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Kuchinsky v. Virginia State Bar ex rel. Third Dist. Committee

Supreme Court of Virginia

April 17, 2014

NEIL KUCHINSKY
v.
VIRGINIA STATE BAR, EX REL. THIRD DISTRICT COMMITTEE

Page 476

FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS. Charles E. Poston, Chief Judge Designate, Ann Hunter Simpson and Walter W. Stout III, Judges Designate.

Melvin Yeamans, Jr. (Kuchinsky & Yeamans, on briefs), for appellant.

Christy Warrington Monolo, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Wesley G. Russell, Deputy Attorney General; Peter R. Messitt, Senior Assistant Attorney General & Chief, on brief), for appellee.

OPINION

Page 477

[287 Va. 496] PRESENT: All the Justices

ELIZABETH A. McCLANAHAN, JUSTICE.

In this appeal of right from an attorney disciplinary proceeding before a three-judge panel appointed pursuant to Code § 54.1-3935, we consider whether an attorney violated Rules 1.8(a), 3.4(d), and 8.4(a) of the Virginia Rules of Professional Conduct.

I. Facts and Proceedings

A. Background and Prior Private Admonition

Neil Kuchinsky is an attorney licensed to practice law in the Commonwealth. In March 2008, Dillwyn T. Person (" Person" or " Dillwyn" ) hired Kuchinsky to represent him in connection with Dillwyn's claim for a portion of his father's estate.[1] Person and Kuchinsky entered into a contingency fee agreement providing that Kuchinsky would receive one-third of the first $50,000 recovered, or its fair market value, and one-fourth of anything recovered in excess of that amount, or its fair market value. Kuchinsky then filed a partition suit on behalf of Person against Person's siblings in the Greensville County Circuit Court. After filing the partition suit, Kuchinsky drafted a quitclaim deed, which was executed by Person. The quitclaim deed granted Kuchinsky a 25% interest in any " right, title, and interest" Person may possess in the six parcels of land that were the subject matter of the partition suit against Person's siblings " as well [287 Va. 497] as 25% of any other real estate interest [Person] may have that may appear of record." The quitclaim deed was recorded in the Greensville County Circuit Court.[2]

In December 2008, the Virginia State Bar (" VSB" ) received a complaint submitted by Dillwyn's brother, Clinton Person. The complaint alleged that Kuchinsky's acquisition of a 25% quitclaim interest in the subject matter of the underlying partition suit was a " clear conflict of interest." In an agreed-upon disposition, a subcommittee of the Third District Committee, Section I, of the VSB, found that Kuchinsky violated Rule 1.8(j) of the Virginia Rules of Professional Conduct by acquiring " a proprietary interest in the cause of action or subject matter of litigation." [3] As a result, Kuchinsky was issued a private admonition without terms on February 18, 2010.

B. Events Occurring After the Private Admonition

On March 24, 2010, an Order was entered in the partition suit between Person and his siblings appointing a Special Commissioner for the purpose of conveying the property that was subject to the suit. The Special Commissioner then executed a deed conveying to Kuchinsky a 25% interest and to Person a 75% interest in two specific parcels of real estate, 211 Wadlow Street and 640 Clay Street in Emporia, Virginia. After the deed was issued, Kuchinsky wrote to the Special Commissioner and asked him to " [p]lease file

Page 478

'our' deed as soon as possible." [4] The Special Commissioner's Deed was then recorded in the Greensville County Circuit Court.

After the Special Commissioner's deed was recorded, Kuchinsky proceeded to file two actions against Person. First, Kuchinsky filed a Warrant in Debt against Person in the Greensville County General [287 Va. 498] District Court. The court entered a default judgment against Person for $2,896 in principal, $6,756 in attorney's fees, and $53 in court costs. The same day, Kuchinsky recorded the default judgment as a lien against the jointly owned properties. Secondly, Kuchinsky filed a suit against Person in the Greensville County Circuit Court to partition the jointly owned properties.

Before serving Person in the partition suit, Kuchinsky sought to negotiate an agreement by which Person would pay Kuchinsky for his interest in the properties. Prior to the completion of that transaction, however, Person filed a complaint with the VSB in September 2010 alleging that Kuchinsky " took total advantage of my faith and ignorance in him for his self-interest." Subsequently, during the pendency of the VSB's investigation into Person's complaint, Kuchinsky served Person with notice of the partition suit. The case was referred to the Commissioner in Chancery for Greensville County, who conducted a hearing.[5]

In June 2012, the VSB filed a Charge of Misconduct against Kuchinsky pursuant to the Rules of the Virginia Supreme Court, Part 6, § IV, ¶ 13-16(A). Specifically, the VSB alleged that Kuchinsky violated Rules 1.8(a), 3.4(d), and 8.4(a)[6] through his conduct towards Person after the issuance of the prior admonition. After referral to the Third District Committee, which conducted a hearing, the Committee [287 Va. 499] found, by clear and convincing evidence, that Kuchinsky had violated Rules 1.8(a), 3.4(d), and 8.4(a) of the Rules of Professional Conduct and issued Kuchinsky a public reprimand without terms. The District Committee then issued a Written Determination explaining its decision. In its Determination, the District Committee made several findings of fact. Then, in a section titled " Nature of Misconduct," the District Committee listed the rules that it found Kuchinsky had ...


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