V I R G I N I A:
IN THE MATTER OF
SHARON BETH SOLOWAY, ESQUIRE
VSB Docket Numbers 00-053-3185, 01-053-2523 , 02-053-2329
A. STIPULATION OF FACTS
1. At all times relevant hereto, Sharon Beth Soloway, Esquire (hereafter "Respondent"), has been an attorney licensed to practice law in the Commonwealth of Virginia.
As to VSB Docket No. 00-053-3185:
2. On or about December 13, 1996, Ms. Ernestine McNeil (hereafter "Complainant") of Brockton, Massachusetts, was injured while a passenger in an automobile being operated in Fairfax County, Virginia. The Complainant received hospital emergency room care following the accident, and thereafter received medical care for a period of time in her home state of Massachusetts.
3. Shortly following the time of the accident, the Complainant engaged the Respondent to represent her in her personal injury claim arising out of the accident.
4. The Respondent wrote to the Complainant on July 30, 1998, stating, inter alia, that the "[t]otal medical costs incurred for this accident appear to be $2591.48" and that she, the Respondent, "would suggest settling this matter in the range of $4,500.00 to $7,000.00." The Complainant responded with her own letter to the Respondent's letter on August 7, 1998, authorizing a settlement within the identified range.
5. Following the Complainant's receipt of the Respondent's letter of July 30, 1998, the Complainant never heard again from the Respondent concerning her case, despite the Complainant's repeated telephone and written attempts to secure information, as well as a copy of her case file, from the Respondent.
6. The Virginia State Bar received a Complaint concerning this matter on June 9, 2000. On June 21, 2000, Bar Counsel directed a letter of that date to Respondent, enclosing a copy of the Complaint, and stating, inter alia, in bold and underlined text, the following: "please review the complaint and provide this office with a written answer, including an original and one copy of your response and all attached exhibits, within twenty-one (21) days of the date of this letter." The Respondent failed to file a written response to the Complaint with the Bar as required by the said letter, either within twenty-one (21) days, or at any time thereafter.
7. The Virginia State Bar's investigation of this matter revealed, inter alia, that: a. the Respondent filed a Motion for Judgment on Complainant's behalf in the Fairfax County, Virginia, Circuit Court on December 11, 1998.
b. a status conference was conducted by the Court on April 1, 1999, but the conference was continued due to lack of service of process upon the defendant in the action;
c. the Court entered a non-suit in the case, bearing Respondent's endorsement, on June 24, 1999.
8. As of the time that Complainant sent her Complaint to the Virginia State Bar on or about May 30, 2000, she had not been made aware by the Respondent of any of the facts set forth above in Paragraph 7 although Respondent would testify that she mailed a copy of the complaint to Complainant and that Respondent communicated with Complainant's children regarding Complainant's matter.
9. In addition to her failure to communicate with the Complainant following the Respondent's aforesaid letter respecting settlement, the Respondent also failed to respond on Complainant's behalf to Complainant's health care providers' requests for information concerning the status of Complainant's claim, thus subjecting Complainant to debt collection demands.
10. The Complainant received no funds in settlement of her personal injury claim, and she never received the requested copy of her file.
11. Respondent has voluntarily made restitution to Complainant in the amount of $5,000.00.
As to VSB Docket No. 01-053-2523:
12. On or about December 13, 1994, Mr. James H. Allen (hereafter "Complainant") retained the Respondent to represent him in an employment discrimination complaint against the United States Department of Agriculture.
13. The Respondent represented the Complainant before the Equal Employment Opportunity Commission, which rendered a final decision adverse to the Complainant on February 9, 1999. The decision contained a "right to sue" provision which authorized Complainant to file a civil action in a Federal district court.
14. On May 28, 1999, the Respondent filed a Complaint on Complainant's behalf in the United States District Court for the Western District of Virginia.
15. The Respondent failed to heed two warnings given by the Court that she had failed to effect service upon the defendant in the case. The Respondent had delivered a copy of the Complaint to the United States Attorney for the Eastern District of Virginia, when service upon the United States Attorney for the Western District of Virginia was required.
16. In response to a motion to dismiss the Complaint for want of service, the Respondent moved for leave to permit late service upon the United States Attorney for the Eastern District of Virginia.
17. On January 12, 2000, a United States magistrate judge recommended dismissal of the Complainant's case on the basis of Respondent's failure to effect service of process. Among other things the magistrate judge's Report and Recommendation contained the following observations:
Plaintiff was given two warnings that service had not been properly effectuated under the rules, yet neither was heeded. When these warnings issued, plaintiff, by counsel, had the option to reissue process as is required under the rule or move to enlarge the time in which to serve the defendant properly. Instead, plaintiff did nothing, and by failing to do anything cannot be said to have acted diligently to protect his interests in the case. Certainly, then, any failure to effectuate service was not caused by some uncontrollable, external event.
18. United States District Judge James H. Michael, Jr., adopted the magistrate judge's report in its entirety, and dismissed the Complainant's federal case on March 28, 2000.
19. During the pendency of the federal suit, the Respondent failed to communicate with the Complainant concerning the status of the matter, despite his repeated requests for information. The Respondent did not advise the Complainant that his case had been dismissed. The Complainant learned that his case had been dismissed only after he had contacted the Court directly in the face of Respondent's persistent failure to return his phone calls or answer his letters to her.
20. The Complainant tendered sums aggregating $2,500.00 to the Respondent as legal fees and costs. The Complainant demanded a refund following the court's dismissal of his case, as aforesaid. The Respondent has neither provided the Complainant with a refund of any portion of the sums paid to her nor rendered an appropriate accounting to the Complainant of legal fees and/or expenses to which sums paid might have been applied. The Complainant did, however, on his own recover legal fees as part of the resolution of his claim against the government.
As to VSB Docket No. 02-053-2329:
21. On or about April 21, 1994, the Respondent undertook representation of Mr. Louis B. Proffitt, II, in an employment discrimination complaint against the U. S. Department of Agriculture. As of the time Mr. Proffitt retained Respondent, he had Equal Employment Opportunity Commission grievances pending against his said employer.
22. At the time he retained Respondent, Mr. Proffitt paid her the sum of $2,000.00. Respondent would testify that these funds were paid into the account of Respondent's prior employer, Martin & Arif, L.L.P. Mr. Proffit would further testify that on two separate occasions, Mr. Proffitt made cash payments to the Respondent in the sums of $500.00 and $700.00 respectively, which Respondent would deny.
23. During the course of Respondent's representation of Mr. Proffitt, which spanned the period between April 21, 1994, and September 3, 1999, she, among other things,
24. On September 3, 1999, Mr. Proffitt wrote to Respondent, terminating her services, requesting the return of his file materials, and demanding a refund of sums paid. The Respondent never responded to Mr. Proffitt's letter.
25. Mr. Proffitt subsequently retained the services of a different attorney who, on August 7, 2001, faxed to the Respondent a letter requesting transfer of all of Mr. Proffitt's file materials to him, as successor counsel, and confirming that Mr. Proffitt had that same week left messages for the Respondent requesting that his file materials be transmitted to successor counsel. The Respondent did not ever reply to successor counsel or Mr. Profffitt or furnish Mr. Proffitt's file materials as requested in successor counsel's letter and the messages left by Mr. Proffitt for the Respondent.
26. The Respondent has neither provided Mr. Proffitt with a refund of any portion of the sums paid to her nor rendered an appropriate accounting to Mr. Proffitt of legal fees and/or expenses to which sums paid might have been applied.
27. Mr. Proffitt's successor counsel took his case to a trial by jury, following which a United States district judge entered an order awarding Mr. Proffitt in excess of $1,000,000.00.
B. STIPULATION OF MISCONDUCT
Respondent's aforesaid conduct constitutes a violation of the following provisions of the revised Virginia Code of Professional Responsibility and of the Rules of Professional Conduct:
DR 2-108. Terminating Representation.
DR 6-101. Competence
and Promptness.
(A) A lawyer shall undertake
representation only in matters in which:
(1) The lawyer can act with
competence and demonstrate the specific legal knowledge, skill, efficiency,
and thoroughness in preparation employed in acceptable practice by lawyers
undertaking similar matters, or
(2) The lawyer has associated
with another lawyer who is competent in those matters.
(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:
(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 acceding to reasonable
requests of opposing counsel which do not prejudice the rights of his client,
by being punctual in fulfilling all professional commitments, 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 9-102. Preserving
Identity of Funds and Property of a Client.
(B) A lawyer shall:
(3) Maintain complete records
of all funds, securities, and other properties of a client coming into the
possession of the lawyer and render appropriate accounts to his client regarding
them.
(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 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
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.
(c) A lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3.
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:
(3) maintain complete records
of all funds, securities, and other properties of a client coming into the
possession of the lawyer and render appropriate accounts to the client regarding
them; and
(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).
(e) All original, client-furnished documents and any originals of legal instruments or official documents which are in the lawyer's possession (wills, corporate minutes, etc.) are the property of the client and shall be returned to the client upon request, whether or not the client has paid the fees and costs owed the lawyer. If the lawyer wants to keep a copy of such original documents, the lawyer must incur the cost of duplication. Upon request, the client must also be provided copies of the following documents from the lawyer's file, whether or not the client has paid the fees and costs owed the lawyer: lawyer/client and lawyer/third-party communications; the lawyer's copies of client-furnished documents (unless the originals have been returned to the client pursuant to this paragraph); pleadings and discovery responses; working and final drafts of legal instruments, official documents, investigative reports, legal memoranda, and other attorney work product documents prepared for the client in the course of the representation; research materials; and bills previously submitted to the client. Although the lawyer may bill and seek to collect from the client the costs associated with making a copy of these materials, the lawyer may not use the client's refusal to pay for such materials as a basis to refuse the client's request. The lawyer, however, is not required under this Rule to provide the client copies of billing records and documents intended only for internal use, such as memoranda prepared by the lawyer discussing conflicts of interest, staffing considerations, or difficulties arising from the lawyer/client relationship.
RULE 8.1 Bar Admission
And Disciplinary Matters
An applicant for admission to
the bar, or a lawyer in connection with a bar admission application, in
connection with any certification required to be filed as a condition of
maintaining or renewing a license to practice law, in connection with a
disciplinary matter, shall not:
(c) fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6[.]
C. STIPULATION OF DISPOSITION
The parties hereto agree that Respondent shall be SUSPENDED from the practice of law in the Commonwealth of Virginia for a period of five years, effective immediately, provided however, that the implementation of said suspension shall, itself, be suspended in full, subject to the Respondent's full compliance with the following terms and conditions:
1. The Respondent shall remain under the care of licensed clinical psychologist William J. Stejskal, Ph. D., (or, if Dr. Stejskal becomes unavailable, such other mental health care provider as agreed upon by Respondent and the Virginia State Bar), and such other health care providers to whom Respondent might be referred by Dr. Stejskal, until at least July 25, 2006, or such earlier time as the Respondent is discharged from Dr. Stejskal's care with the concurrence of Bar Counsel. Respondent shall cooperate fully and comply with all treatment recommendations made by Dr. Stejskal and such other health care providers during the said period. Such compliance shall include, but not be limited to, attending all further therapy, counseling, and evaluation sessions with Dr. Stejskal and/or other health care providers to whom Respondent is referred by him, taking all medications as may be prescribed by Dr. Stejskal or other health care providers to whom Respondent has been referred by Dr. Stejskal and submitting to such further testing, evaluation, and clinical assessments as may be required by Dr. Stejskal and any health care providers to whom Respondent has been referred by Dr. Stejskal.
2. The Respondent shall immediately provide Dr. Stejskal and all health care providers to whom Respondent has been referred by Dr. Stejskal with a copy of the Order of the Disciplinary Board adopting these terms and a release which authorizes and directs Dr. Stejskal and such other health care providers to furnish the Virginia State Bar c/o Seth M. Guggenheim, Assistant Bar Counsel, 100 North Pitt Street, Suite 310, Alexandria, Virginia 22314, with written reports which state whether, in the professional opinion of the health care provider writing the report, the Respondent's physical or mental condition materially impairs the Respondent's ability to represent clients in the full time private practice of law. Such reports shall detail the basis for such opinions rendered, and shall further state whether, to the best of the health care provider's knowledge, the Respondent is in compliance with paragraphs numbered 1, 2, and 3 of this Disciplinary Board Order. In the event a health care provider does not state that Respondent is in compliance with the terms hereof, such health care provider shall nonetheless present written facts (e.g., missed appointments, failure to take medication, failure to provide information required for continued treatment/assessments, and failure to pay a provider's bills) to the Virginia State Bar sufficient to permit Bar Counsel's assessment of whether Respondent is in compliance with the terms hereof. At a minimum, during the period that these terms remain in effect, Dr. Stejskal (or his approved successors) shall furnish the Bar with such reports at quarterly intervals, commencing November 1, 2003. Notwithstanding the reporting schedule set forth above, Dr. Stejskal (or his approved successors) shall notify the Bar immediately upon his assessment that the Respondent's physical or mental condition materially impairs the Respondent's ability to represent clients in the full time private practice of law.
3. The Respondent shall bear the cost and expense of compliance with the terms set forth herein, including, but not limited to, the cost of the assessments, therapy, counseling, medication, and all health care contemplated by the terms hereof, and the costs imposed, if any, by Dr. Stejskal (or his approved successors) and all other health care providers in preparing and furnishing any and all reports submitted to the Virginia State Bar pursuant to the terms hereof.
4. The Respondent shall continue to utilize the services of law office management consultant Janean S. Johnston, 250 South Reynolds Street, #710, Alexandria, Virginia 22304-4421, (703) 567-0088, to oversee her law practice policies, methods, systems, and procedures. The Respondent shall continue to follow with consistency all recommendations made to her by Ms. Johnston while such oversight is in progress. The Respondent shall grant Ms. Johnston access to her law practice from time to time, at her request, for purposes of ensuring that Respondent is complying with Ms. Johnston's recommendations. The Virginia State Bar shall have access (by way of telephone conferences and/or written reports) to Ms. Johnston's findings and recommendations, as well as her assessment of Respondent's level of compliance with her recommendations. The Respondent shall be obligated to pay when due Ms. Johnston's fees and costs for her services (including provision to the Bar of information concerning this matter). The Respondent shall have discharged her obligations respecting the terms contained in this Paragraph 4 if she has fulfilled and remained in compliance with all of the terms contained in herein through July 25, 2006. Ms. Johnston shall report to the Virginia State Bar no less than every six (6) months, commencing on January 15, 2004, and in such reports advise the Bar in detail of Respondent's compliance, or lack thereof, with Ms. Johnston's recommendations. Notwithstanding the reporting schedule set forth herein, Ms. Johnston shall make immediate report to the Virginia State Bar any determination by her that the Respondent's law office management functions materially impair the Respondent's ability to practice law in compliance with the Rules of Professional Conduct. To implement the terms hereof, the Respondent shall immediately provide Ms. Johnston with a copy of the Order of the Disciplinary Board incorporating these terms and a release which authorizes and directs Ms. Johnston to furnish the Virginia State Bar c/o Seth M. Guggenheim, Assistant Bar Counsel, 100 North Pitt Street, Suite 310, Alexandria, Virginia 22314 with the information and reports referred to herein.
5. The Respondent shall commit no further violations of the Rules of Professional Conduct between July 25, 2003, and July 25, 2006. And it is further
It is further agreed between the parties that if Respondent violates any of the Terms set forth herein, then, and in such event, the Board shall impose the full term of said five year suspension, which shall begin upon the finding of any such violation at the conclusion of a show cause hearing wherein the Respondent has failed to prove by clear and convincing evidence that she did not violate any of the terms set forth above.
SEEN AND AGREED:
THE VIRGINIA STATE BAR
_______________________________
Seth M. Guggenheim, Esquire
Assistant Bar Counsel
_______________________________
David Ross Rosenfeld, Esquire
Counsel for Respondent
V I R G I N I A:
IN THE MATTER OF SHARON BETH SOLOWAY, ESQUIRE
VSB Docket Numbers 00-053-3185
01-053-2523
02-053-2329
This matter came on __________________________2003, to be heard on the Agreed Disposition of the Virginia State Bar and the Respondent, based upon the Certification of a Fifth District-Section III Subcommittee. The Agreed Disposition was considered by a duly convened panel of the Virginia State Bar Disciplinary Board consisting of Thaddeus T. Crump, lay member, Henry P. Custis, Jr., Esquire, Glenn M. Hodge, Esquire, Joseph R. Lassiter, Jr., Esquire, and Peter A. Dingman, Esquire, presiding.
Seth M. Guggenheim, Esquire, representing the Bar, and the Respondent, Sharon Beth Soloway, Esquire, by and through her attorney, David Ross Rosenfeld, Esquire, presented an endorsed Agreed Disposition, dated ___________, 2003, reflecting the terms of the Agreed Disposition. The court reporter for the proceeding was ___________________________, ____________________________, Richmond, Virginia ____________, telephone (804) ________.
Having considered the Certification and the Agreed Disposition, it is the decision of the Board that the Agreed Disposition be accepted, and the Virginia State Bar Disciplinary Board finds by clear and convincing evidence as follows:
28. At all times relevant hereto, Sharon Beth Soloway, Esquire (hereafter "Respondent"), has been an attorney licensed to practice law in the Commonwealth of Virginia.
As to VSB Docket No. 00-053-3185:
29. On or about December 13, 1996, Ms. Ernestine McNeil (hereafter "Complainant") of Brockton, Massachusetts, was injured while a passenger in an automobile being operated in Fairfax County, Virginia. The Complainant received hospital emergency room care following the accident, and thereafter received medical care for a period of time in her home state of Massachusetts.
30. Shortly following the time of the accident, the Complainant engaged the Respondent to represent her in her personal injury claim arising out of the accident.
31. The Respondent wrote to the Complainant on July 30, 1998, stating, inter alia, that the "[t]otal medical costs incurred for this accident appear to be $2591.48" and that she, the Respondent, "would suggest settling this matter in the range of $4,500.00 to $7,000.00." The Complainant responded with her own letter to the Respondent's letter on August 7, 1998, authorizing a settlement within the identified range.
32. Following the Complainant's receipt of the Respondent's letter of July 30, 1998, the Complainant never heard again from the Respondent concerning her case, despite the Complainant's repeated telephone and written attempts to secure information, as well as a copy of her case file, from the Respondent.
33. The Virginia State Bar received a Complaint concerning this matter on June 9, 2000. On June 21, 2000, Bar Counsel directed a letter of that date to Respondent, enclosing a copy of the Complaint, and stating, inter alia, in bold and underlined text, the following: "please review the complaint and provide this office with a written answer, including an original and one copy of your response and all attached exhibits, within twenty-one (21) days of the date of this letter." The Respondent failed to file a written response to the Complaint with the Bar as required by the said letter, either within twenty-one (21) days, or at any time thereafter.
34. The Virginia State Bar's investigation of this matter revealed, inter alia, that: a. the Respondent filed a Motion for Judgment on Complainant's behalf in the Fairfax County, Virginia, Circuit Court on December 11, 1998.
b. a status conference was conducted by the Court on April 1, 1999, but the conference was continued due to lack of service of process upon the defendant in the action;
c. the Court entered a non-suit in the case, bearing Respondent's endorsement, on June 24, 1999.
35. As of the time that Complainant sent her Complaint to the Virginia State Bar on or about May 30, 2000, she had not been made aware by the Respondent of any of the facts set forth above in Paragraph 7 although Respondent would testify that she mailed a copy of the complaint to Complainant and that Respondent communicated with Complainant's children regarding Complainant's matter.
36. In addition to her failure to communicate with the Complainant following the Respondent's aforesaid letter respecting settlement, the Respondent also failed to respond on Complainant's behalf to Complainant's health care providers' requests for information concerning the status of Complainant's claim, thus subjecting Complainant to debt collection demands.
37. The Complainant received no funds in settlement of her personal injury claim, and she never received the requested copy of her file.
38. Respondent has voluntarily made restitution to Complainant in the amount of $5,000.00.
As to VSB Docket No. 01-053-2523:
39. On or about December 13, 1994, Mr. James H. Allen (hereafter "Complainant") retained the Respondent to represent him in an employment discrimination complaint against the United States Department of Agriculture.
40. The Respondent represented the Complainant before the Equal Employment Opportunity Commission, which rendered a final decision adverse to the Complainant on February 9, 1999. The decision contained a "right to sue" provision which authorized Complainant to file a civil action in a Federal district court.
41. On May 28, 1999, the Respondent filed a Complaint on Complainant's behalf in the United States District Court for the Western District of Virginia.
42. The Respondent failed to heed two warnings given by the Court that she had failed to effect service upon the defendant in the case. The Respondent had delivered a copy of the Complaint to the United States Attorney for the Eastern District of Virginia, when service upon the United States Attorney for the Western District of Virginia was required.
43. In response to a motion to dismiss the Complaint for want of service, the Respondent moved for leave to permit late service upon the United States Attorney for the Eastern District of Virginia.
44. On January 12, 2000, a United States magistrate judge recommended dismissal of the Complainant's case on the basis of Respondent's failure to effect service of process. Among other things the magistrate judge's Report and Recommendation contained the following observations:
Plaintiff was given two warnings that service had not been properly effectuated under the rules, yet neither was heeded. When these warnings issued, plaintiff, by counsel, had the option to reissue process as is required under the rule or move to enlarge the time in which to serve the defendant properly. Instead, plaintiff did nothing, and by failing to do anything cannot be said to have acted diligently to protect his interests in the case. Certainly, then, any failure to effectuate service was not caused by some uncontrollable, external event.
* * * [T]he plaintiff has failed to make even the most basic effort to comply with Rules 4(i) or 4(m), and should suffer the consequences.
45. United States District Judge James H. Michael, Jr., adopted the magistrate judge's report in its entirety, and dismissed the Complainant's federal case on March 28, 2000.
46. During the pendency of the federal suit, the Respondent failed to communicate with the Complainant concerning the status of the matter, despite his repeated requests for information. The Respondent did not advise the Complainant that his case had been dismissed. The Complainant learned that his case had been dismissed only after he had contacted the Court directly in the face of Respondent's persistent failure to return his phone calls or answer his letters to her.
47. The Complainant tendered sums aggregating $2,500.00 to the Respondent as legal fees and costs. The Complainant demanded a refund following the court's dismissal of his case, as aforesaid. The Respondent has neither provided the Complainant with a refund of any portion of the sums paid to her nor rendered an appropriate accounting to the Complainant of legal fees and/or expenses to which sums paid might have been applied. The Complainant did, however, on his own recover legal fees as part of the resolution of his claim against the government.
As to VSB Docket No. 02-053-2329:
48. On or about April 21, 1994, the Respondent undertook representation of Mr. Louis B. Proffitt, II, in an employment discrimination complaint against the U. S. Department of Agriculture. As of the time Mr. Proffitt retained Respondent, he had Equal Employment Opportunity Commission grievances pending against his said employer.
49. At the time he retained Respondent, Mr. Proffitt paid her the sum of $2,000.00. Respondent would testify that these funds were paid into the account of Respondent's prior employer, Martin & Arif, L.L.P. Mr. Proffit would further testify that on two separate occasions, Mr. Proffitt made cash payments to the Respondent in the sums of $500.00 and $700.00 respectively, which Respondent would deny.
50. During the course of Respondent's representation of Mr. Proffitt, which spanned the period between April 21, 1994, and September 3, 1999, she, among other things,
51. On September 3, 1999, Mr. Proffitt wrote to Respondent, terminating her services, requesting the return of his file materials, and demanding a refund of sums paid. The Respondent never responded to Mr. Proffitt's letter.
52. Mr. Proffitt subsequently retained the services of a different attorney who, on August 7, 2001, faxed to the Respondent a letter requesting transfer of all of Mr. Proffitt's file materials to him, as successor counsel, and confirming that Mr. Proffitt had that same week left messages for the Respondent requesting that his file materials be transmitted to successor counsel. The Respondent did not ever reply to successor counsel or Mr. Profffitt or furnish Mr. Proffitt's file materials as requested in successor counsel's letter and the messages left by Mr. Proffitt for the Respondent.
53. The Respondent has neither provided Mr. Proffitt with a refund of any portion of the sums paid to her nor rendered an appropriate accounting to Mr. Proffitt of legal fees and/or expenses to which sums paid might have been applied.
54. Mr. Proffitt's successor counsel took his case to a trial by jury, following which a United States district judge entered an order awarding Mr. Proffitt in excess of $1,000,000.00.
In approving the Agreed Disposition, the Board gave due consideration to evidence furnished in support thereof on behalf of the Respondent, without objection by the Bar, from Respondent's colleagues, her neighbor, her psychologist, an office management consultant whom she had engaged, and from the Respondent, herself. The Board finds as applicable mitigating factors recognized by the American Bar Association, as follows:
a. absence of a dishonest or selfish motive;
b. personal and emotional problems;
The Board finds by clear and convincing evidence that Respondent's aforesaid conduct constitutes a violation of the following provisions of the revised Virginia Code of Professional Responsibility and of the Rules of Professional Conduct:
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.
DR 6-101. Competence and Promptness.
(A) A lawyer shall undertake representation only in matters in which:
(1) The lawyer can act with competence and demonstrate the specific legal knowledge, skill, efficiency, and thoroughness in preparation employed in acceptable practice by lawyers undertaking similar matters, or
(2) The lawyer has associated with another lawyer who is competent in those matters.
(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:
(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 acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, 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 9-102. Preserving Identity of Funds and Property of a Client.
(B) A lawyer shall:
(3) Maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them.
(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 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
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.
(c) A lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3.
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:
(3) maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accounts to the client regarding them; and
(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).
(e) All original, client-furnished documents and any originals of legal instruments or official documents which are in the lawyer's possession (wills, corporate minutes, etc.) are the property of the client and shall be returned to the client upon request, whether or not the client has paid the fees and costs owed the lawyer. If the lawyer wants to keep a copy of such original documents, the lawyer must incur the cost of duplication. Upon request, the client must also be provided copies of the following documents from the lawyer's file, whether or not the client has paid the fees and costs owed the lawyer: lawyer/client and lawyer/third-party communications; the lawyer's copies of client-furnished documents (unless the originals have been returned to the client pursuant to this paragraph); pleadings and discovery responses; working and final drafts of legal instruments, official documents, investigative reports, legal memoranda, and other attorney work product documents prepared for the client in the course of the representation; research materials; and bills previously submitted to the client. Although the lawyer may bill and seek to collect from the client the costs associated with making a copy of these materials, the lawyer may not use the client's refusal to pay for such materials as a basis to refuse the client's request. The lawyer, however, is not required under this Rule to provide the client copies of billing records and documents intended only for internal use, such as memoranda prepared by the lawyer discussing conflicts of interest, staffing considerations, or difficulties arising from the lawyer/client relationship.
RULE 8.1 Bar Admission And Disciplinary Matters
An applicant for admission to the bar, or a lawyer in connection with a bar admission application, in connection with any certification required to be filed as a condition of maintaining or renewing a license to practice law, in connection with a disciplinary matter, shall not:
(c) fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6[.]
Upon consideration whereof, it is ORDERED that the Respondent, Sharon Beth Soloway, be, and she hereby is SUSPENDED from the practice of law in the Commonwealth of Virginia for a period of five years, effective immediately, provided however, that the implementation of said suspension shall, itself, be suspended in full, subject to the Respondent's full compliance with the following terms and conditions:
1. The Respondent shall remain under the care of licensed clinical psychologist William J. Stejskal, Ph. D., (or, if Dr. Stejskal becomes unavailable, such other mental health care provider as agreed upon by Respondent and the Virginia State Bar), and such other health care providers to whom Respondent might be referred by Dr. Stejskal, until at least July 25, 2006, or such earlier time as the Respondent is discharged from Dr. Stejskal's care with the concurrence of Bar Counsel. Respondent shall cooperate fully and comply with all treatment recommendations made by Dr. Stejskal and such other health care providers during the said period. Such compliance shall include, but not be limited to, attending all further therapy, counseling, and evaluation sessions with Dr. Stejskal and/or other health care providers to whom Respondent is referred by him, taking all medications as may be prescribed by Dr. Stejskal or other health care providers to whom Respondent has been referred by Dr. Stejskal and submitting to such further testing, evaluation, and clinical assessments as may be required by Dr. Stejskal and any health care providers to whom Respondent has been referred by Dr. Stejskal.
2. The Respondent shall immediately provide Dr. Stejskal and all health care providers to whom Respondent has been referred by Dr. Stejskal with a copy of this Order of the Disciplinary Board and a release which authorizes and directs Dr. Stejskal and such other health care providers to furnish the Virginia State Bar c/o Seth M. Guggenheim, Assistant Bar Counsel, 100 North Pitt Street, Suite 310, Alexandria, Virginia 22314, with written reports which state whether, in the professional opinion of the health care provider writing the report, the Respondent's physical or mental condition materially impairs the Respondent's ability to represent clients in the full time private practice of law. Such reports shall detail the basis for such opinions rendered, and shall further state whether, to the best of the health care provider's knowledge, the Respondent is in compliance with paragraphs numbered 1, 2, and 3 of this Disciplinary Board Order. In the event a health care provider does not state that Respondent is in compliance with the terms hereof, such health care provider shall nonetheless present written facts (e.g., missed appointments, failure to take medication, failure to provide information required for continued treatment/assessments, and failure to pay a provider's bills) to the Virginia State Bar sufficient to permit Bar Counsel's assessment of whether Respondent is in compliance with the terms hereof. At a minimum, during the period that these terms remain in effect, Dr. Stejskal (or his approved successors) shall furnish the Bar with such reports at quarterly intervals, commencing November 1, 2003. Notwithstanding the reporting schedule set forth above, Dr. Stejskal (or his approved successors) shall notify the Bar immediately upon his assessment that the Respondent's physical or mental condition materially impairs the Respondent's ability to represent clients in the full time private practice of law.
3. The Respondent shall bear the cost and expense of compliance with the terms set forth herein, including, but not limited to, the cost of the assessments, therapy, counseling, medication, and all health care contemplated by the terms hereof, and the costs imposed, if any, by Dr. Stejskal (or his approved successors) and all other health care providers in preparing and furnishing any and all reports submitted to the Virginia State Bar pursuant to the terms hereof.
4. The Respondent shall continue to utilize the services of law office management consultant Janean S. Johnston, 250 South Reynolds Street, #710, Alexandria, Virginia 22304-4421, (703) 567-0088, to oversee her law practice policies, methods, systems, and procedures. The Respondent shall continue to follow with consistency all recommendations made to her by Ms. Johnston while such oversight is in progress. The Respondent shall grant Ms. Johnston access to her law practice from time to time, at her request, for purposes of ensuring that Respondent is complying with Ms. Johnston's recommendations. The Virginia State Bar shall have access (by way of telephone conferences and/or written reports) to Ms. Johnston's findings and recommendations, as well as her assessment of Respondent's level of compliance with her recommendations. The Respondent shall be obligated to pay when due Ms. Johnston's fees and costs for her services (including provision to the Bar of information concerning this matter). The Respondent shall have discharged her obligations respecting the terms contained in this Paragraph 4 if she has fulfilled and remained in compliance with all of the terms contained in herein through July 25, 2006. Ms. Johnston shall report to the Virginia State Bar no less than every six (6) months, commencing on January 15, 2004, and in such reports advise the Bar in detail of Respondent's compliance, or lack thereof, with Ms. Johnston's recommendations. Notwithstanding the reporting schedule set forth herein, Ms. Johnston shall make immediate report to the Virginia State Bar any determination by her that the Respondent's law office management functions materially impair the Respondent's ability to practice law in compliance with the Rules of Professional Conduct. To implement the terms hereof, the Respondent shall immediately provide Ms. Johnston with a copy of this Order of the Disciplinary Board and a release which authorizes and directs Ms. Johnston to furnish the Virginia State Bar c/o Seth M. Guggenheim, Assistant Bar Counsel, 100 North Pitt Street, Suite 310, Alexandria, Virginia 22314 with the information and reports referred to herein.
5. The Respondent shall commit no further violations of the Rules of Professional Conduct between July 25, 2003, and July 25, 2006. And it is further
ORDERED that if Respondent violates any of the Terms set forth herein, then, and in such event, the Board shall impose the full term of said five year suspension, which shall begin upon the finding of any such violation at the conclusion of a show cause hearing wherein the Respondent has failed to prove by clear and convincing evidence that she did not violate any of the terms set forth above; and it is further
ORDERED that pursuant to Part Six, § IV, ¶ 13(B)(8)(c) of the Rules of the Supreme Court of Virginia, the Clerk of the Disciplinary System shall assess costs against the Respondent. It is further ORDERED that a copy teste of this Order shall be mailed by Certified Mail, Return Receipt Requested, to the Respondent, at her address of record with the Virginia State Bar, and by first class, regular mail, to David Ross Rosenfeld, Esquire, Respondent's counsel, and to Seth M. Guggenheim, Assistant Bar Counsel.
ENTERED this day of ___________________________, 2003.
_______________________________
Peter A. Dingman
Chair Designate
Virginia State Bar Disciplinary Board