VIRGINIA:

IN THE MATTER OF

JEFFREY BOURKE RICE

VSB DOCKET NO. 02-052-0197

The matter came before the Board on the District Committee Determination for Certification by the Fifth District Committee Section II.

VSB Exhibits 1 through 11 were admitted without objection. The Bar and Respondent entered into a stipulation of fact admitted as VSB Exhibit # 12 without objection. The Board makes the following findings of fact on the basis of clear and convincing evidence:

• At all times relevant hereto, Jeffrey Bourke Rice, hereinafter the "respondent", has been an attorney licensed to practice law in the Commonwealth of Virginia and his address of record with the Virginia State Bar has been 10521 Judicial Drive, Fairfax, Virginia, 22030. The respondent received proper notice of this proceeding as required by Part Six, §IV, ¶13 (E) and (I)(a) of the Rules of Virginia Supreme Court.
• The Complainant, Curtis Lee Thompson, hereinafter referred to as "Thompson", was convicted in Madison County, Virginia, of a number of felonies and was sentenced to serve five (5) years in the Virginia State Penitentiary in December, 1999.
• Mr. Thompson was still being housed in Culpeper County Jail in January, 2001, on behalf of Madison County.
• Mr. Thompson communicated with respondent in January, 2001, requesting respondent to represent him on a motion to be filed in Madison County Circuit Court asking the court to reconsider its sentence imposed upon Thompson for his various felony convictions.
• Respondent quoted a fee to Thompson of Seven Hundred Fifty Dollars ($750.00) to engage him for the representation. Respondent had conversations with Thompson's mother and sister regarding payment of the quoted fee. On or about February 8, 2001, Thompson paid to respondent the sum of Seven Hundred Dollars ($700.00) to engage respondent in representation in Madison County to request the court to reconsider the imposition of the sentence previously imposed upon him in December, 1999, for various felony convictions.
• After Thompson had paid respondent the fee of Seven Hundred Dollars ($700.00), Thompson faxed respondent a letter dated February 21, 2001, requesting information about a court date and time on the motion for reconsideration to be filed in Madison County. Additionally, Thompson faxed a letter to respondent dated February 22, 2001, asking whether or not respondent had filed the motion for reconsideration in Madison County.
• Pursuant to Virginia Code ß 19.2-203 the circuit court that sentences a defendant may reconsider the imposition of a sentence upon a defendant "at any time before the person is transferred to the Department [of Corrections]." Therefore, time was of the essence in the representation undertaken by respondent on behalf of Thompson because the local circuit court could only maintain jurisdiction to reconsider Thompson's sentence while Thompson remained housed in the Culpeper County Jail.
• On March 21, 2001, respondent filed a motion to re-consider Thompson's sentence and a praecipe noticing the Commonwealth that the motion would be heard in the Madison County Circuit Court on April 11, 2001.
• On March 22, 2001, custody of Thompson was transferred from Culpeper County Jail to the Virginia Department of Corrections. The transfer of custody to the Virginia Department of Corrections deprives the Madison County Circuit Court of any further jurisdiction to modify Thompson's sentence pursuant to Virginia Code ß 19.2-303.
• Madison County Circuit Court has motion days on the second Wednesday of each month. Respondent did not file a motion to reconsider on behalf of Thompson prior to the motion days available on February 14, 2001, or March 14, 2001.
• Respondent attempted to explain the delay as necessary because he was attempting to get a pre-sentence report from Thompson's counsel who represented him in the trial and at sentencing. Counsel delayed in sending the pre-sentence report to respondent, therefore respondent obtained permission from the court to get a copy of the pre-sentence report by order entered March 28, 2001. It should be noted that the motion for reconsideration was filed one week prior to the entry of the order granting respondent permission to get a copy of the pre-sentence report.
• Respondent further explained the delay as being caused by Thompson's request for respondent to communicate with two investigators to see if the investigators would be responsive to receiving information from Thompson in return for assistance from the investigators on the motion to ask the court to reconsider his sentence. It should be noted that the two faxes sent by Thompson to respondent make no mention of the request to speak to the investigators and that respondent did not produce any independent evidence that he had spoken with the investigators on behalf of Thompson.
• Respondent did attend the hearing in Madison County Circuit Court scheduled for April 11, 2001. The Court appropriately denied the motion for reconsideration of Thompson's sentence because it no longer had jurisdiction over Thompson. Thompson learned of the circuit court's decision denying the request for reconsideration after he called the respondent's office.
• On October 22, 2002, respondent was served in person with a summons to appear before the District Committee for a hearing concerning this complaint. The hearing was scheduled for November 19, 2002. Respondent failed to appear at the hearing.
• Respondent attempted to explain his failure to appear at the hearing on November 19, 2002, before the District Committee by stating that he failed to put the hearing on his calendar. Respondent stated that he had no scheduling conflicts for the hearing on November 19, 2002.

The Certification charged violations of the following provisions of the Virginia Rules of Professional Conduct:

RULE 1.3 Diligence

• A lawyer shall act with reasonable diligence and promptness in representing a client.

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.

RULE 8.1 Bar Admission and Disciplinary Matters

An applicant for admission to the Bar, or a lawyer in connection with a bar admission application, in connection with any certification required to be filed as a condition of maintaining or renewing a license to practice law, or in connection with a disciplinary matter, shall not:

• fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.

Upon review of the foregoing findings of fact, upon review of exhibits presented by Bar Counsel on behalf of the VSB as Exhibits 1 through 11, and the stipulation of facts admitted as VSB Exhibit 12, upon evidence from witnesses presented on behalf of the Bar and upon evidence presented by respondent in the form of his own testimony, and at the conclusion of the evidence regarding misconduct, the Board recessed to deliberate. After due deliberation the Board reconvened and stated its findings as follows:

• The Board determined that the Bar failed to prove by clear and convincing evidence any violation of Rule 1.4(a), (b), and (c).
• The Board determined that the Bar did prove by clear and convincing evidence that the respondent was in violation of Rule 1.3 (a) and Rule 8.1(c).

Thereafter, the Board received further evidence of aggravation and mitigation from the Bar and respondent, including respondent's prior disciplinary record. The Board recessed to deliberate what sanction to impose upon its findings of misconduct by respondent. After due deliberation the Board reconvened to announce the sanction imposed. The Chair announced the sanction as a one-year suspension of respondent's license to practice law in the Commonwealth of Virginia. In announcing the sanction the Chair informed respondent that the Board placed great emphasis on respondent's lengthy prior disciplinary record, with references to similar types of misconduct and took notice of the effort exerted by the Bar to have notice of the District Committee hearing served upon respondent only to have respondent forget the hearing date and fail to appear at the hearing.

Accordingly, it is ORDERED that the license to practice law in the Commonwealth of Virginia of respondent, Jeffrey Bourke Rice, shall be suspended for one (1) year effective March 28, 2003.

It is further ORDERED that the Clerk of the Disciplinary System shall mail an attested copy of this order to respondent at his address of record with the Virginia State Bar, being 10521 Judicial Drive, Fairfax, Virginia 22030, by certified mail, return receipt requested, and by regular mail to Noel D. Sengel, Senior Assistant Bar Counsel, Virginia State Bar, Suite 310, 100 North Pitt Street, Alexandria, Virginia, 22314-3133.

It is further ORDERED that pursuant to Part Six, §IV, ¶13.B.8.c. of the Rules of the Supreme Court of Virginia, the Clerk of the Disciplinary System shall assess all costs against the respondent.

It is further ORDERED that, as directed in the Board's March 28, 2003, Summary Order in this matter, Respondent must comply with the requirements of Part Six, §IV, ¶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, which may impose a sanction of revocation or suspension for failure to comply with the requirements of this subparagraph.

ENTERED this ___________day of May, 2003.

________________________________________

Roscoe B. Stephenson, III, First Vice Chair

Virginia State Bar Disciplinary Board