VIRGINIA:

BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD

IN THE MATTER OF:
VSB Docket No. 02-060-3754
GEORGE ROBERT LEACH

ORDER OF REVOCATION

This matter, on August 21, 2003, came before a duly convened panel of the Virginia State Bar Disciplinary Board (the "Board"), consisting of Roscoe B. Stephenson, III, Chair, William C. Boyce, Jr., Chester J. Cahoon, Jr., Lay Member, Robert E. Eicher and David R. Schultz, pursuant to a Subcommittee Certification from the Sixth District Committee. The Virginia State Bar was represented by Deputy Bar Counsel Harry M. Hirsch. George Robert Leach was present and represented by Michael L. Rigsby. The proceedings were recorded by Tracy J. Stroh, a registered professional reporter, of the firm of Chandler & Halasz, P.O. Box 9349, Richmond, Virginia 23227, (804) 730-1222.
The hearing commenced promptly at 9:00 a.m. in Courtroom C of the State Corporation Commission, Tyler Building, 1300 East Main Street, Richmond, Virginia. The Chair polled the members of the Board as to whether any of them had a personal or financial interest or bias in this matter which would preclude any of them from serving fairly and objectively on this panel. Each member, including the Chair, answered in the negative.
The hearing then proceeded with the admission of a stipulation of fact endorsed by the parties, containing twenty (20) points of agreement. Numerous documents offered into evidence by the Bar were admitted, and oral testimony was received from Marlene Simmons, Morgan D. Galbreath, III, Carl A. Peter, and George Robert Leach.
Following argument by the parties, the Board retired to deliberate. The Board found the following facts to have been established by clear and convincing evidence.
At all times relevant to this matter, George Robert Leach has been an attorney licensed to practice law in the Commonwealth of Virginia.
On December 4, 1992, George Robert Leach entered into a contingency fee agreement with Stephan Simmons to pursue a claim against Michael Stephen Smith ("Smith") for intentional infliction of emotional distress arising out of his employment with Smith. The agreement recited a fifty percent (50%) contingency fee.
On August 9, 1995 a non-dischargable judgment was obtained against Smith in Bankruptcy Court in the amount of $32,790.00 consisting of $290.00 of compensatory damages, $25,000.00 of punitive damages, $7,500.00 for emotional distress, civil battery, and defamatory publications.
Mr. Smith owned two adjoining ten acre parcels of land in King and Queen County, Virginia.
Mr. Leach filed a Bill of Complaint against Smith in the Circuit Court of King and Queen County, Virginia on February 12, 1998 to force the sale of the property in satisfaction of the judgment.
The Circuit Court entered a decree ordering sale of the property on September 23, 1998.
On October 19, 1998 Mr. Simmons died intestate. Mr. Simmons was survived by his parents and one sister. No one sought, nor was anyone appointed as administrator of Mr. Simmons' estate until 2002.
Nevertheless, Mr. Leach continued to pursue the collection of the judgment and the creditor's suit without authority from Mr. Simmons' estate, or any of his successors in interest.
An auction was held pursuant to the Court's decree on December 1, 1998 at which Mr. Smith bid $25,500.00 for the property. Mr. Smith did not have adequate funds to consummate the purchase and a second auction took place on January 5, 1999.
Prior to the second auction, Mr. Leach borrowed $20,000.00 from a friend, Morgan Galbreath, III, so that he (Mr. Leach) could bid for the property at the January 5, 1999 auction. The terms of the loan were oral, the loan was unsecured, and was personal in nature to Mr. Leach.
Mr. Leach successfully purchased the property at the auction with a bid of $20,000.00.
A special commissioner's report was prepared by Mr. Leach and presented to the Special Commissioner, Carl A. Peter, who filed it with the court on January 14, 1999. The report presented to Mr. Peter and subsequently filed by Mr. Peter makes no mention of the fact that Stephan Simmons was deceased. In his role as Special Commissioner, Mr. Peter was a judicial official and any fraud perpetrated on Mr. Peter is a fraud on a tribunal.
In or about February or March of 1999, Mr. Leach sent Stephan Simmons' parents' copies of the report of the special commissioner, Mr. Leach's Notice of Entry of a Decree of Confirmation and the Decree, and Mr. Leach's Petition for an Order to Show Cause why Mr. Smith should not be held in contempt for failing to buy the property after a successful bid at the first auction.
The contempt petition, as filed with the court, did not state that Mr. Simmons was deceased. Such a filing constitutes fraud on the tribunal.
Mr. Leach prepared a Decree of Confirmation for entry by the court. The Decree of Confirmation did not report that Mr. Simmons was deceased. The Decree of Confirmation was entered by the court on March 10, 1999. The omission of the fact of Mr. Simmons' death constitutes a fraud on the tribunal.
Mr. Leach prepared the Special Commissioner's Deed which conveyed the property to Mr. Leach ". . . in his capacity as attorney for Stephan Simmons, deceased, in fee simple absolute . . . ." The Special Commissioner's Deed was executed on March 10, 1999 and recorded in the land records of King and Queen County Circuit Court on March 26, 1999.
An order authorizing disbursement of the auction proceeds was entered on March 30, 1999. Neither did the Order report that Stephan Simmons was deceased nor was the court otherwise informed of this fact.
Pursuant to the order of disbursement, the clerk of the King and Queen County Circuit Court issued a check to Mr. Leach for the net proceeds from the sale, $13,290.00, dated March 31, 1999. Mr. Leach did not deposit the check in his trust account, but endorsed the check directly over to Mr. Galbreath, in partial satisfaction of Mr. Leach's personal debt to Mr. Galbreath. This diversion of funds was accomplished without informing Mr. Simmons' parents, or anyone who might be considered Mr. Leach's client.
Subsequent to the auction of the real property, it was agreed between Mr. Leach and Mr. Galbreath that Mr. Leach would convey the property to Mr. Galbreath. In return, Mr. Galbreath would pay to Mr. Leach the sum of $7,800.00 at the time of the conveyance. Mr. Galbreath would then market the property, and upon its sale, pay $7,800.00 to Mr. Simmons' parents. Mr. Galbreath would retain any additional money realized by that sale.
The agreement was executed on April 19, 1999 when Mr. Leach conveyed the property to Mr. Galbreath. Mr. Leach received the $7,800.00 which he considered his own, and spent to his personal benefit, being of the opinion that one of the ten acre parcels was rightly his pursuant to the original fifty percent contingent fee agreement with Mr. Simmons. Mr. Galbreath subsequently sold the property and, as agreed, paid Mr. Simmons' parents $7,800.00. At no time prior to or at the time of the conveyance to Mr. Galbreath was the agreement or the exchange of funds revealed to Mr. Simmons' parents.
On June 11, 2001, Mr. Leach filed a garnishment action against Mr. Smith relating to the original debt. In the action, Mr. Smith is given credit for $13,290.00, with an additional claim of $56.00 of court costs for a total due of $19,556.00. The garnishment ended upon Mr. Smith's assertion of bankruptcy.
By letter dated November 15, 2001, Mr. Leach wrote to Roy Lasris, Esq. indicating, among other things, that he was prepared to recommend to Mr. and Mrs. Simmons that they settle the outstanding judgment against Smith for the amount of $12,500.00 and stating that the payoff amount was about $25,000.00. Mr. Leach had no authority to act as counsel to Mr. and Mrs. Simmons. Mr. Leach admitted to the Board that his letter to Mr. Lasris may have given Mr. Lasris the impression that Mr. Leach was acting as counsel to Mr. and Mrs. Simmons. The Board finds that the letter was intended to do so.
In 2002 Mr. Leach filed a garnishment against Mr. Smith and put a lien against Mr. Smith's house.
On May 17, 2002, in a garnishment hearing in the Circuit Court for the City of Williamsburg and County of James City Mr. Smith objected to the fact that he had not been given credit for the sale of his property. The court made certain inquiries of Mr. Leach the answers to which caused the court to investigate the circumstances before proceeding further.
In a letter dated April 22, 2002, Mr. and Mrs. Simmons demanded that Mr. Leach provide information relating to any money received for their son. In this letter Mr. and Mrs. Simmons stated "You are not to assume that you are our lawyer".
In a letter dated May 16, 2002, Mr. Leach wrote to Mrs. Simmons, and enclosed a copy of his and Stephan Simmons' fee agreement. He informed Mrs. Simmons that judgments had been obtained against Mr. Smith, that a garnishment summons was pending, and that someone needed to qualify to administer Mr. Stephan Simmons estate. The letter did not reveal to Mrs. Simmons the Galbreath loan or the Galbreath agreement.
In a letter dated May 28, 2002 to the Honorable Samuel T. Powell, III, Mr. Leach enclosed a copy of his May 16, 2002 letter to Mrs. Simmons. The May 28, 2002 letter did not reveal to the court the circumstances of the Galbreath loan or the Galbreath agreement.
In a letter dated June 3, 2002, Mr. Leach revealed to Mr. and Mrs. Simmons, for the first time, many of the facts concerning the Galbreath loan and agreement. A copy of this letter was sent to Judge Powell.
On June 5, 2002 Mr. and Mrs. Simmons qualified as co-administrators of the Estate of Stephan Simmons.
On or about July 8, 2003, Mr. Leach filed a claim against Mr. and Mrs. Simmons in the General District Court for the City of Williamsburg and County of James City claiming attorney's fees, in quantum meruit, in the amount of $10,000.00. Mr. Leach also claimed $4,950.00 against Mr. and Mrs. Simmons stating that Mr. and Mrs. Simmons engaged in efforts to ". . . (1) tortiously interfere with plaintiffs [sic] contract with their son to (2) injure him in his reputation and profession in violation of Virginia Code Section 18.2-499 to (3 [sic] perpetrate a fraud on the court above and on the plaintiff and to (4) defame the plaintiff per se in that the reasonable inference to be drawn from the words used in their letter delivered to Judge Powell falsely imputed to plaintiff the crime of embezzlement."
In consideration of the foregoing factual findings, the Board finds that Mr. Leach has engaged in professional misconduct as follows:
DR 1-102. Misconduct
(A) A lawyer shall not:
(3) Commit a crime or other deliberately wrongful act that reflects adversely on the lawyer's fitness to practice law.

Mr. Leach's scheme to collect his former client's judgment, and in so doing Mr. Leach's fee, including negotiating a personal loan in order to purchase the land at auction, the transfer of the proceeds from the auction to Mr. Galbreath, and the transfer of title to the property to Mr. Galbreath, all without informing Mr. and Mrs. Simmons or any successors to Stephan Simmons interest of his actions, constitutes a deliberately wrongful act that reflects adversely on the lawyer's fitness to practice law. This being the case, the Board need not decide if such action constitutes the crime of embezzlement.

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation which reflects adversely on a lawyer's fitness to practice law.

Mr. Leach's continuing efforts to enforce the judgment of his deceased client, without informing the court or a representative of the client's estate was deceitful and constituted a misrepresentation of fact in that Mr. Leach no longer represented Stephan Simmons, due to his death.
DR 2-105. Fees.
(A) A lawyer's fees shall be reasonable and adequately explained to the client.

Mr. Leach's taking of $7,800.00 in partial satisfaction in what he considered to be his fee was without explanation to anyone. The fact that Mr. Leach's client was deceased does not relieve him of his responsibility to adequately explain this fee to the former client's lawful representative or the court.
DR 2-108. Terminating Representation.
(A) Except as stated in Paragraph (C), a lawyer shall withdraw from representing a client if:

(1) Continuing the representation will result in a course of conduct by the lawyer that is illegal or inconsistent with the disciplinary rules;

Mr. Leach's failure to withdraw as counsel upon the death of his client or to apply to the court for direction is inconsistent with the disciplinary rules, as well as the fundamental principles controlling the lawyer client relationship in that a lawyer has no client upon that client's death.
DR 7-102. Representing a Client Within the Bounds of the Law.

(A) In his representation of a client, a lawyer shall not:

(2) Knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such a claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.

Mr. Leach's filing of a creditor's bill subsequent to his former client's death is a claim that is unwarranted under existing law, as he then had no client to represent.
(3) Conceal or knowingly fail to disclose that which he is required by law to reveal.

Mr. Leach's failure to disclose Stephan Simmons death constitutes a failure to disclose that which he is legally required to reveal.
(5) Knowingly make a false statement of law or fact.

Mr. Leach's various filings subsequent to his former client's death without revealing the fact of such death constitutes a false statement of fact.
DR 9-102. Preserving Identity of Funds and Property of a Client.
(A) All funds received or held by a lawyer or law firm on behalf of a client, estate, or a ward, residing in the state or from a transaction arising in the state, other than reimbursement of advances for costs and expenses, shall be deposited in one or more identifiable trust accounts and, as to client funds maintained at a financial institution in a state in which the lawyer maintains a law practice, and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:

(1) Funds reasonably sufficient to pay service or other charges or fees imposed by the financial institution 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 the client in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.

A violation of these rules was admitted by Mr. Leach.
(B) A lawyer shall:

(1) Promptly notify a client of the receipt of his funds, securities, or other properties.


(2) Identify and label securities and properties of a client promptly upon receipt and place them in a safe, deposit box, or other place of safekeeping as soon as practicable.

A violation of these rules was admitted by Mr. Leach.
Rules of Professional Conduct:
RULE 1.15 Safekeeping Property
(c) 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.

Mr. Leach's failure to remit funds to Mr. and Mrs. Simmons, or to the court, following Mr. and Mrs. Simmons inquiry regarding their son's estate constitutes a violation of this Rule.
RULE 1.16 Declining or Terminating Representation.
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) The representation will result in violation of the Rules of Professional Conduct or other law;

Mr. Leach's continued purported representation of Stephan Simmons subsequent to January 1, 2000 constitutes a violation of this Section. Further, the Board finds that Mr. Leach represented himself as counsel to Mr. and Mrs. Simmons in his November 15, 2001 letter to Roy Lasris, Esquire. Mr. Leach, in his own testimony, acknowledged that his letter could have had the effect of suggesting a lawyer client relationship between Mr. Leach and Mr. and Mrs. Simmons.
RULE 3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:

(1) Make a false statement of fact or law to a tribunal;

Mr. Leach's failure to give Mr. Smith credit for the previous sale of his real property in the garnishment action filed against Mr. Smith constituted a false statement of fact to the tribunal.
RULE 8.4 Misconduct.
It is professional misconduct for a lawyer to:

(b) commit a criminal or deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer;

Once again, Mr. Leach's failure to give Mr. Smith credit for the sale of his property in the garnishment action filed against Mr. Smith violated this Rule. In addition, Mr. Leach's continued participation in legal proceedings such as the garnishment subsequent to January 1, 2000, constitutes a violation of this rule.
(c) engage in professional conduct involving dishonesty, fraud, deceit, or misrepresentation.

Mr. Leach's letter to Mr. Lasris, in which he implied that he was acting as counsel for Mr. and Mrs. Simmons was deceitful conduct in violation of this Rule.
The Board finds that the Bar did not meet its burden with respect to the following Rules:
DR 5.101. Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.

(A) A lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client may be affected by his own financial, business, property, or personal interests, except with the consent of his client after full and adequate disclosure under the circumstances.

The Board feels as if this Rule pertains to conditions existing at the time the lawyer accepts employment. Mr. Leach's misconduct arose due to events and circumstances occurring after the acceptance of employment.
RULE 1.5. Fees.
(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood , if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

The Board finds insufficient evidence to support violations of these Rules. The Board is of the opinion however that the filing of the suit against Mr. and Mrs. Simmons for fees would constitute a violation of these Rules but for the fact that the filing occurred subsequent to this certification. The Board therefore will not consider the actions of Mr. Leach which occurred following certification in a consideration of alleged Rule violations.
RULE 1.15 Safekeeping property.
(a) All funds received or held by a lawyer or law firm on behalf of a client, other than reimbursement of advances for costs and expenses, shall be deposited in one or more identifiable escrow accounts maintained at a financial institution 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 service or other charges or fees imposed by the financial institution may be deposited therein; or

(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 it is due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.

The Board finds that none of Mr. Leach's offending behavior in regard to safekeeping of property occurred subsequent to the effective date of this Rule, January 1, 2000.
(c) A lawyer shall:

(1) promptly notify a client of the receipt of the client's funds, securities, or other properties;

(2) identify and label securities and properties of a client promptly upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable;

The Board finds that none of Mr. Leach's offending behavior in regard to receipt and identification of property occurred subsequent to the effective date of this Rule, January 1, 2000.
RULE 3.1 Meritorious Claims And Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

The Board is of the opinion that this Rule relates to the merits of a particular claim. We do not find that Mr. Leach's claims were without merit.
Following the Board's announcement of its findings, the Bar introduced Mr. Leach's disciplinary record. Mr. Leach's record consists of three prior instances of discipline.
Mr. Leach was found to have engaged in misconduct on December 19, 1990. The misconduct was the failure to file a criminal petition for appeal. The matter was dismissed with terms, specifically, that Mr. Leach attend a professional responsibility course offered by the Committee on Lawyer Discipline. Mr. Leach complied with this term and the matter was closed.
Mr. Leach was disciplined on December 7, 1999 as a result of his mishandling his accounting responsibilities as the executor of an estate. Mr. Leach was privately reprimanded.
Finally, Mr. Leach was disciplined on August 20, 2003 for mishandling a bankruptcy case. Mr. Leach received a public reprimand with terms.
Mr. Leach presented two witnesses in mitigation of his misconduct. Mr. Leach's first witness was Leslie Wilmer Bailey, Jr., a practicing lawyer in Tennessee and Virginia. Mr. Bailey was an Assistant Commonwealth's Attorney in Scott County and the Lee County Attorney. He testified he has known Mr. Leach since law school. He is of the opinion that Mr. Leach's level of integrity is very high and that Mr. Leach cares greatly about his clients.
Dr. John Lanzalotti testified in support of Mr. Leach. He stated that he has known Mr. Leach for approximately twenty-one years and that Mr. Leach has great integrity. He is greatly surprised by the nature of these allegations.
Finally, Mr. Leach testified in his own behalf in mitigation. Mr. Leach testified that he takes great pride in his profession and enjoys the practice of law. He states that he was embarrassed by his mistakes. He further stated that "perhaps I got a little carried away".
The Board was impressed with the quality and sincerity of Mr. Leach's character witnesses. Both are highly respected men in their communities whose opinions are entitled to significant respect. Nevertheless, the opinions of these gentlemen cannot negate the egregious nature of Mr. Leach's admitted conduct.
The Board considers the following factors to be aggravating: Mr. Leach's record as previously discussed in this Order; Mr. Leach's selfish motives throughout this course of events; that Mr. Leach engaged in multiple instances of misconduct; Mr. Leach's refusal or reluctance to acknowledge the wrongful nature of his conduct; the fact that the victims of Mr. Leach's misconduct were vulnerable due to their age and the death of their son; and Mr. Leach's substantial experience.
The Board finds Mr. Leach's conduct to be reprehensible. Despite the fact of Mr. Leach's client's death, he continued the farce of representation for an additional four years. One could possibly understand an initial misstep due to the unusual circumstance of the death of a client, but no reasonable person could continue the deception for so long unless it was intentional.
It is apparent from the facts of this case that Mr. Leach's motivation for his misconduct was selfish. In every instance, he put his interest ahead of his deceased client's interest. Mr. Leach's sole concern in this case was to protect and collect his fee. Mr. Leach made the case his own, misappropriated Mr. Simmons' estate's money, and in essence misappropriated the action.
Perhaps most revealing, is the fact that Mr. Leach simply doesn't appreciate the gravity of his misconduct. He describes his conduct as a mistake in judgment and as having been "carried away". Mr. Leach's written response to Judge Powell's legitimate inquiry can only be described as defiant. Perhaps worst of all, Mr. Leach saw fit only a few weeks prior to this hearing, to sue Mr. and Mrs. Simmons for his fee and for defamation. Mr. Leach felt defamed by the fact that Mr. and Mrs. Simmons asked "where is this money?" Although the Board refrained from considering this suit in the misconduct phase of this hearing, the Board feels it is appropriate to consider it in the sanction phase. We find it to be a significant aggravating factor.
The Board is of the unanimous opinion that the only appropriate sanction sufficient to protect the public from Mr. Leach is revocation of his license to practice law. It is so ordered.
Duties of the Respondent
It is ORDERED that, as directed in the Board's August 21, 2003 Summary Order in this matter, a copy of which was served on Respondent by certified mail, Respondent must comply with the requirements of Part 6, Section IV, Paragraph 13 M, of the Rules of the Supreme Court of Virginia. All issues concerning the adequacy of the notice and arrangements required by the Summary Order shall be determined by the Board.
It is further ordered pursuant to Paragraph 13 B.8.c.1 of the Rules of the Supreme Court of Virginia, that the Clerk of the Disciplinary System shall assess costs against the Respondent.
It is finally ordered that the Clerk of the Disciplinary System shall forward a copy of this order, by certified mail, return receipt requested, to the Respondent, George Robert Leach, at his address of record with the Virginia State Bar, 1311 Jamestown Road, Williamsburg, Virginia 23185, by regular mail to Michael L. Rigsby, Respondent's Counsel, at Carrell, Rice & Rigsby, Forrest Plaza II, Suite 309, 7275 Glen Forest Drive, Richmond, Virginia 23226, and hand delivered to Harry M. Hirsch, Deputy Bar Counsel, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800.
ENTERED this ______ day of September, 2003.

VIRGINIA STATE BAR DISCIPLINARY BOARD

By:_________________________________________
Roscoe B. Stephenson, III, Chairman