PRESENT: Carrico, C.J., Compton, Lacy, Keenan, Koontz, and
Kinser, JJ., and Whiting, Senior Justice
SA'AD EL-AMIN
OPINION BY
v. Record No. 981994 SENIOR JUSTICE HENRY H. WHITING
April 16, 1999
VIRGINIA STATE BAR, ex rel.
THE THIRD DISTRICT COMMITTEE
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Clifford R. Weckstein, Chief Judge Designate, Dixon L. Foster
and J. Warren Stephens, Judges Designate
Asserting that Sa'ad El-Amin, a lawyer licensed to practice
in Virginia, had violated certain of its disciplinary rules, the
Virginia State Bar initiated disciplinary proceedings against
him. The preamble to the Virginia Code of Professional
Responsibility states, in pertinent part:
The Virginia Code of Professional Responsibility
consists of three separate but interrelated parts:
Canons, Disciplinary Rules, and Ethical
Considerations.
The Canons are statements of axiomatic norms,
expressing in general terms the standards of
professional conduct expected of lawyers in their
relationships with the public, with the legal system,
and with the legal profession. They embody the general
concepts from which the Disciplinary Rules and the
Ethical Considerations are derived.
The Disciplinary Rules, unlike the Canons and
Ethical Considerations, are mandatory in character, as
stated in DR 1-102(A)(1). The Disciplinary Rules state
the minimum level of conduct below which no lawyer can
fall without being subject to disciplinary action.
Rules of Supreme Court of Virginia, Pt. 6, § II.
In a hearing before a three-judge court conducted under the
provisions of Code § 54.1-3935, the court concluded that El-Amin
had committed 15 violations of 9 of the disciplinary rules in
his representation of Annie H. Fant, Grace R. Williams, and
Vernon El-Amin, and the court suspended his license to practice
law for a period of four years. El-Amin exercised his statutory
right to appeal eight of those findings involving his alleged
misconduct, competence and promptness, causing prejudice to a
client, failure to refund advanced fees, and failure to avoid
the appearance of professional impropriety.
In reviewing the findings of a three-judge court in an
attorney disciplinary proceeding, we use the same standard that
we apply to the findings of disciplinary boards:
[O]n review we will make an independent examination of
the whole record, giving the factual findings . . .
substantial weight and viewing them as prima facie
correct. While not given the weight of a jury
verdict, those conclusions will be sustained unless it
appears they are not justified by a reasonable view of
the evidence or are contrary to law.
Myers v. Virginia State Bar, 226 Va. 630, 632, 312 S.E.2d 286,
287 (1984)(quoting Blue v. Seventh District Committee, 220 Va.
1056, 1061-62, 265 S.E.2d 753, 757 (1980)(appeal from
disciplinary board)). And, consistent with well-established
appellate principles, we view the evidence and all reasonable
inferences that may be drawn therefrom in the light most
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favorable to the State Bar, the prevailing party in the trial
court. Gunter v. Virginia State Bar, 238 Va. 617, 619, 385
S.E.2d 597, 598 (1989).
I. The Fant Matter
Considering the cases arising under El-Amin's
representation of each client, we begin with his representation
of Fant. Fant employed El-Amin in June 1994 to represent her in
an employment discrimination case. El-Amin agreed to begin
working on the case immediately and required Fant to advance a
retainer fee of $4,000, which she did by check. He indicated to
Fant that he would withdraw funds as he worked on the case and
told Fant that he would deposit the retainer in an escrow
account. Instead, El-Amin cashed the check and produced no
record of having deposited the proceeds in any account.
During the following five months, El-Amin had little
contact with Fant, despite her numerous telephone calls,
letters, and visits to his office. Because of El-Amin's failure
to respond to her inquiries, Fant wrote him a letter in late
November 1994 discharging him as her counsel and asking for a
refund of the retainer. El-Amin telephoned Fant several days
later and, admitting to her that he had not done certain work on
the case as promised, agreed to refund "the money" by mail on
December 5.
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Fant testified that when El-Amin did not refund the money
as promised, she sued him in the General District Court and
mailed him a copy of the warrant. Thereafter, El-Amin contacted
Fant and promised to pay "$4,000 on December the 20th, 1994, at
11 a.m." Fant went to El-Amin's office at the specified time
and he told her that because his wife, who was his law partner,
had been hospitalized, he had "taken [his wife's] load," and
further that he could not charge Fant any money because he had
done no work on her case.
However, El-Amin refunded only $1,000 at that time. In
response to Fant's question of why the payment was in that
amount in view of the fact that the $4,000 deposit was "supposed
to be in escrow," El-Amin said "I don't have the money." El-
Amin promised to pay the additional $3,000 on January 11, 1995
at 11:00 a.m.
When El-Amin failed to refund the remaining $3,000 on
January 11, Fant wrote to the State Bar asking for its help in
getting her refund. Although Fant delivered a copy of her
letter to El-Amin's office on January 12, she received no
response from him.
On January 17, Fant retained attorney Bradley O. Wein to
collect the balance. El-Amin agreed to see Wein at a fixed time
on January 23, 1995 in El-Amin's office and to pay the $3,000
balance to Wein at that time. However, El-Amin was not at his
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office at the appointed time and did not refund the promised
sum.
Only after Wein had generated a file of over 1,000 pages,
expended more than 100 hours during a period of 18 months, and
incurred costs of $754.72 did El-Amin refund $2,500 of the
$3,000 balance in settlement of Fant's claim. After the
deduction of Wein's fee and expenses, Fant realized only $911.95
of the $3,000 balance of her deposit.
El-Amin has not appealed three of the court's four findings
in the Fant matter. They are that he violated the following
disciplinary rules: (1) DR 9-102(A)(2), which requires that
client funds be deposited in an identifiable trust account; (2)
DR 9-102(B)(3), which requires that a lawyer maintain "complete
records of all funds, securities, and other property of a client
coming into the possession of the lawyer and render appropriate
accounts to his client regarding them"; and (3) DR 9-102(B)(4),
which requires that an attorney "[p]romptly pay or deliver to
the client . . . funds . . . in the possession of the lawyer
which such person is entitled to receive."
El-Amin contends, however, that the evidence is
insufficient to establish, clearly and convincingly, that he
violated DR 1-102(A)(3), which proscribes a lawyer's commission
of a "deliberately wrongful act that reflects adversely on the
lawyer's fitness to practice law." We disagree with El-Amin.
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In our opinion, the evidence that El-Amin cashed Fant's
$4,000 retainer check, used the proceeds without earning the
fee, and delayed refunding the retainer fee, sufficiently
supports the finding that he committed "a deliberately wrongful
act that reflects adversely on [his] fitness to practice law,"
in violation of DR 1-102(A)(3). Accordingly, we will affirm the
trial court's finding on that issue.
II. The Williams Matter
We next consider the charges relating to El-Amin's
representation of Williams, which began in early May of 1994.
Williams, like Fant, employed El-Amin to represent her in an
employment discrimination case.
As in the Fant matter, El-Amin appeals only one of the
findings of disciplinary rule violations in his representation
of Williams. He has not appealed the court's findings that, in
representing Williams, he violated the pertinent provisions of
the following disciplinary rules: (1) DR 2-108(D), which
provides that, "[u]pon termination of representation, a lawyer
shall take reasonable steps for the continued protection of a
client's interests, including . . . refunding any advance
payment of fee that has not been earned."; (2) DR 6-101(B),
which states that a "lawyer shall attend promptly to matters
undertaken for a client"; (3) DR 6-101(C), which provides that a
"lawyer shall keep a client reasonably informed about matters in
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which the lawyer's services are being rendered."; and (4) DR 9-
102(B)(4), which requires that a lawyer promptly pay to a client
funds the client is entitled to receive.
Thus, the appeal in the Williams matter is limited to the
court's finding that El-Amin violated DR 1-102(A)(4). It
prohibits a lawyer from engaging "in conduct involving
dishonesty, fraud, deceit, or misrepresentation which reflects
adversely on a lawyer's fitness to practice law."
At the initial consultation, El-Amin told Williams his fee
would be $7,000. When she told him that she did not have "that
kind of money," but would ask her relatives to help her make
payments on the fee, El-Amin agreed that he would begin working
on the case. Williams and her relatives paid El-Amin over
$1,700. However, despite numerous office visits and telephone
calls, Williams was unsuccessful in her attempts to see or talk
to El-Amin about what he had done during the ensuing five-month
period. Consequently, Williams wrote El-Amin on November 2,
1994, discharging him as her counsel and asking for a refund of
the amounts paid on the fee. The letter was delivered by
certified mail to El-Amin's office and signed for by his
secretary on November 3, 1994. El-Amin did not respond to the
letter.
El-Amin testified that his secretary neither gave him the
certified letter nor told him of Mrs. Williams' office visits
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and that he did not know he "had a problem with Mrs. Williams
until after [he] received a complaint from the Virginia State
Bar." Although El-Amin claimed he had done some research on the
Williams case, he produced no records to substantiate his
testimony and admitted that "the entire situation fell through
the cracks. And it just did. And I don't have an explanation."
Yet when interviewed during a preliminary investigation
about his failure to refund the fee, El-Amin told a State Bar
investigator that he had not refunded the money because "he felt
like he had earned the fees" up to the time of his discharge.
Although El-Amin denied making this statement to the
investigator and claimed that the money was still in an escrow
account, at trial El-Amin produced no records of any such
account and could only say that he "assume[d]" the money was
still there.
In our opinion, this evidence clearly and convincingly
supports the conclusion that El-Amin violated DR 1-102(A)(4) by
using the retainer without earning it and by attempting to
deceive the investigator in claiming the retainer had been
earned. That is "conduct involving dishonesty, fraud, deceit,
or misrepresentation which reflects adversely on [El-Amin's]
fitness to practice law". DR 1-102(A)(4). Hence, we will
affirm this finding.
III. The Vernon El-Amin Matter
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Finally, we consider El-Amin's dealings with his client
Vernon El-Amin (Vernon), who is of no relation to him. At the
time of their contract in 1990, Vernon was incarcerated
following his convictions for four murders. Vernon was
represented by other counsel in those criminal cases.
El-Amin and Vernon agreed that if Vernon's pending appeal
of those convictions was unsuccessful, El-Amin would represent
him in a habeas corpus proceeding claiming ineffective
assistance of counsel. In the meantime, El-Amin was to secure
the release of Vernon's 1986 Lincoln Continental from police
impoundment, have the car put into condition to sell, deduct the
cost thereof, and hold the net proceeds of sale as a retainer
fee.
As it turned out, the appeal by other counsel was
successful and El-Amin did little work on this matter. However,
Vernon was again convicted on retrial, remained in confinement,
and asked El-Amin to keep the retainer as a credit for future
representation.
El-Amin obtained the car, had it repaired, and began using
it himself. He later decided to trade the car for a newer one
and received a credit of $4,636.04 on the purchase price of the
newer car. The newer car was titled in El-Amin's name and he
eventually executed a lien on that car in favor of another
client. El-Amin did not note in his records or on the title to
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the newer car that he held either the 1986 car or Vernon's
interest in the proceeds, i.e., the credit, in trust. Nor did
El-Amin deposit funds in his trust account once he received the
credit. Although El-Amin testified in another proceeding in
July 1991 that the agreed value of the car was "$10,000, less
any amounts necessary to repair it and put it in marketable
condition," he testified before the three-judge court in 1988
that the agreed value was $6,500 less the cost of repairs.
El-Amin contends that the court erred in finding he had
violated six disciplinary rules during his representation of
Vernon El-Amin. We do not agree with El-Amin. We conclude that
clear and convincing evidence supports all of the trial court's
findings.
Dealing first with violations of DR 1-102(A)(3) and DR 1-
102(A)(4), discussed above, involving a "deliberately wrongful
act," deceit and misrepresentation, we reject El-Amin's argument
that there is a distinction between his activities and the
activities of other lawyers who committed crimes and were
disciplined. As we pointed out in Gunter, 238 Va. at 621, 385
S.E.2d at 600, "conduct may be unethical, measured by the
minimum requirements of the Code of Professional Responsibility,
even if it is not unlawful." The evidence shows that El-Amin
not only personally used Vernon's car, but he also traded it for
a newer one without reflecting the resulting $4,636.04 credit on
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the title to the newer car. In our opinion, this sufficiently
supports the trial court's findings of violations of both of
these disciplinary rules.
We also conclude that the evidence was sufficient to show
that El-Amin prejudiced Vernon's rights by using and disposing
of the car in violation of DR 7-101(A)(3). That disciplinary
rule provides that a lawyer shall not intentionally "[p]rejudice
or damage his client during the course of the professional
relationship." A comparison between El-Amin's 1991 testimony
and his 1998 testimony concerning the value of the car, coupled
with his decision not to reflect the unearned retainer or
Vernon's consequent interest in the newer car, sufficiently
indicates that Vernon's rights were prejudiced in this matter.
It is of no consequence that El-Amin later earned the fee by
handling other matters for Vernon, as he argues. The fact is
that at the time in question, Vernon's rights were prejudiced by
El-Amin's activities.
The final group of charges arises under Canon 9, which
provides: "A Lawyer Should Avoid Even the Appearance of
Professional Impropriety." One of the charges under this canon
involves a violation of DR 9-102(A), which requires a lawyer to
deposit "[a]ll funds received or held by the lawyer or law firm
on behalf of a client . . . in one or more identifiable trust
accounts."
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El-Amin contends that he had no obligation to deposit funds
to reflect the credit in question since the word "funds" as used
in the rule refers to money and that, since he did not obtain
money from the trade, but only obtained a credit, there could be
no violation of DR 9-102(A). We reject this contention for the
following reasons.
The form of the retainer fee changed when El-Amin, who held
Vernon's car as a bailee for the purpose of securing the payment
of legal fees to be incurred in the future by Vernon, converted
the car into a credit, which El-Amin received on the purchase of
his new car. Vernon had an interest in that credit because it
took the place of his car as the retainer fee, or fund, for the
payment of the future legal fees.
The terms "fund or funds" have been defined in part as
"[a]n asset or group of assets set apart for a specific
purpose." Black's Law Dictionary 673 (6th ed. 1990). Because
the credit represented the retainer fee, it became a "fund" set
aside for a specific purpose, the payment of fees to be billed
by El-Amin in the future.
Considering the scope and purpose of the Code of
Professional Responsibility, we do not think that the term
"funds" as used in DR 9-102(A) is confined to items such as
"money" or "cash," as El-Amin contends. Indeed, we have not
limited the term to money or cash, but, instead, have used the
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term "fund" or "funds" in a generic sense in a number of
situations. See, e.g., Somers v. Godwin, 182 Va. 144, 147, 27
S.E.2d 909, 910 (1943)(applying word "funds" to intangible
personal property); Fireman's Mutual Aid Assoc. v. Commonwealth,
166 Va. 34, 36, 184 S.E. 189, 190 (1936)(applying word "funds"
to "bonds, notes, etc., and money"); Rixey's Ex'rs v.
Commonwealth, 125 Va. 337, 343-44, 99 S.E. 573, 574
(1919)(describing intangible property held by executor as "funds
arising from . . . the sales of real and personal property to
others").
In sum, given the context and purpose of the disciplinary
rules, and our previous uses of the words "fund" and "funds," it
is our opinion that, under the facts of this case, the credit
El-Amin received upon trading Vernon's car became "funds" within
the meaning of DR 9-102(A)(2) and that the rule required El-Amin
to deposit a sum representing that credit into his trust
account.
The evidence also supports the conclusion that El-Amin
violated DR 9-102(B)(2), which requires that a lawyer
"[i]dentify . . . properties of a client . . . and place them in
a . . . place of safekeeping as soon as practicable." El-Amin
testified that "at first I was going to drive the vehicle.
However, and I drove it." But after an encounter with a man who
"look[ed] very angry" and asked him if the car was Vernon's and
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if El-Amin was related to him, El-Amin decided, "I don't want to
have anymore parts of this. So I rapidly ran out to Capital
Lincoln and said, 'What will you give me for this vehicle.'"
El-Amin's personal use of the car and his failure to document
Vernon's interest in the credit El-Amin received for selling the
car sufficiently show that El-Amin failed to identify the car or
the proceeds from its sale as Vernon's property or keep either
in "a place of safekeeping," all in violation of DR 9-102(B)(2).
Finally, we consider the violation of DR 9-102(B)(3). It
requires a lawyer to "[m]aintain complete records of all funds,
securities, and other properties of a client coming into the
possession of the lawyer and render appropriate accounts to his
client regarding them." El-Amin simply argues that "[t]he
evidence established that El-Amin maintained records regarding
the car given by Vernon El-Amin," but El-Amin does not say what
those records were.
El-Amin was the only witness who testified about the
records regarding Vernon's car. El-Amin's testimony indicated
that he regarded his record-keeping obligation to Vernon as
limited to accounting for the repair expenditures and that this
obligation was discharged by notations of Vernon's name on the
checks he had written on his attorney trust account to pay for
the repairs to Vernon's car. Although no monies had been
deposited in the trust account in Vernon's name, El-Amin said he
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charged the amounts of these checks against other clients'
retainer fees that had been earned by El-Amin. El-Amin says
nothing about his obligation to keep a record of the agreed
amount of the retainer or the work El-Amin had done to earn the
retainer. We conclude that this evidence sufficiently supports
the conclusion that El-Amin violated the provisions of DR 9-102
(B)(3).
IV. Length of Suspension
El-Amin argues that "[t]he trial court abused its
discretion in failing to consider El-Amin's mitigating
circumstances." He overlooks the following statement made by
the court at the time the sanctions were imposed. "We have
taken into account the evidence in aggravation and the evidence
in – and argument in mitigation." Accordingly, we reject El-
Amin's argument.
Even so, El-Amin contends that the four-year suspension was
unwarranted in view of the mitigating evidence of his wife's and
daughter's illnesses during the periods in question, the
revision of his office procedures to provide that he alone would
sign for certified letters addressed to him, his remorse, and
his refunds to Fant despite having done considerable work for
her. The State Bar responds that El-Amin's "revision" of his
office procedures was merely an avoidance of future
responsibility, and that his alleged remorse was put in question
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because even after protracted litigation he refunded only a
portion of Fant's retainer. These considerations may well have
diminished the effect of any mitigating evidence presented by
El-Amin.
El-Amin also contends on brief that "[t]here was no
evidence of a pattern of misconduct by El-Amin." In response,
the State Bar notes the evidence in the record of his "prior
record since 1987 includ[ing] no less than seven founded
disciplinary violations relating, like [these], to client
neglect; failure to keep clients informed; failure to account
for fees collected; and failure to refund unearned fees, among
other things." We think this evidence is sufficient to
establish a pattern of misconduct.
In sum, our independent review of the entire record
discloses that the court did not abuse its discretion in
suspending El-Amin's license for four years.
V. Conclusion
Finding no merit in El-Amin's assignments of error, we will
affirm the judgment of the court below suspending El-Amin's
license to practice law for a period of four years.
Affirmed.
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