Although voters stripped Jan Smith of his position as Lancaster’s Commonwealth Attorney, he is being called on to answer for one of his former cases. A Virginia State Bar subcommittee has certified charges against him for violating two rules of conduct during his handling of the John Randolph Hooper case, which remains unresolved.
Hooper was charged with aggravated manslaughter and failing to stop a boat to provide assistance during an incident in the Irvington area that killed Graham McCormick. Although both charges are felonies, Smith negotiated a plea agreement that gave Hooper a 15-year sentence with all but one year suspended, and that 12 months was to be served in the local jail.
Smith allegedly struck this deal because the incident happened at night, there were no witnesses, and Hooper claimed he couldn’t remember what happened, so Smith considered it a weak case.
During a court proceeding, Smith had “a brief discussion,” with the presiding judge of the case at that time about his motivation for the plea agreement, the subcommittee’s determination says.
When this conversation occurred, there were other witnesses in the court room and judge Michael McKinney “made a non-committal statement regarding the difficulty the Commonwealth faces in prosecuting cases.”
Later, when Smith shared details about the plea agreement with McCormick’s parents and Benjamin Woodson, who owns the property where the victim’s body was found, they all thought the action against Hooper was too lenient. Smith told McCormick’s father and Woodson that he had discussed the case with McKinney and the judge expressed doubts that the state could prove the case against Hooper.
According to the VSB subcommittee, this was a misrepresentation of the conversation between Smith and the judge.
Unaware of Smith’s false portrayal of the events, Mr. Woodson wrote to McKinney expressing shock that he had gone over the case with the Commonwealth Attorney and agreed that they should proceed with a plea agreement. McKinney denied wrongdoing but recused himself from the case to protect the integrity of the judicial system and to avoid the appearance of impropriety.
McCormick’s parents tried to have Smith removed from the case, an action also supported by Woodson. During those proceedings, which were held in King George, Gregory Habeeb represented the McCormick family, and he called the judge’s attention to the fact that Smith didn’t dispute saying he’d discussed the case with and reached a conclusion with McKinney.
When Smith spoke in his defense that day, he still didn’t deny making the statements. He argued that he was an elected official, appointed by the people of Lancaster County, and the McCormick family didn’t have the right to request that he be removed from the case. Ultimately, Judge Herbert Hewitt sided with Smith, and dismissed the McCormick family’s motion to have him removed.
The McCormicks were deemed powerless to take action against Smith for his handling of the case, but he is a registered attorney, and the VSB does have authority to address his behavior.
According to the subcommittee, Smith’s “intentionally false statements… were of such magnitude that they reflect adversely on his fitness to practice law and therefore constitutes a violation” of the rule that bars a lawyer from knowingly making a false statement of fact or law. ”
It found Smith was also in violation of professional misconduct based on the rule that deems it inappropriate to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyers fitness to practice law.”
Smith had 21 days from May 13 to simply file an answer or to file an answer and demand that further proceedings be conducted before a three-judge panel. If he doesn’t take one of those two steps, the Disciplinary Board can proceed to set a date, time and place for the hearing and serve Smith notice of the details.
Disciplinary issues in Smith’s past
This isn’t the first time the VSB has deemed it necessary to address Smith’s professional conduct.
In 2012, the VSB Disciplinary Board issued a public reprimand to Smith for violating diligence and communication rules. That action came in response to misconduct in three cases. One involved failure to file an appeal. Another involved failure to file a personal injury lawsuit. And, in the third, Smith didn’t notify the Social Security Administration that he was no longer the lawyer for an individual filing a disability appeal, which according to the VSB, caused further delay in the case.
In 2010, a VSB subcommittee found Smith violated the rules of competence, diligence, communication and he failed to respond to a demand for information. In that instance, he didn’t file his client’s appeal with the Supreme Court of Virginia on time, didn’t tell the client the appeal wasn’t filed, and he failed to follow-up on a VSB investigator’s request for additional information.
In response to those charges Smith said, “I can offer no excuse for my handling of Mr. Stewart’s case,” and added “the question of my ineffectiveness is beyond doubt,” the VSB records show.