The Virginia State Bar has issued a public reprimand of Augusta County-based criminal defense attorney Thomas Weidner, related to Weidner’s actions in the representation of Felecia Neil, known locally as the former treasurer of an elementary school PTA who pleaded guilty to a misdemeanor charge in an embezzlement case last month.
A five-member Virginia State Bar disciplinary panel found, in a June 1 memorandum order, that Weidner had acted, in the Neil case, in violation of three provisions of the bar’s Rules of Professional Conduct, regarding the fees that he set in the written agreement he presented to Neil before taking on her case, a finding that he annotated the signed agreement without Neil’s knowledge, and the lien that Weidner took on her home as a guarantee of his fees.
I’ll note here that a public reprimand falls short of the effect of more stringent actions that the State Bar can take in disciplinary matters, like the suspension or outright revocation of a law license.
The main effect of a public reprimand would seem to be on the reprimanded lawyer’s professional reputation.
We reached out to Weidner, a 1989 UVA Law grad and former assistant Commonwealth’s attorney in Waynesboro, to offer him the opportunity to comment on the disciplinary matter, and had not heard back from him as of the time of publication.
The first finding: Fees
“By preparing, using, and signing a fee agreement that characterized Respondent’s advanced legal fees as nonrefundable, Respondent violated Rule 1.5(a),” which states that “a lawyer’s fee must be reasonable,” and lists eight “factors to be considered in determining the reasonableness of a fee.”
This finding was based, from the Stipulations of Fact cited in the memorandum order, on the request from Weidner that Neil pay him a “flat fee” of $45,000 for representation on the two felony indictments that she was facing.
The fee agreement described the “flat fee” as “non-refundable,” and according to the memorandum order, Weidner “stated that he intended that $45,000 was meant to be the maximum the Neils would be required to pay, such that if he took the case to trial, he would receive the full $45,000, but that if the representation was terminated prior to trial, he would be paid based on his hourly fee.”
One issue there: the memorandum order tells us that Weidner “did not provide Ms. Neil with any billing statements during the representation. Respondent’s office told Ms. Neil that they did not prepare itemized billing in ‘flat fee’ cases.”
The second finding: Handwritten amendment
“By preparing and signing a fee agreement that was internally inconsistent and inconsistent with the verbal descriptions of the fee Respondent gave to Complainant, and by annotating the agreement without telling Complainant, Respondent violated Rule 1.5(b),” which states that “the lawyer’s fee shall be adequately explained to the client. When the lawyer has not regularly represented the client, the amount, basis, or rate of the shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.”
The bar found that Weidner “made a handwritten amendment to the agreement without the Neils’ approval or knowledge.”
The representation agreement, as presented to and signed by Neil, had signaled that if the agreement were to be terminated “before the preliminary hearing,” Neil would pay Weidner $375 an hour, and his paralegals $45 an hour for their work.
The bar found that Weidner changed this without Neil’s knowledge, replacing the term “preliminary hearing” with the term “trial,” after the Commonwealth’s attorney secured a grand jury indictment in the Neil case, making a preliminary hearing in the case moot.
The third finding: Prohibited transactions
“By entering into a business transaction with his client and knowingly acquiring a possessory or security interest adverse to the client, the terms of which business transaction were not fair and reasonable, without giving the client a reasonable opportunity to seek the advice of independent counsel in the transaction, Respondent violated Rule 1.8(a),” which governs conflicts of interest.
This relates to Weidner’s push to secure the $45,000 “flat fee” by getting Neil to agree to allow the lawyer to take out a $45,000 lien on her home, which is titled in the name of her husband, Stephen.
Weidner, per the memorandum order, had John Hill, at the Waynesboro-based law firm Poindexter Hill, prepare a Note and Deed of Trust, which included 7.5 percent annual interest, calculated monthly, and would have given the trustees a 5 percent commission in the event of the sale of the home.
Per the memorandum order, Weidner “did not review the Deed of Trust before providing it to the Neils,” “did not explain the terms or the risks of the Deed of Trust to the Neils,” and “did not advise the Neils to seek independent counsel before signing the Deed of Trust.”
Final disposition
In addition to the public reprimand, the panel ordered Weidner to submit to the Virginia State Bar Ethics Department a modified fee agreement to replace the one that he had been using with clients since 2009, and ordered him to certify to the State Bar that he had notified in writing all of his current clients who had executed a fee agreement describing his fee as nonrefundable that his fees are, in fact, “not nonrefundable.”
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Chris Graham
