Delk v. Virginia State Bar

355 S.E.2d 558, 233 Va. 187, 3 Va. Law Rep. 2256, 1987 Va. LEXIS 183
CourtSupreme Court of Virginia
DecidedApril 24, 1987
DocketRecord 860133
StatusPublished
Cited by9 cases

This text of 355 S.E.2d 558 (Delk v. Virginia State Bar) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delk v. Virginia State Bar, 355 S.E.2d 558, 233 Va. 187, 3 Va. Law Rep. 2256, 1987 Va. LEXIS 183 (Va. 1987).

Opinions

CARRICO, C.J.,

delivered the opinion of the Court.

In this appeal of right from an order of the Virginia State Bar Disciplinary Board (the Board), Edward Delk, a Norfolk attorney, challenges the Board’s action in suspending for three years his license to practice law in this Commonwealth. The suspension was based upon the Board’s finding that Delk had violated Disciplinary Rules 9-102(A), -102(B)(3), and -102(B)(4),1 all of which [189]*189deal with a lawyer’s duties concerning the handling of client funds and property.

The record shows that in the years 1981 and 1982, Delk represented the Berkley Citizens Mutual Savings and Loan Association of Norfolk (the Association) in connection with real estate loans made by the Association. In April 1981, the Association employed Delk to close a $42,000 loan to Wilson Washington to facilitate his purchase of a home upon which it was foreclosing.

On April 30, 1981, the Association delivered to Delk its check for $40,410.58, representing the amount of the Washington loan less the Association’s charges. Delk was to close the loan, withhold his closing costs, and, because the Association was “selling real estate owned,” disburse the balance to the Association “as soon as possible” after the closing.

Delk deposited the check in his trust account on April 30 and proceeded to close the loan. He failed, however, to disburse the balance, amounting to $38,398.26, to the Association.

Some fourteen months later, the Association discovered it had not received payment from Delk of the amount due on the Washington loan transaction. When an official of the Association told Delk the loan proceeds had not been received, Delk had an audit made of his trust account. The audit confirmed that the Association had not been paid and also revealed that there were insufficient funds in the account to cover payment of the amount due the Association.

Delk then applied for and secured a loan from the Association for $50,000, giving his home as security. On July 2, 1982, using part of the proceeds from this loan, Delk paid the Association the amount of $38,398.26 due on the Washington loan transaction. About six months later, Delk paid the interest accruing on the $38,398.26 figure during the time the money was withheld from the Association.

Included in the record of this case as exhibits are bank statements showing the status of Delk’s trust account during the fourteen-month period from the time Delk deposited the $40,410.58 [190]*190check on April 30, 1981, until the time he paid the Association on July 2, 1982. These statements show that during this period, the account was overdrawn 24 times, ranging in amount from as little as $16.06 to as much as $21,386.50. The statements also show that on 217 business days during the same period, the balance in the account was insufficient to pay the $38,398.26 balance due the Association.

Also included in the record as exhibits are 86 checks drawn on the trust account during the period in question. Totalling some $73,800, these checks were all signed by Delk and made payable to himself. Some bore explanatory language such as “Payroll Account,” “Loan,” “Loan Transfer,” and “Transfer to Business Account.” Many bore no explanation at all and are not satisfactorily explained elsewhere in the record.

We first consider a motion made by the State Bar to strike several assignments of error filed by Delk. The State Bar contends that these assignments were not filed timely and should not be considered.

The Board’s motion is based upon Part 6, § IV, Para. 13(G)(2), Rules of Court. This paragraph provides that an attorney appealing from an order of the Board “shall file with the Executive Director [of the State Bar] a notice of appeal and assignments of error within twenty-one days after the order of the Board is mailed to him or to his counsel.” The paragraph provides further that the filing of a notice of appeal and assignments of error “within the time prescribed is hereby determined to be a jurisdictional requirement.”

The record shows that the Board entered its order suspending Delk’s license on November 19, 1985, and that the order was mailed to Delk on December 13, 1985. Delk filed a notice of appeal and assignments of error on December 18, 1985, well within the twenty-one day period prescribed by Para. 13(G)(2). On May 12, 1986, however, Delk filed additional assignments of error, raising new questions, and also designated for printing certain evidentiary material which had not been proffered or introduced before the Board.

We think the State Bar’s motion to strike is well-taken and should be granted. Paragraph 13(G)(2) clearly establishes the timely filing of assignments of error as a jurisdictional prerequisite to the consideration of questions presented by such assignments. Just as clearly, Delk’s filing of the additional assignments of error [191]*191was untimely. Hence, we will not consider the additional assignments.2

This leaves for consideration two original assignments of error upon which Delk relies in seeking reversal of the Board’s action. Both these assignments relate to the sanction imposed upon Delk and present the single question whether the sanction is “arbitrary and excessive” or “violates fundamental fairness.”

Delk first contends that “[t]he discipline prescribed in the instant case is arbitrary and excessive [because] no client has filed a complaint against [him], ... no client has lost any money, and . . . no finding of a breach of moral turpitude has been made.” Delk adds that suspension of his license was unwarranted because his “poor accounting methods had been corrected months before any allegations of misconduct were made.”

We disagree with Delk. There is no provision in the statutes or rules relating to the discipline of attorneys which requires a complaint by a client before lawyer misconduct may be investigated. Indeed, Code § 54-74, relating to judicial suspension or revocation of lawyers’ licenses, permits complaint by “any person.” And Part 6, § IV, Para. 13(B)(5)(a), Rules of Court, relating to proceedings before district committees, provides that upon receipt of a complaint or evidence that lawyer misconduct has occurred, the appropriate district committee shall investigate the matter. Hence, a district committee may instigate a disciplinary proceeding on its own, as the present proceeding apparently was instigated.

Neither is the loss of money by a client a prerequisite to the suspension of an attorney’s license for mishandling the client’s funds. A similar contention was made in Maddy v. District Committee, 205 Va. 652, 139 S.E.2d 56 (1964), a case involving several charges, including allegations the lawyer delayed in prosecuting clients’ cases. The lawyer argued on appeal that his license should not have been suspended because “none of his clients suffered ‘any prejudice to his legal rights’ as a result of [the lawyer’s] delay.” Id. at 658, 139 S.E.2d at 61. We said, however, that the lack of prejudice was “not enough to exonerate” the lawyer because “[i]n disbarment proceedings it is not necessary to show

[192]*192that an attorney’s actions prejudiced his client’s legal rights.” Id. It is sufficient if there is “potential injury to a client.” ABA

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Delk v. Virginia State Bar
355 S.E.2d 558 (Supreme Court of Virginia, 1987)

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Bluebook (online)
355 S.E.2d 558, 233 Va. 187, 3 Va. Law Rep. 2256, 1987 Va. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delk-v-virginia-state-bar-va-1987.