BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD


IN THE MATTERS OF BENJAMIN THOMAS REED
VSB Docket Nos. 01-021-0137 (Terry Hendricks)
01-021-1360 (Marvin T. Owens)
01-021-3005 (Artavisus Warren)
01-021-3249 (VSB/Judicial)


ORDER OF SUSPENSION

This matter was certified to the Virginia State Bar Disciplinary Board ("Board") by the Second District Committee, Section I. and was set for hearing on January 24, 2003 before a duly convened panel consisting of John A. Dezio, Chair, Theophlise L. Twitty, Ann N. Kathan, and W. Jefferson O'Flaherty, Lay Member.

Pursuant to Virginia Supreme Court Rules of Court Part 6, Section IV, (13B5c., the Virginia State Bar, by Paul D. Georgiadis, Assistant Bar Counsel, and the Respondent, Benjamin Thomas Reed, by John R. Fletcher, Respondent's Counsel, entered into a proposed agreed disposition and presented it to the convened panel. The bar and the Respondent waived the requirement for a full panel and agreed to have the proposed agreed disposition considered by the panel of four.

The Chair polled the panel members to determine whether any member had a personal or financial interest in this matter that might affect or reasonably be perceived to affect his or her ability to be impartial in this proceeding. Each member, including the Chair, verified that they had no conflicts.

I. FINDINGS OF FACT

During all times relevant hereto, Benjamin Thomas Reed, ("Respondent"), was an attorney licensed to practice law in the Commonwealth of Virginia.

VSB Docket No. 01-021-0137
(Hendricks)

Following the January 11, 2000 sentencing of Terry Allen Hendricks, Respondent was appointed to represent Hendricks on his appeals.

3. On May 8, 2000, Respondent filed a Petition for Appeal in the Court of Appeals of Virginia. Therein he cited Anders v. California, 386 U.S.738 (1967).

4. On May 17, 2000, the Court of Appeals issued an order finding that Respondent's brief did not comply with Anders as it was "no more than a conclusory assessment by counsel that the appeal lacks merit." The Court of Appeals directed Respondent to file within fifteen (15) days an amended petition for appeal. With the Court's decision, the Clerk of the Virginia Court of Appeals forwarded a memorandum entitled How to Comply with Anders in the Court of Appeals of Virginia.

5. Notwithstanding the Court(s order of May 17, 2000, Respondent failed to file an amended petition for appeal.

6. On June 16, 2000, the Court of Appeals again ordered Respondent to file an amended petition for appeal, ordering that it be filed on or before June 26, 2000, together with a written statement explaining his failure to previously comply with the May 17, 2000 order.

7. On June 26, 2000, Respondent filed an Amended Petition for Appeal, the required

Motion for Leave to Withdraw, Motion for Extension of Time, and letter of explanation as to Respondent's failure to comply with the May 17, 2000 order. Therein, Respondent explained that his failure to comply with the Court's order of May 17 was due to competing demands of consecutive trials for a capital murder defendant.

VSB Docket No. 01-021-3249
(VSB/Judicial)
(Stewart)

8. In 1999, Respondent was appointed to represent Nikita Ray Stewart ("Stewart") in the
appeal of his criminal conviction.

9. On December 21, 1999, the Court of Appeals of Virginia denied Stewart's appeal.

10. On or about December 21, 1999, Respondent advised Stewart by letter that as he believed
there was no basis for further appeal, he was concluding his handling of the appeal.

11. Having so advised Stewart and receiving no instruction from Stewart to appeal further,
Respondent did not appeal the matter to the Supreme Court of Virginia.

12. Thereafter, Stewart obtained a Writ of Habeas Corpus granting leave for a delayed appeal
to the Supreme Court of Virginia.

VSB Docket No. 01-021-3249

17. On April 3, 2001, the Circuit Court of the City of Norfolk reappointed Respondent as counsel for the appeal.

18. Notwithstanding the enlarged time to file the appeal and his appointment as counsel to do so, Respondent failed to file the appeal to the Supreme Court of Virginia.

VSB Docket No. 01-021-1360
(Owens)

19. On or about August 5, 1994, the Circuit Court of the City of Virginia Beach appointed Respondent to represent Marvin T. Owens ("Owens"), who was facing multiple felony counts arising from the murder of four (4) individuals, including his grandmother. At the time of his trial, Owens was a juvenile, charged as an adult.

20. Respondent represented Owens through his trial and appeals, which concluded with the order dated August 1, 1997, in which the Virginia Supreme Court refused to grant an appeal. By letter dated August 8, 1997, Respondent advised Owens of the Virginia Supreme Court's order.

21. In his letter of August 8, 1997 to Owens, Respondent also advised that he assumed Owens wished him to pursue further appeal "through the Federal Court system." Accordingly, he advised Owens that he would "research...and protect...and do what is necessary to protect your right of appeal."

22. Notwithstanding Respondent's assumption of such duties, Respondent failed to undertake
such research and failed to take any further actions, including, but not limited to, pursuing Federal Habeas relief or a Baker motion.

At no time did Respondent advise Owens that he would not be pursuing or protecting
Owens' further avenues or relief.

VSB Docket No. 01-021-3005
(Warren)

On or about June 19, 2000, Respondent was appointed to represent Artavisus Warren ("Warren") to petition the Court for a new trial pursuant to the mandates of Baker v. Common-wealth, 28 Va. App. 306, 509 S.E.2d 394 (1998). In his transmittal letter to Respondent, the Circuit Court Clerk advised Respondent that the Court "has requested that counsel file briefs on the issue at hand."

Between June 26, 2000 and July 31, 2000, Warren wrote three (3) letters to the Respondent inquiring about his case as well as the conditions of his incarceration.

Respondent failed to reply to Warren's correspondence until September 6, 2000, when he advised him of the prospects and risks of his case.

Thereafter, Warren wrote Respondent on ten (10) further occasions from September 22, 2000 to June 4, 2001 inquiring about the status of his case.

To the ten (10) letters, Respondent never replied.

On June 29, 2001, Respondent filed a five page Motion to Set Aside and Vacate pursuant
to Baker v. Commonwealth, 28 Va. App. 306, 509 S.E.2d 394 (1998).

II. NATURE OF MISCONDUCT

The Board finds that such conduct on the part of the Respondent in VSB Docket No. 01-021-0137 (Hendricks) violates Rule 1.3.

The Board finds that such conduct on the part of the Respondent in VSB Docket No. 01-021-3249 (VSB/Judicial/Lawson) violates Rule 1.3.

The Board finds that such conduct on the part of the Respondent in VSB Docket No. 01-021-1360 (Owens) violates Rules 1.3 and 1.4.

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.

The Board finds that such conduct on the part of the Respondent in VSB Docket No.
01-021-3249 (VSB/Judicial/Stewart) does not constitute a violation of the Rules of Professional Conduct.
The Board finds that such conduct on the part of the Respondent in VSB Docket No.
01-021-3005 (Warren) does not constitute a violation of the Rules of Professional Conduct.

IMPOSITION OF SANCTION OF SUSPENSION OF THIRTY (30) DAYS

The Board, having considered all evidence before it and having considered the nature of the Respondent's actions, and having considered the Respondent's prior disciplinary record, ORDERS pursuant to Part 6, Sec. IV, Para. 13.I.2.f.2.d. of the Rules of the Virginia Supreme Court that the license of the Respondent, Benjamin Thomas Reed, to practice law in the Commonwealth of Virginia be, and the same is, hereby suspended for thirty (30) days, effective April 15, 2003. It is further ORDERED that Respondent must comply with the requirements of Part 6, Section IV, Paragraph 13.M., of the Rules of the Supreme Court of Virginia, on or before June 14, 2003. The time for compliance with said requirements runs from April 15, 2003. All issues concerning the adequacy of the notice and arrangements required by the Order shall be determined by the Board.

It is further ORDERED that a copy teste of this Order shall be mailed by certified mail, return receipt requested, to the Respondent, Benjamin Thomas Reed, at 4504 Colley Avenue, Norfolk, Virginia, 23508, his last address of record with the Virginia State Bar; by first class mail, postage prepaid, to his counsel of record, John R. Fletcher, Esquire, Tavss, Fletcher, Maiden & Reed, P.C., P.O. Box 3747, Norfolk, VA 23514; and hand delivered to Paul D. Georgiadis, Assistant Bar Counsel, Virginia State Bar, Eighth & Main Building, Suite 1500, 707 East Main Street, Richmond, Virginia 23219-2800.

Pursuant to Part 6, Sec. IV, Para. 13.B.8.c. of the Rules, the Clerk of the Disciplinary System shall assess costs.
Terry Griffith, Chandler & Halasz, Registered Professional Reporters, P.O. Box 9349, Richmond, Virginia 23227, (804) 730-1222, was the reporter for the hearing and transcribed the proceedings.

ENTERED THIS ORDER THIS ____________ DAY

OF __________________________________, 2003

VIRGINIA STATE BAR DISCIPLINARY BOARD

By_________________________________________
John A. Dezio, Chairman