A Legal Theory

Reciprocal disbarment has been imposed in Massachusetts based on a sanction imposed by a three-judge Circuit Court for the City of Staunton.

On January 23, 2024, the Circuit Court for the City of Staunton issued a final order disbarring the respondent from practice in Virginia. The respondent was disbarred, inter alia, for accepting significant fees from numerous criminal defendants, to seek their release from custody by pursuing a questionable legal theory that the respondent knew had previously and repeatedly been rejected by the courts of both Virginia and the United States. He also misused client funds by failing to properly deposit client advance fees and retainers into trust accounts and depositing unearned fees into his operating account.

The Virginia decision  revoking his license described the theory

Case law in Virginia prior to 2016 recognized that defective indictments were procedural in nature and could, therefore, be waived. (VSB Ex. A 7)

Respondent developed a legal theory sometime in 2016 that the Indictment Clause of the Fifth Amendment to the United States Constitution applied to the states via the Fourteenth Amendment to the United States Constitution, thereby creating a constitutional right to a proper indictment, rendering any conviction based on a defective indictment void ab initio ("Defective Indictment Argument"). (VSB Ex. Al at p. A-10, ,,14-16 and p. A-380, ,,7-9)

Respondent developed this theory in connection with his representation of Phillip Ostrander ("Mr. Ostrander"), one of the Complainants identified in the Certification. Id.

Respondent filed a Motion to Vacate Mr. Ostrander's criminal convictions in the Circuit Court for the City of Chesapeake on April 21, 2016 in which Respondent alleged that Mr. Ostrander's indictments were defective because they were not properly returned in open court, nor were they recorded in the records of the Clerk's Office. By letter opinion dated May 17, 2016, the Circuit Court for the City of Chesapeake rejected the Defective Indictment Argument. (VSB Ex. A4)

On May 31, 2016, the Court of Appeals of Virginia handed down its opinion in Epps v. Commonwealth, 66 Va. App. 393, 785 S.E.2d 792 (2016), holding that defects in an indictment are procedural in nature and can be waived. (VSB Ex. AS)

Upheld on appeal

On June 1, 2017, the Supreme Court of Virginia affirmed the Court of Appeals' decision in Epps v. Commonwealth, 293 Va. 403, 799 S.E.2d 516 (2017), via published opinion. (VSB Ex. A7)