VIRGINIA: BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD IN THE MATTER OF SHELLY RENEE COLLETTE VSB DOCKET NO.: 18-000-111181 ORDER OF SUSPENSION THIS MATTER came on to be heard on February 16, 2018, before a panel of the Virginia State Bar Disciplinary Board (hereinafter referred to as the Board ) consisting of Sandra L. Havrilak, Second Vice Chair; Yvonne S. Gibney; Michael J. Sobey; Thomas R. Scott, Jr.; and, Stephen A. Wannall, lay member. The Virginia State Bar (hereinafter referred to as the VSB ) was represented by Kathryn R. Montgomery, Deputy Bar Counsel (hereinafter referred to as Bar Counsel ). Shelly Renee Collette (hereinafter referred to as the Respondent ) appeared pro se, along with William H. Atwill, Jr., Guardian ad Litem (hereinafter referred to as the GAL ), duly appointed by the VSB to assist the Respondent. Tracy J. Stroh, court reporter of Chandler and Halasz, P. O. Box 9349, Richmond, Virginia 23227, (804) 730-1222, after being duly sworn in by the Chair, reported the hearing and transcribed the proceedings. At the outset of the hearing, the Chair inquired of each member of the Board whether any of them had any personal or financial interest or bias which would preclude any of them from fairly hearing this matter and serving on the panel. All members of the Board, including the Chair, responded in the negative. All legal notices of the date and place were timely sent by the Clerk of the Disciplinary System (hereinafter referred to as the Clerk ) in the manner prescribed by the Rules of Supreme Court of Virginia (hereinafter referred to as the Rule(s) ), Part Six, IV, 13-18. This matter came before the Board on the Rule to Show Cause and Order of Summary Suspension and Hearing entered on December 27, 2017 (hereinafter the Summary Order ) in 1
accordance with Part Six, IV, 13-22 of the Rules. Upon receiving written notification from the Circuit Court for the City of Winchester that the Respondent had entered into a plea wherein the facts found by the court would justify a finding of guilt, the Board entered the Rule to Show Cause and Summary Order, pursuant to the Rules. The Summary Order summarily suspended the Respondent s license to practice law in the Commonwealth of Virginia and ordered her to show cause as to why her license should not be further suspended or revoked. The Summary Order and written notification were served upon the Respondent in accordance with the Rules, and the Respondent argued a preliminary Motion to Dismiss. MISCONDUCT The Respondent was an attorney licensed to practice law in the Commonwealth of Virginia at all times relevant to the conduct set forth herein. Between December 20, 2015 and January 8, 2016, the Respondent took three (3) checks totaling in excess of one thousand six hundred dollars ($1,600.00) from the business of her then boyfriend, David Wilds (hereinafter referred to as Wilds ). The Respondent testified that, at the time that she took the money, Wilds was not supporting their child. The Respondent took the checks, which were made out to Wilds s business, to a nearby bank and requested that the teller deposit the checks into the Respondent s joint checking account with Wilds. However, the teller refused to deposit the checks as they were not made out to the Respondent. Thereafter, the Respondent went to a different bank branch and used an ATM to deposit the checks into her joint checking account with Wilds. On February 24, 2016, the Respondent was arrested on a charge of larceny of checks in violation of 18.2-98 of the 1950 Code of Virginia. On December 5, 2017, the Respondent entered into a Plea Agreement and Agreed Disposition with the Commonwealth, wherein she agreed to plead guilty to the felony charge of larceny; and, the Circuit Court for the City of 2
Winchester found that the facts were sufficient to sustain a finding of guilt in that matter. The Court then deferred the case for a period of two years during which time the Respondent must complete fifty hours of community service and be placed on supervised probation for a period of one year followed by one year of unsupervised probation. In accordance with the Plea Agreement, upon the successful completion of the two-year deferral period, the Respondent s conviction will be reduced to a misdemeanor. RULING Although the Respondent conceded she had entered a plea of guilty to a felony, in support of her Motion to Dismiss the Respondent argued that under the Rules the Board had no authority to suspend her license to practice law or issue a Rule to Show Cause because she had not yet been convicted of a felony. Part Six, IV, 13-22(A) of the Rules provides: Whenever the Clerk of the Disciplinary System receives written notification from any court of competent jurisdiction stating that an Attorney (the Respondent ) has been found guilty or convicted of a Crime by a Judge or jury, pled guilty to a Crime or entered a plea wherein the facts found by a court would justify a finding of guilt, irrespective of whether sentencing has occurred, a member of the Board shall forthwith and summarily enter an order of Suspension requiring the Respondent to appear at a specified time and place for a hearing before the Board to show cause why the Respondent s License to practice law should not be further suspended or revoked. Thus, the fact that the Respondent may only be convicted of a misdemeanor upon the completion of the deferral period is immaterial. The Board finds that the Respondent s plea of guilty and the Court s finding that the facts would justify a finding of guilt were sufficient to issue the Summary Order in accordance with the provisions of Part Six, IV, 13-22 of the Rules. The Respondent bears the burden of proving why her license should not be further suspended or revoked. 1 After considering the evidence and hearing arguments from Bar Counsel and the Respondent, the Board found that the Respondent had entered into a plea wherein the 1 R. of Sup. Ct. of Va., pt. 6, IV, 13-22(D). 3
facts found by the court would justify a finding of guilt; and, the Respondent failed to prove by clear and convincing evidence why her license to practice law should not be further suspended or revoked. SANCTION PHASE OF HEARING After the Board announced its findings, the Board heard testimony and received evidence regarding aggravating and mitigating factors applicable to the appropriate sanction to be imposed; and, the Board considered the ABA Annotated Standards for Imposing Lawyer Sanctions 2 in reaching its decision. The Respondent has refused to acknowledge the wrongful nature of her conduct in this matter. Rather, she testified that she was merely guilty of being in a bad relationship and being a bad girlfriend. Furthermore, in preparation for her hearing before the Board, the Respondent drafted and requested that Wilds sign a statement claiming that he had requested that the prosecutors dismiss the larceny of checks charges against the Respondent. 3 Wilds refused to sign the document; and, according to the testimony of Kristen Zalenski, Attorney at Law, Special Prosecutor for City of Winchester (hereinafter referred to as Zalenski ), Wilds never asked her to drop the charges against the Respondent. The Board finds the Respondent s refusal to acknowledge the wrongful nature of her conduct and her attempt to submit false evidence in this proceeding to be aggravating factors. Moreover, the Respondent s prior disciplinary record consists of a Public Reprimand Without Terms, 4 which she received on January 14, 2015, as a result of her actions in a case in which she represented defendants in a civil lawsuit then pending in the Circuit Court for the County of Arlington. During the pendency of the case, the Respondent arranged the deposition 2 ABA, Annotated Standards for Imposing Lawyer Sanctions (2015). 3 VSB Ex. 2, 3. 4 VSB Ex. 4. 4
of a co-defendant and hired a friend and convicted felon to be the court reporter to take the deposition despite knowing that a convicted felon is not eligible for a notary commission. The Respondent never advised any of the parties present at the deposition that her friend was a convicted felon, was not a notary public, and could not administer the oath. The Respondent was subsequently sanctioned by the Court for her conduct, but failed to pay the sanction. As a result of her conduct, the Respondent was found to have violated Rules 1.1, 1.3(a), 3.4(b), and 8.4(c) of the Rules of Professional Conduct and received a Public Reprimand Without Terms. The Board finds that the Respondent s actions in this matter reflect adversely on her ability to practice law, and the commission of a felony is a per se violation of Rule 8.4 of the Rules of Professional Conduct. Although the ABA Annotated Standards for Imposing Lawyer Sanctions recommends revocation for such conduct, 5 the Board was persuaded by several mitigating factors. In its consideration of mitigating factors, the Board found that the checking account into which the checks were deposited was in both the Respondent and Wilds s name, that Wilds received all of the funds from the checks, and that the Respondent kept none for herself. This evidence was confirmed by Zalenski, who testified that Wilds did receive all of the money from the Respondent. In her testimony on Respondent s behalf Detective Marti Ivins (hereinafter referred to as Ivins ), who was assigned to investigate this matter, admitted that she had not checked with the State Corporation Commission to determine whether the Respondent was the Registered Agent for Wilds s business. During the hearing before the Board, with permission of the Respondent and Bar Counsel, the Board retrieved the State Corporation Commission s records. They 5 ABA, Annotated Standards for Imposing Lawyer Sanctions 220 (2015). 5
reflected that, at the time of the events at issue, the Respondent was, in fact, the Registered Agent for Wilds s business. In addition to investigating the larceny charge, Ivans testified she had also been assigned to investigate an allegation of rape made by the Respondent against Wilds. Ivins admitted that the Respondent had reported the rape allegation to the Winchester City Police Department, but no arrest was made, as the matter was not investigated. Instead, Ivins charged the Respondent with filing a false police report against Wilds. That charge was later dismissed, and the Respondent filed a complaint against Ivins; however, nothing came of it. Additionally, the Respondent, testifying on her own behalf, informed the Board that she had been suspended from practicing law since September 14, 2017, based upon an impairment. 6 On that day the Respondent appeared before the Disciplinary Board of the Virginia State Bar and consented to the entry of an order suspending her license to practice law in the Commonwealth of Virginia on the basis that she had an Impairment as that term is defined in Part Six, IV, 13 of the Rules. 7 At that time, the Board issued an Order suspending the Respondent s license to practice law indefinitely due to her Impairment; and the Board ordered that she should remain suspended until it was established that she no longer suffered from such impairment. 8 The Respondent remains under suspension due to her impairment, and the Board received limited information during the hearing as to the nature of Respondent s impairment. The Respondent did testify that she currently takes Adderall and Suboxone. The Respondent acknowledged she had not completed the treatment plan that she had told the Board she was going to participate in as a result of the impairment hearing. It should be noted that throughout this case the 6 VSB Ex. 4. 7 Id. 8 Id. 6
Respondent represented herself, presented evidence, and argued her case without any apparent impairment issue. DISPOSITION At the conclusion of the evidence, the Respondent requested that the Board impose a period of suspension from the date of the Summary Order to the date of the instant hearing on February 16, 2018. Bar Counsel requested revocation. After recessing to deliberate the appropriate sanction, the Board reconvened and announced its decision. Having considered the testimony and evidence presented, the argument of counsel, the Respondent, the Respondent s Guardian ad litem and the papers previously filed herein, it is ORDERED that the Respondent s license to practice law in the Commonwealth be, and it hereby is, suspended for a period of one year and one day (hereinafter referred to as the Suspension ), which suspension will not become effective until the Respondent s current impairment suspension is terminated. 9 It is further ORDERED, that as directed in the Board s December 27, 2017 Summary Order in this matter, the Respondent must comply with the requirements of Part Six, Section IV, Paragraph 13-29 of the Rules. The Respondent shall forthwith give notice by certified mail, return receipt requested, of the Suspension of her license to practice law in the Commonwealth of Virginia, to all clients for whom she is currently handling matters and to all opposing attorneys and presiding judges in pending litigation. The Respondent shall give such notice within fourteen (14) days of the effective date of the Suspension. The Respondent shall also furnish proof to the Bar within sixty (60) days of the effective date of the Suspension that such notices have been timely given and such arrangements made for the disposition of matters. 9 It is the intention of the Board, as memorialized in this Order, that the suspension imposed herein shall run consecutive to the Respondent s impairment suspension and shall commence immediately upon termination of that suspension. 7
It is further ORDERED that if the Respondent is not handling any client matters as of the date the Suspension imposed herein commences, she shall submit an affidavit to that effect to the Clerk within sixty (60) days of the effective date of the Suspension. All issues concerning the adequacy of the notice and arrangements required by Paragraph 13-29 shall be determined by the Board, which may impose a sanction of Revocation or additional Suspension for failure to comply with the requirements of this subparagraph. 10 It is further ORDERED that pursuant to Part Six, Section IV, Paragraph 13-9(E) of the Rules of Supreme Court of Virginia, the Clerk shall assess all costs against the Respondent. It is further ORDERED that the Clerk shall mail an attested copy of this Order to the Respondent, Shelly Renee Collette, at her address of record with the Virginia State Bar, which is 215 Sharp Street, Apartment A, Winchester, Virginia 22601, by certified mail, return receipt requested; by regular mail to William H. Atwill, Jr., GAL, at his address, Atwill, Troxell & Leigh, P.C., 50 Catoctin Circle NE, Suite 303, Leesburg, Virginia 20176; and by hand delivery to Kathryn R. Montgomery, Deputy Bar Counsel, Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-0026. Entered: March 16, 2018. VIRGINIA STATE BAR DISCIPLINARY BOARD By: Sandra L. Havrilak, Second Vice Chair Signed Electronically 10 The Respondent should not be handling any client matters at this time or the time the Suspension commences because she is currently under an impairment suspension and will remain suspended until that suspension is terminated. The Suspension imposed herein becomes effective immediately upon termination of her impairment suspension. 8