This is the first of a monthly series summarizing some of the latest decisions from the various District Committee, Disciplinary Board, and Three Judge Panel decisions of the Virginia State Bar (VSB). I’ll be looking at trends in substantive areas of law and offering some advice for what these cases mean to practitioners here in the Commonwealth.
In the Matter of Jibran Muhammad
VSB Docket Nos. 23-041-125374; 23-041-128914
Agreed Disposition for 6 Months with Terms, May 6, 2024
Mr. Muhammad emigrated to the United States at the age of 16, worked multiple jobs, and ultimately graduated from William and Mary Law School, passing the Virginia Bar Exam in 2013. From October 2017 through February 2020, he operated a solo practice that included immigration law, operating under the name JM Legal PLLC. Throughout 2019, several clients retained his services and paid fees for representation in immigration matters. In January of 2020, Mr. Muhammad changed the name of his firm from JM Legal, PLLC to Prime Law, PLLC. On February 10, 2020, he purchased the web domain name and created a website for Prime Law. The only problem? He was about to start working as an Assistant Commonwealth’s Attorney in Prince William County. As a condition of his employment, he was prohibited from representing private clients, as are just about all government attorneys. He did not tell his employer that he was continuing to do so anyway, and he also failed to advise his clients that he was working full time as a Commonwealth’s Attorney. Mr. Muhammed continued signing up clients after starting his job and receiving fees for work he never performed. Those fees were not deposited into his trust account. His Prime Law website was renewed two years after he began working for the Commonwealth Attorney’s Office. The Disciplinary Board accepted an Agreed Disposition of a six-month suspension with terms for violations of Rule 1.3 (Diligence), 1.4 (Communication), 1.15 (a), (b)(3)-(5) (Safekeeping Property), 1.16 (d) (Declining or Terminating Representation, and 8.4 (b) and (c) (Misconduct).
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Lawyers in private practice who are switching to public sector work should be mindful of the fact that most, if not all, government agencies forbid their attorneys from taking on private clients. Some agencies will allow lawyers to represent family members in small matters such as traffic tickets, but it is important to ask your employer what you can and cannot do. Any malpractice insurance that the government may carry will not cover private work you do on the side.
Additionally, lawyers who are leaving private practice have an absolute duty under Rule 1.16 to protect their client’s interests when terminating representation due to taking on other work. Other members of a firm might be able to take over, but the client has the right to go wherever they so choose. Rule 1.16(d) of the Virginia Rules of Professional Conduct states “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, refunding any advance payment of fee that has not been earned and handling records as indicated in paragraph (e).” It is imperative for lawyers to ensure that their client’s cases are transitioned to successor counsel. If an appearance has been made, the lawyer must be mindful of their obligations under Rule 1.16 (c), which provides “In any court proceeding, counsel of record shall not withdraw except by leave of court after compliance with notice requirements pursuant to applicable Rules of Court.”
Finally – and I cannot stress this enough – all advance fees must be deposited into a trust account and not paid until EARNED. In Virginia, a client always retains the right to terminate the lawyer at any time and a refund of all unearned fees still held in trust. Calling an advance fee a retainer doesn’t convert an advance fee payment into anything other than what it is. Refer to Legal Ethics Opinion 1606 for more information about handling fees. That also means that a lawyer is required to maintain their trust account in accordance with the requirements of Rule 1.15 of the Virginia Rules of Professional. Do not let a complaint against you that has no merit turn into a disciplinary proceeding as a result of failure to maintain your trust account properly.
In the Matter of Jason Michael Brenemen
VSB Docket No. 24-060-130673
Interim Administrative Suspension, April 9, 2024
The Disciplinary Board entered an administrative order on April 9, 2024 for Respondent’s failure to comply with a subpoena duces tecum issued by the Office of Bar Counsel on February 2, 2024 in connection with an investigation.
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If you receive a bar complaint, or a complaint against you is referred out for an investigation, there is a very good chance that the Office of Bar Counsel has issued a subpoena duces tecum seeking records relating to the case, and those related to how you handled your client’s fees. Burying your head in the sand will not make a bar complaint, investigation, or your ethical duty to respond magically disappear. Under Rule 8.1 (c) of the Virginia Rules of Professional Conduct, Virginia lawyers are under a duty to respond to all lawful demands for information from a disciplinary authority. Does that you mean that you need to simply turn over all the information in response to an overly broad or otherwise objectionable subpoena? No, an objection is a response! But you do need to timely respond, because the VSB’s subpoenas have teeth and they hurt when they bite. Pursuant to Part 6, § IV, ¶ 13-8.A.5 of the Rules of the Supreme Court of Virginia, the Office of Bar Counsel has the authority to issue subpoenas for the production of documents necessary or material to any Investigation, District Committee, or Board proceeding. Failure to respond or otherwise comply can result in the administrative suspension of the lawyer’s license. See Part 6, § IV, ¶ 13-6.G.3.
An administrative suspension is just paperwork, right? It’s not like I did anything wrong, right? WRONG. Even though an interim administrative suspension is not an affirmative finding of Misconduct, such a suspension has the same effect – your privilege to practice law in the Commonwealth of Virginia is suspended until the order is lifted. If you walk into court or continue representing clients while on an administrative suspension, you can expect the complaint against you to morph into a case of Unauthorized Practice of Law (UPL) pursuant to Rule 5.5 ©. Judges and opposing counsel routinely read the Virginia Lawyer Register and Lawyer’s Weekly, where such orders can be, and frequently are, published. Administrative Suspension Orders are public documents. If you get an administrative suspension for failure to comply with a subpoena (or for non-payment of dues or MCLE requirements), get it taken care of as soon as possible. Until you do, you are not authorized to practice law.
In the Matter of Edward Scott Smalley
VSB Docket Nos. 23-070-128259
Agreed Disposition Public Reprimand with Terms, March 28, 2024
Mr. Smalley agreed to represent a client in 2000 regarding consolidation of ownership involving a parcel of land in a National Historic District founded by emancipated slaves. The client paid $15,000 for Mr. Smalley to prepare quitclaim deeds. One quitclaim deed was prepared, and the owner of the property was paid $3,000 from the proceeds paid by the client. Mr. Smalley claims to have written a letter to his client in 2009 seeking clarification of the representation that went unanswered. The client attempted to contact Mr. Smalley over the next 10 years without success and Mr. Smalley never returned the $12,500 that he was holding in his trust account. The client passed away in 2019, and the client’s daughter qualified as executor. She retained an attorney who contacted Mr. Smalley several times in 2022 demanding return of the $12,500. But Mr. Smalley did not heed to this request, and the lawyer filed a bar complaint in 2023 alleging that Respondent kept the funds for 23 years without doing the work. During the investigation of this complaint, the VSB’s investigator determined that Mr. Smalley did not keep any client ledgers pursuant to Rule 1.15 (c) of the Virginia Rules of Professional Conduct, nor did he perform the required reconciliations under Rule 1.15 (d) either before or after Rule changes that went into effect after 2011, 2013, and 2022. Respondent agreed to violations of Rules 1.3 (Diligence), 1.4 (Communication) and Rule 1.15 (Safekeeping Property).
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Respondent was sanctioned for Misconduct that occurred a long time ago. Would not such a complaint be barred by the statute of limitations?
Contrary to popular belief, there is no such thing as a statute of limitations when it comes to bar complaints. To the extent there was ever any doubt about that, the Supreme Court of Virginia removed it in 2010. See Moseley v. Virginia State Bar, ex rel. Seventh District Committee, 280 Va. 1, 694 S.E. 586 (2010). This case is an example of what can happen when a lawyer fails to maintain the required records for their trust account. Rule 1.15 is very important and one that the office of Bar Counsel takes very, very seriously.
In the Matter of Matthew Gregory Finley
VSB Docket Nos. 24-021-129303
Agreed Disposition Public Reprimand with Terms, April 1, 2024
Mr. Finley was employed by a law firm that used a standard fee agreement. He was unaware that the firm’s fee agreement had been drafted by a lawyer whose license to practice law had been suspended. He used that form with a modification he drafted to engage a client in a divorce matter. The fee agreement contained a clause that stated that the client agreed to pay a retainer in the amount of $4,000 as a flat fee and that it was earned upon receipt (emphasis in the original). Mr. Finley amended the fee agreement to include language that the client agreed legal fees would be non-dischargeable in the event she filed for bankruptcy. The client became dissatisfied and demanded a full refund. Mr. Finely subsequently left the firm to establish a solo practice and continued working on the client’s matter. Mr. Finley claimed that the firm never transferred any monies to him, and he advised the client that she should contact the firm to seek the refund. Mr. Finley was given a public reprimand with terms for violating several rules, including Rule 1.5 (a) (Fees) due to the provisions listed above.
District Committee Determination
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This case illustrates again the importance of lawyers being familiar with LEO 1606, referenced above. A flat fee is not earned when paid and is earned only when the work is done and the representation is complete. An attorney and client can agree to certain benchmarks so long as the established benchmarks are reasonable to the work that would be performed under them. It doesn’t matter that a fee is ultimately earned in its entirety. Simply using the language could result in a finding of misconduct under Rule 8.4 (a) which makes even an attempt to violate the Rules of Professional Conduct in and of itself misconduct. Treating advance fees as earned before the work is done can find you on the wrong end of the Disciplinary System. See In the Matter of Jessica Ralsten Casey, VSB Docket No. 24-010-129976 (Public Reprimand with Terms)
Finally, lawyers who are contemplating moves from their firms, and plan on taking clients with them, should plan on discussing the status of unearned fees and their subsequent transfer at the time of separation. Don’t leave for tomorrow what you can do today, and that will help you avoid a bar complaint. If you do get a bar complaint, at least you’ll have a solid defense.
For an excellent summary of how to handle fees and why it matters, this one from Bar Counsel Renu M. Brennan is a good start. Bar Counsel’s Message – April 2024.
In the Matter of Melissa D. Johnson
VSB Docket Nos. 23-060-126832
Agreed Disposition Public Reprimand with Terms, April 8, 2024
Ms. Johnson represented the remainder beneficiaries of a family trust. There were concerns regarding potential financial exploitations of the sole trustee and beneficiary of the trust, a 69-year-old widow. Despite knowing that the widow was represented by counsel, Ms. Johnson allowed her clients to take a document concerning the trusteeship to the widow for her signature. Ms. Johnson’s clients told her that she did not need to attend the meeting with the widow and that it would be videotaped. To make matters worse, Ms. Johnson notarized the document that the widow signed based on what she viewed on the video. She was not physically present to view the signing and verify the identity of the signer. Ms. Johnson agreed to a Public Reprimand with Terms for violations of Rules 4.2 (Communications with Persons Represented by Counsel) and 8.4 (a) and (b) (Misconduct).
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When dealing with the notarization of documents, “close enough” for government work simply will not cut it. Notarial acts have a solemnity attached to them. In fact, Va. Code § 47.1-15 provides that a notary shall not notarize a document if the signer is not in the presence of the notary at the time of notarization, unless (i) in the case of an electronic notarization, satisfactory evidence of the identity of the signer is established in accordance with § 47.1-2 or (ii) otherwise authorized by law to do so. Violating this provision can get you in hot water with the Secretary of the Commonwealth. If there is an official finding of a violation of your notarial duties, the Virginia Code provides that such acts are treated as a Class 3 Misdemeanor. Va Code § 47.1-28. Additionally, a notary is civilly liable for all damages caused by official misconduct. Va. Code § 47.1-26. The lesson here is not employee any short cuts when affixing a notarial seal. Do not take someone’s word for it – it is your duty to verify.
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Paulo Franco is Counsel with ThompsonMcMullan, P.C. Prior to joining the firm in May of 2024, he served as Assistant Bar Counsel with the Virginia State Bar for 18.5 years. Have you received a Complaint or a Proactive Letter from the Virginia State Bar? The attorneys at ThompsonMcMullan, P.C. are here to help you navigate the Disciplinary System and represent your interests. It is important to deal with bar complaints immediately. Contact Paulo if you have any questions about best practices to avoid a bar complaint or how to run your trust account and handle fees.
