Disciplinary Board Disciplinary Actions - Virginia State Bar

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the restriction only applied to civil cases even though
there is no such limitation in the language of the order.
Nature of Misconduct for VSB Docket No. 01-042-1309
The Board unanimously finds, by clear and convincing evidence,
that Respondent violated the following Rules of the
Virginia Rules of Professional Conduct:
RPC 8.4(b) and (c).
The record establishes that he knew he was suspended
and knew that he was not supposed to appear in court, yet he
did so any way because it was expedient to do so. Thus, he
committed a criminal or deliberately wrongful act. His failure to
advise the court of his status was a misrepresentation of his
status to the court. This failure to abide by the laws of the
Commonwealth and to do so in open court reflect adversely on
the Respondent’s honesty, trustworthiness and fitness to practice
law. Moreover, these actions involved dishonesty, fraud,
deceit and misrepresentation. Thus, the violations of RPC 8.4
(b) and (c).
Findings of Fact for VSB Docket No. 01-042-1387
21. In 2000, the Respondent represented the debtor in In Re:
Ida Altamirano, Debtor, Case No.: 00-12362-SSM, in the
United States Bankruptcy Court, Eastern District of Virginia,
Alexandria Division. This representation occurred, in part,
during the period when Respondent’s license to practice
law in Virginia was “administratively” suspended, as set
forth in Paragraph 18 hereof.
22. In the course of his representation of the debtor in the
aforesaid matter, Respondent filed a document with the
court late which resulted in his client losing the benefit of
her homestead exemption. As a consequence, the court
ordered the debtor to pay the trustee the $4,138.92 amount
she was attempting to exempt. The Respondent tendered
his own personal check to the trustee in the amount of
$4,138.92. However the check was returned for insufficient
funds.
23. The Respondent stated to a Virginia State Bar investigator
that the bankruptcy matter was Respondent’s first bankruptcy
case and that the payment made to the trustee was
from his personal funds because he had erred in filings
required to preserve his client’s homestead exemptions.
24. The trustee in bankruptcy procured an Order to Show
Cause against the Respondent due to the tender of the
worthless check. The matter was ultimately dismissed
because the worthless check was made good with a
replacement check, and the Respondent reimbursed the
trustee for the bank fees incurred by the trustee on
account of the worthless check.
Nature of Misconduct for VSB Docket No. 01-042-1387
The Board unanimously finds, by clear and convincing evidence,
that Respondent violated the following Rules of the
Virginia Rules of Professional Conduct:
RPC 1.1
RPC 1.3(a).
Respondent’s conduct demonstrated that he lacked the re quisite
competency to practice in this area of the law, yet he did
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disciplinary actions
so anyway. His lack of competency resulted in his client’s rights
being prejudiced. Then, he compounded the situation by tendering
his own check which was dishonored because of insuff icient
funds. This conduct violated both RPC 1.1 and RPC 1.3(a).
IMPOSITION OF SANCTIONS
After the Board made its findings of Misconduct on the
above matters, the Bar introduced the Respondent’s prior disciplinary
record into evidence and presented the Bar’s argument
regarding sanctions. In order to put the Board’s action in these
matters in proper perspective, it is necessary to briefly review
the Respondent’s prior disciplinary record.
The first matter is VSB Docket No. 99-042-2832. From
October 29, 1998, to August 19,1999, Respondent was administratively
suspended from the practice of law for his failure to
comply with similar requirements as were involved in VSB
Docket No. 01-042-1309 discussed above. Even though he had
notice of that administrative suspension, he continued to practice
law during that almost ten month period of time. On July
13, 2000, the Fourth District Committee found the above facts
to have been proven by clear and convincing evidence and
imposed a private reprimand with terms. However, the
Respondent did not comply with the terms and the matter was
certified to the Disciplinary Board for a trial de novo. At an
August 24, 2001, hearing, the Disciplinary Board found that his
conduct, as described above, violated DR 1-102 in that he committed
a crime or other deliberately wrongful act that reflected
adversely on his fitness to practice law and engaged in conduct
involving dishonesty, fraud, deceit or misrepresentation which
reflected adversely on his fitness to practice law. Accordingly,
the Board imposed a three month suspension of his license to
practice law.
In the next matter, VSB Docket No. 01-042-1310, the
Respondent received a public reprimand upon the Respondent
for conduct during 2000. In the underlying matter, the
Respondent was hired by his clients to represent them in a
fairly simple litigation matter which involved a dispute between
his clients and a home improvement contractor. During the
course of that representation, the Fourth District Committee
found that his conduct violated RPC 1.1 in that he failed to represent
his client competently and RPC 1.4 in that he failed to
communicate with his clients and keep them reasonably
informed about their case.
Thus, even though he practiced from October 29,1998, to
August 19,1999, while his license was suspended and he was
put on notice that the Bar took this misconduct very seriously
in 1999 when VSB Docket No. 99-042-2832 complaint was initiated;
even though he was treated relatively leniently by the
Fourth District Committee when it imposed a private reprimand
with terms for this misconduct on July 13, 2000; he took action
or inaction which resulted in his license being administratively
suspended again just a few short months later on November
17, 2000. Then, with full knowledge of this administrative suspension,
he deliberately elected to practice during the time of
said suspension because it was expedient to do so. Mr. Fails
has received a private reprimand with terms, which he failed to
comply with. Then, that matter was certified to the Board and
he was given a three month suspension. Then, in November of
2001 he was given a public reprimand for failing to act competently
and failing to communicate with his clients in a matter
he handled in 2000. Now, in the matters currently before the
Board, it has been established that in the first matter he