WALTER FRANKLIN GREEN, IV v. VIRGINIA STATE BAR
Record No. 082530
Supreme Court of Virginia
June 4, 2009
OPINION BY JUSTICE LEROY F. MILLETTE, JR.
PRESENT: All the Justices
In this аppeal of right, we review an order of the Virginia State Bar Disciplinary Board (the Board) suspending the license to practice law of Walter Franklin Green, IV (Green) for eighteen months. Finding no error, we will affirm.
FACTUAL BACKGROUND AND MATERIAL PROCEEDINGS BELOW
On May 18, 2006, a duly convened subcommittee of the Seventh District Committee of the Virginia State Bar (the Subcommittee) consisting of Steven H. Gordon, lay person, Samuel R. Walker, Esquire, and Peter C. Burnett, Esquire considered disciplinary charges against Green. By letter dated May 19, 2006, Green was notified that the Subcommittee had certified four charges against him to the Board.1 Green was also provided copies of the reports of the investigator for the Virginia State Bar (the Bar), and was notified that he
would receive the Subcommittee Determination (Certification).
Green filed a petition for a writ of prohibition and sought a stay of the disciplinary proceedings in the circuit court, which was denied, and this Court subsequently denied his motion for a stay. Green v. Virginia State Bar, Record No. 080577 (June 6, 2008). Green requested two continuances, which the Board granted. The Board heard the cases on June 27, 2008 and August 22, 2008. James L. Banks, Jr., Esquire, served as Chairman of both Board panels.
At the June hearing, the Bar and Green presented evidence on the matter of Kenneth B. Henley, Sr. (Docket Number 06-070-0739) and the matter of Kristen L. Beavers/Michael S. Eavey (Docket Number 06-070-2259). The hearing extended into the evening, at which time the Board continued it to a later date. On August 22, 2008, the hearing resumed. Three Board members were substituted for the August hearing due to the unavailability of three members who sat in June. Prior to the August hearing, the Clerk of the Disciplinary System provided
At the conclusion of the Bar‘s case, Green moved to strike “each and every one of the allegations” against him. Green challenged the presence of the Board members who did not participate in the June hearing. Green further argued that the Board lacked jurisdiction due to the delay between the May 18, 2006 Subcommittee determination of misconduct and the May 31, 2007 Certification. Green contended that the Board‘s failure to substantially comply with procedural requirements, as mandated by
Following the August hearing, the Board concluded that Green violated
At the June and August 2008 hearings (collectively, the hearing), the Board considered the following two cases certified from the May 18, 2006 Subcommittee meeting.
A. Matter of Kenneth B. Henley, Sr. (Docket Number 06-070-0739)
Green represented Henley on charges of driving under the influence, driving after having been declared a habitual offender, and child neglect. Henley paid directly to Green $7,500 in cash as an advanced legal fee. Green described the fee arrangement as a “flat fee” because the majority of his clients did not want to pay an hourly fee over the initial deposit.
At the hearing, Green testified that he did not consider a flat fee to be earned when he received it and that he believed that he made periodic withdrawals at the rate of $250
The Bar investigator testified that Green said he put flat fees in his general or officе account. Green‘s “office‘s policy [was] that the money would be deposited in the trust account, initially.” Green asserted that he performed a monthly reconciliation of the escrow account balance, but Green did not present any evidence that he made a monthly reconciliation of his trust account disbursement journals.
The Board found by clear and convincing evidence that Green received $7,500 on December 24, 2003 and immediately withdrew the money as having been earned based on the flat fee charged when in fact the entire fee had not then been еarned.
B. Matter of Kristen L. Beavers/Michael S. Eavey (Docket Number 06-070-2259)
Green represented Beavers and Eavey in an action against Allstate Insurance Company (Allstate) for a claim under an insurance policy covering a vehicle they co-owned. Beavers and Eavey claimed that their vehicle had been either vandalized or stolen.
Eavey‘s grandmother paid Green $2,500 for the representation against Allstate. At the hearing before the Board, only Eavey testified, as Beavers was ill in June and unavailable in August. Eavey testified that he met with Green only three times for “[m]aybe 10 minutes” over the course of his representation from 2000 to 2006. According to Eavey, Green did not inform him that a warrant in debt was filed against Allstate on his and Beavers’ behalf, that in December 2000 there was a court date in the general district court, that the lawsuit was removed to the circuit court, that Allstate had propounded discovery to which Eavey needed to respond, or that Allstate had filed a motion to compel. Eavey also testified that Green did not inform him that Allstate‘s counsel had scheduled depositions to be taken on four separate dates.
Despite the 2002 dismissal of the lawsuit, in November 2003, Green attempted to negotiate a settlement with Allstate in the amount of $2,500. Allstate responded that the case had been dismissed. Eavey testified that Green did not inform him of the settlement proposal, and Eavey did not authorize settlement. Eavey also testified that he met with Green in November 2003 and demanded a refund of the $2,500, because nothing had been done with his case and it had “been too long.” Green told Eavey “to wait that the insurance company puts those funds on hold for five years and then they‘ll settle.”
In December 2005, Beavers and Eavey wrote to Green and demanded a return of their $2,500. At that point in time, five years had elapsed since the case against Allstate had been filed, three years since the case had been dismissed, and twо years since Green had attempted to “settle” the case. Green did not refund any of the $2,500 to them. The Board
Green‘s disciplinary record was introduced into evidence for the Board‘s consideration at the August 2008 hearing without objection. The Board imposed an eighteen month suspension, effective August 22, 2008. On October 23, 2008, Green moved to set aside the summary order in the Henley and Beavers/Eavey matters. Green argued that the Board lacked subject matter jurisdiction due to the participation of Grаnt A. Richardson (Richardson), who had represented Green in prior disciplinary matters, on subcommittees that had certified prior charges against Green. Green also argued that those certifications led to a six month suspension and a forty-five day suspension, imposed in 2007 and reflected on Green‘s disciplinary record. Green asserted that Richardson‘s participation on the subcommittees was in violation of the Rules of Professional Conduct concerning conflicts of interest. At oral argument on appeal, Green acknowledged that Richardson last represented him in 1998.
Green‘s counsel did not discover Richardson‘s participation on the 2004 and 2005 subcommittees until October 10, 2008. Green had “not complained about those whatsoever
ANALYSIS
Green assigns error to the Board‘s order based on the following: (1) not dismissing the cases when the Bar mailed the Certification more than one year after the Subсommittee voted to certify charges of misconduct, (2) using a disciplinary record that was void because it contained sanctions imposed by subcommittees on which Green‘s former attorney participated, (3) improperly allowing substitution of Board members at the August 22, 2008 continuance of the hearing, (4) entering the Suspension Order with the endorsement of a designate of the Chairman of the Board, and (5) finding that Green had violated any of the Rules of Professional Conduct.
STANDARD OF REVIEW
Under an established standard of review of the Board‘s decision in a disciplinary proceeding, we conduct an indepеndent examination of the entire record. Pilli v. Virginia State Bar, 269 Va. 391, 396, 611 S.E.2d 389, 391 (2005). We consider the evidence and all reasonable inferences that may be drawn from that evidence in the light most favorable to the Bar, the prevailing party in the Board proceeding. Id. We accord the Board‘s factual findings substantial weight and we view those findings as prima facie correct. Id. Although we do not give the Board‘s conclusions the weight of a jury verdict, we will sustain those conclusions unless they are not justified by a reasonable view of the evidence or are contrary to law. Id.
1. The Certification was Served One Year аnd Two Weeks after the Meeting of the Subcommittee that Certified the Charges of Misconduct
Green argues that witnesses called by the Bar conceded they could not remember events that occurred over eight years before the hearing. Green also argues that the delay between alleged misconduct and а hearing resulted in a much harsher disposition because his disciplinary record was enhanced by other sanctions imposed between the time of misconduct and the hearing.
The Bar argues that although there was a delay between the Subcommittee determination and the mailing of the Certification, Green did not establish that he was prejudiced by the delay. The Bar contends that Green clearly knew of the allegations of misconduct when he was notified by the Bar‘s May 19, 2006 letter, which contained the Bar‘s investigative reports of the four charges brought against him. The Bar argues that Green was able to present his case, that Green testified on his own behalf, and did not claim that his memory was impaired by the passage of time. Furthermore, Green presented 64 exhibits in his defense. The Bar also argues that Green only pointed to one witness, Eavey, who, when his memory was refreshed, said “done forgot now. This has been so long ago.” But the Bar maintains that Eavey was able to
The Bar disagrees that Green was prejudiced by having an enhanced disciplinary record due to the delay. The Bar argues that Green‘s disciplinary record dates back to 1997 and includes multiple public reprimands and admonitions, in addition to the six month and forty-five day suspensions in 2007. It is the Bar‘s contention that had the sequence of sanctions been reversed, Green might have received the same or harsher discipline. The Bar asserts that it is speculation as to what the result would have been had this matter been considered before some of the other matters, and therefore Green cannot demonstrate prejudice.
We have previously admonished the Bar for the untimely performance of certain of its responsibilities for professional regulation in a prior proceeding against Green, and the Court again states its disapproval of the Bar‘s delay in the certification of ethical complaints from a subcommittee. See Green v. Virginia State Bar, 274 Va. 775, 786, 652 S.E. 2d 118, 123 (2007). However, absent a showing of prejudice by the attorney, “[a]ny betrayal of the trust which the attorney is sworn to keep demands appropriate discipline; a delay in prosecution, without more, cannot override this necessity.” In re Williams, 513 A.2d 793, 796 (D.C. 1986). “If the conduct of a member of the bar
The record clearly reflects that the public was prejudiced by the lapse of memory of several of the Bar witnesses, which contributed to the dismissal of some of the misconduct charges against Green. Therefore, the Bar operates at its own peril in failing to comply with the same standard of professionalism that it expects from the lawyers it rеgulates.
2. Board‘s Consideration of Green‘s Disciplinary Record
In determining the appropriate sanction, the Board considered Green‘s disciplinary record, which reflects a six month suspension and a forty-five day suspension resulting from subcommittee certifications that took place in 2004 and 2005. Green‘s former attorney, Richardson, participated on the subcommittees that certified the charges of misconduct.
Green argues that his disciplinary record was void due to the inclusion of those sanctions, because Richardson was
The Bar argues that Green is alleging an irregularity of procedure, not a lack of subject matter jurisdiction. The Bar cites Barrett v. Virginia State Bar, 272 Va. 260, 634 S.E.2d 341 (2006) for the proposition that an objection to the qualification of subcommittee members must be timely made or it is waived. The Bar also relies on what is now
The Bar contends that any argument regarding Richardson‘s participation in the prior subcommittees and the inclusion of charges certified by those subcommittees on Green‘s disciplinary record is waivable, and has been waived by Green. The Bar asserts that Green did not object to Richardson‘s participation on any subcommittee and did not object to the admission of his disciplinary record in the present case.
We agree with the Bar that this issue does not involve subject matter jurisdiction and has been waived by Green.
We have stated:
The term jurisdiction embraces several concepts including subject matter jurisdiction, which is the authority granted through constitution or statute to adjudicate a class of cases or controversies; territorial jurisdiction, that is, authority over persons, things, or occurrences located in a defined geographic area; notice jurisdiction, or effective notice to a party or if the proceeding is in rem seizure of a res; and “the other conditions of fact must exist which are demanded by the unwritten or statute law as the prerequisites of the authority of the court to proceed to judgment or decree.”
Morrison v. Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990) (quoting Farant Investment Corp. v. Francis, 138 Va. 417, 427-28, 122 S.E.2d 141, 144 (1924)) (emphasis added);
The Bar was created in 1938 by the General Assembly as an administrative agency of this Court.
In Barrett, the attorney claimed that the three-judge panel erred in denying his motion to dismiss all charges against him because a member of the subcommittee that certified the charges was “not impartial” and “was biased.” 272 Va. at 267, 634 S.E.2d at 344. The attorney raised this issue for the first time before the three-judge panel, and not before the subcommittee, although he was aware of the alleged conflict at that time. Id. We held that the circuit court properly determined that the attorney had waived this issue. Id.
As in Barrett, Green did not object to Richardson‘s participation on the subcommittees, or to the use of his
Despite Green‘s knowledge of Richardson‘s participation in the subcommittee determination that resulted in sanctions included in his disciplinary record, Green did not lodge an objection to Richardson‘s participation until October 23, 2008, when he moved to set aside the summary order in the Henley and Beavers/Eavey matters. Prior to Green‘s October 10, 2008 meeting with counsel, he had “not complained about [the 2004 and 2005 subcommittees] whatsoever.” Green argued on October 23, 2008, for the first time, and before a different panel of the Board than the panels that held the June and August 2008 hearings, that the Board lacked subject
We note that effective January 1, 2007, this Court amended Part 6, § IV in what is now Paragraph 13-14(E) to avoid the need for a separate hearing on whether a subcommittee member has a conflict of interest.
3. Substitution of Board Members at August 2008 Hearing
Green argues that the Board erred by failing to document the inability of three Board members who sat at the June 2008 hearing to be present at the August 2008 continuation of that hearing. Green contends that the Board was therefore in violation of
Whenever a hearing has been adjourned for any reason and one or more of the members initially constituting the quorum for the hearing are
unable to be present, the hearing of the matter may be completed by furnishing a transcript of the subsequent proceedings conducted in one or more member‘s absence to such absent member, or substituting another Board member for any absent member and furnishing a transcript of the prior proceedings in the matter to such substituted member(s).
Green asserts that substantial compliance with what is now
The Bar argues that it fulfilled the requirements of
We agree with the Bar. At the August 2008 hearing, the chairman stated, “we do have new members on the panel” and “ask[ed] each member of the panel to identify himself or herself for the record.” The new members had been provided a transcript of the June 2008 hearing, as well as a copy of the entire record. Nothing more was required of the Board in order to substitute Board members for the absent members, in compliance with
4. Entry of the Suspension Order with the Endorsement of a Designate of the Chairman of the Board
Green argues that the Suspension Order, entered on November 12, 2008, was invalid because it was signed by James Banks, who was neither the Chairman of the Board nor a member on that date.4 Pursuant to the provision now found in
The Bar argues that Green waived this argument by failing to inform the Board of his objection to Banks’ authority to enter the Suspension Order. We agree with the Bar. Since Green raises his objection for the first time on appeal to this Court, we will not consider this issue.
5. Green‘s Violation of the Rules of Professional Conduct
Green argues that the Board erred in finding any violations of the Rules of Professional Conduct.
In the Henley matter, Green contends that the evidence established there was no dispute regarding escrowed funds or fees. Green argued that funds paid to him by Henley were placed in escrow and withdrawn as earned, and that there was no evidence that Green violated
All funds received or held by a lawyer . . . on behalf of a client . . . shall be deposited in one or more identifiable escrow accounts . . . and no funds belonging to the lawyer . . . shall be deposited therein except as follows:
. . .
(2) funds belonging in part to a client and in part presently or potentially to the lawyer . . . must be deposited therein, and the portion belonging to the lawyer . . . must be withdrawn promptly after it is due.
The Bar argues that the Board had sufficient evidence to find Green‘s violation of the Rule by clear and convincing evidence. Henley paid Green $7,500 in cash to represent him, which Green considered a “flat fee.” Green testified that he did not know whether the $7,500 was deposited into his escrow account. Moreover, the Bar‘s investigator testified that Green admitted depositing flat fees into his general office account and did not differentiate between a flat fee and a retainer. The Bar maintains that its Exhibit #20, the account
ledger tracking Green‘s activity on the Henley case, shows a payment and a charge of $7,500 on December 24, 2003. The exhibit does not show periodic withdrawals of fees earned at a rate of $250 per hour, as alleged by Green. Accordingly, the Bar contends the Board correctly ruled that funds were deposited into escrow and withdrawn “immediately” without being earned. Applying the standard of review set forth above, we view the evidence in a manner consistent with the Bar‘s position and hold that the Board did not err in finding Rule violations in the Henley matter by clear and сonvincing evidence.
In the Beavers/Eavey matter, Green argues that only Beavers was his client, as she was the only party to the insurance contract with Allstate, and therefore, the Bar‘s failure to obtain her testimony resulted in insufficient evidence to support a finding that Green violated Rules 1.4 and 1.16, regarding duties owed by lawyers to their clients. Green maintains that the Board erroneously concluded that he represented both Beavers and Eavey against Allstate.
Based on our independent examination of the entire record, viewing the evidence in the light most favorable to the Bar, the evidence shows that Green represented both Beavers and Eavey in the insurance litigation. Green conceded at the June 2008 hearing that he filed the lawsuit for both
CONCLUSION
For the foregoing reasons, we will affirm the Board‘s order suspending Green‘s license to practice law for eighteen months.
Affirmed.