Before the Virginia State Bar Disciplinary Board

Transcription

1 VIRGINIA: Before the Virginia State Bar Disciplinary Board In the Matter of Jud Andrew Fischel VSB Docket No Attorney at Law On July 10, 2017, came Jud Andrew Fischel and presented to the Board an Affidavit Declaring Consent to Revocation of his license to practice law in the courts of this Commonwealth. By tendering his Consent to Revocation at a time when allegations of Misconduct are pending, the nature of which are specifically set forth in the attached affidavit and certification, Respondent acknowledges that that the material facts upon which the allegations of Misconduct are pending are true. The Board having considered the said Affidavit Declaring Consent to Revocation, and Bar Counsel having no objection, the Board accepts his Consent to Revocation. Accordingly, it is ordered that the license to practice law in the courts of this Commonwealth heretofore issued to the said Jud Andrew Fischel be and the same hereby is revoked, and that the name of the said Jud Andrew Fischel be stricken from the Roll of Attorneys of this Commonwealth. Entered this 10 th day of July, 2017 Virginia State Bar Disciplinary Board By John A. C. Keith Chair

2 VI R G l N I A: RECEIVED Jul10,2017 VIRGINIA STATE BAR CLERK' S OFFICE BEFORE THE VlRGfNIA STATE BAR DISCIPLfNARY BOARD fn TH E MATTER OF JUD ANDREW l'ischel VSB Docket No AFFIDAVIT DECLARING CONSENT TO REVOCATION Jud Andrew F ischel, after being duly sworn, states as fo llows: 1 I. I was licensed to practice law in the Commonwealth of Virginia on April 26, I submit this Affidavit Declaring Consent to Revocation pursuant to Rule of Court, Part 6, Section IV, Paragraph My consent to revocation is freely and voluntarily rendered. I am not being subjected to coercion or duress. I am fully aware of the implications of consenting to the revocation of my license to practice law in the Common.wealth of Virginia; 4. I am aware that there is currently pending a Certification, VSB Docket No , which is attached as Exhibit I and is incorporated as if fully set forth herein. I acknowledge that the material facts in the Certification, upon which the al legations of misconduct are predicated, are true. 5. I submit this Affidavit and consent to the revocation of my license to practice Jaw in the Commonwealth of Virginia because I know that if the Certification was prosecuted to a conclusion, I could not successfully defend the allegations.

3 Executed and dated on ~ / l. {,, b 7 ~~!~~~,~~~~~~- COMMONWEAL TH OF VlRGfNIA CITY /COUNTY OF,_ri... ~...aio~\t,...~-= ' to wit: The fo regoing Affidavit Declaring Consent to Revocation was subscribed and sworn lo before me by Jud Andrew f-ischel on -~LG?~1-~... l._1_. My Commission expires: 2

4 VIRGINIA: RECEIVED May 8, 2017 VIRGINIA STATE BAIR CLERK'S OFFICE BEFORE THE SEVENTH DISTRICT SUBCOMMITTEE OF THE VIRGINIA STATE BAR IN THE MATTER OF JUD ANDREW FISCHEL VSB Docket No SUBCOMMITTEE DETERMINATION (CERTIFICATION On April 5, 2017, a meeting in this matter was held before a duly convened Seventh District Subcommittee consisting of David Watson Thomas, James Scott Kulp, and Alfred James Sisley. Pursuant to Part 6, IV, ii B.3 of the Rules of the Supreme Court of Virginia, the Seventh District Subcommittee of the Virginia State Bar hereby serves upon Jud Andrew Fischel ("Respondent" the following Certification: I. FINDINGS OF FACT 1. On or about April 26, 1978, Respondent was licensed to practice law in Virginia. At all relevant times, Respondent has been a member in good standing with the Virginia State Bar. 2. On July 25, 2016, Respondent was indicted in Fauquier County, Virginia for violation of Virginia Code Specifically, the grand jury found th.at in February 2016, Respondent "did unlawfully commit sexual battery... in that he sexually abused C. W., a client, against her will, by force, threat, intimidation or ruse, or through the use of the complaining witness's mental incapacity or physical helplessness... " 3. On November 28, 2016, Respondent was indicted for a second violation of Virginia Code The grand jury found that in June 2016, Respondent "did unlawfully commit sexual battery... in that he sexually abused 'S.S.,' a client, against her will, by force, threat, intimidation or ruse, or through the use of the complaining witness's mental incapacity or physical helplessness." 4. On January 20, 2017, Respondent entered into a plea agreement regarding the two charges of sexual battery. Respondent agreed to plead guilty to the two charges pursuant to Alford v. North Carolina, 400 U.S. 25 (1970, and to be found guilty on both counts of sexual battery. The plea agreement, which is attached as Exhibit 1, is incorporated by reference.

5 5. Respondent also signed the Commonwealth's Proffer of Facts ("Proffer", agreeing that if the Commonwealth were to proceed to trial in these matters, the evidence set forth in the Proffer would be presented. The Proffer, which is attached as Exhibit 2, is incorporated by reference as if fully restated herein. 6. Pursuant to the plea agreement and Proffer, Respondent was found guilty of both counts charged. On March 20, 2017, Respondent was sentenced to six months in jail for each count, for a total of 12 months. The Court suspended all but two months of the sentence. II. NATURE OF MISCONDUCT Such conduct by Respondent constitutes misconduct in violation of the following provisions of the Rules of Professional Conduct: RULE 8.4 Misconduct It is professional misconduct for a lawyer to: (b commit a criminal or deliberately wrongful act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law[.] III. CERTIFICATION Accordingly, it is the decision of the Subcommittee to certify the above matters to the Virginia State Bar Disciplinary Board. SEVENTH DISTRICT SUBCOMMITTEE OF THE VllRGINIA STATE BAR By ogil David Watson Thomas Subcommittee Chair

6 CERTIFICATE OF SERVICE ~ l;j\1, I mailed by certified mail a itrue and correct copy of I certify that on the foregoing Subcommittee etermination (Certification to Jud Andrew Fischel, Esquire, Respondent, atjud A. Fischel, P.C., 24 Ashby Street, Warrenton, VA , Respondent's last address of record with the Virginia State Bar. Assistant Bar Counse

7 f VIRGIN I A: IN THE CIRCUIT COURT OF FAUQUIER COUNTY COMMONWEALTH OF VIRGINIA v. JUD ANDREW FISCHEL~ DEFENDANT. CASE NO. CR & 610 PLEA AGREEMENT ' This Plea Agreement made and entered into pursuant to Rule 3A:8 of the Rules of the Supreme Court of Virginia, as alilende'd, this 20th day of January, 2017, by and between Charles K. Peters, Senior Assistant Commonwealth's Attorney, Jud Andrew Fischel, the Defendant herein; ~d Blair D. Howard, Cowisel for the Defendant,J'eg~rding.Case Nos. CRI 6436 (Sexual Battery and CRl (Sexual Battery currently pending in the Circuit Court of Fauquier County, Virginia. WHEREAS, the defendant stands indicted by the Grand Jurors of the County of Fauquier of the aforementioned charges, and WHEREAS, the parties have reached an agreement as to the disposition of the aforesaid charges and wish to enter into a written plea agreement pursuant to the Rules of the Supreme Court of Virginia, as amended, THEREFORE, the parties hereto, as is evidenced by their execution of this Plea Agreement, and in consideration of the mutual covenants hereinafter set forth, hereby agree as follows: 1. In exchange for this plea agreement, the Attorney for the Common~ealth agrees not to file, indict, or otherwise prosecute the Defendant for any additional sexual battery charges that are known to the Commonwealth at the time of the plea. ALEO AT /l; \ If DEC GAIL BY: M ' vse EXHIBIT

8 2. The Defendant, Jud Andrew Fischel, agrees to plead guilty pursuant to Alford v. North Carolina, 400 U.S. 25 (1970 and be found guilty of Case Nos. CR (Sexual Battery and CR (Sexual Battery. 3. It is understood that Counsel for the Defendant will move this Honorable Court, pursuant to Section of the Code of Virginia, 1950, as amended, to dire9t a probation officer of the Court to investigate and provide a pre-sentence report of the Defendant prior to. sentencing. 4. The Commonwealth agrees not to oppose a motion by the defendant that he be allowed to continue at liberty on bond on this charge pending preparation of a pre-sentence report or evaluation and imposition of sentence herein. S. In the event that this agreement b~omes null and void, the parties shall be returned to the position they were in prior to this agreement and the original charges will be reinstated. 6. The parties further represent t~at no Judge of the Circuit Court of Fauquier Cowity, Virginia, or any other jurisdiction, participated in any way in the discussions and negotiations leading up to the execution of this Plea Agreement. WITNESS the following signatures: 114otLJ Blair D. Howard, Esq. Counsel for the Defendant Charles K. Peters, Esq. Senior Assistant Commonweath's Attorney Page 2 of2

9 ., V. IR GIN I A: IN THE CIRCUIT COURT OF FAUQUIER COUNTY COMMONWEALTH OF VIRGINIA v. JUD ANDREW FISCHEL, DEFENDANT. CASE NO. CR & 610 COMMONWEAL TH'S.PROFFER OF FACTS The undersigned parties agree that if the Commonwealth were to proceed with a trial in this matter, the evidence presented by the Commonwealth would consist of the following: CR Mr. Jud Fischel is a long-standing attorney in Watfu~ton, Virginia. In 2015, he represented a client, C.W., who had been charged with shoplifting from the Warrenton Walmart store. C.W. subsequently pled guilty in Fauquier County Circuit Court to grand larceny. The Court's official version described that C. W. proceeded out of Walmart without attempting to pay for $295 of groceries, toiletries, cosmetics, and clothing. C.W. was sentenced by the Court on, January 27, She received probation and participation in the restorative justice program. On or about Saturday, February 13, 2016, Mr. Fischel had an appointment with C.W. to go over paperwork at 8:30 a.in. C.W. arrived at Mr. Fischel's office in Warrenton at approximately 9:00 a.m. that morning. Mr. Fischel greeted C.W. and brought her into his office. He.closed and locked the outer office door and closed the inner office door. Mr. Fischel showed C. W. a form regarding her case that she had already received prior to that date. At some point, Mr. Fischel came around from behind his desk and sat in the chair next to C.W. Mr. Fischel then put his hand on C. W. 's thigh and told her that "she had done a very bad thing" and that "the judge didn't give you a strong enough sentence." Mr. Fischel told C.W. to bend over the desk FIL.EDAT M ~'. r..\,, ' DEC ~ GAIL ~CLEaK Page 1 ofl BV:.~::t:::!~=::::====~D~.C:::J. VSB.. EXHIBIT 2

10 ,., and that he needed to spank her. Mr. Fischel pulled up C.W.'s skirt as she was bent over the desk, and C.W. told him that he "cant do this." In respo11$e, Mr. Fischel told C.W. that he "had to do this" and began to spank her repeatedly and directly over her underwear. C.W. asked Mr. Fischel to stop because it hurt her. When Mr. Fischel stopped spanking C.W. after approximately ten spanks, he asked C.W. "are you wet?" Mr. Fischel asked C.W. other questions unrelated to the case such as ''what is your sex life like?" and "you need some good orgasms." CR On or about June 10, 20 I 6, S.S. met with Mr. Fischel in his Warrenton office at noontime regarding a February auto accident where S.S. was the victim and was seeking civil damages. During this meeting, S.S. stood up and explained to Mr. Fischel about her back surgery. At that point,.mr. Fischel stood up, walked around his desk, and approached S.S. from behind. Mr. Fischel then reached with both arms around S.S. 's backside and grabbed her breasts over her clothing. With both of his hands on S.S.' s breasts, Mr. Fischel pulled himself into her back side until his ibody was fully in contact with hers. Mr. Fischel told S.S. that he "wanted to hav,e sex with her,, and that he would lock the door. S.S. immediately exited the office at that point and returned to her car. ove stated facts occurred in Fauquier County, Virg' Blair D. Howard, Esq. Counsel for the Defendant Charles K. Peters, Esq. Senior Assistant Commonwealth's Attorney Page 2 of2