Garrett Opinion

VIRGINIA:

BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

IN THE MATTERS OF
STACY F. GARRETT, III

VSB DOCKET NOS. 03-032-0439, 03-032-0642 and 03-032-2984

ORDER

This matter came to be heard on October 20, 2003, upon an Agreed Disposition between the Virginia State Bar and the Respondent, Stacy F. Garrett, III.

A duly convened panel of the Virginia State Bar Disciplinary Board consisting of Ann Nicole Kathan, Esq., Glenn M. Hodge, Esq., David R. Schultz, Esq., Chester J. Cahoon, Lay Member, and Roscoe B. Stephenson, III, Esq. Chair, presiding, considered the matter by telephone conference. The respondent, Stacy Garrett, and his counsel, James S. Yoffy, participated in the conference. Linda Mallory Berry, Assistant Bar Counsel, appeared on behalf of the Virginia State Bar.

At the outset of the hearing, the Chair polled the panel to determine whether any member had any business or financial interest or any personal bias that would impair or could be perceived to impair his or her ability to hear this matter fairly and impartially. Each member, including the Chair, responded in the negative.

It is the decision of the Virginia State Bar Disciplinary Board to accept the Agreed Disposition. The Board considered several factors in mitigation of the serious charges of misconduct contained herein. One factor was the fact that the Respondent held the retainers of each complainant in trust and disbursed the funds to them in advance of the deadline imposed by this Agreed Disposition. Another was the absence of a prior public disciplinary record. The Board also considered the interim measures taken by the Respondent toward rehabilitation and the remarkable improvement in demeanor and affect brought about by these measures. Finally, the Board considered the cooperative attitude toward the proceeding and the full and free disclosure of the Respondent during the proceeding.

The Stipulations of Fact, Disciplinary Rule Violations and the Disposition
agreed to by the Virginia State Bar and the Respondent are incorporated herein as
follows:

During all times relevant hereto, the Respondent, Stacy F. Garrett, III, was an attorney in good standing, licensed to practice law in the Commonwealth of Virginia and qualified before the Supreme Court of Virginia on June 9, 1969.

VSB Docket No. 03-032-0439
Complainant: Ruth A. Taylor

I. STIPULATIONS OF FACT

1. Eric Dwayne Taylor (Eric) was sentenced on June 14, 1996. The final disposition of his direct appeal in state court occurred on May 16, 1997.

2. On January 20, 1998, Virginia Lawyer Referral Service referred Ms. Ruth A. Taylor (Ms. Taylor) to Stacy F. Garrett, III (Mr. Garrett). Ms. Taylor alleges that she specifically interviewed and soon thereafter retained Mr. Garrett to investigate the feasibility of filing a habeas corpus petition for Eric, her son.

3. Mr. Garrett quoted to Ms. Taylor a fee of $3,500 to investigate the feasibility of filing a habeas corpus petition and an additional $1,500 to file a petition.

4. Ms. Taylor could not pay in one lump sum. Mr. Garrett agreed to accept payments from Ms. Taylor. In early February 1998, she sent Mr. Garrett $750.00 so that Mr. Garrett would visit her son in prison.

5. On February 13, 1998, after receiving the $750.00 from Ms. Taylor, Mr. Garrett acknowledged receipt of the money, and, shortly thereafter, visited Eric in prison.

6. On March 6, 1998, Mr. Garrett wrote to Ms. Taylor outlining a few areas of concern and advised the balance of his fee was $2750.00. Thereafter, Ms. Taylor had difficulty reaching Mr. Garrett by telephone for information.

7. Ms. Taylor made additional payments to Mr. Garrett of $1005.00 in March 1998; $500.00 in April 1998; and $200.00 on April 30, 1998.

8. On or about November 15, 1999, Ms. Taylor reached Mr. Garrett by telephone. Mr. Garrett told Ms. Taylor little about his progress on the habeas investigation or the habeas petition.

9. Ms. Taylor sent a $700.00 payment to Mr. Garrett in December 1999.

10. In March 2001, Ms. Taylor was advised by another attorney of the time limitation on filing habeas corpus petitions under Section 8.01-654 of the 1950 Code of Virginia, as amended.

11. Ms. Taylor once again reached Mr. Garrett by telephone, and she asked him about the time limitation. Mr. Garrett advised Ms. Taylor he had determined that her son's best course of action was to petition the Governor of Virginia for clemency. He advised delay until after the 2001 fall election results were known, and Ms. Taylor agreed. She waited for the results of the election and for Mr. Garrett's actions to follow.

12. Mr. Garrett has admitted that, to date, he has not petitioned Governor Warner or taken further action on Eric's behalf.

13. By letter of June 2, 2003, Mr. Garrett wrote Ms. Taylor to recite the results of his
investigation and to give his legal opinion as to any basis for filing a habeas
corpus petition.

14. Mr. Garrett represented that the total amount of $3,155.00 paid to him by Ms.
Taylor was deposited into his trust account from which he has since deducted
$750.00 for his visit to Powhatan with Eric.

15. By letter of June 2, 2003, Mr. Garrett refunded the balance of $2,405.00 to Ms.
Taylor.

II. DISCIPLINARY RULE VIOLATIONS 03-032-0439

The parties agree that the foregoing facts give rise to violations of the following Disciplinary Rules and Rules of Professional Conduct:

DR 6-101. Competence and Promptness.

(B) A lawyer shall attend promptly to matters undertaken for a client until
completed or until the lawyer has properly and completely withdrawn from
representing the client.
A lawyer shall keep a client reasonably informed about matters in which the lawyer's services are being rendered.

DR 7-101. Representing a Client Zealously.

(A) A lawyer shall not intentionally:
(3) Prejudice or damage his client during the course of the professional
relationship, except as required under DR 4-101 (D).

Rule 1.3 Diligence

(a) A lawyer shall act with reasonable diligence and promptness in representing a
client.
(c) A lawyer shall not intentionally prejudice or damage a client during the course of
the professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3.

Rule 1.4 Communication

A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter.

VSB Docket No. 03-032-0642
Complainant: Mildred Barnes

STIPULATIONS OF FACT

Taryl Barnes (Taryl) was sentenced for abduction and murder on August 30, 1999. The final disposition of his direct appeal in state court occurred on October 24, 2000.

On October 17, 2001, Mildred Barnes (Ms. Barnes) met with Stacy F. Garrett, III. Ms. Barnes had been referred to Mr. Garrett by her psychologist.

Ms. Barnes alleges that she specifically asked Mr. Garrett to file a habeas corpus petition for her son, Taryl; however, Mr. Garrett wanted to see the trial transcripts to investigate the feasibility of filing a habeas corpus petition before he agreed to represent Taryl.

Within in one or two days of their first meeting, Ms. Barnes took the trial transcripts to Mr. Garrett, and Mr. Garrett, immediately after reviewing them, agreed that he "would take the case" for the sum of $5,000.00.

At the first meeting with Mr. Garrett to discuss retaining him, Ms. Barnes told Mr. Garrett that she was aware that the deadline for filing Taryl's habeas corpus petition was very close. Ms. Barnes had been advised by a clerk at the Court of Appeals that the habeas corpus petition would be time barred after October 24, 2001.

On October 17, 2001, Ms. Barnes paid the first installment of $2,500.00 in the form of cash, check from Yolanda Parker and two money orders. Ms. Barnes paid the second and final of two payments in the amount of $2,500.00 in the form of three money orders on January 11, 2002.

Whenever Ms. Barnes expressed concerns to Mr. Garrett for the time limitation, she was told, "don't worry about anything." Ms. Barnes represented that she believed Mr. Garrett had gotten "an extension" of some kind that would allow a filing after October 24, 2001.

From mid-April 2002, until September 25, 2003, Mr. Garrett failed to respond to the requests of Ms. Barnes for information on the status of this matter.

In May 2002, Ms. Barnes sent a letter to Mr. Garrett by certified mail, return receipt requested for information on the status of this matter, return of the file and a refund of unused funds. Mr. Garrett did not respond to the certified mailing.

Mr. Garrett represented that the total amount of $5000.00 paid to him by Ms. Barnes was deposited into his trust account.

Mr. Garrett, by letter of September 25, 2003, gave Ms. Barnes an evaluation of the habeas issues and refunded the $5,000.00 paid him by Ms. Barnes.

II. DISCIPLINARY RULE VIOLATIONS 00-032-0642

The parties agree that the foregoing facts give rise to violations of the following Rules of Professional Conduct:

Rule 1.3 Diligence

(a) A lawyer shall act with reasonable diligence and promptness in representing a
client.
(c) A lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3.

Rule 1.4 Communication

I. STIPULATIONS OF FACT

1. Gary Lee Cubbage (Mr. Cubbage) was sentenced in Page County, Virginia for several felonies and was transferred immediately to the Department of Corrections.

2. Mr. Garrett first met with Gary Lee Cubbage at the James River Correctional Center late in 2001.

3. In early 2002, Mr. Cubbage retained Mr. Garrett in order to obtain placement in a community facility in or near Page County for work release on the Cubbage farm in Page County. A fee of $5,000.00 was agreed upon and paid to Mr. Garrett by the Cubbage family on behalf of Mr. Cubbage.

4. From late 2002, through June 3, 2003, Mr. Garrett failed to promptly respond to telephone messages and written requests of Mr. Cubbage and his family members for information on the status of this matter.

5. By letter of June 3, 2003, Mr. Garrett explained to Mr. Cubbage the efforts made on
his behalf and refunded the $5,000.00 paid him by Mr. Cubbage.

II. DISCIPLINARY RULE VIOLATIONS 00-032-2984

The parties agree that the foregoing facts give rise to violations of the following Rules of Professional Conduct:

Rule 1.3 Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.
(c) A lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship, except as required or permitted under Rule 1.6 and Rule 3.3.

Rule 1.4 Communication

III. DISPOSITION

Upon consideration of the Stipulations of Fact and the Disciplinary Rule Violations, the comments of counsel, and the Respondent's prior private disciplinary record, the Board accepts the agreed-upon sanction of a PUBLIC REPRIMAND WITH TERMS, the alternate disposition being a thirty (30) day suspension of the Respondent's license to practice law in the Commonwealth of Virginia if he fails to comply with any of the terms within the time periods given. The terms and conditions are as follows:

1. The following terms and conditions shall be met by October 1, 2003.
a. Refund in the amount of $2,405.00 to Ruth A. Taylor with a letter of
explanation copied to the Office of Bar Counsel.

b. Refund in the amount of $5,000.00 to Mildred Barnes with a letter of
explanation and copied to the Office of Bar Counsel.

c. Refund in the amount of $5000.00 to Gary Lee Cubbage with a letter of
explanation copied to the Office of Bar Counsel.
2. The following terms and conditions shall be met as follows:
The Respondent shall continue his current course of care under the auspices of his Medical care provider and:

a. No later than October 1, 2003, Respondent shall provide the Virginia State Bar
with the name and address of the medical care provider(s) whom he wishes to
utilize with respect to these terms. The choices of the medical care providers
shall be subject to the approval of the Virginia State Bar. Said medical care providers shall include a physician and any other medical care provider(s) said
physician deems appropriate.

b. No later than October 1, 2003, Respondent shall provide to the Virginia State
Bar appropriate medical release(s) for information allowing the Virginia State
Bar to communicate with Respondent's approved physician and any other
approved medical care provider(s) at any time while these terms and conditions
are pending regarding Respondent's medical history, condition, diagnosis
prognosis and the treatment plan. The Respondent shall also provide the Virginia
State Bar with written proof of the acceptance of a release for information by the
approved physician and any other approved medical care provider(s).

c. No later than October 1, 2003, Respondent shall provide the Virginia State Bar
with written proof of acceptance by the approved physician and any other
approved medical care provider(s) of the obligation to report directly to the
Virginia State Bar any breach of the treatment plan as required in paragraph f.
herein.

d. No later than October 1, 2003, it shall be the Respondent's responsibility to
obtain from the medical care provider(s) a written report of his examination of
the Respondent, any applicable diagnosis, prognosis, and a treatment plan
consistent with the diagnosis and prognosis. This report shall be provided by the
Respondent to the Office of Bar Counsel by hand or by certified mail by said
date.

e. Thereafter, and until Respondent has successfully completed the treatment plan
or any subsequent written treatment plan(s) implemented by the medical care
provider(s) with respect to said diagnosis, Respondent shall comply and
cooperate with the spirit and the letter of said treatment plan(s) to the satisfaction
of the medical care provider.

f. While these terms and conditions are pending, it shall remain the Respondent's
responsibility to obtain from the medical care provider(s) and provide the
Virginia State Bar, Office of Bar Counsel, with the following information:

1) Quarterly report to be provided to the Office of Bar Counsel to the attention of
Linda Mallory Berry, Assistant Bar Counsel, by January 15, 2004, covering
The period of October, November, and December 2003;

2) Additional quarterly reports provided by the fifteenth (15) day of the month
following the end of each succeeding quarter;

3) Reports of any failure by the Respondent to adhere to the treatment plan(s).
Such reports shall be provided to the Virginia State Bar within two (2) weeks
of the breach and shall describe in detail the facts of the breach; and

4) Certification from the medical provider(s) that Respondent has successfully
completed the treatment plan or any subsequent written treatment plan(s)
implemented by the medical care provider(s) with respect to Respondent's
diagnosis. When this certification is received and verified by the Office of Bar
Counsel, terms and conditions shall be considered complete;

g. It shall be the responsibility of the Respondent to insure that the medical care
provider(s) fulfill(s) in a timely and appropriate manner the terms herein as
stated. Any failure of the medical care provider(s) to adhere to these terms shall
constitute a failure by the Respondent to fulfill the terms.

h. If, at any time in the future, a report called for herein is made to the Office of
Bar Counsel by the Respondent's medical care provider(s) reporting a breach,
a case shall be opened for the purpose of imposing the alternate
sanction.

i. No later than October 1, 2003, an inventory of Mr. Garrett's open caseload
shall be conducted. An inventory shall be made as to the type of each open file,
the deadline(s) for each open file, the status of each open file and an evaluation
of the vulnerability of each open file to a final determination of a violation of the
disciplinary rules based on allegations of a lack of diligence, promptness and/or
communications. This reporting shall be conducted by David Boone, Esquire,
and shall be certified under oath to the Disciplinary Board.

Upon satisfactory proof that such terms and conditions have been met as stated, this matter shall be closed. If, however, the terms and conditions are not met, the Respondent agrees that the Disciplinary Board will impose the alternate sanction, Suspension for 30 days of the Respondent's license to practice law in the Commonwealth of Virginia, based upon the agreed stipulated facts and agreed disciplinary rules recited in this Agreed Disposition.

The imposition of the alternate sanction will not require a hearing before the Virginia State Disciplinary Board on the underlying charges of misconduct stipulated to in this Agreed Disposition if the Virginia State Bar discovers that the Respondent has violated any of the foregoing terms and conditions. Instead, the Virginia State Bar shall open a new case and issue and serve upon the Respondent a Notice of Hearing to Show Cause why the alternate sanction should not be imposed. The sole factual issue will be whether the Respondent has violated the terms of the Agreed Disposition without legal justification or excuse. The imposition of the alternate sanction shall be in addition to any other sanction imposed for misconduct while the Respondent completes the terms and conditions of the Agreed Disposition. All issues concerning the Respondent's compliance with the terms of this Agreed Disposition shall be determined by the Virginia State Bar Disciplinary Board, unless the Respondent makes a timely request for hearing before a three-judge court.

Pursuant to Part 6, Section IV, Paragraph 13.B.8.C. of the Rules of the Supreme Court, the Clerk of the Disciplinary System shall assess costs.

The court reporter who transcribed this proceeding is Terri Griffith, Chandler & Halasz, P.O. Box 9349, Richmond, Virginia 23227, (804) 730-1222.

A copy teste of this Order shall be served upon the Respondent, Stacy F. Garrett, III, by Certified Mail, Return Receipt Requested, at Boone, Beale, Cosby & Long, 27 North 17th Street, Richmond, Virginia 23219-3607, his address of record with the Virginia State Bar, upon Respondent's Counsel, James S. Yoffy, Esq., at 411 East Franklin Street, Suite 200, P.O. Box 470, Richmond, Virginia 23218-0470, by first class mail, postage paid, and hand delivered to Linda Mallory Berry, Assistant Bar Counsel, Office of Bar Counsel, Virginia State Bar, Eighth & Mail Building, 707 East Main Street, Suite 1500, Richmond, Virginia 23219.

ENTERED THIS ____DAY OF _____________, 2003
THE VIRGINIA STATE BAR DISCIPLINARY BOARD

BY __________________________________________
Roscoe B. Stephenson, III, Chair