Kelleter Opinion

VIRGINIA:

BEFORE THE FIRST DISTRICT COMMITTEE

OF THE VIRGINIA STATE BAR

IN THE MATTER OF TREY ROBERT KELLETER

VSB Docket #03-010-1051

Complainant: VSB/Haden, Charles E. Haden, Esquire

DISTRICT COMMITTEE DETERMINATION

(DISMISSAL WITH TERMS)

On November 6, 2003, a hearing in this matter was held before a duly convened First District Committee panel consisting of John D. Eure, Jr., Esquire, Damian P. Dwyer, Esquire, N. Douglas Burgoyne, Lay Member, Tyrone J. Melvin, Sr., Lay Member, Durwood Curling, Lay Member, and J. Wayne Sprinkle, Esquire, Chair, presiding.

The Respondent, Trey Robert Kelleter, appeared in person, pro se. Edward L. Davis, Assistant Bar Counsel, appeared on behalf of the Virginia State Bar.

Pursuant to Part 6, §IV, ¶13.G.2 (l) (2) (c) of the Rules of the Supreme Court, the First District Committee of the Virginia State Bar hereby serves upon the Respondent the following Dismissal with Terms:

I. FINDINGS OF FACT

1. During all times relevant hereto, the Respondent, Trey Robert Kelleher, (hereinafter Respondent or Mr. Kelleter) was an attorney licensed to practice law in the Commonwealth of Virginia.

2. On May 10, 2002, the Circuit Court for the City of Newport News sentenced Antwone Vernell Jones to 28 years in prison on his convictions of murder and use of a firearm in the commission of a felony. Mr. Kelleter served as lead prosecutor for the Commonwealth. The same day, the court relieved Jones' trial defense counsel, and appointed attorney Charles E. Haden for the appeal.

3. Thereafter, on an unknown date, Jones wrote to the Commonwealth's Attorney offering to help the Commonwealth in an unrelated murder investigation by providing information. Jones then discussed the issue with Haden. Jones was interested in obtaining a reduction of his sentence in return for assisting the Commonwealth in its investigation. Haden agreed to help Jones arrange a meeting with the Commonwealth.

4. Haden discussed the matter with Kelleter, and confirmed their conversation in a letter, dated August 26, 2002. (It is not known when Haden delivered the letter or whether Kelleter saw it before august 30, 2003.) In the letter, Haden said that Jones was willing to assist the Commonwealth in return for having his sentence reduced. He asked Kelleter to place a hold on Jones so that the trial court could retain jurisdiction over Jones to suspend some of his sentence. He also asked that Jones not be prosecuted for anything he might say to police during the interview. Finally, he asked that any interview or debriefing of his client be done in Haden's presence.

5. Haden and Kelleter spoke again three days later, on August 29, 2002. Haden reiterated that he did not want Mr. Jones interviewed out of his presence, and that he wanted "use immunity" for any incriminating statement that his client might make. Kelleter informed him that his office did not offer use immunity under these circumstances. Kelleter questioned whether Haden represented Jones in the unrelated murder investigation, since the court only appointed Haden for an appeal. Haden considered himself Jones' counsel, and delivered a letter to Kelleter that day, August 29, 2002, indicating that he regarded himself as Jones' legal representative on all legal matters at that point. He restated his objection to any contact with Jones outside of Hadenís presence. Further, Haden confirmed in the letter his understanding that Kelleter would notify Haden before the detective visited Jones.

6. Kelleter felt that Haden had not made it clear that his client had asked Haden to represent him in his capacity as a possible witness to the unsolved murder. On August 30, 2002, after consulting with his supervisors, Kelleter arranged for a detective to interview Jones at the city jail with no notice to Haden, and outside of Haden's presence. Kelleter notified Haden about this after the fact by letter, dated September 3, 2002. In the same letter, he advised Haden to file a Motion to Reconsider in order to keep Jones in the local jail during the investigation. He also said that his office would extend use immunity to Jones for the statement that Jones made to the Detective, as Haden had previously asked.

7. Haden did as Kelleter suggested, and filed the motion on September 6, 2002. He also sent a letter to Kelleter complaining about the direct contact with his client, and advised him that he would notify the bar.

8. Kelleter testified before the Committee that his purpose in sending the detective to speak with Jones at the jail was to ascertain whether Jones had asked Haden to represent him in the unsolved murder investigation and if not, to interview Jones if he was willing to do so out of Hadenís presence.

9. Detective Mister Mercer of the Newport News Police Department, Homicide Division, testified that the only questions that she posed to Jones before the interview were (1) whether Haden represented Jones on the appeal of his murder conviction, and (2) whether he wanted Haden present during the interview. She testified that she did not ask Jones whether he had asked Haden to represent him in the unsolved murder investigation.

10. Jones gave his testimony from the Wallen's Ridge State Prison before Caroline Lane, Notary Public, of Cavalier Reporting Services, 677 Berkmar Circle, Charlottesville, Virginia 22901 (800) 972-1993, who administered the oath to the witness. Jones testified that he asked Haden to represent him in the unrelated murder investigation, to arrange a meeting with the Commonwealth, and to be present during any interview.

II. MISCONDUCT

Upon due deliberation, the Committee finds, by unanimous decision, that the bar has proven by clear and convincing evidence that the Respondent violated the following Rules of Professional Conduct:

RULE 4.2 Communication With Persons Represented By Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

RULE 8.4 Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

III. DISMISSAL WITH TERMS

It is the unanimous decision of the Committee to offer the Respondent an opportunity to comply with certain terms and conditions, compliance with which will be a predicate for the

disposition of this Complaint. The terms and conditions shall be met by the times set forth below:

1. Within six (6) months of the date of this hearing, or May 6, 2004, the Respondent will attend a Continuing Legal Education (CLE) Course with a minimum length of four (4) hours on the subject of ethics for no annual CLE credit.

2. Upon completion of the course or courses, the Respondent will notify the Bar Counselís office in writing.

Upon satisfactory proof that such terms and conditions have been met, this matter shall be closed. If, however, the terms and conditions are not met by the dates specified above, this Committee shall impose a Public Reprimand as an alternate sanction.

The Court Reporter who transcribed these proceedings is Catherine B. Edwards, RPR, of Ron Graham and Associates, 5344 Hickory Ridge, Virginia Beach, Virginia 23455-6680 (757) 490-1100.

Pursuant to Part Six, Section IV, 13.B.8 (c)(1), the Clerk of the Disciplinary System shall assess costs.

FIRST DISTRICT COMMITTEE

OF THE VIRGINIA STATE BAR

By____________________________

J. Wayne Sprinkle, Chair