Complainant
v.

3. During the appellate process, Mr. Hartle and his fiancee', Jeany Getrost, commenced discussions with Mr. Sebok about a petition for a writ of habeas corpus. On or about March 14, 1997, after the appellate process was completed, Ms. Getrost hired Mr. Sebok to pursue a habeas corpus action for Mr. Hartle. She gave Mr. Sebok check number 1023, drawn on her joint account with Mr. Hartle at the Crestar Bank, in the amount of $5,000 (five thousand dollars), payable to Mr. Sebok. The same day, she accepted a receipt, dated March 14, 1997, that reads as follows:

"This day I received check number 1023 in the amount of $5000.00 payable to Andrew Sebok from Jeany Getrost for representation of Kevin Hartle in the appeal in the matter of the Commonwealth of Virginia v. Kevin Hartle. This payment represents a non-refundable retainer."

Mr. Sebok advised the Virginia State Bar investigator that he did not deposit the $5,000 fee into his attorney trust account.

4. In accordance with Virginia Code Section 8.01-654(A), the petition was due to be filed within one year of the final disposition of Mr. Hartle's appeal, or by September 26, 1997. Mr. Hartle and Mr. Sebok spoke by telephone, and Mr. Hartle provided Mr. Sebok with information by mail at Mr. Sebok's request. About one day prior to the filing deadline, Mr. Sebok brought Mr. Hartle a draft petition at the Greensville Correctional Center. Mr. Hartle advised Mr. Sebok that there were several errors in the petition. Mr. Hartle communicated his changes to Mr. Sebok by telephone on the morning of the day that the petition was due. Mr. Sebok then filed the petition on September 26, 1997. Thereafter, Mr. Sebok took no further action in the matter, and Mr. Hartle heard nothing more from Mr. Sebok.

5. On December 17, 1997, Assistant Attorney General Eugene Murphy filed a Motion to Dismiss the petition, and mailed a copy to Mr. Sebok. Mr. Sebok did not file a response to the Motion to Dismiss, and did not advise his client about it.

6. On November 20, 2000, having heard nothing from Mr. Sebok, Mr. Murphy tendered an Order dismissing the petition to the Norfolk Circuit Court. Since Mr. Sebok's license to practice law was suspended on October 13, 2000, Mr. Murphy did not send him a copy. The Court entered the order dismissing the petition on November 27, 2000.

7. On November 27, 2000, having heard nothing from Mr. Sebok, and having read in the newspaper about the suspension of Mr. Sebok's license to practice law, Mr. Hartle wrote to the Court to inquire about the status of his petition. (Mr. Sebok did not inform Mr. Hartle about the suspension of his license.) Mr. Hartle also filed a motion to non-suit the petition. He subsequently learned from the Court that his petition had been dismissed. He heard nothing more from Mr. Sebok. Neither Mr. Hartle nor Ms. Getrost received any refund of the fees paid.

(A) A lawyer's fees shall be reasonable and adequately explained to the client.

DR 2-108. Terminating Representation.

(D) Upon termination of representation, a lawyer shall take reasonable steps for the continued protection of a client's interests, including giving reasonable notice to the client, allowing time for employment of other counsel, delivering all papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by applicable law.

(B) A lawyer shall attend promptly to matters undertaken for a client until completed or until the lawyer has properly and completely withdrawn from representing the client.

(C) A lawyer shall keep a client reasonably informed about matters in which the lawyer's services are being rendered.

(D) A lawyer shall inform his client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter.

DR 7-101. Representing a Client Zealously.

(A) A lawyer shall not intentionally:

(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.


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:

(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.

To the extent that any misconduct occurred after January 1, 2000, the following Rules of Professional Conduct are affected:

RULE 1.3 Diligence

(a) A lawyer shall act with reasonable diligence and promptness in representing a client.

(b) A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but may withdraw as permitted under Rule 1.16.

RULE 1.4 Communication

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter.

RULE 1.16 Declining Or Terminating Representation

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, refunding any advance payment of fee that has not been earned and handling records as indicated in paragraph (e).

11. Thomas C. Dawson, counsel for the defendant, would say that Mr. Sebok did most of the work in the cases. On October 12, 2000, in the Hawkins matter, Mr. Dawson filed a Motion to Compel the plaintiffs to respond to interrogatories and a request for the production of documents propounded to the plaintiff on September 5, 2000. He scheduled the Motion to be heard on November 22, 2000.

12. On October 13, 2000, while the law suits were pending, the Virginia State Bar Disciplinary Board suspended Mr. Sebok's license to practice law for a period of nine (9) months. The suspension order was with the consent of Mr. Sebok. Counsel discussed having Mr. Sebok work as a paralegal
for Mr. Haverson during the suspension period.

13. On November 22, 2000, Mr. Sebok sent a facsimile to Mr. Dawson, in care of the presiding judge, the Honorable Frederick H. Creekmore, in the Hawkins matter. In the facsimile, Mr. Sebok requested that the Motion to Compel not be heard that day because "we" had substantially complied with discovery. The facsimile read as follows:

"Dear Tom/Judge Creekmore:

Attached please find unexecuted answers to interrogatories in Hawkins v. Gaines, which is currently on the Court's docket for a Motion to Compel. These answers were inadvertently not delivered yesterday when I dropped off the answers in a companion case at Tom's office. I called Tom's office this morning to confirm that the Motion to Compel was withdrawn and was advised that the attached answers were not received by Tom. I am delivering said answers to Tom's office now and would ask that the Motion to Compel noit [sic] be heard as we have substantially complied with the outstanding discovery which is the subject of the motion. Also, I have left word at both Tom's office and with the Docket Clerk asking Tom to call me so that I could explain all this to him and prevail upon him not to go forward with the motion.

Thank you for your attention in this matter. If you have any questions or comments, please feel free to contact me at 490-0123."

14. Mr. Sebok explained to the Virginia State Bar investigator that in sending the facsimile, he thought that he was acting as a paralegal, not as an attorney. Despite Mr. Sebok's letter, the Court entered an order granting the Motion to Compel on November 22, 2000.

15. During 1999, Mr. Sebok filed a Motion for Judgement in the Norfolk General District Court in the matter of Pia Jackson v. T.N.G. Transport, Inc., et al, a personal injury matter. The matter was removed to the circuit court, and Mr. Sebok continued as counsel for the plaintiff through discovery and trial preparation. The case settled. Ms. Jackson, however, died in the interim.

16. Ms Jackson having died, it was necessary for the court to appoint an administrator in order for the insurance carrier to disburse the settlement proceeds. Mr. Sebok's license to practice law was suspended on October 23, 2000 for a period of nine months. At Mr. Haverson's direction, on January 24, 2001, while his license to practice law was suspended, Mr. Sebok requested the Clerk for the Circuit Court of the City of Norfolk to appoint him as administrator of the estate of Pia Jackson. He informed the Clerk that he sought the appointment so that the $1,500 insurance settlement could be perfected for the beneficiaries of the estate. He said that he was acting as a paralegal. The Clerk denied his request, and appointed someone else on January 30, 2001.


II. NATURE OF MISCONDUCT (01-021-1108)

The parties agree that the foregoing facts give rise to violations of the following Rules of
Professional Conduct:

RULE 3.4 Fairness To Opposing Party And Counsel

A lawyer shall not:
Knowingly disobey or advise a client to disregard a standing rule or a ruling of a tribunal made in the course of a proceeding, but the lawyer may take steps, in good faith, to test the validity of such rule or ruling.

RULE 5.5 Unauthorized Practice Of Law

A lawyer shall not:

practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or

RULE 8.4 Misconduct

It is professional misconduct for a lawyer to:

violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;


I. STIPULATIONS OF FACT (continued)

18. On April 22, 1997, attorney Joseph Massie, acting on behalf of Mr. Jones, filed a petition for a writ of habeas corpus in the Hampton Circuit Court. On October 1, 1997, the court denied the petition.

19. On July 21, 1998, Mr. Jones' sister, Kathy Herring (formerly Bailey), paid Mr. Sebok $7000 to pursue a writ of habeas corpus for Mr. Jones. Mr. Sebok did not deposit the fee in his attorney trust account, but placed it in his operating account. He explained to the Virginia State Bar that he felt that he had earned the fee upon receipt, this being a flat fee for legal services.

20. On August 14, 1998, Mr. Sebok retrieved the case records from the court for review. On October 1, 1998, he filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia, Richmond Division. The Commonwealth responded with a Motion to Dismiss

on November 6, 1998. Mr. Sebok, however, did not file a response to the Motion to Dismiss. On January 27, 1999, the United States District Court granted the Motion to Dismiss, making the specific finding that
Jones had not responded to the Motion to Dismiss, and that the petition for a writ of habeas corpus was time-barred under 28 U.S.C. 2244(d)(1)(A).

21. On February 26, 1999, Mr. Sebok filed a Notice of Appeal of this decision to the Fourth Circuit Court of Appeals. On March 2, 1999, the Court of Appeals notified Mr. Sebok that he was required to file a $105 docketing and filing fee, or apply for leave to proceed in forma pauperis. Mr. Sebok did not do as directed, and on March 19, 1999, the Court of Appeals issued a Notice of Intent to Dismiss the appeal if he did not do as directed by April 5, 1999. Mr. Sebok took no further action, and the court dismissed the appeal on April 12, 1999.

22. Mr. Sebok explained to the bar that he and Mr. Jones decided to let the case "die a natural death" because, according to Sebok, "there was no legal way we could get past the Massie mistakes; they prevented the issues from being raised in federal court because they had either not been raised or properly preserved in state court and the rules required that that be the case before the federal court would consider them." Mr. Sebok explained further that his client had a better chance with a state remedy, a writ of coram vobis, on the basis that someone other than his client had confessed to committing the crimes. According to Mr. Sebok, he explained this to Mr. Jones and his sister, and Mr. Jones agreed to let the federal appeal lapse accordingly. Mr. Jones and Ms. Herring, however, would say that Mr. Sebok never told them that he would let the appeal lapse, and never told them the outcome of the appeal

23. On June 7, 1999, James Riddick, an inmate with Mr. Jones at the Nottaway Correctional Center, executed an affidavit confessing to the crimes that Mr. Jones had been convicted of. Mr. Sebok incorporated this in his writ of coram vobis, and asked for a hearing in the trial court. It is unclear when Mr. Sebok filed the writ. His certification of mailing is dated December 23, 1999. The circuit court, however, stamped it received on June 23, 2000. The Commonwealth had already filed its answer on June 1, 2000. In its answer, the Commonwealth argued for a dismissal of the writ on the basis that it was not the appropriate remedy, and that the court lacked jurisdiction. Mr. Sebok did not file a response to the Commonwealth's answer, and did not inform Mr. Jones about it. Mr. Sebok never scheduled the matter for hearing in the circuit court either, although he told Ms. Herring that he had, but that the judge went on vacation.

24. On October 13, 2000, the Virginia State Bar Disciplinary Board suspended Mr. Sebok's license to practice law. By letter, dated October 20, 2000, he notified Mr. Jones of the suspension, and asked him to contact Sebok to make arrangements in his case. On October 24, 2000, Mr. Sebok refunded $700 to Ms. Herring, and agreed in writing to refund the remainder of the $7000 in increments before February 28, 2001. Mr. Sebok never refunded any more money as promised.

II. NATURE OF MISCONDUCT (01-021-2731)

The parties agree that the foregoing facts give rise to violations of the following Disciplinary Rules and Rules of Professional Conduct:

DR 2-105. Fees.

(A) A lawyer's fees shall be reasonable and adequately explained to the client.

(B) A lawyer shall attend promptly to matters undertaken for a client until completed or until the lawyer has properly and completely withdrawn from representing the client.

(C) A lawyer shall keep a client reasonably informed about matters in which the lawyer's services are being rendered.

(D) A lawyer shall inform his client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter.

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:

(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.

To the extent that any misconduct took place after January 1, 2000, the following Rules of Professional Conduct apply:

RULE 1.3 Diligence

(a) A lawyer shall act with reasonable diligence and promptness in representing a client.
(b) A lawyer shall not intentionally fail to carry out a contract of employment entered into with a client for professional services, but may withdraw as permitted under Rule 1.16.

RULE 1.4 Communication

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

(c) A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter.

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 receive.

RULE 1.16 Declining Or Terminating Representation

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, refunding any advance payment of fee that has not been earned and handling records as indicated in paragraph (e).

III. DISPOSITION

The parties agree that the Virginia State Bar Disciplinary Board previously made several findings of fact concerning a Disability suffered by the Respondent during 1996-1999 that had an impact on his ability to practice law. The Board incorporated these findings in an Order, the pertinent portions of which are as follows:
"The Board heard evidence from several fact witnesses and two psychologists. In brief, the evidence presented was that Respondent was a respected and talented lawyer in the areas of criminal appellate work and immigration law for many years prior to 1996. The evidence was that he was extremely dedicated to pursuing his clients interests prior to that date. Beginning in 1996, Respondent experienced several emotional traumas which sent him into a state of severe depression. These events included a divorce, financial reverses, loss of his office space and witnessing the execution of one of his clients with whom he had developed a personal relationship. When these occurred, Respondent became depressed and despondent. His personality, as described by several witnesses, changed during this period. He became disorganized and incapable of keeping up with deadlines. He was in sole practice. Several of the complainants testified that they held no animus towards Respondent, as evidence by the fact that complainant Noble had not terminated her employment of him as of the date of the hearing. Moreover, the evidence presented established that once Respondent got into treatment, started taking appropriate medication, took employment with another attorney who dealt with the fees received and employed a paralegal to assist him in keeping up with deadlines, the problems evidence by his unacceptable conduct between 1996 and 1999 ceased to exist.

In hearing the above evidence, the Board was mindful of Part Six, Section IV, Paragraph 13.C(6)(e) of the Rules of Court which states:

'If the Board finds that the misconduct was the result of a Disability,
It may consider the disability in mitigation of any discipline imposed.'

With the above evidence and guiding rule in mind, the Board heard and accepted an agreed disposition as to sanctions which was presented to the Board by Respondent and the Virginia State Bar. In doing so, the Board found by clear and convincing evidence that Respondent's misconduct was due to a disability and it exercised its discretion to consider that Disability in mitigation of the discipline imposed."

The Board imposed a nine-month suspension with terms. The Board heard ten more cases of misconduct against Mr. Sebok in February 2001, made the same findings concerning the disability between 1996 and 1999, and imposed an additional ten-month suspension of his license to practice law. On December 23, 2001, the Respondent's license to practice law was reinstated. There have been no complaints of misconduct by the Respondent since the reinstatement of his license.

The Respondent, his counsel, and Virginia State Bar agree that substantially all of the misconduct in case Numbers 01-021-1007 and 01-021-2731 stipulated to in this agreement took place during the period of his disability, and that had these cases been before the Board during the evidentiary hearing referenced above, that they likely would have been incorporated in the previous sanctions imposed.
In accordance with the Agreed Disposition, it is the decision of this Court to issue to the Respondent, Andrew Robert Sebok, a PUBLIC REPRIMAND with TERMS, subject to the following terms and conditions:
1. The Respondent, Andrew Robert Sebok, is hereby placed on probation for a period of two (2) years, said period to begin the date that the Court enters this Order. Mr. Sebok will engage in no professional misconduct as defined by the Virginia Rules of Professional Conduct during such two-year probationary period. Any final determination of misconduct determined by any District Committee of the Virginia State Bar, the Disciplinary Board, or a three-judge court to have occurred during such period will be deemed a violation of the terms and conditions of this Agreed Disposition and will result in the imposition of the alternate sanction, the Revocation of the Respondent's license to practice law in the Commonwealth of Virginia. The alternate sanction will not be imposed while Mr. Sebok is appealing any adverse decision which might result in a probation violation.
2. Mr. Sebok will continue to comply with the Terms imposed by the Virginia State Bar Disciplinary Board in its Order, entered November 14, 2000.
3. Mr. Sebok will issue refunds to the following individuals within the times indicated:
A. The sum of $5,000 (five thousand dollars) to Jeany Getrost and Kevin Hartle by September 1, 2005.
B. The sum of $6,300 (six thousand three hundred dollars) to Kathy Herring by September 1, 2005.
The imposition of the alternate sanction will not require a hearing before the Three-Judge
Court or the Virginia State Bar Disciplinary Board on the underlying charges of misconduct stipulated to in the Agreed Disposition if the Virginia State Bar discovers that the Respondent has violated any of the foregoing terms and conditions. Instead, the Virginia State Bar shall issue and serve upon the Respondent a Notice of Hearing to Show Cause why the alternate sanction should not be imposed. The sole factual
issue will be whether the Respondent has violated the terms of this Agreed Disposition without legal justification or excuse. The imposition of the alternate sanction shall be in addition to any other sanctions imposed for misconduct during the probationary period. All issues concerning the Respondent's compliance with the terms of this Agreed Disposition shall be determined by the Virginia State Bar Disciplinary Board, unless the Respondent makes a timely request for hearing before a three-judge court.
The court reporter who transcribed these proceedings is Cathy Edwards, of Ronald Graham and Associates, Inc., 5344 Hickory Ridge, Virginia Beach, Virginia 23455-6680, (757) 490-1100.
A copy teste of this order shall be served by the Clerk of this Court upon the Respondent, Andrew Robert Sebok, by certified mail, return receipt requested, at 1520 Holland Avenue, Norfolk, Virginia 23509, his address of record with the Virginia State Bar; and by regular mail to his counsel, Michael J. Kmetz, Esquire, Suite 807, 142 West York Street, Norfolk, Virginia23510 and J. Barry McCracken, Esquire, Suite 504, 125 St. Paul's Boulevard, Norfolk, Virginia 23510-2734, and to Edward L. Davis, Assistant Bar Counsel, at the Virginia State Bar, Eighth and Main Building, Suite 1500, 707 East Main Street, Richmond, Virginia 23219.

Pursuant to Part 6, Sec. IV, Para. 13.B.8.C of the Rules, the Clerk of the Disciplinary System shall

assess costs.

ENTERED THIS _________ DAY OF ___________, 2003

CIRCUIT COURT OF THE CITY OF NORFOLK

_______________________________________
William C. Andrews, III, Chief Judge
Three-Judge Court

_________________________ _________________________
William R. Shelton, Judge Alfred D. Swersky, Judge
Three-Judge Court Three-Judge Court

WE ASK FOR THIS:

_________________________________ _____________________________
Edward L. Davis, Assistant Bar Counsel Michael D. Kmetz, Esquire
Respondent's Counsel

_________________________________ _______________________________J. Barry McCracken, Esquire Andrew Robert Sebok, Esquire
Respondent's Counsel Respondent