Williams v. Virginia State Bar, Record No. 002286.

• Decision Date: 02 March 2001
• Docket Number: Record No. 002286.
• Citation: 542 S.E.2d 385,261 Va. 258
• Parties: Robert Allen WILLIAMS v. VIRGINIA STATE BAR.
• Court: Virginia Supreme Court

542 S.E.2d 385

261 Va. 258

Robert Allen WILLIAMS v. VIRGINIA STATE BAR.

Record No. 002286.

Supreme Court of Virginia.

March 2, 2001.

Rhetta M. Daniel, Richmond, for appellant.

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

Present: CARRICO, C.J., and LACY, KEENAN, KOONTZ, KINSER, and LEMONS, JJ.

KEENAN, Justice.

This case presents an appeal of right from a ruling of the Virginia State Bar Disciplinary Board (the Board). Robert Allen Williams challenges the Board's decision suspending his license to practice law in the Commonwealth for a period of six months based on its finding that Williams failed to comply with the terms of an agreed disposition order.

The following facts are undisputed. On March 27, 1998, Williams appeared before the Board in response to charges that in 1993, he mishandled client funds in violation of Disciplinary Rules 9-102(A)¹, 9-102(B)², and 9-103(B)³ of the former Code of Professional Responsibility (CPR)⁴, now Rules 1.15(a), 1.15(c), and 1.15(f), respectively, of the Rules of Professional Conduct. The Board found by clear and convincing evidence that Williams's actions constituted misconduct in violation of these Rules. Before the hearing, Williams, Williams's counsel, and counsel for the Virginia State Bar (Bar counsel) negotiated an agreed disposition that provided, in relevant part:

Upon consideration whereof, THE FOLLOWING DISPOSITION IS ORDERED:

Six Months Suspension of Mr. Williams'[s] license to practice law in the Commonwealth of Virginia suspended for a period of One Year, running from the date of the entry of the opinion order in this matter, upon the following terms and conditions:

. . . .

2. That during said year Mr. Williams shall, at his cost, obtain the services of a certified public accountant who shall provide four quarterly written certifications to the Virginia State Bar that the trust account(s) of Mr. Williams are in compliance with Canon 9 of the current CPR. If said trust account(s) are not in compliance, the certified public accountant shall so state in his certification(s) and explain the existence of the noncompliance.

3. It shall be the sole responsibility of Mr. Williams to insure that these terms are fulfilled.

4. Any failure to fulfill the terms herein shall automatically result in the imposition of the Six Months Suspension of license. If any hearing is held upon a failure to fulfill terms, the sole issue shall be whether or not a failure to fulfill terms occurred.

On June 26, 1998, based on its finding of Williams's misconduct, the Board entered an order incorporating the agreed disposition (the agreed disposition order).

In September 1998, Williams engaged William White, Sr., a certified public accountant (CPA), to audit Williams's trust accounts and to provide certifications to the Bar that the accounts were in compliance with Canon 9 of the former CPR as required by the terms of the agreed disposition order. In December 1999, nearly 18 months after the agreed disposition order was entered, Williams delivered his trust account records to White for the period from June 26, 1998 through June 30, 1999, and requested that White begin his review. White testified that his office was closed from just prior to Christmas through the end of the year, and that he did not begin work on Williams's records until early in 2000.

On December 22, 1999, about one week after Williams delivered his records to White, Bar counsel sent a letter to Williams's counsel that stated in relevant part:

I am unaware that Mr. Williams has fulfilled [terms 2 and 3 of the agreed disposition order] and therefore seek proof of same from Mr. Williams.

I shall tickle this file for January 24, 2000, in order to give you a chance to contact Mr. Williams and let me know something.

On January 24, 2000, Williams's counsel sent to Bar counsel a copy of a letter from White, which stated in part that "during the year of June 26, 1998 through June 25, 1999, Robert Allen Williams, Esquire, obtained my services to provide four quarterly written certifications to the Virginia State Bar." No quarterly certifications were provided with this letter.

On February 17, 2000, Bar counsel filed a notice to show cause alleging that Williams had failed to comply with terms 2 and 3 of the agreed disposition order, and a motion to impose the six-month suspension under term 4 of the order on the ground of non-compliance. A show cause hearing was scheduled for March 24, 2000. Williams filed a motion requesting a continuance, which was granted, and the hearing was rescheduled for April 28, 2000.

On April 4, 2000, more than 21 months after entry of the agreed disposition order, Williams submitted to the Bar four quarterly certifications prepared by White based on his audit of Williams's trust accounts. The quarterly certifications included the time periods of (1) June 26, 1998 through September 30, 1998, (2) October 1, 1998 through December 31, 1998, (3) January 1, 1999 through March 31, 1999, and (4) April 1, 1999 through June 30, 1999. Each of the four certifications stated that Williams's trust accounts were in compliance with Canon 9 of the former CPR.

The Board held a show cause hearing on April 28, 2000. Bar counsel argued that the six-month suspension specified in the agreed disposition order should be imposed because Williams violated terms 2 and 3 of the order by not providing the required certifications within one year from the date of the order.

Williams asserted in response that he had complied with the agreed disposition order based on his interpretation of term 2, which he contended was ambiguous. Williams argued that he understood term 2 to require only that he retain the services of a CPA within a year from the date of the order. He contended that if term 2 were read to require that he submit the quarterly certifications to the Bar within one year, compliance would be impossible because records for the last quarter would not be available for audit until after the year had ended.

Given the impossibility of full compliance for all four quarters, Williams contended that term 2 should be interpreted to require only that he retain the services of a CPA within a year, and that he submit the required certifications within a reasonable time after the end of that year. Williams accordingly asserted that he complied with the agreed disposition order because his submission of the certifications, on April 4, 2000, was done within a reasonable time after the year following entry of the order, which ended on June 25, 1999.

The Board concluded that Williams had failed to comply with terms 2 and 3 of the agreed disposition order, and entered an order imposing the six-month suspension of Williams's license in accordance with the terms of the agreed disposition order. This Court stayed execution of the order suspending Williams's law license pending the outcome of this appeal.

On appeal, Williams raises the same arguments that he raised in his show cause hearing before the Board, and contends that he fully complied with the conditions set forth in the agreed disposition order. We disagree.

In reviewing the Board's decision in a disciplinary proceeding, we conduct an independent examination of the entire record. El-Amin v. Virginia State Bar, 257 Va. 608, 612, 514 S.E.2d 163, 165 (1999); Myers v. Virginia State Bar, 226 Va. 630, 632, 312 S.E.2d 286, 287 (1984). We consider the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the Bar, the prevailing party in the Board proceeding. El-Amin, 257 Va. at 612, 514 S.E.2d at 165; Gunter v. Virginia State Bar, 238 Va. 617, 619, 385 S.E.2d 597, 598 (1989). We give the Board's factual findings substantial weight and view them as prima facie correct. El-Amin, 257 Va. at 612, 514 S.E.2d at 165; Myers, 226 Va. at 632, 312 S.E.2d at 287. While we do not give the Board's conclusions the weight of a jury verdict, we will sustain those conclusions unless it appears they are not justified by a reasonable view of the evidence or are contrary to law. Id.

We first consider whether the Board erred in concluding that Williams failed to comply with the terms of the agreed disposition order. In a show cause proceeding before the Board, the burden of proof is on the respondent to show by clear and convincing evidence that he complied with the terms imposed under an agreed disposition order. Virginia State Bar Disciplinary Board Rules of Procedure, Rule IV(D)(11) (2000).

In this case, the agreed disposition order suspended the six-month suspension of Williams's license to practice law "for a period of One Year, running from the date of the entry of the opinion order," subject to certain terms. As indicated above, term 2 states that "during said year Mr. Williams shall . . obtain the services of a [CPA] who shall provide four quarterly written certifications to the [Bad." The Board found that Williams failed to comply with term 2 because he did not submit the required certifications "during said year," and because he "failed to demonstrate by clear and convincing evidence sufficient cause to explain his failure to comply [with that condition]."

The record before us supports the Board's findings. As indicated above, the agreed disposition order states that the six-month suspension of Williams's license is suspended for a period of one year, provided that Williams "shall" retain a CPA to audit his accounts and submit certifications to the Bar "during said year." Williams's construction of this language, that a CPA must be retained but none of the certifications need be submitted "during said year," would render meaningless the order's provision that Williams's law license suspension be suspended for one year only. The order's use of the imperative "shall"...