Disciplinary Board Disciplinary Actions - Virginia State Bar

The Board finds that the following facts have been established
by clear and convincing evidence:
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General Findings of Fact
1. At all times relevant to the charges in this matter,
Respondent Kenneth Harrison Fails, II, has been an attorney
licensed to practice law in the Commonwealth of
Virginia.
Findings of Fact for VSB Docket Nos. 00-042-2504
and 00-042-2638
2. In 1999 and 2000, the Respondent represented Joseph
Geraci and Theresa Geraci in litigation against CRI
Mechanical, Ltd., which originated in the Fairfax County,
Virginia, General District Court, and which was concluded
in the Fairfax County, Virginia, Circuit Court, as an appeal
from the General District Court.
3. In the General District Court action, a Motion for Summary
Judgment was granted on or about October 27, 1999, in
favor of CRI Mechanical, Ltd., because the Respondent
failed to file and serve a Bill of Particulars on behalf of his
client by the deadlines set by the Court. As an excuse for
his failure to file and serve the required Bill of Particulars
on time, the Respondent stated that he had to go to his
sister’s wedding and that his copy machine had been broken.
4. In consequence of the adverse judgment rendered by the
General District Court, the Respondent appealed his
clients’ case to the Circuit Court on or about November 19,
1999. The case was subsequently set for trial, de novo, in
the Circuit Court, on February 24, 2000.
5. Although correspondence regarding settlement of the case
was exchanged between Respondent and defense counsel,
no settlement had been reached as of January 28, 2000.
Defense counsel therefore served discovery requests upon
Respondent on or about that date.
6. The Respondent failed to make any discovery responses
on behalf of his clients, when due, Defense counsel contacted
Respondent by facsimile transmission and by phone
on February 21, 2000, regarding the outstanding discovery
and settlement of the case. On that date, and for the first
time, Respondent stated to defense counsel that he might
have a scheduling conflict with the trial date, and suggested
to defense counsel that the trial, set for February
24, 2000, be continued.
7. Defense counsel discussed the matter of a continuance
with his client, and thereafter advised the Respondent, via
a facsimile transmission on February 21, 2000, that the
defendant would not consent to a continuance of the case
from its scheduled trial date.
8. When it became clear to the Respondent that the case
could not be continued by agreement, he telephoned
defense counsel on the evening of February 23, 2000, to
determine if the case set for trial at 10:00 a.m. the following
day, might be settled. Without the prior knowledge or
consent of his client, the Respondent agreed to settle their
case against CRI Mechanical, Ltd., for $500.00.
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disciplinary actions
9. Pursuant to the settlement agreement reached, the
Respondent was to draft and forward to defense counsel a
proposed release and “Stipulation of Dismissal with
Prejudice.” Defense counsel was to forward a check on
behalf of his client in the sum of $500.00 following
defense counsel’s receipt of those documents.
10. On March 14, 2000, defense counsel telephoned the
Respondent because he had received no settlement documents
from the Respondent. The Respondent stated to
defense counsel at that time that he, the Respondent, had
not informed his clients that he had settled the case; that
he was going to inform his clients that he had settled the
matter for $2,500.00, and not the $500.00 that he had
agreed to with defense counsel; and that he, the
Respondent, was going to make up the $2,000.00 difference
between the two amounts using his own money.
11. In aid of the Respondent’s scheme to misrepresent to his
client the particulars of the settlement agreement actually
reached on their behalf, the Respondent asked defense
counsel to have his client sign a release that would state
that the case had been settled for “the sum of $500.00 and
other good and valuable consideration.” The Respondent
further stated to defense counsel that he, the Respondent,
would represent to his clients that the “other consideration”
of $2,000.00 had already been paid by CRI
Mechanical, Ltd. and that was the explanation for the settlement
proceeds being paid by two checks and the reason
for the wording of the release.
12. Defense counsel informed the Respondent that he would
have no part of the scheme detailed in Paragraphs 10 and
11. Thereafter, inasmuch as the Court, sua sponte, had
entered a dismissal order on March 6, 2000, to become
effective 35 days thereafter, Respondent filed a “Motion to
Vacate Order of Dismissal.” The Respondent’s motion was
heard and denied on March 31, 2000. At argument on the
Motion the matters set forth in the preceding paragraphs
were brought to the attention of the Court. Thereafter,
both the presiding Circuit Court Judge and defense counsel
separately brought these matter to the attention of the
Virginia State Bar.
13. The Respondent acknowledged to a Virginia State Bar
investigator that his clients were first informed of the
actual outcome of their case at the time that he responded
to the Virginia State Bar on or about May 1, 2000.
Nature of Misconduct for VSB Docket Nos. 00-042-2504
and 00-042-2638
The Board unanimously finds, by clear and convincing evidence,
that Respondent violated the following Rules of the
Virginia Rules of Professional Conduct:
RPC 1.4(a), (b) and (c)
RPC 8.4(a)
The facts clearly establish that the Respondent did not
keep his clients advised of the status of the matter or of negotiations.
He not only failed to explain developments to his
clients but he sought to deceive his clients about negotiations.