Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton,∗ S.J.
NICHOLAS ASTOR PAPPAS
v. Record No. 052136 OPINION BY JUSTICE DONALD W. LEMONS
April 21, 2006
VIRGINIA STATE BAR
FROM THE VIRGINIA STATE BAR DISCIPLINARY BOARD
In this appeal of right, Nicholas Astor Pappas ("Pappas")
challenges the rulings of the Virginia State Bar Disciplinary
Board ("Board") in a proceeding in which the Board suspended
Pappas' license to practice law for a period of six months.
I. Background
On August 15, 1999, Rochelle McCarl ("McCarl") was
injured in an automobile accident. Soon thereafter, McCarl
employed Pappas to represent her concerning a personal injury
claim arising from this accident. On February 28, 2000,
McCarl was injured in another automobile accident, this time
while riding in a car driven by her boyfriend, Kenneth Randall
Poe ("Poe"). Poe was charged with violating Code §§ 18.2-266
(driving while intoxicated), 46.2-324 (failure to notify the
Department of Motor Vehicles of a change in address), 46.2-852
(reckless driving), 46.2-1043 (operating a motor vehicle with
defective equipment), and 46.2-1094 (failure to wear a seat
∗
Senior Justice Compton participated in the hearing and
decision of this case before his death on April 9, 2006.
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belt). Poe was directed to appear in the General District
Court of the City of Fredericksburg on March 14, 2000.
For reasons that are unclear in the record, Poe's hearing
did not occur on March 14. On or about May 4, 2000, based on
a referral by McCarl, Poe approached Pappas and asked Pappas
to represent him. Pappas agreed. At about the same time,
McCarl and Poe, who were living together, moved from Virginia
to New Jersey. Later that year, McCarl and Poe moved from New
Jersey to Tennessee.
On June 22, 2000, the hearing on Poe's February 28
violations was held and Pappas appeared on behalf of Poe
before the General District Court of the City of
Fredericksburg. Pappas entered a plea of guilty on Poe's
behalf and the district court found Poe guilty of driving
while intoxicated under Code § 18.2-266. All of the other
charges were either dismissed or nolle prossed. Pappas
informed Poe of the district court's action in a letter dated
June 26, 2000.
On July 7, 2000, Pappas wrote the Virginia State Police
to request information regarding the February 28 accident.
Pappas stated in the letter that he represented McCarl. On
September 26, 2000, McCarl signed an agreement with Pappas for
Pappas to represent McCarl in her claim for personal injuries
against Poe. On September 27, 2000, Pappas had Poe execute a
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document entitled, "Waiver," stating that Poe was waiving any
possible conflicts that might arise from the representation of
McCarl by Pappas in a suit against Poe regarding injuries
McCarl sustained in the February 28 accident.
Subsequently, Pappas filed a motion for judgment on
behalf of McCarl against Poe in the Circuit Court for the City
of Fredericksburg on February 27, 2002. Poe was represented
by John W. Hartel ("Hartel"), and on October 11, 2002, Hartel
requested that Pappas be removed as McCarl's counsel. On
March 4, 2003, the Circuit Court for the City of
Fredericksburg found that Pappas' conduct violated Rule 1.7 of
the Virginia Rules of Professional Conduct, "Conflict of
Interest: General Rule," and removed Pappas as counsel for
McCarl. On March 5, 2003, Hartel filed a complaint with the
Virginia State Bar ("Bar") against Pappas.
On November 30, 2004, the Sixth District Committee
certified its determination to the Board that Pappas' conduct
violated Rule 4.3(b)1 and Rule 8.4(c)2 of the Rules of
Professional Conduct. As part of the facts cited in support
1
"A lawyer shall not give advice to a person who is not
represented by a lawyer, other than the advice to secure
counsel, if the interests of such person are or have a
reasonable possibility of being in conflict with the interest
of the client."
2
"It is professional misconduct for a lawyer to: . . .
engage in conduct involving dishonesty, fraud, deceit or
3
of its determination, Paragraph 5 of the certification stated,
"Mr. Poe ha[s] moved to Tennessee and did not appear for the
DUI hearing, but Mr. Pappas appeared and, with Mr. Poe's
consent, entered a guilty plea on his client's behalf." In
his answer, Pappas admitted that Paragraph 5 was correct.
Pappas' hearing before the Board commenced on April 22,
2005. In the course of the hearing that day, counsel for the
Bar moved for a continuance in order to obtain the retainer
agreement between McCarl and Pappas in McCarl's suit against
Poe because the date it was signed was a material fact.
Pappas objected, but the continuance was granted.
Prior to the commencement of the hearing, the Bar had
been unable to locate Poe; however, subsequent to the granting
of the continuance, the Bar located Poe and deposed him. The
Board re-convened on July 22, 2005. In addition to the
retainer agreement, Counsel for the Bar sought to introduce
the deposition testimony of Poe and amend the certification
from the Sixth District Committee. In his deposition, Poe
stated that he did not authorize Pappas to enter a guilty plea
on his behalf. Because of this testimony, the Bar sought to
amend Paragraph 5 of the certification so that it would read,
"Mr. Poe had moved to Tennessee and did not appear for the DUI
misrepresentation which reflects adversely on the lawyer's
fitness to practice law."
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hearing, but Mr. Pappas appeared and, allegedly with Mr. Poe's
consent, entered a guilty plea on his client's behalf."
Pappas objected to both the deposition testimony and the
amendment of the certification, but his objections were
overruled. The Bar was granted leave to amend the
certification and Poe's deposition testimony was received in
evidence. The hearing concluded on July 22. The Bar withdrew
the certification of a violation of Rule 4.3(b) and asked the
Board to find Pappas in violation of Rule 8.4(c).
On August 10, 2005, the Board issued its order finding by
clear and convincing evidence that Pappas violated Rule
8.4(c). The Board suspended Pappas' license to practice law
in the Commonwealth for six months. The Board also ordered
Pappas to comply with the requirements of Part Six, § VI,
¶ 13(M) of the Rules of the Supreme Court and assessed costs
against Pappas.
In this appeal of right, Pappas assigns four errors to
the decision of the Board: (1) error "in permitting the bar
to amend ¶ 5 of the Certification at the disciplinary hearing
on July 22, 2005"; (2) error "in admitting the deposition
testimony of [Kenneth Randall] Poe with reference to ¶ 5 of
the Certification at the disciplinary hearing on July 22,
2005"; (3) error "in finding that [Pappas] engaged in
professional conduct involving dishonesty, fraud, deceit[,] or
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misrepresentation which reflects adversely on the lawyer's
fitness to practice law, in violation of Rule 8.4(c) of the
Rules of Professional Responsibility; and (4) error because
the "Board's Findings of Fact do not rise to the level of
proof necessary to establish ethical misconduct."3
II. Analysis
The standard of review we employ in reviewing a matter of
attorney discipline is familiar and well-settled:
We conduct an independent examination of the
entire record. We consider the evidence and
all reasonable inferences that may be drawn
from the evidence in the light most favorable
to the Bar, the prevailing party [below]. We
accord the [Board's] factual findings
substantial weight and view those findings as
prima facie correct. Although we do not give
the [Board's] conclusions the weight of a jury
verdict, we will sustain those conclusions
unless it appears that they are not justified
by a reasonable view of the evidence or are
contrary to law.
Anthony v. Virginia State Bar, 270 Va. 601, 608-09, 621 S.E.2d
121, 125 (2005). See also Pilli v. Virginia State Bar, 269
Va. 391, 396, 611 S.E.2d 389, 391 (2005).
In reviewing Pappas' first two assignments of error, we
hold that the Board's decision to permit the amendment of
3
Pappas also assigned error to the decision of the Board
for "imposing discipline for conduct previously adjudicated
and resolved in circuit court," but withdrew this assignment
of error in his brief before this Court.
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Paragraph 5 of the certification and its related decision to
admit the deposition testimony of Poe were improper.
Pursuant to Code § 54.1-3909, this Court "may promulgate
rules and regulations" which define the practice of law,
prescribe "a code of ethics governing the professional conduct
of attorneys," and prescribe "procedures for disciplining,
suspending, and disbarring attorneys." In accordance with
this statutory authority, we promulgated Part Six of the Rules
of the Supreme Court of Virginia. Section IV, Paragraph 13 of
Part Six outlines the procedures "for Disciplining,
Suspending, and Disbarring Attorneys."
Prior to the hearing before the District Committee, the
Bar must serve upon the attorney "by certified mail the Charge
of Misconduct, a copy of the Investigative Report considered
by the Subcommittee and any exculpatory materials in the
possession of the Bar Counsel." Part 6, § IV,
¶ 13(H)(1)(a)(1). If, at the conclusion of its hearing, "the
District Committee finds that the evidence shows the
[attorney] engaged in Misconduct by clear and convincing
evidence, then the Chair shall issue the District Committee's
Determination." Part 6, § IV, ¶ 13(H)(2)(m). One of the
options available to the District Committee is to certify its
Determination to the Board for its consideration. Part 6,
§ IV, ¶ 13(H)(2)(n). A "certification" is "the document
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issued by a Subcommittee or a District Committee when it has
elected to certify the Charges of Misconduct to the Board for
its consideration, which document shall include sufficient
facts to reasonably notify Bar Counsel and Respondent of the
basis for such Certification and the Disciplinary Rules
alleged to have been violated." Part 6, § IV, ¶ 13(A). The
attorney may appeal the District Committee's determination
either to the Board or a three-judge circuit court panel.
Part 6, § IV, ¶ 13 (H)(2)(p)(4). If, as Pappas did in this
case, an attorney elects to appeal to the Board, the Board
must then follow the procedures outlined in Part 6, § IV,
¶ 13(I).
Fundamental to any legal proceeding is notice and an
opportunity to be heard. Tidwell v. Virginia State Bar, 262
Va. 548, 550, 554 S.E.2d 451, 453 (2001); see also Heacock v.
Commonwealth, 228 Va. 235, 241, 321 S.E.2d 645, 649 (1984)
(quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). The
procedures outlined in Part Six provide the notice and hearing
provisions for disciplinary proceedings. These provisions
ensure the integrity of the disciplinary process and protect
the rights of the attorney.
There is no mechanism in Part Six that allows the Board
to amend a certification from the District Committee.
Paragraph 5 of the certification stated, "Mr. Poe ha[s] moved
8
to Tennessee and did not appear for the DUI hearing, but Mr.
Pappas appeared and, with Mr. Poe's consent, entered a guilty
plea on his client's behalf." (Emphasis added.) In his
answer, Pappas admitted that Paragraph 5 was correct. Yet,
with no notice and no review by the District Committee, the
Board granted the Bar’s request to amend Paragraph 5 of the
certification so that it would read, "Mr. Poe had moved to
Tennessee and did not appear for the DUI hearing, but Mr.
Pappas appeared and, allegedly with Mr. Poe's consent, entered
a guilty plea on his client's behalf." (Emphasis added.)
This amendment was tantamount to a new charge. As such,
Pappas was entitled to the procedural protections outlined in
Part 6, § IV, ¶ 13, including notice, review by the District
Committee, and the opportunity to be heard by the Board or a
three judge panel. Furthermore, because the Board's decision
to permit the amendment of Paragraph 5 of the certification
was improper and the amended charge was not properly before
the Board, its related decision to admit the deposition
testimony of Poe also was improper.
In his two remaining assignments of error, Pappas argues
the Board erred in finding that he violated Rule 8.4(c) of the
Rules of Professional Conduct because the Board's "Findings of
Fact" do not prove the ethical misconduct charged by clear and
convincing evidence. We agree.
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The charge properly before the Board was a violation of
Rule 8.4(c). However, upon review of the Board's findings of
fact, we conclude that none of the Board's findings address a
violation of Rule 8.4(c). The Board's findings seem to
address a conflict of interest, adverse representation, and a
breach of the duty of loyalty:
30. A current or former client's consent
to a conflict of interest in an adverse
representation is required to be consent after
consultation. Consultation is defined in the
Rules of Professional Conduct as "communication
of information reasonably sufficient to permit
the client to appreciate the significance of
the matter in question." Without consultation,
a client's consent to a conflict of interest is
not an informed consent and thus is no consent
at all.
31. Loyalty is an essential element in
the lawyer's relationship with a client.
32. Lawyers have superior knowledge and
experience in addressing conflicts of interest
with clients, current or former, and such
clients justifiably may rely on their lawyer to
be honest, candid, and thorough in eliciting
consent to an adverse representation of another
client.
33. A client's consent to a
representation adverse to the client's
interests, whether in litigation or otherwise,
is required to be elicited before the adverse
representation commences.
The only finding that could be considered to have addressed a
violation of Rule 8.4(c) was:
29. There were conflicts between the
testimony of [Pappas] and Ms. McCarl, on the
one hand, and Mr. Poe, on the other hand, in
material respects. The deposition testimony of
Mr. Poe is credible. Ms. McCarl's deposition
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testimony was marked by uncertainty and
speculation. [Pappas'] testimony ore tenus, if
not evasive in material respects, was marked by
inconsistency and vagueness.
However, this one finding is not sufficient to support the
Board's determination that Pappas engaged "in conduct
involving dishonesty, fraud, deceit or misrepresentation which
reflects adversely on [Pappas'] fitness to practice law" by
clear and convincing evidence. We hold that the evidence was
insufficient to find by clear and convincing evidence that
Pappas violated Rule 8.4(c).
III. Conclusion
The Board's decisions to permit the amendment of
Paragraph 5 of the certification and to admit the deposition
testimony of Poe were improper. On the charge that was before
the Board, the evidence was insufficient to find by clear and
convincing evidence that Pappas violated Rule 8.4(c). We will
reverse the order of the Board and dismiss the action against
Pappas.
Reversed and dismissed.
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