CLIENTS’ PROTECTION FUND BOARD MEETING September 20, … · Lytle Law, PC Suite 200 11801 Canon...

CLIENTS’ PROTECTION FUND BOARD MEETING

September 20, 2019 at 10:00 a.m. Virginia State Bar Offices

1111 East Main Street, Suite 700, Richmond, Virginia 23219

AGENDA

I. Call to Order – Susan B. Tarley, Chair A. Officer

1. Susan B. Tarley, Chair

B. Introduction of New Members 1. Joseph Meek Bowen 3. Brian Dean Lytle 2. Christopher Anthony Corbett 4. Lisa Ann Wilson

II. Approval of May 3, 2019, Minutes – Susan Tarley – Tab 1

III. Review of Pending Petitions – Tab 2

IV. Action Items

A. Policy to pay CPF Board expenses for 2019-2020 – to be adopted B. Notification of 2nd Vice Chair Appointment – Susan Tarley C. Consent Agenda Proposal – Phillip Anderson – to be adopted – Tab 3

1. Revised Investigative Report Form – to be adopted if Consent Agenda approved D. Notification of Subcommittee Appointments – Susan Tarley

1. Finance: Phil Anderson, Tom Edmonds and Paul Gill 2. Public Awareness: Mary Grace O’Malley, Melissa Robinson, Ted Smith

and Mary Yancey

V. Reports and Updates A. Financial Report – Crystal Hendrick – Tab 4

1. Collection Efforts – Vivian Byrd B. Subcommittee Reports – Tab 5

1. Public Relations Subcommittee – Ted Smith a. May 3, 2019 Claims Report

2. Finance Subcommittee Report – Phillip Anderson C. Update on CLE Outline – Susan Tarley D. Proposed Rule Revisions – Susan Tarley and Cameron Rountree – Tab 6 E. CPF FOIA Policy and Public Records Act – Cameron Rountree – Tab 7 F. Status Report of Pending Claims – Jane Fletcher G. CPF Handbook 2019-2020 – use as a resource - Tab 8

VI. Future Meeting Dates

1. January 31, 2020 (Charlottesville) 2. May 1, 2020 (Richmond)

VII. Adjourn

2016

July 2013

July 1989 to June 1995

May 1982

May 1982

May 1982

May 1979

Biographical Information

Joseph M. Bowen

Bowen & Bowen, P.C. 228 Main Street

PO Box 688 Tazewell, Virginia

Participated in creating a Trust Account School video presentation with the Office of the VSB Bar Counsel

Elected to Virginia State Bar Council from the 29th Circuit

Member of the Mandatory Continuing Legal Education Board of the Supreme Court of Virginia (Vice Chair July 1994 - June 1995)

Member of Tazewell County Bar Association (President 1992 - 1993)

Admitted to practice law in Virginia

JD from T.C. Williams School of Law; University of Richmond, Virginia

BA from King College, Bristol, Tennessee

EDUCATION

Christopher A. Corbett 108 North Main Street

P.O. Box 1270 Stuart, Virginia 24171

Telephone (276) 094-7145 Fax (276) 694-2320

1974, Diploma, Patrick County High School 1978, B.A., with distinction, University of Virginia 1981, J.D., College of William and Mary

EMPLOYMENT

1978-80 1981-85 1984-85 1985-88 1988-92 1992-00 1993-Present 1992-96 1996-07

Law Clerk Associate

Partner Partner Partner

Mary Sue Terry Tompkins & Turner Asst Patrick Co. Commonwealth's Attorney Tompkins, Turner & Corbett Clark, Clark & Corbett Corb0tt & Brinks Tow11 Attorm:y, Tov.,n of Stuart Substitute District Court Judge Patrick Co. Commonwealth's Attorney

Stuart Hillsville Stuart Hillsvill.e Stuart Stuart Stuart

Sturut

LAW-RELATED POSITIONS

1992-2000 1993-2011 2011-Present 2008-2010 2010-Present 2006-2007 2002-2007

2012-2017

2008-Present

?-Present

Patrick County Commissioner of Accounts Treasurer, Patrick County Bar Association President, Patrick County Bar Association Patrick County Assistant Commissioner of Accounts Patrick County Commissioner of Accounts Member, Virginia Criminal Justice Academy District Representative, Virginia Association

of Commonwealth's Attorneys Subcommittee, Ninth District,

Virginia State Bar Member, Virginia Conference on Commissioners of

Accounts Member, Local Government Attorneys of Virginia

LEGAL EXPERIENCE:

CIVIC AFFAIRS

Civil and criminal state c.uurt litigation of many types and subject matters; basic estate planning and administration; family JavY: municipal law: real estate, including residential and commercial closings, land disputes. Special Commissioner/ Receiver/ Auditor as requested by local courts.

Form~r Chairman, Patrick County Peach F~stival Former President, Patrick County Chambt:r of Commerce Former member, Patrick County Strategic Planning Committee Former member, Hillsville Lions Club Member, Stuart Volunteer Fire Depa1tmcnt, 1974-81, 1988-present Member, Board of Directors, J .E.B. Stuart Birthplace Preservation Trust, Inc., 1993-present Member, Board of Directors, Chad es C. Powell Foundation, Inc., 1993-2010~ Chairman, 2010-

present Member (Treasurer or Secretary), Patrick County Fire & Rescue Association, Inc .• 1990-present Adjunct Instructor, Virginia Department of Fire Pru grams. 1994-2008 Member, Patrick Henry Friends of the NRA Committee, 1994-prescnt Member, Board of Directors. Patrick County High School Alumni Association. Inc., 2006-2010 Former member, Board of Directors. Patrick County Athletic Boosters, Inc. 2006-2007 Certified Pyrotechnician and Patrick County Fireworks Coordinator Member, Board of Directors, Dan River Park, 2006-present Certified Handgun Instructor, National Rifle Association, 2008-present

Christopher A. Corbett was raised in Patrick County. At Patrick County High School he was active in forensics, was co-captain of the varsity football team, and serYed as SCA President. He subsequently graduated from the University of Virginia where he served as a resident advisor for 3 years. At the College of William and Mary's law school he served as president of his legal fraternity.

EDUCATION

BRIAN D. LYTLE, ESQ. 11801 Canon Boulevard, Suite 200

Newport News, Virginia 23606 (757) 595-5655

[email protected]

T.C. Williams School of Law, University of Richmond - Richmond, Virginia (1984). Juris Doctor (Doctor of Law) degree. Moot Court Board.

Southern Illinois University (1981) Bachelor of Science, University High Honors.

Azusa Pacific College - Azusa, California ( 1979). Associate of Arts, Honors.

PROFESSIONAL

Virginia State Bar. Licensed and practicing since 1984.

Owner & Founder - Lytle Law, P.C. Lytle Law is a general practice law firm handling matters such as divorce, estate and trust, custody, personal injury, commercial litigation, real estate related matters including breach of contract litigation, and basically all matters within the general practice of law. Lytle Law emphasizes real estate closings, real estate related litigation, and the representation of real estate brokers, agents and firms, including Code of Ethics, procuring cause, malpractice, VREB and Fair Housing disciplinary actions, and commission collection cases in local courts. Brian is a noted speaker on real estate matters. I am a VREB licensed instructor, regularly speak before local Realtor® associations (VPAR, W AAR, HRRA, etc.) and brokerage firms, have presented at the VAR annual convention three times, have twice presented (once as a featured speaker) before the National Association of Realtors® at its annual mid-year (Washington DC 2007) and national conventions (New Orleans 2006), I have written over fifty Legal Comer articles for the Virginia Peninsula Association of Realtors® periodical Realtor Update. Now is the time - this

Virginia State Bar. Member of the First District Disciplinary Committee, served a term as Chair. Member of Newport News Bar Association, American Bar Association, and Virginia State Bar.

OTHER

Adjunct Professor, George Washington University (1985-1987) Computer Law & Security professor (GWU's Master's program).

United State Marine Corps (1977-1981) Completed four-year enlistment primarily as an Air Traffic Controller. Honorably discharged as an E-5 (Sergeant).

FAA Private Pilot's License (single engine land). PADI Open Water Scuba Certified. USMC Air Traffic Controller (tower and radar).

EXPERIENCE

LISA ANN WILSON 41 Carriage House Circle Alexandria, Virginia 22304

703/751-9296 (Home) 703/593-0382 (Cell) Email Address: [email protected]

DEPUTY COMMONWEAL TH'S ATTORNEY - 2003 to present Commonwealth's Attorney's Office, Arlington, Virginia

Responsible for overseeing all aspects of office administration. Duties include supervising eleven (11) support staff positions, preparing and managing a multi-million-dollar annual budget, serving as Human Resources Officer and functioning as the Commonwealth's Attorney's liaison with various local, state and federal agencies. Also responsible for prosecuting complex felonies in the Circuit Court.

ASSISTANT COMMONWEALTH'S ATTORNEY -1990 to 2003 Commonwealth's Attorney's Office, Arlington, Virginia

Responsible for prosecuting various complex felony and misdemeanor cases in the General District and Circuit Courts. Served as the Liaison Officer to the City of Falls Church. Supervised the General District Court Discovery Team. Assisted in administering the office case management system (VCAIS).

LAW CLERK-1989-1990 Nineteenth Judicial Circuit, Fairfax County, Virginia

Researched and drafted letter opinions on various legal issues as required by the judges. Reviewed all orders presented to the Court. Worked extensively with the bar and pro se litigants.

TEACHING ASSISTANT-1987 University of Virginia School of Law, Charlottesville, Virginia

Designed course materials for use by first year law students in the fall and spring semesters of Legal Research and Writing.

CASE MANAGER (INTERN)-1985-1986 Offender Aid and Restoration (OAR), Charlottesville, Virginia

Supervised 10-15 nonviolent adult misdemeanants referred to the agency by the court to perform community service and/or make restitution.

EDUCATION

JURIS DOCTOR: University of Virginia School of Law, 1989 Activities: Articles Editor, Virginia Journal of Law & Politics; Migrant Farm Workers Project; Black Law Students Association

Admitted to Virginia Bar: 1989

BACHELOR OF ARTS: University of Virginia, 1986 Major: Foreign Affairs

AFFILIATIONS

Virginia State Bar Chair, Disciplinary Board (2018 - present) Member, Committee on Lawyer Discipline (2017-2018) Member, Fourth District Disciplinary Committee, Section I (2006 - 2012) Faculty Member, Harry L. Carrico Professionalism Course (2018 - present) Member, Criminal Law Section

Arlington County Bar Association

Church Council, Alfred Street Baptist Church, Alexandria, VA

Northern Virginia Urban League Guild

Alpha Kappa Alpha Sorority, Inc.

VIRGINIA STATE BAR

Activities Report

2019-2020

Clients' Protection Fund 17-Sep-2019

Member Address Contact

Term

Expires / Number

6 Susan Bradford Tarley, Esq.Chair

5 Mary Grace Anne O'Malley, Esq.Vice Chair

8 Phillip Verne Anderson, Esq.Member

10 Joseph Meek Bowen, Esq.Member

9 Christopher Anthony Corbett, Esq.Member

3 Paul Geoffrey Gill, Esq.Member

7 Charles Franklin Hilton, Esq.Member

1 Brian Dean Lytle, Esq.Member

2 David Brandt Oakley, Esq.Member

4 Lisa Ann Wilson, Esq.Member

Thomas Andrew Edmonds, Esq.Member at Large

Melissa Walker Robmson, Esq.Member at Large

Tarley Robinson, PLC4808 Courthouse St Ste 102

Williamsburg, VA23188

Mary Grace A. O'Malley, PLLC9236 B Mosby StreetManassas, VA20110

Frith Anderson & Peake, P.C.29 Franklin RdRoanoke, VA 24006-1240

Bowen & Bowen, P.C.P.O. Box 688Tazewell, VA 24651-0688

108N Main StPO Box 1270Stuart, VA 24171-1270

Federal Public Defender OfficeSuite 3600701 East Broad StreetRichmond, VA 23219-1884

Wharton, Aldhizer & Weaver, P.L.C.100 South Mason Street

P.O. Box 20028Harrisonburg, VA 22801-7528

Lytle Law, PCSuite 20011801 Canon Boulevard

Newport News, VA 23606

POOLE BROOKE PLUMLEE PC4705 Columbus StreetVirginia Beach, VA 23462-6749

Commonwealth Attorney's OfRceSuite 52001425 North Courthouse Road

Arlington, VA 22201

940 IMichelle Place

Richmond, VA 23229

Glenn Robinson Cathey Memmer & SkaffPLCFulton Motor Lofts

400SalemAveSWStelOORoanoke, VA24016

757-229-4281 2020/2Fax:[email protected]

703-257-9777 2022/2Fax:562-6993marygrace. omalley@gmail. com

540-725-3361 2020/1Fax:772-9167panderson@faplawfirm. com

276-988-4830 2022/1Fax:988-7080

joebowen@bowenlawtaz. com

276-694-7145 2022/1Fax:694-2320cacorbet@embarqmail. com

804-565-0870Fax:648-5033paul_gill@fd. org

540-434-0316Fax:434-5502fhilton@wawlaw. com

757-595-5655Fax:595-4262bdlytle@lytlelaw. com

2020/1

2021/1

2022/1

2022/2757-552-6035Fax:552-6016doakley@pbp-attomeys. com

703-228-7087 2022/1Fax:228-7116

lwilson@arlingtonva. us

804-740-5762 2021/2

tomedmonds61@gmail. com

540-767-2200 2021/1Fax:767-2220mrobinson@glennrob. com

Member

Mary Yancey Spencer, Esq.Member at Large

Dr. Theodore SmithLay Member

Mrs. Vivian R. ByrdLiaison

VIRGINIA STATE BAR

Activities Report

2019-2020

Clients' Protection Fund

Address

305 Clovelly RoadRichmond, VA 23221-0026

Fredericksburg District SuperintendentPO Box 100Ladysmith, VA 22501

Virginia State BarllllEMainStSte700Richmond, VA 23219-3 565

Contact

17-Sep-2019

Term

Expires / Number

2022/2

myspencer@verizon. net

540-419-5131 2022/2

[email protected]

804-775-0572Fax:775-0545byrd@vsb. org

.... /.

VIRGINIA STATE BAR CLIENTS’ PROTECTION FUND BOARD MEETING

May 3, 2019

Minutes

The Clients’ Protection Fund Board convened at approximately 10:08 a.m. on May 3, 2019, at the Virginia State Bar Office, Third Floor Conference Room, Bank of America Building, Richmond, Virginia. Members of the board present:

Susan B. Tarley, Chair Adam D. Elfenbein, Vice Chair Donna Sue Baker Thomas A. Edmonds Paul G. Gill – who left the meeting at 1:48 p.m. Charles F. Hilton – who left the meeting at 3:05 p.m. Margaret A. Nelson David B. Oakley – who left the meeting at 1:50 p.m. Mary Grace O’Malley Melissa W. Robinson – who left the meeting at 1:08 p.m. Mary Yancey Spencer Dr. Theodore Smith

Member of the board absent:

Phillip V. Anderson

Member of the board participating by telephone at a remote location was:

Kenneth B. Murov participated from South Carolina, because of a personal matter and left the

meeting at 11:40 a.m.

Virginia State Bar staff present:

Cameron Rountree Vivian Byrd Jane Fletcher Crystal Hendrick Louann Weakland

Scott Prince, Assistant Bar Counsel, attended a portion of the Board meeting by telephone.

I. Minutes

CLIENTS’ PROTECTION FUND BOARD MEETING (May 3, 2019) Minutes

The board unanimously approved the minutes of the January 11, 2019 meeting. II. Petitions for Reimbursements

The board heard one report carried over from the last meeting (January 11, 2019) and decided as follows:

Petition # Petitioner Atty. Investigator Claim Amt. Decision Amt. Approved

18-555-003177 Silue Wang Robert Lyman Isaac Shearer, Jr. O'Malley $ 11,500.00 Pay $11,500.00

The board discussed new petitions and decided as follows:

Petition # Petitioner Atty. Investigator Claim Amt. Decision Amt. Approved 19-555-003188 Elizabeth Corinne Beverly Anne English Oakley $ 13,947.02 Pay $ 9,947.021 McCormmack-Whittemore 19-555-003190 Glenn Curtis Hackett Amber Greene McNabb Hilton $ 3,315.00 Deny 19-555-003191 Roxann J. F. Mason Bobby B. Stafford Elfenbein $ 25,000.00 Deny 19-555-003192 Fouad Fillali Bryan James Waldron Gill $ 28,000.00 Pay $ 6,375.00 19-555-003194 Lillie Justice Jason Lee Hamlin Murov $ 3,000.00 Pay $ 3,000.002 Conditional Approval 19-555-003195 Robert G. Beebe Tawana Denise Shephard Murov $ 18,000.00 Deny 19-555-003196 Theresa J. Kennedy Scott Alan Webber Robinson $ 2,000.00 Deny 19-555-003197 Nicholas L. Perry Sean Hanover Nelson $ 4,000.00 Deny 19-555-003198 Donte Chaz Joyner Shelly Renee Collette Anderson $ 4,900.00 Deny 19-555-003199 Renee Rose Flowers George Ernest Marzloff Smith $ 500.00 Pay $ 500.00 19-555-003200 Steven E. Mason Patrick Richard Blasz Spencer $ 19,270.00 Deny 19-555-003201 Linda Lee Pettit Robert L. I. Shearer, Jr. O'Malley $ 10,000.00 Pay $10,000.003 19-555-003203 L. Jack Gray Bryan James Waldron Gill $ 1,000.00 Pay $ 500.004 19-555-003207 Joline E. Leland John Wesley Bonney Edmonds $ 2,300.00 Deny 19-555-003208 Robert J. Bentley Jason Lee Hamlin Tarley $ 500.00 Pay $ 500.005 Conditional Approval 19-555-003210 Carol Hardy Tyler Renay Melitta Fariss Spencer $ 2,500.00 Pay $ 1,500.006

1 The board directed that the fund issue one check to the petitioner and her former spouse, Joshua McCormack-Whittemore, for $9,947.02.

2 The approval in this case is conditional upon Lillie Justice making a claim to the receiver and receiving a final decision on the claim from the Circuit Court of the City of Chesapeake presiding over the receivership proceeding. CPF Board Member Mary Grace O’Malley abstained from voting because she came late to the discussion.

3 The board directed that the funds be paid to Linda Pettit. Robbie Pettit is required to sign an assignment of claims to the bar before the claim is paid to Ms. Pettit.

4 CPF Board Member Charles F. Hilton abstained from consideration of this claim.

5 The approval in this case is conditional upon Robert J. Bentley making a claim to the receiver and receiving a final decision on the claim from the Circuit Court of the City of Chesapeake presiding over the receivership proceeding.

6 Since the CPF attorney in this matter is deceased, the fund can pay the petitioner immediately.


III. Committee and Financial Reports Finance/Procurement Director Crystal Hendrick presented the Financial Report of the fund as of March 31, 2019.

Clients’ Protection Fund Administrator Vivian Byrd reported on reimbursements to the fund, through debt collection by the Virginia Attorney General’s office, restitution by individual attorneys and otherwise, of sums the fund has paid in claims.

Sue Baker, Chair of Public Awareness Subcommittee, reported the following recent efforts to publicize the

work of the board and awards to petitioners:

• CPF Staff prepared a report of the awards from the January 2019 meeting. The report was published on several platforms, including VSB-sponsored social media, the VSB homepage, the CPF page of the VSB website, and the VSB February E-News. The ABA’s Coordinator for Client Protection distributed the report to members of the ABA Center for Professional Responsibility and administrators of other states’ clients’ protection funds. Other publications, including Virginia Lawyers Weekly, published news items regarding the VSB report.

• Vivian Byrd attended the Solo & Small-Firm Practitioner Forum on March 26, 2019 in Suffolk and the VSB Tech Show on April 8, 2019 in Richmond, distributed CPF info cards and answered questions from attendees concerning the fund.

• Susan Tarley served on a panel at the Bar Leaders Institute on April 12, 2019 and spoke about the fund.

• Mary Grace O’Malley worked on a CLE outline that, once approved for MCLE credit, might be presented by past and present CPF Board members to local and specialty bar organizations to educate lawyers about the Clients’ Protection Fund.

IV. Board Administrative Matters

The board discussed the Consent Agenda Proposal and suggested changes. The administrator will make the suggested changes and recirculate to board members for further discussion at the September 2019 meeting.

The board discussed the proposed CLE outline and approved it. Staff will revise the outline pursuant to the

discussion and present it to the VSB MCLE department for MCLE credit approval. The board discussed proposed CPF rule revisions presented by Deputy Executive Director Cameron

Rountree. The board agreed on the recommended changes, as revised at the meeting, and asked that a clean copy of the proposed rules be recirculated to all the board members for final approval, and subsequent submission to Council, at the next meeting. Board Chair Susan Tarley will decide whether to appoint a rules subcommittee, and if a subcommittee is appointed, its members.

The Board elected officers for Fiscal Year 2020, as follows.

Susan B. Tarley, Chair Mary Grace O’Malley, Vice Chair


Subcommittee Appointments for Fiscal Year 2020

The Board approved the following appointments to subcommittees:

Finance: Phil Anderson, Tom Edmonds and Paul Gill. The Finance Subcommittee members selected Phil Anderson as chair.

Public Awareness: Mary Grace O’Malley and Ted Smith will continue on the subcommittee, and

additional members will be added on or before the September 2019 board meeting.

CPF Counsel Jane Fletcher presented the status report on claims for the current fiscal year.

V. Other Business

The meeting schedule for 2019-2020 is: September 20, 2019 at 10:00 a.m. (Richmond) January 17, 2020 at 10:00 a.m. (Charlottesville) May 1, 2020, at 10:00 a.m. (Richmond)

Certificates of Appreciation were presented to Board members Donna Sue Baker, Adam D. Elfenbein and Margaret A. Nelson for their service to the board. A Certificate of Appreciation will be mailed to departing Board member Kenneth Murov.

Adjournment

The meeting adjourned at approximately 3:15 p.m.

* Payments are limited to: $50,000.00 per petitioner for losses that occurred before July 1, 2015 OR

$75,000.00 for losses that occurred on or after July 1, 2015 Revised July 2015

Virginia State Bar 1111 East Main Street, Suite 700 Richmond, Virginia 23219-0026

Telephone (804) 775-0500 Fax (804) 775-0501 TDD (804) 775-0502

CLIENTS' PROTECTION FUND BOARD INVESTIGATING BOARD MEMBER'S

SUPPLEMENTAL REPORT

Initial Report Supplemental Report

Investigating Board Member: Phillip V. Anderson

Petition #: 19-55-003198

Petitioner: Donte Joyner

CPF Attorney: Shelly Collette

CPF Attorney’s Status: Suspended pursuant to Consent to Revocation 3/23/2018

Amount Requested $4,900.00 Amount Recommended* $0

Action, if any, Petitioner took to recover claimed loss:

Was sufficient documentation of loss provided? Yes No (explain, if necessary)

If actual, quantifiable loss was established, approximate date loss occurred*

Results of Investigation and Recommendation:

Petitioner failed to submit any new or additional information to justify a reversal of the Board’s earlier decision. Petitioner still does not have sufficient documentation of payment, and despite his protestations to the contrary, it does appear that Collette did more than an insignificant amount of work on his behalf. The court records reveal at least 5 court appearances at which Collette, according to Petitioner, was present for at least three. I do not recommend reconsideration or any payment. Investigating Board Member: Phillip V. Anderson Date of Report: September 11, 2019

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Client Protection Fund Board Investigating Board Member’s Report Petitioner: Stevi Hubbard Robinson1 Respondent/Docket No.: Shelly Renee Collette / CPF # 19-555-003218 Client Protection Fund Attorney: Paul G. Gill Status of Respondent: License revoked by Disciplinary Board order entered March 23, 2018 Amount Requested: $4,000 Amount Recommended: $1,875 Results of investigation: The following narrative stems primarily from Ms. Robinson’s’s written petition, court records, my speaking with petitioner, and my reading about two months of text traffic she and later her husband had with respondent. As has occurred in prior Collette investigations, I had no response when inquiring if she had any input. Because it appears that Mr. Robinson was locked up again recently, I have not spoken with him. Ms. Robinson retained respondent not later than February 27, 2017, the date when a $3,750 check petitioner wrote was negotiated and deposited in respondent’s account. There was no written fee agreement. The representation was of petitioner’s husband, Michael Laner Robinson, who faced multiple drug distribution charges in Warren County during the relevant time period. Michael had a court appointed lawyer on those charges, and others in Circuit Court. It is unclear whether Ms. Robinson also paid $200, or $250, in cash, before that date. Petitioner says she paid $250, which she understood as a fee to get respondent to the jail where her husband was kept; she has no receipt or other document to reflect that. Respondent’s final invoice listed a first meeting with Michael Robinson, and travel time to the jail and back, billed against the retainer for $750 (at $250 an hour). It also listed a separate “non-billable time entry” of $200 as a “consultation flat fee not included in retainer.” Ms. Robinson on March 10, 2017, and March 22, 2017, texted Ms. Collette looking for an “update” on her husband’s situation. She informed me that from the start, her husband was hoping to effect his release pending resolution of the charges, and that both she and he had shared that with Ms. Collette.

1 Since the retainer was paid, Ms. Robinson and her husband—the client she paid respondent to represent—were divorced, by final decree dated May 22, 2018, according to Warren County Circuit Court records. My assumption is that the divorce, which was noted in the memorandum assigning this matter for investigation, is not dispositive of who gets what of the recommended disposition herein. I will conduct additional investigation if needed on that issue.

2 | P a g e

The March 10 entreaty went without a response. The March 22 request suggested getting together for lunch for said update. In response, Collette suggested meeting at a “brewpub” at a certain time, but that never happened, either; text exchanges suggest Ms. Robinson was there at the appointed time, but finally had to leave, and respondent indicated she missed because stuck in a preliminary hearing By March 28, however, Ms. Robinson sent respondent an unequivocal text: “Hi, Shelley just spoke with Mike, he said he just wants to go with John Bell [appointed counsel] He wants a refund also. Please let me know what our next steps should be. Thanks, Stevi.” This for some reason prompts respondent to say she needs to call the prosecutor and the court, and “send paperwork and notes to Bell,” the appointed counsel, followed by a question whether Ms. Robinson had Bell’s new address. The pair share a few short texts over the rest of that day, in which respondent says she will go to jail and see Michael just to “let him know how things went and know I didn’t forget about him.” Ms. Robinson responds, “I think you should.” The next day, she texts respondent twice for updates. Respondent then responds and says no luck getting hold of Bell, she will try to see prosecutor personally, and should see Michael on March 30. Also adds that she got a letter from Michael, content undescribed. On March 31, Ms. Robinson repeatedly tried by text to get respondent to call her. Given the sensitive nature of the topic at issue that day, I will defer discussing this until hearing. Petitioner advised respondent by text that she spoke herself that day to John Bell, the appointed counsel, asking him to handle the issue discussed that day, and to make clear that Mr. Robinson no longer wanted to switch counsel. The text traffic I reviewed between April 3 and April 19 is very testy. It almost all relates to repeated demands for a final bill and refund, both from petitioner, and later Mr. Robinson. Respondent, for her part, makes by my count at least a half dozen excuses for not getting the invoice done and refund sent. On Friday, April 7, 2017, respondent raises for the first time the notion that she needs Michael’s personal call or letter to end the representation. She abandons that tack the same day, perhaps because Ms. Robinson photographs and sends respondent every page of the signed, notarized, durable power of attorney, dated barely a month before the retainer check was deposited.2 Respondent nevertheless does not have the invoice and refund check ready on Saturday, as she suggests she can, or Monday the 10th, or Tuesday the 11th. Michael Robinson finally secured his release for a period of time. That was facilitated by his original appointed counsel, who was never substituted for by respondent or anybody else. Mr. Robinson started texting Ms. Collette on April 17, 2017. Respondent seemed concerned by that. She sent a flurry of texts saying, among other things, that petitioner threatened her; that she had worked out an agreement to have him out of jail 2 weeks ago; that it was appointed counsel’s

2 I assume it is appropriate for a lawyer to want to confirm that the actual client wants her on the case, or off the case, and not to blindly accept what the payer of the fee and/or holder of a POA says. I also assume the word of a spouse with a POA at least puts counsel on a duty to inquire whether the client wants to remain the client.

3 | P a g e

fault; that her assistant had problems; there was a birthday celebration; etc. Michael offered little comment on those claims, just reiterated the prior demands for refund. Two days later, Michael and respondent agree on Michael going to respondent’s office at 10 a.m. Ms. Collette texted him that she was going out because medications were not working on her spider-bit foot. Michael’s last text effectively mocks the invoice and says the check got put back into the mailbox. He calls the $200 refund not right, absurd, etc. Respondent texts back that her fee should have been $15,000, and $3,750 was a “big break” to begin with. The invoice itself includes 8 entries, concisely summarized as follows: 2/21/17 3 hours

($750) Jail visit with client plus travel time

3/8/17 2 hours ($500)

Warren Co. GDC substitution orders (Note: these are 1-page form orders)

3/8/17 1.2 hours ($300)

Review docs faxed from John Bell for GDC cases; call Bell regarding additional cases pending in JDR and Circuit Court (Note: Mr. Robinson had a violation charge pending in Circuit Court, and violation of protective order in JDR; fax 20 pages)

3/9/17 2 hours ($250)

Prepare substitution order for Circuit Court

3/31/17 1 hour ($250)

Calls with prosecutor, petitioner

4/10/17 4 hours Calls and texts with petitioner, and “call to attorney to release funds” (Note: Mr. Robinson apparently settled a wrongful death suit, and according to petitioner was receiving $16,500 a month regularly, from a lawyer in South Carolina involved in the settlement; that is the only “personal attorney” Mr. Robinson had. Petitioner denies asking Collette to call that lawyer, and says the lawyer had no authority to issue payments other than as the settlement authorized)

4/10/17 1 hour ($250)

“John Bell [appointed counsel] moved 3 times during your incarceration. Everything had to be remailed and refaxed each time.”

2/18/17 $200 “flat”

Consultation flat fee not included in retainer.

That left a total billed amount of $3,550, against the $3,750 retainer, explaining the $200 “refund” check which Mr. Robinson found so offensive as to leave in Ms. Collette’s mail box. (Petitioner advises that the two talked about the check, and Mr. Robinson put it back in the box because of petitioner’s concern that accepting and endorsing the check would be viewed as a settlement or waiver of rights) A few other comments about the invoice are in order besides the parenthetical references above.

4 | P a g e

Ms. Collette repeatedly mentioned an inability to track down John Bell’s mailing address, for purposes of circulating original substitution orders. The fax referenced on March 8 from Bell’s firm came with letterhead noting the address, which was 100 Peyton Street in Front Royal. Mr. Bell’s office did move, but not until April, and in any event Bell did not change offices, i.e., mail addressed to Williams and Bell on Peyton Street presumably would have forwarded to the 29 Crescent Street address to which the firm moved, about 0.2 miles by car, or less than 300 feet by foot. Ultimately, respondent never obtained all relevant signatures on substitution orders for any court, either in a facsimile, a scanned document, or an original document. It also appears that Mr. Robinson might have been released at least a couple weeks earlier, had Ms. Collette promptly effected substitution, for reasons I will elucidate at the board hearing. In speaking with me, Ms. Robinson denied that she ever spent 4 hours texting or calling Ms. Collette during the approximately six weeks of this episode. The texts she provided me from those weeks are many, but most are brief, and read in a matter of minutes. Recommended Disposition

I would make the following factual findings:

1. The respondent lawyer is revoked.

2. The claim before the Board is timely.

3. Petitioner does not claim a loss beyond the retainer she clearly paid, except for claiming she paid $250 cash preceding the $3,750 check. Although she lacks a receipt for that, respondent seems to acknowledge a $200 payment, albeit one she treated as a “consultation fee,” separate from the time she spent directly with the client.

4. For purposes of this claim, I find there was $200 in cash paid, and, in the absence of anything in writing characterizing it, accept respondent’s characterization of it. In other words, I view the maximum claim as $3,750.

5. Respondent did some legal service, in terms of a significant initial visit with her client on

February 21, 2017.

6. After she deposited the retainer six days later, she did nothing on the case until March 8.

7. On that date, she billed 1.2 hours to review 20 pages of General District Court records, and 2 hours to fax and mail 1-page form substitution orders.

8. Ms. Collette billed another 2 hours on March 9 to fax and mail a single 1-page form substitution order for a related Circuit Court matter.

9. Ms. Collette billed no more time against the retainer until March 31, 2017.

5 | P a g e

10. On March 28, 2017, petitioner unequivocally indicated her husband no longer wanted

respondent’s representation.

11. Ms. Collette’s text responses to that missive include one that on first blush makes no sense. At that time, she had no reason to believe she had been formally substituted for appointed counsel, so as to require her to perceive a need to call the prosecutor and the court, and “send paperwork and notes” to John Bell, to undo that substitution. Nor does her own invoice reflect her doing anything or learning anything between March 9 and March 28 that would have been helpful to Bell. (Rather, it reflects no activity.)

12. I find the only sensible construction of those responses is that Ms. Collette knew that the client’s primary litigation was to try to effect his release, and that if she wasn’t representing Mr. Robinson anymore, she wanted to get her “paperwork and notes” related to that issue, to Mr. Bell. That is consistent with what Ms. Robinson advised me.

13. Ms. Collette did text that she would visit Michael at the jail to “let him know how things went and know I didn’t forget about him.” Ms. Robinson responds, “I think you should.”

14. On March 29, petitioner texted respondent twice for updates. Ms. Collette in response indicated she had no luck getting hold of Bell, she would try to see prosecutor personally, and should see Michael on March 30. She added that she got a letter from Michael, content undescribed.

15. Because of confusion about who represented Mr. Robinson at that time, efforts to secure his release on March 31 were unsuccessful. He was released about two weeks later, with his original appointed lawyer representing him.

16. Mr. Robinson joined in petitioner’s demands for a final invoice and refund of amounts not billed. The invoice was as noted above, and the $200 refund check was not taken or negotiated.

17. As for the invoice noting 4 hours of calls and texts on April 10, 2017, I do not find that credible.

18. The odd invoice remark of appointed counsel’s moving is in part, simply wrong. Mr. Bell was in the same firm the entire relevant time period, and that firm moved only once, the brief distance noted above, at the beginning of April. The address of the firm prior to April, was on a letterhead that was faxed to respondent along with Mr. Bell’s file. I also have no idea what she had on April 10 that needed sending to Mr. Bell.

Legal Issues

To borrow the language of CPF Rule of Proc. I.G.2, Ms. Collette did not perform “no legal service,” nor am I convinced one can call her entire representation an “insignificant service.” Having said that, I would conclude that she did not fully earn her fee, such that her

6 | P a g e

failure to offer to refund more than $200 still constitutes a wrongful taking or conversion, for the following reasons. The aim of petitioner and her husband from the beginning were to move quickly to get the prosecutor’s and the court’s concurrence to the husband’s release on bail. Ms. Collette did not move quickly to effect that. Her invoice reflects no activity between her initial meeting with Mr. Robinson on February 21, 2017, until March 8, 2017, a 15 day gap. Over the ensuing two days, she billed over 4 hours for generating and transmitting very brief form orders to a few people, and gets her first look at the charging instruments and appointed counsel’s file. Petitioner then tells her on March 28 that her husband no longer wants her as counsel. Ms. Collette suggests she will act promptly, as she should. However, she does nothing until March 31. She acts then, only because her failure to promptly effect her substitution as counsel, caused others to be confused about whom to work with in effecting the client’s release. As indicated in my fact findings, I also find incredible the billing of 4 hours on a single day for calls and texts, and another 4 hours on two other dates to simply fax and mail form orders. For these reasons, I recommend that half of $3,750 ($1,875) be awarded the petitioner, or other appropriate person. PGG, Sept. 6, 2019

# # #

Client Protection Fund Board Investigating Board Member’s Report

Report on Request for Reconsideration, Received May 21, 2019 Petitioner: L. Jack Gray Respondent: Bryan James Waldron Client Protection Fund Attorney: Paul G. Gill Status of Attorney: Revoked after Disciplinary Board hearing on Sept. 28,

2018; order entered October 15, 2018 Amount Requested: $1,000 Amount Originally Recommended: $500 Amount Recommended on $500 Reconsideration Investigation and New Analysis Upon Reconsideration: A copy of the original investigation report and recommendation is attached hereto. Petitioner’s letter request for reconsideration states the following:

Dear Ms. Fletcher: In reply to your letter of May 10th, I do not agree to allowing Mr. Waldron $500.00. As Mr. Waldron was disbarred for many reasons including comingling of funds, making false statements to clients, and deliberately wrongful acts regarding honesty, he did not earn $500.00. As Mr. Waldron received $1,000.00 from me and you want to give him another $500.00 is beyond reason. I ask for reconsideration in this matter and request the full refund of $1,000.00.

As a threshold matter, the reasons for respondent’s being disbarred are not the relevant issue. The issue is whether there was reimbursable loss “caused by the dishonest conduct of the lawyer, not by negligence or malpractice.” This question generated ample discussion on initial consideration, with several Board members questioning whether any amount should be paid, because the respondent’s actions arguably sounded more like malpractice, than dishonesty. To quote the last two substantive paragraphs of the original report:

The issue is not whether the additional work would have avoided dismissal. The question is, even assuming for argument’s sake that the service Waldron

performed was “more than insignificant,” does his refusal to return any part of the $1,000 retainer constitute a wrongful taking or conversion.

Perhaps it is a closer call than I perceive it, but I would say it does, by a preponderance of evidence. There is nothing innovative, time consuming, or difficult about seeking discovery, investigating facts, or arguing for more time from opposing counsel or the court. Competency and diligence required those efforts, and the retainer was probably not fully earned by filing a scant complaint, attending a single hearing, and agreeing to the granting of motions.

My perception was that the reason the Board ultimately agreed to a 50 percent recovery, like suggested by CPF Rule of Proc. I.G.2.1 for claims to retainers, was that respondent clearly rendered at least some significant service. More specifically, he drafted a complaint (however sparse), filed it (incurring nearly $300 in filing fees alone, I believe), and served it on three parties, attended at least one court hearing on the motions the complaint prompted, and asked Gray to provide him with copies of the documents the court ruled had to be filed. Thus, to quote the rule, the services performed were “more than insignificant, but the Lawyer has not fully earned the entire fee,” such that failure to refund some portion of it “may still constitute a wrongful taking or conversion.” Although Mr. Gray has expressed interest in getting 100 percent of his claim reimbursed, I have not been able to reach him at all by telephone, which always generates either a “fast busy” signal, or what I recognize as a more traditional busy signal. I have called at various hours, day and night, to no avail. Preceding the initial consideration, I tried the email address the Bar has for him, as well; again, no luck. I still recommend paying 50 percent of the claim, or $500. If I hear from him after this date, I will submit an updated report and recommendation.

# # #

1 2. Any act committed by a Lawyer in the nature of failure, refusal or inability to refund unearned fees received in advance where the Lawyer performed no legal services or such an insignificant service that the failure, refusal, or inability to refund the unearned fees constitutes a wrongful taking or conversion. Where the Board finds that the legal services performed by the Lawyer are more than insignificant, but the Lawyer has not fully earned the entire fee, the failure, refusal or inability to refund the unearned fees may still constitute a wrongful taking or conversion, and the Board may reimburse fifty percent of the total fees paid by the petitioner.

Client Protection Fund Board Investigating Board Member’s Report Petitioner: L. Jack Gray Respondent: Bryan James Waldron Client Protection Fund Attorney: Paul G. Gill Status of Attorney: Revoked after Disciplinary Board hearing on Sept. 28,

2018; order entered October 15, 2018 Amount Requested: $1,000 Amount Recommended: $500 Results of investigation: By form retainer agreement dated September 24, 2015, petitioner L. Jack Gray retained respondent Bryan J. Waldron to represent him in a dispute involving “the violation of certain fiduciary duties by family members of client.” The agreement included a $1,000 retainer, which Gray paid, but Waldron’s fee otherwise was limited to a 40 percent contingency fee. Waldron drafted and filed a complaint for Gray against Gray’s sister, Agnes Louise Gray, in Arlington Circuit Court on November 13, 2015. It contained little substance. It started with seven brief paragraphs alleging facts or jurisdiction, and concluded with a 3-sentence prayer for relief. It also barely identified four alleged documents: (1) a living trust dated February 12, 2001, executed by Gray’s mother, Milmae F. Gray; (2) a power of attorney the executed in October 2012 appointing Agnes Gray as agent and attorney-in-fact, with L. Jack Gray as successor agent; (3) an executed will by the mother dated January 11, 2013; and (4) an irrevocable trust agreement signed by the mother the same day. The documents were not attached to the complaint. Gray did not initially give such documents to Waldron, nor did Waldron ask for originals or copies thereof. The complaint said little else about the theory of liability. For jurisdictional and venue purposes, it averred “acts and omissions constituting the breach of contract” to have occurred in Arlington. It offered only two other factual allegations “in regard to [the sister’s] fiduciary obligations.” First, it alleged the sister “failed to act in regard to” the October 2012 power of attorney. Second, it alleged the sister was required under “the terms of the contract to file the will and refused. Upon this refusal, she should have passed this obligation to successor in interest Plaintiff Lee Jackson Gray, her brother. The will was thus never filed. As a result of this nonfeasance, Plaintiff suffered material economic damages.” The complaint concluded with a prayer for judgment in the amount of $150,000, and for an order enjoining the sister from “participating in any further management or administration” of the mother’s estate.

(On August 13, 2013, in the matter of In re Milmae F. Gray, CL No. 2013-07049, in the Circuit Court of Fairfax County, the court appointed a guardian and conservator for Milmae Gray. The order doing so also revoked all financial and medical powers of attorney previously executed by her. L. Jack Gray and Agnes Louise Gray noted their objections, pro se, to that order. From public records, it appears their mother died in November 2013.) Court records reflect that the complaint Waldron filed was served, and prompted three pleadings. A demurrer alleged the complaint failed to set forth the essential facts of the claim and the basis for any causal connection between any alleged malfeasance and the claimed economic damages. A plea in bar alleged (accurately) that the above-referenced Fairfax County order appointing a guardian had revoked any powers of attorney pertaining to financial matters, such that any claim for breach of fiduciary duty was time barred. Finally, Agnes Gray filed a Motion Craving Oyer, requesting an order that plaintiff produce the documents referred to in the complaint. Waldron attended the first hearing scheduled in the case, on defendant’s demurrer and motion craving oyer; the plea in bar was not addressed. After argument from counsel, the Arlington County Circuit Court entered an order on January 22, 2016, sustaining both motions. It ordered that the complaint be refiled within 21 days, accompanied by “complete and authentic copies of the four documents referenced in said Complaint.” The order was drafted by counsel for Agnes Gray. Waldron signed the order as seen and agreed to. Promptly thereafter, there were clearly efforts by Waldron to secure the documents from Gray. Gray came up with three of the four; he never secured the fourth. As of this writing, I am waiting to hear back from Mr. Gray about which document described in the complaint was he unable to provide, and whether he ever did uncover same. On March 30, 2016, Agnes Gray moved to dismiss. The motion noted the procedural history of the case, and the failure of Waldron to refile the complaint and the documents it referred to as previously ordered. Counsel for Ms. Gray notified Waldron of a hearing on the motion to dismiss, held on April 15, 2016. Waldron did not appear. An order of dismissal, noting Waldron’s absence, was entered the same day. Conclusions and Recommended Disposition The respondent lawyer is revoked. The claim before the Board is timely. Petitioner does not claim a loss beyond the retainer he clearly paid. According to CPF Rule of Proc. I.G.2.:

2. Any act committed by a Lawyer in the nature of failure, refusal or inability to refund unearned fees received in advance where the Lawyer performed no legal services or such an insignificant service that the failure, refusal, or inability to refund the unearned fees constitutes a wrongful taking or conversion. Where the Board finds that the legal services performed by the Lawyer are more than insignificant, but the Lawyer has not fully earned the entire fee, the failure,

refusal or inability to refund the unearned fees may still constitute a wrongful taking or conversion, and the Board may reimburse fifty percent of the total fees paid by the petitioner.

As relevant to Waldron’s representation of Gray, Waldron clearly drafted a complaint--however ambiguous, short, and bare bones--and attended one hearing on two of the motions it spawned. However, his only response to the motions was to ask Mr. Gray for documents. He did not oppose the relief proposed in the sister’s demurrer and motion craving oyer. He did not file even the three documents he did receive from Gray. He did not seek leave for discovery to inquire if the defendant had any documents cited in the complaint, or seek extra time to file them, or conduct discovery or investigation to obtain other evidence of their content. The issue is not whether the additional work would have avoided dismissal. The question is, even assuming for argument’s sake that the service Waldron performed was “more than insignificant,” does his refusal to return any part of the $1,000 retainer constitute a wrongful taking or conversion. Perhaps it is a closer call than I perceive it, but I would say it does, by a preponderance of evidence. There is nothing innovative, time consuming, or difficult about seeking discovery, investigating facts, or arguing for more time from opposing counsel or the court. Competency and diligence required those efforts, and the retainer was probably not fully earned by filing a scant complaint, attending a single hearing, and agreeing to the granting of motions. I recommend paying 50 percent of the claim, or $500.

# # #



Virginia State Bar 1111 East Main Street, Suite 700

Richmond, Virginia 23219-0026


CLIENTS' PROTECTION FUND BOARD

INVESTIGATING BOARD MEMBER'S REPORT

Initial Report X Supplemental Report

Investigating Board Member: Smith

Petition: # 19-555-003199

Petitioner: Renee Rose Flowers

CPF Attorney: George E. Marzloff

CPF Attorney’s Status: 3 year Suspension (agreed disposition)

Amount Requested: $500 Amount Recommended* $250


Was sufficient documentation of loss provided? XYes No (explain, if necessary)

If actual, quantifiable loss was established, approximate date loss occurred* June 2017


In the timeframe of June, 2017 Ms. Renee Flowers spoke with Attorney George E. Marzloff and they reached a verbal

agreement in which Ms. Flowers hired Attorney Marzloff and paid him $500. A Retainer Agreement was not written

which in part has resulted in a disagreement between the parties regarding client understanding of the work agreement,

unfulfilled client expectation of the purpose of the hiring, and disagreement between Attorney Marzloff and Ms.

Flowers regarding the work to be produced. This investigator has spoken with both Ms. Flowers and Attorney

Marzloff to hear their respective understandings of their verbal agreement.

Ms. Flowers states she paid Attorney Marzloff the $500 fee to “initiate paperwork for a work release, or file for a work

release for Mr. Jarrod Harris.” Ms. Flowers and Attorney Marzloff both agree that Ms. Flowers agreed to additional

fees if the services required action beyond the initial $500. Attorney Marzloff states an understanding of the verbal

agreement in which he was to “investigate and advise” whether Mr. Harris was eligible for work release. A significant



consideration in this petition is the factor of communication. Both Ms. Flowers and Attorney Marzloff acknowledge

issues of mis-communication that took place in the client attorney agreement. Ms. Flowers reports difficulty in being

able to speak with Attorney Marzloff. Attorney Marzloff states three somewhat contradictory communication

statements. Attorney Marzloff in accepting an agreed disposition and in responding to this petition has provided these

statements:

a) There was no fraud involved, “I have since learned that my assistant was giving me only a very few of the

messages from Ms Flowers because Ms Flowers called so often so I had no idea she was having such

a problem reaching me. I realize that I am nevertheless responsible for the communications issue;”

b) “I assumed we were just waiting for approval or rejection;”

c) “I would call if I had something to report.”

This investigator considers the agreed disposition involving attorney client communication and Attorney Marzloff’s

statements pertinent to the question of whether reimbursement is warranted because they contribute directly to the

purpose and intent of the verbal agreement.

In addition to examining the fee understandings of Ms. Flowers and Attorney Marzloff, this investigator sought to

clarify these essential questions:

1) Was the full $500 fee paid earned by Attorney Marzloff?; I do not believe so.

2) Can Attorney Marzloff provide evidence (irrefutable or other) that he did the work and satisfactorily closed

out the business transaction with his client, fulfilling the verbal agreement?; No, he was not able to verify

through normal industry practices that he fulfilled the verbal agreement.

3) Did the communications challenges not only contribute to but prevent Attorney Marzloff from fulfilling his

clients’ expectations and fulfilling the verbal agreement? I think so.

It is the opinion of this investigator that Attorney Marzloff did perform some services for Ms. Flowers as is

documented, however, the matter of those services constituting a substantial level of satisfying the verbal agreement

between the parties is questionable at best. I take Mr. Marzloff at his word in saying that he must accept some

responsibility for the performance of his law firm including any staff issues that have led to this petition.

I therefore adjust my original recommendation from $500 to $250, a) allowing Attorney Marzloff to have been

compensated for performing some level of work, b) allowing Attorney Marzloff to take responsibility for his firms’

inadequate performance, and honoring the CPF rules of reimbursing ½ fees paid when some level of work has been

performed, and c) not leaving it to the client to be responsible for what the attorney says his client should (or should



not) have known from some other source.


Date of Report: 9/4/19

1



Telephone (804) 775-0500

Fax (804) 775-0501 TDD (804) 775-0502

CLIENTS' PROTECTION FUND BOARD

INVESTIGATING BOARD MEMBER'S REPORT

X Initial Report Supplemental Report


Petition # 19-555-003213

Petitioner Beverly Harris

CPF Attorney George Ernest Marzloff

CPF Attorney’s Status 3 year suspension (w/agreed disposition)

Amount Requested $1000 Amount Recommended* $0


Was sufficient documentation of loss provided? YES X No (explain, if necessary)



As is the pattern in previous Marzloff petitions, there is no Retainer Agreement verifying the work to be performed. Ms.

Harris and Attorney Marzloff disagree regarding the purpose of the $1,000 fee paid. The petitioner says the fee was paid

to file a motion of reconsideration in an adverse possession/unlawful detainer case.

However, the documentation presented by Mr. Marzloff supports his claim that he was not retained to file a motion for

reconsideration, but, in fact was hired to review a deed dispute between between petitioner and her relatives. The

documents provided show that Mr. Marzloff did engage in a review of the property deed and reviewed SCOTUS

documents to determine facts of the Harris claims and case.

As an important secondary factor, it is highly unlikely that a $1000 fee paid would be adequate to compensate Mr.

Marzloff for the extensive levels of work involved in research, filing motions and representing Ms. Harris in a deed

2

dispute.

I therefore, must conclude that Mr. Marzloff is accurately presenting the purpose of the fee, the hours expended to earn

the fee, and was not retained to address deed issues. This conclusion leads to the recommendation of no reimbursement

for the petitioner.

Investigating Board Member: Theodore Smith

Date of Report: 9/4/19

!



CLIENTS' PROTECTION FUND BOARD INVESTIGATING BOARD MEMBER'S REPORT

Petition # 19-555-003220

Petitioner Barbara R. Traynham

CPF Attorney Nnika Evangeline White

Attorney’s Status Revoked, April 2016

!

Amount Requested: $3,848.00 Amount Recommended: 0 Action, if any, petitioner took to recover claimed loss: Ms. Traynham filed a claim with the bankruptcy court. The claim was denied.

Was sufficient documentation of loss provided? No documentation of loss was provided. The petitioner states that she has no such documentation “because it was years ago.”

If actual, quantifiable loss was established, approximate date loss occurred: No loss was established. Results of Investigation: The events relevant to this claim took place from the early 1990s to the early 2000s. The petitioner has no documentation, specific dates, specific memories, or other ways to establish her claim.

According to the petitioner, she used the small claims procedures to obtain a judgment for $250 against her brother’s girl friend. She recorded the judgment in the Richmond Circuit Court. Subsequently, the petitioner was offered $300-$400 to release the real estate lien against the judgment debtor’s property. She rejected that offer and hired Nnika White to represent her interests regarding the lien. She paid Ms. White a $600 retainer. Ms. White later gave the petitioner $100. According to the petitioner, the lien was released on August 18, 2008.

Conclusion: 1) The claim is not reimbursable because there is no documentation of actual, quantifiable loss. CPF Rule I. E. 2) The board can not consider the claim because it was filed more than seven years after the alleged events. CPF Rule IV. F. 7.

!

Investigating Board Member: Mary Yancey Spencer

August 2, 2019

Consent Agenda Proposal

Purpose: The Clients’ Protection Fund Board Consent Agenda is a listing of those cases on the Board’s docket for an amount of $2,500 or less at a particular meeting whose facts are relatively simple and indicate that the claim clearly fits within the criteria for reimbursable claims, as defined in the Clients’ Protection Fund rules. The Board wishes to institute the use of a consent agenda to streamline the decision-making process and reserve meeting time for discussion of complex matters that require extensive analysis, discussion and the exercise of discretion. Guidelines: A case involving a Petition seeking reimbursement from the Clients’ Protection Fund for an amount of $2,500 or less may be added to a Consent Agenda for action by the Board without discussion on the recommendation of the investigating board member with the concurrence of the Chair, provided the report is completed by the established reporting deadline and circulated to the Board no later than 21 days before the board meeting. Any item added to a Consent Agenda may be removed and presented for active discussion at the request of any member of the Board or staff at any time. If an interested party, including the Petitioner, the Lawyer, or an advocate for the Petitioner or Lawyer, is present at the meeting and the Petition is on the Consent Agenda, the Petition shall, if requested by the Petitioner, Lawyer or advocate, be removed from the Consent Agenda and placed on the regular agenda of the meeting. The Chair will offer the Consent Agenda for the Board’s unanimous approval before the presentation of the other cases on the Board’s docket. The Board will adopt the recommendation of the investigating board members of the cases on the Consent Agenda by general consent without discussion. These guidelines were adopted y the Clients’ Protection Fund Board at its meeting on _______.

* Payments are limited to: $50,000.00 per petitioner for losses that occurred before July 1, 2015 OR $75,000.00 for losses that occurred on or after July 1, 2015 Revised August 2, 2019




Initial Report Supplemental Report Add to Consent Agenda

Investigating Board Member:

Petition #

Petitioner

CPF Attorney

CPF Attorney’s Status

Amount Requested $ Amount Recommended* $



If actual, quantifiable loss was established, approximate date loss occurred* Results of Investigation and Recommendation:

Investigating Board Member: Date of Report:

Virginia State Bar

Bank of America Building 1111 E. Main Street, Suite 700

Richmond, Virginia 23219-3565 Telephone: (804) 775-0500

__________________ TDD: (804) 775-0502

MEMORANDUM

TO: Clients’ Protection Fund Board FROM: Crystal Hendrick DATE: September 12, 2019 SUBJECT: August 2019 Financial Report The balance in the fund as of August 31, 2019 is approximately $10.5 million. Total revenue collected as of August 31 is approximately $337,000. Of that amount, $309,000 is from the assessment collected from all active attorneys, approximately $27,000 is from interest on investments and approximately $1,000 is from debt set-off and individual restitution. The schedule of investments reflects the long term investments held by the fund as of August 31. Long term investments total approximately $9.9 million and the average yield is 2.03%. The CPF Summary as of June 30, 2019 is attached which shows the financial snapshot of the fund since inception. Please contact me at any time by telephone, (804) 775-0523 or e-mail [email protected] if you have questions concerning the financial data.

Cash Balance as of July 1, 2019 10,157,965.91$

Year-to-Date Revenue through August 31, 2019 336,534.10

Year-to-Date Expenses through August 31, 2019 (120.00)

Cash Balance as of August 31, 2019 10,494,380.01$

Liability for claims approved but not paid: 11,400.00

Available Cash Balance as of August 31, 2019: 10,482,980.01$

Funds Invested/Maintained as Follows:

BB&T Business Checking Account 619,380.01 Federal Home Loan Bank (Face Value $2,450,000) 2,450,000.00 Federal Home Loan Mortgage Corp. (Face Value $300,000) 300,000.00 Federal National Mortgage Association (Face Value $2,675,000) 2,675,000.00 Federal Farm Credit Bank (Face Value $4,450,000) 4,450,000.00

Total Cash and Investments 10,494,380.01$

CLIENTS' PROTECTION FUND

CASH BALANCE AS OF AUGUST 31, 2019

Page 1

VIRGINIA STATE BARCLIENTS' PROTECTION FUND

MONTHLY STATEMENT OF REVENUE & EXPENSESFOR AUGUST 2019

BALANCE AUG 2019 BALANCE8/1/2019 ACTIVITY 8/31/2019

REVENUE

INTEREST:Investment Interest 10,489.66$ 16,494.44$ 26,984.10$

REIMBURSEMENT FROM ATTORNEYS:AG's Collections 400.00 0.00 400.00 Debt Set-Off Receipts - 0.00 0.00 Individual Restitution 150.00 385.00 535.00

TRANSFERS:CPF Assessment - 308,615.00 308,615.00

Total Revenue: 11,039.66$ 325,494.44$ 336,534.10$

EXPENSES

Bank Service Charges - 0.00 0.00 Attorney General's Fees 120.00 0.00 120.00 CPF Board Expenses - Oper. Acct. Reim. - 0.00 0.00 Payments to Clients - 0.00 0.00

Total Expenses: 120.00$ -$ 120.00$

Total Revenue Over/(Under) Expenses 10,919.66$ 325,494.44$ 336,414.10$

Page 2

MATURITY ISSUE COUPON CARRYINGDATE INVESTMENT TERM DATE RATE AMOUNT

9/16/2019 Federal National Mortgage Assn 3.5 years 3/16/2016 1.375% 500,000.009/25/2019 Federal Home Loan Bank 4 years 9/25/2015 1.500% 200,000.00

10/28/2019 Federal National Mortgage Assn 3.5 years 4/28/2016 1.350% 200,000.0011/22/2019 Federal National Mortgage Assn 3 years 8/22/2016 1.200% 525,000.0012/19/2019 Federal Farm Credit Bank 7 years 12/19/2012 1.440% 300,000.002/21/2020 Federal Home Loan Mtg Corp 4 years 8/18/2016 1.320% 300,000.003/27/2020 Federal Home Loan Bank 9.5 years 9/27/2010 3.000% 100,000.007/13/2020 Federal Farm Credit Bank 4 years 7/13/2016 1.290% 700,000.009/25/2020 Federal Home Loan Bank 5 years 9/25/2015 1.740% 200,000.0010/9/2020 Federal National Mortgage Assn 8 years 10/9/2012 1.625% 175,000.00

12/30/2020 Federal National Mortgage Assn 4.5 years 6/30/2016 1.500% 325,000.001/12/2021 Federal Farm Credit Bank 4.5 years 7/12/2016 1.420% 500,000.009/30/2021 Federal Home Loan Bank 5 years 9/30/2016 1.625% 550,000.00

10/25/2021 Federal National Mortgage Assn 5 years 10/25/2016 1.550% 200,000.0011/23/2021 Federal Farm Credit Bank 5 years 11/23/2016 1.950% 350,000.002/24/2022 Federal National Mortgage Assn 6 years 8/24/2016 1.500% 750,000.004/19/2022 Federal Farm Credit Bank 6 years 4/19/2016 1.920% 200,000.009/12/2022 Federal Farm Credit Bank 5 years 9/12/2017 2.000% 200,000.00

11/25/2022 Federal Home Loan Bank 6 years 11/25/2016 2.160% 600,000.009/27/2023 Federal Home Loan Bank 4.9 years 10/31/2018 3.375% 300,000.003/13/2026 Federal Farm Credit Bank 7 years 3/13/2019 3.220% 600,000.008/28/2028 Federal Home Loan Bank 9.25 years 5/28/2019 3.170% 200,000.001/2/2029 Federal Farm Credit Bank 9.5 years 7/2/2019 2.980% 700,000.007/9/2029 Federal Home Loan Bank 10 years 7/9/2019 2.980% 300,000.00

7/16/2029 Federal Farm Credit Bank 10 years 7/17/2019 2.930% 400,000.008/27/2029 Federal Farm Credit Bank 10 years 8/27/2019 2.590% 500,000.00

Total Investments - Principal 9,875,000.00

Average Coupon Rate 2.027%

SCHEDULE OF INVESTMENTSAS OF AUGUST 31, 2019

Contributions Interest OtherFund From Bar CPF Earned on Deposits & Fund

Fiscal Year Balance-July 1 Operating Budget Assessment Investments Charges Number Amount Balance-June 301976 -1996 0 2,677,022 0 864,048 193,885 409 1,537,620 2,197,335

1997 2,197,335 200,000 0 147,174 10,873 17 102,539 2,452,8431998 2,452,843 200,000 0 160,299 36,137 41 135,122 2,714,1571999 2,714,157 0 0 149,555 18,342 46 179,382 2,702,6722000 2,702,672 0 0 147,239 -20,909 26 72,884 2,756,1192001 2,756,119 0 0 146,568 46,042 54 132,099 2,816,6302002 2,816,630 0 0 139,203 9,566 31 61,458 2,903,941*2003 2,903,547 0 0 111,218 17,379 60 244,893 2,787,2512004 2,787,251 500,000 0 142,255 32,907 72 227,074 3,235,3392005 3,235,339 250,000 0 125,848 16,191 80 280,956 3,346,4212006 3,346,421 0 0 135,464 17,244 47 161,838 3,337,2912007 3,337,291 0 0 144,532 24,641 25 99,877 3,406,5882008 3,406,588 0 672,375 168,011 20,528 18 202,899 4,064,6032009 4,064,603 0 687,525 202,134 17,688 16 177,556 4,794,3932010 4,794,393 0 703,395 153,016 27,624 218 900,560 4,777,868

**2011 4,777,868 0 721,050 152,556 17,101 165 228,140 5,440,4352012 5,440,435 100,000 742,225 192,471 55,365 52 648,902 5,881,5942013 5,881,594 0 755,850 126,798 13,542 34 325,078 6,452,7072014 6,452,707 0 770,275 101,935 -14,780 57 353,540 6,956,5972015 6,956,597 0 789,270 103,189 8,351 59 260,412 7,596,9942016 7,596,994 0 800,025 108,509 15,986 43 212,288 8,309,2262017 8,309,226 0 805,600 110,900 29,386 50 343,428 8,911,6842018 8,911,684 0 813,060 138,161 5,891 28 103,130 9,765,6662019 9,765,666 0 329,250 183,992 11,361 25 132,303 10,157,966

Grand Total 3,927,022 8,589,900 4,155,075 610,341 1,673 7,123,978

* Beginning fund balance for 2003 changed from the ending balance in 2002 due to a change in the method of accounting for investments from an historical cost basis to an amortized cost basis.** Petitions Paid is net 3 checks totalling $3,503.56 written in FY 2010 and voided in FY 2011.

Virginia State BarClients' Protection Fund

Financial Summary

Petitions Paid:

C:\Users\byrd\AppData\Local\Microsoft\Windows\INetCache\Content.Outlook\4BW6PQ1O\Executive Summary 2019 Proposed Revision_FINAL (004).docx Revised 8/9/2019 by Jane Fletcher Further revised 8/13/2019 by Cameron Rountree

EXECUTIVE SUMMARY FOR PROPOSED CLIENTS’ PROTECTION FUND RULE REVISIONS

September 2019

Noteworthy proposed rule revisions: 1. Allow petitions for alleged losses caused by attorneys who transfer to the Disabled

and Retired class of membership.

• Preamble, Section 4.B.1* • Rule II.E.1(a)

2. Clarify petitioner’s duty to seek reimbursement from other sources besides the

Clients’ Protection Fund .

• Rule I. • Rule II.E.1(f)

3. Move provisions in the Rules pertaining to the appropriate measure/quantum of

an award from the “Definition” sub-heading to the “Processing Petitions” subheading. • Rule V.F.2. & 3.

4. Add requirement that alleged loss have a nexus to Virginia.

• Rule II.E.3.

5. Add new procedure if CPF Board’s investigation reveals a loss greater than amount requested by Petitioner (new since May 2019 meeting)

• Rule V.F.4.

6. Clarify procedure for requests for reconsideration (new since May 2019 meeting).

• Rule VI.

* All citations are to the new “clean” version of the Rules


COMMENTARY FOR PROPOSED

CLIENTS’ PROTECTION FUND RULE REVISIONS

September 2019

1. These changes are proposed pursuant to the addition of subparagraph K. to Pt. 6 § IV. Para. 13-23 of the Rules of the Supreme Court of Virginia effective January 1, 2019. This subparagraph allows “Bar Counsel to terminate and close an Impairment Proceeding if the Respondent transfers to the Disabled and Retired class of membership . . . and files a declaration . . . that the Respondent will not seek transfer from the Disabled and Retired class of membership.” Just as lawyers whose licenses are suspended or revoked for disciplinary reasons often leave petitioners without a financial remedy, lawyers who transfer to the new status as the result of a disciplinary impairment proceeding would likely not have resources from which petitioners could receive reimbursement of a loss caused by dishonest conduct. Thus, it is recommended the Fund’s rules be broadened to include eligible claims resulting from the actions of Disabled and Retired lawyers.

2. These changes are meant to reiterate that the Fund is a remedy of last resort as stated in the “Jurisdiction” subheading, the language of which was moved from former Paragraph 4—“Eligible Claims.” Additionally, Rule II.E.1.(f) shifts the burden for exhausting efforts to obtain knowledge of the whereabouts of the Lawyer from the Bar to the Petitioner. The latter change is recommended because the Bar’s knowledge of the Lawyer’s whereabouts is inconsequential to the Petitioner’s knowledge of the Lawyer’s whereabouts and whether the Petitioner has sought compensation from the responsible party.

3. This change is proposed simply to classify the Rules more appropriately by function; the text was not changed. The means by which a Petitioner can be awarded an amount for full compensation or fifty percent compensation is the procedure regarding the processing of petitions and not simply a definition as currently classified.

4. This change is proposed to minimize claims on the fund when a Virginia licensed attorney, practicing in another state, engages in dishonest conduct which leads to a loss not impacting Virginia residents. In such situations, confusion can arise between the Fund and other state’s clients’ protection funds as to which, if any, will compensate the Petitioner. This rule is meant to impose some nexus (the amount of which is left to the discretion of the board) between the loss suffered and the Commonwealth.

5. This change is meant to afford a Lawyer an opportunity to respond to a petition in the event the investigation reveals a Petitioner may be entitled to more than what he/she sought in the original petition. Given that dishonest conduct is a requirement for an


eligible claim, many, if not most, Lawyers who face a Fund petition will also confront disciplinary or even criminal consequences that can be more disconcerting than the pecuniary risk of a Petitioner’s demand. For that reason, some Lawyers may decide to ignore the Petition and instead compensate the Fund if/when they decide to return to practice. In some cases, however, a material increase in the amount sought might lead a Lawyer to vigorously defend against the petition and potential Fund obligation. Due process dictates in such cases the Lawyer be advised of the increased jeopardy and be afforded an opportunity to respond. This rule change would not deprive the Petitioner the option to persist with the amount sought in the original petition, but rather only ensure the Lawyer is given an opportunity to respond to any increase in petition demand.

6. This change is meant to clarify when requests for reconsideration are deemed exhausted. As currently written, a Lawyer could seek reconsideration of a full award to a Petitioner, and if, as a result, the award were reduced to fifty percent, the Lawyer could still seek reconsideration yet again in hopes that the second reconsideration would lead to a denial of the Petition. On the other hand, a Petitioner could seek reconsideration of a denial decision, and then seek reconsideration again if only a partial award were made. Along the way, both parties could seek reconsideration of the other’s award, partial award or denial. This proposed change limits and makes explicit the circumstances giving rise to a right to reconsideration for both the Petitioner and the Lawyer.

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RULES OF THE CLIENTS’ PROTECTION FUND OF THE VIRGINIA STATE BAR

These rules are composed of a Preamble consisting of 10 sections regarding the Purpose, Funding, Authority and Administration of the Clients’ Protection Fund, and 12 Rules of

Procedure.

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PREAMBLE

Section 1 PURPOSE AND FUNDING

A. The purpose of the Clients’ Protection Fund (the “Fund”) is to promote public confidence in the administration of justice and the honor and integrity of the legal profession by, as set forth at Part Six, Section IV, Paragraph 16 of the Rules of the Supreme Court, reimbursing all or part of losses sustained by clients or those to whom a fiduciary duty is owed as a result of a Virginia State Bar member’s dishonest conduct.

B. The Council of the Virginia State Bar (“Council”) shall appoint a Clients’ Protection Fund Board (the “Board”) to receive, hold, manage, invest and distribute the monies transferred to the Fund in accordance with the procedures established by Council, as set forth herein.

C. Pursuant to Va. Code § 54.1-3913.1, the Clients’ Protection Fund is a special fund of the Virginia State Bar that consists of moneys transferred to it from the State Bar Fund and the Virginia State Bar’s Administration and Finance Account. Va. Code § 54.1-3913.1 authorizes the Supreme Court of Virginia to adopt rules assessing members an annual fee of up to $25 to fund the Clients’ Protection Fund. The Council shall transfer to the Fund all amounts specially assessed upon Virginia State Bar members for the Fund and shall make appropriations adequate to maintain the funding of the Fund at a reasonable level.

D. Council shall review the financial condition of the Fund annually as part of the Virginia State Bar’s budgetary process at which time Council may approve disbursements to the Fund.

E. Investment of monies of the Clients' Protection Fund shall be restricted to the following:

1. Interest-bearing deposits, in federally insured banks and savings institutions (including certificates of deposit as authorized by Va. Code §§ 2.2-4407, 4509 and 4518);

2. Direct obligations of the Commonwealth of Virginia and the United States Government, and securities of entities created by Congress and authorized to issue such securities; provided that no such obligation or security shall have a maturity beyond ten years from the date of the investment; and provided further that the interest, discount or other gain or income realized from any such investment, net of any bank or brokerage charges incurred in connection therewith, shall automatically become a part of the Fund; and

3. Corporate notes as authorized by Va. Code § 2.2-4510.

F. The interest and any other income received from any other sources by the Fund is to be added to and automatically become a part of the Clients’ Protection Fund.

G. The Council at any time may abolish the Clients’ Protection Fund and the Board. In the event of such abolition, all assets of the Clients’ Protection Fund shall be and remain the

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property of the Virginia State Bar to be used for its general purposes, as determined by the Council.

Section 2 THE CLIENTS’ PROTECTION FUND BOARD

The Board shall consist of fourteen (14) members, one of whom shall be a non-lawyer, appointed by the Council. One member shall be from each of the ten (10) Disciplinary Districts in Virginia, and four (4) shall be appointed from the Commonwealth at large. All appointments shall be for a term of three (3) years. No appointee shall serve more than two (2) consecutive full terms. No appointee shall be reappointed until after the expiration of at least one (1) year following the end of the second full term. Vacancies shall be filled by appointment by the president of the Virginia State Bar for the unexpired term.

Section 3 POWERS OF BOARD

The Board may use or employ the Clients’ Protection Fund for any of the following purposes within the scope of the Board’s objectives:

1. To make payments or reimbursements on approved petitions as herein provided to clients or other persons or entities to whom a fiduciary duty is owed;

2. To purchase insurance to cover such losses in whole or in part, provided that such insurance is obtainable at reasonable cost and is deemed appropriate and provided that the purchase of such insurance is approved by the Council;

3. To pay the Board’s operating expenses in accordance with Council policies; and 4. To reimburse to the Virginia State Bar, in whole or in part, only those costs of

receiverships initiated by the Virginia State Bar that were occasioned by the need for the receiver to administer, pursue or defend assets, the recovery or preservation of which would inure to the benefit of one or more clients or other members of the public who have suffered losses as a result of the dishonest conduct of the Virginia State Bar member who is the subject of the receivership, acting as either a lawyer or as a fiduciary in the matter or matters in which the loss or losses occurred.

Section 4 ELIGIBLE CLAIMS

A. The Board is authorized to consider petitions for reimbursement of actual, quantifiable losses caused by the dishonest conduct of a member of the Virginia State Bar, acting either as a lawyer or as a fiduciary in the matter in which the loss arose, except to the extent to which they are bonded or such losses are otherwise covered. The Fund is intended to be a remedy of last resort for persons who cannot obtain reimbursement from other sources. The Fund does not cover malpractice or the inadequate, insufficient or negligent rendition of services by the lawyer or collateral losses suffered as a result of the lawyer’s malpractice or the inadequate, insufficient or negligent rendition of services.

B. Eligible claims arise from cases in which a member:

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1. has been disbarred or suspended from the practice of law, or transferred to the Disabled and Retired class of membership, pursuant to any provision of Paragraph 13 of Part 6, Section IV of the Rules of the Supreme Court of Virginia; or

2. has voluntarily resigned from the practice of law in Virginia; or

3. has died; or

4. has been adjudicated incompetent; or

5. has been the subject of a bankruptcy case that would stay, reduce or discharge the claims of the member’s past or present clients; or

6. whose whereabouts are unknown to the Petitioner after reasonable efforts to locate the member.

C. The Board shall have complete discretion to approve or deny petitions including the order, extent and manner of payment.

D. In establishing, maintaining and administering the Fund, the Virginia State Bar does not create or acknowledge any legal responsibility for the acts of individual lawyers.

E. All reimbursements of losses from the Fund shall be in the sole discretion of the Board and not as a matter of right. No client or member of the public shall have any right in the Fund as a third party beneficiary or otherwise.

F. No attorney shall be compensated for presenting a petition except as authorized by the Board.

Section 5 DUTIES AND RESPONSIBILITIES OF BOARD

The Board shall have the following duties and responsibilities:

1. To investigate and review all claims submitted to the Board in accordance with its Rules of Procedure;

2. To approve or deny the claim, and if approved, determine the amount which should be paid on the claim;

3. To make recommendations to Council regarding policies and procedures involving the Fund as it deems necessary and appropriate;

4. To provide a full report at least annually to Council and to provide all necessary reports;

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5. To publicize, as permitted by law, its activities to the public and the members of the Virginia State Bar; and

6. To manage the monies in the Fund.

Section 6 BOARD MEETINGS

The Board shall meet at least one time during each fiscal year and as frequently as necessary to conduct the business of the Fund and to timely process claims upon call of the Chair or two or more members of the Board. Written minutes of each meeting shall be prepared and maintained as required by law and Library of Virginia guidance.

Section 7 NOTICE OF MEETINGS

Board members shall be given not less than fifteen (15) days' written notice of the time and place of a regular meeting and not less than five (5) days' written notice of each special meeting. Notice of any meeting may be waived by a Board member either before or after the meeting.

Section 8 QUORUM

Six or more members of the Board shall constitute a quorum for the transaction of business.

Section 9 OFFICERS AND TERMS

The chair and vice chair of the Board shall be elected by a majority of the Board at the last meeting of the fiscal year. Their terms shall extend until the last meeting of the next fiscal year and until their successors are elected. Should a vacancy occur in the office of chair or vice chair, such vacancy shall be filled by majority vote of the members of the Board at the meeting next following the occurrence of the vacancy.

Section 10 CONFLICT OF INTEREST

A Board member who has or has had an attorney-client relationship or fiduciary relationship with a Petitioner or Lawyer who is the subject of a claim shall not participate in the investigation or adjudication of a claim involving that Petitioner or Lawyer. A Board member with any other past or present relationship with a Petitioner or the Lawyer whose alleged conduct is the subject of the claim shall disclose such relationship to the Board and, if the Board deems appropriate, that Board member shall not participate in any investigation or adjudication of the claim.

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RULES OF PROCEDURE OF THE CLIENTS' PROTECTION FUND

I. JURISDICTION

The Board is authorized to consider petitions for reimbursement of actual, quantifiable losses caused by the dishonest conduct of a member of the Virginia State Bar, acting either as a lawyer or as a fiduciary in the matter in which the loss arose, except to the extent to which they are bonded or such losses are otherwise covered. The Fund is intended to be a remedy of last resort for persons who cannot obtain reimbursement from other sources, including from the Lawyer after the exercise of reasonable efforts proportional to the value of the case. The Fund does not cover malpractice or the inadequate, insufficient, ineffective, or negligent rendition of services by the lawyer or collateral losses suffered as a result of the lawyer’s malpractice or the inadequate, insufficient or negligent rendition of services.

II. DEFINITIONS

For the purpose of these Rules of Procedure, the following definitions shall apply:

A. The “Board” shall mean the Clients' Protection Fund Board.

B. The “Fund” shall mean the Clients' Protection Fund of the Virginia State Bar.

C. A “Lawyer,” “Attorney” or “Respondent” shall mean one who, at the time of the act complained of, was a member of the Virginia State Bar, as defined in the Rules of the Supreme Court of Virginia, Part 6, Section IV, Paragraph 2, and was actually engaged in the practice of law in Virginia. The fact that the act complained of took place outside of the Commonwealth of Virginia does not necessarily mean that the Lawyer was not engaged in the practice of law in Virginia.

D. A “Petitioner” or “Claimant” shall mean a person or entity that applies to the Board for payment pursuant to the rules applicable to the Fund.

E. “Reimbursable Losses” are limited to actual, quantifiable losses, supported by documentation, of money or other property that meet the following test, and not otherwise excluded in these Rules.

1. There is a lack of recourse to the Lawyer because the Lawyer: a) has been disbarred or suspended from the practice of law, or transferred to

the Disabled and Retired class of membership, pursuant to any provision of Paragraph 13 of Part 6, Section IV of the Rules of the Supreme Court of Virginia; or

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b) has voluntarily resigned from the practice of law in Virginia; or c) has died; or d) has been adjudicated incompetent; or e) has been the subject of a bankruptcy case that would stay, reduce or

discharge the claims of the member’s past or present clients; or f) whose whereabouts are unknown to the Petitioner after reasonable efforts

to locate the Lawyer; and

2. The loss was caused by the dishonest conduct of the Lawyer and arose out of, and by reason of, a lawyer-client or fiduciary relationship; and

3. The loss had a nexus to the Commonwealth of Virginia.

F. The following shall be excluded from “Reimbursable Losses”:

1. Losses of spouses, parents, children, grandparents, siblings or other close relatives, partners, associates, employers and employees of the Lawyer causing the losses;

2. Losses by any business entity controlled by the Lawyer;

3. Losses of any governmental entity or agency;

4. Losses occasioned by a loan or an investment transaction with the Lawyer, unless it arose out of and in the course of the attorney-client or fiduciary relationship and, which, but for the fact that the Lawyer enjoyed an attorney-client or fiduciary relationship with the Petitioner, could not have occurred. In considering whether that standard has been met, the following factors will be considered:

a. Any disparity in bargaining power between the Lawyer and the client, including differences in their respective educational backgrounds and business sophistication;

b. The extent to which the attorney-client or fiduciary relationship overcame the will or wishes of the Petitioner;

c. The extent to which the Lawyer, by virtue of the attorney-client or fiduciary relationship with the Petitioner, became privy to information as to the Petitioner's financial affairs; and

d. Whether a principal part of the service arose out of a relationship requiring a license to practice law.

5. Losses or collateral losses arising from the Lawyer’s malpractice or the inadequate, insufficient or negligent rendition of services;

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6. Claims by a Petitioner for damages for a cause of action in which a Lawyer represented the Petitioner and that never resulted in a settlement or judgment;

7. Claims for interest, late fees, penalties or surcharges or any type of consequential or incidental losses or damages, whether or not such losses or damages arise out of Reimbursable Losses; and

8. Because the Fund is intended to be a remedy of last resort, and the Petitioner must first pursue other sources of recovery, the following shall be excluded from Reimbursable Losses:

a. Losses covered by any bond, surety agreement or insurance contract to the extent covered thereby, including any loss to which any bonding agent, surety or insurer is subrogated to the extent of that subrogated interest. The Fund is intended to be a remedy of last resort;

b. Losses that may be covered from any source, such as through litigation, mediation or enforcement of a judgment by the Petitioner; and

c. Losses of any financial institution which are recoverable under a "banker's blanket bond" or similar commonly available insurance or surety contract.

G. “Dishonest Conduct” may include, but is not necessarily limited to:

1. Any act committed by a Lawyer in the nature of theft, conversion, embezzlement or withholding of money or property from its rightful owner, recipient or person entitled to receive such money or property.

2. Any act committed by a Lawyer in the nature of failure, refusal or inability to refund unearned fees received in advance where the Lawyer performed no legal services or such an insignificant service that the failure, refusal or inability to refund the unearned fees constitutes a wrongful taking or conversion.

3. Any act where the Board finds that the legal services performed by the Lawyer are more than insignificant, but the Lawyer has not fully earned the entire fee, the failure, refusal or inability to refund the unearned fees may still constitute a wrongful taking or conversion.

III. BOARD’S DISCRETION AND FACTORS TO CONSIDER IN EVALUATING PETITION

The Board shall exercise its discretion in deciding whether a Lawyer committed Dishonest Conduct. In making its determination, the Board may consider such evidence as it deems appropriate, including, but not limited to, the following:

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A. An order from any court or disciplinary tribunal disciplining a Lawyer for the same act or conduct alleged in a petition or otherwise finding that a Lawyer committed Dishonest Conduct; or

B. A final judgment imposing civil or criminal liability upon a Lawyer for such conduct.

IV. PETITION FOR REIMBURSEMENT

A. The Virginia State Bar staff shall prepare a form of petition for reimbursement. In its discretion the Board may waive a requirement that a petition be filed on such form.

B. The petition shall contain the following statement:

“IN ESTABLISHING THE CLIENTS' PROTECTION FUND, THE VIRGINIA STATE BAR DID NOT CREATE OR ACKNOWLEDGE ANY LEGAL RESPONSIBILITY FOR THE ACTS OF INDIVIDUAL LAWYERS. THE PAYMENT OF REIMBURSABLE LOSSES FROM THE CLIENTS' PROTECTION FUND SHALL BE IN THE SOLE DISCRETION OF THE CLIENTS’ PROTECTION FUND BOARD AND NOT AS A MATTER OF RIGHT. THE CLIENTS’ PROTECTION FUND IS INTENDED TO BE A REMEDY OF LAST RESORT, AND PETITIONERS MUST PURSUE OTHER RECOVERY OPTIONS BEFORE FILING A CLAIM. NO PERSON OR ENTITY SHALL HAVE ANY RIGHT IN THE CLIENTS' PROTECTION FUND AS A THIRD PARTY BENEFICIARY OR OTHERWISE.”

C. At a minimum the Board will require the following information from the Petitioner:

1. Petitioner’s name, address and telephone number;

2. The name and last known address of the Lawyer allegedly responsible for the claimed loss;

3. The amount of the loss claimed and documentation supporting the loss, including a copy of any written fee or retainer agreement pertaining to the claim and proof of payment for monies the Petitioner or anyone on his or her behalf paid directly to the Lawyer;

4. The date or period of time over which the alleged loss occurred;

5. The date the Petitioner discovered the loss and how the Petitioner discovered the loss;

6. A description of the Lawyer’s dishonest conduct and the names and addresses of any witnesses who have knowledge of the loss;

7. The name of the person or entity, if any, to whom or which the loss has been

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reported (e.g. Commonwealth’s Attorney, police, Virginia State Bar, disciplinary agency, or other person or entity);

8. Any other source of reimbursement, including but not limited to, any insurance, fidelity or surety agreement or bond;

9. A description of the efforts by the Petitioner to recover the alleged loss from the Lawyer or from other sources of reimbursement besides the Virginia State Bar;

10. The circumstances under which the Petitioner has been, or will be, reimbursed for any part of the claim (including the amount received, or to be received, and the source), along with a statement that the Petitioner agrees to notify the Fund of any reimbursements the Petitioner received during the pendency of the claim;

11. The existence of facts known to the Petitioner relevant to the claim;

12. The name, address, e-mail address and phone number of the lawyer assisting the Petitioner with the claim, if any;

13. The Petitioner’s agreement to cooperate with the Virginia State Bar regarding the claim or with any civil actions which may be brought in the name of the Virginia State Bar and/or the Petitioner, pursuant to a subrogation and assignment clause;

14. The Petitioner’s agreement to repay the Fund if the Petitioner is subsequently reimbursed from another source, but only to the extent the Petitioner’s recovery from the other source would exceed the amount of the claim;

15. The name and address of any other fund to which the Petitioner has applied or intends to apply for reimbursement, together with a copy of the application;

16. A statement that the Petitioner agrees to the publication of appropriate information about the nature of the claim and the amount of reimbursement, if reimbursement is approved; and

17. The notarized signature of the Petitioner.

D. All information and statements by the Petitioner shall be under oath.

E. Petitions shall be submitted to the Virginia State Bar. If the staff of the Virginia State Bar determines that the petition complies with the minimum requirements of these Rules, the petition shall be investigated and approved or denied by the Board.

V. PROCESSING PETITIONS

A. Virginia State Bar staff shall promptly send each petition to a Board member for

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investigation and report. A copy shall be sent to the Lawyer at his or her address of record maintained by the Virginia State Bar. The Lawyer or his or her representative may respond to the petition within thirty (30) days of the date of the letter transmitting the petition to him or her.

B. Petitions shall be assigned based on the workload of each Board member, and, when possible, by giving preference for assignment to a Board member who works or lives in the jurisdiction in which the Lawyer maintained his office, place of employment or address of record with the Virginia State Bar.

C. A member to whom a petition is referred for investigation shall conduct such investigation as to him or her seems necessary and desirable in order (1) to determine whether the petition is for a Reimbursable Loss, and (2) to guide the Board in determining the extent, if any, to which the loss should be reimbursed from the Fund.

D. The Board member who investigates a petition shall prepare a written report and recommendation as to whether the petition should be approved or denied. Such report shall be available for inspection by the Board members attending the meeting at which the petition is reviewed.

E. Petitions shall be processed based on the investigating Board member’s written report and recommendation. Upon request of a Board member, the Board shall hear the Petitioner, the Lawyer or such other evidence as may be presented. The Lawyer or his or her personal representative, or the Petitioner or his or her personal representative, may request to address the Board at a meeting at which the Board is considering the claim. Any such request must be made to the Chair or his or her designee, and the Chair may restrict or limit the length or subject matter of any statements permitted.

F. The Board shall, in its sole discretion and by a majority vote, determine whether a claim is approved or denied, and if approved, the amount of loss, if any, for which any Petitioner shall be reimbursed from the Fund. Although only a majority vote is required to approve or deny a petition, the Board should aspire to come to a consensus on every petition. In making such determination, the Board shall consider inter alia, the following:

1. Any conduct of the Petitioner which contributed to the loss.

2. Where the Board finds that the Lawyer performed no legal services or such an insignificant service that the failure, refusal or inability to refund the unearned fees constitutes a wrongful taking or conversion, the Board may reimburse 100% of the total fees paid by the Petitioner.

3. Where the Board finds that the Lawyer performed more than insignificant legal services, but the Lawyer has not fully earned the entire fee, the failure, refusal or inability to refund the unearned fees constitutes a wrongful taking or conversion, and the Board may reimburse 50% percent of the total fees paid by the Petitioner.

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4. In the event the investigator or Board discovers that Petitioner’s loss exceeds the amount sought in the petition, the investigator or board shall notify Petitioner, and Petitioner may amend his or her petition, or proceed with petition limited to original amount claimed.

If the Petitioner submits an amended Petition the Lawyer may respond to the amended petition within thirty (30) days of the date of the letter transmitting the amended petition to him or her.

4. 5. The loss to be paid to any one Petitioner shall not exceed $75,000 for losses incurred on or after July 1, 2015, or $50,000 for losses incurred on or after July 1, 2000, and prior to July 1, 2015, or $25,000 for losses incurred prior to July 1, 2000. For purposes of this provision, the Board may regard two or more persons, firms or entities as one Petitioner with respect to a Lawyer’s dishonest conduct in handling a given matter where the facts and entities are found to justify such a conclusion in the sole discretion of the Board.

5. 6. The total amount of losses reimbursable hereunder on account of the misconduct of any one lawyer or association of lawyers (including, without limitation, a law firm, professional corporation, or an office-sharing arrangement among lawyers) shall be limited to fifteen percent (15%) of the net worth of the Fund at the time the first claim is made. In the event of multiple claims on account of the misconduct of any one lawyer or association of lawyers, claims may be considered in any order or grouping which the Board, in its discretion, finds appropriate, taking into account the equities and timeliness of each claim, and no further payment shall be made in respect to misconduct of any one lawyer or association of lawyers once the fifteen percent (15%) limit has been reached.

6. 7. The total amount of Reimbursable Losses in previous years for which payment has not been made and the total assets of the Fund.

7. 8. The Board may, in its sole discretion, allow further payment in any year on account of a Reimbursable Loss allowed by it in prior years which has not been fully paid; provided such further payment would not be inconsistent or in conflict with any previous determination with respect to such loss.

8. 9. No payment shall be made upon any petition, a summary of which has not been submitted to the Board members in accordance with these Rules of Procedure. No payment shall be made to any Petitioner unless said payment is duly approved by the Board as set forth above.

9. 10. No claim shall be considered by the Board unless the same shall have been filed within seven (7) years from the time the Petitioner knew or should have known of the Lawyer’s Dishonest Conduct, or within one (1) year after the first occurrence of one of the following events, whichever date is later:

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a. the Lawyer has been disbarred or suspended from the practice of law, or transferred to the Disabled and Retired class of membership, pursuant to any provision of Part 6, Section IV, Paragraph 13 of the Rules of the Supreme Court of Virginia; or

b. the Lawyer has voluntarily resigned from the practice of law in Virginia; or

c. the Lawyer has been adjudicated incompetent; or

d. the Lawyer has been the subject of a bankruptcy that would stay, reduce or discharge the claims.

G. The Board may make a finding of Dishonest Conduct for purposes of adjudicating a claim. Such a determination is not a finding of Dishonest Conduct for purposes of professional discipline.

VI. REQUEST FOR RECONSIDERATION

The Petitioner or Lawyer may request reconsideration in writing within thirty (30) days of the decision. If the Petitioner or Lawyer fails to make a request or the request is denied, the decision of the Board is final. There shall be no appeal from a decision of the Board.

The Petitioner may request only one reconsideration of a denial decision or the amount of an approved reimbursement. The Lawyer may request only one reconsideration of an approval decision, if the Lawyer has not previously requested a reconsideration in the matter. Any request for reconsideration must be in writing and received by the Virginia State Bar within thirty (30) days of the Board’s decision.

When the Petitioner and the Lawyer have been accorded the reconsideration(s) under this rule, or if the Petitioner and Lawyer fail to request a reconsideration under this rule, the Board’s decision is final, and the Board will not consider any additional requests for reconsideration or appeals.

VII. RESTITUTION TO FUND

A Lawyer whose Dishonest Conduct has resulted in reimbursement to a Petitioner shall make restitution to the Fund including interest and the expense incurred by the Fund in processing the claim.

VIII. ASSIGNMENT AND SUBROGATION

Payment shall be made from the Fund only upon condition that the Petitioner execute an assignment of Petitioner’s assignable rights against the Lawyer or his/her successors in interest

14 Revised 7/12/19

including, but not limited to the Lawyer’s personal representative, heirs, devisees and assigns, on such terms as the Board may deem proper under the circumstances, including reimbursement of costs incurred in prosecuting a claim against the Lawyer or his or her successors in interest. The Virginia State Bar may bring an action pursuant to the assignment on behalf of the Fund and/or the Petitioner. The net proceeds collected by reason of such assignment shall be for the sole benefit of the Fund and deposited therein, and enforcement of this right shall be within the sole discretion of the Board. Prior to the commencement of an action by the Board, it shall advise the Petitioner thereof at his or her last known address. The Petitioner may then join in such action to press a claim for his or her loss in excess of the amount of the payment made by the Fund or for any other claims. The Board may impose such other conditions and requirements as it may deem appropriate in connection with payment to any Petitioner.

IX. PAYMENT OF RECEIVERSHIP COSTS

Costs of any Virginia State Bar receivership occasioned by the need for the receiver to administer, pursue or defend assets, the recovery or preservation of which would inure to the benefit of one or more clients or other members of the public who have suffered losses as a result of the dishonest conduct of the Virginia State Bar member who is the subject of the receivership, acting as either a lawyer or as a fiduciary in the matter or matters in which the loss or losses occurred, shall be documented and certified to the Board by the Virginia State Bar staff for consideration of payment from the Fund by the Board as an agenda item at a meeting of the Board. The Board may approve payment with a majority vote.

X. CONFIDENTIALITY

The dissemination of information shall comply with Virginia law.

XI. GENERAL PURPOSES

These Rules of Procedure shall be liberally interpreted and, in any given case, the Board may waive technical adherence to these Rules of Procedure in order to achieve the objectives of the Fund.

XII. AMENDMENTS

These Rules may be changed at any time by a majority vote of the Board at a duly held meeting at which a quorum is present, and subject to the approval of the Council of the Virginia State Bar.

Rev. 2/27/09 Rev. 3/3/2006 Rev. 2/23/2013 Rev. 10/24/2014

15 Revised 7/12/19

Rev. 2/25/2017 - Approved by Council February 25, 2017 (replaces 1976 “Resolution of the Council of the Virginia State Bar Establishing a Clients’ Protection Fund” and “Rules of Procedure of the Clients’ Protection Fund”) Proposed Revisions: -/-/2019

1

VIRGINIA FREEDOM OF INFORMATION ACT & VIRGINIA PUBLIC RECORDS ACT

I. INTRODUCTION

The VSB and its boards, committees, conferences, employees, and volunteers are subject to both the:

• Virginia Freedom of Information Act (VFOIA), Va. Code § 2.2-3700, et seq., and

• Virginia Public Records Act (PRA), Va. Code §§ 42.1-76-42.1-91.

VFOIA ensures Virginians access to both: a. public records in the custody of a public body, its officers, and

employees, and b. meetings of public bodies, wherein public business is conducted.

PRA governs how long a government entity must retain certain records.

II. RECORDS Records are broadly defined under both VFOIA and the PRA to include all

recorded information, whatever the form, prepared for or used in the transaction of public business.

a) VFOIA - all writings and recordings prepared or owned by, or in the possession of, a public body or its officers, employees, or agents in the transaction of public business. Va. Code § 2.2-3701. 1. Examples include but are not limited to:

• e-mails, • text messages, • handwritten notes, • typewritten documents, • electronic files, • audio, or video recordings, • CDs, • emails, • photographs, or • any other written or recorded media; and

http://law.lis.virginia.gov/vacode/title2.2/chapter37/section2.2-3701/

http://law.lis.virginia.gov/vacode/title2.2/chapter37/section2.2-3701/

2

• Minutes of meetings of public bodies.

Records include all drafts and final versions.

b) PRA - recorded information, regardless of physical form, that documents a transaction or activity by or with any public officer, agency, or employee of an agency. The recorded information is a public record if it is produced, collected, received, or retained in pursuance of law or in connection with the transaction of public business.

The medium upon which such information is recorded has no bearing on the determination of whether the recording is a public record.

c) VFOIA Exemptions - under VFOIA, all public records are open to the

public, unless a specific exemption in law allows the record to be withheld. 1. Statutory exemptions include:

• personnel exemptions, • the attorney-client privilege, • attorney-client work product, and • personal contact information, all as defined and limited at Va. Code

§ 2.2-3705.1. 2. Rules of Court exemptions include: Part Six, Section IV, Paragraph

10-2.E. ADVISORY OPINIONS OR RULES. Confidentiality. Provides that the records of the Ethics Committee, including Committee deliberations, memoranda, correspondence, and work product shall be confidential and privileged and will not be provided to anyone absent a court order.

3. Rules of Court exemptions include: Part Six, Section IV, Paragraph 10-5.C. ADVISORY OPINIONS OR RULES. Confidentiality. Provides that communications between Ethics Counsel and members requesting advice are confidential.

4. Rules of Court exemptions include: Part Six, Section IV, Paragraph 13-30.A. CONFIDENTIALITY OF DISCIPLINARY RECORDS AND PROCEEDINGS. Confidential Matters. • Bar complaints, unless introduced at a public hearing or

incorporated in a Charge of Misconduct, when the matter is placed on the public docket, or a Certification.

3

• Bar investigations, except Reports of Investigation admitted as exhibits at a public hearing.

• Impairment proceedings. • Notes, memoranda, work product, research of Bar Counsel. • Records protected by RPC 1.6. • Subcommittee records and proceedings, except determinations

imposing public discipline. • Deliberations and working papers of the District Committees,

Disciplinary Board, and three-judge Circuit Courts. 5. Rules of Court, Part Six, Section IV, Paragraph 13-30. K. Records of

the Disciplinary System. In no case shall confidential records of the attorney disciplinary system be subject to subpoena.

d) Requests for Information/Records - if you receive any request for information or records in connection with your work with the VSB, please contact the CPF Administrator. The VSB must timely, within five business days, respond to any request for production, including citing any appropriate exemption and/or producing the non-exempt records.

e) Retention of Records – the following rules govern your retention of Bar-

related records: 1. Any records you receive from the VSB are duplicates unless you have

taken substantive notes and have documents that should be included as part of the work product of the file.

2. If you send an e-mail that relates to the transaction of section business, please either copy or forward to your liaison. Once sent to your liaison, you do not have to preserve it.

3. If you create a record outside of what is provided to you by the VSB, please scan or copy it and send it to your liaison.

4. Once the VSB liaison is in possession of any records you have created or obtained outside of what the VSB provided to you, you may destroy your case file.

5. Try not to commingle personal and official e-mails. Private e-mails do not need to be retained; emails relating to the transaction of public business do. When sending e-mails or otherwise acting on behalf of the VSB, please be mindful of the fact that you are creating a public record.

6. If you have any questions, please do not hesitate to call your liaison.

4

III. MEETINGS

A meeting is defined as three or more members of the public body, or a quorum if the public body is less than three members, where public business is transacted or discussed, whether or not minutes or votes or taken. To avoid an accidental electronic meeting, please do not e-mail more than one other member about VSB business, and please do not hit reply all if other members of the committee are copied on the e-mail. Please use the “bcc” (blind carbon copy) option when emailing a group.

a) Meetings requirements - VFOIA imposes various requirements for meetings applicable to all public bodies; these include:

1. post notice of meetings at least three working days in advance of the meeting;

2. ensure the meeting is open to the public; and 3. Take and preserve minutes.

IV. CONCLUSION

For a helpful discussion about this topic and other FOIA questions, please

see the attached publications by the Virginia FOIA Council:

A Guide to the Virginia Freedom of Information Act for Members of Boards, Councils, Commissions, and other Deliberative Public Bodies

A Guide to the Virginia Public Records Act, E-Mail: Use, Access & Retention

Access to Public Meetings under the Virginia Freedom of Information Act

Clients' Protection Fund Status of Pending Cases

September 20, 2019 Board Meeting

Page 1 of 2

Petitions Received in Current Fiscal Year

Received in Fiscal Year 2020: 17 (partial year, 7/1/2019 – 9/16/2019)

Closed: 9 Consists of:

8 rejected on jurisdictional basis; and 1 withdrawn when petitioner received payment of claim from attorney’s father

Open: 8 Consists of: 3 On September 2019 Meeting Docket 1 On January 2020 Meeting Docket 4 To be assigned for investigation, reporting at January 2020 meeting

0 On hold for related discipline case

Petitions Received in Prior Fiscal Years Received in Fiscal Year 2019: 44 Closed: 32

Open: 12 Consists of: 5 Reconsideration requests on September 2019 Docket 5 New cases on September 2019 Docket 1 On January 2020 Meeting Docket 1 On hold for related discipline matter1 Received in Fiscal Year 2018 53 (7/1/2017 – 6/30/2018)

Received in Fiscal Year 2017: 53 (7/1/2016 – 6/30/17) Received in Fiscal Year 2016: 87 (7/1/2015 – 6/30/16)

1 A claim regarding Joseph Morrissey is on hold pending the final disposition of the attorney’s revocation in the Supreme Court of Virginia

Clients' Protection Fund Status of Pending Cases

September 20, 2019 Board Meeting

Page 2 of 2

Received in Fiscal Year 2015: 84 (7/1/2014 – 6/30/2015)

Received in Fiscal Year 2014: 104 (7/1/2013 – 6/30/2014)

Receiverships Affecting Future Claims

We are not currently monitoring the any receiverships that may affect Clients’ Protection Fund claims

Bankruptcies or other matters affecting Clients’ Protection Fund business:

Brent Barbour has filed for Chapter 7 bankruptcy. The CPF Board has paid $2,700.00 to two petitioners regarding Mr. Barbour. The Office of the Attorney General is protecting the Virginia State Bar’s interest in the bankruptcy case.

Noteworthy cases on horizon

The Virginia State Bar currently does not have a large volume of claims regarding any one attorney.

2019-2020

Table of Contents

1. Mission and History

2. Fundamentals of the CPF Process

3. Petition Form

4. Investigations

● Investigating a CPF Claim

● Investigator Memorandum from Staff

● Board Member Report Form

5. Finances

● Overview

● Va. Code Section 54.1-3913.1

● Financial Summary 1976-2019

6. CPF Rules

● Purpose, Funding, Authority and Administration

● Rules of Procedure

7. FOIA, Public Records and Open Meeting

8. Policy on Participation Pursuant to Va. Code 2.2-3708.2

9. Board

● Chair’s Report 2018-2019

● Board Roster

● Calendar

● Expense Reimbursement

● Resources

● Directions to Virginia CLE and VSB Office

10. Contacts

Mission and History

For over forty years, the Virginia State Bar Clients’ Protection Fund has helped

clients who have suffered financial losses because of the dishonest conduct of lawyers licensed in Virginia. Since 1976, the Clients’ Protection Fund has reimbursed more than $7.1 million to 1,673 petitioners. The fund is authorized by the Supreme Court of Virginia and financed by the members of the Virginia State Bar. Its purpose is to promote confidence in the administration of justice and the integrity of the legal profession.

Lawyers are one of the few professions that have established mechanisms to redress harm caused by the misconduct of a few of its members. Today, every jurisdiction in the United States and Canada has a lawyers’ fund for client protection. Virginia’s was one of the first. In Virginia, where the legal profession is self-regulating, the Clients’ Protection Fund demonstrates Virginia lawyers’ commitment to the highest

ethical standards.

CPF Fundamentals Page 1 Revised August 2019 by Jane Fletcher, CPF Counsel

Fundamentals of the Clients' Protection Fund Process

HISTORY The Virginia State Bar Clients’ Protection Fund (the Fund) was established in 1976 by the Bar Council to make monetary awards to persons who have suffered financial losses because of dishonest conduct by Virginia lawyers. The fund is a remedy of last resort for persons who are not able to obtain reimbursement from other sources, such as a bond, insurance, or the lawyer involved.

Why was the fund created?

The lawyers of Virginia recognize that, despite the high standards of ethical conduct required of members of the Virginia State Bar, there are a small number of lawyers who are not worthy of the trust that others place in them. The state bar has a strong disciplinary system for the purpose of reprimanding, suspending or disbarring lawyers who violate the strict standards of Virginia’s ethics rules. Recognizing that a disciplinary system alone is not enough, the VSB maintains a Clients’ Protection Fund to protect the public from lawyers who mishandle funds.

How is it funded?

The Fund originally was established with a portion of the mandatory dues paid by all licensed lawyers in Virginia. For many years, the fund relied on as-needed transfers authorized by the Bar Council to pay claims. To ensure a more reliable income stream, effective July 1, 2007, the Supreme Court of Virginia authorized a $25 assessment for the Clients' Protection Fund in addition to active members’ regular bar dues. The assessment originally was scheduled to expire on June 30, 2015, but the legislature authorized this assessment through June 30, 2020. In 2018, the Supreme Court of Virginia reduced the required annual payment to the Clients’ Protection Fund from $25 to $10. During the 2018 legislative session, the Supreme Court’s authority to assess members an annual fee of up to $25 was extended from July 1, 2020, to July 1, 2023, by an amendment to Virginia Code Section 54.1-3913.1. The monies in the fund are invested conservatively to maintain an adequate reserve to pay all reimbursable claims.

Fundamentals of the Clients' Protection Fund Process--2019


How is the Fund administered?

Claims for reimbursement from the Fund are decided by a 14-member board appointed by the Virginia State Bar’s governing council. The Board includes thirteen lawyers and one non-lawyer. Ten members are appointed to achieve geographical balance across the Commonwealth. There are also four “At-Large” Board members. Members of the Board investigate each claim and recommend approval or denial. The decision whether to pay a claim is entirely within the discretion of the Board.

The Board is assisted administratively by bar staff members, including the Client Protection Fund Administrator and a staff lawyer who serves as Counsel to the Clients' Protection Fund. The Deputy Executive Director for Communications and Public Service is the administrative staff liaison to the Board.

SOURCE OF AUTHORITY

• Where to find governing rules regarding CPF matters:

In the Professional Guidelines on the Virginia State Bar website, on the Clients’ Protection Fund page, www.vsb.org/site/public/clients-protection-fund.

Changes in these rules can be made by the Clients' Protection Fund Board, subject to approval by the Bar Council governing body. The CPF Board last recommended comprehensive revisions of the rules in 2016, and the Bar Council approved the revisions in February 2017.1

NUTS AND BOLTS

• Threshold Requirements for CPF Petition (See Paragraph 4 of CPF Rules):

Lawyer must be • Disbarred or suspended pursuant to the Supreme Court rules

regarding the disciplining of lawyers (Pt. 6, Section 4, Paragraph 13 of Rules of Supreme Court of Virginia); or

1 As of September 2019, the Clients’ Protection Fund Board will be considering whether to recommend to Bar Council additional rule changes to reorganize the rules for clarity and to accommodate changes in the rules governing lawyer discipline.

http://www.vsb.org/site/public/clients-protection-fund

http://www.vsb.org/site/public/clients-protection-fund



• Voluntarily resigned from the practice of law in Virginia; or • Dead; or • Adjudicated incompetent; or • Subject of a bankruptcy case affecting client claims; or • Whereabouts unknown to the VSB.

AND

The loss must be

• caused by the dishonest conduct (defined term) of the lawyer and • arises out a lawyer-client relationship or fiduciary relationship

between the lawyer and the claimant.

• There are several EXCLUSIONS that preclude reimbursement even if the threshold requirements are met: Rule of Procedure I.F.1-8.

Reimbursement is prohibited for:

Losses of spouses, parents, children, grandparents, siblings or

other close relatives of the lawyer; Losses of partners, associates, employers and employees of the

lawyer;

Losses of a business entity controlled by the lawyer;

Losses of any governmental entity or agency;

Losses that arise out of a loan or investment transaction with the lawyer.

Losses arising from the lawyer’s malpractice or the inadequate,

insufficient or negligent rendition of services; Losses for interest, late fees, penalties, surcharges or any type of

consequential or incidental losses or damages; Losses covered by another source of payment such as a bond,

insurance or a surety agreement;



Losses that may be covered from any source, such as through litigation, mediation or enforcement of a judgment by the Petitioner; and

Losses by a financial institution covered by commonly

available insurance or a surety contract.

“DISHONEST CONDUCT” is defined in Rule of Procedure I.G. Whether this requirement is met will be a consideration in all petitions.

Examples of dishonest conduct include, but are not limited to:

Theft, conversion or embezzlement of money or property that is

earmarked for the client or for payment to other persons or entities on the client’s behalf;

Failure, refusal or inability to refund unearned fees clients pay to the

lawyer for work that is not performed;

Doing “sham” work that does little to advance the client’s goals but gives the appearance of the lawyer earning the fee;

Performing work that involves dishonesty, misrepresentation, fraud or

other unethical acts, such as preparing documents the lawyer knows contain false information;

Forging client’s name to personal injury settlement checks and releases of liability;

Failing to remit settlement proceeds to client or medical care

providers;

Failing to pay off lender of seller of real estate;

Failure to pay court costs or other costs of litigation from advanced funds from client; and

Failure to purchase owner’s title insurance policy for buyer in real

estate sale.



PRACTICAL CONSIDERATIONS IN INVESTIGATING AND DECIDING PETITIONS

1. A Statute of Limitations applies. To be timely, the Petition

must be filed by the latter of :

-- 7 years from the time the Claimant knew or should have known of the Dishonest Conduct that forms the basis of the claim OR

-- 1 year from first of the threshold requirements (suspension,

disbarment, death, e.g.) Rule of Procedure IV.F.7.

2. Petitioner must agree to assignment of any claims he has against the lawyer,

lawyer’s assets or estate. Rule of Procedure VII. 3. Investigations must be conducted by a Board member and reported to a

quorum (6 members) at a meeting of the Board. Rule of Procedure IV.D. , Paragraph 8 of Client Protection Fund Rules.

4. The board must meet at least one time per fiscal year (July 1- June 30).

Paragraph 6 of Client Protection Fund Rules. 5. Board meetings must comply with Virginia law regarding open meetings law.

Paragraph 6 of Client Protection Fund Rules 6. The meetings of the Clients’ Protection Fund Board are informal

administrative meetings, not evidentiary hearings. The Lawyer or the Petitioner may request to address the board. These requests must be made to the chairperson of the board, who may place restrictions and/or limitations on the length or subject matter of any statements allowed. Rule of Procedure IV.E.

Practice Point: The date of the event giving rise to the claim or the time the Claimant knew or should have known of the Dishonest Conduct is often unclear and must be determined by the Clients’ Protection Fund Board.



7. The Clients’ Protection Fund Board has discretion regarding payment of claims. See Rule of Procedure IV.F.1-6 for the factors the Board shall consider in exercising its discretion.

8. Both the Claimant and Respondent may request a reconsideration of the

board’s decision within 30 days of the denial or determination of the amount of a claim. Rule of Procedure V.

Upon reconsideration, the investigating board member submits a new report and recommendation, discussing any new evidence or information that arose since the prior decision.

Except for requesting a reconsideration by the board, there is no further right of appeal from a decision by the Clients’ Protection Fund Board. Rule of Procedure V.

9. Reimbursements are limited to:

• $50,000.00 per Petitioner if the loss occurred before July 1, 2015 or

• $75,000.00 per Petitioner if the loss occurred on or after July 1, 2015. Rule of Procedure IV.F.2. 10. The overall maximum or cap on reimbursements regarding any one lawyer or

lawyer association is 15% of the net worth of the fund when the first claim is made.2 Rule of Procedure IV.F.3.

11. Conflicts of interest of CPF Board Members: See Paragraph 10 of CPF

Rules.

A Board member who has or has had a lawyer-client relationship or a financial relationship with the petitioner or lawyer against whom the claim is made may not investigate or participate in the processing of the claim involving such person.

A Board member who has any other type of relationship with the

Petitioner or lawyer against whom the claim is made must disclose the relationship to the Board. The Board decides whether the member may participate in deciding the claim.

2 This amount was increased from 10% of the net worth of the fund by a rule revision approved by the Virginia State Bar Council in October 2014.



RELATIONSHIP TO DISCIPLINARY

RULES AND PROCEDURES

Ethics issues frequently seen in claims:

Whether the attorney earned the fee by doing work as outlined in the fee agreement or by an independent review of the work done in the case;

Whether the attorney performed “sham” or fraudulent work to make it

appear that she earned the fee, but the work had no real value to the client and had to be re-started or duplicated by the client’s successor attorney;

Whether the attorney diverted funds that should have been paid to the

Petitioner or a third-party (medical care provider, mortgage company, etc.) on Petitioner’s behalf.

Miscellaneous Information regarding relationship of Clients' Protection Fund to VSB Discipline System:

CPF Petitioner need not file a discipline complaint before filing CPF claim, but if a complaint is filed, it often will contain information helpful to the Investigator and Board in deciding the claim.

If the discipline case is still pending, the CPF Board usually awaits final

disposition before considering CPF petition.

Practice Point: Board members who know that they have a conflict of interest or have a relationship that may indicate a conflict of interest should disclose the situation during the public board meeting and state that he or she will not take part in the matter in which he or she has a conflict of interest. The chairperson of the board will usually confirm on the record that the affected board member did not take part in that portion of the meeting.



CPF staff reviews all disciplinary files that relate to a CPF Petition and

sends relevant information contained in the file with a Memorandum to the Investigator.

Investigating Board members may have access to otherwise confidential

information relevant to the investigation. Because much information obtained from a discipline file is confidential as required by the Supreme Court of Virginia, the information obtained from these files shall be used solely by or for the Clients' Protection Fund Board. Investigating Board member should protect the confidentiality of these documents and destroy them in a secure manner after the investigation is final. Furthermore, confidential information should not be included in the CPF Investigator’s report or discussed in a public meeting. The materials should be used as a resource to assist the CPF Investigator in obtaining information from another source that is not a confidential source, if possible. The Bar Counsel staff attorney is a good source of information regarding the underlying discipline file and/or subject attorney’s status or situation. If it is not clear from the materials the Investigator receives with the Petition who the staff attorney is, contact CPF Counsel Jane A. Fletcher (Direct Dial Phone 804/775-0567 or [email protected]).

Sometimes a Receiver will be appointed by a Circuit Court to close out a lawyer’s law practice and/or to disburse funds previously under the lawyer’s control in an equitable manner under the court’s supervision and direction. The Receiver is often a valuable source of information regarding claims. The Receiver may have the client’s file, for example. If the Receiver pays a monetary claim, that information is often helpful to provide documentation and facts regarding whether the CPF claim should be paid. Bar Counsel staff attorney and/or CPF staff can provide information about Receiverships in a particular case.

Conduct can be unethical or cause the attorney to receive discipline but

the claim is not reimbursable. For example, a lawyer may be disciplined for a conflict of interest rule violation or failure to communicate with the client, but these situations in most cases would not support payment by CPF. Similarly, malpractice by the lawyer does not necessarily give rise to a reimbursable claim.

mailto:[email protected]


of 6 VSB Clients’ Protection Fund Petition for Reimbursement Rev. July 8, 2019 2:03 PM

Virginia State BarClients’ Protection Fund

Petition for Reimbursement

This is a request for payment from the Clients’ Protection Fund because of the acts of a Virginia attorney whose name is

_________________________________________________________________________________, and whose address is/was

__________________________________________________________________________________________________________

1. Name of Petitioner (person seeking payment from Clients’ Protection Fund):

Mr. Mrs. Ms.

__________________________________________________________________________________________________________

first middle or initial last

2. Petitioner’s Contact Information:

_______________________________________________________________

Street or P.O. Box Telephone No.:

_______________________________________________________________ Daytime: (_______)____________________

_______________________________________________________________ Evening: (_______)____________________

City State Zip Code

E-mail address: _________________________________________ (check here to give us permission to contact you by e-mail)

3. Amount you are requesting to receive from the Clients’ Protection Fund: $_______ ______________

4. Date or period of time in which the alleged loss occurred: _______________________________________________________

5. Name of spouse, if any: _______________________________________________________________________________

6. Did you personally pay money to the attorney? YES NO

If you answer NO, and someone else paid the lawyer for you, please state who paid the lawyer and that person’s relationship to you

__________________________________________________________________________________________________________

7. Do you have receipts, canceled checks, credit card information, or other documentation to prove your payment?

YES NO If you have documentation, attach copies (not originals) to this petition. If so, then please redact

personally identifying information such as social security numbers, date of birth, driver’s license numbers, etc. If you do not have

proof of payment, state why you do not have it. ________________________________________________________________

_____________________________________________________________________________________________________

Mail to:Virginia State Bar

1111 E. Main Street, Suite 700Richmond, VA 23219-0026

Attn: Clients’ Protection Fund Boardor e-mail to: [email protected]

If you have questions about how to complete this Petition, please call (804) 775-9426 or refer to the information at www.vsb.org/site/public/clients-protection-fund/.


http://www.vsb.org/site/public/clients-protection-fund/

http://www.vsb.org/site/public/clients-protection-fund/


8. State your fee, retainer, payment, or employment agreement with the attorney. What services did you expect the lawyer to

provide? Did the lawyer handle any other matter for you at about the same time as the time period for which you are seeking

reimbursement? Attach a copy (not original) of any written agreement with the lawyer.

______________________________________________________________________________________________________

______________________________________________________________________________________________________

_____________________________________________________________________________________________________

(attach additional sheets if you need more room to answer)

9. Are you now or have you ever been:

• related to the lawyer (spouse or relative by blood or marriage) YES NO

• a partner, associate, employee or employer of the lawyer YES NO

If YES, state your relationship with the lawyer. _________________________________________________________________

10. State why you believe you should receive payment from the Clients’ Protection Fund. Include in your statement a description

of the lawyer’s misconduct and how you believe that conduct caused you to suffer a monetary loss. _______________________

______________________________________________________________________________________________________

______________________________________________________________________________________________________

______________________________________________________________________________________________________

(attach additional sheets if you need more room to answer)

11. When and how did you discover the loss you claim? ___________________________________________________________

______________________________________________________________________________________________________

12. Have you requested a refund of the unearned attorney’s fee or demanded payment of your claimed loss from the attorney?

YES NO

If YES, please state when and how you made your request and the lawyer’s response, if any. ______________________________

______________________________________________________________________________________________________

13. Have you sought or received any reimbursement from any source, including the Virginia State Bar Clients’ Protection Fund,

for the loss you are claiming?

YES NO If YES, state:

Amount received $________________ Date you received payment _____________

Payment received from ________________________________________________________________

Person or company

14. A. Have you filed a lawsuit against the attorney or the attorney’s law firm or company to recover the loss you are claiming?

YES NO If you answer YES, please identify the court in which you filed the lawsuit, the date you filed it, and the

status or result. Attach copies of your suit papers. _____________________________________________________________

_____________________________________________________________________________________________________

B. Have you reported the attorney to the police, commonwealth’s attorney, or other law enforcement agency for

investigation or criminal prosecution? YES NO If you answer YES, state the jurisdiction (city or county) to which

you reported the matter, when you reported it and the status or result. ____________________________________________

C. Have you filed a complaint with the Virginia State Bar against the attorney? YES NO

If you answer YES, state the status or outcome of the complaint. _________________________________________________

_____________________________________________________________________________________________________


D. Have you filed a claim for this loss with another state bar’s client’s recovery fund?

YES NO If you answer YES, state where you filed the claim and the status or result.

_____________________________________________________________________________________________________

E. Describe any other action that you have taken to try to recover the loss you claim. ______________________________

_____________________________________________________________________________________________________

15. If you know of any bond, surety agreement, or insurance contract that may cover the loss you are claiming, state:

Name of issuing company: ______________________________________________________________________________

Address ______________________________________________________________________________________________

Have you filed a claim with this company? YES NO If YES, status or outcome of claim: ______________________

_____________________________________________________________________________________________________

Amount of any payments you have received from this source: $_____________________________

16. List the names, addresses, and phone numbers of persons who might be able to give additional information about your

claim:

_____________________________________________________________________________________________________

_____________________________________________________________________________________________________

_____________________________________________________________________________________________________

_____________________________________________________________________________________________________

_____________________________________________________________________________________________________

17. How did you learn about the Clients’ Protection Fund?

_____________________________________________________________________________________________________

PURPOSE OF CLIENTS’ PROTECTION FUND

The Virginia State Bar Clients’ Protection Fund was established in 1976 to make monetary awards to people who have suffered financial

losses because of dishonest conduct by Virginia lawyers. The fund has limited assets and is a remedy of last resort for people who are

not able to obtain reimbursement from the lawyer involved or other sources, such as a bond, surety agreement, or insurance.

In establishing the Clients’ Protection Fund, the Virginia State Bar did not create or acknowledge any legal responsibility for the

acts of individual lawyers. The payment of reimbursable losses from the Clients’ Protection Fund shall be in the sole discretion of

the Clients’ Protection Fund Board and not as a matter of right. The Clients’ Protection Fund is intended to be a remedy of last

resort, and the Petitioners must pursue other recovery options before filing a claim. No person or entity shall have any right in the

Clients’ Protection Fund as a third party beneficiary or otherwise.


ASSIGNMENT

Upon payment by the Clients’ Protection Fund to the petitioner of all or any portion of this loss, the undersigned does hereby transfer, assign, and set over to the Clients’ Protection Fund of the Virginia State Bar all or a portion of the proceeds of all claims, demands, causes of action, actions and suits against the lawyer or personal representative or others arising out of the acts complained of in the petition equal to the sum of all amounts paid to the undersigned by the Clients’ Protection Fund.

The right of the Clients’ Protection Fund to receive such proceeds shall be subordinate to the right of the undersigned to collect and receive full reimbursement for the remainder of the undersigned’s loss in cases where only partial payment of the loss has been received from the fund. In the event the undersigned fails to pursue such claims within a reasonable period of time, the Clients’ Protection Fund is hereby authorized to pursue such claim(s) in the name(s) of the undersigned and to receive reimbursement for the amount paid previously to the undersigned petitioner and the cost of pursuing such claim(s), including reasonable attorneys’ fees prior to paying any of such proceeds to the undersigned. In the event that the amount paid by the Clients’ Protection Fund to the undersigned petitioner is not payment in full for all losses which the undersigned petitioner has suffered as a result of the dishonest acts of the lawyer for which this assignment is made, then any amounts recovered by the Clients’ Protection Fund which remain in its hands after reimbursement to the Clients’ Protection Fund of the amount paid to the undersigned, together with its costs of collection, shall be paid over to the undersigned.

The undersigned agrees to cooperate without any reservation with the Clients’ Protection Fund in enforcing any claim, demand, cause of action, action or suit against the lawyer, or personal representative, and agrees that all civil actions to be taken against the lawyer, or personal representative hereunder shall be under the full control of the Clients’ Protection Fund, and that the Clients’ Protection Fund may as it in its sole judgment deems advisable, prosecute or fail to prosecute, or abandon any such claim, demand, cause of action, action or suit, without the necessity of any consent or approval of the undersigned.

IN CONSIDERATION OF THE FOREGOING, petitioner agrees to cooperate without any reservation in the investigation of this claim and also in any related criminal or disciplinary proceedings against the lawyer(s) in question; and, as a condition precedent to any payment from said fund, petitioner agrees to execute and deliver to the Virginia State Bar such instrument or instruments as may be required.

AFFIDAVIT

COMMONWEALTH OF VIRGINIA

CITY OR COUNTY OF ___________________________, to wit:

I agree to the terms of the Assignment as stated above. I swear or affirm that the information provided on this Petition for Reimbursement

is true and correct to the best of my information and belief.

________________________________________________ _______________________________________ ___________

Petitioner’s Full Name (print or type) Petitioner’s Signature Date

(Sign ONLY in the presence of a Notary Public)

Subscribed and sworn to before me this ___________ day of ____________________________, 20________

__________________________________________

Notary Public

My commission expires: ____________________

You must sign this document for your petition to be considered by the Clients’ Protection Fund Board. Please sign only in the presence of a Notary Public.


ATTORNEYS’ FEES IN CONNECTION WITH CLIENTS’ PROTECTION FUND PETITION The Clients’ Protection Fund Rules contain this language: “No attorney shall be compensated for presenting a petition except as authorized by the Board” (meaning the Clients’ Protection Fund Board).

The Board expects that the attorney generally will assist the petitioner without charge, deeming his or her legal services to be pro bono publico. However, where the attorney expends an unusual amount of time and effort, the board may authorize a modest fee to be paid to the attorney.

This fee shall be paid from the amount approved for payment to the petitioner.

STATEMENT OF ATTORNEY ASSISTING IN PREPARING THIS PETITION:

I have assisted the petitioner in preparing this petition for reimbursement.

I have read the statement on this page regarding attorneys’ fees for assisting the petitioner. I hereby acknowledge that I shall be entitled only to such fee as may be authorized by the Clients’ Protection Fund Board, and that such fee shall be paid out of the amount approved for payment to the petitioner.

Unless I make a request to the board, in writing, for payment of a fee for assisting the petitioner with this petition, I shall expect no such fee and am pleased to assist the petitioner pro bono publico.

Attorney’s Signature: ___________________________________________________ Print or Type Name: _______________________________________________________________

VSB Membership Number: ________________________________

Law Firm or Company: ______________________________________________________________

Address: ______________________________________________________________________

______________________________________________________________________

Telephone Number: (________)_____________________________

E-mail Address: ___________________________________________

If this petition was prepared by an attorney, or if the petitioner was assisted by an attorney in preparing it, the attorney must sign this statement.


Virginia State BarClients’ Protection Fund Petition for Reimbursement

LIMITS ON CLAIMS

1. In order for the board to have jurisdiction to consider a petition for reimbursement, the lawyer who is the subject of the claim must be:• disbarred or suspended from the practice of law for disciplinary reasons; or• deceased; or• adjudicated bankrupt or mentally incompetent; or• whereabouts unknown and not subject to judicial process: or• voluntarily resigned from the practice of law.

2. For a claim to be considered, the monetary loss must have: • been caused by “dishonest conduct” of the lawyer; and• arisen out of a lawyer-client relationship between the lawyer and the claimant or a fiduciary relationship between the lawyer and

the claimant.

3. The petitioner is responsible for proving the dollar amount of his or her loss.

4. An award to any one petitioner cannot be more than $50,000 for a loss that occurred before July 1, 2015, or $75,000 for a loss that occurred on or after July 1, 2015.

OTHER INFORMATION ABOUT THE CLIENTS’ PROTECTION FUND

• Petitioners are expected to pursue other reasonable avenues of reimbursement of their claimed loss, and the Clients’ Protection Fund Board will decide what avenues are reasonable on a case-by-case basis;

• Petitioners are expected to cooperate with the Virginia State Bar in its processing and investigating petitions. Failure to cooperate can result in denial of a claim.

• The filing of a Clients’ Protection Fund petition does not excuse the petitioner from such obligation as may exist under law to report to the appropriate law enforcement agency any criminal act that may have occurred.

PRIVACY OF INFORMATION OBTAINED BY THE CLIENTS’ PROTECTION FUND BOARD

The information requested on this form, and all subsequent requests by the Clients’ Protection Fund Board for additional information, is subject to the Virginia Freedom of Information Act, Section 2.2-3700, et seq. and the Government Data Collection and Dissemination Practices Act, Section 2.2-3800, et seq. of the Code of Virginia (1950), as amended.*

You are not required to provide any of the requested information, and you may refuse to supply additional information. Failure to supply requested information, however, may result in your claim being denied or may make it more difficult to investigate your claim if you do not supply all the requested information. By providing this information, you agree to the publication of appropriate information about the nature of the claim and the amount of reimbursement, if reimbursement is approved.

Once your claim has been investigated and acted upon by the Clients’ Protection Fund Board, all information that you provide to the board is available for inspection by the public under the Virginia Freedom of Information Act, Section 2.2-3700, et seq. of the Code of Virginia (1950), as amended, except in those cases that the Clients’ Protection Fund Board refers to law enforcement agencies.

*You are advised that the information provided may be subject to public disclosure.

I have read and understand the information above. I have the right to consult an attorney of my choice to advise me about any part of this petition or any aspect of the process for applying for reimbursement from the Clients’ Protection Fund.

________________________________________________________________ __________________________________ Petitioner’s Signature Date

nvestigating a CPj^ Claim

1. Review petition and CPF memo. Obtain necessary documentation as required by CPF

Rules of Procedure. Ask petitioner for copies of proof of payment to CPF attorney

(checks, money orders, receipts from attorney's office) and documents relating to the

representation (employment agreement, correspondence, pleadings, court orders,

financial records showing payments made by petitioner, billing records).

2. If necessary, contact CPF counsel and/or Assistant Bar Counsel who prosecuted the

underlying misconduct case for any file or materials.

3. Obtain the court file(s) in the underlying representation if useful.

-<..

ips

4. Interview CPF attorney and petitioner and/or their attorneys re: claim.

5. Request from CPF attorney any files relating to representation of the petitioner.

6. If an attorney represented petitioner after the CPF attorney, and the issue is the amount

and quality of the work done by the CPF attorney, contact the successor attorney to

ascertain the nature of the work needed to complete the case.

7. Interview any other attorney involved in litigation re: the amount and quality of work

done by the CPF attorney.

8. In claims involving the embezzlement of personal injury or Workers' Compensation

settlement proceeds, or if otherwise warranted, contact the insurance carrier to ascertain if

settlement funds were issued to the CPF attorney.

9. In claims involving the embezzlement of real estate loan proceeds, contact lenders and

parties to the transaction to ascertain flows of funds.

10 Contact the receiver, if one was appointed to wind down the CPF attorney's law practice,

to obtain access to the CPF attorney's financial records, computers, or client files.

Submitting Reports/ uestions11. Two weeks prior to the Board meeting, submit recommendation to Vivian R. Byrd, CPF

Administrator, Client Protection Fund, at cpfi^vsb.ore

Questions should be addressed to Vivian R. Byrd at Byrdfa), vsb. org or call

(804)775-0572.

Report Forms

Revised 8/6/18



Telephone (804) 775-0500

---------------- TDD (804) 775-0502

CLIENTS’ PROTECTION FUND BOARD

MEMORANDUM

TO: Clients’ Protection Fund Board Investigator

FROM: Jane A. Fletcher, CPF Counsel

Vivian R. Byrd, CPF Administrator

RE: CPF Docket #

Petitioner:

CPF Attorney:

DATE:

Information from the Petition and/or VSB Records

Amount of Claim:

Basis of claim:

Discipline Complaint filed? yes no Discipline Complaint Docket #

Outcome/Status of Discipline Complaint:

VSB Discipline Staff Contact Information

Option: <name > did not file a discipline complaint against <name>. The staff attorney who

handled the other discipline matter(s) regarding <name> was <name>, whose contact

information is:

Option: (new language from Renu Brennan eff. 8/6/18)

The bar counsel who handled the matter is and may be contacted at , e-mail .

If there are no concerns about confidentiality, <name>, will discuss the case with you and may

be a good starting point and resource. With sufficient advance notice, and if <he/she> has no

other concerns, <he/she> may also be able to attend the CPF Board meeting at which the matter

will be presented, if necessary or useful. As always, please continue to contact Jane A. Fletcher,

CPF Counsel, for guidance.

Revised 8/6/18

VSB Staff Investigator:

Phone #: E-mail:

Other Information About the Claim (optional)

Attorney’s Status

Information Needed

The CPF Investigator should obtain the following information, in addition to any other

information the CPF Investigator believes is relevant to the claim:

Attachment(s): Petition

Discipline Suspension/Revocation Order

Confidential Discipline Documents [if applicable]

* Payments are limited to: $50,000.00 per petitioner for losses that occurred before July 1, 2015 OR $75,000.00 for losses that occurred on or after July 1, 2015 Revised July 2015






Petition #

Petitioner

CPF Attorney

CPF Attorney’s Status

Amount Requested $ Amount Recommended* $



If actual, quantifiable loss was established, approximate date loss occurred* Results of Investigation and Recommendation:

Investigating Board Member: Date of Report:

^^.['*« <

l93»

Virginia State Bar1111 East Maiii Street, Suite 700Riclimond, Vijgiiiia 23219-0026

Telephone (804) 775-0500Fax (804) 775-0501 TOD (<S04) 775-0502

CLIENTS' PROTECTION FUND BOARDINVESTIGATING BOARD MEMBER'S REPORT



Petition #

Petitioner

CPF Attorney

CPF Attorney's Status

Amount Requested $

Action, if any. Petitioner took to recover claimed loss:

Was sufficient documentation of loss provided?

Amount Recommended $

10 (explain, if necessary)



Investigating Board Member:Date of Report:

*Payments are limited to: $50,000.00 per petitioner for losses that occurred before July 1, 2015 OR

$75,000. 00 for losses that occurred on or after July 1, 2015 Revised July 2015

Finances

Clients’ Protection Fund Finances

From 1976 to 2005, the Clients’ Protection Fund (CPF) was funded by bar dues. During that time, $3,827,000 was transferred from the Virginia State Bar operating account to the CPF. In FY 2012, the CPF received $100,000 from the administration and finance account, which is made up of fees and profits from VSB meetings and conferences. Beginning in fiscal 2008, the operating fund contribution was replaced with a $25 assessment charged to active attorneys of the Virginia State Bar. Effective July 1, 2018, the Supreme Court of Virginia lowered the assessment paid by bar members from $25 to $10. In addition, effective July 1, 2018, the General Assembly extended the sunset provision of Va. Code Section 54.1-3913.1, which authorizes the statutory assessment for the fund, from July 1, 2020 to July 1, 2023. For the twelve years the assessment has been in effect, the fund has received $8,590,000, and at least $343,000 is expected to be generated in revenue during the fiscal year ending June 30,2020. The CPF rules govern how the assets of the fund are invested. Specifically, the rules provide: Paragraph 1 (E) - Authorized Investments

Investment of monies of the Clients’ Protection Fund shall be restricted to the following:

1. Interest-bearing deposits, in federally insured banks and savings institutions (including certificates of deposit as authorized by Va. Code §§ 2.2-4407, 4509 and 4518);

2. Direct obligations of the Commonwealth of Virginia and the United States Government, and securities of entities created by Congress and authorized to issue such securities; provided that no such obligation or security shall have a maturity beyond ten years from the date of the investment; and provided further that the interest, discount or other gain or income realized from any such investment, net of any bank or brokerage charges incurred in connection therewith, shall automatically become a part of the Fund; and

3. Corporate notes as authorized by Va. Code Section 2.2-4510. The majority of the fund is invested in government-sponsored enterprises such as Federal Home Loan Bank securities, the Federal National Mortgage Association, and Federal Farm Credit Banks. Securities may be purchased at a premium or a discount, which are amortized over the life of the investment. Some of the securities are callable and, if called, are redeemed at face value plus accrued interest. The securities pay semi-annual interest payments based on the coupon rate. Typically, four members of the CPF Board serve on the CPF Finance Subcommittee. The Finance Subcommittee reviews specific investment decisions of

Revised by Finance/Procurement Director – September 2019

bar staff to ensure the investment policy is being followed. The committee also reviews the monthly financial report and related bank statements. At each meeting, all board members are provided with the most recent financial report, which itemizes income and expenses as well as how the funds are invested.

Code of VirginiaTitle 54. 1. Professions and OccupationsChapter 39. Attorneys

This section has more than one version with varying effective dates. Scroll down to see allversions.

§ 54,1-3913. 1. (Effective until July 1, 2023) Clients' ProtectionFund

The Clients' Protection Fund is continued as a special fund of the Virginia State Bar. The Fundshall consist of moneys transferred to it from the State Bar Fund and the Virginia State Bar'sAdministration and Finance Account. Disbursements to the Clients' Protection Fund from theState Bar Fund shall be made only upon approval of the disbursements through the annualbudgetary process of the Virginia State Bar. Notwithstanding the provisions of § 54. 1-3912, theSupreme Court may adopt rules assessing members of the Virginia State Bar an annual fee of upto $25 to be deposited in the State Bar Fund and transferred to the Clients' Protection Fund.

1996, c. 346;2007, c. 807.

The chapters of the acts of assembly referenced in the historical citation at the end of this sectionmay not constitute a comprehensive list of such chapters and may exclude chapters whoseprovisions have expired.

§ 54. 1-3913. 1. (Effective July 1, 2023) Clients' Protection FundThe Clients' Protection Fund is continued as a special fund of the Virginia State Bar. The Fundshall consist of moneys transferred to it from the State Bar Fund and the Virginia State Bar'sAdministration and Finance Account. Disbursements to the Clients' Protection Fund from theState Bar Fund shall be made only upon approval of the disbursements through the annualbudgetary process of the Virginia State Bar.

1996, c. 346.

The chapters of the acts of assembly referenced in the historical citation at the end of this sectionmay not constitute a comprehensive list of such chapters and may exclude chapters whoseprovisions have expired.

9/11/2018

Contributions Interest OtherFund From Bar CPF Earned on Deposits & Fund

Fiscal Year Balance-July 1 Operating Budget Assessment Investments Charges Number Amount Balance-June 301976 -1996 0 2,677,022 0 864,048 193,885 409 1,537,620 2,197,335

1997 2,197,335 200,000 0 147,174 10,873 17 102,539 2,452,8431998 2,452,843 200,000 0 160,299 36,137 41 135,122 2,714,1571999 2,714,157 0 0 149,555 18,342 46 179,382 2,702,6722000 2,702,672 0 0 147,239 -20,909 26 72,884 2,756,1192001 2,756,119 0 0 146,568 46,042 54 132,099 2,816,6302002 2,816,630 0 0 139,203 9,566 31 61,458 2,903,941*2003 2,903,547 0 0 111,218 17,379 60 244,893 2,787,2512004 2,787,251 500,000 0 142,255 32,907 72 227,074 3,235,3392005 3,235,339 250,000 0 125,848 16,191 80 280,956 3,346,4212006 3,346,421 0 0 135,464 17,244 47 161,838 3,337,2912007 3,337,291 0 0 144,532 24,641 25 99,877 3,406,5882008 3,406,588 0 672,375 168,011 20,528 18 202,899 4,064,6032009 4,064,603 0 687,525 202,134 17,688 16 177,556 4,794,3932010 4,794,393 0 703,395 153,016 27,624 218 900,560 4,777,868

**2011 4,777,868 0 721,050 152,556 17,101 165 228,140 5,440,4352012 5,440,435 100,000 742,225 192,471 55,365 52 648,902 5,881,5942013 5,881,594 0 755,850 126,798 13,542 34 325,078 6,452,7072014 6,452,707 0 770,275 101,935 -14,780 57 353,540 6,956,5972015 6,956,597 0 789,270 103,189 8,351 59 260,412 7,596,9942016 7,596,994 0 800,025 108,509 15,986 43 212,288 8,309,2262017 8,309,226 0 805,600 110,900 29,386 50 343,428 8,911,6842018 8,911,684 0 813,060 138,161 5,891 28 103,130 9,765,6662019 9,765,666 0 329,250 183,992 11,361 25 132,303 10,157,966

Grand Total 3,927,022 8,589,900 4,155,075 610,341 1,673 7,123,978

* Beginning fund balance for 2003 changed from the ending balance in 2002 due to a change in the method of accounting for investments from an historical cost basis to an amortized cost basis.** Petitions Paid is net 3 checks totalling $3,503.56 written in FY 2010 and voided in FY 2011.

Virginia State BarClients' Protection Fund

Financial Summary

Petitions Paid:

1

CLIENTS’ PROTECTION FUND RULES

PURPOSE, FUNDING, AUTHORITY AND ADMINISTRATION

PARAGRAPH 1 PURPOSE AND FUNDING

A. The purpose of the Clients’ Protection Fund (the “Fund”) is to promote public confidence

in the administration of justice and the honor and integrity of the legal profession by, as set forth

at Part Six, Section IV, Paragraph 16 of the Rules of the Supreme Court, reimbursing all or part

of losses sustained by clients or those to whom a fiduciary duty is owed as a result of a Virginia

State Bar member’s dishonest conduct.

B. The Council of the Virginia State Bar (“Council”) shall appoint a Clients’ Protection

Fund Board (the “Board”) to receive, hold, manage, invest and distribute the monies transferred

to the Fund in accordance with the procedures established by Council, as set forth herein.

C. Pursuant to Va. Code § 54.1-3913.1, the Clients’ Protection Fund is a special fund of the

Virginia State Bar that consists of moneys transferred to it from the State Bar Fund and the

Virginia State Bar’s Administration and Finance Account. Va. Code § 54.1-3913.1 authorizes the

Supreme Court of Virginia to adopt rules assessing members an annual fee of up to $25 to fund

the Clients’ Protection Fund. The Council shall transfer to the Fund all amounts specially

assessed upon Virginia State Bar members for the Fund and shall make appropriations adequate

to maintain the funding of the Fund at a reasonable level.

D. Council shall review the financial condition of the Fund annually as part of the Virginia

State Bar’s budgetary process at which time Council may approve disbursements to the Fund.

E. AUTHORIZED INVESTMENTS

Investment of monies of the Clients' Protection Fund shall be restricted to the following:

1. Interest-bearing deposits, in federally insured banks and savings institutions

(including certificates of deposit as authorized by Va. Code §§ 2.2-4407, 4509 and 4518);

2. Direct obligations of the Commonwealth of Virginia and the United States

Government, and securities of entities created by Congress and authorized to issue such

securities; provided that no such obligation or security shall have a maturity beyond ten

years from the date of the investment; and provided further that the interest, discount or

other gain or income realized from any such investment, net of any bank or brokerage

charges incurred in connection therewith, shall automatically become a part of the Fund;

and

3. Corporate notes as authorized by Va. Code § 2.2-4510.

F. The interest and any other income received from any other sources by the Fund is to be

added to and automatically become a part of the Clients’ Protection Fund.

2

G. The Council at any time may abolish the Clients’ Protection Fund and the Board. In the

event of such abolition, all assets of the Clients’ Protection Fund shall be and remain the

property of the Virginia State Bar to be used for its general purposes, as determined by the

Council.

PARAGRAPH 2 THE CLIENTS’ PROTECTION FUND BOARD

The Board shall consist of fourteen (14) members, one of whom shall be a non-lawyer, appointed

by the Council. One member shall be from each of the ten (10) Disciplinary Districts in Virginia,

and four (4) shall be appointed from the Commonwealth at large. All appointments shall be for a

term of three (3) years. No appointee shall serve more than two (2) consecutive full terms. No

appointee shall be reappointed until after the expiration of at least one (1) year following the end

of the second full term. Vacancies shall be filled by appointment by the president of the Virginia

State Bar for the unexpired term.

PARAGRAPH 3 POWERS OF BOARD

The Board may use or employ the Clients’ Protection Fund for any of the following purposes

within the scope of the Board’s objectives:

1. To make payments or reimbursements on approved petitions as herein provided to clients

or other persons or entities to whom a fiduciary duty is owed;

2. To purchase insurance to cover such losses in whole or in part, provided that such

insurance is obtainable at reasonable cost and is deemed appropriate and provided that

the purchase of such insurance is approved by the Council;

3. To pay the Board’s operating expenses in accordance with Council policies; and

4. To reimburse to the Virginia State Bar, in whole or in part, only those costs of

receiverships initiated by the Virginia State Bar that were occasioned by the need for the

receiver to administer, pursue or defend assets, the recovery or preservation of which

would inure to the benefit of one or more clients or other members of the public who

have suffered losses as a result of the dishonest conduct of the Virginia State Bar member

who is the subject of the receivership, acting as either a lawyer or as a fiduciary in the

matter or matters in which the loss or losses occurred.

PARAGRAPH 4 ELIGIBLE CLAIMS

A. The Board is authorized to consider petitions for reimbursement of actual, quantifiable

losses caused by the dishonest conduct of a member of the Virginia State Bar, acting either as a

lawyer or as a fiduciary in the matter in which the loss arose, except to the extent to which they

are bonded or such losses are otherwise covered. The Fund is intended to be a remedy of last

resort for persons who cannot obtain reimbursement from other sources. The Fund does not

cover malpractice or the inadequate, insufficient or negligent rendition of services by the lawyer

or collateral losses suffered as a result of the lawyer’s malpractice or the inadequate, insufficient

or negligent rendition of services.

B. The member must have:

3

1. been disbarred or suspended from the practice of law pursuant to any provision of

Paragraph 13 of Part 6, Section IV of the Rules of the Supreme Court of Virginia;

2. voluntarily resigned from the practice of law in Virginia;

3. died;

4. been adjudicated incompetent;

5. been the subject of a bankruptcy case that would stay, reduce or discharge the

claims of the member’s past or present clients; or

6. the member’s whereabouts is unknown to the Virginia State Bar.

C. The Board shall have complete discretion to approve or deny petitions including the

order, extent and manner of payment.

D. In establishing, maintaining and administering the Fund, the Virginia State Bar does not

create or acknowledge any legal responsibility for the acts of individual lawyers.

E. All reimbursements of losses from the Fund shall be in the sole discretion of the Board

and not as a matter of right. No client or member of the public shall have any right in the Fund as

a third party beneficiary or otherwise.

F. No attorney shall be compensated for presenting a petition except as authorized by the

Board.

PARAGRAPH 5 DUTIES AND RESPONSIBILITIES OF BOARD

The Board shall have the following duties and responsibilities:

1. To investigate and review all claims submitted to the Board in accordance with its

Rules of Procedure;

2. To approve or deny the claim, and if approved, determine the amount which

should be paid on the claim;

3. To make recommendations to Council regarding policies and procedures

involving the Fund as it deems necessary and appropriate;

4. To provide a full report at least annually to Council and to provide all necessary

reports;

5. To publicize, as permitted by law, its activities to the public and the members of

the Virginia State Bar; and

4

6. To manage the monies in the Fund.

PARAGRAPH 6 BOARD MEETINGS

The Board shall meet at least one time during each fiscal year and as frequently as necessary to

conduct the business of the Fund and to timely process claims upon call of the Chair or two or

more members of the Board. Written minutes of each meeting shall be prepared and maintained

as required by law and Library of Virginia guidance.

PARAGRAPH 7 NOTICE OF MEETINGS

Board members shall be given not less than fifteen (15) days' written notice of the time and place

of a regular meeting and not less than five (5) days' written notice of each special meeting.

Notice of any meeting may be waived by a Board member either before or after the meeting.

PARAGRAPH 8 QUORUM

Six or more members of the Board shall constitute a quorum for the transaction of

business.

PARAGRAPH 9 OFFICERS AND TERMS

The chair and vice chair of the Board shall be elected by a majority of the Board at the last

meeting of the fiscal year. Their terms shall extend until the last meeting of the next fiscal year

and until their successors are elected. Should a vacancy occur in the office of chair or vice

chair, such vacancy shall be filled by majority vote of the members of the Board at the meeting

next following the occurrence of the vacancy.

PARAGRAPH 10 CONFLICT OF INTEREST

A Board member who has or has had an attorney-client relationship or fiduciary relationship

with a Petitioner or Lawyer who is the subject of a claim shall not participate in the investigation

or adjudication of a claim involving that Petitioner or Lawyer. A Board member with any other

past or present relationship with a Petitioner or the Lawyer whose alleged conduct is the subject

of the claim shall disclose such relationship to the Board and, if the Board deems appropriate,

that Board member shall not participate in any investigation or adjudication of the claim.

RULES OF PROCEDURE OF THE CLIENTS' PROTECTION FUND OF THE

VIRGINIA STATE BAR

I. DEFINITIONS

For the purpose of these Rules of Procedure, the following definitions shall apply:

A. The “Board” shall mean the Clients' Protection Fund Board.

5

B. The “Fund” shall mean the Clients' Protection Fund of the Virginia State Bar.

C. A “Lawyer,” “Attorney” or “Respondent” shall mean one who, at the time of the act

complained of, was a member of the Virginia State Bar and was actually engaged in the practice

of law in Virginia. The fact that the act complained of took place outside of the Commonwealth

of Virginia does not necessarily mean that the Lawyer was not engaged in the practice of law in

Virginia.

D. A “Petitioner” or “Claimant” shall mean a person or entity that applies to the Board for

payment pursuant to the rules applicable to the Fund.

E. “Reimbursable Losses” are limited to actual, quantifiable losses, supported by

documentation, of money or other property that meet the following tests:

1. The loss must be caused by the dishonest conduct of the Lawyer and shall have

arisen out of and by reason of a lawyer-client or fiduciary relationship. The Board is

authorized to consider petitions for reimbursement of actual, quantifiable losses caused

by the dishonest conduct of a member of the Virginia State Bar, acting either as a Lawyer

or as a fiduciary in the matter in which the loss arose, except to the extent to which the

Lawyer is bonded or such losses are otherwise covered. The Fund is intended to be a

remedy of last resort for persons who cannot obtain reimbursement from other sources.

The Fund does not cover malpractice or the inadequate, insufficient or negligent rendition

of services by the lawyer or collateral losses suffered as a result of the lawyer’s

malpractice or the inadequate, insufficient or negligent rendition of services. Fee

disputes are not reimbursable losses.

2. The Lawyer has been disbarred or suspended from the practice of law pursuant to

any provision of Paragraph 13 of Part 6, Section IV of the Rules of the Supreme Court of

Virginia, has voluntarily resigned from the practice of law in Virginia, has died, has been

adjudicated incompetent, has been the subject of a bankruptcy case that would stay,

reduce or discharge the claim, or whose whereabouts is unknown to the Virginia State

Bar.

F. The following shall be excluded from “Reimbursable Losses”:

1. Losses of spouses, parents, children, grandparents, siblings or other close

relatives, partners, associates, employers and employees of the Lawyer causing the

losses;

2. Losses by any business entity controlled by the Lawyer;

3. Losses of any governmental entity or agency;

4. Losses occasioned by a loan or an investment transaction with the Lawyer, unless

it arose out of and in the course of the attorney-client or fiduciary relationship and,

which, but for the fact that the Lawyer enjoyed an attorney-client or fiduciary relationship

6

with the Petitioner, could not have occurred. In considering whether that standard has

been met, the following factors will be considered:

a. Any disparity in bargaining power between the Lawyer and the client,

including differences in their respective educational backgrounds and business

sophistication;

b. The extent to which the attorney-client or fiduciary relationship overcame

the will or wishes of the Petitioner;

c. The extent to which the Lawyer, by virtue of the attorney-client or

fiduciary relationship with the Petitioner, became privy to information as to the

Petitioner's financial affairs; and

d. Whether a principal part of the service arose out of a relationship requiring

a license to practice law.

5. Losses or collateral losses arising from the Lawyer’s malpractice or the

inadequate, insufficient or negligent rendition of services;

6. Claims by a Petitioner for damages for a cause of action in which a Lawyer

represented the Petitioner and that never resulted in a settlement or judgment;

7. Claims for interest, late fees, penalties or surcharges or any type of consequential

or incidental losses or damages, whether or not such losses or damages arise out of

Reimbursable Losses; and

8. Because the Fund is intended to be a remedy of last resort, and the Petitioner must

first pursue other sources of recovery, the following shall be excluded from Reimbursable

Losses:

a. Losses covered by any bond, surety agreement or insurance contract to the

extent covered thereby, including any loss to which any bonding agent, surety or

insurer is subrogated to the extent of that subrogated interest. The Fund is

intended to be a remedy of last resort;

b. Losses that may be covered from any source, such as through litigation,

mediation or enforcement of a judgment by the Petitioner; and

c. Losses of any financial institution which are recoverable under a "banker's

blanket bond" or similar commonly available insurance or surety contract.

G. “Dishonest Conduct” may include, but is not necessarily limited to:

1. Any act committed by a Lawyer in the nature of theft, conversion, embezzlement

or withholding of money or property from its rightful owner, recipient or person entitled

7

to receive such money or property.

2. Any act committed by a Lawyer in the nature of failure, refusal or inability to

refund unearned fees received in advance where the Lawyer performed no legal services

or such an insignificant service that the failure, refusal or inability to refund the unearned

fees constitutes a wrongful taking or conversion. Where the Board finds that the legal

services performed by the Lawyer are more than insignificant, but the Lawyer has not

fully earned the entire fee, the failure, refusal or inability to refund the unearned fees may

still constitute a wrongful taking or conversion, and the Board may reimburse fifty

percent of the total fees paid by the Petitioner.

3. The Fund does not cover malpractice or the inadequate, insufficient or negligent

rendition of services by the Lawyer or collateral losses suffered as a result of the

Lawyer’s malpractice or the inadequate, insufficient or negligent rendition of services.

II. BOARD’S DISCRETION AND FACTORS TO CONSIDER IN

EVALUATING PETITION

The Board shall exercise its discretion in deciding whether a Lawyer committed Dishonest

Conduct. In making its determination, the Board may consider such evidence as it deems

appropriate, including, but not limited to, the following:

A. An order from any court or disciplinary tribunal disciplining a Lawyer for the same act or

conduct alleged in a petition or otherwise finding that a Lawyer committed Dishonest Conduct;

or

B. A final judgment imposing civil or criminal liability upon a Lawyer for such conduct.

III. PETITION FOR REIMBURSEMENT

A. The Virginia State Bar staff shall prepare a form of petition for reimbursement. In its

discretion the Board may waive a requirement that a petition be filed on such form.

B. The petition shall contain the following statement:

“IN ESTABLISHING THE CLIENTS' PROTECTION FUND, THE VIRGINIA STATE

BAR DID NOT CREATE OR ACKNOWLEDGE ANY LEGAL RESPONSIBILITY

FOR THE ACTS OF INDIVIDUAL LAWYERS. THE PAYMENT OF

REIMBURSABLE LOSSES FROM THE CLIENTS' PROTECTION FUND SHALL BE

IN THE SOLE DISCRETION OF THE CLIENTS’ PROTECTION FUND BOARD

AND NOT AS A MATTER OF RIGHT. THE CLIENTS’ PROTECTION FUND IS

INTENDED TO BE A REMEDY OF LAST RESORT, AND PETITIONERS MUST

PURSUE OTHER RECOVERY OPTIONS BEFORE FILING A CLAIM. NO PERSON

OR ENTITY SHALL HAVE ANY RIGHT IN THE CLIENTS' PROTECTION FUND

AS A THIRD PARTY BENEFICIARY OR OTHERWISE.”

8

C. At a minimum the Board will require the following information from the Petitioner:

1. Petitioner’s name, address and telephone number;

2. The name and last known address of the Lawyer allegedly responsible for the

claimed loss;

3. The amount of the loss claimed and documentation supporting the loss, including

a copy of any written fee or retainer agreement pertaining to the claim and proof of

payment for monies the Petitioner or anyone on his or her behalf paid directly to the

Lawyer;

4. The date or period of time over which the alleged loss occurred;

5. The date the Petitioner discovered the loss and how the Petitioner discovered the

loss;

6. A description of the Lawyer’s dishonest conduct and the names and addresses of

any witnesses who have knowledge of the loss;

7. The name of the person or entity, if any, to whom or which the loss has been

reported (e.g. Commonwealth’s Attorney, police, Virginia State Bar, disciplinary agency,

or other person or entity);

8. Any other source of reimbursement, including but not limited to, any insurance,

fidelity or surety agreement or bond;

9. A description of the efforts by the Petitioner to recover the alleged loss from the

Lawyer or from other sources of reimbursement besides the Virginia State Bar;

10. The circumstances under which the Petitioner has been, or will be, reimbursed for

any part of the claim (including the amount received, or to be received, and the source),

along with a statement that the Petitioner agrees to notify the Fund of any

reimbursements the Petitioner received during the pendency of the claim;

11. The existence of facts known to the Petitioner relevant to the claim;

12. The name, address, e-mail address and phone number of the lawyer assisting the

Petitioner with the claim, if any;

13. The Petitioner’s agreement to cooperate with the Virginia State Bar regarding the

claim or with any civil actions which may be brought in the name of the Virginia State

Bar and/or the Petitioner, pursuant to a subrogation and assignment clause;

14. The Petitioner’s agreement to repay the Fund if the Petitioner is subsequently

reimbursed from another source, but only to the extent the Petitioner’s recovery from the

9

other source would exceed the amount of the claim;

15. The name and address of any other fund to which the Petitioner has applied or

intends to apply for reimbursement, together with a copy of the application;

16. A statement that the Petitioner agrees to the publication of appropriate

information about the nature of the claim and the amount of reimbursement, if

reimbursement is approved; and

17. The notarized signature of the Petitioner.

D. All information and statements by the Petitioner shall be under oath.

E. Petitions shall be submitted to the Virginia State Bar. If the staff of the Virginia State Bar

determines that the petition complies with the minimum requirements of these Rules, the petition

shall be investigated and approved or denied by the Board.

IV. PROCESSING PETITIONS

A. Virginia State Bar staff shall promptly send each petition to a Board member for

investigation and report. A copy shall be sent to the Lawyer at his or her address of record

maintained by the Virginia State Bar. The Lawyer or his or her representative may respond to the

petition within thirty (30) days of the date of the letter transmitting the petition to him or her.

B. Petitions shall be assigned based on the workload of each Board member, and, when

possible, by giving preference for assignment to a Board member who works or lives in the

jurisdiction in which the Lawyer maintained his office, place of employment or address of record

with the Virginia State Bar.

C. A member to whom a petition is referred for investigation shall conduct such

investigation as to him or her seems necessary and desirable in order (1) to determine whether

the petition is for a Reimbursable Loss, and (2) to guide the Board in determining the extent, if

any, to which the loss should be reimbursed from the Fund.

D. The Board member who investigates a petition shall prepare a written report and

recommendation as to whether the petition should be approved or denied. Such report shall be

available for inspection by the Board members attending the meeting at which the petition is

reviewed.

E. Petitions shall be processed based on the investigating Board member’s written report

and recommendation. Upon request of a Board member, the Board shall hear the Petitioner, the

Lawyer or such other evidence as may be presented. The Lawyer or his or her personal

representative, or the Petitioner or his or her personal representative, may request to address the

Board at a meeting at which the Board is considering the claim. Any such request must be made

to the Chair or his or her designee, and the Chair may restrict or limit the length or subject matter

of any statements permitted.

10

F. The Board shall, in its sole discretion and by a majority vote, determine whether a claim

is approved or denied, and if approved, the amount of loss, if any, for which any Petitioner shall

be reimbursed from the Fund. Although only a majority vote is required to approve or deny a

petition, the Board should aspire to come to a consensus on every petition. In making such

determination, the Board shall consider inter alia, the following:

1. Any conduct of the Petitioner which contributed to the loss.

2. The loss to be paid to any one Petitioner shall not exceed $75,000 for losses

incurred on or after July 1, 2015, or $50,000 for losses incurred on or after July 1, 2000,

and prior to July 1, 2015, or $25,000 for losses incurred prior to July 1, 2000. For

purposes of this provision, the Board may regard two or more persons, firms or entities as

one Petitioner with respect to a Lawyer’s dishonest conduct in handling a given matter

where the facts and entities are found to justify such a conclusion in the sole discretion of

the Board.

3. The total amount of losses reimbursable hereunder on account of the misconduct

of any one lawyer or association of lawyers (including, without limitation, a law firm,

professional corporation, or an office-sharing arrangement among lawyers) shall be

limited to fifteen percent (15%) of the net worth of the Fund at the time the first claim is

made. In the event of multiple claims on account of the misconduct of any one lawyer or

association of lawyers, claims may be considered in any order or grouping which the

Board, in its discretion, finds appropriate, taking into account the equities and timeliness

of each claim, and no further payment shall be made in respect to misconduct of any one

lawyer or association of lawyers once the fifteen percent (15%) limit has been reached.

4. The total amount of Reimbursable Losses in previous years for which payment

has not been made and the total assets of the Fund.

5. The Board may, in its sole discretion, allow further payment in any year on

account of a Reimbursable Loss allowed by it in prior years which has not been fully

paid; provided such further payment would not be inconsistent or in conflict with any

previous determination with respect to such loss.

6. No payment shall be made upon any petition, a summary of which has not been

submitted to the Board members in accordance with these Rules of Procedure. No

payment shall be made to any Petitioner unless said payment is duly approved by the

Board as set forth above.

7. No claim shall be considered by the Board unless the same shall have been filed

within seven (7) years from the time the Petitioner knew or should have known of the

Lawyer’s Dishonest Conduct, or within one (1) year after the first occurrence of one of

the following events, whichever date is later:

a. the Lawyer has been disbarred or suspended from the practice of law

pursuant to any provision of Part 6, Section IV, Paragraph 13 of the Rules of the

11

Supreme Court of Virginia;

b. the Lawyer has voluntarily resigned from the practice of law in Virginia;

c. the Lawyer has died;

d. the Lawyer has been adjudicated incompetent;

e. the Lawyer has been the subject of a bankruptcy that would stay, reduce or

discharge the claims; or

f. the whereabouts of the Lawyer is unknown to the Virginia State Bar.

G. The Board may make a finding of Dishonest Conduct for purposes of adjudicating a

claim. Such a determination is not a finding of Dishonest Conduct for purposes of professional

discipline.

V. REQUEST FOR RECONSIDERATION

The Petitioner or Lawyer may request reconsideration in writing within thirty (30) days of the

decision. If the Petitioner or Lawyer fails to make a request or the request is denied, the decision

of the Board is final. There shall be no appeal from a decision of the Board.

VI. RESTITUTION TO FUND

A Lawyer whose Dishonest Conduct has resulted in reimbursement to a Petitioner shall make

restitution to the Fund including interest and the expense incurred by the Fund in processing the

claim.

VII. ASSIGNMENT AND SUBROGATION

Payment shall be made from the Fund only upon condition that the Petitioner execute an

assignment of Petitioner’s assignable rights against the Lawyer or his/her successors in interest

including, but not limited to the Lawyer’s personal representative, heirs, devisees and assigns, on

such terms as the Board may deem proper under the circumstances, including reimbursement of

costs incurred in prosecuting a claim against the Lawyer or his or her successors in interest. The

Virginia State Bar may bring an action pursuant to the assignment on behalf of the Fund and/or

the Petitioner. The net proceeds collected by reason of such assignment shall be for the sole

benefit of the Fund and deposited therein, and enforcement of this right shall be within the sole

discretion of the Board. Prior to the commencement of an action by the Board, it shall advise the

Petitioner thereof at his or her last known address. The Petitioner may then join in such action to

press a claim for his or her loss in excess of the amount of the payment made by the Fund or for

any other claims. The Board may impose such other conditions and requirements as it may deem

appropriate in connection with payment to any Petitioner.

VIII. PAYMENT OF RECEIVERSHIP COSTS

12

Costs of any Virginia State Bar receivership occasioned by the need for the receiver to

administer, pursue or defend assets, the recovery or preservation of which would inure to the

benefit of one or more clients or other members of the public who have suffered losses as a result

of the dishonest conduct of the Virginia State Bar member who is the subject of the receivership,

acting as either a lawyer or as a fiduciary in the matter or matters in which the loss or losses

occurred, shall be documented and certified to the Board by the Virginia State Bar staff for

consideration of payment from the Fund by the Board as an agenda item at a meeting of the

Board. The Board may approve payment with a majority vote.

IX. CONFIDENTIALITY

The dissemination of information shall comply with Virginia law.

X. GENERAL PURPOSES

These Rules of Procedure shall be liberally interpreted and, in any given case, the Board may

waive technical adherence to these Rules of Procedure in order to achieve the objectives of the

Fund.

XI. AMENDMENTS

These Rules may be changed at any time by a majority vote of the Board at a duly held meeting

at which a quorum is present, and subject to the approval of the Council of the Virginia State

Bar.

Rev. 2/27/09 Rev. 3/3/2006 Rev. 2/23/2013 Rev. 10/24/2014 Rev. 2/25/2017 - Approved by Council February 25, 2017 (replaces 1976 “Resolution of the Council of the Virginia State Bar Establishing a Clients’ Protection Fund” and “Rules of Procedure of the Clients’ Protection Fund”)

VmcmiA FREEDOM OF INFORMATION ACT & VmciNiA PUBLIC RECORDS ACT

I. INTRODUCTION

The VSB and its boards, committees, conferences, employees, andvolunteers are subject to both the:

Virginia Freedom of Information Act (VFOIA), Va. Code § 2. 2-3700, etseq., and

* Virginia Public Records Act (PRA), Va. Code §§ 42. 1 -76-42. 1-91.

> VFOIA ensures Virginians access to both:

a. public records in the custody of a public body, its officers, andemployees, and

b. meetings of public bodies, wherein public business is conducted.

> PRA governs how long a government entity must retain certain records.

II. RECORDS

Records are broadly defined under both VFOIA and the PRA to include allrecorded information, whatever the form, prepared for or used in the transactionof public business.

a) VFOIA - all writings and recordings prepared or owned by, or in thepossession of, a public body or its officers, employees, or agents in thetransaction of public business. Va. Code § 2. 2-3701.

1. Examples include but are not limited to:e-mails,

. text messages,handwritten notes,

typewritten documents,electronic files,

audio, or video recordings,. CDs,. emails,

. photographs, orany other written or recorded media; ahd

. Minutes of meetings of public bodies.

Records include all drafts and final versions.

b) PRA - recorded information, regardless of physical form, that documents atransaction or activity by or with any public officer, agency, or employee ofan agency.

The recorded information is a public record if it is produced, collected,received, or retained in pursuance of law or in connection with thetransaction of public business.

The medium upon which such information is recorded has no bearing on thedetermination of whether the recording is a public record.

c) VFOAI Exeniptions - under VFOIA, all public records are open to thepublic, unless a specific exemption in law allows the record to be withheld.

1. Statutory exemptions include:personnel exemptions,the attomey-client privilege,

. attomey-client work product, and

. personal contact infonnation, all as defined and limited at Va. Code§2. 2-3705. 1.

2. Rules of Court exemptions include: Part Six, Section IV, Paragraph10-2. E. ADVISORY OPINIONS OR RULES. Confidentiali .Provides that the records of the Ethics Committee, includingCommittee deliberations, memoranda, correspondence, and workproduct shall be confidential and privileged and will not be providedto anyone absent a court order.

3. Rules of Court exemptions include: Part Six, Section IV, Paragraph10-5.C. ADVISORY OPINIONS OR RULES. Confidentialit .Provides that communications between Ethics Counsel and members

requesting advice are confidential.4. Rules of Court exemptions include: Part Six, Section IV, Paragraph

13-30.A. CONFIDENTIALITY OF DISCIPLDSTARY RECORDSAND PROCEEDINGS. Confidential Matters.

Bar complaints, unless introduced at a public hearing orincorporated in a Charge of Misconduct, when the matter is placedon the public docket, or a Certification.

. Bar investigations, except Reports of Investigation admitted asexhibits at a public hearing.

. Impairment proceedings.

. Notes, memoranda, work product, research of Bar Counsel.Records protected by RPC 1. 6.Subcommittee records and proceedings, except determinationsimposing public discipline.Deliberations and working papers of the District Committees,Disciplinary Board, and three-judge Circuit Courts.

5. Rules of Court, Part Six, Section IV, Paragraph 13-30. K. Records ofthe Disci lina S stem. In no case shall confidential records of the

attorney disciplinary system be subject to subpoena.

d) Requests for Information/Records - if you receive any request forinformation or records in connection with your work with the VSB, pleasecontact the CPF Administrator. The VSB must timely, within five businessdays, respond to any request for production, including citing any appropriateexemption and/or producing the non-exempt records.

e) Retention of Records - the following rules govern your retention of Bar-related records:

1. Any records you receive from the VSB are duplicates unless you havetaken substantive notes and have documents that should be included as

part of the work product of the file.2. If you send an e-mail that relates to the transaction of section business,

please either copy or forward to your liaison. Once sent to your liaison,you do not have to preserve it.

3. If you create a record outside of what is provided to you by the VSB,please scan or copy it and send it to your liaison.

4. Once the VSB liaison is in possession of any records you have createdor obtained outside of what the VSB provided to you, you may destroyyour case file.

5. Try not to commingle personal and official e-mails. Private e-mails donot need to be retained; emails relating to the transaction of publicbusiness do. When sending e-mails or otherwise acting on behalf of theVSB, please be mindful of the fact that you are creating a public record.

6. If you have any questions, please do not hesitate to call your liaison.

III. MEETINGS

A meeting is defined as three or more members of the public body, or aquomm if the public body is less than three members, where public business istransacted or discussed, whether or not minutes or votes or taken. To avoid anaccidental electronic meeting, please do not e-mail more than one other memberabout VSB business, and lease do not hit re 1 all if other members of thecommittee are copied on the e-mail. Please use the "bcc" (blind carbon copy)option when emailing a group.

a) Meetings requirements - VFOIA imposes various requirements formeetings applicable to all public bodies; these include:

1. post notice of meetings at least three working days in advance of themeeting;

2. ensure the meeting is open to the public; and3. Take and preserve minutes.

IV. CONCLUSION

For a helpful discussion about this topic and other FOIA questions, pleasesee the attached publications by the Virginia FOIA Council:

> A Guide to the Virginia Freedom of Information Act for Members ofBoards, Councils, Commissions, and other Deliberative Public Bodies

> A Guide to the Virginia Public Records Act, E-Mail: Use, Access &Retention

> Access to Public Meetings under the Virginia Freedom of Information Act

Clients’ Protection Fund Board

Highlights of Open Meeting Law for Board Members

Public Meeting Information for CPF Board Members Revised August 2019—Jane Fletcher, CPF Counsel

-Page 1-

What does Virginia law require for Clients’ Protection Fund Board Meetings?

• In general, information about Clients’ Protection Fund claims is subject to being released to the public under the Freedom of Information Act, Va. Code Section 2.2-3700 et seq. 1

• Meetings of the Clients’ Protection Fund Board are open meetings, open to the public.

• The date, place and time of board meetings is posted on the VSB website at least three

working days before the meeting. This information must include remote locations if any board members are participating electronically. Remote locations are also open meetings, and meeting materials available at the main meeting location must be available at each remote location. Va. Code Section 2.2-3708.2

• If ANY meetings include electronic attendance, at least ONE meeting “annually” shall be by in-person attendance only. Va. Code Section 2.2-3708.2(D)(1)

• Electronic participation in a meeting is possible only if:

The CPF Board has adopted a written policy allowing for and governing participation of its members electronically. The policy must include an approval process for electronic participation. The board must follow the policy strictly and uniformly.

A quorum of the CPF Board is physically assembled at one meeting location2; and

The voice of the electronic participant must be heard by everybody at the main meeting location.

Virginia Code Section 2.2-3708.2(C)

1 Previous Virginia Code Sections 2.2-3708 and 2.2-3708.1, which dealt with electronic meetings, were repealed and replaced with Virginia Section 2.2-3708.2. 2 A quorum of the Clients’ Protection Fund Board is six (6) members. Clients’ Protection Fund Rules, Paragraph 8.




-Page 2-

• If the CPF Board allows electronic participation by members, the public must be provided “a

substantially equivalent electronic communication means through which to witness the meeting.” Va. Code Section 2.2-3708.2(D)(1). For example, if members participate by telephone, a telephone number allowing a member of the public to monitor the meeting would meet this requirement.

• The CPF Board must specifically approve each request to participate electronically and record in its minutes the reason for such electronic participation. Va. Code Section 2.2-3708.2 (A)(2).

• Exception to remote location being an open meeting and three-days’ notice requirement

unnecessary: Three days’ public notice does not necessarily have to be given AND the remote location

does not necessarily have to be open to the public IF the board member’s electronic participation is due to EITHER “a temporary or permanent disability or other medical condition that prevents the member’s physical attendance” OR “a personal matter” and the member specifies the personal matter. In this situation, the CPF Board should include in its minutes the specific nature of the disability, medical condition or personal matter and the remote location from which the member is participating. Va. Code Section 2.2-3708.2(A)

Such electronic participation by a member for these reasons is limited each calendar year to

two meetings. Va. Code Section 2.2-3708.2(A)(1)(b). The Clients’ Protection Fund Board normally meets three times each fiscal year, but we track CPF Board members’ electronic participation on an ongoing basis to make sure we comply with this law.

• Closed meetings are allowed in certain situations. See Virginia Code Section 2.2-3711. It is highly unlikely that the Clients’ Protection Fund Board’s business will provide a basis for holding a closed meeting.

However, if the Board decides that the law allows it to hold a closed meeting, the Board must first take a vote in an open meeting

Identifying the subject matter to be discussed at the closed meeting; Stating the purpose of the closed meeting; and Making a specific reference to the applicable exemption from open meeting

requirements (Va. Code Sections 2.2-3707 and 2.2-3711(A)). A general reference to the broad law is not sufficient.

Va. Code Section 2.2-3712(A).




-Page 3-

At the conclusion of the closed meeting, the Board shall immediately reconvene in an open meeting and take a recorded vote to be included in the minutes certifying that only public business matters lawfully exempted from open meeting requirements and only the specific subjects identified to be discussed were actually discussed. Va. Code Section 2.2-3712(D)

What documents should not be shared at CPF Board meetings? Because meetings are public, no non-public information should be included in meeting materials. Non-public information includes, but is not limited to:

• Personal Information of individuals, such as birthdates, social security numbers,

driver’s license numbers, and account numbers on bank documents or credit cards. For a more extensive list, see Virginia Code Section 2.2-3801 (Government Data Collection and Dissemination Practices Act).

• Confidential information from Virginia State Bar discipline cases (Supreme Court

Rule 13-30)

Complaints; Investigative materials, including Reports of Investigation, unless they

have been admitted as exhibits at a public hearing. How do we protect non-public information?

• Redaction of personal information in otherwise public documents. If VSB staff sends Board members documents with personal information displayed, we will redact the information. If you obtain documents with personal information, you must redact the personal information if you intend to share the document at a public meeting. Try not to share documents that contain personal information.

• Clear marking of confidential information (see sample Confidential Report of Investigation) Do not share confidential documents in a public meeting. You will know which documents are confidential if they are marked as confidential with a brightly-colored “Confidential” watermark or stamp, as in the attached example.

Sample of Redacted, Confidential Document for Clients' Protection Fund Use

MEMORANDUM

TO:

FROM:

RE:

DATE:

Assistant BarCou

Cam MoffattChief Investigator

In the Matter o

Complainant:

June 30, 2015

A.

REPORT OF INVESTIGATION

Concise Descri tion of the Alle cd Misconduct

Complainant contends that she paid respondent $1000 to represent her at a child custody hearingscheduled in Richmond J&DR Court on April 1, 2015. Respondent showed up one hour late. The Judgecontinued the case until May 11th. Complainant claims that respondent was speaking unintelligibly andwas disheveled in appearance. Respondent claimed a medical issue. Complainant flew in from Coloradofor the hearing at a cost of $700. On April 3 , respondent called complainant but left no message.Complainant spoke to respondent on April 6 and respondent told complainant he was prepared for theMay 11 hearing. On May 15, 2015 complainant received a call from respondent's assistant statingrespondent had been in the hospital and that his license to practice had been suspended for 4 months.Complainant claims that respondent lied to her on April 6th when he stated that he was okay and wouldbe prepared for the hearing on May llth.

B. Invest! ation Conducted

Address:was interviewed by telephone on May 15, 2015.

pplewood Drive, #100, Aurora, CO 80016

Addresswas interviewed by telephone on May 15, 2015.

, Richmond, VA 23219

was interviewed by telephone on June 4, 2015.I -s: R imond Juvenile & Domestic Relations District Court, The Oliver Hill Courts Building, 1600

, Richmond, VA 23219-1214

POLICY ON PARTICIPATIONPURSUANT TO VA CODE 2. 2-3708.2

It is the policy of the Virginia State Bar that individual menibers may participate inmeetings of all public bodies of the Virginia State Bar, as defined by Virginia Code2.2-3701, by electronic means as permitted by 2.2-3708. 2. This policy shall apply tothe entire membership of the public body and without regard to the identity of themember requesting remote participation or the matters that will be considered orvoted on at the meeting.

Whenever an individual member wishes to participate from a remote location, thelaw requires a quomm of the public body to be physically assembled at the primaryor central meeting location, and there must be arrangements for the voice of theremote participant to be heard by all persons at the primary or central meetinglocation.

When such individual participation is due to a temporary or permanent disabilityor other medical condition, or due to a personal matter, such participation islimited by law to two meetings of the public body per member each calendar year.

Individual participation from a remote location under this policy shall be approvedor disapproved by vote of the members present at the central or primary meetinglocation. If a member's participation from a remote location is disapproved becausesuch participation would violate this policy, such disapproval shall be recorded inthe minutes with specificity.

This policy applies to all public bodies of the Virginia State Bar.

This policy was adopted by the Virginia State Bar Council at its meeting on October26, 2018.


Susan Bradford Tarley, chair

The Clients’ Protection Fund was established in 1976 to make monetary awards to people who

have suffered financial losses because of the dishonest conduct of Virginia lawyers. The fund is

managed by a fourteen-member board appointed by the Virginia State Bar Council. Board

members investigate all petitions from clients for payments from the fund. The Board hears each

petition and determines the amount of loss.

As of July 1, 2018, twenty-three (23) claims were pending from the previous year. In FY

2019, forty-four (44) new petitions were received. The total amount paid during 2018-2019 was

$132,303.48 representing twenty-five (25) claims. The Board denied seventeen (17) petitions,

and twelve (12) petitions were rejected for not meeting the CPF rule requirements. One (1) claim

was withdrawn by the petitioner and one (1) conditional approval claim was closed by the Board.

As of June 30, 2019, there were eleven (11) pending claims. The Board reviewed and

investigated forty-five (45) claims during the year.

The fund began the fiscal year on July 1, 2018, with a cash balance of $9,765,666.08.

The Clients’ Protection Fund $10 assessment from all active attorneys totaled $329,250.00.

Interest income for the fiscal year, totaled $183,992.07. The fund received restitution from the

attorney general’s collections, debt set-off, and individual restitutions in the amount of

$16,069.49 net of attorney’s fees for collection services. As of June 30, 2019, the cash balance in

the fund is $10,157,965.91.

The Board is to be commended for the many hours spent investigating and deliberating

claims, and for the work of its various committees including the public awareness and strategic

planning committees.

Appreciation is extended to retiring board members Donna Sue Baker, Adam D.

Elfenbein, Margaret A. Nelson and Kenneth Murov after their years of service on the Board.

The Board welcomes Joseph Meek Bowen, Christopher Anthony Corbett, Brian Dean

Lytle and Lisa Ann Wilson as new members for fiscal year 2019-2020.

15-Aug-2019

Term

Expires / NumberMember Address Contact


Activities Report

VIRGINIA STATE BAR

2019-2020

6 Susan Bradford Tarley, Esq.

Chair

Tarley Robinson, PLC

4808 Courthouse St Ste 102

Williamsburg, VA 23188

757-229-4281

Fax:229-7439

22020 /

[email protected]

5 Mary Grace Anne O'Malley, Esq.

Vice Chair

Mary Grace A. O'Malley, PLLC

9236 B Mosby Street

Manassas, VA 20110

703-257-9777

Fax:562-6993

22022 /

[email protected]

8 Phillip Verne Anderson, Esq.

Member

Frith Anderson & Peake, P.C.

29 Franklin Rd

Roanoke, VA 24006-1240

540-725-3361

Fax:772-9167

12020 /

[email protected]

10 Joseph Meek Bowen, Esq.

Member

Bowen & Bowen, P.C.

P.O. Box 688

Tazewell, VA 24651-0688

276-988-4830

Fax:988-7080

12022 /

[email protected]

9 Christopher Anthony Corbett, Esq.

Member

108 N Main St

PO Box 1270

Stuart, VA 24171-1270

276-694-7145

Fax:694-2320

12022 /

[email protected]

3 Paul Geoffrey Gill, Esq.

Member

Federal Public Defender Office

Suite 3600

701 East Broad Street

Richmond, VA 23219-1884

804-565-0870

Fax:648-5033

12020 /

[email protected]

7 Charles Franklin Hilton, Esq.

Member

Wharton, Aldhizer & Weaver, P.L.C.

100 South Mason Street

P.O. Box 20028

Harrisonburg, VA 22801-7528

540-434-0316

Fax:434-5502

12021 /

[email protected]

1 Brian Dean Lytle, Esq.

Member

Lytle Law, PC

Suite 200

11801 Canon Boulevard

Newport News, VA 23606

757-595-5655

Fax:595-4262

12022 /

[email protected]

2 David Brandt Oakley, Esq.

Member

POOLE BROOKE PLUMLEE PC

4705 Columbus Street

Virginia Beach, VA 23462-6749

757-552-6035

Fax:552-6016

22022 /

[email protected]

4 Lisa Ann Wilson, Esq.

Member

Commonwealth Attorney's Office

Suite 5200

1425 North Courthouse Road

Arlington, VA 22201

703-228-7087

Fax:228-7116

12022 /

[email protected]

Thomas Andrew Edmonds, Esq.

Member at Large

9401 Michelle Place

Richmond, VA 23229

804-740-5762 22021 /

[email protected]

Melissa Walker Robinson, Esq.

Member at Large

Glenn Robinson Cathey Memmer & Skaff

PLC

Fulton Motor Lofts

400 Salem Ave SW Ste 100

Roanoke, VA 24016

540-767-2200

Fax:767-2220

12021 /

[email protected]

1

15-Aug-2019

Term

Expires / NumberMember Address Contact


Activities Report

VIRGINIA STATE BAR

2019-2020

Mary Yancey Spencer, Esq.

Member at Large

305 Clovelly Road


22022 /

[email protected]

Dr. Theodore Smith

Lay Member

Fredericksburg District Superintendent

PO Box 100

Ladysmith, VA 22501

540-419-5131 22022 /

[email protected]

Mrs. Vivian R. Byrd

Liaison

Virginia State Bar

1111 E Main St Ste 700


804-775-0572

Fax:775-0545

----- /

[email protected]

2


Meetings

2019-2020

Friday, September 20, 2019 (Richmond)

Friday, January 31, 2020 (Charlottesville)

Friday, May 1, 2020 (Richmond)

All meetings will start at 10:00 a.m., with the exception of the September meeting. September meeting will start at 9:00 a.m. – Mandatory training for new members; optional for returning members

Effective 01/01/2019 Page 1

VIRGINIA STATE BAR VOLUNTEER REIMBURSEMENT VOUCHER GUIDELINES

The Virginia State Bar (VSB) follows the Commonwealth of Virginia Travel Regulations with certain exceptions. Reasonable and necessary travel expenses incurred by committee members attending committee meetings are reimbursable by the Virginia State Bar. This includes mileage or fares, lodging and certain meal expenses; however, alcoholic beverages and spousal expenses are NOT reimbursable. Committee members are encouraged to minimize travel expenses by reducing overnight stays in connection with committee business. To this end, committee chairs are requested to call meetings at such times and in such places that costs of travel by committee members will be held to a minimum. Travel reimbursement requests should be filed IMMEDIATELY after a meeting. All vouchers received more than 30 days after the completion of the trip must be approved by the Executive Director. Reimbursement requests received more than thirty days after completion of travel may not be honored. With reasonable notice, arrangements can be made for a committee to use a VSB meeting room. Meetings at “resort” hotels are usually not allowed and must be cleared in advance by the Executive Committee.

Members attending the VSB Annual Meeting held in June at Virginia Beach are expected to pay their own expenses as a part of their professional responsibility. Hence, expenses of members attending committee meetings scheduled immediately before, after or during the Annual Meeting are NOT REIMBURSABLE. This also applies to committee meetings scheduled immediately before, after or during regular meetings of various voluntary state associations (i.e., VBA, VTLA and VADA) and are considered to be held for the convenience of lawyers attending those association meetings. This policy is in accord with that of the American Bar Association and other state bar associations.

Please refer to the attached sample Travel Expense Reimbursement Voucher for details. Travel Vouchers should be typed or handwritten legibly. Travel expense reimbursement vouchers are available from the bar office (Excel spreadsheet or PDF version via e-mail). Send your email request to: [email protected]. Each day’s expenses must be itemized separately on the voucher. You must attach appropriate itemized receipts. Travel reimbursements will not be made from credit card receipts or statements.



VIRGINIA STATE BAR VOLUNTEER REIMBURSEMENT VOUCHER

Detailed Instructions

The Virginia State Bar (VSB) follows the Commonwealth of Virginia Travel Regulations with certain exceptions. Since the Virginia State Bar operates entirely on its own revenue, and is a non-Executive Branch agency, some flexibility is allowed in our internal guidelines. The voucher must be presented for payment within thirty (30) days after completion of travel. All expenses must be reasonable and necessary and related to official VSB business. The following expenses are reimbursable on the travel voucher: Mileage: $0.58/mile for travel by personal automobile (eff. 1/1/2019) Transportation: ORIGINAL RECEIPTS REQUIRED, PHOTOCOPIES NOT

ACCEPTED; includes necessary train, cab, bus fares. For reimbursement of airline ticket charges, ticket stubs or a hardcopy of the confirmation from an Internet reservation site showing the total cost and confirmed services must be attached to the travel voucher. If you choose to fly to and from a meeting, you will be reimbursed for the most economical means of travel; airfare or mileage, meals, and lodging, whichever is less. Car rental is only allowed in rare cases; contact the VSB Fiscal Office for advance approval.

Lodging: ORIGINAL RECEIPTS REQUIRED, PHOTOCOPIES NOT

ACCEPTED. State travel regulations set the standard lodging rate at $94 within the state of Virginia. This standard rate may vary for different locations. Effective 10/1/2018, the standard lodging rate for Richmond city limits is $147. State guidelines should be followed when possible; otherwise, reimbursement may be allowed for a higher amount, not to exceed 150% of the state approved rates. Please consult your liaison or the Virginia State Bar Fiscal Office for rates in specific locations. Please note that whenever a staff person has established a negotiated rate for a specific event, this rate overrides the standard rate for that area.

Telephone: Personal telephone calls are not a reimbursable expense. Parking/Tolls/Tips: Must be claimed as “Other Expense”; if parking or toll charge

exceeds $20, an original receipt is required. Tolls incurred for using Express Lanes or High Occupancy Toll (HOT) lanes for


convenience purposes are NOT a reimbursable expense. Valet parking is reimbursable only when a special need justifies the expense. Incidental tips for bellman, transportation, parking and other similar travel related services is limited to $10 per day.

Meals: Necessary & reasonable; meal reimbursement is normally allowed

only when overnight travel is involved. Reimbursement for meal gratuity is limited to 20% for exceptional service. In order to be reimbursed for meals, you must indicate the time of departure and arrival on your voucher. The following amounts are allowed for meal reimbursement, including taxes and gratuity:

Breakfast $15 Lunch $15 Dinner $35 Snacks are not a reimbursable expense.

If you claim reimbursement for another VSB volunteer in addition to yourself, you must list the names(s) of the individual(s) included.

The following information must be included on the travel voucher (refer to numbers on attached sample copy):

1. Agency – Virginia State Bar 2. Social Security #: – enter social security number of traveler – required 3. Name & address of traveler, LAST NAME FIRST 4. State employee? – mark the appropriate box 5. Signature of traveler – required 6. Date & explanation – refer to information printed on voucher for required

information 7. Purpose of travel – in most cases, check “other” and indicate in the space

provided which meeting you attended Note: On the departure or return day of an overnight trip, meal expenses incurred

while traveler is en route may be reimbursed, depending on departure, arrival and travel time. Departure and arrival times must be noted in order to be reimbursed for meal expenses. All other items will be filled in by the Virginia State Bar Fiscal Office. Mail the original form and original receipts to the State Bar office (1111 E. Main Street, Suite 700, Richmond, VA 23219-0026). FAXES AND EMAILS ARE NOT ACCEPTABLE. Please direct your questions to the State Bar Fiscal Office, (804) 775-0526.

PERSONAL VEHICLE USE STATEMENT - VOLUNTEER

X

STATE EMPLOYEE? YES X NO

-

#

PURPOSE OF TRIP

FOR VIRGINIA STATE BAR USE ONLY

DEPT CC ACCOUNT TASK AMOUNT

VOUCHER NUMBER

I certify all computations are correct and that all necessary and required receipts are attached. Initial _________

3. MILES TRAVELED1. DATE

2. LOCATION AT WHICH EXPENSE WAS INCURRED. POINTSBETWEEN WHICH TRAVEL WAS NECESSARY, METHOD OF TRANSPORTATION USED AND MILEAGE RATE ALLOWED. EACH DAYS EXPENSES MUST BE SHOWN SEPARATELY.

TOTALS x

GRAND TOTAL

x

x

VOLUNTEER REIMBURSEMENT VOUCHERDEPARTMENT, INSTITUTION, OR AGENCY

PREPARE WITH INK OR TYPEWRITER. USE ADDITIONAL SHEETS WHEN NECESSARY

Address:

Name:

Virginia State Bar

x

x

x

4. MILEAGE AMOUNT

PERSONAL VEHICLE - COST BENEFICIAL TO THE STATE - PERSONAL MILEAGE RATE

I HEREBY CERTIFY THAT EXPENSES LISTED BELOW WERE INCURRED BY ME ON OFFICIAL BUSINESS OF THE COMMONWEALTH OF VIRGINIA AND INCLUDE ONLY SUCH EXPENSES AS WERE NECESSARY IN THE CONDUCT OF BUSINESS.

STATE VEHICLE - NOT AVAILABLE OR ACCESSIBLE - PERSONAL MILEAGE RATE

STATE VEHICLE - AVAILABLE OR NOT REQUESTED - FLEET RATE

x

AMT.

6. MEALS

I HEREBY CERTIFY THAT THE TRAVEL UNDERTAKEN IN THIS REIMBURSEMENT VOUCHER HAS BEEN REVIEWED AND APPROVED AS NECESSARY FOR THE CONDUCT OF BUSINESS OF THE COMMONWEALTH.

DATE

SIGNATURE OF TRAVELER

AMOUNT7. LODGING

8. OTHER (ITEMIZE

IN SECOND

COLUMN)

VA STATE BAR APPROVAL DATE

- Suffix:

TOTAL SHEET 2

City:TITLE

State: Zip:Social Security #

x

x

DATE(MMDDYY)

x

1

2

3 45

6

7

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Online Client Protection Resources

American Bar Association Center for Professional Responsibility client protection

information: http://www.abanet.org/cpr/clientpro/home.html

Model Rules for Lawyers’ Rules for Lawyers’ Funds for Client Protection:

http://www.abanet.org/cpr/clientpro/contents.html

National Client Protection Organization, Inc., a non-profit membership corporation for

the exchange of information among law client protection funds: http://www.ncpo.org/

NCPO Standards for Evaluating Lawyers Funds:

http://www.ncpo.org/standards2006.pdf

http://www.abanet.org/cpr/clientpro/home.html

http://www.abanet.org/cpr/clientpro/contents.html

http://www.ncpo.org/

http://www.ncpo.org/standards2006.pdf

Virginia State Bar Staff Contact Information

Cameron M. Rountree Deputy Executive Director Phone: (804) 775-0560 Email: [email protected] Jane A. Fletcher Counsel to the Clients’ Protection Fund Phone: (804) 775-0567 Email: [email protected] Vivian R. Byrd Deputy Clerk/CPF Administrator Phone: (804) 775-0572 Email: [email protected] For travel reimbursement, mail directly to: Catherine Huband, Fiscal Assistant Mailing Address: Virginia State Bar Clients’ Protection Fund 1111 East Main Street Suite 700 Richmond, VA 23219-0026 CPF Direct Line: (804) 775-9426







CLIENTS’ PROTECTION FUND BOARD MEETING September 20, … · Lytle Law, PC Suite 200 11801 Canon...

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