Green v. Virginia State Bar

PRESENT: All the Justices

WALTER FRANKLIN GREEN, IV
OPINION BY
v. Record No. 082530 JUSTICE LEROY F. MILLETTE, JR.
JUNE 4, 2009
VIRGINIA STATE BAR

FROM THE VIRGINIA STATE BAR DISCIPLINARY BOARD

In this appeal of right, we review an order of the

Virginia State Bar Disciplinary Board (the Board) suspending

the license to practice law of Walter Franklin Green, IV

(Green) for eighteen months. Finding no error, we will

affirm.

FACTUAL BACKGROUND AND MATERIAL PROCEEDINGS BELOW

On May 18, 2006, a duly convened subcommittee of the

Seventh District Committee of the Virginia State Bar (the

Subcommittee) consisting of Steven H. Gordon, lay person,

Samuel R. Walker, Esquire, and Peter C. Burnett, Esquire

considered disciplinary charges against Green. By letter

dated May 19, 2006, Green was notified that the Subcommittee

had certified four charges against him to the Board. 1 Green

was also provided copies of the reports of the investigator

for the Virginia State Bar (the Bar), and was notified that he

1
VSB Docket Number 06-070-0739 (Kenneth B. Henley, Sr.),
and VSB Docket Number 06-070-2259 (Kristen L. Beavers/Michael
S. Eavey). The Subcommittee also certified two additional
cases, which were later dismissed and are not the subject of
this appeal.
would receive the Subcommittee Determination (Certification).

On May 31, 2007, by letter from Assistant Bar Counsel, Alfred

L. Carr (Bar Counsel), Green was provided with a copy of the

Certification signed by Samuel R. Walker, Chair Designate of

the Seventh District Committee. 2

Green filed a petition for a writ of prohibition and

sought a stay of the disciplinary proceedings in the circuit

court, which was denied, and this Court subsequently denied

his motion for a stay. Green v. Virginia State Bar, Record

No. 080577 (June 6, 2008). Green requested two continuances,

which the Board granted. The Board heard the cases on June

27, 2008 and August 22, 2008. James L. Banks, Jr., Esquire,

served as Chairman of both Board panels.

At the June hearing, the Bar and Green presented evidence

on the matter of Kenneth B. Henley, Sr. (Docket Number 06-070-

0739) and the matter of Kristen L. Beavers/Michael S. Eavey

(Docket Number 06-070-2259). The hearing extended into the

evening, at which time the Board continued it to a later date.

On August 22, 2008, the hearing resumed. Three Board members

were substituted for the August hearing due to the

unavailability of three members who sat in June. Prior to the

August hearing, the Clerk of the Disciplinary System provided

2
Green’s demand for a three-judge panel pursuant to Code
§ 54.1-3935 was denied as untimely made.

2
each of the substituting Board members with a transcript of

the June 27, 2008 hearing, as well as a copy of the entire

record.

At the conclusion of the Bar’s case, Green moved to

strike “each and every one of the allegations” against him.

Green challenged the presence of the Board members who did not

participate in the June hearing. Green further argued that

the Board lacked jurisdiction due to the delay between the May

18, 2006 Subcommittee determination of misconduct and the May

31, 2007 Certification. Green contended that the Board’s

failure to substantially comply with procedural requirements,

as mandated by Part 6, § IV, ¶ 13-12, resulted in its loss of

jurisdiction. 3 Green also argued that the Bar had not proven

any of the alleged misconduct by clear and convincing

evidence. The Board overruled Green’s motion to strike as to

the procedure implemented in substituting Board members,

finding it in compliance with the provision now found in Part

6, § IV, ¶ 13-18(Q), and determined that the Board retained

jurisdiction, having shown substantial compliance. The Board

sustained Green’s motion to strike as to certain of the

alleged violations of the Rules of Professional Conduct.

3
The provisions applicable during the proceedings against
Green have been reorganized, effective May 1, 2009 in a
revised Paragraph 13. No substantive change was made to any

3
 Following the August hearing, the Board concluded that

Green violated Rules 1.4(a), 1.4(b), 1.4(c), 1.15(a)(2), and

1.16(d) of the Rules of Professional Conduct. The Board

suspended Green’s license to practice law in the Commonwealth

for eighteen months. Green appealed the Board’s order

(Suspension Order) to this Court. By Order entered December

12, 2008, we stayed the Suspension Order pending the outcome

of the appeal.

At the June and August 2008 hearings (collectively, the

hearing), the Board considered the following two cases

certified from the May 18, 2006 Subcommittee meeting.

A. Matter of Kenneth B. Henley, Sr.
(Docket Number 06-070-0739)

Green represented Henley on charges of driving under the

influence, driving after having been declared a habitual

offender, and child neglect. Henley paid directly to Green

$7,500 in cash as an advanced legal fee. Green described the

fee arrangement as a “flat fee” because the majority of his

clients did not want to pay an hourly fee over the initial

deposit.

At the hearing, Green testified that he did not consider

a flat fee to be earned when he received it and that he

believed that he made periodic withdrawals at the rate of $250

of the provisions applicable in this case. For convenience,

4
per hour from Henley’s account as legal services were

provided. The Bar, however, introduced as evidence at the

hearing its Exhibit #20, Green’s client account ledger for

Henley, which showed $7,500 received on December 24, 2003,

$7,500 charged against the account on December 24, 2003, and

thereafter a balance of $0. The ledger also showed numerous

dates subsequent to December 24, 2003 with indications of

client conferences and court appearances without a concomitant

listing of the time expended or charges made to the account.

Green did not recall whether he notified Henley when Green

withdrew the $7,500 from the trust account.

The Bar investigator testified that Green said he put

flat fees in his general or office account. Green’s “office’s

policy [was] that the money would be deposited in the trust

account, initially.” Green asserted that he performed a

monthly reconciliation of the escrow account balance, but

Green did not present any evidence that he made a monthly

reconciliation of his trust account disbursement journals.

The Board found by clear and convincing evidence that

Green received $7,500 on December 24, 2003 and immediately

withdrew the money as having been earned based on the flat fee

charged when in fact the entire fee had not then been earned.

the current numbering is used in this opinion.

5
The Board determined that Green violated Rule 1.15(a)(2)

pertaining to the handling of client funds.

B. Matter of Kristen L. Beavers/Michael S. Eavey
(Docket Number 06-070-2259)

Green represented Beavers and Eavey in an action against

Allstate Insurance Company (Allstate) for a claim under an

insurance policy covering a vehicle they co-owned. Beavers

and Eavey claimed that their vehicle had been either

vandalized or stolen.

Eavey’s grandmother paid Green $2,500 for the

representation against Allstate. At the hearing before the

Board, only Eavey testified, as Beavers was ill in June and

unavailable in August. Eavey testified that he met with Green

only three times for “[m]aybe 10 minutes” over the course of

his representation from 2000 to 2006. According to Eavey,

Green did not inform him that a warrant in debt was filed

against Allstate on his and Beavers’ behalf, that in December

2000 there was a court date in the general district court,

that the lawsuit was removed to the circuit court, that

Allstate had propounded discovery to which Eavey needed to

respond, or that Allstate had filed a motion to compel. Eavey

also testified that Green did not inform him that Allstate’s

counsel had scheduled depositions to be taken on four separate

dates.

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 In August 2002, the circuit court to which the case had

been removed entered an order for counsel to appear on

November 20, 2002 for entry of a pre-trial order and

scheduling a trial date. Green did not provide Eavey with the

order, and did not appear on November 20, 2002. The circuit

court entered an order in December 2002 dismissing the case

without prejudice for failure of the parties to appear.

Despite the 2002 dismissal of the lawsuit, in November

2003, Green attempted to negotiate a settlement with Allstate

in the amount of $2,500. Allstate responded that the case had

been dismissed. Eavey testified that Green did not inform him

of the settlement proposal, and Eavey did not authorize

settlement. Eavey also testified that he met with Green in

November 2003 and demanded a refund of the $2,500, because

nothing had been done with his case and it had “been too

long.” Green told Eavey “to wait that the insurance company

puts those funds on hold for five years and then they’ll

settle.”

In December 2005, Beavers and Eavey wrote to Green and

demanded a return of their $2,500. At that point in time,

five years had elapsed since the case against Allstate had

been filed, three years since the case had been dismissed, and

two years since Green had attempted to “settle” the case.

Green did not refund any of the $2,500 to them. The Board

7
found by clear and convincing evidence that Green violated

Rule 1.4(a), (b), and (c), requiring attorney communication

with the client, and Rule 1.16(d), concerning termination of

an attorney’s representation of the client.

Green’s disciplinary record was introduced into evidence

for the Board’s consideration at the August 2008 hearing

without objection. The Board imposed an eighteen month

suspension, effective August 22, 2008. On October 23, 2008,

Green moved to set aside the summary order in the Henley and

Beavers/Eavey matters. Green argued that the Board lacked

subject matter jurisdiction due to the participation of Grant

A. Richardson (Richardson), who had represented Green in prior

disciplinary matters, on subcommittees that had certified

prior charges against Green. Green also argued that those

certifications led to a six month suspension and a forty-five

day suspension, imposed in 2007 and reflected on Green’s

disciplinary record. Green asserted that Richardson’s

participation on the subcommittees was in violation of the

Rules of Professional Conduct concerning conflicts of

interest. At oral argument on appeal, Green acknowledged that

Richardson last represented him in 1998.

Green’s counsel did not discover Richardson’s

participation on the 2004 and 2005 subcommittees until October

10, 2008. Green had “not complained about those whatsoever

8
until [his counsel] brought it to his attention and [they]

discussed it on October the 10th.” The Board unanimously

decided to overrule the motion to set aside the summary order.

On November 17, 2008, Green was served with the Suspension

Order entered on November 12, 2008 from which he presently

appeals.

ANALYSIS

Green assigns error to the Board’s order based on the

following: (1) not dismissing the cases when the Bar mailed

the Certification more than one year after the Subcommittee

voted to certify charges of misconduct, (2) using a

disciplinary record that was void because it contained

sanctions imposed by subcommittees on which Green’s former

attorney participated, (3) improperly allowing substitution of

Board members at the August 22, 2008 continuance of the

hearing, (4) entering the Suspension Order with the

endorsement of a designate of the Chairman of the Board, and

(5) finding that Green had violated any of the Rules of

Professional Conduct.

STANDARD OF REVIEW

Under an established standard of review of the Board’s

decision in a disciplinary proceeding, we conduct an

independent examination of the entire record. Pilli v.

Virginia State Bar, 269 Va. 391, 396, 611 S.E.2d 389, 391

9
(2005). We consider the evidence and all reasonable

inferences that may be drawn from that evidence in the light

most favorable to the Bar, the prevailing party in the Board

proceeding. Id. We accord the Board’s factual findings

substantial weight and we view those findings as prima facie

correct. Id. Although we do not give the Board’s conclusions

the weight of a jury verdict, we will sustain those

conclusions unless they are not justified by a reasonable view

of the evidence or are contrary to law. Id.

1. The Certification was Served One Year and Two Weeks
after the Meeting of the Subcommittee that
Certified the Charges of Misconduct

Part 6, § IV, ¶ 13-15(E) provides in part that “[i]f a

Subcommittee elects to certify a Complaint to the Board, the

Subcommittee Chair shall promptly mail a copy of the

Certification to the Clerk of the Disciplinary System, Bar

Counsel, the Respondent and the Complainant.” Green argues

that the Subcommittee’s determination was made on May 18,

2006, but the Certification was not promptly mailed in

compliance with the provisions of Subsection (G)(4), because

the Certification was mailed by Bar Counsel on May 31, 2007.

Although Green notes that Bar Counsel rather than the required

Subcommittee Chairman mailed the Certification, the thrust of

his argument is that he was prejudiced by the delay. In

arguing prejudice, Green points to the dissent to the

10
Suspension Order, which states, “we believe that a one year

and two week delay in notifying [Green] of the charges that

arose as early as 2000 . . . can be nothing but prejudicial.”

Green argues that witnesses called by the Bar conceded

they could not remember events that occurred over eight years

before the hearing. Green also argues that the delay between

alleged misconduct and a hearing resulted in a much harsher

disposition because his disciplinary record was enhanced by

other sanctions imposed between the time of misconduct and the

hearing.

The Bar argues that although there was a delay between

the Subcommittee determination and the mailing of the

Certification, Green did not establish that he was prejudiced

by the delay. The Bar contends that Green clearly knew of the

allegations of misconduct when he was notified by the Bar’s

May 19, 2006 letter, which contained the Bar’s investigative

reports of the four charges brought against him. The Bar

argues that Green was able to present his case, that Green

testified on his own behalf, and did not claim that his memory

was impaired by the passage of time. Furthermore, Green

presented 64 exhibits in his defense. The Bar also argues

that Green only pointed to one witness, Eavey, who, when his

memory was refreshed, said “done forgot now. This has been so

long ago.” But the Bar maintains that Eavey was able to

11
testify in considerable detail about the events in question,

and Green does not proffer how he was prejudiced by any lapse

in Eavey’s memory.

The Bar disagrees that Green was prejudiced by having an

enhanced disciplinary record due to the delay. The Bar argues

that Green’s disciplinary record dates back to 1997 and

includes multiple public reprimands and admonitions, in

addition to the six month and forty-five day suspensions in

2007. It is the Bar’s contention that had the sequence of

sanctions been reversed, Green might have received the same or

harsher discipline. The Bar asserts that it is speculation as

to what the result would have been had this matter been

considered before some of the other matters, and therefore

Green cannot demonstrate prejudice.

Part 6, § IV, ¶ 13-12(A) provides in part: “Except where

[Paragraph 13] provides specific time deadlines, substantial

compliance with the provisions hereof shall be sufficient, and

no Charge of Misconduct shall be dismissed on the sole ground

that any such provision has not been strictly complied with.”

We have previously considered the prompt mailing provision

presently located in Part 6, § IV, ¶ 13-15(E) to be a

procedural requirement and found that dismissal of charges

because of an eleven month delay in notice of certification

was inappropriate when the attorney was unable to demonstrate

12
how such delay caused him prejudice. Motley v. Virginia State

Bar, 260 Va. 251, 258, 536 S.E.2d 101, 104 (2000). Green has

not established how the delay in this case has caused him

prejudice. Green did not claim he was prejudiced in either

his own recollection of the events or in his presentation of

exhibits. Green did not demonstrate how Eavey’s purported

memory difficulties prejudiced him, and in fact, the Bar was

more prejudiced than Green by faulty memory of witnesses,

resulting in dismissal of multiple charges. Finally, it was

through Green’s filing of pleadings with this Court and

requests for continuances that the Board hearing was delayed

from October 26, 2007 until June 27, 2008.

We have previously admonished the Bar for the untimely

performance of certain of its responsibilities for

professional regulation in a prior proceeding against Green,

and the Court again states its disapproval of the Bar’s delay

in the certification of ethical complaints from a

subcommittee. See Green v. Virginia State Bar, 274 Va. 775,

786, 652 S.E. 2d 118, 123 (2007). However, absent a showing

of prejudice by the attorney, “[a]ny betrayal of the trust

which the attorney is sworn to keep demands appropriate

discipline; a delay in prosecution, without more, cannot

override this necessity.” In re Williams, 513 A.2d 793, 796

(D.C. 1986). “If the conduct of a member of the bar

13
disqualifies [the attorney] from the practice of law, it would

not be in the public interest to dismiss the disciplinary

proceedings for no reason other than the Bar’s failure to

prosecute [him] with the proper dispatch.” Id. at 797

(quoting In re Weinstein, 254 Or. 392, 394, 459 P.2d 548, 549

(1969)). The burden of demonstrating prejudice remains on

Green, and he failed to establish how he was prejudiced by the

delay in this case.

The record clearly reflects that the public was

prejudiced by the lapse of memory of several of the Bar

witnesses, which contributed to the dismissal of some of the

misconduct charges against Green. Therefore, the Bar operates

at its own peril in failing to comply with the same standard

of professionalism that it expects from the lawyers it

regulates.

2. Board’s Consideration of Green’s Disciplinary Record

In determining the appropriate sanction, the Board

considered Green’s disciplinary record, which reflects a six

month suspension and a forty-five day suspension resulting

from subcommittee certifications that took place in 2004 and

2005. Green’s former attorney, Richardson, participated on

the subcommittees that certified the charges of misconduct.

Green argues that his disciplinary record was void due to

the inclusion of those sanctions, because Richardson was

14
ineligible to participate in subcommittee determinations

involving Green. According to Green, Richardson’s

participation was a conflict of interest, in violation of the

Rules of Professional Conduct, and his ineligibility to

participate resulted in a lack of a quorum as required by what

is now Part 6, § IV, ¶ 13-7(B)-(C). Green therefore argues

that any certification by a subcommittee on which Richardson

sat is void for lack of subject matter jurisdiction. Thus,

Green contends that the Bar should not have been permitted to

use his disciplinary record, which reflected sanctions arising

out of void certifications, to induce the Subcommittee’s

certification on May 18, 2006 and, later, to enhance his

sanction. Green maintains that the use of his disciplinary

record by the Subcommittee should have resulted in dismissal

by the Board, and that the resultant Suspension Order is void

ab initio.

The Bar argues that Green is alleging an irregularity of

procedure, not a lack of subject matter jurisdiction. The Bar

cites Barrett v. Virginia State Bar, 272 Va. 260, 634 S.E.2d

341 (2006) for the proposition that an objection to the

qualification of subcommittee members must be timely made or

it is waived. The Bar also relies on what is now Part 6,

§ IV, ¶ 13-12(B), which provides that substantial compliance

with the procedures of this Paragraph is sufficient, except

15
“where specific deadlines are provided, such deadlines shall

be jurisdictional.” Continuing, the Bar argues that the

regulations on quorum and qualifications of subcommittee

members do not contain specific time deadlines and thus are

not jurisdictional.

The Bar contends that any argument regarding Richardson’s

participation in the prior subcommittees and the inclusion of

charges certified by those subcommittees on Green’s

disciplinary record is waivable, and has been waived by Green.

The Bar asserts that Green did not object to Richardson’s

participation on any subcommittee and did not object to the

admission of his disciplinary record in the present case.

We agree with the Bar that this issue does not involve

subject matter jurisdiction and has been waived by Green.

We have stated:

The term jurisdiction embraces several concepts
including subject matter jurisdiction, which is
the authority granted through constitution or
statute to adjudicate a class of cases or
controversies; territorial jurisdiction, that is,
authority over persons, things, or occurrences
located in a defined geographic area; notice
jurisdiction, or effective notice to a party or
if the proceeding is in rem seizure of a res; and
‘the other conditions of fact must exist which
are demanded by the unwritten or statute law as
the prerequisites of the authority of the court
to proceed to judgment or decree.’

Morrison v. Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755

(1990) (quoting Farant Investment Corp. v. Francis, 138 Va.

16
417, 427-28, 122 S.E.2d 141, 144 (1924)) (emphasis added);

accord Porter v. Commonwealth, 276 Va. 203, 228, 661 S.E.2d

415, 426 (2008).

The Bar was created in 1938 by the General Assembly as an

administrative agency of this Court. Code § 54.1-3910

establishes the Bar as an administrative agency “for the

purpose of investigating and reporting violations of rules and

regulations adopted by the Court under [Title 54.1, Subtitle

IV, Chapter 39, Article 2].” Issues regarding the composition

of Board subcommittees do not divest the Bar of this

jurisdiction. Objections to such composition are therefore

waived if not timely made.

In Barrett, the attorney claimed that the three-judge

panel erred in denying his motion to dismiss all charges

against him because a member of the subcommittee that

certified the charges was “not impartial” and “was biased.”

272 Va. at 267, 634 S.E.2d at 344. The attorney raised this

issue for the first time before the three-judge panel, and not

before the subcommittee, although he was aware of the alleged

conflict at that time. Id. We held that the circuit court

properly determined that the attorney had waived this issue.

Id.

As in Barrett, Green did not object to Richardson’s

participation on the subcommittees, or to the use of his

17
disciplinary record in this case, in a timely manner. The

subcommittee meetings to which Green objects took place on

April 15, 2004, June 16, 2005, June 21, 2005, and February 24,

2006. As an exhibit to his brief, Green appended notices of

these meetings, several of which are certifications. Each

notice clearly states that Richardson was a member of the

subcommittee that considered the charges of misconduct against

Green. In addition, in this Court’s opinion rendered in

Green’s previous appeal from disciplinary proceedings, issued

on November 2, 2007, we set forth that Richardson was the

subcommittee chair at the June 16, 2005, June 21, 2005, and

February 24, 2006 subcommittee meetings. Green, 274 Va. at

780-81, 652 S.E.2d at 120.

Despite Green’s knowledge of Richardson’s participation

in the subcommittee determination that resulted in sanctions

included in his disciplinary record, Green did not lodge an

objection to Richardson’s participation until October 23,

2008, when he moved to set aside the summary order in the

Henley and Beavers/Eavey matters. Prior to Green’s October

10, 2008 meeting with counsel, he had “not complained about

[the 2004 and 2005 subcommittees] whatsoever.” Green argued

on October 23, 2008, for the first time, and before a

different panel of the Board than the panels that held the

June and August 2008 hearings, that the Board lacked subject

18
matter jurisdiction due to Richardson’s participation and the

subcommittees’ consequently void certifications. Moreover,

Green did not object to the introduction of his disciplinary

record at the August 2008 hearing when disposition of the

charges was made. We hold that the Board correctly decided to

overrule Green’s motion to set aside the Suspension Order on

this basis, as Green’s objection was not timely made.

We note that effective January 1, 2007, this Court

amended Part 6, § IV in what is now Paragraph 13-14(E) to

avoid the need for a separate hearing on whether a

subcommittee member has a conflict of interest. Part 6, § IV,

¶ 13-14(E) now clearly provides that “[a]ny member or former

member of a District Committee or the Board shall be

ineligible to serve in a Disciplinary Proceeding in which

. . . [t]he District Committee or Board member previously

represented the Respondent.”

3. Substitution of Board Members at August 2008 Hearing

Green argues that the Board erred by failing to document

the inability of three Board members who sat at the June 2008

hearing to be present at the August 2008 continuation of that

hearing. Green contends that the Board was therefore in

violation of Part 6, § IV, ¶ 13-18(Q), which provides:

Whenever a hearing has been adjourned for any
reason and one or more of the members initially
constituting the quorum for the hearing are

19
 unable to be present, the hearing of the matter
may be completed by furnishing a transcript of
the subsequent proceedings conducted in one or
more member’s absence to such absent member, or
substituting another Board member for any absent
member and furnishing a transcript of the prior
proceedings in the matter to such substituted
member(s).

Green asserts that substantial compliance with what is

now Part 6, § IV, ¶ 13-18(Q) was lacking because three of the

five Board members on August 22, 2008 had to rely on a

transcript of the June 2008 hearing to make their

determination, and no valid reason was given for the absence

of the original members.

The Bar argues that it fulfilled the requirements of Part

6, § IV, ¶ 13-18(Q) by providing the substituted Board members

with a transcript of the June 2008 hearing. According to the

Bar, the Board was not required to note or document the reason

for the inability of members to be present.

We agree with the Bar. At the August 2008 hearing, the

chairman stated, “we do have new members on the panel” and

“ask[ed] each member of the panel to identify himself or

herself for the record.” The new members had been provided a

transcript of the June 2008 hearing, as well as a copy of the

entire record. Nothing more was required of the Board in

order to substitute Board members for the absent members, in

compliance with Part 6, § IV, ¶ 13-18(Q).

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 4. Entry of the Suspension Order with the Endorsement
of a Designate of the Chairman of the Board

Green argues that the Suspension Order, entered on

November 12, 2008, was invalid because it was signed by James

Banks, who was neither the Chairman of the Board nor a member

on that date. 4 Pursuant to the provision now found in Part 6,

§ IV, ¶ 13-18(P), “[u]pon disposition of a matter, the Board

shall issue the Summary Order. Thereafter, the Board shall

prepare the Memorandum Order. A Board member shall prepare

the Summary Order and Memorandum Order for the signature of

the Chair or the Chair’s designee.” Banks served as the chair

of both the June 2008 and August 2008 panels.

The Bar argues that Green waived this argument by failing

to inform the Board of his objection to Banks’ authority to

enter the Suspension Order. We agree with the Bar. Since

Green raises his objection for the first time on appeal to

this Court, we will not consider this issue. Rule 5:25.

5. Green’s Violation of the Rules of Professional Conduct

Green argues that the Board erred in finding any

violations of the Rules of Professional Conduct. Part 6,

§ IV, ¶ 13-18(K) provides that at a disciplinary hearing

before the Board, the Bar must present clear and convincing

evidence to prove a violation of the Rules.

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 In the Henley matter, Green contends that the evidence

established there was no dispute regarding escrowed funds or

fees. Green argued that funds paid to him by Henley were

placed in escrow and withdrawn as earned, and that there was

no evidence that Green violated Rule 1.15(a)(2). Rule 1.15

(a) and its subpart(2) state, in part:

All funds received or held by a lawyer . . . on
behalf of a client . . . shall be deposited in
one or more identifiable escrow accounts . . .
and no funds belonging to the lawyer . . . shall
be deposited therein except as follows:

. . .

(2) funds belonging in part to a client and in
part presently or potentially to the lawyer . . .
must be deposited therein, and the portion
belonging to the lawyer . . . must be withdrawn
promptly after it is due.

The Bar argues that the Board had sufficient evidence to

find Green’s violation of the Rule by clear and convincing

evidence. Henley paid Green $7,500 in cash to represent him,

which Green considered a “flat fee.” Green testified that he

did not know whether the $7,500 was deposited into his escrow

account. Moreover, the Bar’s investigator testified that

Green admitted depositing flat fees into his general office

account and did not differentiate between a flat fee and a

retainer. The Bar maintains that its Exhibit #20, the account

4
Banks resigned effective June 30, 2008, though his term
was not set to expire until 2009.

22
ledger tracking Green’s activity on the Henley case, shows a

payment and a charge of $7,500 on December 24, 2003. The

exhibit does not show periodic withdrawals of fees earned at a

rate of $250 per hour, as alleged by Green. Accordingly, the

Bar contends the Board correctly ruled that funds were

deposited into escrow and withdrawn “immediately” without

being earned. Applying the standard of review set forth

above, we view the evidence in a manner consistent with the

Bar’s position and hold that the Board did not err in finding

Rule violations in the Henley matter by clear and convincing

evidence.

In the Beavers/Eavey matter, Green argues that only

Beavers was his client, as she was the only party to the

insurance contract with Allstate, and therefore, the Bar’s

failure to obtain her testimony resulted in insufficient

evidence to support a finding that Green violated Rules 1.4

and 1.16, regarding duties owed by lawyers to their clients.

Green maintains that the Board erroneously concluded that he

represented both Beavers and Eavey against Allstate.

Based on our independent examination of the entire

record, viewing the evidence in the light most favorable to

the Bar, the evidence shows that Green represented both

Beavers and Eavey in the insurance litigation. Green conceded

at the June 2008 hearing that he filed the lawsuit for both

23
Beavers and Eavey, and the warrant in debt listed both Beavers

and Eavey as plaintiffs. Green also testified about meetings

he held with both Beavers and Eavey. Green stated that

“[t]hey would come in all the time.” We give the Board’s

factual finding that Green represented both Beavers and Eavey

substantial weight, and view it as prima facie correct. Green

has failed to sufficiently challenge this finding of fact. We

therefore hold that the Board did not err in finding Rule

violations in the Beavers/Eavey matter by clear and convincing

evidence.

CONCLUSION

For the foregoing reasons, we will affirm the Board’s

order suspending Green’s license to practice law for eighteen

months.

Affirmed.

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