Disciplinary Board Disciplinary Actions - Virginia State Bar

The Panel confirms the accuracy of this finding, and it is
not contested by the Respondent.
4. Respondent drafted the order and presented it for entry
with a direction to the Clerk of the Court to mail the order
to Coleman at 218 Third Avenue West, Danville, VA 24540,
an address where Coleman had not lived for a number of
years. During the course of several years of prior proceedings
with Coleman, Respondent had served process upon
Coleman at his current two addresses of 816 Shephard
Avenue, Danville, VA or 4611 Raven Drive, Climax, N.C.
Moreover, Respondent’s first question at the hearing of
May 6, 1999, asked and confirmed Coleman’s physical
address at the Climax, North Carolina, address.
The Panel again finds the allegation to be accurate, and it
is not disputed by the Respondent. However, the Respondent
claims that she made an error in reviewing the Division’s computerized
records and used an “old” address, which was no
longer valid, notwithstanding both that the computer records
indicated that Mr. Coleman had moved from that address and
that the Respondent acknowledged having served process
upon Mr. Coleman at his correct address both prior and subsequent
to the service in question. Respondent claims that she
had no ulterior motive in using the invalid address for Mr.
Coleman, and the Panel finds that the Bar has failed to sustain
its position that suggested that the Respondent intentionally
inserted the wrong address so that Mr. Coleman would not
receive appropriate notice of the contents of the erroneous
order specifying the arrearage.
5. As a result of Respondent’s use of an old address,
Coleman did not receive the erroneous order directly.
The Panel finds that this is an accurate representation. The
Respondent did not offer any evidence to suggest otherwise,
but maintains that her error was unintentional and based on
her failure to obtain Mr. Coleman’s accurate address from the
computer records.
6. Upon learning of the arrearage order, Coleman moved the
Court to vacate the order and was heard on July 27, 1999.
Despite the lack of any evidence being presented to the
Court at the May 6, 1999, hearing, Respondent represented
to the Court that arrearage had been at issue at the May 6,
1999 hearing.
The Panel finds that this allegation has been established,
by clear and convincing evidence, and is a basis for a finding
of misconduct, which will be referred to below. The Bar
proved, by clear and convincing evidence, a violation of DR 7-
105(C)(1).
7. Coleman filed his appeal to the Virginia Court of Appeals
and served Respondent with his Appellant’s brief on or
about September 25, 1999. Coleman’s brief presented only
two (2) issues in his Question Presented, with the first
being the lack of evidence for finding an arrearage.
The Panel finds that this is an accurate statement, and the
Respondent does not contest. However, Respondent states that
she may have only “skimmed” the Appellant’s (Coleman’s)
brief, and it did not become evident to her that Mr. Coleman’s
major complaint was that the May 24, 1999, Circuit Court order
contained the arrearage adjudication without any evidence hav-
disciplinary actions
ing been presented to the Court. The Respondent’s statement
strains credulity but the Board could not conclude, based on
the evidence before it, that the respondent was deceptive with
this Board.
8. Notwithstanding Coleman’s briefing of the arrearage issue,
Respondent failed to report the issue in her memorandum
dated October 7, 1999, to her superiors and supervisors at
the Office of Attorney General.
The Panel finds this allegation to be accurate. The
Respondent does not contest its accuracy, although she continues
to claim that she omitted discussion of the “arrearage
issue” because she was essentially unaware of its significance
notwithstanding Mr. Coleman’s previously filed Motion to
Vacate the May 24, 1999, Circuit Court order and his
Appellant’s brief filed on or about September 25, 1999, with
the Virginia Court of Appeals. Both filings by Mr. Coleman
clearly articulated his concern that the Respondent improperly
inserted an erroneous finding in the May 24, 1999, order.
9. On October 21, 1999, Respondent filed her Appellee’s
brief with the Court of Appeals. Therein, Respondent
failed to address, acknowledge, or attempt to explain the
unsupported provision in the decree for the child support
arrearage.
The Panel finds this allegation to be established. The
Respondent’s position is that the inclusion of the arrearage
finding in the May 24, 1999, Circuit Court order was “harmless
error” or, in the alternative, the Appellant (Coleman) was
barred from presenting his argument to the Court of Appeals
because he did not adequately preserve the issue in the Court
below for appropriate appeal to the Court of Appeals. By
maintaining that position up to and until confronted by the
Judges of the Court of Appeals, this Panel believes that the
Respondent participated in further misconduct, which will be
addressed below. The Bar proved, by clear and convincing evidence,
a violation of Rule 3.1.
10. Only when expressly confronted by a three judge panel of
the Court of Appeals did Respondent acknowledge that
she had no defense to the arrearage provision. As a result
of Coleman’s pro se appeal, the Court of Appeals reversed
the trial court’s award of the child support arrearage.
The Panel finds that this allegation is accurate. The
Respondent claims that she brought her error to the attention
of the Court of Appeals as soon as practicable. The Panel
believes otherwise, and the Respondent’s failure to disclose her
error in including the arrearage in the May 24, 1999, order until
confronted by the Judges of the Court of Appeals was continuing
misconduct by the Respondent and a violation of Rule 3.1.
The Ninth District Subcommittee certified the following
alleged violations of the Disciplinary Rules of the Virginia Code
of Professional Responsibility and Virginia Rules of Professional
Conduct:
DR 1-102. Misconduct.
(A) (4) * * *
II. NATURE OF MISCONDUCT
The Panel finds that the Virginia State Bar did not prove,
by clear and convincing evidence, a violation of DR 1-102, and
the charge is therefore dismissed.
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