Lawyer hit for malpractice, gets bar suspension

An Ashland lawyer who appeared to compound his initial error in handling a civil business dispute has incurred a nearly $177,000 malpractice judgment and a three-month bar suspension. The suspension is coupled with close practice supervision for at least a year.

Jason “Jay” Breneman agreed to the Virginia State Bar discipline Feb. 14.

Business dispute

Breneman’s troubles began in 2017, according to VSB allegations. He had been hired by Jeffrey Terry of Richmond, who was battling with a former partner in an antiques business.

Breneman filed a claim in general district court and the adversary responded with a suit in circuit court. An answer was due in circuit court on March 3, 2017. Breneman filed the answer and grounds of defense on that day, but he filed by facsimile.

The adversary called him on the fax filing mistake and a judge allowed 10 days for Breneman’s client to properly file responsive pleadings. The judge ordered the client to pay $3,840.05 in fees, the bar document said.

Breneman missed the new deadline.  He filed two days late and one day after his adversary had filed a renewed motion for default judgment. Richmond Circuit Judge Walter W. Stout III noted Breneman had not paid the sanctions or filed under oath by affidavit as ordered. In a June 26, 2017, letter opinion, Stout imposed default judgment as to liability.

Terry filed for bankruptcy a day after Stout denied the bid to avoid the default judgment.

Throughout these proceedings, Breneman kept his client largely in the dark, according to the VSB allegations.

Terry sought new counsel and hired Kyle McNew of Charlottesville. McNew was unable to get the default judgment set aside, but he filed a legal malpractice action on Terry’s behalf.

McNew also filed a bar complaint against Breneman.

The VSB issued a subpoena for the client file, but Breneman reportedly ignored the subpoena at first and then failed to produce complete records as sought by the bar. Breneman’s license was suspended for noncompliance on Oct. 18, 2018, according to the VSB.

The suspension was lifted Nov. 13 after Breneman provided copies of his trust account records. Practicing while suspended

But the VSB claimed Breneman had ignored that administrative suspension. The bar received reports on Breneman court appearances from the Hanover County commonwealth’s attorney and from Circuit Judge Patricia Kelly. Breneman admitted he made several court appearances during his suspension, according to the VSB.

Based on the particulars of one case, the VSB charged Breneman with unauthorized practice of law.

Malpractice judgment

Breneman did not appear or file any responsive pleadings in the malpractice case, according to the VSB. In his malpractice complaint, Terry alleged “a calamitous example of fundamental incompetence on the part of Mr. Breneman.” Ultimately, Judge Theodore J. Markow awarded damages of $176,912.98 in the legal malpractice action.

McNew said he tried repeatedly to get Breneman to provide information on his malpractice insurance carrier, to no avail.

“Mr. Breneman had apparently certified to the State Bar that he carried malpractice insurance because his name did not appear on the list of attorneys without coverage,” McNew said. “But because the State Bar does not require attorneys to identify who their malpractice carrier is – just that they have coverage – that information is not available to people like Mr. Terry who are the victims of legal malpractice,” McNew said.

“Thus, instead of being able to directly put the malpractice carrier on notice of a claim, the client has to rely upon the attorney who committed the malpractice to notify his or her carrier,” McNew continued. “If that does not occur, the carrier will have a defense to coverage due to lack of prompt notice. And it becomes pretty difficult to collect on a legal malpractice judgment against an attorney who can’t practice law because of a bar suspension when there is no malpractice coverage,” McNew said.

Strict terms

While Breneman’s suspension is only three months, the accompanying terms call for close oversight. Breneman must hire a VSB-approved mentor attorney to review his law practice and report on a quarterly basis regarding compliance with recommendations. The mentor oversight lasts for 12 months following the initial certificate of compliance.

Breneman also is on probation for a year, with a two-year suspension hanging over his head for failing to meet any of the terms and conditions.

“This was the first and only time I’ve ever made a bar complaint, and I hope it’s the last time. But this kind of conduct is just a disservice to clients like Mr. Terry, the public in general, and the legal profession,” McNew said.

Breneman represented himself in the VSB proceeding. The bar was represented by Assistant Bar Counsel Laura Ann Booberg.

Breneman was not available for comment.