Examples of items which must be deposited to a lawyer’s trust account:
2. A deposit of a third party settlement check payable to the lawyer, in which the lawyer has a partial fee interest.
3. A deposit of real estate loan funds and buyer's check from which the lawyer must:
a. pay off an existing mortgage
b. pay delinquent real estate taxes
c. pay a title insurance premium
d. remit to the seller
4. A deposit representing in whole or in part an advance of legal fees. The lawyer’s fees must be promptly withdrawn from the trust account upon being earned.
At least quarterly a reconciliation shall be made that reflects the trust account balance for each client, person or other entity. Rule 1.15(d)(3)(i).
A monthly reconciliation must be made of the cash balance derived from the cash receipts journal, cash disbursements journal,, the trust account check book balance and the trust account bank statement balance. Rule 1.15(d)(3)(ii).
At least quarterly, a reconciliation shall be made that reconciles the cash balance from Rule 1.15(d)(3)(ii) and the subsidiary ledger balance from Rule 1.15(d)(3)(i). Rule 1.15(d)(3)(iii).
Reconciliations must be approved by a lawyer in the law firm. Rule 1.15(d)(3)(iv).
Lawyer disciplinary actions underscore the importance of properly supervising staff who handle client funds. In the Matters of Khalil Wali Latif, VSB Docket Nos. 03-000-0376, 02-031-2876, 02-031-3117, 02-031-3344, 02-031-3345, 03-031-0175, 03-031-0895, and 03-031-0920 (2003), the respondent failed to adequately supervise his secretary who concealed notices and correspondence regarding his failure to pay fines and appear in court. Also, over a course of months, respondent’s secretary concealed trust account overdraft notifications from the VSB and forged respondent’s signature to a letter attempting to explain the overdrafts. An investigation revealed that respondent’s secretary had embezzled funds. The disciplinary board imposed a four-month suspension with terms. In the Matters of Robert Sidney Ricks, VSB Docket Nos. 02-010-0908 (2003) the disciplinary board revoked a lawyer’s license on fifteen complaints of misconduct, many of which involved embezzlement of trust funds by respondent’s secretary, who he continued to employ even after he discovered her embezzlements, allowing defalcations to continue.
Exhibit A - Rules of Court, Part 6, Section
(a) Depositing Funds.
(b) Specific Duties. A lawyer shall:
(c) Record-Keeping Requirements. A lawyer shall, at a minimum, maintain the following books and records demonstrating compliance with this Rule:
(d) Required Trust Accounting Procedures. In addition to the requirements set forth in Rule 1.15 (a) through (c), the following minimum trust accounting procedures are applicable to all trust accounts.
 A lawyer should hold property of others with the care required of a professional fiduciary. Securities should be kept in a safe deposit box, except when some other form of safekeeping is warranted by special circumstances. All property which is the property of clients or third persons should be kept separate from the lawyer's business and personal property and, if monies, in one or more trust accounts. Separate trust accounts may be warranted when administering estate monies or acting in similar fiduciary capacities.
 Separation of the funds of a client from those of the lawyer not only serves to protect the client but also avoids even the appearance of impropriety, and therefore commingling of such funds should be avoided. [2a] In relation to (b)(5), consent can be inferred from the engagement agreement or any consequential agreement between the lawyer and the client regarding the disbursement of fees, i.e., when earned fees are routinely withdrawn from the lawyer’s trust account upon an accounting to the client, when costs and expenses of litigation are routinely withdrawn, or when other fees/costs or expenses are agreed upon in advance.
 Lawyers often receive funds from third parties from which the lawyer's fee will be paid. If there is risk that the client may divert the funds without paying the fee, the lawyer is not required to remit the portion from which the fee is to be paid. However, a lawyer is not required to remit the portion from which the fee is to be paid. However, a lawyer may not hold funds to coerce a client into accepting the lawyer's contention. The disputed portion of the funds should be kept in trust and the lawyer should suggest means for prompt resolution of the dispute, such as arbitration. The undisputed portion of the funds shall be promptly distributed.
 Paragraphs (b)(4) and (b)(5) do not impose an obligation upon the lawyer to protect funds on behalf of the client’s general creditors who have no valid claim to an interest in the specific funds or property in the lawyer’s possession. However, a lawyer may be in possession of property or funds claimed both by the lawyer’s client and a third person; for example, a previous lawyer of the client claiming a lien on the client’s recovery or a person claiming that the property deposited with the lawyer was taken or withheld unlawfully from that person. Additionally, a lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client, and accordingly may refuse to surrender the property to the client. For example, if a lawyer has actual knowledge of a third party’s lawful claim to an interest in the specific funds held on behalf of a client, then by virtue of a statutory lien (e.g., medical, workers’ compensation, attorneys’ lien, a valid assignment executed by the client, or a lien on the subject property created by a recorded deed of trust) the lawyer has a duty to secure the funds claimed by the third party. Under the above described circumstances, paragraphs (b)(4) and (b)(5) require the lawyer either to deliver the funds or property to the third party or, if a dispute to the third party’s claim exists, to safeguard the contested property or funds until the dispute is resolved. If the client has a non-frivolous dispute with the third party’s claim, then the lawyer cannot release those funds without the agreement of all parties involved or a court determination of who is entitled to receive them, such as an interpleader action. A lawyer does not violate paragraphs (b)(4) and (b)(5) if he has acted reasonably and in good faith to determine the validity of a third-party’s claim or lien.
 The obligations of a lawyer under this Rule are independent of those arising from activity other than rendering legal services. For example, a lawyer who serves as an escrow agent is governed by the applicable law relating to fiduciaries even though the lawyer does not render legal services in the transaction.
Prior Rule Comparison This rule is substantially the same as the original Rule 1.15 adopted January 1, 2000 except that the language has been substantially simplified for ease of understanding and the portions regarding the Financial Institutions duties redacted as they are appropriately incorporated into the “Trust Account Notification Agreement” signed by all Virginia approved financial institutions.
Committee Commentary The Committee chose to modify the rule for ease of understanding and enforcement with no substantive changes to a lawyer’s safekeeping property and recordkeeping requirements.
Amendments effective November 1, 2013, clarified that paragraph (a)(1) requires that funds must be placed in an identifiable trust account, while other property may be placed in a safe deposit box or other place of safekeeping.
Exhibit B -
Rules of Court, Part 6, Section IV Paragraph 20
Every trust account maintained by an active member of the VSB under Rules of Professional Conduct 1.15 shall also be maintained at a “financial institution approved by the Virginia State Bar” and maintained in accordance with this paragraph and Rule 1.15. A “financial institution approved by the Virginia State Bar” includes regulated state or federal chartered banks, savings institutions, and credit unions that are properly licensed and authorized to do business, have federal insurance on deposits, and have entered into and agreed to abide by a Virginia State Bar Approved Financial Institution Agreement. (See Appendix A which the Virginia State Bar reserves the right to amend or modify upon notice to all approved financial institutions.) The Virginia State Bar shall maintain and publish from time to time a list of approved financial institutions.
A. Interest-bearing Trust Accounts. A lawyer may maintain funds of clients in one or more interest-bearing accounts in one or more financial institutions, whenever the lawyer has established and follows record-keeping, accounting, clerical, and administrative procedures to compute and credit or pay periodically, but at least quarterly, pro rata to each client the interest on such client’s funds less fees, costs, or expenses charged by the lawyer for the record-keeping, accounting, clerical, and administrative procedures associated with computing and crediting or paying such amounts.
B. IOLTA Accounts. A lawyer may deposit funds of a client in an identifiable interest-bearing trust (IOLTA) account for which the lawyer has not established procedures to compute and credit or pay pro rata net earnings to such client whenever:
C. Non-interest-bearing Trust Accounts. A lawyer may deposit funds of a client in an identifiable non-interest-bearing trust account for which the account accrues no interest or dividends so long as the attorney or law firm receives no consideration or benefit from the Financial Institution for opening a non-interest bearing trust account or for converting from an IOLTA account to a non-interest bearing trust account. A lawyer who elects not to participate in the maintenance of an interest-bearing trust account as described in Paragraph 20(B) must submit such an election in accordance with the procedures set forth in Paragraph 20(F) of this rule.
D. Reporting to Client. A lawyer who elects to deposits funds of a client in an account pursuant to Paragraph 20(B) or (C) shall not be required to seek permission from such client in making the election. As to funds deposited in accordance with Paragraph 20(B), a lawyer shall not be required to compute or report to such client any payment to LSCV of interest or dividends by the banking institution on funds in any such account wherein the client’s funds have been deposited by the lawyer.
E. Law Firm Trust Accounts. A law firm of which any participating lawyer is a member may maintain the account(s) on behalf of any or all lawyers in the firm.
F. Opt-Out of IOLTA Account. A lawyer who elects to open an IOLTA account shall obtain a “Request to Establish IOLTA Account” form from LSCV. A lawyer who elects not to maintain an IOLTA account shall make such election on a “Request to Opt-Out” form provided by LSCV.
Virginia State Bar Approved Financial Institution Agreement
This Virginia State Bar Approved Financial Institution Agreement (“Agreement”) is made this _____ day of _____________, by and between the Virginia State Bar and _______________________, (“Financial Institution”).
The undersigned, an officer of the Financial Institution executing this Agreement, being duly authorized to bind said institution by this Agreement, hereby applies to be approved as a depository to receive escrow, trust, or client funds, as defined in Part 6, Section IV, Para. 20, of the Rules of Supreme Court of Virginia, or any successor provision(s), from attorneys for deposit in what are hereinafter referred to as “Trust Accounts.” The Financial Institution agrees to comply with the requirements, or any successor provisions:
1. Notification to Attorneys or Law Firm. To notify the attorney or law firm promptly of an overdraft in any Trust Account or the dishonor for insufficient funds of any instrument drawn on any Trust Account held by it.
2. Notification to Bar Counsel. To report the overdraft or dishonor to Bar Counsel of the Virginia State Bar, as set forth in Paragraph 5 of this Agreement.
3. Audit of Trust Account. To provide reasonable access to the Virginia State Bar of all records of the Trust Account if an audit of such account is ordered pursuant to court order, or upon receipt of a subpoena therefor. The financial institution may charge for the reasonable costs of producing these records.
4. Interest Calculation. The financial institution shall not engage in the practice of “negative netting” as to IOLTA trust accounts.
5. Form of Report. That all such reports shall be substantially in the following format:
6. Consent of Attorneys or Law Firms. The Financial Institution may require, as a condition to opening an attorney Trust Account, the written consent of the attorney or law firm opening such account to the notification to Bar Counsel of the Virginia State Bar as set forth in Paragraph 2 of this Agreement.
7. Change of Name or Corporate Form. If a Financial Institution changes its name, merges or otherwise affiliates with, or is acquired by another entity, the successor Financial Institution shall promptly notify Bar Counsel of the change and whether the successor institution wishes to serve as a financial institution approved by the Virginia State Bar for attorney Trust Accounts and enter into an Agreement.
8. Termination of Agreement. This Agreement may terminate upon thirty (30) days notice from the Financial Institution in writing to Bar Counsel that the institution intends to terminate the Agreement on a stated date and that copies of the termination notice have been mailed to all attorneys and law firms that maintain Trust Accounts with the Financial Institution or any branch thereof. Notice to the Bar Counsel shall be sent by certified mail to the Virginia State Bar, Attention: Bar Counsel, 1111 E. Main Street, Suite 700, Richmond, Virginia 23219-3565.
9. Binding Effect. This Agreement shall be binding upon the Financial Institution and any branch thereof receiving Trust Accounts.
10. Definition. For purposes of this agreement the following definitions will apply:
a. “Notice of Dishonor” refers to the notice which, pursuant to Uniform Commercial Code Section 3-508(2), must be given by a drawee bank before its midnight deadline.
b. “Insufficient funds” refers to a state of affairs in which there is an insufficient collected balance in an account as reflected in the financial institution’s accounting records, so that an otherwise property payable item presented for payment cannot be paid without creating an overdraft in the account.
c. “Dishonored” shall refer to instruments that have been dishonored because of insufficient funds as defined above.
d. “Negative Netting” refers to the practice of a financial institution collecting some part or all of the fees assessed during a stated period of time against any IOLTA account that has failed to generate enough interest to pay assessed fees from the positive interest generated by other IOLTA accounts and deducting those fees from the total interest remitted to the Legal Services Corporation of Virginia for that time period.
IN WITNESS WHEREOF, the Financial Institution has executed this Agreement on the date and year written above.
Disciplinary Process of the Virginia State Bar
by: Paul D. Georgiadis, Assistant Bar Counsel
Edited and revised by Jane A. Fletcher,
Deputy Intake Counsel
This presentation provides an overview of the Virginia State Bar’s disciplinary system for processing, investigating and prosecuting complaints against attorneys who practice law in Virginia.
I. SOURCE OF THE BAR’S AUTHORITY
The Virginia State Bar gets its authority to regulate lawyer conduct from:
A. Rules of Professional Conduct (RPCs), found in Vol. 11 of the Virginia Code and at the VSB website, www.vsb.org.
B. Procedure for Disciplining, Suspending and Disbarring Attorneys (Paragraph 13), found in the Rules of Supreme Court of Virginia (Volume 11 of the Virginia Code) and at the VSB website, www.vsb.org.
C. Trust Account Regulations, found in Virginia State Bar Professional Guidelines and the VSB website, www.vsb.org.
D. Virginia Code, Section 54.1-3900, et seq. (statutes dealing with Professions Regulated by the Supreme Court of Virginia)
E. American Bar Association’s Standards for Imposing Lawyer Sanctions (2005).
II. NON-DISCIPLINARY RESOURCES TO HELP LAWYERS
In addition to processing complaints about lawyers, the Office of Bar Counsel coordinates the following processes to assist lawyers in avoiding misconduct:
A. Ethics Counsel
This part of VSB work is governed by the Supreme Court of Virginia through its rules found in Volume 11 of the Virginia Code.
Legal Ethics Opinions (LEOs) are advisory opinions promulgated by the Standing Committee on Legal Ethics (the Committee). Lawyers may request an LEO concerning actual or contemplated conduct.
1. Requesting an LEO
The request for an LEO must:
2. Anatomy of an LEO
3. Publication and Comment Period for LEOs
Note this important distinction about the legal effect of LEOs, depending upon the issuing body:
4. Finding and Researching LEOs
The LEOs or summaries of LEOs can be found at:
III. OVERVIEW OF THE DISCIPLINARY SYSTEM
A. Rules of Disciplinary Procedure
The procedural rules governing lawyer discipline are found in the Rules of Virginia Supreme Court, Part 6, Section IV, Paragraph 13 (Volume 11 of the Virginia Code).
B. What is Misconduct?
The Supreme Court of Virginia includes in its definition of Misconduct:
1. Violation of Disciplinary Rules (current Rules of Professional Conduct or the older Code of Professional Responsibility);
2. Conviction of a Crime (generally, a felony or other offense involving theft, fraud, forgery, extortion, bribery or perjury).
C. Intake Process
Lawyers in the Intake section of the Office of Bar Counsel review all Inquiries to decide whether they state Misconduct. This first level of review is intended to eliminate those complaints that are frivolous or state situations that are outside the scope of the ethics rules. About 75% of complaints are dismissed and referred to as NATs, No Action Taken.
The Intake staff may use its proactive process, or informal investigation, to resolve the situation. This involves contacts by the staff with the respondent and complainant in an effort to reach resolution.
D. Preliminary Investigation
1. If the Intake staff identifies possible disciplinary rule violations, the matter is assigned to Bar Counsel to conduct a preliminary investigation.
2. The Preliminary Investigation usually includes sending the complaint to the Respondent so he can file a written response and allowing the Complainant to respond to the Respondent’s response.
3. The bar strives to complete preliminary investigations within 60 days of receipt of the complaint.
E. Preliminary Investigation Dispositions
Within the 60-day time limit, Bar Counsel should decide the disposition of the complaint using the following authority and alternatives:
1. Dismiss the complaint if any of the following apply:
Para. 13-10 E.
2. If none of the above bases for dismissal exists, Bar Counsel will refer the matter to a District Committee for a more detailed investigation
F. Investigative Authority of Bar Counsel
1. Bar Counsel has the authority to issue subpoenae ducestecum (for documents) and summonses (for witnesses) during its investigation. Para. 13-8A.5.
2. Bar Counsel has the authority to examine the financial books and records maintained by an attorney in her law practice. Para. 13-8A.3-4 
3. 3. Rule 8.1(c) of the Rules of Professional Conduct requires cooperation with a “lawful request” of a discipline investigation.
4. 4. Para. 13-6G.3. empowers the Disciplinary Board to impose an interim Suspension if an Attorney fails to comply with a summons or subpoena issued by any member of the Board, the Clerk, Bar Counsel, or any lawyer member of a District Committee. 
G. District Committee Investigations
1. A District Committee investigation can be performed by either the Office of Bar Counsel or an attorney member of the District Committee. Most cases are investigated by one of the staff investigators of the Office of Bar Counsel. Summonses and subpoenae duces tecum may be issued by Bar Counsel as a part of the investigation. Para. 13-8A.5.
2. The investigation will result in the submission of a report to the Subcommittee of the District Committee. Para 13-10F.
H. Action by the Subcommittee
Subcommittee consists of three District Committee members: a lay
person and two attorney members. One attorney member shall be appointed
by the District Committee or Section Chair to act as Chair of that
Subcommittee. 2. The
Subcommittee will consider the report of Investigation and the recommendation
submitted by the Office of Bar Counsel in order to make a disposition of each
of the complaints presented. 3. The
Subcommittee acts by majority vote. Para. 13-15C. However it must have a
unanimous vote to approve an Agreed Disposition. Para. 13-7A.9. 4. The
Subcommittee can: a. Dismiss
the complaint; or b. Impose
limited discipline; or c. Accept
an Agreed Disposition of discipline; or d. Set
a hearing in the matter; or e. Certify
the matter to the VSB Disciplinary Board. 5. The
Subcommittee can dismiss a complaint
1. The Subcommittee consists of three District Committee members: a lay person and two attorney members. One attorney member shall be appointed by the District Committee or Section Chair to act as Chair of that Subcommittee.
2. The Subcommittee will consider the report of Investigation and the recommendation submitted by the Office of Bar Counsel in order to make a disposition of each of the complaints presented.
3. The Subcommittee acts by majority vote. Para. 13-15C. However it must have a unanimous vote to approve an Agreed Disposition. Para. 13-7A.9.
4. The Subcommittee can:
a. Dismiss the complaint; or
b. Impose limited discipline; or
c. Accept an Agreed Disposition of discipline; or
d. Set a hearing in the matter; or
e. Certify the matter to the VSB Disciplinary Board.
5. The Subcommittee can dismiss a complaint if:
6. Limited Discipline by the Subcommittee without a hearing
a. The Subcommittee can impose the limited discipline of a private Admonition without Terms without a hearing if it believes the bar’s investigation shows that the Respondent has engaged in Misconduct. The Respondent may reject this disposition and request a full evidentiary hearing before the District Committee. Para. 13-15B.2.
b. The Subcommittee can impose a private Dismissal De Minimis without a hearing if it finds that the Respondent has engaged in Misconduct that is not of sufficient magnitude to warrant disciplinary action, and the Respondent has taken reasonable precautions against a recurrence of the Misconduct. Para. 13-15B1.c
c. The Subcommittee can impose a private Dismissal for Exceptional Circumstances without a hearing if it finds that the Respondent has engaged in Misconduct but there exist exceptional circumstances mitigating against further proceedings. Para. 13-15B1.d.
7. Agreed Dispositions before the Subcommittee
a. The Subcommittee can accept an Agreed Disposition between the bar and the Respondent. Para 13-15B.4.
b. All members of the Subcommittee must accept the Agreed Disposition. If any one member rejects the agreement, a hearing will be scheduled before the full District Committee. Paras. 13-7A.9.,13-15C.
c. If the Subcommittee accepts the Agreed Disposition, it will issue a document called the “Subcommittee Determination” that outlines the relevant facts, rule violations and discipline to be imposed upon the Respondent.
8. Subcommittee Decision to Set for Hearing Before the Full District Committee
If the Subcommittee does not dismiss the complaint, it must set the matter for a hearing before the District Committee or certify it to the Disciplinary Board.
a. Information available to Respondent
When a matter is set for a District Committee hearing by the issuance of a Charge of Misconduct, the Respondent is provided with a copy of the Investigative Report and any exculpatory materials in the possession of Bar Counsel. Paragraph 13-16A. However, there is no requirement of reciprocity on the part of the Respondent. But RPC 8.1 states that “a lawyer ... in connection with a disciplinary matter, shall not: ... (a) knowingly made a false statement of material fact; (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter; (c) fail to respond to a lawful demand for information from ... disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6; or (d) obstruct a lawful investigation by ... disciplinary authority.”
b. District Committee Hearings are Public
Private discipline is available only up through the first 21 days of the issuance of the Charge of Misconduct. Any discipline agreed to during the second 21 day period is public, as is the district committee hearing. However, the hearing will not be posted on the public hearing docket until 21 days after the date of the Charge of Misconduct. Para. 13-16H. After the matter is posted on the public docket, it will not be possible to work out an agreed disposition imposing private discipline, and any discipline imposed will become a matter of public record.
9. Certification to Disciplinary Board
The Subcommittee may bypass a District Committee hearing and certify the matter directly to the Disciplinary Board if there is a reasonable belief that the Respondent has engaged in Misconduct that, if proved, would justify a suspension or revocation of the Respondent's license to practice law. Paragraph 13-15B.3.
a. The Subcommittee is authorized to approve an Agreed Disposition that can include imposing certain conditions or terms, which the Respondent is required to perform as a condition predicate for the imposition of an admonition with terms, a private reprimand with terms, or a public reprimand with terms. With the imposition of terms, there must also be provided an alternative sanction in case of non-compliance with the term within the deadline for compliance.
b. The Terms must be performed within the deadline set by the Subcommittee. If the Terms are not met, the alternative sanction will be imposed against the Respondent through a show cause hearing. Para. 13-15.F.
In the event of non-compliance, Bar Counsel will initiate a show cause hearing before the District Committee.
(i) The hearing is simply to allow the Respondent an opportunity to show that he has complied with the Terms; it is not for the purpose of extending the time for compliance.
(ii) The burden of proof is on the Respondent to show by clear and convincing evidence that he has complied with the Terms within the time specified by the Terms. A finding of failure to comply with the terms within the specified time period requires the alternative disposition or sanction to be imposed. Para 13-15.F.
I. Action by the District Committee
a. Charge of Misconduct
c. Participants in District Committee Hearing
d. Order of the District Committee Hearing
The District Committee Hearing proceeds in the following order:
(i) Opening statements;
(ii) Presentation of the bar's case;
(iii) Presentation of the Respondent's case;
(iv) Motion to Strike--argument on the question of whether ethics rule violations have been proved by clear and convincing evidence and whether the bar has failed to introduce sufficient evidence that would under any set of circumstances support the conclusion that Respondent has engaged in the alleged Misconduct. The ruling is made by the Chair, subject to being over-ruled by the majority of the remaining members of the panel. Para 13-16R;
(v) Private Committee deliberation on the question of ethics rule violations. Para. 13-16T
(vi) Committee announcement of its decision on ethics rule violations;
(vii) Evidence and argument on the sanction to be imposed for any misconduct found;
(viii) Committee announcement of its decision from the bench on discipline imposed;
(ix) Formal written decision issued by District Committee Determination setting forth findings of facts, nature of the Misconduct—including Rule violations, and sanctions imposed. Para 13-16Y.
e. Rules of evidence are not strictly enforced . Para.13-12D.
f. Objections may be made and are ruled upon by the presiding chair, subject to being overruled by a majority of the remaining hearing panel. Para 13-16Q.
g. A quorum of five District Committee members is required for a hearing. Each District Committee consists of seven attorneys and three lay people. Any five members of the Committee may constitute a quorum, although an effort is made to include a lay member in the quorum whenever possible. Para. 13-4B. The members of the Subcommittee who set the matter for hearing may participate in the hearing.
h. District Committee Hearings, except for deliberations of the panel, are open to the public. Para 13-16G.
i. Neither counsel for the complainant or any witness may examine or cross-examine any witness, introduce evidence, or present an argument. Para. 13-16N.
2. District Committee Decisions after a hearing include:
b. Public Dismissal De Minimis;
c. Public Dismissal Exceptional Circumstances;
d. Public Admonition, with or without terms;
e. Public reprimand, with or without term;
f. Certification to the Disciplinary Board or file a complaint in a circuit court pursuant to Va. Code Section 54.1-3935.
3. Appeals of District Committee DeterminationsAn appeal from a Determination by a District Committee upon trial is heard by either the Disciplinary Board or a three judge circuit court panel, if so chosen by the Respondent. Para. 13-17A.  Such appeals are based solely upon the record from the District Committee. The standard for the appeal is whether there was substantial evidence to support the findings of the District Committee. Para. 13-19.
The District Committee has the same authority as the Subcommittee regarding the issuance and enforcement of Terms.
J. Action by the Disciplinary Board1. Composition
The Disciplinary Board is composed of 20 persons, including 16 attorneys and 4 lay persons. Para.13-6A. It generally holds its hearings in Richmond. A quorum of any 5 Disciplinary Board members is required for a hearing. An effort is made to include at least one lay person in each quorum. Para. 13-6D.2. Notice
Upon certification, the Clerk of the Disciplinary System will serve upon the Respondent a notice of the hearing date before the Disciplinary Board and the Certification from the District Committee of at least 21 days prior to the hearing date. Para. 13-18C.3. Election by Respondent Respondent will have 21 days from service of the Certification (or "charge of misconduct") in which time the Respondent may: a. File a signed answer, or
b. File a signed answer with a demand that proceedings before the Disciplinary Board be terminated and further proceedings be conducted before a three-judge circuit court. Para. 13-18A.1.; Va. Code §54.1-3935.
c. If an answer is filed, or if no answer or demand is filed within 21 days of service of the Certification, the complaint will be heard by the Disciplinary Board. Para. 13-18B.
4. Disciplinary Board Hearingsa. Board hearings consist of the same basic steps as those in a District Committee proceeding. However, Board proceedings are generally more formal in nature and generally include a pre-hearing order or scheduling order requiring pre-hearing designation of exhibits and witnesses, objections thereto, and stipulations. Para. 13-18E.
b. Summonses and subpoenae duces tecum are issued by the Clerk of the Disciplinary System upon request of Bar Counsel, the Respondent, or the Board itself. Para. 13-6G.2.
c. Members of the Board panel may ask questions of the witnesses.
5. Disciplinary Board Dispositions:
The Disciplinary Board can hand down any of the following decisions:
b. Admonition, with or without terms;
c. Public reprimand, with or without terms;
d. Suspension of license for up to five years;
e. Suspension of license for one year or less, with or without Terms;
f. Revocation of license.
NOTE: There is no Board sanction that incorporates the word "private" in its nomenclature. Misconduct cases before the Disciplinary Board, except Impairment cases, are public proceedings.
6. Cases of Original Jurisdiction
The Board also hears cases of original jurisdiction regarding impairment, Para.13-23 criminal convictions of a specific nature in Para.13-21, First Offender Statute, and Para. 13-22, Guilty Plea or Adjudication of Crime; and reciprocal discipline of disbarment or suspension by another jurisdiction, Para.13-24. The Board also may hear matters related to the failure of a Respondent, who has elected to appeal a district committee decision to a three judge court, to file a transcript.
7. Appeal of a Disciplinary Board Decision
a. The Respondent has an appeal as a matter of right to the Supreme Court of Virginia from an order of Admonition, Public Reprimand, Suspension, or Disbarment imposed by the Disciplinary Board. Para. 13-26A. ]
b. A notice of appeal and assignments of error must be filed with the Clerk of the Disciplinary System within 30 days after the Memorandum Order of the Disciplinary Board is served on the Respondent. This action within the time prescribed is jurisdictional. Rule 5:21 (b).
c. A stay is automatically imposed on a Board order of Admonition or Public Reprimand during the pendency of the appeal. A Board order of suspension or revocation may be stayed by the Supreme Court during an appeal upon appropriate petition. Rule 5:21(b)(5).
IV. MISCELLANEOUS ITEMS OF INTEREST
A. Request by Complainant to Withdraw Complaint
The fact that a Complainant wishes to withdraw his/her complaint will not be the sole basis upon which to dismiss the matter. The investigation and prosecution of the complaint will proceed to its appropriate conclusion despite the request to withdraw the complaint by the Complainant. Para. 13-10B.
B. Existence of Pending Criminal/Civil Litigation
The pendency of civil or criminal litigation similar to the charges of misconduct may result in the deferment of proceedings, based on the prosecutorial discretion of Bar Counsel.
Service is effective in the disciplinary system when mailed by certified mail to the Respondent at the Respondent’s last address on record for licensing purposes with the Bar. Thus, it is important that the Respondent maintain a current address with the Bar membership department.
Costs are assessed upon the Respondent in every case in which there has been a final determination of misconduct by a District Committee (and its subcommittee), Circuit Court, the Disciplinary Board, or the Supreme Court, following a hearing or entry of an agreed disposition when a Dismissal de minimis, Dismissal for Exceptional Circumstances, an Admonition, Reprimand, Suspension, or Revocation is imposed; cases against a Respondent who surrenders his license to practice law when charges are pending against him; cases in which a Respondent has been found guilty of a Crime by the Disciplinary Board; reciprocal discipline cases; and reinstatement cases. Para. 13-9E.
The costs are assessed by the Clerk of the Disciplinary System and include reasonable costs paid by the bar to outside experts or consultants, reasonable travel and out-of-pocket expenses for witnesses, court reporter and transcript fees, copying, mailing, required publication costs and an administrative charge as determined by the Virginia State Bar Council. Costs are now $500.00 at the Subcommittee level, $750.00 at the district committee level, and $1000.00 at the Board or Circuit Court level. Costs unpaid by a specified date will result in the suspension of the Respondent's license to practice law by the Disciplinary Board until payment is made. Para. 13-9F.
E. Disciplinary Trials/Civil Litigation
1. A disciplinary proceeding is a civil proceeding, in the nature of an inquest into the conduct of the attorney. Moseley v. Virginia State Bar ex rel. Seventh District Committee, 694 S.E.2d 586, 589 (Va. 2010). See also, Maddy v. District Committee, 205 Va. 652, 658, 139 S.E.2d 56, 58 (1964); cf. Seventh District Committee v. Gunter, 212 Va. 278, 183 S.E.2d 713, 717 (1971), cited with approval in Gunter v. Virginia State Bar, 241 Va. 186, 399 S.E.2d 820 (1991).
2. Since the proceeding is in the nature of an inquest, it is conducted much like an administrative proceeding.
3. The Respondent has no procedural due process right to discovery in a disciplinary proceeding. Gunter v. Virginia State Bar, id.; Para.13-11.
4. Hearings are bifurcated. The District Committee and Board will first determine if the bar has proved Misconduct; if so, the District Committee or Board will then hear evidence in mitigation or aggravation before determining the appropriate sanction.
5. Motions to Strike are permitted in hearings at the conclusion of the Bar’s evidence and at the conclusion of all of the evidence. Para. 13-16R, District Committee hearings, and Paragraph 13-18J., Disciplinary Board hearings.
F. Procedure for Conducting Three Judge Court Proceedings
Matters which are taken to a three judge court pursuant to Va. Code Section 54.1-3935 are conducted in accordance with the rules and procedures of Paragraph 13. Va. Code Section 54.1-3935(B).
V. MYTHS AND MISCONCEPTIONS ABOUT BAR COMPLAINTS
A. Myth: There is a statute of limitations for filing a bar complaint.
Reality: No limit exists. A complainant may file a complaint regarding conduct far in the past. Moseley v. Virginia State Bar ex rel. Seventh District Committee, 694 S.E.2d 586, 589 (Va. 2010)
B. Myth: Only clients can file complaints.
Reality: Anyone can file a complaint regarding any attorney's conduct.
C. Myth: If a complainant withdraws a complaint, the matter is closed.
Reality: Once a complainant files a complaint, the Bar investigates and pursues the allegations based on the merit of each claim, not on the preferences of the complainant.
D. Myth: If a complainant is a criminal, his complaint is unreliable and will surely be dismissed.
Reality: The Bar evaluates the merits of each allegation regardless of the identity of the complainant. Each year, the bar prosecutes cases to the highest tribunals based upon complaints initiated by inmates.
E. Myth: The Bar can only investigate the specific allegations of the complainant. Ø Reality: The Bar investigates all issues present in the information obtained.
F. Myth: If there is no showing of harm, the complaint will be dismissed. Ø Reality: The complaint system determines misconduct, not damages.
 Rules of Court, Pt 6, §IV, ¶ 10.
As a result of a study by the Virginia State Bar Random Trust Account Review Committee, the VSB has initiated a policy to promptly review attorney escrow account records upon receipt of information that may call into question an attorney’s management of his or her escrow account. An example may be a second escrow account check returned for insufficient funds, regardless of the explanation.
A related power is the Board’s broad sanction power under Para. 13-6G1., including interim suspension, for failure to comply with a Board order. This has arisen in the context of disability hearings where a Respondent has been ordered to disclose health care providers, provide releases, and submit to a mental or physical examination and evaluation.
= In any Disciplinary Proceeding, evidentiary rulings shall be made favoring receipt into evidence of all reasonably probative evidence to satisfy the ends of justice. The weight given such evidence received shall be commensurate with its evidentiary foundation and likely reliability. Para. 13-12D.
==The bar has no right to appeal. Its sole recourse is a motion to reconsider, which is also available to the Respondent, based upon the discovery of material evidence not known or available when first heard and to prevent an injustice or warranted by specific exceptional circumstances. Para 13-16DD
Copyright © 2015 Virginia State Bar. All rights reserved. Updated 11/01/15