Professional Guidelines

An agency of the Supreme Court of Virginia

The Virginia State Bar

Professional Guidelines

13-30 Confidentiality of Disciplinary Records and Proceedings

  1. Confidential Matters. Except as otherwise provided in this subparagraph 13-30, or in subparagraph 13-11, all District Committee, Board, and three-judge Circuit Court hearings and all determinations imposing public discipline and orders of summary, interim, or administrative Suspension are public; and the following proceedings, records, and information are confidential and shall not be disclosed:
    1. Complaints, unless filed in a Disciplinary Proceeding set for hearing or introduced at a public hearing or incorporated in a Certification, petition for expedited hearing, or Charge of Misconduct, when the Charge of Misconduct is placed on the public District Committee hearing docket;
    2. Investigations, except that Investigative Reports admitted as exhibits at a public hearing are public;
    3. Impairment Proceedings, except that all Suspension orders are public;
    4. Notes, memoranda, research, and all other work product of Bar Counsel;
    5. Records, communications, and information protected by Rule of Professional Conduct 1.6;
    6. Subcommittee records and proceedings, except determinations imposing public discipline;
    7. Deliberations and working papers of District Committees, the Board or a three-judge Circuit Court; and
    8. Records or information sealed or proceedings closed for good cause shown by order of a District Committee, the Board, or three-judge Circuit Court.
  2. Timing of Disclosure of Disciplinary Record in Review of Agreed Dispositions and Sanctions Proceedings. If an Attorney has a Disciplinary Record and is subsequently found by a Subcommittee, a District Committee, the Board or a three-judge Circuit Court empaneled under Va. Code § 54.1-3935 to have engaged in Misconduct, the facts and circumstances giving rise to such Disciplinary Record may be disclosed (i) to the Subcommittee, District Committee, Board or three-judge Circuit Court prior to the imposition of any sanction and (ii) by the Subcommittee, District Committee, Board or three-judge Circuit Court in its order.  The facts and circumstances giving rise to such Disciplinary Record may also be disclosed to the Board during a hearing concerning whether an affidavit and consent to Revocation should be accepted.  An Attorney’s Disciplinary Record, and the facts and circumstances giving rise to such Disciplinary Record, may also be disclosed to a Subcommittee, District Committee, the Board, or a three-judge Circuit Court as part of the review of an Agreed Disposition.
     
  3. Timing of Public Access to Disciplinary Information
    1. A Charge of Misconduct is public when the matter is placed on the public District Committee hearing docket; and
    2. A Certification or petition for expedited hearing is public when filed with the Clerk; and
    3. All notices, orders, pleadings, and other documents filed with the Clerk or Circuit Court in any Disciplinary Proceeding set for hearing are public upon such filing.
  4. Public Statements Concerning Disciplinary Information.  To the extent necessary to exercise their official duties, Bar Officials have access to all confidential information; however, except for Bar Counsel, no Bar Official shall communicate with a member of the media or the public concerning a matter that is confidential under this Paragraph.  If an inquiry is made about a matter that, although confidential under this Paragraph, has become a matter of public record or has become known to the public, Bar Counsel may confirm whether the Bar is conducting an Investigation or if an Investigation resulted in a determination that further proceedings were not warranted.
  5. Protection of the Public. Bar Counsel may transmit confidential information to persons or agencies outside of the disciplinary system if Bar Counsel has reason to believe disclosure is necessary to protect the public or the administration of justice.
  6. Disclosure to Other Jurisdictions. Bar Counsel may share confidential information regarding an Investigation with his or her counterparts in other jurisdictions provided that such jurisdiction agrees to maintain the confidentiality of the information as provided in this Paragraph.
  7. Disclosure of Criminal Activity. If Bar Counsel or a Chair of the Board or a Chair of a District Committee discovers evidence of criminal activity by an Attorney, Bar Counsel, the Chair of the Board or a Chair of a District Committee shall forward such evidence to the appropriate Commonwealth’s Attorney, United States Attorney or other law enforcement agency. The Attorney concerned shall be notified whenever this information is transmitted pursuant to this subparagraph 13-30 unless Bar Counsel decides that giving such notice will prejudice a disciplinary investigation.
  8. Disclosure of Information to Government Entities. By order of this Court, confidential information may be disclosed to the Joint Legislative Audit and Review Commission or other governmental entities incident to their discharge of official duties, provided the entity is required or agrees to maintain the confidentiality of the information provided.
  9. Waiver of Confidentiality. Confidential information, excluding notes, memoranda, research, and all other work product of Bar Counsel, may upon written request be disclosed when and to the extent confidentiality is waived by Bar Counsel, the Respondent, the Complainant, and, if protected by Rule of Professional Conduct 1.6, by Respondent’s client.
  10. Testimony about Disciplinary Proceedings.
    1. In no case shall Bar Counsel, a member of COLD, a member of a District Committee, a member of the Board, or a Committee Counsel be subject to a subpoena or otherwise compelled to testify in any proceeding regarding any matter investigated or considered in such person’s official capacity, except that an Investigator may be compelled to testify in a Disciplinary Proceeding, subject to rulings of the three-judge Circuit Court or Chair.
    2. In no case shall the Clerk be subject to a subpoena or otherwise compelled to testify regarding any matter investigated or considered in the disciplinary system, or the records of any such matter, dealt with by the Clerk in his or her official capacity, except that the Clerk may be compelled to testify in a Disciplinary Proceeding or Impairment Proceeding in order to authenticate records of the Clerk.
  11. Records of the Disciplinary System. In no case shall confidential records of the attorney disciplinary system be subject to subpoena.
  12. Virginia Lawyer Referral Service. Bar Counsel shall notify the Virginia Lawyer Referral Service when a Complaint involving any Attorney member of the service is referred to a District Committee for Investigation or when any Attorney member of the service is disciplined. Bar Counsel shall also notify the Virginia Lawyer Referral Service when any Complaint involving an Attorney member of the service is dismissed following Investigation or when any Attorney member of the service complies with Terms imposed.
  13. Disclosure of Information to Lawyer Assistance Program.  If Bar Counsel believes that an Attorney may benefit from the services of a Lawyer Assistance Program, Bar Counsel may make an informal referral to a Lawyer Assistance Program and may share information deemed confidential under this Paragraph as part of that referral.  Bar Counsel shall not share information that is protected from disclosure by other state or federal privacy laws.  Bar Counsel may, but shall not be required to, notify the subject Attorney of the informal referral or transmission of confidential information to the Lawyer Assistance Program. Unless the subject Attorney has signed a release allowing the Lawyer Assistance Program to share information with Bar Counsel, the Lawyer Assistance Program shall not report information about the subject Attorney to Bar Counsel, and Bar Counsel shall not receive such information from the Lawyer Assistance Program.

 

The amendments effective March 15, 2020, revised Paragraph 13-30. B. to clarify and simplify language.

The amendments effective December 1, 2019, revised Paragraph 13-30 to clarify and simplify language.

The amendments effective January 1, 2019, addresses the provision of confidential information by Bar Counsel to a Lawyer Assistance Program.

The amendments effective March 19, 2010, revised Paragraph 13 dealing with the use of the phrase "Charge of Misconduct".

The amendments effective March 1, 2016, added language referencing subparagraph 13-11 to A. Confidential Matters.

Updated: March 14, 2020