Report of the Office of Bar Counsel
Edward L. Davis
The Office of Bar Counsel (OBC) oversees the Professional Regulation Department, which consists of Intake, Ethics, and Discipline.
Intake 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.
Ethics provides ethics advice to Virginia lawyers through the bar’s ethics hotline. It supports the Standing Committee on Lawyer Advertising and Solicitation (SCOLAS) in issuing advertising opinions and in reviewing lawyer advertising. It supports the Standing Committee on Legal Ethics in issuing legal ethics opinions and developing proposed changes to the Rules of Professional Conduct. Finally, it supports the Standing Committee on the Unauthorized Practice of Law (UPL) in the issuing of UPL opinions and the investigation of UPL allegations.
Discipline receives complaints forwarded from Intake and conducts the investigation and prosecution of such cases before district committees, the VSB Disciplinary Board, and three-judge circuit court panels. Discipline also petitions the circuit courts for injunctions and the appointments 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.
In the fiscal year ending June 30, 2009, there were several significant personnel changes. The bar continued to make significant gains in productivity over FY2008 and previous years, although further gains remain necessary to meet or exceed the heights of other previous years. As in most years, there were some areas with higher concentrations of cases, or “bubbles,” in the system. In FY2009 those were the numbers of district committee cases awaiting charges of misconduct to be issued, the numbers of cases certified to the Disciplinary Board awaiting the certifications (charging documents), and cases that were more than one year old at the beginning of FY2009 (referred to as “pre-08” cases) on the committee dockets. There were 250 pre-08 cases as of July 10, 2008.
Bar Counsel: Edward L. Davis completed his first year as bar counsel following nearly fifteen years as an assistant bar counsel. Davis placed renewed emphasis on the timely scheduling of cases for trial and the processing of older cases to completion. Davis implemented several new policies that address time lines for the processing of cases after subcommittee meetings, the advance notification of aggrieved parties about proposed agreed dispositions in disciplinary matters, and the notification of district committee members and board members of disqualifying factors.
Closing of the Northern Virginia office: The Office of Bar Counsel made several significant personnel changes in FY2009 to save costs and streamline operations. As a result of several cost-cutting measures, the OBC completed FY 2009 well under budget, enabling the VSB to return a surplus to the treasury for the first time in several years.
The most significant personnel change involved the decision to close the Northern Virginia office in Alexandria and offer the four attorneys there the option of moving to Richmond or working from home by using telecommuting equipment furnished by the VSB. This decision resulted in the elimination of two administrative support positions when Maytee Hall and Susan Neill were not replaced upon their departures. All four Northern Virginia attorneys chose to continue working for the bar as telecommuters. The OBC staff, with a work flow analyst, spent several months developing a detailed work plan to implement the telecommuting procedure and integrate support from the Richmond office. Assistant Bar Counsel Alfred L. Carr and Marian L. “Suzie” Beckett made the transition to home-based work. Assistant Bar Counsel Kathleen M. “Katie” Uston will begin working from home by the end of August 2009, and Seth M. Guggenheim will close the office and begin working from home at the end of September 2009. Ann-Marie Federico, the lone administrative assistant remaining for the telecommuting attorneys, will begin working from home by September 15, 2009.
Sunset of SCOLAS and elimination of ethics counsel position: In consultation with the Standing Committee on Lawyer Advertising and Solicitation and the Executive Committee of the Virginia State Bar, the OBC and the Ethics division chose to discontinue, or sunset, SCOLAS and to combine its operations with the Legal Ethics Committee. This decision followed the Ethics division’s determination that the SCOLAS mission could be more efficiently and less expensively accomplished by VSB staff. As a result, the assistant ethics counsel assigned to lawyer advertising was not replaced after her departure. Although this will result in a reduction of expenditures by the bar, cost saving was not the impetus for this measure. The Ethics division and affected committees felt that their needs would be better met by combining operations and replacing the attorney with an ethics assistant. The measure was approved by the VSB Council in June 2009. The proposed rule changes were submitted to the Supreme Court of Virginia by petition on July 1, 2009.
On January 5, 2009, Elizabeth Bambacus joined the legal ethics department as an ethics assistant, filling the position that became open after the departure of Assistant Ethics Counsel Lee L. Nelms.
Discipline statistics and developments
The number of VSB active members in good standing continued its annual increase to 28,240 — up from 27,562 one year ago.
Pre-08 docket: The Professional Regulation Department began the fiscal year with 250 pre-08 cases, which included 85 that were opened before FY2007. By the end of FY2009, the staff reduced this caseload from 250 to 60, a 76 percent reduction. Moreover, the carry-over of 60 cases into FY2010 represents a 30 percent reduction from the 85 cases carried over one year ago. Finally, FY2010 begins with a pre-2009 docket of 188 cases, a 25 percent reduction from the 250 cases one year ago. The goal is to bring this number down to no more than 70 such cases at the beginning of each fiscal year.
End of FY2009 production numbers (Chart A): By the end of this fiscal year,
- District committee cases more than 180 days old were down 12 percent from last year and the lowest in three years.
- Only 15 district committee cases were awaiting certification to be written by bar counsel. That figure is the lowest in the past five years.
- District Committee cases awaiting charges of misconduct to be written by bar counsel totaled 51 — the lowest in the past five years.
- Seventeen attorneys with fifty-seven cases pending consented to revocation. The fifty-seven cases closed through revocation were the highest total since 2004, and more than double the annual totals since 2007. [Editor’s note: This paragraph was corrected on 11/24/09.]
- District committees held 50 percent more trials than last year and the most in three years.
- Sixty-eight trials were held before the Disciplinary Board and three-judge courts — the most in three years and highest in four of the past six years.
- Agreed dispositions increased slightly at the district committee level (79, up from 74) and were the highest in four of the past six years, but decreased at the post-committee level (22, down from 52). The drop could have been because 31 of the 52 cases a year ago involved just two respondents.
- Total dispositions — trials, agreed dispositions and consents to revocation — were 238. This is the highest total in the past three years, and continues a trend upward.
Assistant Bar Counsel Kathryn R. Montgomery’s performance in the prosecution of Steven S. Biss before a three-judge circuit court resulted in the complainant purchasing a full-page advertisement in the Virginia Lawyers Weekly complimenting Kathryn and the Virginia State Bar for its handling of this matter, a very complicated securities fraud case.
Production Outlook: Chart B compares disciplinary activity over six months. The number of district committee trials is expected to increase as attorneys focus on the prompt preparation and service of charges of misconduct.
The number of cases awaiting certifications to be written by bar counsel is expected to remain constant as attorneys focus on the timely issue of certifications after subcommittee meetings, in accordance with current policies.
Once a new investigator is hired, an increase in the number of cases awaiting a report from an investigator is expected to reverse.
Appeals before the Supreme Court of Virginia: The cases of Walter F. Green, who appealed a Disciplinary Board case, and Timothy M. Barrett, who appealed a three-judge panel’s decision, were affirmed on appeal.
A third appeal, by Peter Paul Mitrano, was dismissed on procedural grounds. He has petitioned for a rehearing.
Due to a heavy workload, the Office of the Attorney General took the unusual step of asking the Virginia State Bar to work the appeal of the Walter F. Green case. Assistant Bar Counsel Kathryn R. Montgomery and Seth M. Guggenheim briefed the bar’s case and argued it before the Court, which affirmed the bar’s case by a unanimous decision. Mr. Green filed a petition to rehear.
At the fiscal year’s end, five cases were pending appeal to the Court: Michael Patrick Weatherbee and David Loren Shurtz (both from the Arlington Circuit Court), Curtis Tyron Brown (from the Norfolk Circuit Court), and two cases involving George Anthony Yancey (also from the Norfolk Circuit Court).
Changes to bar counsel policy other procedure
Time lines: Effective January 12, 2009, the OBC implemented new case-processing time lines designed to place cases on the Disciplinary Board and district committee hearing dockets more promptly. The policy requires attorneys to devote 100 percent of their time following subcommittee meetings to the drafting of charges of misconduct to the district committees, and certification of charges to the Disciplinary Board, with all such documents completed within thirty days of subcommittee meetings. (Currently, cases awaiting certifications and charges of misconduct to be written by bar counsel are at the lowest levels in five years.)
Policy of notifying complainants and other aggrieved parties about agreed dispositions: The trial attorneys will notify all complainants and aggrieved parties when they contemplate resolving disciplinary cases by Agreed Disposition.
Trust account review/audit policy: This policy, derived from meetings of the random trust account audit subcommittee of the Committee on Lawyer Discipline, will result in the OBC using its existing authority to promptly review and, if necessary, audit the trust account records of attorneys whose banks report more than one trust account overdraft to the bar, or in other cases when deemed necessary.
New disqualifying factors for district committee and board members: In light of several amendments in recent years to the Rules of the Supreme Court of Virginia that affect the qualification of panel members, the OBC developed a comprehensive summary of all disqualifying factors to be furnished to members of the district committees and Disciplinary Board. The purpose is to help determine when disqualification is appropriate at the earliest opportunity.
Cross-training of attorneys: In October 2008 the OBC began a program of attorney professional development consisting of monthly attorney cross-training on issues of importance. Once a month thereafter, members of the OBC conducted several blocks of instruction on the investigation and prosecution of escrow account violations, committee and board member disqualifying factors, equitable defenses in bar disciplinary cases, impairment, and other issues in the ever-changing environment of attorney disciplinary actions.
Other cost-saving measures: The closing of the Northern Virginia office caused the staff to look for additional ways to leverage technology and reduce costs. Subcommittee materials will now be furnished electronically to bar volunteers who can receive them this way. This procedure, overwhelmingly accepted by district committee volunteers when polled, will result in substantial savings in postage and copying costs. The staff also will utilize its contract with Northrop Grumman to reduce the costs of subcommittee telephone conference through the use of dial-in conferencing.
Procedural rule changes: The bar’s disciplinary system operates pursuant to Rules of the Supreme Court of Virginia, Part Six, Section IV, Paragraph 13 (Paragraph 13) as well as other statutes and case law.
A significant development was the improvement of access to Paragraph 13 of the Rules of Court. This occurred when the Supreme Court of Virginia approved a reformatted version of Paragraph 13, effective May 1, 2009. This development represents the culmination of a two-year effort led by former COLD Chair William L. Babcock Sr.
Paragraph 13-18 M: Amended to authorize the Disciplinary Board to impose terms with a law license suspension of one year or less.
Paragraph 13-1: Definition of “terms” was amended accordingly to allow the imposition of terms with certain suspensions, while striking references to a “dismissal with terms” — a sanction eliminated several years ago.
Paragraph 13-1: Definition of “costs” was amended to include electronic conferencing and recording costs if requested by the respondent.
Paragraph 13-25: Board Proceedings for Reinstatement was amended to increase from $3,500 to $5,000 the cash bond required to be posted by attorneys seeking reinstatement. (In an additional effort to shifting the costs of disciplinary actions from the bar to the responsible attorneys, the Virginia State Bar Council also approved an increase in the administrative costs assessed in subcommittee, district committee and Disciplinary Board proceedings.)
Intake: The Virginia State Bar received 4,120 new inquiries during FY2009, a decrease of 157 from the previous year. The total number of misconduct cases opened by Intake was correspondingly lower: 1,095, compared to 1,148 the year before. Intake also closed fewer cases in FY2009: 3,042, compared to 3,134 in FY2008. This difference appears to relate to a significant decrease in procedural default complaints reported by the Virginia Court of Appeals and Supreme Court. The number of such complaints resolved by Intake decreased from 141 in FY2008 to 41 in FY2009.
The areas of law in which the most inquiries were received by the bar were first, criminal law and second, family law.
Statistical summary: By the end of the fiscal year, 261 cases involving 163 respondents ended with sanctions imposed, a 9 percent increase over FY2008 but, more significantly, a 46 percent increase over FY 07. This total represents the number of disciplinary actions reflected in “End of FY2009 production numbers” section above and the total disciplinary actions imposed by subcommittees sua sponte.
Rule 4.2 Task Force: VSB president Manuel A. Capsalis established a task force of prosecutors, criminal defense lawyers, and academics to study Virginia Rules of Professional Conduct 4.2. Staff members of the OBC served as liaisons to the task force. This measure came as the result of an effort by state prosecutors to present a bill in the January 2009 General Assembly that, had it been enacted, would have created certain exemptions pertaining to prosecutors in the application of Rule 4.2. The task force reached a consensus and their conclusions were considered by the Legal Ethics Committee. This effort led to a proposal, supported by both the task force and the Legal Ethics Committee, that will be considered by VSB Council at its October 2009 meeting.
Legal Ethics: During FY 2009, Ethics handled an average of 411 calls per month from Virginia lawyers seeking legal ethics advice. This represents an increase of ten calls per month over FY2008. In addition, they aided the Standing Committee on Legal Ethics in issuing six legal ethics opinions (numbers 1842, 1843, 1844, 1845, 1846, and 1848), a 100 percent increase over FY2008. They also assisted in the promulgation of several proposed amendments to the Rules of Professional Conduct. Ethics counsel aided the Standing Committee on the Unauthorized Practice of Law, which closed 48 complaint investigations, carried over 27 from previous years, and opened 95 new complaints. Ethics counsel closed 61 other complaints upon determining that they did not involve UPL. Two UPL opinions, 213 and 214, were approved by the Supreme Court of Virginia. The UPL Committee also proposed a statute making UPL a felony in some circumstances. Ethics counsel also staffed the Standing Committee on Lawyer Advertising to review lawyer advertising. This led to the issuing of 102 noncompliance letters in FY2009 (97 were sent between January 1, 2009, and June 1, 2009) compared to the 70 noncompliance letters sent during all of FY 08. All recipients of noncompliance letters agreed to make changes to their advertising as directed. SCOLAS proposed an amendment to Rule 1.4 (d) of the Rules of Professional Conduct which was approved by Council.
Ethics bore the responsibility of answering a higher number of ethics calls each month in conjunction with the reduction of its attorney staff. The attorneys addressed this problem by using smart phones to respond to legal ethics inquiries while away from the office, including time spent traveling to continuing legal education presentations and other off-site programs for which they were responsible.
Despite the reductions in personnel, the OBC’s annual statistical results for FY2009 show significant improvements in a number of areas compared to previous years. The challenge for the coming year is to increase these gains to the point that they further exceed the numbers of previous years while reducing the number of older cases on the district committee dockets. The OBC will continue to set these high goals for itself, leveraging technology and searching for new ways to accomplish more with fewer attorneys and support staff.