Background
Douglas Bell Wessel, a Virginia attorney, represented Mariela Perez in a personal injury action stemming from a 2019 accident at Merrifield Garden Center in which a malfunctioning electric utility cart caused injuries requiring multiple leg surgeries. Wessel filed suit in 2021, with trial set for October 2023. Two months before trial, Wessel retained outside counsel Robert Stoney and Juli Porto to address a potential causation issue. A dispute soon erupted over whether Perez or Wessel would bear those additional attorneys’ fees, and the relationship between Wessel and his client rapidly deteriorated.
By mid-September 2023, Wessel had privately decided he would not take the case to trial, yet he never disclosed this to Perez. Instead, he continued filing witness lists and allowing settlement negotiations to proceed — telling co-counsel Stoney he planned to “pretend” to prepare for trial and nonsuit if settlement failed. Stoney urged Wessel to inform Perez; Wessel delayed. Perez only learned of Wessel’s true intentions around October 10, less than two weeks before the scheduled trial date. The case settled on October 19, 2023 for $1.2 million — below the $1.5 million minimum valuation Wessel himself had placed on it — and Perez terminated Wessel hours later.
After his termination, Wessel refused to withdraw from the case and fought to block disbursement of any settlement funds until he and his lenders were paid first, even though up to $640,000 was undisputed and belonged immediately to Perez, who was experiencing severe financial hardship. Despite being advised twice by the Virginia State Bar Ethics Hotline to withdraw, Wessel did not file an agreed withdrawal order until a December 8, 2023 court hearing. The VSB charged Wessel with violating Rules 1.3(b), 1.16(a)(1), 1.16(a)(3), 1.15(b)(4), and 8.4(a) of the Rules of Professional Conduct. A three-judge panel in Fairfax Circuit Court found all violations proven and suspended Wessel’s license for 13 months.
The Court’s Holding
The Supreme Court of Virginia affirmed the three-judge panel’s judgment in full. On Rule 1.3(b) — the duty not to intentionally fail to carry out a contract of employment — the Court found that Wessel’s secret decision not to try the case, combined with his deliberate concealment of that decision until the eve of trial, plainly violated his contractual and professional obligations to Perez. The Court rejected Wessel’s claim that his conduct served his client’s best interests, noting that his undisclosed strategy forced Perez into a last-minute “Hobson’s Choice” between a financially crippling delay or a reduced settlement, stripping her of any meaningful decision-making opportunity.
The Court also affirmed violations of Rule 1.16(a)(1) (failing to withdraw when continued representation would itself violate the Rules) and Rule 1.16(a)(3) (failing to withdraw promptly after being discharged). Although the Rules prescribe no specific timeframe for withdrawal, the Court held that the circumstances — including two explicit VSB recommendations to withdraw and the absence of any legitimate justification for delay — made Wessel’s months-long inaction a clear violation. The Court found his motive was self-interest: remaining counsel of record to maximize his claim to settlement funds.
Finally, the Court affirmed violations of Rule 1.15(b)(4) (prompt delivery of client funds) and Rule 8.4(a) (misconduct through violation of the Rules). Wessel’s efforts to block any disbursement schedule that did not pay him first unlawfully withheld the undisputed portion of settlement funds from Perez. The Court emphasized that a lawyer may not hold client funds as leverage to coerce acceptance of the lawyer’s fee position, and that undisputed funds must be promptly distributed regardless of any ongoing fee dispute.
Key Takeaways
- An attorney who privately decides not to try a client’s case must promptly disclose that decision; concealing it while maintaining the appearance of trial readiness violates Rule 1.3(b) regardless of the attorney’s claimed good intentions.
- A lawyer must withdraw promptly after being discharged under Rule 1.16(a)(3); the absence of a specific timeframe in the Rules does not excuse months of delay, particularly when the VSB has advised withdrawal.
- Rule 1.15(b)(4) prohibits withholding undisputed settlement funds as leverage in a fee dispute — the undisputed portion belongs to the client and must be distributed immediately.
- Acting primarily out of self-interest at the expense of a client’s ability to make informed decisions about their own case is a fundamental breach of the fiduciary duty that underlies the attorney-client relationship.
Why It Matters
This decision offers a detailed account of how fee disputes between an attorney and client can cascade into serious disciplinary violations when the attorney prioritizes self-interest over candor and prompt communication. The Court’s analysis makes clear that the duty to keep a client informed is not merely aspirational — undisclosed strategic decisions that constrain a client’s choices can independently constitute misconduct, even when the ultimate outcome (a settlement) might appear beneficial on its face.
For practitioners, the opinion reinforces several concrete obligations: disclose conflicts and strategic limitations to the client as soon as they arise; withdraw promptly and file the necessary court papers after termination; and never condition distribution of undisputed client funds on resolution of a fee dispute. The Court’s pointed language about the “highest fidelity” owed in the fiduciary relationship signals that Virginia courts will scrutinize self-serving conduct by attorneys with particular care.