On February 22, 2021, the Virginia State Bar Disciplinary Board (“the Board”) suspended Jonathan Preston Fisher, Esq. from the practice of law for sixty (60) days effective February 1, 2021, with other conditions. The hearing was held on January 22, 2021. Mr. Fisher is a DUI lawyer based in Blacksburg, Virginia and was admitted to the Virginia State Bar in 2001. The suspension was the result of two consolidated matters where Mr. Fisher admitted to a portion of the allegations in his Answers.
In the first case, VSB Docket Number 19-101-115111 (“Case #111”), during the liability phase of the hearing the Board found clear and convincing evidence that Mr. Fisher failed to inform a client of the client’s criminal conviction, and that he disbursed the client’s flat fee to Mr. Fisher’s trust account before issuing a refund. The Board also concluded that the balance of Mr. Fisher’s trust account fell below the amount of the flat fee the client had paid, and Mr. Fisher failed to maintain books and records regarding client subsidiary ledgers, cash receipts, and disbursement journals. The Board found clear and convincing evidence that Mr. Fisher violated the following Virginia Rules of Professional Conduct: 1.4(a), 1.15(b)(5), 1.15(c)(1), 1.15(c)(2)(i), 1.15(c)(2)(ii), and 1.15(c)(4).
In the second case, VSB Docket Number 19-101-114660 (“Case #660”), during the liability phase of the hearing the Board found clear and convincing evidence that Mr. Fisher failed to appear for trial for nine separate clients, failed to timely file an appeal for one client, failed to advise two clients that they were convicted in absentia and that he took no action to have their cases reopened or reheard, failed to advise one client that he never appealed the client’s convictions, failed to refund an unearned portion of one client’s flat fee, failed to promptly return the flat fee paid by two clients, disbursed from his trust account all or a portion of fees paid by nine clients prior to earning the fees and/or refunding the fees, and failed to maintain books and records regarding client subsidiary ledgers, cash receipts, and disbursement journals. For Case #660, the Board found clear and convincing evidence that Mr. Fisher violated the following Virginia Rules of Professional Conduct: 1.3(a), 1.4(a), 1.15(b)(4), 1.15(b)(5), 1.15(c)(1), 1.15(c)(2)(i), 1.15(c)(2)(ii), 1.15(c)(4), and 1.16(d).
In the sanction phase of the hearing for both Case #111 and Case #660,
The Board determined that the Respondent neglected his duties to multiple clients over a significant period of time by failing to appear for trial, by failing to appeal and move for new trials and to re-open cases and compounded these failures by not adequately communicating with some of his clients concerning them. The Respondent also failed to safeguard clients’ property due to trust accounting and fee violations. These multiple offenses evidence a pattern of misconduct; both of which are aggravating factors when considering an appropriate sanction. The Respondent is an experienced practitioner having been licensed in Virginia since 2001 and the Board determined this to be another aggravating factor.
However, the Board also found “there were substantial mitigating factors in Respondent’s favor.” First, Mr. Fisher had no prior disciplinary history. Second, Mr. Fisher cooperated with the Virginia State Bar’s investigation. Third, Mr. Fisher presented testimony from an experienced Roanoke practitioner and Past President of the Virginia Trial Lawyers’ Association as to Mr. Fisher’s honesty, candor, and skill as a trial lawyer. Fourth, Mr. Fisher exhibited remorse for his actions and made efforts to mitigate harm to his clients by paying fines and costs and refunding certain fees. Fifth, Mr. Fisher initiated new accounting and retainer agreements in “a good faith effort to fix the trust accounting violations.”
The Board also noted that Mr. Fisher “lives with significant medical and mental health concerns, including permanent physical disability causing him to use a wheelchair which would be wholly disabling for many.” Previously, in 2019, it was reported by various media outlets that Mr. Fisher had been fined $600 by a Circuit Court Judge in Floyd County after swearing at a prosecutor and threatening to sue the Commonwealth’s Attorney Office. At that time, Mr. Fisher made statements to the media that he has osteogenesis imperfecta, also known as brittle bone disease, and that he has had more than 50 broken bones due to his disease which has left with him post-traumatic stress disorder. In 2019, Mr. Fisher told media outlets he was attending group sessions led by a mental health professional with Lawyers Helping Lawyers and he was working to reduce his case load.
During the sanction phase of the hearing for both Case #111 and Case #660 Mr. Fisher presented testimony from the Southwest Virginia Program Manager of the Virginia Judges and Lawyers Assistance Program and submitted into evidence his January 6, 2021 contract with the Virginia Judges and Lawyers Assistance Program.
In the end, “[t]he Board found that these mitigating factors outweigh, but do not override, the aggravating factors. Due to the aggravating factors, a suspension of the Respondent’s law license is appropriate. Due to the mitigating factors, it is not appropriate that the suspension be a long-term suspension.” Accordingly, the Board suspended Mr. Fisher’s license to practice law for sixty (60) days effective February 1, 2021. In addition, the Board imposed the following additional conditions: Mr. Fisher is required to make his trust account books and records open to quarterly review and investigation by the Virginia State Bar’s investigators for three years from the date of the order; Mr. Fisher shall comply in good faith with his contract with the Virginia Judges and Lawyers Assistance Program; if Mr. Fisher does not comply with the trust account and contract with the Virginia Judges and Lawyers Assistance Program, he will be suspended for one year; and Mr. Fisher was required to comply with Part Six, Section IV, Paragraph 13-29 of the Rules and notify all clients, opposing counsel, and judges of his suspension and make appropriate arrangements for the disposition of matters in his care and conformity with the wishes of his clients.
On March 5, 2021, a Subcommittee of the Virginia State Bar issued Mr. Fisher a Public Reprimand with Terms following a February 19, 2021 hearing on the Agreed Disposition for a Public Reprimand with Terms between Mr. Fisher and the Virginia State Bar.
Unfortunately, Mr. Fisher did not make appropriate arrangements for the disposition of matters in his care and conformity with the wishes of his clients during his suspension in February and March, as several of his clients alleged that Mr. Fisher did not tell them he was suspended when he took their cases and did not appear on their behalf in Court. In a new case, VSB Docket Number 21-000-122437, following a hearing on May 21, 2021, the Board held that, effective May 21, 2021, Mr. Fisher’s license to practice law in the Commonwealth of Virginia was revoked for failing to comply with Part Six, Section IV, Paragraph 13-29 of the Rules of the Supreme Court of Virginia.
Mr. Fisher’s case demonstrates that disciplinary authorities may credit evidence of medical and mental health conditions to mitigate a potential sanction imposed for clear and convincing violations of the Rules of Professional Conduct. However, it is important to recognize those issues and take steps to seek assistance before they impact an attorney’s ability to protect the interests of his or her clients. In addition, however, Mr. Fisher’s case is a cautionary tale of how important it is for attorneys to strictly comply with the requirements associated with a disciplinary ruling. In this instance, had Mr. Fisher complied with his obligations, he likely would have only been suspended for 60 days. By failing to comply with the requirements of the disciplinary decision, however, his license to practice law was revoked.
Consult with an Attorney at Eccleston and Wolf
If you are facing a disciplinary matter involving physical or mental health matters or need advice on complying with the requirements set forth in a disciplinary decision, please contact Eccleston & Wolf for assistance. Our attorneys have a wealth of knowledge relating to disciplinary matters in Maryland, DC, and Virginia, and we are happy to help guide you through the unnerving disciplinary process in those jurisdictions.