Baumann v. Virginia State Bar, 073020 VASC, 191723

Docket Nº:191723
Opinion Judge:TERESA M. CHAFIN, JUSTICE
Party Name:CRAIG E. BAUMANN v. VIRGINIA STATE BAR
Case Date:July 30, 2020
Court:Supreme Court of Virginia

CRAIG E. BAUMANN

v.

VIRGINIA STATE BAR

No. 191723

Supreme Court of Virginia

July 30, 2020

FROM THE VIRGINIA STATE BAR DISCIPLINARY BOARD

PRESENT: All the Justices

OPINION

TERESA M. CHAFIN, JUSTICE

In this appeal of right, Craig E. Baumann challenges a decision of the Virginia State Bar Disciplinary Board. Upon review, we find no error in the Board's decision.

I. BACKGROUND

Baumann has been licensed to practice law in Virginia since 1978. He has practiced law in Northern Virginia for approximately 40 years. As a self-described "general practitioner," Baumann does not specialize in any particular field of the law.

On July 9, 2015, Ella Wright visited Baumann's office to obtain legal advice regarding her late husband's trust. Earlier that day, Wright received a letter from H. Kay Cross, an attorney who represented her stepchildren. The letter demanded a copy of the late husband's trust agreement. It also demanded for Wright to provide an "accounting of the property, liabilities, and receipts of the [t]rust" by April 15, 2016. Additionally, the letter demanded that Wright give certain items of personal property to the stepchildren.

Although a copy of the trust agreement was not included in the record of this case, the letter referred to the trust as the "Richard H. and Ella Louise Wright Revocable Trust." Testimony established that Wright was the sole beneficiary of the trust. However, the trust agreement specified that Wright's stepson was entitled to receive a shotgun and an antique "bishop's chair" that had belonged to his father. While Wright's stepchildren were named as contingent beneficiaries of the trust, the trust agreement gave Wright the power to revoke or terminate the trust at any time.

Wright testified that she considered the trust agreement to be a "private document." Therefore, she did not want to give a copy of the trust agreement to the stepchildren. Wright also did not want to provide an accounting of the trust's assets and liabilities. Wright was amenable to giving certain items of her husband's personal property to the stepchildren, but she wanted to avoid any direct communication with them due to their strained relationship.

Wright gave Baumann a copy of Cross's letter and the trust agreement and asked if he could resolve the dispute. Baumann agreed to represent Wright for a $7, 500 "flat" fee. In the event that the case went to court, Wright was required to pay Baumann an additional $15, 000 advanced fee. Baumann would then bill Wright at an hourly rate of $325 for any services he provided during the course of the litigation.

Wright agreed to this arrangement, and she signed a fee agreement that reflected its terms. Notably, the fee agreement stated that the $7, 500 flat fee was "nonrefundable" and "earned upon the acceptance of representation." Wright paid Baumann $7, 500 on the day of their initial consultation, and Baumann deposited the money into his trust account.

Baumann testified that he performed 10 to 12 hours of research on the weekend following his initial consultation with Wright. Baumann, however, did not keep any records documenting the time that he spent working on Wright's case. Baumann also did not take any notes pertaining to his research. He also failed to print, copy, or otherwise save any research materials.

Baumann contacted Cross to discuss the trust at issue on July 13, 2015. He faxed a copy of the trust agreement to Cross three days later. In September of 2015, Baumann and Cross exchanged emails to coordinate times for the stepchildren to pick up items of their father's personal property from Wright's home. Baumann and Cross exchanged similar emails in August of 2016. While Baumann facilitated the transfer of personal property between Wright and the stepchildren, he never addressed Cross' pending demand for an accounting of the trust assets.

Wright sent an email to Baumann on August 29, 2016. In the email, Wright told Baumann that the stepchildren had picked up all of the items at issue from her home. She then terminated the representation and requested a statement describing the services that Baumann rendered and any expenses that he incurred. At this time, Baumann did not inform Wright that the accounting issue was still unresolved.

On September 12, 2016, Baumann gave Wright a document entitled "Professional Services Rendered." In that document, Baumann alleged that he had: (1) read a 179-page trust document, performed legal research, and advised Wright "concerning the same," (2) contacted various parties "as needed"; (3) guaranteed his availability to Wright instead of the opposing party, (4) prepared the matter for litigation, and (5) closed Wright's file. The statement claimed that Baumann earned the entire $7, 500 fee.

On September 15, 2016, Cross emailed Bauman and renewed the stepchildren's request for an accounting of the trust assets and liabilities. Baumann forwarded Cross' email and the attached letter to Wright, explaining simply that "[t]his came in by email today." Wright then hired Richard Dezio, another attorney, to resolve the accounting issue.

Dezio specialized in the field of trusts and estates. Dezio testified that the trust agreement consisted of 38 pages rather than 179 pages. After reviewing the trust agreement, Dezio concluded that Wright was not obligated to provide an accounting to the stepchildren because they were not "qualified beneficiaries" under Virginia law. Dezio also determined that Wright could avoid any potential duty to provide an accounting to the stepchildren by revoking the trust. Dezio resolved the accounting issue with one phone call to Cross, and Wright never had to provide an accounting to the stepchildren.

Before he resolved the accounting issue, Dezio contacted Baumann and requested copies of Wright's file, Baumann's notes and research, and any materials that Baumann prepared in anticipation of litigation. Baumann did not respond to Dezio's initial request. When Dezio renewed his request two weeks later, Baumann provided Dezio with copies of the correspondence and emails that he sent to Cross. He also provided four pages of sparse, handwritten notes.1 Baumann never provided any additional notes or substantive legal research to Dezio.

Upon reviewing the provided materials, Dezio concluded that Bauman had not performed the professional services that he claimed to have provided to Wright. Therefore, Dezio requested that Baumann refund at least a portion of the $7, 500 fee. Baumann refused to do so, claiming that he had accomplished all of the objectives of the representation.

Wright filed a bar complaint against Baumann on February 2, 2017. After conducting a preliminary investigation, the Virginia State Bar charged Baumann with misconduct. The Bar informed Baumann that private discipline was available if he agreed to resolve the matter within 21 days. The Bar explained that the matter would be placed on its public hearing docket after that time period expired, and that any subsequent discipline would be a matter of public record.

Baumann contested the charge of misconduct. Although the Bar offered a private reprimand to Baumann, he refused to stipulate to certain facts. Therefore, the matter was placed on the Bar's public hearing docket. A District Committee of the Virginia State Bar Disciplinary Board held a hearing regarding the matter on December 5, 2018.

At the hearing, Wright testified that she only met with Baumann once during the course of the representation. Wright also testified that Baumann never provided any legal advice concerning the trust at issue. Wright explained that she never authorized Baumann to provide a copy of the trust agreement to the stepchildren, and that she only learned that he had done so when Cross renewed her request for an accounting on September 15, 2016.

Cross testified that Baumann never addressed her request for an accounting. She also testified that she never intended to pursue litigation. Cross confirmed that the stepchildren decided to withdraw their request for an accounting following her conversation with Dezio.

Baumann testified that he met with Wright on three or four occasions. Baumann claimed that he informed Wright that she had a legal duty to provide a copy of the trust agreement to the stepchildren. He also testified that he purposefully chose not to respond to Cross' request for an accounting as part of a broader legal "strategy." Baumann explained that he believed that Cross would withdraw her demand if he ignored the issue. Baumann also testified that the $7, 500 fee was refundable.

At the conclusion of the hearing, the District Committee determined that Baumann violated the Virginia Rules of Professional Conduct. Specifically, the Committee determined that Baumann violated Rule 1.2(a) by failing to accomplish the objectives of the representation, Rule 1.4(a)-(c) by failing to adequately communicate with Wright, and Rule 1.5(a) by charging an unreasonable fee. The Committee imposed a public admonition with terms that required Baumann to return $5, 000 to Wright and complete an additional eight hours of continuing legal education in ethics.

Baumann appealed the District Committee's determination to the Virginia State Bar Disciplinary Board. The Board unanimously affirmed the Committee's decision. This appeal followed.

II. ANALYSIS

On appeal, Baumann argues that the Board applied an incorrect legal standard when it affirmed the Committee's decision. Baumann also contends that the disciplinary system is unconstitutional. Additionally, Bauman maintains that the Committee's "findings of fact" and the evidence in the record failed to establish that he violated any disciplinary rules. Baumann's arguments are without merit.

A....

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