VSB Docket No. 99-102-0092


On December 15, 2000 this matter came on for hearing upon certification by the Tenth, Section II District Subcommittee of the Virginia State Bar dated January 24, 2000. The hearing was held before a duly convened panel of the Virginia State Bar Disciplinary Board consisting of Henry P. Custis, Jr., Chair, Richard J. Colten, Chester J. Cahoon, Jr., Dennis P. Gallagher, and Roscoe B. Stephenson, III.

All notices required by law were sent by the Clerk of the Disciplinary System.

The Respondent appeared in person, represented by his counsel, Rhetta M. Daniel, Esquire.

Richard E. Slaney, Esquire appeared as counsel for the Virginia State Bar.

Tracy J. Stroh, Chandler & Halasz, P.O. Box 9349, Richmond, VA 23227, (804) 730-1222, having been duly sworn, reported the hearing.

The Chair opened by polling all panel members as to whether there existed any conflict or other reason why any member should not sit on the panel. Each, including the Chair, responded in the negative.

All exhibits listed by the Virginia State Bar in its pre-hearing filing were received and accepted into the record without objection. The Respondent did not pre-file any exhibits, nor did he offer exhibits at the hearing. During the course of the hearing two additional exhibits were offered and received in evidence.

Both sides produced witnesses. At the close of the evidence the panel deliberated and found the following facts by clear and convincing evidence:

1. At all times material to this proceeding, the Respondent, Zane Bruce Scott (Scott) was an attorney licensed to practice law in the Commonwealth of Virginia. Further, at all times material to this proceeding, Scott was an Assistant Commonwealth's Attorney for Wise County, Virginia.

2. At all times material to this proceeding, Rhonda Joyce Clay (whose surname at the time of the hearing was "Hill," but who will be referred to herein as "Clay") of Coeburn, Virginia, was a court reporter in the Wise County area, and knew Scott.

3. On April 11, 1998 Clay was charged in Wise County under two felony arrest warrants alleging violations of 18.2-22 of the Code of Virginia, 1950, as amended, conspiracy to fraudulently obtain or procure and possess a controlled substance.

4. Shortly after her arrest on these charges, and before her arraignment, Clay met with Scott and presented to him her version of the facts underlying the charges. Scott was then acting as the prosecutor assigned to the Clay cases. Clay could not remember whether Scott advised her to consult with legal counsel about the matter, but it is clear that Scott discussed the merits of the charges with Clay at this encounter.

5. Thereafter, attorney Anthony Collins (Collins) was appointed to represent Clay on these charges.

6. Shortly after his appointment Collins received a telephone call from Clay during which she indicated she was calling from Scott's office and she and Scott were discussing the charges. Collins immediately went to Scott's office and found Clay and Scott discussing the charges. Scott advised Collins and Clay he believed Clay's version of the events leading to her arrest, that in his opinion she was not guilty, and that he would work with Clay to assure the charges against her were dropped. This meeting occurred prior to Memorial Day, 1998.

7. Prior to Memorial Day, 1998, Scott told Clay he might need her to assist him as a court reporter in Lebanon, Virginia on the Monday of the Memorial Day holiday. Scott later told Clay he would need her to assist him on Memorial Day.

8. On Memorial Day, 1998, Scott and Clay met and began to drive to Lebanon together in Scott's automobile. Scott, who was driving, did not go to Lebanon, but instead drove toward Abingdon, Virginia. When Clay asked where they were going, Scott responded that she needed to relax and forget her problems, and that she would feel much better next week when the charges against her were cleared up. Scott and Clay went to the Comfort Inn in Abingdon and engaged in sexual relations. Clay engaged in the sexual relations as a direct result of coercion and intimidation exercised upon her by Scott growing out of his prosecutorial powers in her two felony cases. In explaining why she did not resist going into the motel with Scott, Clay testified, "I felt I had the choice between that motel room and a jail cell."

9. Thereafter, Scott informed Collins that he would not be prosecuting the charges against Clay, but that another prosecutor would handle the matter. When Collins relayed this to Clay, she became upset, and told Collins what had occurred on Memorial Day.

10. Clay then decided to tape record her next conversation with Scott, and did so (Tape A, VSB Exhibit 5). The conversation recorded on Tape A confirms the actions of Scott and Clay on Memorial Day. Further, Scott now admits he engaged in sexual relations with Clay at the Abingdon Comfort Inn on Memorial Day, 1998.

11. Clay took Tape A to Collins, and Collins voiced concern to Scott's superior, Greg Kallen (Kallen), the Wise County Commonwealth's Attorney. Kallen and another Assistant Commonwealth's Attorney, Karen Bishop, confronted Scott with this information on July 10, 1998. Scott then denied meeting with Clay at the Abingdon Comfort Inn.

12. Thereafter, a meeting was arranged at Collins' office between Scott, Clay and Collins. That meeting was secretly tape recorded (Tape B, VSB Exhibit 7). During that meeting, Scott repeatedly inquired about the existence of a taped conversation, and was told Tape A existed. Scott suggested they give him Tape A and either deny Tape A existed or deny anything untoward was discussed on Tape A and refuse to produce it.

13. Tape A and Tape B were played for Kallen. On July 14, 1998, Kallen again confronted Scott. Scott admitted he went to the Comfort Inn but denied it was with Clay. Kallen then suspended Scott; however, within 30 minutes thereafter Scott resigned.

14. In another case, on November 21, 1997, one Kimberly M. Bowen (Bowen) was indicted in Wise County for unlawfully and feloniously receiving public assistance from the Department of Social Services of Wise County and for perjury (the First Indictment). Bowen was later indicted on June 3, 1998 in Wise County for several counts of distribution of marijuana (the Second Indictment).

15. On two occasions, both occurring after the First Indictment, Scott spoke to Bowen and intimated that if they had sexual relations, he would make sure any pending indictments were dismissed.

16. On a third occasion, which happened after the First Indictment and probably after the Second Indictment, Bowen and Scott had sexual relations in his office. Afterward, Scott told Bowen he would keep his promise to her regarding the criminal charges against her.

The Board finds with clear and convincing evidence that the proven facts establish violations of the following Disciplinary Rules of the Virginia Code of Professional Responsibility:

DR 1 102. Misconduct.

(A) A lawyer shall not:

(3) Commit a crime or other deliberately wrongful act that reflects adversely on the lawyer's fitness to practice law.

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on a lawyer's fitness to practice law.

DR 7 102. Representing a Client Within the Bounds of the Law.

(A) In his representation of a client, a lawyer shall not:

(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.

(8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.

DR 7 103. Communicating with One of Adverse Interest.

(A) During the course of his representation of a client, a lawyer shall not:

(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.

(2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client.

DR 8 101. Action as a Public Official.

(A) A lawyer who holds public office shall not:

(3) Accept anything of value from any person when the lawyer knows or it is obvious that the offer is for the purpose of influencing his action as a public official.

DR 9 101. Avoiding Even the Appearance of Impropriety.

(C) A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body or public official.

Having made these findings of misconduct, the Board proceeded to hear evidence in aggravation and mitigation. The Virginia State Bar made it known that the Respondent has no prior record of misconduct. The Respondent testified in mitigation and produced two character witnesses on his behalf. After hearing this evidence the parties rested and made final argument for disposition.

The Board then deliberated and determined that the proper disposition of this misconduct is revocation. There are numerous factors that make this conduct particularly egregious. The awesome powers of a prosecutor in relation to an accused place on the prosecutor the high duty to remain true to his oath. Misuse or abuse of these powers not only can result in harm to the accused, but also can result in improperly compromised prosecutions and/or faulty convictions. On the facts before us we see strong evidence of personal harm to these two women who stood accused of criminal behavior, and also evidence of improperly compromised prosecutions. On the second point, we know at the very least that Scott's misconduct in the Clay charges resulted in the appointment of a special prosecutor to handle those charges. The special prosecutor moved for a nolle prosequi on those charges on September 22, 1998; action Scott attributes to complications arising from his sexual encounter with Clay.

Although he steadfastly denies it in his testimony before the Board; when the spotlight turned on him, Scott clearly tried to coax Clay and Collins to relinquish Tape A and to falsely represent to the Commonwealth Attorney that the tape either did not exist or contained nothing remarkable. Scott explains these actions as an attempt to gain control of the tape because he thought Clay and Collins would alter it. We do not believe his testimony on that point.

A prosecutor's actions are constantly in the public eye. Scott, himself, testified that his tryst with Clay caused a great deal of adverse publicity in the media. It is probable that his misconduct has undermined public confidence in the administration of justice. We believe it put the entire legal profession in a bad light.

On a final note, we believe Scott made every attempt to minimize his misconduct through denials and misrepresentation, up to and including his testimony before this Board. After persistent denials spanning a period of some six weeks, Scott found himself boxed in by the two tape recordings, and he then admitted the encounter with Clay. He claims, however, that it resulted from mutual desires stemming from a lengthy personal friendship. He denied under oath: first, that he ever acted as the prosecutor on Clay's charges; second, that he used his position to pressure Clay into the sex acts; and finally, that he bartered leniency or acquittals for sex. He thereby maintains the position that this was only an embarrassing personal indiscretion that had nothing to do with his office or the legal profession in general. We do not believe these denials.

Scott insists that Bowen fabricated her entire story after hearing publicity of the Clay matter, but he presented no evidence to show that Bowen has in any way gained benefit from coming forward. However, we believe Bowen. It was apparent that Bowen would rather not have appeared before us. She was reluctant to recount the events. Her testimony caused her obvious discomfort and embarrassment. Her demeanor was not that of a person motivated toward some gain or other self interest. But Scott's motivation to flatly deny Bowen's accusations is easily understood. These two had never known each other as friends or otherwise. Their sexual encounter in Scott's courthouse office cannot be characterized as voluntary on Bowen's part. He has nothing here to admit and explain away, so he denies it all. We believe Scott coerced sex from Bowen using not his charm, but only the power of his office. There is no other explanation.

Even though Scott had prior personal acquaintance with Clay, we believe that it was not the type of relationship that would lead to their sexual encounter. We take note of the undisputed fact that they never again made plans to rendezvous. Were this a mutual affair, unrelated to the prosecution, Clay would not have taped the telephone conversation and the meeting with Collins and Scott. She would not have had Collins go to the Commonwealth Attorney with the tapes. There would have been evidence of other contacts between them in furtherance of their affair. We are convinced that Scott used his office to coerce Clay to submit to his desires on Memorial Day, 1988, and that his explanation falls far from the truth.

In summary, it is hard to envision a pattern of lawyer misconduct more predatory than this. It is damaging to the profession as a whole. Scott refuses to acknowledge the extent of his professional misconduct. Instead he has compounded it with his untruthfulness.

ACCORDINGLY IT IS ORDERED that the license of ZANE BRUCE SCOTT be, and the same is hereby REVOKED, effective December 15, 2000.

It is further ORDERED pursuant to the provisions of Part Six, IV, 13(K)(1) of the Rules of the Supreme Court of Virginia, that the Respondent shall forthwith give notice by certified mail, return receipt requested, of this revocation of his license to practice law in the Commonwealth of Virginia, to all clients for whom he is currently handling matters and to all opposing attorneys and the presiding judges in pending litigation. The Respondent shall also make appropriate arrangements for the disposition of matters now in his care in conformity with the wishes of his clients. The Respondent shall give such notice within fourteen days of the effective date of this revocation order, and make such arrangements as are required herein within forty-five days of the effective date of this order. The Respondent shall furnish proof to the bar within sixty days of the effective date of this order that such notices have been timely given and such arrangement for the disposition of matters made. Issues concerning the adequacy of the notice and arrangements required herein shall be determined by the Disciplinary Board, which may impose additional sanctions for failure to comply with the requirements of this subparagraph.

It is further ORDERED that ZANE BRUCE SCOTT shall furnish true copies of all of the notice letters sent to all persons notified of the revocation, with the original return receipts for said notice letters, to the Clerk of the Disciplinary System, on or before February 14, 2001.

It is FINALLY ORDERED that the Clerk of the Disciplinary System forward a copy of this order to the Respondent, by certified mail, at his address of record with the Virginia State Bar, and to Richard E. Slaney, Esquire, Assistant Bar Counsel.

ENTERED this ____ day of ____________________ , 2001.


By: _______________________________________