Green v. State Bar ex rel. Seventh Dist.

• Decision Date: 02 November 2007
• Docket Number: Record No. 070515.,Record No. 070731.
• Citation: 652 S.E.2d 118
• Parties: Walter Franklin GREEN, IV v. VIRGINIA STATE BAR, ex rel. SEVENTH DISTRICT COMMITTEE Walter Franklin Green, IV v. Virginia State Bar.
• Court: Virginia Supreme Court

652 S.E.2d 118

Walter Franklin GREEN, IV v. VIRGINIA STATE BAR, ex rel. SEVENTH DISTRICT COMMITTEE Walter Franklin Green, IV v. Virginia State Bar.

Record No. 070515.

Record No. 070731.

Supreme Court of Virginia.

November 2, 2007.

Walter F. Green, IV, pro se.

Catherine Crooks Hill, Assistant Attorney General (Robert F. McDonnell, Attorney General; Maureen Riley Matsen, Deputy Attorney General; Peter R. Messitt, Senior Assistant Attorney General, on briefs), for appellee.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and AGEE, JJ., and STEPHENSON, S.J.

OPINION BY Justice G. STEVEN AGEE.

In these appeals of right, we consider the judgment of a three-judge panel convened pursuant to Code § 54.1-3935(B) (the "Panel"), which suspended the license to practice law of Walter Franklin Green, IV for a period of six months. We also consider the separate Order of a Disciplinary Board (the "Board") of the Virginia State Bar (the "Bar"), which suspended Green's license to practice law for an additional period of forty-five (45) days. Because of the related nature of these cases, we address both appeals in this opinion. For the reasons set forth below, we will affirm the judgment and the order.

I. Appeal from the Judgment of the Panel

A. Factual Background and Material Proceedings Below

Grant A. Richardson, as chair of a Subcommittee of the Seventh District Committee of the Bar (as referenced in Part I herein, the "Subcommittee"), signed a Subcommittee Determination (the "Determination"), which was mailed to Green on March 8, 2006 by Alfred L. Carr, counsel for the Bar (as referenced in Part I, "Bar Counsel"). The Determination recited Subcommittee meetings conducted on June 16, 2005,¹ June 21, 2005,² and February 24, 2005,³ during which the Subcommittee purportedly certified six cases of misconduct by Green in violation of the Rules of Professional Conduct.

The Determination concluded with the certification that "it is the decision of the [S]ubcommittee to certify the Charges of Misconduct to the Virginia State Bar Disciplinary Board." Although Richardson executed the Determination, it did not bear a date for his signature. Further, while Richardson was the Subcommittee chair at each of the referenced meetings, the composition of the Subcommittee was different at each meeting.

Green's answer to the Determination challenged the timeliness of the Determination because he "received the [Determination] over one year after the first subcommittee convened." Green contended that the delay violated the Subcommittee's duty under Part 6, § IV, ¶ 13(G)(4) to mail a certification "promptly." Green also demanded, pursuant to Code § 54.1-3935, that further proceedings be conducted by a three-judge panel rather than the Board.

The Bar then filed a Complaint and Petition for Rule to Show Cause against Green, incorporating the Determination, in the Circuit Court for Rockingham County, which was verified by an affidavit signed by Bar Counsel. The Panel was then duly appointed by the Chief Justice of this Court. Subsequently, the Panel issued a rule to show cause against Green which ordered him to appear on September 14, 2006 and "show cause why his license to practice law in the Commonwealth of Virginia shall not be revoked or suspended." At hearings on September 14 and November 14, 2006, the Panel considered allegations, as contained in the Determination, that Green violated Rules 1.1, 1.3, 1.4, 1.5, 1.15, 1.16 and 8.4 of the Rules of Professional Conduct.

In that regard, the Panel considered the following four cases the Determination recited were certified from a February 24, 2005 Subcommittee meeting.

1. Matter of Ron Haynes (Docket Number 05-070-2448)

Green represented Ron Haynes on two felony charges, for which Haynes pleaded guilty, and a civil forfeiture. Green then filed an appeal on behalf of Haynes in the wrong court. The appeal was dismissed, but Green did not inform Haynes of the dismissal. Green's accounting ledger for his law practice indicated he paid himself $6,000 before little, if any, work had been accomplished on the matter. The Panel found by clear and convincing evidence that Green violated Rule 1.1 of the Rules of Professional Conduct.

2. Matter of Ron Haynes (Docket Number 05-070-2450)

Green also represented Haynes on a number of other criminal charges, upon which Haynes was found guilty. Haynes retained Green to appeal his convictions, but Green failed to timely file the notice of appeal. Green failed to inform Haynes that the appeal had been dismissed for failure to timely file the notice of appeal. Green's accounting ledger reflected a fee of $7,500 to handle the case at trial and a fee of $15,000 to handle the appeal. Green paid himself both amounts before little, if any, work was done. The Panel found by clear and convincing evidence that Green violated Rules 1.1 and 1.3(a).

3. Matter of Michael Foltz/Linda Cubbage (Docket Number 05-070-3011)

Michael Foltz was sentenced to a lengthy period of incarceration. Thereafter, his mother, Linda Cubbage, paid Green $2,500 to file a habeas corpus petition on Foltz' behalf. Foltz suspected that Green failed to perform any work on his behalf and demanded a refund from Green by letter. Green did not respond to Foltz' demand and claimed that he had never spoken to Foltz or Cubbage and had not agreed to file a habeas corpus petition. However, Green's accounting ledger reflected the payment from Cubbage. Green contends that Cubbage hired his associate at the time, Peter Schwartz, but Cubbage and Schwartz disputed this assertion. The Panel found by clear and convincing evidence that Green violated Rules 1.3(a), 1.4(a) and (c), and 1.15.

4. Matter of Bonnie Zigler (Docket Number 05-070-3625)

Bonnie Zigler hired Green to represent her elderly father in a divorce matter and paid Green $5,000 in advance. Green immediately removed the money from his trust account before little, if any, work had been done. Green worked on the case sporadically over a four-month period, but Zigler was dissatisfied with his work. Zigler eventually terminated Green's services and hired another attorney to handle the divorce. Zigler requested an itemization of the work Green performed on the file, along with a refund of $2,500. Green did not respond to her request. The Panel found by clear and convincing evidence that Green violated Rules 1.15(c) and 8.4(b).

5. Other Cases

The Panel considered the two following cases represented in the Determination to be certified from Subcommittee meetings on June 16, 2005 and June 21, 2005, and dismissed both cases. The Panel dismissed VSB Docket Number 05-070-0206 (Frank James), concluding that the Bar did not present clear and convincing evidence to prove Green violated the Rules in that matter. The Panel also considered the Subcommittee's certification in a matter concerning Green's former associate, Peter Schwartz (VSB Docket Number 02-070-3523). The Panel dismissed this case because the "Bar did not act promptly as required by Part Six, § IV, Paragraph 13(G)(4) of the Rules of the Supreme Court, thereby prejudicing [Green] with the delay."⁴

On December 29, 2006, the Panel entered a Memorandum Order imposing a six-month suspension of Green's license to practice law in the Commonwealth of Virginia, effective January 1, 2007. Green timely noted his appeal of the Panel's judgment.

B. Analysis

In attorney disciplinary proceedings, we review the findings of a three-judge panel under the same standard that we apply to the findings of the Virginia State Bar Disciplinary Board:

On 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.

El-Amin v. Virginia State Bar, 257 Va. 608, 612, 514 S.E.2d 163, 165 (1999) (quoting Myers v. Virginia State Bar, 226 Va. 630, 632, 312 S.E.2d 286, 287 (1984) (emphasis omitted)). 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 Bar, the prevailing party below. Gunter v. Virginia State Bar, 238 Va. 617, 619, 385 S.E.2d 597, 598 (1989).

Green assigns error to the Panel's judgment based on (1) failing to grant his motion to dismiss for lack of jurisdiction; (2) denying his plea in bar regarding the timeliness of the Panel hearings; (3) improperly permitting the Bar to amend its Complaint during the hearing; and (4) finding that he had violated any of the Rules of Professional Conduct.

1. Green's Motion to Dismiss

Green first assigns error to the Panel's denial of his motion to dismiss for lack of jurisdiction. Green asserts that the Board was without jurisdiction to consider the charges against him because the basis for the Panel's issuance of the rule to show cause was the result of erroneous information in the Bar's Complaint, particularly the attached Determination.

Green alleges that Bar Counsel first notified the Panel during the hearing that the certifications recited in the Determination were actually made on February 24, 2006 and not on the three dates listed in the Determination: June 16, 2005, June 21, 2005 and February 24, 2005. Green contends he thus did not receive proper notice of the charges against him because there was no prompt mailing of a Determination after the certifications and consequently, the Panel was without jurisdiction to proceed against him.

Green also argues that Bar Counsel failed to inform the Panel before the hearing that the Schwartz matter had already been the subject of certification in 2003 and that the matter had been resolved. Green further contends that the Subcommittee on February 24, 2006 acted improperly when it considered actions and proceedings by other...