RECEIVED DEC Respondent. impaneled pursuant to Section ofthe Code of Virginia, 1950, as amended, consisting

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1 . VIRGINIA: RECEIVED DEC VSB CLERK'S OFFICE IN THE CIRCUIT COURT FOR THE CITY OF NEWPORT NEWS VIRGINIA STATE BAR EX REL FIRST DISTRICT COMMITTEE VSB Docket No Complainant~ V. Case No. CL B-04 FRED WINSLOW YOUNG Respondent MEMORANDUM ORDER THIS MATTER came to be heard on October 30,2017, before a Three-Judge Court duly impaneled pursuant to Section ofthe Code of Virginia, 1950, as amended, consisting ofthe Honorable W. Allan Sharrett, Judge of the Sixth Judicial Circuit, Chief Judge presiding ("Chief Judge"), The Honorable Joel C. Cunningham, Retired Judge of the Tenth Judicial Circuit, and The Honorable Margaret Poles Spencer, Retired Judge of the Thirteenth Judicial Circuit (collectively the "Panel ). The Virginia State Bar appeared through Senior Assistant Bar Counsel M. Brent Saunders. Respondent appeared in pedon and through his counsel, Rhetta M. Daniel, Esquire. WHEREUPON, a hearing was conducted upon the Rule to Show Cause issued against Respondent, which Rule directed Respondent to appear and show cause why his license to practice law in the Commonwealth of Virginia should not be suspended or revoked, or why he should not otherwise be sanctioned by reason of allegations of ethical misconduct set forth in the Certification issued by a Subcommittee of the First District Committee of the Virginia State Bar. all 2*2-A,~,==:4 V*Ø Cl-*-*- VZ,-7' 17 1

2 The Chief Judge swore the court reporter and polled the members of the Panel to determine whether any member had a personal or financial interest that might affect or reasonably be perceived to affect his or her ability to be impartial in these matters. Each member, including the Chief Judge, verified they had no such interests. The Panel inquired of Respondent's counsel if she wished to present argument on the pretrial motions made by and on behalf of Respondent in his pleading titled "Respondent's Demands For A Three-Judge Circuit Court Panel & To Seal the Record & Respondent, s Answer To The Subcommittee Determination (Certification)" filed on June 9,2017, to which Respondent, s counsel responded in the negative, following which the Panel denied all of Respondent, s pretrial motions in their entirety. The Panel accepted Respondent's Stipulations and admitted the bar, s pre-filed exhibits numbered 1-11 without objection. The bar moved to withdraw the fact allegations set out in paragraph 18 of the Certification and the corresponding Rule 8.1(c) ofthe Virginia Rules of Professional Conduct violation charged in the Certification which was granted without objection. Following opening statements on behalf of the parties, the bar then presented its evidence. Following the conclusion ofthe bar's case, Respondent presented no evidence. Following closing arguments, the Panel retired to deliberate. Following deliberation, and upon consideration ofthe evidence presented and Respondent, s fact and misconduct admissions and stipulations, the Panel found by clear and convincing evidence the following material facts and violations of the Virginia Rules of Professional Conduct: 2

3 MATERIAL FACTS 1. At all times relevant hereto, Respondent was an attorney licensed to practice law in the Commonwealth of Virginia and owned and operated his own law firm, Access Law Group, P.C. 2. The complainant, Edward L. Booker ("Mr. Booker"), hired Respondent on or about February 17, 2009, to represent him in pursuing personal injury damages Mr. Booker had suffered when he was struck by a vehicle on February 10, In 2011, Mr. Young filed a lawsuit in the Circuit Court for the County of York/Poquoson on behalf ofmr. Booker. 4. Late in 2011, Respondent secured a $50, settlement of Mr. Booker's personal injury cla~ms, which.included $25, from the liability carrier and $25, from Mr. Booker'š underinsured motorist coverage, the policy and coverage limits for those respective policies. In presenting the settlement to Mr. Booker, Respondent informed him that the settlement would be reduced by Respondent's fee of $20,000.00' and further by medical bills exceeding $30,000 claimed by medical providers who had treated Mr. Booker for the injuries he sustained and who, according to Respondent, were entitled to be paid out of the settlement proceeds (collectively "Medical Providers ). Respondent advised Mr. Booker to file for Chapter 7 bankruptcy and assured him that by doing so, he would obtain a discharge of all of the medical bill claims, after which Respondent could disburse to Mr. Booker the settlement proceeds net only of Respondent's fee. 2012, Based on that advice, Mr. Booker agreed to the settlement in January 5. Respondent deposited the two $25, settlement checks into his firm, s trust account on January 20, 2012 and February 3, 2012, respectively. 6. Given that the amounts claimed by Mr. Booker, s Medical Providers and Respondent S fee in combination exceeded the amount of the settlement, Respondent had a duty to hold the settlement monies in trust until the competing claims against the monies were resolved and an accounting and severance of the respective interests occurred. 7. In disregard'of that.duty, Respondent disbursed-his $20, fee in>several incrementš between January and May of without any resolution of the competing claims against the monies or any accounting or notice to Mr. Booker or the Medical Providers. ' That amount represents a 40% contingency fce. 1 2 The disbursements were as follows: 1/20/12: $ 5, /25/12: $ 2, /3/12: $ 5, /6/12: $ /2/12 $ 6, /29/12: $ Total: $20, (included a $ costs reimbursement) 3

4 8. Respondent had the duty to hold the balance of the settlement proceeds totaling $29, in trust for the benefit of Mr. Booker and/or the Medical Providers who had either asserted a valid lien against the settlement proceeds pursuant to Va. Code Sec or to whom Mr. Booker had granted a voluntary assignment of the settlement proceeds pursuant to Va. Code Sec (collectively "Lienholders/Assignees"), pending Mr. Booker's attempt to discharge the medical bill claims in bankruptcy as Respondent advised. 9. In disregard of that duty, Respondent did not hold the balance of the settlement proceeds totaling $29, in trust for the benefit of Mr. Booker and/or the LienhoIders/Assignees as required. Instead, beginning nó later than July 20123, Respondent deliberately disbursed at least $24, ofthe settlement proceeds from trust to himself, his law firm and/or third parties who were not entitled to those monies, and thereby intentionally and wrongfully misappropriated and converted those funds to his personal use and benefit without the knowledge or authorization of Mr. Booker or the Lienholders/Assignees. 10. In August 2012, Mr. Booker, unaware ofrespondent's misappropriations and conversions of the settlement monies, and based on Respondent, s advice that Mr. Booker would receive the balance ofthe settlement proceeds totaling $29, by filing bankruptcy, paid Respondent an advance fee of $1, for the bankruptcy representation, which constituted Respondent's $ fixed fee, plus a $ filing fee. Respondent never filed a bankruptcy petition on behalf of Mr. Booker. Instead, over the course of the next approximately 2 M years, there were several communications between Mr. Booker and Respondent's office regarding documents Respondent claimed were needed to file a bankruptcy case. Mr. Booker grew to communicate frustrated by the lack of any progress and repeated difficulties in his attempts with Respondent, and in April 2015, finally terminated the bankruptcy representation and demanded a refund ofthe advance fee monies he had paid Respondent for the bankruptcy and art accounting of the settlement monies. Respondent refunded oniy the $ filing fee, refused to refund any ofthe $ fixed attorney's fee, and failed to provide the requested accounting. 11. A few months later, in October 2015, Mr. Booker filed a bar complaint in which he stated, inter aüa, that he had never received any of the monies from the settlement and believed Respondent had spent the settlement monies. In his answer to the bar complaint he filed with the bar on November 9, 2015, Respondent falsely stated that "[wle continue to hold $24, for Edward'Bookei'- 2nà' that "I did not] spend funds as indicated by Mr: Bøbkeý in-his complaint Respondent made those statements knowing they were false in art effort to deceive the bar regarding his handling of Mr. Booker's settlement monies. 12. Respondent never disbursed to Mr. Booker any portion of the settlement proceeds or issued any paymentto him in conjunction with the personal injury matter. 3 July 2012 is the first month the balance of Respondent's trust account fell below the $29, remaining balance ofmr. Booker's settlement proceeds. Over the course of the following several months, the balance in thc trust account ñuctuated and continued to diminish, dropping to a low of only $5, in February

5 13. In August 2015 and April 2016, Respondent made payments to the Medical Providers While two of the Medical Providers had been granted liens against and/or totaling $29, voluntary assignments of the settlement proceeds by Mr. Bookers, the other two Medical Providers to whom Respondent issued payment did not have a valid lien against the settlement proceeds nor had. been granted a vóluntary assignment of the settlement proceeds by Mr. Booker and thus were not entitled to receive any portion of the settlement proceeds Respondent made the payments to the Medical Providers without notifying Mr. Booker of his intent to do so or making any effort to negotiate the amount of the payments with any of the Medical Providers. Respondent had a duty to attempt to negotiate the amount of the payments with the Lienholders/Assignees and to consult with Mr. Booker before making payments to the Lienholders/Assignees, particularlý given: a) Respondent, s prior advice to Mr. Booker regarding the settlement including his assurances to Mr. Booker that he would receive a portion of the proceeds; b) the amount of the settlement in relation to Respondent's fee and the amounts claimed by the Lienholders/Assignees and the fact that Mr. Booker received no portion of the settlement; and c) the time that had passed since the settlement in January 2012 and since Respondent, s last communication with Mr. Booker in approximately mid Respondent's failure to even attempt to negotiate the amount of the payments with the Lienholders/Assignees so that Mr. Booker might possibly receive some share of the settlement and to consult with Mr. Booker before making payments to the Lienholders/Assignees was intentional and caused Mr. Booker prejudice and harm. 15. Under clearly established law, even if Mr. Booker had obtained a personal discharge of the medical bill claims in bankruptcy, the liens and/or assignments of the Lienholders/Assignees would have survived and remained fully enforceable. Respondent's belief and advice to Mr. Booker to the contrary establishes that: i) he did not possess the requisite knowledge understanding of the law required or to competently advise and represent Mr. Booker with regard to the fundamental issues of the consequences of accepting the settlement and viability of Mr. Booker obtaining a portion of the settlement proceeds through the filing of bankruptcy; and ü) the $ fixed fee he charged and retained for the bankruptcy representation unreasonable7and all was or a substantial portion of it should have been refunded upon Mr. Booker's termination of that representation. 4 Akhöugh the payments were issued from Respondent's trust account, the source and nature of the monies is unknown since Respondent had previously misappropríated and converted at least $24, ofmr. Booker's settlement proceeds from trust and did not maintain proper trust account records ' (see Paras i*a)- 5 Respondent made payments to the Lienholders/Assignees as follows: 8/16/15: $ 5, /22/16: $ Total: $25, Respondent made payments to those Medical Providers tls follows: 4/22/16: $2, /22/16: $ Total: $4, The termination ofthe representation well prior to its completion also rendered the charging and retaining of the entir.e $ fixed fee unreasonable. 5

6 Under the circumstances, the $20, fee Respondent charged and took for representing Mr. Booker in the personal injury matter was unreasonable. 17. During the course of the investigation of this matter, Respondent provided to the bar a series of documents titled "Trust Account Balances" which purported to show the balance in his firm's trust account on a monthly basis between January 2012 and November Respondent provided those documents to the bar knowing they contained substantially false information as to the balance in his firm s trust account of Mr. Booker, s settlement proceeds and other clients of Rèspondent s firm in an effort to deceive the bar regarding his handling of Mr. Booker's settlement monies. Specifically, the documents falsely indicated that the firm's trust account contained: a) the balance of Mr. Booker, s settlement proceeds which Respondent had 1 actually misappropriated and converted; and b) total balances as much as tens of thousands of dollars more than what was actually in the account. In his letter transmitting those documents to the bar, Respondent described the documents as."trust account reconciliation sheets" and did hot disclose that the balances shown were false or inaccurate. 18. Respondent failed to maintain the books and records required under Rule 1.15(c)(1) and (2) of the Rules of Professiönal Conduct with regard to his representation of Mr. Booker. 19. Between 2012 and 2015, Respondent failed to perform reconciliations of his trust account as required under Rule 1.15(d)(3) ofthe Virginia Rules of Professional Conduct or maintain the books and records required under Rule 1.15(c)(1) and (2) of the Virginia Rules of 1 Professional Conduct VIOLATIONS OF THE VIRGINIA RULES OF PROFESSIONAL CONDUCT RULE 1.1 Competence A lawyer shali 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 (c) A lawyer shall not intentionally prejudice or damage a client during the course ofthe 1 professional relationship, except ás required or permitted üñdèr Rule 1.6 and Rule RULE 1.4 Communication (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (c) A lawyer shall inform the client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution of the matter. RULE 1.5 Fees (a) A lawyer t s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: 6

7 (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the pro fessional relationship with the ciient; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. RULE 1.15 Safekeeping Property (a)depositing Funds. (3) No funds belonging to the lawyer or law firm shall be depósited or maintained therein except as follows:... (ii) funds in which two or more persons (one of whom may be the lawyer) claim an interest shall be held in the trust account until the dispute is resolved and there is an accounting and severance oftheir interests. Any portion finally determined to belong to the lawyer or law firm shall be withdrawn promptly from the trust account. (b) Specific Duties. A lawyer shall: (3) maintain compiete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and render appropriate accountings to the client regarding them; (4) promptly pay or deliver to the client or another as requested by such person the funds, securities, or other properties in the possession of the lawyer that such person is entitled to receive; and (5) not disburse funds or use property ofa client or third party without their consent or convert funds or property of a client or third party, except as directed by a tribunal. (c) Record-Keeping Requirements. A lawyer shall, ata minimum, maintain the following books and records demonstrating compliance with this Rule: (1) Cash receipts and disbursements journals for each trust account, including entries for 1 receipts, dišburšement#,.änd'transfers, and also iricluding, at á minimum: an ideniification of the client matter; the date of the transaction; the name of the payor or payee; and the manner in which trust funds were received, disbursed, or transferred from an account. (2) A subsidiary ledger containing a separate entry for each client, other person, or entity from whom money has been received in trust. The ledger should clearly identify: (i) the client or matter, including the date of the transaction and the payor or payee and the means or methods by which trust funds were received, disbursed or transferred; and (ii) any unexpended balance. (d) Required Trust Accounting Procedures. In addition to the requirements set forth in Rule 1.15 (a) through (c), the following minimum trust accounting procedures are applicable to all trust accounts. 1 7

8 (3) Reconciliations. (i) At least quarterly client, person or other entity. (ii) A monthly reconciliation shall be made of the cash balance that is derived from the cash receipts journal, cash disbursements journal, the trust account checkbook balance and the trust a reconciiiation shall be made that reflects the trust account balance for each account bank statement balance. a reconciliation shall be made that reconciles the cash balance from (iii) At least quarterly, (d)(3)(ii) above and the subsidiary ledger balance from (d)(3)(i). (iv) Reconciliations must be approved by a lawyer in the law firm. RULE 1.16 Declining Or Terminating Representation (d) Upon termination ofrepresentation, a lawyer shall take steps to the extent reasonably 1 practicable to protect a client, s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, refunding any advance payment of fee that has not been earned and handling records as indicated in paragraph (e). RULE 8.1 Bar Admission And Disciplinary Matters An applicant for admission to the bar, or a lawyer already admitted to the bar, in connection with a bar admission application, any certification required to be filed as a condition of maintaining or renewing a license to practice law, or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; RULE 8.4 Misconduct It is professional misconduct for a lawyer to: (b) commit a criminal or deliberately wrongfui act that reflects adversely on the lawyer's honesty, trustworthiness or fitness to practice law; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer's fitness to practice law; The Panel then proceeded to the sanctions phase of the hearing and received evidence and argument from the bar and Respondent following which the Panel retired to deliberate. Fóllowing deliberation, and after due consideration of the evidence, including the. nature of the ethical misconduct committed by Respondent, and the aggravating and mitigating factors including the character and other evidence submitted on behalf of Respondent, and the arguments presented, the Panel reached the unanimous decision that Respondent's license to practice law in the Commonwealth ofvirginia should be suspended for a period ofthree (3) years. Therefore, it is hereby ORDERED that the license of Respondent~ Fred Winslow Young, 8

9 to practice law in the Commonwealth of Virginia, be, and the same hereby is, SUSPENDED for aperiod ofthree (3) years, effective January 1, It is further ORDERED, pursuant to the provisions of Part Six, Section IV, Paragraph of the Rules of the Supreme Court of Virginia, that Respondent shall forthwith give notice, by certified mail, return receipt requested, of the suspension of his license to practice law in the Commonwealth of Virginia to all clients for whom he is currently handling matters and to all opposing attorneys and presiding judges in pending litigation. Respondent shall also make appropriate arrangements for the disposition of matters then in his care, in conformity with the wishes of his clients. Respondent shall give such notice within 14 days of the effective date of the license suspension, and make such arrangements as are required herein within 45 days of the effective date ofthe license suspension. The Respondent shall furnish proof to the Virginia State Bar within 60 days of the effective date ofthe license suspension that such notices have been timely given and such arrangements for the disposition of matters made. Issues concerning the adequacy of the notice and the arrangements required herein shall be determined by the Virginia State Bar Disciplinary Board. Pursuant to Part Six, Section IV, Paragraph 13-9 of the Rules of the Supreme Court of 1 Virginia, the Clerk ofthe Disciplinary System of the Virginia State Bar shall assess costs. It is further ORDERED that the Clerk of this Court shall send a copy teste of this order to: Respondent Fred Winslow Young at Access Law Group, P.C., Suite B, Jefferson Avenue, Newport News, VA ; counsel of record; and the Clerk ofthe Disciplinary System, Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia These proceedings were recorded by Biggs& Fleet, Ltd., 125 St. Paul's Blvd., #309, Norfolk, VA 23510, telephone number (757)

10 SEEN: I <r ENTERED this / day of,2017. VIRGINIA STATE BAR BY. Ed~t:i~e M. Brent Saunders, Senior Assistant Bar Counsel Ajyl,6~,#4 The Honora61-e W. Allan Sharrett ChiefJudge A COPY TESTE, Gary S. Anderson Clerk Newport News Cirçuit Court By:,D.C. SEEN AND 6*v*y# AAiA;U. {Luilit3 Rhetta M. Daniel, Esquire Respondent's Counsel j /1.l. 1 10