Williams v. Virginia State Bar

Present: 	Carrico, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ.
ROBERT ALLEN WILLIAMS
v. 	Record No. 002286 	OPINION BY JUSTICE BARBARA MILANO KEENAN
March 2, 2001
VIRGINIA STATE BAR
FROM THE VIRGINIA STATE BAR DISCIPLINARY BOARD
This case presents an appeal of right from a ruling of the
Virginia State Bar Disciplinary Board (the Board). 	Robert Allen
Williams challenges the Board's decision suspending his license
to practice law in the Commonwealth for a period of six months
based on its finding that Williams failed to comply with the
terms of an agreed disposition order.
The following facts are undisputed. 	On March 27, 1998,
Williams appeared before the Board in response to charges that
in 1993, he mishandled client funds in violation of Disciplinary
Rules 9-102(A)1, 9-102(B)2, and 9-103(B)3 of the former Code of
1Former Disciplinary Rule 9-102(A) provided as follows:
(A) All funds of clients paid to a lawyer or law firm,
other than reimbursement of advances for costs and expenses,
shall be deposited in one or more identifiable bank accounts
maintained in the state in which the law office is situated and
no funds belonging to the lawyer or law firm shall be deposited
therein except as follows:
(1) Funds reasonably sufficient to pay bank charges may be
deposited therein.
(2) Funds belonging in part to a client and in part
presently or potentially to the lawyer or law firm must be
deposited therein, and the portion belonging to the lawyer or
law firm must be withdrawn promptly after they are due unless
the right of the lawyer or law firm to receive it is disputed by

Professional Responsibility (CPR)4, now Rules 1.15(a), 1.15(c),
and 1.15(f), respectively, of the Rules of Professional Conduct.
The Board found by clear and convincing evidence that Williams's
actions constituted misconduct in violation of these Rules.
the client, in which event the disputed portion shall not be
withdrawn until the dispute is finally resolved.
2Former Disciplinary Rule 9-102(B) provided in pertinent
part as follows:
(B) A lawyer shall:
. . . .
(4) Promptly pay or deliver to the client or another as
requested by such person the funds, securities, or other
properties in the possession of the lawyer which such person is
entitled to receive.
3Former Disciplinary Rule 9-103(B) provided in pertinent
part as follows:
(B) Required Trust Accounting Procedures: The following
minimum trust accounting procedures are applicable to all trust
accounts maintained by attorneys practicing in Virginia.
. . . .
(3) Deposit of mixed fiduciary and nonfiduciary funds other
than fees and retainers: Mixed fiduciary and nonfiduciary funds
shall be deposited intact to the trust account. 	The
nonfiduciary portion shall be withdrawn upon the clearing of the
mixed fund deposit instrument.
(4) Periodic Trial Balance: A regular periodic trial
balance of the subsidiary ledger shall be made at least quarter
annually, within 30 days after the close of the period and shall
show the trust account balance of the client or other person at
the end of each period.
(a) The total of the trial balance must agree with the
control figure computed by taking the beginning balance, adding
the total of monies received in trust for the period and
deducting the total of trust monies disbursed for the period.
(b) The trial balance shall identify the preparer and be
approved by the attorney or one of the attorneys in the firm.
(5) Reconciliations:
(a) A monthly reconciliation shall be made at month end of
the cash balance derived from the cash receipts journal and cash
disbursements journal total, the trust account check book
balance, and the trust account bank statement balance.
4The Rules quoted above were effective February 1, 1993.
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Before the hearing, Williams, Williams's counsel, and counsel
for the Virginia State Bar (Bar counsel) negotiated an agreed
disposition that provided, in relevant part:
Upon consideration whereof, THE FOLLOWING
DISPOSITION IS ORDERED:
Six Months Suspension of Mr. Williams'[s] license
to practice law in the Commonwealth of Virginia
suspended for a period of One Year, running from the
date of the entry of the opinion order in this matter,
upon the following terms and conditions:
. . . .
2. 	That during said year Mr. Williams shall, at
his cost, obtain the services of a certified public
accountant who shall provide four quarterly written
certifications to the Virginia State Bar that the
trust account(s) of Mr. Williams are in compliance
with Canon 9 of the current CPR. 	If said trust
account(s) are not in compliance, the certified public
accountant shall so state in his certification(s) and
explain the existence of the noncompliance.
3. 	It shall be the sole responsibility of Mr.
Williams to insure that these terms are fulfilled.
4. 	Any failure to fulfill the terms herein shall
automatically result in the imposition of the Six
Months Suspension of license. 	If any hearing is held
upon a failure to fulfill terms, the sole issue shall
be whether or not a failure to fulfill terms occurred.
On June 26, 1998, based on its finding of Williams's misconduct,
the Board entered an order incorporating the agreed disposition
(the agreed disposition order).
In September 1998, Williams engaged William White, Sr., a
certified public accountant (CPA), to audit Williams's trust
accounts and to provide certifications to the Bar that the
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accounts were in compliance with Canon 9 of the former CPR as
required by the terms of the agreed disposition order. 	In
December 1999, nearly 18 months after the agreed disposition
order was entered, Williams delivered his trust account records
to White for the period from June 26, 1998 through June 30,
1999, and requested that White begin his review. 	White
testified that his office was closed from just prior to
Christmas through the end of the year, and that he did not begin
work on Williams's records until early in 2000.
On December 22, 1999, about one week after Williams
delivered his records to White, Bar counsel sent a letter to
Williams's counsel that stated in relevant part:
I am unaware that Mr. Williams has fulfilled
[terms 2 and 3 of the agreed disposition order] and
therefore seek proof of same from Mr. Williams.
I shall tickle this file for January 24, 2000, in
order to give you a chance to contact Mr. Williams and
let me know something.
On January 24, 2000, Williams's counsel sent to Bar counsel
a copy of a letter from White, which stated in part that "during
the year of June 26, 1998 through June 25, 1999, Robert Allen
Williams, Esquire, obtained my services to provide four
quarterly written certifications to the Virginia State Bar." 	No
quarterly certifications were provided with this letter.
On February 17, 2000, Bar counsel filed a notice to show
cause alleging that Williams had failed to comply with terms 2
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and 3 of the agreed disposition order, and a motion to impose
the six-month suspension under term 4 of the order on the ground
of non-compliance. 	A show cause hearing was scheduled for March
24, 2000. 	Williams filed a motion requesting a continuance,
which was granted, and the hearing was rescheduled for April 28,
2000.
On April 4, 2000, more than 21 months after entry of the
agreed disposition order, Williams submitted to the Bar four
quarterly certifications prepared by White based on his audit of
Williams's trust accounts. 	The quarterly certifications
included the time periods of (1) June 26, 1998 through September
30, 1998, (2) October 1, 1998 through December 31, 1998, (3)
January 1, 1999 through March 31, 1999, and (4) April 1, 1999
through June 30, 1999. 	Each of the four certifications stated
that Williams's trust accounts were in compliance with Canon 9
of the former CPR.
The Board held a show cause hearing on April 28, 2000. 	Bar
counsel argued that the six-month suspension specified in the
agreed disposition order should be imposed because Williams
violated terms 2 and 3 of the order by not providing the
required certifications within one year from the date of the
order.
Williams asserted in response that he had complied with the
agreed disposition order based on his interpretation of term 2,
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which he contended was ambiguous. 	Williams argued that he
understood term 2 to require only that he retain the services of
a CPA within a year from the date of the order. 	He contended
that if term 2 were read to require that he submit the quarterly
certifications to the Bar within one year, compliance would be
impossible because records for the last quarter would not be
available for audit until after the year had ended.
Given the impossibility of full compliance for all four
quarters, Williams contended that term 2 should be interpreted
to require only that he retain the services of a CPA within a
year, and that he submit the required certifications within a
reasonable time after the end of that year. 	Williams
accordingly asserted that he complied with the agreed
disposition order because his submission of the certifications,
on April 4, 2000, was done within a reasonable time after the
year following entry of the order, which ended on June 25, 1999.
The Board concluded that Williams had failed to comply with
terms 2 and 3 of the agreed disposition order, and entered an
order imposing the six-month suspension of Williams's license in
accordance with the terms of the agreed disposition order. 	This
Court stayed execution of the order suspending Williams's law
license pending the outcome of this appeal.
On appeal, Williams raises the same arguments that he
raised in his show cause hearing before the Board, and contends
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that he fully complied with the conditions set forth in the
agreed disposition order. 	We disagree.
In reviewing the Board's decision in a disciplinary
proceeding, we conduct an independent examination of the entire
record. 	El-Amin v. Virginia State Bar, 257 Va. 608, 612, 514
S.E.2d 163, 165 (1999); Myers v. Virginia State Bar, 226 Va.
630, 632, 312 S.E.2d 286, 287 (1984). 	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 in the Board proceeding. 	El-Amin, 257 Va. at 612, 514
S.E.2d at 165; Gunter v. Virginia State Bar, 238 Va. 617, 619,
385 S.E.2d 597, 598 (1989). 	We give the Board's factual
findings substantial weight and view them as prima facie
correct. 	El-Amin, 257 Va. at 612, 514 S.E.2d at 165; Myers, 226
Va. at 632, 312 S.E.2d at 287. 	While we do not give the Board's
conclusions the weight of a jury verdict, we will sustain those
conclusions unless it appears they are not justified by a
reasonable view of the evidence or are contrary to law. 	Id.
We first consider whether the Board erred in concluding
that Williams failed to comply with the terms of the agreed
disposition order. 	In a show cause proceeding before the Board,
the burden of proof is on the respondent to show by clear and
convincing evidence that he complied with the terms imposed
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under an agreed disposition order. 	Virginia State Bar
Disciplinary Board Rules of Procedure, Rule IV (D)(11) (2000).
In this case, the agreed disposition order suspended the
six-month suspension of Williams's license to practice law "for
a period of One Year, running from the date of the entry of the
opinion order," subject to certain terms. 	As indicated above,
term 2 states that "during said year Mr. Williams shall . . .
obtain the services of a [CPA] who shall provide four quarterly
written certifications to the [Bar]." 	The Board found that
Williams failed to comply with term 2 because he did not submit
the required certifications "during said year," and because he
"failed to demonstrate by clear and convincing evidence
sufficient cause to explain his failure to comply [with that
condition]."
The record before us supports the Board's findings. 	As
indicated above, the agreed disposition order states that the
six-month suspension of Williams's license is suspended for a
period of one year, provided that Williams "shall" retain a CPA
to audit his accounts and submit certifications to the Bar
"during said year." 	Williams's construction of this language,
that a CPA must be retained but none of the certifications need
be submitted "during said year," would render meaningless the
order's provision that Williams's law license suspension be
suspended for one year only. 	The order's use of the imperative
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"shall" indicates that Williams was required to comply fully
with the conditions of this one-year suspension of the Board's
action within that year to satisfy the terms of the order.
We find no merit in Williams's argument that since he was
unable to submit the final quarterly certification "during said
year," he should have been allowed to submit all the
certifications within a reasonable time after the one-year
period had expired. 	An inability to comply with one portion of
an agreed disposition order does not excuse compliance with its
remaining terms and conditions. 	Although Williams would not
have been able to submit the fourth quarterly certification
"during said year," he made no attempt to have any of the other
three quarterly certifications prepared and submitted during
that year.
In addition, when Williams was asked what he thought would
have been a reasonable time for compliance after the one-year
period expired, Williams stated that an additional six-month
period would have been reasonable. 	The record shows, however,
that Williams failed to comply with his own definition of a
reasonable time for compliance. 	As stated above, Williams did
not submit the required quarterly certifications until over nine
months after the end of the one-year period provided in the
agreed disposition order.
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Williams next argues that the Board's imposition of the
six-month suspension of his law license is unduly harsh and
should be set aside by this Court. 	He notes that the quarterly
certifications of his trust account records showed no violation
of Canon 9 of the former CPR, that the public was not harmed by
his untimely submission of the certifications, and that he has
had no prior disciplinary record in his 30 years of law
practice. 	We are not persuaded by Williams's arguments.
On appeal, we will view the penalty imposed by the Board as
prima facie correct, and will not disturb the penalty unless we
determine, on our independent review of the record, that the
penalty was not justified by the evidence or was contrary to
law. 	Gay v. Virginia State Bar, 239 Va. 401, 407, 389 S.E.2d
470, 473 (1990); Tucker v. Virginia State Bar, 233 Va. 526, 534,
357 S.E.2d 525, 530 (1987). 	Our Rules give the Board broad
discretion to impose a suspension of up to five years for any
finding of misconduct. 	Rules of Supreme Court of Virginia, Pt.
6, § IV, Para. 13 (C)(6) (2000); Gay, 239 Va. at 407, 389 S.E.2d
at 473.
While the required quarterly certifications showed that
Williams's trust accounts were in compliance with Canon 9 of the
former CPR for the year following the agreed disposition order,
the Board's order finally suspending Williams's license was
based on its finding in 1998 that Williams had mishandled client
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funds. 	By his counsel's endorsement of the agreed disposition
order, Williams acknowledged the accuracy of this finding. 	The
Board's suspension of its sanction in the agreed disposition
order "during said year" did not reflect any modification of the
Board's finding of misconduct, but was made in mitigation of the
penalty imposed by the Board based on Williams's agreement to
comply with the terms of the agreed disposition order.
When the Board determines that a respondent has failed to
comply with the terms of an agreed disposition order within the
specified time period, the alternative disposition set forth in
the order shall be imposed. 	Virginia State Bar Disciplinary
Board Rules of Procedure, Rule IV (D)(11). 	The plain language
of term 4 of the agreed disposition order states that "[a]ny
failure" to fulfill its terms "shall automatically result in the
imposition of the Six Months Suspension of license."
The record reflects that the Board considered Williams's
arguments before concluding that he had failed to comply with
the terms of the agreed disposition order. 	After making its
finding of noncompliance, the Board properly imposed the
alternative disposition of a six-month suspension of Williams's
license as provided under the terms of the agreed disposition
order. 	As we have observed, Williams participated in
negotiating the terms of the agreed disposition order and his
counsel endorsed the order. 	In addition, Williams has
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identified no evidence from which we may conclude that the Board
abused its discretion in imposing the six-month suspension.
A contrary result would undermine the purpose of the agreed
disposition order entered in this case. 	That purpose was to
allow Williams to maintain his license to practice law by
agreeing to take certain remedial actions "during said year,"
which he substantially neglected to do. 	A failure to uphold the
Board's decision also could undermine in future cases the
deterrent effect of imposing remedial terms as part of agreed
disposition orders.
Accordingly, we will affirm the Board's order suspending
Williams's license to practice law in this Commonwealth for six
months. 	Because Williams's suspension had been stayed during
the pendency of this appeal, the suspension shall begin on May
1, 2001. 	Williams shall notify, by certified mail, all clients
for whom he is currently handling matters and all opposing
attorneys and presiding judges in litigation. 	Williams shall
make appropriate arrangements for the disposition of these
matters presently in his care, in conformity with the wishes of
his clients.
Affirmed.
JUSTICE KOONTZ, dissenting.
I respectfully dissent. 	I do so because the majority
permits the Virginia State Bar Disciplinary Board (the Board) to
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suspend Robert Allen Williams’ license to practice law in this
Commonwealth for a period of six months upon a finding that he
failed to fully comply with the terms of an agreed disposition
order that is patently impossible to be fully performed as
written. 	In my view, no lawyer should be required to forfeit
his or her license to practice law under that circumstance.
As related by the majority, term 2 of the Board’s order
under consideration provides, in pertinent part, that “during
said year [of June 26, 1998 through June 25, 1999] Mr. Williams
shall, at his cost, obtain the services of a certified public
accountant who shall provide four quarterly written
certifications to the Virginia State Bar that the trust
account(s) of Mr. Williams are in compliance with Cannon 9 of
the current [Code of Professional Responsibility].” 	(Emphasis
added). 	Presumably, the majority would have to agree that a
certified public accountant cannot conduct a proper and
meaningful final audit of a bank account for a specific period
of time until that period of time has ended. 	Thus, in this
case, there should be no dispute that it was impossible before
June 26, 1999 for Mr. Williams’ accountant to provide “four
quarterly” certifications to the Virginia State Bar that Mr.
Williams’ trust accounts were properly maintained for the
specified year ending on June 25, 1999, as required by term 2 of
the Board’s order. 	To avoid that impossibility, it necessarily
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must follow that the phrase “during said year” specifies the
period within which Mr. Williams was required to obtained the
services of a certified public accountant, which he did, and not
the period within which that accountant was required to provide
the four quarterly certifications regarding Mr. Williams’ trust
accounts.
Nevertheless, the majority reasons that because Mr.
Williams “made no attempt to have any of the other three
quarterly certifications prepared and submitted during [the year
in question]” and he “did not submit the required quarterly
certifications until over nine months after the end [of that
year],” the Board properly exercised its discretion to suspend
Mr. Williams’ law license. 	Clearly, the majority has identified
conduct that may be properly characterized as a lack of due
diligence by Mr. Williams to timely comply with the “spirit” of
the Board’s order, but this reasoning does not resolve the
patent defect in the Board’s order. 	Moreover, for purposes of
guidance in resolving future similar cases that may arise, the
practicing bar is left to speculate whether a different result
would have obtained in this case had Mr. Williams’ accountant
provided the Virginia State Bar with one, two, or three
certifications “during” the year specified or had he provided
all four quarterly certifications within one, twenty, or thirty
days after that year ended. 	That reasonable speculation about
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what would constitute clear and convincing evidence to establish
sufficient cause to explain a failure to comply with a similar
order prompts my dissent in this case.
I have no doubt that the Board did not intend to impose an
impossible condition upon Mr. Williams by the terms of its
order. 	Nor do I defend Mr. Williams’ attempts to comply with
that order. 	Nevertheless, the record shows that the Board
ultimately ensured that Mr. Williams properly maintained his
trust accounts for the required one year and, yet, the Board
gave little, if any, weight to the defect in its order in
determining to suspend his license to practice law for six
months. 	When the record in this case is so viewed, I am of
opinion that this suspension was unduly harsh.
For these reasons, I would reverse the decision of the
Board in this case.
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