El-Amin v. Virginia State Bar, Record No. 981994.

• Decision Date: 16 April 1999
• Docket Number: Record No. 981994.
• Citation: 257 Va. 608,514 S.E.2d 163
• Parties: Sa'ad EL-AMIN v. VIRGINIA STATE BAR, ex rel. The THIRD DISTRICT COMMITTEE.
• Court: Virginia Supreme Court

514 S.E.2d 163

257 Va. 608

Sa'ad EL-AMIN v. VIRGINIA STATE BAR, ex rel. The THIRD DISTRICT COMMITTEE.

Record No. 981994.

Supreme Court of Virginia.

April 16, 1999.

Beverly D. Crawford (El-Amin & Crawford, on brief), Richmond, for appellant.

Gregory E. Lucyk, Senior Assistant Attorney General (Mark L. Earley, Attorney General; Judith W. Jagdmann, Deputy Attorney General, on brief), for appellee.

Present: CARRICO, C.J., COMPTON, LACY, KEENAN, KOONTZ and KINSER, JJ., and WHITING, Senior Justice. WHITING, Senior Justice.

Asserting that Sa'ad El-Amin, a lawyer licensed to practice in Virginia, had violated certain of its disciplinary rules, the Virginia State Bar initiated disciplinary proceedings against him. The preamble to the Virginia Code of Professional Responsibility states, in pertinent part:

The Virginia Code of Professional Responsibility consists of three separate but interrelated parts: Canons, Disciplinary Rules, and Ethical Considerations.

The Canons are statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relationships with the public, with the legal system, and with the legal profession. They embody the general concepts from which the Disciplinary Rules and the Ethical Considerations are derived.

The Disciplinary Rules, unlike the Canons and Ethical Considerations, are mandatory in character, as stated in DR 1-102(A)(1). The Disciplinary Rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action.

Rules of Supreme Court of Virginia, Pt. 6, § II.

In a hearing before a three-judge court conducted under the provisions of Code § 54.1-3935, the court concluded that El-Amin had committed 15 violations of 9 of the disciplinary rules in his representation of Annie H. Fant, Grace R. Williams, and Vernon El-Amin, and the court suspended his license to practice law for a period of four years. El-Amin exercised his statutory right to appeal eight of those findings involving his alleged misconduct, competence and promptness, causing prejudice to a client, failure to refund advanced fees, and failure to avoid the appearance of professional impropriety.

In reviewing the findings of a three-judge court in an attorney disciplinary proceeding, we use the same standard that we apply to the findings of disciplinary boards:

[O]n review we will make an independent examination of the whole record, giving the factual findings ... substantial weight and viewing them as prima facie correct. While not given the weight of a jury verdict, those conclusions will be sustained unless it appears they are not justified by a reasonable view of the evidence or are contrary to law.

Myers v. Virginia State Bar, 226 Va. 630, 632, 312 S.E.2d 286, 287 (1984)(quoting Blue v. Seventh District Committee, 220 Va. 1056, 1061-62, 265 S.E.2d 753, 757 (1980)(appeal from disciplinary board)). And, consistent with well-established appellate principles, we view the evidence and all reasonable inferences that may be drawn therefrom in the light most favorable to the State Bar, the prevailing party in the trial court. Gunter v. Virginia State Bar, 238 Va. 617, 619, 385 S.E.2d 597, 598 (1989).

I. The Fant Matter

Considering the cases arising under El-Amin's representation of each client, we begin with his representation of Fant. Fant employed El-Amin in June 1994 to represent her in an employment discrimination case. El-Amin agreed to begin working on the case immediately and required Fant to advance a retainer fee of $4,000, which she did by check. He indicated to Fant that he would withdraw funds as he worked on the case and told Fant that he would deposit the retainer in an escrow account. Instead, El-Amin cashed the check and produced no record of having deposited the proceeds in any account.

During the following five months, El-Amin had little contact with Fant, despite her numerous telephone calls, letters, and visits to his office. Because of El-Amin's failure to respond to her inquiries, Fant wrote him a letter in late November 1994 discharging him as her counsel and asking for a refund of the retainer. El-Amin telephoned Fant several days later and, admitting to her that he had not done certain work on the case as promised, agreed to refund "the money" by mail on December 5.

Fant testified that when El-Amin did not refund the money as promised, she sued him in the General District Court and mailed him a copy of the warrant. Thereafter, El-Amin contacted Fant and promised to pay "$4,000 on December the 20th, 1994, at 11 a.m." Fant went to El-Amin's office at the specified time and he told her that because his wife, who was his law partner, had been hospitalized, he had "taken [his wife's] load," and further that he could not charge Fant any money because he had done no work on her case.

However, El-Amin refunded only $1,000 at that time. In response to Fant's question of why the payment was in that amount in view of the fact that the $4,000 deposit was "supposed to be in escrow," El-Amin said "I don't have the money." El-Amin promised to pay the additional $3,000 on January 11, 1995 at 11:00 a.m.

When El-Amin failed to refund the remaining $3,000 on January 11, Fant wrote to the State Bar asking for its help in getting her refund. Although Fant delivered a copy of her letter to El-Amin's office on January 12, she received no response from him.

On January 17, Fant retained attorney Bradley O. Wein to collect the balance. El-Amin agreed to see Wein at a fixed time on January 23, 1995 in El-Amin's office and to pay the $3,000 balance to Wein at that time. However, El-Amin was not at his office at the appointed time and did not refund the promised sum.

Only after Wein had generated a file of over 1,000 pages, expended more than 100 hours during a period of 18 months, and incurred costs of $754.72 did El-Amin refund $2,500 of the $3,000 balance in settlement of Fant's claim. After the deduction of Wein's fee and expenses, Fant realized only $911.95 of the $3,000 balance of her deposit.

El-Amin has not appealed three of the court's four findings in the Fant matter. They are that he violated the following disciplinary rules: (1) DR 9-102(A)(2), which requires that client funds be deposited in an identifiable trust account; (2) DR 9-102(B)(3), which requires that a lawyer maintain "complete records of all funds, securities, and other property of a client coming into the possession of the lawyer and render appropriate accounts to his client regarding them"; and (3) DR 9-102(B)(4), which requires that an attorney "[p]romptly pay or deliver to the client ... funds ... in the possession of the lawyer which such person is entitled to receive."

El-Amin contends, however, that the evidence is insufficient to establish, clearly and convincingly, that he violated DR 1-102(A)(3), which proscribes a lawyer's commission of a "deliberately wrongful act that reflects adversely on the lawyer's fitness to practice law." We disagree with El-Amin.

In our opinion, the evidence that El-Amin cashed Fant's $4,000 retainer check, used the proceeds without earning the fee, and delayed refunding the retainer fee, sufficiently supports the finding that he committed "a deliberately wrongful act that reflects adversely on [his] fitness to practice law," in violation of DR 1-102(A)(3). Accordingly, we will affirm the trial court's finding on that issue.

II. The Williams Matter

We next consider the charges relating to El-Amin's representation of Williams, which began in early May of 1994. Williams, like Fant, employed El-Amin to represent her in an employment discrimination case.

As in the Fant matter, El-Amin appeals only one of the findings of disciplinary rule violations in his representation of Williams. He has not appealed the court's findings that, in representing Williams, he violated the pertinent provisions of the following disciplinary rules: (1) DR 2-108(D), which provides that, "[u]pon termination of representation, a lawyer shall take reasonable steps for the continued protection of a client's interests, including... refunding any advance payment of fee that has not been earned."; (2) DR 6-101(B), which states that a "lawyer shall attend promptly to matters undertaken for a client"; (3) DR 6-101(C), which provides that a "lawyer shall keep a client reasonably informed about matters in which the lawyer's services are being rendered."; and (4) DR 9-102(B)(4), which requires that a lawyer promptly pay to a client funds the client is entitled to receive.

Thus, the appeal in the Williams matter is limited to the court's finding that El-Amin violated DR 1-102(A)(4). It prohibits a lawyer from engaging "in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on a lawyer's fitness to practice law."

At the initial consultation, El-Amin told Williams his fee would be $7,000. When she told him that she did not have "that kind of money," but would ask her relatives to help her make payments on the fee, El-Amin agreed that he would begin working on the case. Williams and her relatives paid El-Amin over $1,700. However, despite numerous office visits and telephone calls, Williams was unsuccessful in her attempts to see or talk to El-Amin about what he had done during the ensuing five-month period. Consequently, Williams wrote El-Amin on November 2, 1994, discharging him as her counsel and asking for a refund of the amounts paid on the fee. The letter was delivered by certified mail to El-Amin's office and signed for by his secretary on November 3, 1994. El-Amin did not respond to the letter.

El-Amin testified that his secretary neither gave him the certified letter nor told him of Mrs. Williams' office visits and that he did not know he "had a problem with Mrs. Williams until after [he] received a complaint from the Virginia State Bar." Although El-Amin claimed he had done some...