BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD
VSB DOCKET NO. 00-000-2051
IN THE MATTER OF SALVAGE DELACY STITH,
ORDER OF RECOMMENDATION
On April 27, 2001, this matter came before the Disciplinary Board, consisting of Richard J. Colten, Donna A. DeCorleto, Karen A. Gould, Roscoe B. Stephenson and Henry P. Custis, Jr., Chairman, on the Petition for Reinstatement by Salvage DeLacy Stith to reinstate his license to practice law in the Commonwealth of Virginia. Mr. Stith had his license to practice law revoked in 1994 after being charged with serious violations of the Code of Professional Responsibility.
The petitioner, Salvage DeLacy Stith, was represented by Larry Wayne Shelton of the law firm of Shelton & Malone, P.C. James M. McCauley, Ethics Counsel, appeared for the Virginia State Bar. The hearing was transcribed by Catharina M.K. Blalock, Court Reporter, Chandler & Halasz, P.O. Box 9349, Richmond, VA 23227, telephone (804)730-1222.
This matter is governed by Rule 13(J) of the Rules of Court, Part Six, Section IV. Pursuant to that provision, it is the petitioner's burden to show by clear and convincing evidence that he is a person of honest demeanor and good moral character and that he possesses the requisite fitness to practice law.
This opinion constitutes the recommendation of a majority of the Disciplinary Board panel that heard this case: Richard J. Colten, Karen A. Gould and Henry P. Custis, Jr., Chairman. Donna A. DeCorleto and Roscoe B. Stephenson, dissented and voted not to recommend reinstatement. See the minority opinion attached.
In addition to the testimony of the petitioner, the Board heard and considered the arguments of counsel and the testimony of two witnesses who appeared on the petitioner's behalf: Paul C. Gillis and William T. Mason, Jr., Esq. The Bar opposed the Petition for Reinstatement.
The Board also reviewed the petition filed by the Petitioner, exhibits attached thereto, petitioner's Answers to Request for Bill of Particulars, and letters from the community in response to the Bar's publication of the public hearing on Mr. Stith's Petition for Reinstatement. The Board considered the following factors in reaching its conclusion and recommendation to the Supreme Court as outlined by this Board In the Matter of Alfred L. Hiss, Docket No. 83-26, opinion dated May 24, 1984:
1. The severity of the petitioner's misconduct including but not limited to the nature and circumstances of the misconduct.
2. The petitioner's character, maturity and experience at the time of his disbarment.
3. The time elapsed since the petitioner's disbarment.
4. Restitution to clients and/or the Bar.
5. The petitioner's activities since disbarment including but not limited to his conduct and attitude during that period of time.
6. The petitioner's present reputation and standing in the community.
7. The petitioner's familiarity with the Virginia Rules of Professional Conduct and his current proficiency in the law.
8. The sufficiency of the punishment undergone by the petitioner.
9. The petitioner's sincerity, frankness and truthfulness in presenting and discussing factors relating to his disbarment and reinstatement.
10. The impact upon public confidence in the administration of justice if the petitioner's license to practice law was restored.
In order to assess factors 1 through 10 above, it is necessary to review the circumstances that gave rise to the revocation of Mr. Stith's license in 1994, as well as other disciplinary violations of which Mr. Stith had been found guilty. In 1978, Mr. Stith received a private reprimand for failure to perfect an appeal. In 1983, there was an agreed disposition on a complaint in which Mr. Stith agreed not to make loans to clients and not to endorse client's names to settlement checks. In 1984, Mr. Stith received a private reprimand for commingling funds and failure to properly maintain his trust account. In 1986, Mr. Stith received a private reprimand for the manner in which he handled a case. In 1987, Mr. Stith received a public reprimand as a result of neglect of a divorce action. Mr. Stith had his license suspended from 1987 to 1990 as a result of making business loans to himself out of his trust account. Mr. Stith's license to practice law was suspended for twelve months in 1993 as a result of continuing to act as though he was authorized to represent a client after he had been discharged and engaging in settlement negotiations without authority. Mr. Stith also received a public reprimand in 1993 for failure to perfect an appeal. Mr. Stith's license to practice law was revoked in 1994 after a hearing by the Disciplinary Board on four complaints involving trust account violations and failure to pursue appeals. The Board concluded in 1994:
The Board is of the opinion that under the facts of these complaints, which have been proven by clear and convincing evidence, the Respondent, Stith, in person and through his attorney stipulated to a great majority thereof, it must also consider the cumulative acts of misconduct by the Respondent which continued over a period of several years, including two prior suspensions and a public reprimand. Despite these prior sanctions, Respondent has continued to violate the Disciplinary Rules as demonstrated by the matters this day heard.
The Board makes the following findings with respect to the Hiss factors enumerated as 1 through 10 above:
1. The severity of the petitioner's misconduct including but not limited to the nature and circumstances of the misconduct. The Board finds that the misconduct that gave rise to Mr. Stith's license being revoked to have been serious. Mr. Stith made multiple serious errors in judgment, which resulted in his license being revoked in 1994. What is particularly troublesome, however, is the pattern and practice of ethical violations that preceded his revocation. He had previously had his license suspended on two occasions, once for one year and three years on the other suspension. He had a history of trust account violations in terms of procedural irregularities, as well as a pattern of failing to properly take care of appeals and otherwise properly represent clients.
2. The time elapsed since the petitioner's disbarment. The date of the Order disbarring Mr. Stith is June 24, 1994. Therefore, approximately seven years has elapsed since Mr. Stith's disbarment.
3. Restitution to clients and/or the Bar. This factor is not applicable to Mr. Stith's Petition.
4. The petitioner's activities since disbarment including but not limited to his conduct and attitude during that period of time. According to the testimony presented by the petitioner, Mr. Stith has been a responsible member of society since being disbarred by supporting his family, by being a good parent, and by participating actively in his church. He is an active participant in the NAACP. Since Mr. Stith's disbarment, he has taught at Elizabeth City State University in Elizabeth City, North Carolina, where is currently an Assistant Professor.
5. The petitioner's present reputation and standing in the community. In addition to the two witnesses who testified on his behalf, Mr. Stith had numerous letters submitted on his behalf supporting his petition for reinstatement and speaking to his reputation and standing in the community. At least five other persons were present who would have testified as character witnesses on Mr. Stith's behalf, although they were not called to testify. Mr. Stith is active in his church and the African-American community. He has stayed in the community in which he practiced law. By all accounts, he has a good reputation in his community. Paul Willis from Suffolk, Virginia, testified regarding Mr. Stith's participation in the African-American community and his encouragement of black youths to engage in law-abiding activities. Mr. Mason testified to his excellent reputation when he was an attorney. Mr. Stith has filed for Chapter 13 bankruptcy six times because of IRS liens and failure to make payments on his home mortgage, although the IRS has not accepted his payment plan. He still owes the IRS approximately $100,000. There was evidence that Mr. Stith has written checks in the last couple of years to the IRS on several occasions which were returned for insufficient funds.
6. The petitioner's familiarity with the Virginia Rules of Professional Conduct and his current proficiency in the law. Mr. Stith has taken continuing legal education courses on Virginia law since being disbarred in 1994. The Board is satisfied that the petitioner established by clear and convincing evidence familiarity with the current Virginia Rules of Professional Conduct, and that he has maintained his knowledge of Virginia law.
7. The sufficiency of the punishment undergone by the petitioner. The Board considers the loss of Mr. Stith's license since June of 1994 to be sufficient punishment for the specific misconduct that was the subject of the revocation, given the nature of his misconduct.
8. The petitioner's sincerity, frankness and truthfulness in presenting and discussing factors relating to his disbarment and reinstatement. The Board found Mr. Stith to be sincere and frank in his testimony to the Board in discussing the factors relating to his disbarment and reinstatement. He did not excuse his conduct and was remorseful about what he had done. Mr. Stith explained that he wanted his license reinstated so that he could return to the practice of law, albeit not as a solo practitioner. He promised to work in an environment where the trust accounts were maintained by persons knowledgeable of the ethical requirements for same, to have an accountant oversee his trust accounts and to be monitored by the Bar if it so desired.
9. The impact upon public confidence in the administration of justice if the petitioner's license to practice law was restored. Letters received from citizens in the Tidewater area in response to the Bar's notification of the public hearing asked that Mr. Stith's law license be restored to him. Letters received from several lawyers in the Tidewater area were opposed to his reinstatement.(1)
Another issue that was a matter of contention at the hearing was whether Mr. Stith had complied with the requirement set forth in the Rules of Court, Part Six, Section IV, Paragraph 13(K)(1) (within forty-days after from the date of disbarment, Mr. Stith was required to have notified his clients, opposing counsel and the courts of his disbarment and filed proof of such notification with the Clerk's Office). Mr. Stith introduced evidence of certified mail receipts and copies of letters indicating that he had complied with the notification requirements to his clients and the Bar. The Bar disputed that Mr. Stith had ever filed proof of notification with the Bar and filed an affidavit from the Clerk of the Disciplinary System to establish that there was no evidence in the Clerk's Office. Evidence was also introduced that a client had complained to the Bar that he had not been notified of Mr. Stith's license revocation.
The Board recommends that Mr. Stith's license be reinstated. The Board's opinion is that Mr. Stith's misconduct resulting in his revocation was of a serious nature arising out of several separate incidents that occurred over a several-year period. He represented to the Board that he would not practice law as a solo practitioner, that he would not handle clients' money himself, that he would work in an environment where someone who understood the ethical responsibilities of trust accounts would handle the accounts of the firm, that he would have an accountant oversee his trust accounts and to be monitored by the Bar if it so desired.
. The argument and testimony of petitioner and his counsel convinced the Board that Mr. Stith has rehabilitated himself and will not commit any further transgressions. Accordingly, the Board recommends that Mr. Stith's license be reinstated.
As required by Paragraph 13(K)(10)(e) of the Rules of Court, Part Six, Section IV, the Board finds the cost of this proceeding to be as follows:
Copying ................................ $ 1,650.03
Transcripts/court reporterÖÖ. 699.35
Mailing of notice of hearing.. 1,928.24
Administrative fee................. 300.00
Total $ 4,577.62
It is ORDERED that the Clerk of the Disciplinary System forward this Order of Recommendation and the record to the Virginia Supreme Court for its consideration and disposition.
It is further ORDERED that the Clerk of the Disciplinary System forward an attested copy of this Recommendation Order by certified mail, return receipt requested, to the Petitioner at his address of record with the Virginia State Bar, 3604 Cedar Lane, Portsmouth, Virginia 23703, with copies to Larry Wayne Shelton, Respondent's Counsel, Shelton & Malone, P.C., Suite 1218, 500 East Main Street, Norfolk, Virginia 23510, and to James M. McCauley, Ethics Counsel for the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219.
ENTERED this ____ day of June, 2001.
Henry P. Custis, Jr., Chairman
1Letters from attorneys William T. Mason, Jr., and Hilton Oliver were in support of Mr. Stith's petition for reinstatement.