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Home > Rule Changes > State Code Regarding Procedure for Revocation of License Revised. Effective July 1, 2017.

Adopted | State Code Regarding Procedure for Revocation of License Revised. Effective July 1, 2017.

Governor Terry McAuliffe has signed revisions to the Code of Virginia § 54.1-3935 regarding the procedure for revocation of an attorney’s license. The revisions, effective July 1, 2017, were previously approved unanimously in both houses of the General Assembly.

view PDF file of the red-lined version from the General Assembly

 

Executive Summary for Proposed Changes to Va. Code Sec. 54.1-3935

The Standing Committee on Lawyer Discipline (COLD) has approved a revision to Section 54.1-3935 of the Code of Virginia for presentation to the 2017 General Assembly.  The revision was prompted by concerns that the statute’s provisions are antiquated, predate the current Rules of Court that govern disciplinary proceedings, and do not reflect the actual practice of the courts or the Virginia State Bar (VSB) in attorney disciplinary matters.  

The Virginia State Bar is the agency of the Supreme Court authorized to handle attorney disciplinary matters. The Supreme Court of Virginia has promulgated rules and procedures to govern lawyer discipline, which may be found in Part Six, Section IV, Paragraph 13 of the Rules of Court.  The statute as written allows any person to initiate a formal attorney disciplinary proceeding in the circuit court.  Some complainants have filed complaints in circuit court after the VSB had investigated and dismissed the same matter. 

The revision approved by COLD strikes former subparagraph A in its entirety.  Former subparagraph A provided that courts may report attorney crimes or misconduct to the VSB for investigation and upon receipt of a report, issue a rule against the attorney.  This section was removed for several reasons.  First, the provision that courts may report a matter to the VSB is superfluous given Canon 3.D.(2) of the Canons for Judicial Conduct for the State of Virginia, which instructs when judges must report attorney misconduct to the VSB.  Second, bar investigations are confidential, and the VSB’s filing of an investigative report with a court would make an otherwise confidential investigation public unless the report was filed under seal, which the statute, as written, does not contemplate.  Third, the procedure described in the former subparagraph A allows a single judge to make a complaint, cause the VSB to investigate the complaint, review the investigative report, and issue a rule to show cause against a lawyer for misconduct. This process bypasses the volunteer-based system of self-regulation set forth Paragraph 13, which provides that disciplinary rule charges be approved by a three-member subcommittee of a district committee, which is comprised of two lawyers and a lay member. The VSB does not have institutional memory of a court exercising this vast authority over a lawyer’s license in the last twenty years.  Lastly, to the extent that a goal of the process set forth in former subparagraph A is to provide for a speedy resolution to attorney disciplinary matters, the VSB already has a mechanism to obtain an expedited hearing in Paragraph 13-18.D. of the Rules of Court.  In expedited proceedings, a respondent attorney may be tried by the VSB Disciplinary Board or may demand to be tried by a three-judge circuit court.  In all cases in which a three-judge circuit court is empaneled, the Chief Justice of the Supreme Court appoints to the panel three judges from outside the judicial district that issued the rule against the attorney.  See, former and new subparagraph B. of Va. Code Section 54.1-3935.

New subparagraph A is intended to reflect the procedure by which an attorney subject to disciplinary charges can demand to be tried by a three-judge circuit court.   Presently, three-judge circuit courts are initiated when either the VSB or a respondent attorney makes a demand, which prompts bar counsel to file a complaint in the circuit court where venue is proper.  The circuit court then issues a rule to show cause and the Chief Justice appoints three circuit court judges to hear the case.  Neither the Supreme Court nor the Court of Appeals has issued a rule to show cause in an attorney disciplinary matter in recent memory.  COLD submits that the new language is consistent with what the actual practice has been for many years.

New subparagraph B was renumbered only.

New subparagraph C’s revisions are intended to clarify the language and do not change the substance. 

New subparagraph D’s revisions reflect the amendments to Rule 5:21(b)(5) of the Rules of Court, which now provides that the Supreme Court may stay an order of revocation.

Former subparagraph F was deleted, as COLD is concerned that it implies a right to appointed counsel in attorney disciplinary proceedings.  The VSB does not have any procedure to appoint counsel in misconduct proceedings, nor does it have the funds to train and compensate appointed counsel.  Moreover, Paragraph 13 clearly provides that a respondent attorney may be represented by counsel in disciplinary proceedings.

New subparagraph E’s revisions are intended to clarify the language and do not change the substance. 

 

§ 54.1-3935. Procedure for Disciplining, Suspending, and Disbarring Attorneys by Three-Judge Circuit Court revocation of license.

A. If the Supreme Court, the Court of Appeals, or any circuit court of this Commonwealth observes, or if a complaint, verified by affidavit is made by any person to such court, that any attorney has been convicted of a misdemeanor involving moral turpitude or a felony or has violated the Virginia Code of Professional Responsibility, the court may assign the matter to the Virginia State Bar for investigation. Upon receipt of the report of the Virginia State Bar, the court may issue a rule against such attorney to show cause why his license to practice law shall not be revoked. If the complaint, verified by affidavit, is made by a district committee of the Virginia State Bar, the court shall issue a rule against the attorney to show cause why his license to practice law shall not be revoked.

A. B. Any attorney who is the subject of an attorney disciplinary proceeding or the Virginia State Bar may elect to terminate the proceedings before a District Committee or the Disciplinary Board and demand that further proceedings be conducted before a three-judge circuit court.   Such election must be in accordance with the rules and procedures set forth in Part 6, Section IV, Paragraph 13 of the Rules of Court.  Upon receipt of a proper demand for a three-judge circuit court, the Virginia State Bar shall file a complaint with the circuit court where venue is proper and the chief judge of the circuit court shall issue a rule against the attorney to show cause why the attorney should not be sanctioned. If the rule is issued by the Supreme Court or the Court of Appeals, the rule shall be returnable to the Circuit Court of the City of Richmond. At the time the rule is issued by the Supreme Court, the Chief Justice shall designate three circuit court judges to hear and decide the case. If the rule is issued by the Court of Appeals or a circuit court, the issuing court shall certify the fact of such issuance and the time and place of the hearing thereon, to the Chief Justice of the Supreme Court, who shall designate three circuit court judges of circuits other than the circuit in which the case is pending to hear and decide the case. The rules and procedures set forth in Part 6, Section IV, Paragraph 13 of the Rules of Court shall govern all attorney disciplinary proceedings before three-judge circuit courts. In proceedings under this section, the court shall adopt the Rules and Procedures described in Part Six, Section IV, Paragraph 13 of the Rules of Court.

B. C. Bar Counsel of the Virginia State Bar shall prosecute the case. Special counsel may be appointed to prosecute the case pursuant to § 2.2-510.

C. D. Upon the hearing, if the attorney is found guilty by the court, his license to practice law in this Commonwealth shall be revoked or suspended for such time as the court may prescribe. In lieu of revocation or suspension, the three-judge circuit court may dismiss the case or impose any other sanction authorized by Part 6Six, Section IV, Paragraph 13 of the Rules of Court. In any case in which the attorney is found guilty of engaging to have engaged in any criminal activity that violates the Virginia Rules of Professional Conduct and results in the loss of property of one or more of the attorney's clients, the three-judge circuit court shall also require, in instances where the attorney is allowed to retain his license, or is permitted to have his license reinstated or restored, that such attorney maintain professional malpractice insurance during the time for which he is licensed to practice law in the Commonwealth. The Virginia State Bar shall establish standards setting forth the minimum amount of coverage that the attorney shall maintain in order to meet the requirements of this subsection. Before resuming the practice of law in the Commonwealth, tThe attorney shall certify to the Virginia State Bar that he has the required insurance and shall provide the name of the insurance carrier and the policy number.

D. E. The attorney, may, as of right, appeal from the judgment of the three-judge circuit court to the Supreme Court pursuant to the procedure for filing an appeal from a trial court, as set forth in Part 5 of the Rules of Court. In any such appeal, the Supreme Court may, upon petition of the attorney, stay the effect of an order of suspension or revocation during the pendency of the appeal. Any other sanction imposed by a three-judge circuit court order of reprimand shall be automatically stayed prior to or during the pendency of an appeal therefrom. No stay shall be granted in cases where the attorney's license to practice law has been revoked.

F. In any proceeding to revoke the license of an attorney, the attorney shall be entitled to representation by counsel.

E. G. Nothing in this section shall affect the right of a court to require from an attorney security for his good behavior, or to fine the attorney him for contempt of court.

Code 1950, §§ 54-74, 54-75; 1956, Ex. Sess., c. 33; 1964, c. 201; 1970, c. 430; 1972, c. 103; 1980, c. 289; 1984, cc. 289, 703; 1988, c. 765; 1997, c. 238; 1998, cc. 339637; 2009, c. 287.

 

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Updated: February 21, 2017