BEFORE THE DISCIPLINARY BOARD OF THE VIRGINIA STATE BAR IN THE MATTER OF SHERRI ANN THAXTON. VSB DOCKET NO AMENDED MEMORANDUM ORDER

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1 VIRGINIA: BEFORE THE DISCIPLINARY BOARD OF THE VIRGINIA STATE BAR IN THE MATTER OF SHERRI ANN THAXTON. VSB DOCKET NO AMENDED MEMORANDUM ORDER These matters came to be heard on August 25, 2017 and August 28, 2017 pursuant to the Certification of the Third District Subcommittee, dated May 2, 2017, under Part Six, IV, of the Rules of the Supreme Court of Virginia, to consider whether the Respondent, Sherri Ann Thaxton, ( Respondent ) has violated the Rules of Professional Conduct. The matter was heard before a duly convened panel of the Virginia State Bar ( VSB ) Disciplinary Board (the "Board"), consisting of John A.C. Keith, Chair, presiding; Michael A. Beverly, Anderson Wade Douthat, IV, Bretta M. Z. Lewis, and Sandra M. Rohrstaff. The bar was represented by Assistant Bar Counsel Christine Corey and Bar Counsel Edward Davis. Craig Cooley, Esquire, represented Respondent. Respondent was present in person and was represented by the aforementioned Counsel for both days of the hearing. Court Reporter Tracy J. Stroh, a Certified Court Reporter with Chandler & Halasz, P.O Box 9349, Richmond, Virginia, 23327, (804) after being duly sworn, reported the hearing and transcribed the proceedings. All legal notices of the date and place were timely sent by the Clerk of the Disciplinary System ( Clerk ) in the manner prescribed by the Rules of the Supreme 1

2 Court of Virginia, Part Six, Section IV, Paragraph of the Rules of Court. The Chair opened the hearing by polling the members of the Board for information regarding whether any of the members has a personal or financial interest which would preclude hearing the matter fairly and impartially. Each member, including the Chair, individually responded that he or she has no such conflict or interest. After the witnesses and parties were sworn, the VSB made a motion to exclude witnesses, Respondent s Counsel did not object, and the witnesses were excused and exited the hearing room. The Chair reviewed the pre-hearing motions filed by the parties and made the following rulings; (1) the VSB s Motion in Limine to exclude the testimony of an expert witness was withdrawn; (2) Respondent s Motion to Dismiss was deferred; and (3) the VSB s Motion to Determine the Issue of Attorney Client Privilege for Certain Witnesses was deferred. The Chair also deferred ruling on a Motion to Quash filed on behalf of listed witness, James Maloney. The Board entertained opening statements from the Virginia State Bar and from Counsel for Respondent prior to hearing evidence. The parties stipulated to certain pertinent facts prior to commencement of the proceedings. VSB Exhibits (collectively as VSB Exhibit A ) 13, 15-56, 59, were admitted into evidence by the Chair, without objection from the Respondent. VSB Exhibits 57, 58, 60, 61, 62, 63, 68, 69, 70, 71 were admitted separately due to objections lodged by Counsel. VSB Exhibits were admitted during course of the hearing. Respondent s Exhibits (collectively as Respondent s Exhibit A ) 1-10, 12-23, 25, and 26 were admitted into evidence by the Chair, without objection from the VSB. Respondent s Exhibits were admitted into evidence without objection from the VSB at the hearing. Respondent s Exhibit 34 was admitted over the objection of the 2

3 VSB. The Board heard testimony from the following witnesses presented by the VSB, who were sworn and offered testimony under oath: Sherri Ann Thaxton (identified as a hostile witness), Mike Powell, Coby Kelly, Elizabeth Wright, Coleman Pride, Christina Pride, James Maloney, Amy Austin, Ward Armstrong, Anthony Troy, Ervin J. Mast, Kimberly Hernandez, Laura Griffin. During the testimony of Mr. Armstrong, the Chair ruled that Mr. Morrissey had waived the attorney client privilege and that the witness should testify. Mr. Armstrong respectfully declined to testify on the basis that only a court could compel his testimony. After the close of the Bar s presentation of evidence, Respondent s Counsel moved to strike the Bar s evidence. Counsel for the Bar objected to the Motion to Strike and the panel heard argument by Respondent s Counsel and Bar Counsel. After retiring for and subsequently returning from deliberations, the Board ruled that Motion to Strike was denied as to the allegations that the Respondent violated the following Rules: Rule 1.1 Competence Rule 1.3 (a) Diligence Rule 8.4(c) Misconduct Having found that the evidence presented by the VSB and inferences fairly drawn therefrom, viewed in the light most favorable to the VSB was not sufficient under any circumstances to establish the charges of misconduct, the Motion to Strike was granted as to allegations that the Respondent violated the following Rules: Rule 1.7(a1)(a2)(b1)(b2)(b3)(b4) Conflict of Interests 3

4 Rule 3.1 Meritorious Claims and Contentions Rule 3.4(j) Fairness to Opposing Parties and Counsel Rule 4.1(a) Truthfulness in Statement to Others Rule 4.3(b) Dealing with Unrepresented Persons Rule 4.4 Respect for Rights of Third Persons Rule 8.1 (a) (c) Bar Admission and Disciplinary Matters The Respondent presented evidence as to the remaining allegations after the Board ruled regarding the Motion to Strike. During the Respondent s evidence, the Respondent presented testimony from the following witnesses who testified under oath: Deidre Warren. Rick Withers, Ronald N. Morris. At the conclusion of evidence presented, Bar Counsel and Respondent s Counsel offered closing arguments, after which the members of the Board retired to deliberate. After deliberations and a consideration of all evidence and argument herein, the Board made the following findings: FINDINGS OF FACT 1. At all times relevant hereto, the Respondent was an attorney licensed to practice law in the Commonwealth of Virginia. 2. Respondent testified that she holds herself out as an experienced family law attorney. 3. On August 23, 2013, Myrna Pride, a minor at the time, was discovered in the home of Mr. Joseph D. Morrissey. Morrissey entered an Alford plea to a misdemeanor charge of contributing to the delinquency of a minor (Ms. Pride) 4

5 on December 12, Approximately two weeks after the incident at Mr. Morrissey s house, the Respondent undertook to represent Myrna Pride, in a matter related to a press conference regarding Joseph Morrissey and matters in Henrico County stemming from this relationship. 5. Sometime after the Respondent s representation of Ms. Pride began, Respondent also agreed to represent Ms. Pride and her mother, Deidre Warren, on a financial matter against Ms. Pride s father, Mr. Coleman Pride. Ms. Warren testified that she retained the Respondent to pursue the matter of child support arrears. 6. Respondent sent letters to Mr. Pride claiming that he had failed to pay child support to Ms. Warren in violation of a 2006 child support order entered in Chesterfield County Juvenile and Domestic Relations District Court. 7. No order of child support was entered against Mr. Pride in the Chesterfield County Juvenile and Domestic Relations Court. 8. Respondent testified that she believed that there was a child support order based on approximately 40 pages of documents Ms. Warren gave her and based on what Ms. Warren told her. 9. On or about May 7, 2014, Respondent provided Mr. Morrissey s attorneys with some of the documents she had received from Ms. Warren (the writing ) including the pages that were subsequently submitted to the court at Mr. Morrissey s Alford plea hearing. 10. Respondent testified that she prepared a Show Cause alleging that Mr. Pride 5

6 had violated a Court Order when he failed to make the payments but that she did not file the pleading after she learned from the clerk of court that no such order existed. 11. Respondent admitted that she erroneously characterized the writing embodying the parties alleged agreement as a Child Support Order when she prepared correspondence to Mr. Pride demanding payment. 12. Respondent testified that, after learning that no child support order existed, she filed, on June 3, 2014, a civil matter against Mr. Pride for breach of contract. This case was later nonsuited. 13. In December 2014, at Mr. Morrissey s Alford plea hearing, his attorneys offered a purported child support order into evidence consisting of two unrelated pages drawn from the documents Respondent had previously furnished to Morrissey s team. 14. The Board finds that a family law attorney having the legal knowledge, skill and preparation necessary for the representation in this case should have recognized that the writing was not a Child Support Order and would not have made representations to the contrary to an opposing party or an attorney. 15. The Board finds that a family law attorney exercising the appropriate diligence would have known, or should have promptly taken steps to research whether the writing was a Child Support Order, prior to making representations to an opposing party or attorney regarding the writing. MISCONDUCT Based on the evidence set forth above in the Findings of Fact, the Board hereby 6

7 finds that the Respondent has been proven by clear and convincing evidence to have violated the following Rules: Rule 1.1 Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Rule 1.3 Diligence (a) A lawyer shall act with reasonable diligence and promptness in representing a client. IMPOSITION OF SANCTION After making findings regarding the Respondent s misconduct, the Board received further evidence and argument in aggravation and mitigation from the Bar and Respondent, including information that Respondent has no prior disciplinary history. The Board recessed to deliberate what sanction to impose upon its findings of misconduct by Respondent. After due deliberation, the Board reconvened to announce the sanction imposed. After due deliberations regarding the matter of sanctions, the Chair announced the sanctions. Accordingly, it is ORDERED that the Respondent, Sherri Ann Thaxton, shall receive a Public Reprimand and shall be placed on disciplinary probation for twelve (12) months, beginning with the entry of this Order. Respondent will engage in no professional misconduct as defined by the Virginia Rules of Professional Conduct during this 12-month probationary period. Any final determination of misconduct by any District Committee of the Virginia State Bar, the Disciplinary Board, or a three-judge panel to have occurred during the 12-month probationary period will be deemed a violation of the terms and conditions of this Order and will result in the imposition of the alternate sanction, a 90-day suspension of her license to practice law in Virginia. 7

8 . It is further ORDERED that pursuant to Part Six, IV, 13-9 E. of the Rules of the Supreme Court of Virginia, the Clerk of the Disciplinary System shall assess all costs against the Respondent. It is further ORDERED that the Clerk of the Disciplinary System shall mail an attested copy of this order to Respondent at her address of record with the Virginia State Bar, Sherri Ann Thaxton, Esq., Canfield, Wells & Kruck, LLP, 4124 East Parham Road, Henrico, Virginia 23228, by certified mail, return receipt requested, by regular mail to Respondent s Counsel, Craig Cooley, Esquire at 3000 Idlewood Avenue, Richmond, Virginia 23221, and by hand delivery to Christine Corey, Esquire, Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia This Order was originally entered on September 14, 2017 and is now amended only to properly reflect Bar Counsel s name and title and is entered this 27 th day of September, 2017, effective September 14, 2017, nunc pro tunc. VIRGINIA STATE BAR DISCIPLINARY BOARD By: John A.C. Keith Chair 8