PRESENT: Carrico, C.J., Compton, Lacy, Keenan, Koontz, and 

Kinser, JJ., and Whiting, Senior Justice 

SA'AD EL-AMIN 

 OPINION BY 

v. Record No. 981994 SENIOR JUSTICE HENRY H. WHITING 

 April 16, 1999 

VIRGINIA STATE BAR, ex rel. 

THE THIRD DISTRICT COMMITTEE 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Clifford R. Weckstein, Chief Judge Designate, Dixon L. Foster 

and J. Warren Stephens, Judges Designate 

 Asserting that Sa'ad El-Amin, a lawyer licensed to practice 

in Virginia, had violated certain of its disciplinary rules, the 

Virginia State Bar initiated disciplinary proceedings against 

him. The preamble to the Virginia Code of Professional 

Responsibility states, in pertinent part: 

 The Virginia Code of Professional Responsibility 

consists of three separate but interrelated parts: 

Canons, Disciplinary Rules, and Ethical 

Considerations. 

 The Canons are statements of axiomatic norms, 

expressing in general terms the standards of 

professional conduct expected of lawyers in their 

relationships with the public, with the legal system, 

and with the legal profession. They embody the general 

concepts from which the Disciplinary Rules and the 

Ethical Considerations are derived. 

 The Disciplinary Rules, unlike the Canons and 

Ethical Considerations, are mandatory in character, as 

stated in DR 1-102(A)(1). The Disciplinary Rules state 

the minimum level of conduct below which no lawyer can 

fall without being subject to disciplinary action. 
Rules of Supreme Court of Virginia, Pt. 6, § II. 

 In a hearing before a three-judge court conducted under the 

provisions of Code § 54.1-3935, the court concluded that El-Amin 

had committed 15 violations of 9 of the disciplinary rules in 

his representation of Annie H. Fant, Grace R. Williams, and 

Vernon El-Amin, and the court suspended his license to practice 

law for a period of four years. El-Amin exercised his statutory 

right to appeal eight of those findings involving his alleged 

misconduct, competence and promptness, causing prejudice to a 

client, failure to refund advanced fees, and failure to avoid 

the appearance of professional impropriety. 

 In reviewing the findings of a three-judge court in an 

attorney disciplinary proceeding, we use the same standard that 

we apply to the findings of disciplinary boards: 

[O]n review we will make an independent examination of 

the whole record, giving the factual findings . . . 

substantial weight and viewing them as prima facie 

correct. While not given the weight of a jury 

verdict, those conclusions will be sustained unless it 

appears they are not justified by a reasonable view of 

the evidence or are contrary to law. 

Myers v. Virginia State Bar, 226 Va. 630, 632, 312 S.E.2d 286, 

287 (1984)(quoting Blue v. Seventh District Committee, 220 Va. 

1056, 1061-62, 265 S.E.2d 753, 757 (1980)(appeal from 

disciplinary board)). And, consistent with well-established 

appellate principles, we view the evidence and all reasonable 

inferences that may be drawn therefrom in the light most 

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favorable to the State Bar, the prevailing party in the trial 

court. Gunter v. Virginia State Bar, 238 Va. 617, 619, 385 

S.E.2d 597, 598 (1989). 

I. The Fant Matter

 Considering the cases arising under El-Amin's 

representation of each client, we begin with his representation 

of Fant. Fant employed El-Amin in June 1994 to represent her in 

an employment discrimination case. El-Amin agreed to begin 

working on the case immediately and required Fant to advance a 

retainer fee of $4,000, which she did by check. He indicated to 

Fant that he would withdraw funds as he worked on the case and 

told Fant that he would deposit the retainer in an escrow 

account. Instead, El-Amin cashed the check and produced no 

record of having deposited the proceeds in any account. 

 During the following five months, El-Amin had little 

contact with Fant, despite her numerous telephone calls, 

letters, and visits to his office. Because of El-Amin's failure 

to respond to her inquiries, Fant wrote him a letter in late 

November 1994 discharging him as her counsel and asking for a 

refund of the retainer. El-Amin telephoned Fant several days 

later and, admitting to her that he had not done certain work on 

the case as promised, agreed to refund "the money" by mail on 

December 5. 

3
 Fant testified that when El-Amin did not refund the money 

as promised, she sued him in the General District Court and 

mailed him a copy of the warrant. Thereafter, El-Amin contacted 

Fant and promised to pay "$4,000 on December the 20th, 1994, at 

11 a.m." Fant went to El-Amin's office at the specified time 

and he told her that because his wife, who was his law partner, 

had been hospitalized, he had "taken [his wife's] load," and 

further that he could not charge Fant any money because he had 

done no work on her case. 

 However, El-Amin refunded only $1,000 at that time. In 

response to Fant's question of why the payment was in that 

amount in view of the fact that the $4,000 deposit was "supposed 

to be in escrow," El-Amin said "I don't have the money." ElAmin promised to pay the additional $3,000 on January 11, 1995 

at 11:00 a.m. 

 When El-Amin failed to refund the remaining $3,000 on 

January 11, Fant wrote to the State Bar asking for its help in 

getting her refund. Although Fant delivered a copy of her 

letter to El-Amin's office on January 12, she received no 

response from him. 

 On January 17, Fant retained attorney Bradley O. Wein to 

collect the balance. El-Amin agreed to see Wein at a fixed time 

on January 23, 1995 in El-Amin's office and to pay the $3,000 

balance to Wein at that time. However, El-Amin was not at his 

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office at the appointed time and did not refund the promised 

sum. 

 Only after Wein had generated a file of over 1,000 pages, 

expended more than 100 hours during a period of 18 months, and 

incurred costs of $754.72 did El-Amin refund $2,500 of the 

$3,000 balance in settlement of Fant's claim. After the 

deduction of Wein's fee and expenses, Fant realized only $911.95 

of the $3,000 balance of her deposit. 

 El-Amin has not appealed three of the court's four findings 

in the Fant matter. They are that he violated the following 

disciplinary rules: (1) DR 9-102(A)(2), which requires that 

client funds be deposited in an identifiable trust account; (2) 

DR 9-102(B)(3), which requires that a lawyer maintain "complete 

records of all funds, securities, and other property of a client 

coming into the possession of the lawyer and render appropriate 

accounts to his client regarding them"; and (3) DR 9-102(B)(4), 

which requires that an attorney "[p]romptly pay or deliver to 

the client . . . funds . . . in the possession of the lawyer 

which such person is entitled to receive." 

 El-Amin contends, however, that the evidence is 

insufficient to establish, clearly and convincingly, that he 

violated DR 1-102(A)(3), which proscribes a lawyer's commission 

of a "deliberately wrongful act that reflects adversely on the 

lawyer's fitness to practice law." We disagree with El-Amin. 

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 In our opinion, the evidence that El-Amin cashed Fant's 

$4,000 retainer check, used the proceeds without earning the 

fee, and delayed refunding the retainer fee, sufficiently 

supports the finding that he committed "a deliberately wrongful 

act that reflects adversely on [his] fitness to practice law," 

in violation of DR 1-102(A)(3). Accordingly, we will affirm the 

trial court's finding on that issue. 

II. The Williams Matter

 We next consider the charges relating to El-Amin's 

representation of Williams, which began in early May of 1994. 

Williams, like Fant, employed El-Amin to represent her in an 

employment discrimination case. 

 As in the Fant matter, El-Amin appeals only one of the 

findings of disciplinary rule violations in his representation 

of Williams. He has not appealed the court's findings that, in 

representing Williams, he violated the pertinent provisions of 

the following disciplinary rules: (1) DR 2-108(D), which 

provides that, "[u]pon termination of representation, a lawyer 

shall take reasonable steps for the continued protection of a 

client's interests, including . . . refunding any advance 

payment of fee that has not been earned."; (2) DR 6-101(B), 

which states that a "lawyer shall attend promptly to matters 

undertaken for a client"; (3) DR 6-101(C), which provides that a 

"lawyer shall keep a client reasonably informed about matters in 

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which the lawyer's services are being rendered."; and (4) DR 9-

102(B)(4), which requires that a lawyer promptly pay to a client 

funds the client is entitled to receive. 

 Thus, the appeal in the Williams matter is limited to the 

court's finding that El-Amin violated DR 1-102(A)(4). It 

prohibits a lawyer from engaging "in conduct involving 

dishonesty, fraud, deceit, or misrepresentation which reflects 

adversely on a lawyer's fitness to practice law." 

 At the initial consultation, El-Amin told Williams his fee 

would be $7,000. When she told him that she did not have "that 

kind of money," but would ask her relatives to help her make 

payments on the fee, El-Amin agreed that he would begin working 

on the case. Williams and her relatives paid El-Amin over 

$1,700. However, despite numerous office visits and telephone 

calls, Williams was unsuccessful in her attempts to see or talk 

to El-Amin about what he had done during the ensuing five-month 

period. Consequently, Williams wrote El-Amin on November 2, 

1994, discharging him as her counsel and asking for a refund of 

the amounts paid on the fee. The letter was delivered by 

certified mail to El-Amin's office and signed for by his 

secretary on November 3, 1994. El-Amin did not respond to the 

letter. 

 El-Amin testified that his secretary neither gave him the 

certified letter nor told him of Mrs. Williams' office visits 

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and that he did not know he "had a problem with Mrs. Williams 

until after [he] received a complaint from the Virginia State 

Bar." Although El-Amin claimed he had done some research on the 

Williams case, he produced no records to substantiate his 

testimony and admitted that "the entire situation fell through 

the cracks. And it just did. And I don't have an explanation." 

 Yet when interviewed during a preliminary investigation 

about his failure to refund the fee, El-Amin told a State Bar 

investigator that he had not refunded the money because "he felt 

like he had earned the fees" up to the time of his discharge. 

Although El-Amin denied making this statement to the 

investigator and claimed that the money was still in an escrow 

account, at trial El-Amin produced no records of any such 

account and could only say that he "assume[d]" the money was 

still there. 

 In our opinion, this evidence clearly and convincingly 

supports the conclusion that El-Amin violated DR 1-102(A)(4) by 

using the retainer without earning it and by attempting to 

deceive the investigator in claiming the retainer had been 

earned. That is "conduct involving dishonesty, fraud, deceit, 

or misrepresentation which reflects adversely on [El-Amin's] 

fitness to practice law". DR 1-102(A)(4). Hence, we will 

affirm this finding. 

III. The Vernon El-Amin Matter

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 Finally, we consider El-Amin's dealings with his client 

Vernon El-Amin (Vernon), who is of no relation to him. At the 

time of their contract in 1990, Vernon was incarcerated 

following his convictions for four murders. Vernon was 

represented by other counsel in those criminal cases. 

 El-Amin and Vernon agreed that if Vernon's pending appeal 

of those convictions was unsuccessful, El-Amin would represent 

him in a habeas corpus proceeding claiming ineffective 

assistance of counsel. In the meantime, El-Amin was to secure 

the release of Vernon's 1986 Lincoln Continental from police 

impoundment, have the car put into condition to sell, deduct the 

cost thereof, and hold the net proceeds of sale as a retainer 

fee. 

 As it turned out, the appeal by other counsel was 

successful and El-Amin did little work on this matter. However, 

Vernon was again convicted on retrial, remained in confinement, 

and asked El-Amin to keep the retainer as a credit for future 

representation. 

 El-Amin obtained the car, had it repaired, and began using 

it himself. He later decided to trade the car for a newer one 

and received a credit of $4,636.04 on the purchase price of the 

newer car. The newer car was titled in El-Amin's name and he 

eventually executed a lien on that car in favor of another 

client. El-Amin did not note in his records or on the title to 

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the newer car that he held either the 1986 car or Vernon's 

interest in the proceeds, i.e., the credit, in trust. Nor did 

El-Amin deposit funds in his trust account once he received the 

credit. Although El-Amin testified in another proceeding in 

July 1991 that the agreed value of the car was "$10,000, less 

any amounts necessary to repair it and put it in marketable 

condition," he testified before the three-judge court in 1988 

that the agreed value was $6,500 less the cost of repairs. 

 El-Amin contends that the court erred in finding he had 

violated six disciplinary rules during his representation of 

Vernon El-Amin. We do not agree with El-Amin. We conclude that 

clear and convincing evidence supports all of the trial court's 

findings. 

 Dealing first with violations of DR 1-102(A)(3) and DR 1-

102(A)(4), discussed above, involving a "deliberately wrongful 

act," deceit and misrepresentation, we reject El-Amin's argument 

that there is a distinction between his activities and the 

activities of other lawyers who committed crimes and were 

disciplined. As we pointed out in Gunter, 238 Va. at 621, 385 

S.E.2d at 600, "conduct may be unethical, measured by the 

minimum requirements of the Code of Professional Responsibility, 

even if it is not unlawful." The evidence shows that El-Amin 

not only personally used Vernon's car, but he also traded it for 

a newer one without reflecting the resulting $4,636.04 credit on 

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the title to the newer car. In our opinion, this sufficiently 

supports the trial court's findings of violations of both of 

these disciplinary rules. 

 We also conclude that the evidence was sufficient to show 

that El-Amin prejudiced Vernon's rights by using and disposing 

of the car in violation of DR 7-101(A)(3). That disciplinary 

rule provides that a lawyer shall not intentionally "[p]rejudice 

or damage his client during the course of the professional 

relationship." A comparison between El-Amin's 1991 testimony 

and his 1998 testimony concerning the value of the car, coupled 

with his decision not to reflect the unearned retainer or 

Vernon's consequent interest in the newer car, sufficiently 

indicates that Vernon's rights were prejudiced in this matter. 

It is of no consequence that El-Amin later earned the fee by 

handling other matters for Vernon, as he argues. The fact is 

that at the time in question, Vernon's rights were prejudiced by 

El-Amin's activities. 

 The final group of charges arises under Canon 9, which 

provides: "A Lawyer Should Avoid Even the Appearance of 

Professional Impropriety." One of the charges under this canon 

involves a violation of DR 9-102(A), which requires a lawyer to 

deposit "[a]ll funds received or held by the lawyer or law firm 

on behalf of a client . . . in one or more identifiable trust 

accounts." 

11
 El-Amin contends that he had no obligation to deposit funds 

to reflect the credit in question since the word "funds" as used 

in the rule refers to money and that, since he did not obtain 

money from the trade, but only obtained a credit, there could be 

no violation of DR 9-102(A). We reject this contention for the 

following reasons. 

 The form of the retainer fee changed when El-Amin, who held 

Vernon's car as a bailee for the purpose of securing the payment 

of legal fees to be incurred in the future by Vernon, converted 

the car into a credit, which El-Amin received on the purchase of 

his new car. Vernon had an interest in that credit because it 

took the place of his car as the retainer fee, or fund, for the 

payment of the future legal fees. 

 The terms "fund or funds" have been defined in part as 

"[a]n asset or group of assets set apart for a specific 

purpose." Black's Law Dictionary 673 (6th ed. 1990). Because 

the credit represented the retainer fee, it became a "fund" set 

aside for a specific purpose, the payment of fees to be billed 

by El-Amin in the future. 

 Considering the scope and purpose of the Code of 

Professional Responsibility, we do not think that the term 

"funds" as used in DR 9-102(A) is confined to items such as 

"money" or "cash," as El-Amin contends. Indeed, we have not 

limited the term to money or cash, but, instead, have used the 

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term "fund" or "funds" in a generic sense in a number of 

situations. See, e.g., Somers v. Godwin, 182 Va. 144, 147, 27 

S.E.2d 909, 910 (1943)(applying word "funds" to intangible 

personal property); Fireman's Mutual Aid Assoc. v. Commonwealth, 

166 Va. 34, 36, 184 S.E. 189, 190 (1936)(applying word "funds" 

to "bonds, notes, etc., and money"); Rixey's Ex'rs v. 

Commonwealth, 125 Va. 337, 343-44, 99 S.E. 573, 574 

(1919)(describing intangible property held by executor as "funds 

arising from . . . the sales of real and personal property to 

others"). 

 In sum, given the context and purpose of the disciplinary 

rules, and our previous uses of the words "fund" and "funds," it 

is our opinion that, under the facts of this case, the credit 

El-Amin received upon trading Vernon's car became "funds" within 

the meaning of DR 9-102(A)(2) and that the rule required El-Amin 

to deposit a sum representing that credit into his trust 

account. 

 The evidence also supports the conclusion that El-Amin 

violated DR 9-102(B)(2), which requires that a lawyer 

"[i]dentify . . . properties of a client . . . and place them in 

a . . . place of safekeeping as soon as practicable." El-Amin 

testified that "at first I was going to drive the vehicle. 

However, and I drove it." But after an encounter with a man who 

"look[ed] very angry" and asked him if the car was Vernon's and 

13
if El-Amin was related to him, El-Amin decided, "I don't want to 

have anymore parts of this. So I rapidly ran out to Capital 

Lincoln and said, 'What will you give me for this vehicle.'" 

El-Amin's personal use of the car and his failure to document 

Vernon's interest in the credit El-Amin received for selling the 

car sufficiently show that El-Amin failed to identify the car or 

the proceeds from its sale as Vernon's property or keep either 

in "a place of safekeeping," all in violation of DR 9-102(B)(2). 

 Finally, we consider the violation of DR 9-102(B)(3). It 

requires a lawyer to "[m]aintain complete records of all funds, 

securities, and other properties of a client coming into the 

possession of the lawyer and render appropriate accounts to his 

client regarding them." El-Amin simply argues that "[t]he 

evidence established that El-Amin maintained records regarding 

the car given by Vernon El-Amin," but El-Amin does not say what 

those records were. 

 El-Amin was the only witness who testified about the 

records regarding Vernon's car. El-Amin's testimony indicated 

that he regarded his record-keeping obligation to Vernon as 

limited to accounting for the repair expenditures and that this 

obligation was discharged by notations of Vernon's name on the 

checks he had written on his attorney trust account to pay for 

the repairs to Vernon's car. Although no monies had been 

deposited in the trust account in Vernon's name, El-Amin said he 

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charged the amounts of these checks against other clients' 

retainer fees that had been earned by El-Amin. El-Amin says 

nothing about his obligation to keep a record of the agreed 

amount of the retainer or the work El-Amin had done to earn the 

retainer. We conclude that this evidence sufficiently supports 

the conclusion that El-Amin violated the provisions of DR 9-102 

(B)(3). 

IV. Length of Suspension

 El-Amin argues that "[t]he trial court abused its 

discretion in failing to consider El-Amin's mitigating 

circumstances." He overlooks the following statement made by 

the court at the time the sanctions were imposed. "We have 

taken into account the evidence in aggravation and the evidence 

in – and argument in mitigation." Accordingly, we reject ElAmin's argument. 

 Even so, El-Amin contends that the four-year suspension was 

unwarranted in view of the mitigating evidence of his wife's and 

daughter's illnesses during the periods in question, the 

revision of his office procedures to provide that he alone would 

sign for certified letters addressed to him, his remorse, and 

his refunds to Fant despite having done considerable work for 

her. The State Bar responds that El-Amin's "revision" of his 

office procedures was merely an avoidance of future 

responsibility, and that his alleged remorse was put in question 

15
because even after protracted litigation he refunded only a 

portion of Fant's retainer. These considerations may well have 

diminished the effect of any mitigating evidence presented by 

El-Amin. 

 El-Amin also contends on brief that "[t]here was no 

evidence of a pattern of misconduct by El-Amin." In response, 

the State Bar notes the evidence in the record of his "prior 

record since 1987 includ[ing] no less than seven founded 

disciplinary violations relating, like [these], to client 

neglect; failure to keep clients informed; failure to account 

for fees collected; and failure to refund unearned fees, among 

other things." We think this evidence is sufficient to 

establish a pattern of misconduct. 

 In sum, our independent review of the entire record 

discloses that the court did not abuse its discretion in 

suspending El-Amin's license for four years. 

V. Conclusion

 Finding no merit in El-Amin's assignments of error, we will 

affirm the judgment of the court below suspending El-Amin's 

license to practice law for a period of four years. 

Affirmed. 

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