Seventh Dist. Committee of Virginia State Bar v. Gunter

• Decision Date: 11 October 1971
• Parties: SEVENTH DISTRICT COMMITTEE OF the VIRGINIA STATE BAR v. E. Eugene GUNTER.
• Court: Virginia Supreme Court

Page 713

183 S.E.2d 713

212 Va. 278

SEVENTH DISTRICT COMMITTEE OF the VIRGINIA STATE BAR v. E. Eugene GUNTER.

Supreme Court of Virginia.

Oct. 11, 1971.

J. T. Camblos, Commonwealth's Atty. Designate for City of Winchester, and T. J. Markow, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on the brief), for plaintiff in error.

Ernest G. Garrett, Jr., and Thomas H. Atkins, Richmond (G. Kenneth Miller, May, Garrett & Miller, Richmond, on the brief), for defendant in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN, and HARMAN, JJ.

HARRISON, Justice.

The Seventh District Committee of the Virginia State Bar (Committee), after due investigation, filed a complaint in the Corporation Court of the City of Winchester, Virginia, charging E. Eugene Gunter, an attorney, (Gunter), with malpractice, unethical and unprofessional conduct. The Committee alleged that Gunter 'did, for the purpose of misleading the said Committee, alter, change and falsify a date upon a statement taken by him from a client, and which said date was material to the investigation being made by the Committee, said date change being from Feb. 14 to Feb. 20, 1968'. Attached to the Committee's complaint, and expressly made a part thereof, was an exhibit styled 'Report of the Seventh District Committee of the Virginia State Bar'.

Pursuant to the complaint the court issued a rule against Gunter ordering him to show cause why he should not be disbarred or suspended from the practice of law. At the hearing before a special three-judge Corporation Court of the City of Winchester, the court struck the evidence of the Committee and dismissed the complaint. The Committee appeals, as of right, under Code § 54--74(5).

The genesis of this proceeding is an automobile accident in Frederick County on February 5, 1968 between a vehicle belonging to White, a client of Gunter, and a vehicle driven by Jones. Jones was charged with a traffic violation and summoned to appear before the County Court of Frederick County on February 19, 1968. On February 14, 1968, and while the criminal charge against Jones was pending, Gunter, the Commonwealth's Attorney of the county, allegedly accepted representation of White in connection with the civil aspects of the automobile accident, and took from White a statement as to the facts surrounding the accident, the statement being dated February 14, 1968. On February 19, 1968 Jones appeared before the County Court, entered a plea of guilty to the criminal charge against him, and paid a fine.

On February 20, 1968 Gunter wrote to either Jones or his liability carrier advising that he represented White and his wife on their claim for civil damages growing out of the accident. Sometime thereafter an adjuster, who represented Jones' company, endeavored to contact Gunter at his office in Winchester regarding the case. At that time Gunter's secretary exhibited the file in the White case to the adjuster, and he observed the statement from White taken by Gunter. He noted that this statement was dated February 14, 1968, five days prior to the date on which Jones was summoned to answer a criminal charge for reckless driving.

The fact that Gunter had apparently accepted civil employment from White while the criminal charge against Jones was pending was reported by the adjuster to his company's attorneys in Winchester, the firm of Kuykendall and Whiting. Thereafter, on July 21, 1969, Mr. Whiting of this law firm made a written complaint to the Committee which prompted its investigation of the matter.

Pertinent to this case is the fact that during the summer of 1969, in addition to the complaint made by Whiting in the White case, the Committee had before it four other complaints of alleged unethical conduct by Gunter, and all were under investigation. One complaint, referred to as the Anderson case, had been set for trial on August 29, 1969.

Gunter employed the firm of Harrison and Johnston of Winchester to represent him. Dabney W. Watts, the Commonwealth's Attorney for the City of Winchester, and a member of the Committee, was delegated by the Committee to make investigation.

Watts testified that about August 8th Mr. William A. Johnston, of counsel for Gunter, came to his office and stated they had received reports that the Committee was investigating other matters filed against Gunter since July 1, 1969. Watts confirmed this and disclosed to Johnston the nature of the complaints, including the White case. Watts said that one or two days later Johnston again came to his office and advised him that they were willing to cooperate with the Committee in the disposition of the new complaints; that they wanted to 'lay their cards on the table'; that this could be done by having a meeting between the attorneys representing Gunter, Mr. Talmage N. Cooley, chairman of the Committee, and Watts; that such a meeting be had with the view to having the Committee unite in a joint motion with Gunter's attorneys for a continuance of the Anderson hearing; and that a meeting of the Committee be convened at which they would 'put their cards on the table; and, particularly, in the White case'.

Watts advised Cooley of this request and they agreed to meet with Gunter's attorneys in Harrisonburg, Virginia on August 20, 1969.

Johnston corroborated the statements made by Watts of the preliminaries incident to the meeting in Harrisonburg. He testified that Watts advised him fully on August 8th of the information that the Committee then had on the three cases and this information was conveyed by him to Gunter.

A conference was held between Gunter and his attorneys, Johnston, Burr P. Harrison and B. J. Tisinger, at which time their strategy and 'handling approach' with Watts and Cooley were discussed. Johnston testified that Watts had advised him that the White case involved the question of whether or not a statement had been taken by Gunter from White on February 14, 1968. Johnston said that his firm had been advised by Gunter 'that there had been no approach to him by the client (White) until after the disposition of a criminal charge (against Jones) with regard to that case, which we found was disposed of on the 19th of February of that year'; that Gunter delivered to them a copy of a typewritten transcript of what he (Gunter) said was a tape recording of his original interview with White; that it was a document of some eight or nine pages and was dated February 20, 1968. Gunter also delivered to his attorneys his file in the White case which Johnston said 'he described to us as an 'active' file'. Johnston testified that there was no document concerning the White matter in this file dated prior to February 20, 1968.

The evidence is clear that at this conference between Gunter and his attorneys a strategy or approach was devised and agreed upon by them. The attorneys, relying upon Gunter's representation that he had not been approached by White prior to the disposition of the criminal charge, and armed with Gunter's file which contained the statement dated February 20th, concluded that they could 'seize on that case (the White case) as our weapon to gain the confidence of the Committee and our request for further concessions and considerations in the handling of those cases and a reconsideration of the Anderson case'. All of this was discussed with Gunter.

The attorneys for Gunter concluded that from what had been represented to them by their client, which they then believed, they had a perfect defense in the White case, and that they 'could not afford to let them (the Committee) get away with dropping that case, we wanted to make it part of our overall strategy'.

With minor variations, the testimony of Harrison and Tisinger was substantially the same as and corroborated that of Johnston.

The agreed meeting was held with Cooley and Watts in Harrisonburg on August 20, 1969, at which time all of the cases involving Gunter were discussed. Gunter's attorneys had the file he had given them, and during the course of the conference, and with regard to the White case, Tisinger observed, 'here is a copy of the statement'. Watts noticed that the statement was a 'photographic copy' and said that he saw the date, February 20th, on it. Tisinger stated that at this conference the attorneys for Gunter made the representation to Cooley and Watts 'that there was nothing in the White file, dated prior to February 19, 1968' or any document in the file indicating Gunter's involvement in the case prior to February 19, 1968.

Burr Harrison testified that, because of the assurances he and his associates had from Gunter, they developed the strategy outlined by his associates, and that this strategy was followed at the meeting with Watts and Cooley on August 20th and with the authority of Gunter.

At the August 20th meeting Cooley and Watts, for the Committee, acceded to the request of Gunter's attorneys that the Anderson case be continued. This was in order that there could be an informal meeting between the full Committee, Gunter and his counsel, as requested.

The full Committee meeting was set for September 17, 1969 in Winchester, its purpose being to consider matters which had come up subsequent to July 1, 1969, including the White case, and to determine whether or not there should be any reconsideration of the Anderson case. Prior to the meeting the Committee was advised that the Harrison firm had withdrawn from representation of Gunter in connection with matters arising after July 1, 1969. At the meeting on September 17th Gunter appeared in person, the Harrison firm appeared in connection with the Anderson case (it later withdrew from this case), and Mr. Thomas V. Monahan appeared as counsel for Gunter in matters that had arisen since July 1, 1969. During this meeting Gunter submitted to the Committee a typewritten copy of the statement he took from White and this statement bore the date of February 14, 1968, the same date mentioned in the...