Wright v. Virginia State Bar

• Citation: 233 Va. 491,357 S.E.2d 518
• Decision Date: 12 June 1987
• Docket Number: No. 860163,860163
• Parties: Robert E. WRIGHT v. VIRGINIA STATE BAR. Record
• Court: Virginia Supreme Court

Page 518

357 S.E.2d 518

233 Va. 491

Robert E. WRIGHT v. VIRGINIA STATE BAR.

Record No. 860163.

Supreme Court of Virginia.

June 12, 1987.

Robert E. Wright, Fairfax, for appellant.

Peter R. Messitt, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Gail Starling Marshall, Deputy Atty. Gen., William L. Thurston, Asst. Atty. Gen., on brief), for appellee.

Present: CARRICO, C.J., POFF, COMPTON, STEPHENSON, RUSSELL, and THOMAS, JJ., and COCHRAN, Retired Justice.

STEPHENSON, Justice.

Robert E. Wright appeals from an order entered by the State Bar Disciplinary Board (the Board) revoking his license to practice law. The Board found that he had violated numerous Disciplinary Rules of the Virginia Code of Professional Responsibility. ¹ Wright contends that (1) he was denied his rights to due process and equal protection guaranteed by the Federal and Virginia constitutions, (2) the evidence does not support the Board's findings and conclusions, and (3) the sanction of revocation imposed by the Board is excessive, arbitrary, and capricious.

I The Board's Findings

Three separate cases were certified to the Board by the Tenth District Committee. ² On December 19, 1985, the Board heard evidence pertaining to these cases and made the following findings of fact and conclusions of law:

(1) Case No. 85-29

Between October 1983 and December 1984, Wright failed to maintain accurately the books and records required for a trust account by the Code of Professional Responsibility. Consequently, he remained uninformed of the amount of money he held in trust, both in the aggregate and for specific individual clients. Debits and credits on individual clients' accounts did not reconcile, and in several instances, checks drawn on the escrow account were written to Wright for fees, but did not appear on the client's ledger card. In other instances, deposits of client funds were not recorded on the client ledger cards. No overall cash receipts or cash disbursements journal was maintained by Wright.

Between October 1983 and December 1984, Wright routinely advanced funds for clients from his trust account without having received any funds from those clients. Thus, he used the trust funds of one client for the benefit of others.

Between October 1983 and December 1984, Wright routinely permitted his fees to remain in his trust account. He failed to record such amounts on his trust account records and thereby commingled his own funds with those of his clients.

Wright had been placed under the supervision of the Tenth District Committee in June of 1983 because of similar violations. However, he continued to fail to bring his accounts into compliance with the Code after a detailed explanation to him of the record-keeping requirements.

From these findings, the Board concluded that Wright was guilty of misconduct in violation of Disciplinary Rules 9-102(B)(3), 9-103(A)(3), and 9-103(B)(4), (5)(a) and (b) of the Code of Professional Responsibility.

(2) Case No. 86-14

Wright represented L & J Refuse Service, Inc. (L & J), in connection with a judgment of $2,773.78 that was entered against it in the General District Court of Fairfax County in favor of Wilbar Truck Equipment, Inc. (Wilbar). Prior to Wright's involvement in this case, judgment had been obtained against L & J on July 19, 1984. A show cause summons was issued returnable February 28, 1985, for L & J's failure to appear to answer debtor's interrogatories. The show cause summons was dismissed based on an agreement between Wilbar's counsel and Wright. As recited in a letter dated April 29, 1985, from Wilbar's attorney to Wright, a payment schedule was agreed upon between Wright and counsel for Wilbar.

Wright forwarded the first installment on the payment plan by a $300 check dated April 20, 1985, written on his operating or "attorney" account at Guaranty Bank and Trust Company (Guaranty Bank). Wilbar's counsel deposited the check in his account, and the check was returned by Guaranty Bank for insufficient funds.

The bank records relating to Wright's attorney account at Guaranty Bank show that from March 25 through April 19, 1985, there were a number of overdrafts in the account and that as of April 19, 1985, the balance in the account was -$84.19. At no time between March 26, 1985, and June 19, 1985, did the account contain as much as $300.

Wright testified that he reconciled his attorney account sporadically, but not on a daily or regular basis. He admitted that he had not received any funds from L & J and had no idea how much money was in his account when he wrote the check. Wright also testified that while he did not believe his account contained sufficient funds when he sent the $300 check to Wilbar's attorney, he thought he would be receiving funds to cover the check.

Wright received two checks from L & J some time after the payment was made from his account to Wilbar's counsel. One check in the amount of $300 represented the Wilbar payment; the second check in the amount of $150 was for the payment of Wright's fees. Wright suspected that the L & J checks were worthless, but promptly cashed them at Dominion National Bank and used the funds for his personal needs. Both checks were returned for insufficient funds.

The Board concluded as follows: Wright knew or should have known that the check he sent to Wilbar's counsel was "not good." Wright also knew that he should not have used the proceeds of the L & J checks until the checks cleared, but he used the bank's funds for his own purposes before the checks cleared. This conduct violated Disciplinary Rule 1-102(A)(4).

(3) Case No. 86-15

In February 1984, Wright agreed to represent Kevin A. Chance in his claim for personal injuries received in an automobile accident. Chance was treated for his injuries by Doctors Noel and Raiford.

Chance signed a statement authorizing and directing Wright to pay the bill for services rendered by Doctors Noel and Raiford out of the funds obtained from the liquidation of his claim. Dr. Raiford rendered to Wright a written report dated August 30, 1984, and a bill for $1,165.

In October or November of 1984, Chance's claim was settled with Colonial Insurance Company for $4,500. This amount was deposited into Wright's fiduciary account on or about November 13, 1984.

On November 13, 1984, Wright wrote checks on his fiduciary account to Chance for $1,700 and to himself for $1,500. This left a balance of $1,300 in Wright's fiduciary account to which Chance was entitled. No payment was made at that time to Doctors Noel and Raiford.

Subsequent to settlement with Colonial Insurance Company, Wright pursued a "Med-Pay" claim against Chance's insurer Stonewall Insurance Company. On or about May 13, 1985, Wright made a deposit of $1,375 in his fiduciary account, which represented the recovery on the Med-Pay claim. On May 17, 1985, he paid the previous balance of $1,300 to Chance. The ledger card does not show the deposit of $1,375.

Dr. Raiford was not paid until November 15, 1985, after he filed a complaint with the Virginia State Bar. Wright acknowledged that he did not pay Dr. Raiford in a timely manner because his accounts were in a state of disarray and he did not have sufficient funds to make the payment.

The bank records show that, although the balance in Wright's fiduciary account should never have gone below $1,300 for the six months between November 13, 1984, and May 17, 1985, the balance was frequently below that amount in each intervening month as to which evidence was presented, i.e., January, February, March, April and May of 1985.

Based on these findings, the Board concluded that Wright violated Disciplinary Rules 1-102(A)(4) ³, 9-102(B)(3) and (4), 9-103(A) and (B).

II The Constitutional Challenge

Wright contends that the procedure followed by the Board denied him due process and equal protection rights guaranteed by the Federal and Virginia constitutions. First, he claims that he was not given timely notice of the charges of misconduct and an opportunity to file an answer to the charges. The record, however, indicates the contrary.

By letter dated November 7, 1985, and delivered to Wright by certified mail on November 8, 1985, Bar Counsel advised Wright of the alleged misconduct, of Wright's right to file an answer to the charges, and of his right to demand a trial by a three-judge court as provided by Code § 54-74 and the Rules of Court. Moreover, a copy of this letter was mailed to Wright's counsel.

Neither Wright nor his counsel responded to the letter. Although Part 6, § IV, Para. 13(C)(5)(a) of the Rules of Court provides that Wright could object to further proceedings before the Board and demand trial by a three-judge court, Wright made no such objection and demand. Wright's failure to make a timely demand for a three-judge court constituted "a conclusive waiver of the right to subsequently file such demand." Part 6, § IV Para. 13C(5)(b)(v) of the Rules of Court. Thus, Wright cannot now be heard to complain that he was not afforded the right to trial by a three-judge court.

Wright also contends that the hearing afforded him by the Board was unfair because the Board made no distinction between judicial and prosecutorial functions. We do not agree.

In hearing the case, making its findings of fact and conclusions of law, and determining the appropriate sanction, the Board exercised only its judicial functions. Bar Counsel exercised the prosecutorial function pursuant to Part 6, § IV, Para. 13C(5)(c), which provides that "[i]n all hearings before the Board, Bar Counsel shall appear and represent the Commonwealth and its citizens." If the Board requires legal advice, it "shall be rendered by the Office of the Attorney General." Id. The record shows that Bar Counsel performed the duty imposed upon him by law and never served as counsel to the Board. Further, Wright's assertion that the Board Chairman acted improperly is not supported by the record.

Wright also claims...