Motley I v. Virginia State Bar

Present: 	Carrico, C.J., Lacy, Keenan, Koontz, and Kinser,
JJ., and Compton and Stephenson, Senior Justices
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VICTOR ALAN MOTLEY
OPINION BY
v. 	Record No. 000392 	CHIEF JUSTICE HARRY L. CARRICO
September 15, 2000
VIRGINIA STATE BAR
FROM THE VIRGINIA STATE BAR DISCIPLINARY BOARD
This appeal presents for review an order of the
Virginia State Bar Disciplinary Board (the Disciplinary
Board) involving Victor Alan Motley (Motley), a Richmond
attorney. 	Dated September 29, 1999, the order imposed upon
Motley a public reprimand for failing to inform a client in
a criminal case of the denial of his appeal by the Court of
Appeals of Virginia in time for him to decide whether to
seek an appeal to this Court. 	Motley is here on an appeal
of right. 	Finding no error in the order of the
Disciplinary Board, we will affirm.
Background	22
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Motley’s public reprimand resulted from his handling
of a criminal case involving Brian Lee Rowe (Rowe) in the
Circuit Court of the City of Richmond. 	Motley was retained
by Rowe’s parents and received from them a retainer fee of
$1,000. 	Originally, Rowe was charged with two counts of
capital murder, one count of robbery, and three counts of
use of a firearm. 	However, at the time Motley was

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retained, the capital murder charges had been reduced to
first degree murder. 	Motley was retained for the purpose
of arranging for Rowe to plead guilty to “the lowest
possible charges.”
Motley was successful in arranging with the prosecutor
for Rowe to plead guilty to two counts of second degree
murder, one count of robbery, and three counts of use of a
firearm. 	Rowe and his parents expected that Rowe would
receive a sentence of no more than thirteen years and two
months, which, according to what Motley told them, was the
maximum punishment under the sentencing guidelines. 	Motley
argued for application of the guidelines, but the court
sentenced Rowe to serve a total of ninety-three years.
Rowe’s parents then asked Motley “what could be done,”
and Motley agreed to appeal the case for an additional fee
of $2,000. 	Motley filed a motion in circuit court to
withdraw Rowe’s guilty pleas or, in the alternative, for
reconsideration of the sentence. 	The motion was denied,
and Motley appealed the denial to the Court of Appeals.
That court denied the petition for appeal by unpublished
order. 	(No. 2718-95-2, April 15, 1996). 	The court noted,
inter alia, that the circuit court had found the sentencing
guidelines inapplicable to permit a sentence of thirteen
years and two months because Rowe “faced a mandatory
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thirteen years on the firearms charges alone, without the
additional charges of robbery and murder.”
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Rowe had thirty days after entry of the order of April
15, 1996, within which to file a notice of appeal with the
clerk of the Court of Appeals (Rule 5:14(a)) and a petition
for appeal with the clerk of this Court (Rule 5:17(a)(2)).
Neither document was filed within the prescribed time.1
On June 24, 1996, Rowe’s mother, Claretha A. Rowe,
filed with the Virginia State Bar a complaint against
Motley alleging that he had failed to inform Rowe or his
parents of the Court of Appeals’ denial of Rowe’s petition
for appeal until it was too late to petition this Court for
an appeal. 	The Third District Committee, Section Two (the
Committee), determined that Motley had failed timely to
inform Rowe or his parents of the Court of Appeals’ action.
The Committee decided it would offer Motley an opportunity
to comply with certain terms and conditions as a predicate
to the imposition of a private reprimand with terms but,
failing such compliance, that it would impose a public
1 This Court awarded Rowe a delayed appeal on March 6, 1997,
following a finding by the Circuit Court of the City of
Richmond in a habeas corpus proceeding that Motley had been
ineffective for “[f]ailing to perfect an appeal to [this
Court] following the Virginia Court of Appeal’s refusal to
hear [Rowe’s] appeal.” 	The petition for appeal filed
pursuant to the award of the delayed appeal was refused by
this Court.
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reprimand. 	Motley appealed the Committee’s determination
to the Disciplinary Board.
After a hearing, the Disciplinary Board affirmed the
District Committee’s determination but imposed as a
sanction an opportunity to comply with altered terms and
conditions as part of a private reprimand, with the proviso
that if Motley failed to comply with the terms and
conditions, a public reprimand would be imposed. 	On
September 29, 1999, the Disciplinary Board entered an order
stating that Motley had “willingly failed and refused to
comply with the terms of [the] Private Reprimand” and,
therefore, a public reprimand was imposed.
Disciplinary Rule 6-101(C) of the Virginia Code of
Professional Responsibility, which was in effect at all
times pertinent to the present controversy, provided that
“[a] lawyer shall keep a client reasonably informed about
matters in which the lawyer’s services are being rendered.”2
In imposing a public reprimand upon Motley, the
Disciplinary Board found that he had “failed to timely
inform either Rowe or his parents of the denial of the
petition [for] appeal by the Court of Appeals in time to
2 Effective January 1, 2000, the Virginia Code of
Professional Responsibility was replaced by the Virginia
Rules of Professional Conduct. 	The subject of reasonable
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allow them to decide whether to appeal further to the
Virginia Supreme Court” and, therefore, that Motley had
“engaged in misconduct in violation of DR-6-101C of the
Virginia Code of Professional Responsibility.”
5 	Issues on Appeal
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1. Unconstitutional Vagueness
Motley argues that DR 6-101(C) is unconstitutionally
vague. 	Citing Grayned v. City of Rockford, 408 U.S. 104,
108 (1972), Motley opines that the vagueness doctrine
requires that a statute give a person of ordinary
intelligence a reasonable opportunity to know what conduct
is commanded or prohibited. 	He says the phrase “reasonably
informed” in DR 6-101(C) is not defined and “gives no
guidelines as to what is reasonable and leaves respondent
at the [whim] of the personalities making up [the
Disciplinary Board].”
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We disagree with Motley. 	Disciplinary Rule 6-101(C)
is presumed to be constitutional, and we will resolve any
doubt regarding its constitutionality in favor of its
validity. 	See Pulliam v. Coastal Emergency Servs., Inc.,
257 Va. 1, 9, 509 S.E.2d 307, 311 (1999). 	Furthermore,
“[v]agueness challenges to statutes not threatening First
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communication between lawyer and client is now contained in
Rule 1.4(a),(b), and (c) of the new Rules.
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Amendment interests are examined in light of the facts of
the case at hand; the statute is judged on an as-applied
basis.”
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Maynard v. Cartwright, 486 U.S. 356, 361 (1988).	3
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We find nothing vague about the language of DR 6-
101(C) with respect to the conduct commanded of Motley in
light of the facts of this case. 	Beyond any question, the
conduct commanded was for Motley to inform Rowe of the
denial of his appeal by the Court of Appeals in time for
him to decide whether to appeal the denial and, if his
decision was affirmative, to file the notice of appeal and
petition for appeal within the thirty-day period prescribed
by Rules 5:14(a) and 5:17(a)(2).
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2. Sufficiency of Evidence
Motley argues that the finding of the Disciplinary
Board that he failed timely to inform Rowe of the denial of
his appeal is not justified by a reasonable view of the
evidence. 	On review of a disciplinary proceeding, “we will
make an independent examination of the whole record, giving
the factual findings of the Disciplinary Board 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.”
Blue v. Seventh Dist. Comm., 220 Va. 1056, 1061-62, 265	24
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S.E.2d 753, 757 (1980). 	And we view the evidence in the
light most favorable to the side that prevailed below.
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Rutledge v. Virginia State Bar, 214 Va. 312, 313, 200
S.E.2d 573, 574 (1973).
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Here, the evidence was in sharp conflict. 	Motley
testified that he informed both Rowe and his mother of the
Court of Appeals’ denial of Rowe’s petition for appeal
within the thirty-day period following the denial. 	Both
Rowe and his mother denied receiving knowledge of the Court
of Appeals’ action within the thirty-day period.
Motley introduced telephone bills which showed collect
calls ostensibly placed by Rowe to Motley’s office from
Southampton Reception Center on April 22, 1996, and from
Brunswick Correctional Center on April 30, 1996. 	Both
these dates were within the thirty-day period after the
Court of Appeals’ denial of Rowe’s petition for appeal, and
Motley claimed that on both occasions he informed Rowe the
appeal had been denied. 	Rowe testified, however, that he
was not confined at Southampton Reception Center on April
22, 1996. 	He also said that on the one occasion he reached
Motley by telephone from Brunswick Correctional Center
within the thirty-day period following April 15, 1996,
Motley told him he “hadn’t heard anything” concerning the
outcome of the appeal.
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Rowe testified further that he received nothing from
Motley in the mail within the thirty-day period following
April 15, 1996, and that it was not until June that Motley
told him in a telephone conversation that the appeal had
been denied. 	A “couple of days later,” on June 18, 1996,
Rowe wrote Motley requesting a copy of the Court of
Appeals’ decision and received a copy in the mail.
Motley also claimed that, in the thirty-day period, he
mailed Rowe’s mother a copy of the Court of Appeals’ order
denying Rowe’s appeal, but he could not document the
mailing with a copy of a cover letter or otherwise. 	In
addition, Motley introduced a memorandum prepared by his
secretary stating that Ms. Rowe called the office on April
5, 1996, and left a message that she would make a payment
on Motley’s fee on April 15. 	Motley also introduced a copy
of a receipt dated May 10, 1996, for a payment of $100
purportedly made on that date by Ms. Rowe on a visit to
Motley’s office.
However, Ms. Rowe testified that she received nothing
in the mail from Motley within the thirty-day period
following April 15, 1996, and that she only learned of the
denial of the appeal when Rowe informed her in late May or
June that Motley had just told him the appeal had been
denied. 	Ms. Rowe then contacted Motley, and he confirmed
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that the appeal had been denied and told her that it was
“too late” to appeal further.
Ms. Rowe also denied that she “left a message” with
Motley’s office promising to make a payment on his fee on
April 15, 1996, and she said that she did not recall
visiting Motley’s office on May 10, 1996, when Motley
claimed she made a payment in the office. 	She insisted,
instead, that March 6, 1996, was the last date upon which
she made a payment.
Motley says Rowe and his mother were “not credible
witnesses.” 	We disagree. 	Their testimony was not
inherently incredible, and it was for the Committee, as
trier of fact, to determine the credibility of the
witnesses and to resolve the conflicts between Motley’s
testimony and the testimony of Rowe and his mother.
The burden was on the Bar to establish Motley’s
violation by clear proof. 	See Blue, 220 Va. at 1062, 265
S.E.2d at 757. 	With the conflicts resolved against Motley,
the evidence constituted clear proof to support the finding
by the Disciplinary Board that Motley violated DR 6-101(C).
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3. Prior Disciplinary Record
Motley argues that the Disciplinary Board erred in
considering his prior disciplinary record in determining to
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impose a public reprimand upon him.3 While his argument is
difficult to follow, he appears to seek a redetermination
of the merits of the prior proceedings, an exercise in
which we decline to indulge. 	He also appears to argue the
relevancy of the evidence of his prior conduct.
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However, “[b]ecause a primary purpose of the
Disciplinary Rules is the protection of the public, it is
clearly the Board’s duty, in determining an appropriate
penalty, to consider whether the attorney before it has
demonstrated a history of professional conduct harmful to
his clients or to the public generally.” 	Tucker v.	11
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Virginia State Bar, 233 Va. 526, 533, 357 S.E.2d 525, 529
(1987). 	Hence, the evidence of Motley’s disciplinary
record was relevant and properly considered by the
Disciplinary Board.
For all these reasons, we will affirm the Disciplinary
Board’s order of September 29, 1999.
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3 The record shows that Motley’s disciplinary history
consisted of two dismissals of complaints with terms (VSB
Docket Nos. 86-146 and 91-031-0795) and a private reprimand
with terms (VSB Docket No. 89-031-0495).
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