid and enforceable judgment. Judge Chasnow fined Hooper, Mrs. Patterson and the Respondent, jointly and severally, in the amount of $11,585.00. Mrs. Patterson removed the Maryland Bankruptcy Court remanded the case and found that Mr. Patterson had, "filed the case for an improper purpose and to cause unnecessary delay." Judge Kier sanctioned Mrs. Patterson and her attorney/brother Thomas Mitchell, $3,714.90.

It is the Bar's contention that the facts alleged in the above paragraph violate DR 7-102 A (1) and (2) which reads as follows:

DR 7-102 A (1) and (2) Representing a Client Within the Bounds of the Law.

The Board finds that the Bar has failed to prove these allegations by clear and convincing evidence. The Bar appears to have relied upon the findings by Judge Chasnow and the issuance of sanctions as conclusive evidence of actionable misconduct by the Respondent in the bankruptcy matter and its surrounding dealings. The findings of a judge must be given great weight in determining whether a violation of the disciplinary rules has occurred, particularly where those findings involve the imposition of sanctions. However, the imposition of sanctions, by itself, cannot be taken as conclusive proof that the Disciplinary Rules have been violated. This is for two reasons: First, while a sanctions order is obviously relevant to the Board's evaluation of the alleged misconduct giving rise to the sanctions, it is no substitute for the evidence which proves the misconduct itself. Second, since sanctions can be imposed even when a party has not acted in bad faith, the imposition of sanctions cannot be taken to mean that the court has implicitly determined that the sanctioned party acted with a level of intent that would warrant disciplinary action.

Judge Chasnow's findings were that Mr. Eugene Hooper, acting pro se, had acted in bad faith in removing his case to Judge Chasnow's court. In addition, she found the Respondent to be "partially responsible for the delays caused by the improper removal...", but Judge Chasnow's ruling falls short of finding that the Respondent acted in bad faith.

In order to find a violation of DR 7-102 it must be shown that the Respondent knew, or it must be obvious, that suit has been filed "merely to harass or maliciously injure another." The panel finds the Bar failed to provide evidence to support such a finding by clear and convincing evidence.

Paragraphs 10, 11, 12 and 13 read as follows:

10. Once the cases were remanded, Mrs. Patterson tried another end run around the Circuit Court from Montgomery County, Maryland by filing a lawsuit in the Circuit Court for Fauquier County, Virginia. This case was dismissed for the same reasons given by Judge McWeeny in his Order of November 1998, dismissing the lawsuit that was filed in the Circuit Court of Fairfax County, Virginia.

11. In July, 1998, the Respondent moved to intervene in the Fairfax case of Mrs. Patterson. The Respondent claimed that he had priority over Mrs. Patterson based upon Hooper's earlier assignment of legal fees. He asked that the Court find the Maryland Charging Order was a nullity.

12. In March, 1999, the Respondent filed a third-party complaint in the Circuit Court of Fauquier County, Virginia. The suit named as defendants counsel for Gemini Corporation and Richard Hayden. The suit sought to obtain the proceeds of the 1998 sale of Mr. Hooper's interest in the Andrews Manor Shopping Center property. This money had been paid into the registry of the Circuit Court of Montgomery County, Maryland.

13. On May 17, 1999, Judge Clements of the Circuit Court of Fauquier County, Virginia dismissed Respondent's lawsuit as well as Mrs. Patterson's lawsuit. Judge Clements sanctioned Respondent in the amount of $6,108.00, for "filing a complaint without basis in law or fact."

We find, in connection with this matter, that the Bar has failed to carry its burden of proof. As discussed above, the Board may accept a sanctions order as relevant to the issue of misconduct but the underlying misconduct must still be proved. Here it was not.

Paragraph 14 reads as follows:

14. Hooper, Respondent and Mrs. Patterson have filed five appeals to the Fourth Circuit. Respondent filed an appeal from Judge Chanow's ruling remanding the case. Respondent, Hooper and Mrs. Patterson appealed Judge Chanow's sanction order. In addition, the Respondent appealed the dismissal of the RICO suit and sanctions.

As this paragraph does not allege violations of disciplinary rules, it requires no comment from the panel.

Paragraph 15 and 16 read as follows:

15. The appeal of the dismissal of the RICO case was without merit. As an indication of that fact, Respondent did not provide a written response to Gemini's Motion Dismiss for Willful Failure to Comply with a Court Order. The Respondent did not provide a written response to Gemini's motion for Summary Judgment. The Respondent failed to appear at the January 15, 1998 argument of the motions indicated above.

16. Similarly, Respondent failed to provide a written response to the Motions for Summary Judgment filed by John C. Decker, II, Kyle Doniff, Merritt Lee Murray, J. Michael Slocum and Slocum, Boddie and Murray, PC. Furthermore, Respondent failed to appear at the hearings on those matters.

See the section of this opinion concerning paragraph 7. As stated therein, the Board find by clear and convincing evidence that in connection with his handling of the RICO case, Respondent violated DR 7-101 (A) (1)(2) and (3) and DR 7-105 (A).

Paragraph 17 reads as follows:

17. The United States Bankruptcy Court for the Eastern District of Virginia found that Respondent obtained $250,000.00 from Riggs National Bank, by means of actual fraud or false representations. As a result, the debt was deemed to be nondischargeable pursuant to 11 U.S.C. Section 523 (a)(6) (1988). The Fourth Circuit Court of Appeals has affirmed a finding that the Respondent willfully and maliciously converted funds from a closed equity credit line with Riggs bank.

At the hearing, the Bar's own witness testified to facts that established that the first sentence of paragraph 17 was inaccurate, in that the U.S. Bankruptcy Court did not make the finding that is alleged in paragraph 17. Moreover, the Bar's remaining evidence on the issue failed to establish the misconduct that was alleged. Thus, upon Respondent's motion to strike, made pursuant to Rules of the Supreme Court, Part Six, Section IV, Paragraph 13 (C)(6), the Board struck paragraph 17.

Paragraph 18 reads as follows:

18. On August 5, 1998, Respondent was sanctioned in the amount of $500. by the United States Bankruptcy Court for the Eastern District of Virginia, Judge Martin Bostetter, for filing pleadings that were without basis in fact or law and his failure to appear in Court for argument of his motion. Judge Bostetter found that Respondent acted knowingly and willfully with the intent to thwart the bankruptcy system and to harass Roy B. Zimmerman. Respondent failed to comply with the Court's August 5, 1998 order to pay sanctions and a rule to show cause was issued. Respondent was again sanctioned by the September 22, 1998 order of the United States Bankruptcy Court for the Eastern District of Virginia.

The panel finds the Bar failed to prove by clear and convincing evidence that the Respondent, under the allegations set forth in paragraph 18 violated DR 7-102 (A)(1) and (2). We recognize that the Bar was handicapped in meeting its burden of proof due to the death of Mr. Zimmerman. Nevertheless, the Board must base its decisions on the evidence before it and here the evidence was lacking. However, the Board does find that the Respondent failed to comply in a timely manner with the Court's order of August 5, 1998 directing him to pay sanctions. Therefore, the panel does find the Respondent to be in violation of DR 7-105 (A), which rule has been previously set out in this Order.

Paragraph 19 reads as follows:

19. During a November 1999 hearing, Respondent lied in Fairfax County Circuit Court. Respondent told the Court that he did not know where his wife lived. He said that she lived somewhere in Atlanta. The Respondent provided a Stockbridge, Georgia address but no personal service was ever made at that address. Mrs. Patterson's employer, Air Tran Airlines, lists only Virginia contact information and Air Tran paid Virginia employment taxes on behalf of Mrs. Patterson. After further inquiry Judge MacKay asked if Respondent and his wife had any children. Respondent admitted that they have a child. When asked if the child was grown up Respondent told the court that his child was in college. Respondent's child was 13 years of age when the Respondent was asked if his children were grown. The Respondent also provided false and/or misleading answers in response to an Order Compelling Discovery. On April 12, 2000, the Respondent listed his home address as 4216 Mosby Street, The Plains, Virginia 20198. This was not true. Ms. Susan L. Fraser, a member of the Virginia State Bar, rented and moved into the home located at 4216 Mosby Street, The Plains, Virginia 20198 on March 27, 2000.

As to the allegation that the Respondent violated DR 7-101, DR7-102 and DR 7-105, each of these provisions apply to an attorney acting in his capacity as an attorney representing a litigant. Here, the Respondent was himself the litigant in this matter and his statements were made as a litigant, not as counsel for the litigant. Thus, these provisions simply do not apply to the alleged misconduct.

However, if it were proved that the Respondent, even in his capacity as a litigant, lied to the Court, it would certainly constitute a most serious violation of DR 1-102(A)(3) and (4). An attorney -- whether acting as counsel for a party or as the party himself -- owes the Court a strict fidelity to the truth. Here, however, the Bar failed to carry its burden of proof as to any of the three allegations of deceit.

First, as to whether he knew his wifes address, Bar counsel accepted a stipulation as to what the Respondents wife would have testified to if she had testified at the hearing. That stipulation, which was unchallenged, supported much of what Respondent had to say and undermined the Bars claim that the Respondent lied to the Court on this issue.

Second, as to Respondents statement that his child was in college, we note at the outset that the Certification before this Board was inaccurate. The Certification clearly suggests that Respondent had just one child, and that the child was just 13. In that context, a statement by the Respondent to the Court that his child is in college would appear to be a blatant lie. The evidence establishes, however, that the Respondent has several children, including at least one child who was, in fact, in college at the time of Respondents statement. Respondents statement to the

Court may still be faulted for not being more comprehensive but that is a far cry from concluding

that he intentionally lied to the Court.

Third, as to Respondents representation in an interrogatory that he lived at 4216 Mosby Street on the day he signed the interrogatory, that answer was in fact inaccurate. The issue before the Board, however, is whether it was intentionally inaccurate. Respondents uncontradicted testimony was that at the time he filled out the interrogatories he did in fact live at the Mosby Street address but that, by the time he actually executed the interrogatories, he had moved. He testified that he failed to review his interrogatory answers before executing the affidavit. There is no evidence in the record that Respondent was trying to avoid service of process or gain a tactical advantage by providing the opposing party false address information. Rather, it appears that Respondent was negligent in executing the interrogatories without doing a final review of its contents. The Court and the Bar certainly have a right to expect more conscientious conduct from a member of the bar, but the allegation before this Board is that the Respondent either committed "a crime or other deliberately wrongful act that reflects adversely on the lawyers fitness to practice law" (DR 1-102(A)(3)) or engaged "in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on a lawyers fitness to practice law" (DR 1-102(A)(4)). As to these allegations of misconduct, the Bar simply has not carried its burden of proof.

Paragraph 20 reads as follows:

20. On April 28, 2000, the Respondent lied and/or otherwise mislead Judge McWeeny of the Circuit Court of Fairfax County, Virginia. The Respondent

was asked if he was represented by Peter Paul, Esquire in a related judgment collection case in Jackson County, North Carolina. Mr. Patterson denied that he was represented by Mr. Paul and insisted that Mr. Paul represented his wife, Maureen Patterson. The Respondent was then placed under oath. The Respondent stated that "Mr. Peter Paul is in fact Maureen Patterson, Trustee's, attorney." Following this hearing, Judge McWeeny enjoined the Respondent from enforcing the February 2, 1996 and/or the May 17, 1996 Consent Orders. One week later, the Respondent appeared in the Circuit Court of Jackson County, North Carolina with Peter Paul as his attorney. On May 8, 2000, Mr. Paul asked to have Thomas J. Mitchell admitted pro hac vice to represent Maureen Patterson in the North Carolina proceedings. Following the pro hac vice motion, the Court asked Mr. Paul as Mr. Patterson's "attorney of record" to address the issue of Judge McWeeny's April 28, 2000 preliminary injunction.

Bar counsel withdrew this allegation. The stipulated evidence presented to the panel at this hearing shows that the Respondent's statements concerning the representation of Mr. Peter Paul, which was made on April 28, 2000, were accurate.

Paragraph 21 reads as follows:

21. A Bench trial was held on November 7, 8, 30, and December 27, 2000 to determine if the February 2, 1996, and May 17, 1996 judgments entered in favor of the Respondent should be voided as fraudulent conveyances. On January 18, 2001, the Honorable Dennis J. Smith, Judge of the Fairfax County Circuit Court, ruled that the judgment entered by consent order on February 2, 1996 (see paragraphs 2 and 3 above Re: Law No. 141848), and again by consent judgment on May 17, 1996, was inter alia, a fraudulent conveyance, as was the transfer of the judgment to Maureen Patterson and to Maureen Patterson as trustee of the Patterson Family Trust, who in turn transferred the judgment to herself as trustee of the Children's Trust.

The panel finds the evidence presented in reference to the allegations set forth in paragraph 21 fail to prove by clear and convincing evidence a violation of disciplinary rules.

Again it should be emphasized that, while we give great weight to a Judge's findings, the Bar must still prove the underlying misconduct to the Board's satisfaction.

In summary, the panel finds that the Respondent, in failing to seek the lawful objectives of his client, did violate DR 7-101 (A) (1) and (2). We further find that the Respondent, on two occasions, disregarded the ruling of a tribunal, thereby violating DR 7-105(A). Upon consideration of these matters, the panel hereby issues a PUBLIC REPRIMAND effective upon entry of this ORDER.

Tracy J. Stroh, Chandler and Halasz, P.O. Box 9349, Richmond, Virginia 23227, 804-730-1222, was the reporter for the hearing and transcribed the proceedings.

The Clerk of the Disciplinary System shall assess costs pursuant to Part 6, Section IV, paragraph 13(K)(10) of the Rules of the Supreme Court.'

It is ORDERED that the Clerk of the Disciplinary System shall send an attested true copy of this order to the Respondent, Robert Brown Patterson, by certified mail, return receipt requested, at his address of record with the Virginia State Bar, P.O. Box 2051, Middleburg, Virginia 20118, and to Paul Dennis Scanlon, Respondent's Counsel, Suite 103, 9315 Center Street, Manassas, Virginia 20110, and to Claude V. Worrell, Assistant Bar Counsel, Virginia State Bar, Suite 310, 100 North Pitt Street, Alexandria, Virginia 22314-3133.

ENTERED this Order this day of , 2001.



Randy Ira Bellows, Second Vice Chair