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EL-AMIN v. VIRGINIA STATE BAR (59866)


EL-AMIN

v.

VIRGINIA STATE BAR


April 16, 1999
Record No. 981994

SA’AD EL-AMIN

v.

VIRGINIA STATE BAR, ex rel. THE
THIRD DISTRICT COMMITTEE

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Clifford R. Weckstein, Chief Judge Designate,
Dixon L. Foster and J. Warren Stephens, Judges Designate

PRESENT: Carrico, C.J., Compton, Lacy, Keenan,
Koontz, and Kinser, JJ., and Whiting, Senior Justice

OPINION BY SENIOR JUSTICE HENRY H. WHITING


Asserting that Sa’ad El-Amin, a lawyer licensed
to practice in Virginia, had violated certain of its disciplinary
rules, the Virginia State Bar initiated disciplinary proceedings
against him. The preamble to the Virginia Code of Professional
Responsibility states, in pertinent part:

The Virginia Code of Professional
Responsibility consists of three separate but
interrelated parts: Canons, Disciplinary Rules, and
Ethical Considerations.

The Canons are statements of axiomatic
norms, expressing in general terms the standards of
professional conduct expected of lawyers in their
relationships with the public, with the legal system, and
with the legal profession. They embody the general
concepts from which the Disciplinary Rules and the
Ethical Considerations are derived.

The Disciplinary Rules, unlike the
Canons and Ethical Considerations, are mandatory in
character, as stated in DR 1-102(A)(1). The Disciplinary
Rules state the minimum level of conduct below which no
lawyer can fall without being subject to disciplinary
action.

Rules of Supreme Court of Virginia, Pt. 6,
Sect. II.

In a hearing before a three-judge court
conducted under the provisions of Code Sect. 54.1-3935, the
court concluded that El-Amin had committed 15 violations of 9 of
the disciplinary rules in his representation of Annie H. Fant,
Grace R. Williams, and Vernon El-Amin, and the court suspended
his license to practice law for a period of four years. El-Amin
exercised his statutory right to appeal eight of those findings
involving his alleged misconduct, competence and promptness,
causing prejudice to a client, failure to refund advanced fees,
and failure to avoid the appearance of professional impropriety.

In reviewing the findings of a three-judge
court in an attorney disciplinary proceeding, we use the same
standard that we apply to the findings of disciplinary boards:

[O]n review we will make an independent
examination of the whole record, giving the factual
findings . . . substantial weight and viewing
them as prima facie correct
. While not given the
weight of a jury verdict, those conclusions will be
sustained unless it appears they are not justified by a
reasonable view of the evidence or are contrary to law.

Myers v. Virginia State Bar, 226 Va.
630, 632, 312 S.E.2d 286, 287 (1984)(quoting Blue v. Seventh
District Committee
, 220 Va. 1056, 1061-62, 265 S.E.2d 753,
757 (1980)(appeal from disciplinary board)). And, consistent with
well-established appellate principles, we view the evidence and
all reasonable inferences that may be drawn therefrom in the
light most favorable to the State Bar, the prevailing party in
the trial court. Gunter v. Virginia State Bar, 238 Va.
617, 619, 385 S.E.2d 597, 598 (1989).

I. The Fant Matter

Considering the cases arising under El-Amin’s
representation of each client, we begin with his representation
of Fant. Fant employed El-Amin in June 1994 to represent her in
an employment discrimination case. El-Amin agreed to begin
working on the case immediately and required Fant to advance a
retainer fee of $4,000, which she did by check. He indicated to
Fant that he would withdraw funds as he worked on the case and
told Fant that he would deposit the retainer in an escrow
account. Instead, El-Amin cashed the check and produced no record
of having deposited the proceeds in any account.

During the following five months, El-Amin had
little contact with Fant, despite her numerous telephone calls,
letters, and visits to his office. Because of El-Amin’s failure
to respond to her inquiries, Fant wrote him a letter in late
November 1994 discharging him as her counsel and asking for a
refund of the retainer. El-Amin telephoned Fant several days
later and, admitting to her that he had not done certain work on
the case as promised, agreed to refund "the money" by
mail on December 5.

Fant testified that when El-Amin did not refund
the money as promised, she sued him in the General District Court
and mailed him a copy of the warrant. Thereafter, El-Amin
contacted Fant and promised to pay "$4,000 on December the
20th, 1994, at 11 a.m." Fant went to El-Amin’s office at the
specified time and he told her that because his wife, who was his
law partner, had been hospitalized, he had "taken [his
wife's] load," and further that he could not charge Fant any
money because he had done no work on her case.

However, El-Amin refunded only $1,000 at that
time. In response to Fant’s question of why the payment was in
that amount in view of the fact that the $4,000 deposit was
"supposed to be in escrow," El-Amin said "I don’t
have the money." El-Amin promised to pay the additional
$3,000 on January 11, 1995 at 11:00 a.m.

When El-Amin failed to refund the remaining
$3,000 on January 11, Fant wrote to the State Bar asking for its
help in getting her refund. Although Fant delivered a copy of her
letter to El-Amin’s office on January 12, she received no
response from him.

On January 17, Fant retained attorney Bradley
O. Wein to collect the balance. El-Amin agreed to see Wein at a
fixed time on January 23, 1995 in El-Amin’s office and to pay the
$3,000 balance to Wein at that time. However, El-Amin was not at
his office at the appointed time and did not refund the promised
sum.

Only after Wein had generated a file of over
1,000 pages, expended more than 100 hours during a period of 18
months, and incurred costs of $754.72 did El-Amin refund $2,500
of the $3,000 balance in settlement of Fant’s claim. After the
deduction of Wein’s fee and expenses, Fant realized only $911.95
of the $3,000 balance of her deposit.

El-Amin has not appealed three of the court’s
four findings in the Fant matter. They are that he violated the
following disciplinary rules: (1) DR 9-102(A)(2), which requires
that client funds be deposited in an identifiable trust account;
(2) DR 9-102(B)(3), which requires that a lawyer maintain
"complete records of all funds, securities, and other
property of a client coming into the possession of the lawyer and
render appropriate accounts to his client regarding them";
and (3) DR 9-102(B)(4), which requires that an attorney
"[p]romptly pay or deliver to the client . . .
funds . . . in the possession of the lawyer which such
person is entitled to receive."

El-Amin contends, however, that the evidence is
insufficient to establish, clearly and convincingly, that he
violated DR 1-102(A)(3), which proscribes a lawyer’s commission
of a "deliberately wrongful act that reflects adversely on
the lawyer’s fitness to practice law." We disagree with
El-Amin.

In our opinion, the evidence that El-Amin
cashed Fant’s $4,000 retainer check, used the proceeds without
earning the fee, and delayed refunding the retainer fee,
sufficiently supports the finding that he committed "a
deliberately wrongful act that reflects adversely on [his] fitness to practice law," in violation of DR 1-102(A)(3).
Accordingly, we will affirm the trial court’s finding on that
issue.

II. The Williams Matter

We next consider the charges relating to
El-Amin’s representation of Williams, which began in early May of
1994. Williams, like Fant, employed El-Amin to represent her in
an employment discrimination case.

As in the Fant matter, El-Amin appeals only one
of the findings of disciplinary rule violations in his
representation of Williams. He has not appealed the court’s
findings that, in representing Williams, he violated the
pertinent provisions of the following disciplinary rules: (1) DR
2-108(D), which provides that, "[u]pon termination of
representation, a lawyer shall take reasonable steps for the
continued protection of a client’s interests, including
. . . refunding any advance payment of fee that has not
been earned."; (2) DR 6-101(B), which states that a
"lawyer shall attend promptly to matters undertaken for a
client"; (3) DR 6-101(C), which provides that a "lawyer
shall keep a client reasonably informed about matters in which
the lawyer’s services are being rendered."; and (4) DR
9-102(B)(4), which requires that a lawyer promptly pay to a
client funds the client is entitled to receive.

Thus, the appeal in the Williams matter is
limited to the court’s finding that El-Amin violated DR
1-102(A)(4). It prohibits a lawyer from engaging "in conduct
involving dishonesty, fraud, deceit, or misrepresentation which
reflects adversely on a lawyer’s fitness to practice law."

At the initial consultation, El-Amin told
Williams his fee would be $7,000. When she told him that she did
not have "that kind of money," but would ask her
relatives to help her make payments on the fee, El-Amin agreed
that he would begin working on the case. Williams and her
relatives paid El-Amin over $1,700. However, despite numerous
office visits and telephone calls, Williams was unsuccessful in
her attempts to see or talk to El-Amin about what he had done
during the ensuing five-month period. Consequently, Williams
wrote El-Amin on November 2, 1994, discharging him as her counsel
and asking for a refund of the amounts paid on the fee. The
letter was delivered by certified mail to El-Amin’s office and
signed for by his secretary on November 3, 1994. El-Amin did not
respond to the letter.

El-Amin testified that his secretary neither
gave him the certified letter nor told him of Mrs. Williams’
office visits and that he did not know he "had a problem
with Mrs. Williams until after [he] received a complaint from the
Virginia State Bar." Although El-Amin claimed he had done
some research on the Williams case, he produced no records to
substantiate his testimony and admitted that "the entire
situation fell through the cracks. And it just did. And I don’t
have an explanation."

Yet when interviewed during a preliminary
investigation about his failure to refund the fee, El-Amin told a
State Bar investigator that he had not refunded the money because
"he felt like he had earned the fees" up to the time of
his discharge. Although El-Amin denied making this statement to
the investigator and claimed that the money was still in an
escrow account, at trial El-Amin produced no records of any such
account and could only say that he "assume[d]" the
money was still there.

In our opinion, this evidence clearly and
convincingly supports the conclusion that El-Amin violated DR
1-102(A)(4) by using the retainer without earning it and by
attempting to deceive the investigator in claiming the retainer
had been earned. That is "conduct involving dishonesty,
fraud, deceit, or misrepresentation which reflects adversely on
[El-Amin's] fitness to practice law". DR 1-102(A)(4). Hence,
we will affirm this finding.

III. The Vernon El-Amin
Matter

Finally, we consider El-Amin’s dealings with
his client Vernon El-Amin (Vernon), who is of no relation to him.
At the time of their contract in 1990, Vernon was incarcerated
following his convictions for four murders. Vernon was
represented by other counsel in those criminal cases.

El-Amin and Vernon agreed that if Vernon’s
pending appeal of those convictions was unsuccessful, El-Amin
would represent him in a habeas corpus proceeding
claiming ineffective assistance of counsel. In the meantime,
El-Amin was to secure the release of Vernon’s 1986 Lincoln
Continental from police impoundment, have the car put into
condition to sell, deduct the cost thereof, and hold the net
proceeds of sale as a retainer fee.

As it turned out, the appeal by other counsel
was successful and El-Amin did little work on this matter.
However, Vernon was again convicted on retrial, remained in
confinement, and asked El-Amin to keep the retainer as a credit
for future representation.

El-Amin obtained the car, had it repaired, and
began using it himself. He later decided to trade the car for a
newer one and received a credit of $4,636.04 on the purchase
price of the newer car. The newer car was titled in El-Amin’s
name and he eventually executed a lien on that car in favor of
another client. El-Amin did not note in his records or on the
title to the newer car that he held either the 1986 car or
Vernon’s interest in the proceeds, i.e., the credit, in
trust. Nor did El-Amin deposit funds in his trust account once he
received the credit. Although El-Amin testified in another
proceeding in July 1991 that the agreed value of the car was
"$10,000, less any amounts necessary to repair it and put it
in marketable condition," he testified before the
three-judge court in 1988 that the agreed value was $6,500 less
the cost of repairs.

El-Amin contends that the court erred in
finding he had violated six disciplinary rules during his
representation of Vernon El-Amin. We do not agree with El-Amin.
We conclude that clear and convincing evidence supports all of
the trial court’s findings.

Dealing first with violations of DR 1-102(A)(3)
and DR 1-102(A)(4), discussed above, involving a
"deliberately wrongful act," deceit and
misrepresentation, we reject El-Amin’s argument that there is a
distinction between his activities and the activities of other
lawyers who committed crimes and were disciplined. As we pointed
out in Gunter, 238 Va. at 621, 385 S.E.2d at 600,
"conduct may be unethical, measured by the minimum
requirements of the Code of Professional Responsibility, even if
it is not unlawful." The evidence shows that El-Amin not
only personally used Vernon’s car, but he also traded it for a
newer one without reflecting the resulting $4,636.04 credit on
the title to the newer car. In our opinion, this sufficiently
supports the trial court’s findings of violations of both of
these disciplinary rules.

We also conclude that the evidence was
sufficient to show that El-Amin prejudiced Vernon’s rights by
using and disposing of the car in violation of DR 7-101(A)(3).
That disciplinary rule provides that a lawyer shall not
intentionally "[p]rejudice or damage his client during the
course of the professional relationship." A comparison
between El-Amin’s 1991 testimony and his 1998 testimony
concerning the value of the car, coupled with his decision not to
reflect the unearned retainer or Vernon’s consequent interest in
the newer car, sufficiently indicates that Vernon’s rights were
prejudiced in this matter. It is of no consequence that El-Amin
later earned the fee by handling other matters for Vernon, as he
argues. The fact is that at the time in question, Vernon’s rights
were prejudiced by El-Amin’s activities.

The final group of charges arises under Canon
9, which provides: "A Lawyer Should Avoid Even the
Appearance of Professional Impropriety." One of the charges
under this canon involves a violation of DR 9-102(A), which
requires a lawyer to deposit "[a]ll funds received or held
by the lawyer or law firm on behalf of a client . . .
in one or more identifiable trust accounts."

El-Amin contends that he had no obligation to
deposit funds to reflect the credit in question since the word
"funds" as used in the rule refers to money and that,
since he did not obtain money from the trade, but only obtained a
credit, there could be no violation of DR 9-102(A). We reject
this contention for the following reasons.

The form of the retainer fee changed when
El-Amin, who held Vernon’s car as a bailee for the purpose of
securing the payment of legal fees to be incurred in the future
by Vernon, converted the car into a credit, which El-Amin
received on the purchase of his new car. Vernon had an interest
in that credit because it took the place of his car as the
retainer fee, or fund, for the payment of the future legal fees.

The terms "fund or funds" have been
defined in part as "[a]n asset or group of assets set apart
for a specific purpose." Black’s Law Dictionary 673 (6th ed.
1990). Because the credit represented the retainer fee, it became
a "fund" set aside for a specific purpose, the payment
of fees to be billed by El-Amin in the future.

Considering the scope and purpose of the Code
of Professional Responsibility, we do not think that the term
"funds" as used in DR 9-102(A) is confined to items
such as "money" or "cash," as El-Amin
contends. Indeed, we have not limited the term to money or cash,
but, instead, have used the term "fund" or
"funds" in a generic sense in a number of situations. See,
e.g., Somers v. Godwin, 182 Va. 144, 147, 27 S.E.2d
909, 910 (1943)(applying word "funds" to intangible
personal property); Fireman’s Mutual Aid Assoc. v.
Commonwealth
, 166 Va. 34, 36, 184 S.E. 189, 190
(1936)(applying word "funds" to "bonds, notes,
etc., and money"); Rixey’s Ex’rs v. Commonwealth, 125
Va. 337, 343-44, 99 S.E. 573, 574 (1919)(describing intangible
property held by executor as "funds arising from
. . . the sales of real and personal property to
others").

In sum, given the context and purpose of the
disciplinary rules, and our previous uses of the words
"fund" and "funds," it is our opinion that,
under the facts of this case, the credit El-Amin received upon
trading Vernon’s car became "funds" within the meaning
of DR 9-102(A)(2) and that the rule required El-Amin to deposit a
sum representing that credit into his trust account.

The evidence also supports the conclusion that
El-Amin violated DR 9-102(B)(2), which requires that a lawyer
"[i]dentify . . . properties of a client
. . . and place them in a . . . place of
safekeeping as soon as practicable." El-Amin testified that
"at first I was going to drive the vehicle. However, and I
drove it." But after an encounter with a man who
"look[ed] very angry" and asked him if the car was
Vernon’s and if El-Amin was related to him, El-Amin decided,
"I don’t want to have anymore parts of this. So I rapidly
ran out to Capital Lincoln and said, ‘What will you give me for
this vehicle.’" El-Amin’s personal use of the car and his
failure to document Vernon’s interest in the credit El-Amin
received for selling the car sufficiently show that El-Amin
failed to identify the car or the proceeds from its sale as
Vernon’s property or keep either in "a place of
safekeeping," all in violation of DR 9-102(B)(2).

Finally, we consider the violation of DR
9-102(B)(3). It requires a lawyer to "[m]aintain complete
records of all funds, securities, and other properties of a
client coming into the possession of the lawyer and render
appropriate accounts to his client regarding them." El-Amin
simply argues that "[t]he evidence established that El-Amin
maintained records regarding the car given by Vernon
El-Amin," but El-Amin does not say what those records were.

El-Amin was the only witness who testified
about the records regarding Vernon’s car. El-Amin’s testimony
indicated that he regarded his record-keeping obligation to
Vernon as limited to accounting for the repair expenditures and
that this obligation was discharged by notations of Vernon’s name
on the checks he had written on his attorney trust account to pay
for the repairs to Vernon’s car. Although no monies had been
deposited in the trust account in Vernon’s name, El-Amin said he
charged the amounts of these checks against other clients’
retainer fees that had been earned by El-Amin. El-Amin says
nothing about his obligation to keep a record of the agreed
amount of the retainer or the work El-Amin had done to earn the
retainer. We conclude that this evidence sufficiently supports
the conclusion that El-Amin violated the provisions of DR 9-102
(B)(3).

IV. Length of Suspension

El-Amin argues that "[t]he trial court
abused its discretion in failing to consider El-Amin’s mitigating
circumstances." He overlooks the following statement made by
the court at the time the sanctions were imposed. "We have
taken into account the evidence in aggravation and the evidence
in – and argument in mitigation." Accordingly, we
reject El-Amin’s argument.

Even so, El-Amin contends that the four-year
suspension was unwarranted in view of the mitigating evidence of
his wife’s and daughter’s illnesses during the periods in
question, the revision of his office procedures to provide that
he alone would sign for certified letters addressed to him, his
remorse, and his refunds to Fant despite having done considerable
work for her. The State Bar responds that El-Amin’s
"revision" of his office procedures was merely an
avoidance of future responsibility, and that his alleged remorse
was put in question because even after protracted litigation he
refunded only a portion of Fant’s retainer. These considerations
may well have diminished the effect of any mitigating evidence
presented by El-Amin.

El-Amin also contends on brief that
"[t]here was no evidence of a pattern of misconduct by
El-Amin." In response, the State Bar notes the evidence in
the record of his "prior record since 1987 includ[ing] no
less than seven founded disciplinary violations relating, like
[these], to client neglect; failure to keep clients informed;
failure to account for fees collected; and failure to refund
unearned fees, among other things." We think this evidence
is sufficient to establish a pattern of misconduct.

In sum, our independent review of the entire
record discloses that the court did not abuse its discretion in
suspending El-Amin’s license for four years.

V. Conclusion

Finding no merit in El-Amin’s assignments of
error, we will affirm the judgment of the court below suspending
El-Amin’s license to practice law for a period of four years.

Affirmed.

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