Report of the Office of Bar Counsel

Edward L. Davis

  1. Overview

The Office of Bar Counsel [OBC] consists of the intake and discipline departments. The intake department initially receives and screens all inquiries to the bar about attorney conduct and proactively handles inquiries involving minor misconduct.  It also performs preliminary investigations in a limited class of cases. The discipline department receives complaints forwarded from the intake department and conducts investigations and prosecutions of such cases before District Committees, the Disciplinary Board and three-judge circuit courts.  It also petitions the circuit courts for injunctions and the appointment of receivers when such relief is necessary to prevent the loss of client property by dishonest lawyers, or when needed to wind up the practices of disabled, deceased or disbarred attorneys if no other person is reasonably able to do so.

The ethics department provides confidential ethics advice to Virginia lawyers through the bar’s ethics hotline or email inquiry service.  It supports the Standing Committee on Legal Ethics in the issuing of legal ethics opinions, the development of proposed changes to the Rules of Professional Conduct, the issuing of advertising opinions, and the review of lawyer advertising.  It also supports the Standing Committee on the Unauthorized Practice of Law (UPL) in the issuing of UPL opinions and the investigation of UPL allegations.

Effective July 1, 2014, in order to promote more confidence in the integrity of the ethics hotline service, the ethics department no longer reports to the Bar counsel and reports directly to the bar’s Executive Director instead. 

 

  1. Personnel Matters

Assistant Bar Counsel Anastasia Billy departed in May to help her husband with his law practice.  Anastasia has been a stalwart in the prompt processing of difficult and complicated cases.  She will be greatly missed.

VSB Investigator Edward “Bo” Bosack also announced his pending departure for a Department of Defense position in July 2015.  Bo worked extensively to conclude some complex investigations.

Assistant Bar Counsel Kara McGehee departed the VSB for California effective July 1, 2014.  Due to the Supreme Court’s mandate for the bar to reduce its expenses by five percent, we did not fill her position.  Despite this reduction in staff, our discipline production numbers are about the same as in recent years, and the total volume of open cases continues to fall.

On November 22, 2014, executive assistant Gwen Evans retired after 25 years with the bar.  Gwen was promptly replaced by senior legal secretary Sylvia Daniel who has been with the bar for 12 years.  Effective January 12, 2015, Kaitlyn McClure became the department of professional regulation’s newest legal secretary.  She replaced Sylvia Daniel and Northern Virginia assistant Ann-Marie Federico, who retired effective March 1, 2015.  This change centralized administrative support in Richmond while the OBC worked with one less legal secretary and one less attorney.  The two Northern Virginia home-based attorneys, Al Carr and Katie Uston, are now supported by veteran legal secretary Erica Gray, who will also continue to support the Richmond office.

Like the vacant attorney position, the vacant secretary position has not been filled due to the austerity measures noted above.  The OBC, however, continues to find ways to improve case processing and the disciplinary system with the staff on hand.

The hiring freeze will also prevent the filling of a new assistant ethics counsel position to help with the ever increasing volume of inquiries on the Ethics Hotline. The increase in calls last year from 642 to 645 per month (about 53 calls per day) was not as significant as in previous years.  Nonetheless, additional support will be needed at some point for this program to continue its top rating among the services offered by the VSB.

 

  1.  Production

In fiscal year 2014, there were 167 public trials, agreed dispositions and consents to revocation.  The number of open cases as of June 30, 2015, was 416.  This represents a 14.2% reduction from the total of 485 one year ago and, more significantly, a 56.5% reduction from 956 five years ago. The number of “pre-014” district committee cases (14) as of June 30, 2015 continues to be the lowest it has been since I began reporting this number in 2008.  The new fiscal year begins with 50 “pre-015” cases, also the lowest reported in six years.  By comparison, the number was 250 on July 1, 2008.

These reductions reflect continued increases in the processing of cases as well as the quality of attorneys and staff now at the bar.  The OBC also successfully implemented the new paperless Enterprise Content Retention Management (ECRM) document management program. This process presented a significant challenge to productivity, especially with the hiring freeze mentioned above.  The OBC, however, accomplished the transition with little or no impact to production despite the reduction in staff.  As mentioned earlier, the volume of open cases continued to fall. 

In furtherance of its public protection mission, the OBC began working on some special projects.  Among them are the development of guidelines for attorneys serving as guardians ad litem in impairment proceedings, and the development of a trust account school to assist attorneys in understanding this important process.

 

  1. Changes to Procedural Rules and Rules of Professional Conduct

Effective May 1, 2015, the Supreme Court of Virginia approved Rule of Professional Conduct 5.8, Procedures for Lawyers Leaving Law Firms and Dissolution of Law Firms.  Effective July 31, 2015, the Court approved amendments to Rule of Professional Conduct 1.10, Imputed Disqualification:  General Rule.

At the Annual Meeting on June 18, 2015, the Virginia State Bar Council approved for consideration by the Supreme Court of Virginia proposed amendments to the Rules of Court, Part 6, Section IV, Paragraph 13-11.B allowing the Bar Counsel to disclose to Respondents information otherwise prohibited from disclosure as confidential if the information is potentially helpful to the defense.  Council also approved for consideration amendments to Paragraph 13-25, Board Proceedings for Reinstatement.

At its February meeting, Council approved for consideration proposed amendments to Paragraph 14.4.E, Establishment of District Committees, and Rules of Professional Conduct 1.1, Competence, and 1.6, Confidentiality of Information. 

 

  1. Matters in the Supreme Court of Virginia
  1.  Appeals Decided by the Supreme Court of Virginia

On September 9, 2014, Eric Livingston withdrew the appeal of his public reprimand, and on September 11, 2014, the Supreme Court of Virginia dismissed the appeal accordingly.  The case had been remanded for a reconsideration of sanction after the Supreme Court dismissed two of three rule violations on the first appeal.  On remand, the Disciplinary Board chose to impose the same sanction, prompting the appeal.  Mr. Livingston and his counsel chose to withdraw the appeal after receiving the Supreme Court’s previous opinion in the matter of Dale Eugene Duncan, in which the court held that the dismissal of rule violations did not as a matter of law require a reduction of the sanction.

On September 10, 2014, the Supreme Court of Virginia dismissed on procedural grounds John F. Kane’s appeal of his law license suspension.

By Order, entered February 24, 2015, the Supreme Court of Virginia dismissed Arnold Henderson’s appeal of the one-year suspension of his law license on procedural grounds.

  1.  Appeals Pending before the Supreme Court of Virginia  

On March 23, 2015, Neil Kuchinsky appealed a Public Reprimand imposed by a three-judge panel of the Circuit Court for the City of Colonial Heights.  Like the Livingston case above, the case had been remanded for reconsideration of the sanction after the Supreme Court dismissed a rule violation on the first appeal.

On April 2, 2015, Bernice Stafford Turner noted the appeal of the one-year suspension of her law license imposed by the Disciplinary Board on March 27, 2015. On May 1, 2015, Ms. Turner petitioned the Supreme Court of Virginia to stay the suspension. On May 4 2015, Assistant Bar Counsel Renu Brennan filed an opposition and by Order, entered May 6, 2015, the Supreme Court of Virginia denied the stay. The appeal is pending.

 

Updated: Nov 05, 2015