Report of the Executive Director/Chief Operating Officer

Karen A. Gould

Membership in the Virginia State Bar was up overall, but active “in good standing” membership declined in FY2015 from the previous year. 

 

2013-14

2014-15

Active

31,752

31,260

Corporate Counsel Admittees

917

938

Corporate Counsel Registrants

519

536

Associate

12,841

13,082

Judicial (includes active and retired)

1,296

1,363

Retired/Disabled

2,220

2,401

Total

48,628

49,580

 

 

 

 

 

 

 

 

 

 

 

 

Bar Activities, Officers, and Council During 2014-2015

Karen A. Gould has served as executive director since January 1, 2008.

Kevin E. Martingayle, of Virginia Beach, served as president of the bar from June 16, 2014, until June 18, 2015. President Martingayle advanced the mission of the Virginia State Bar throughout his term as president by supporting funding for Virginia judgeships, forming the Task Force to the Study the Future of Law Practice and the Study Group of VSB Online Elections, advocating on behalf of the bar staff and Virginia lawyers, and speaking eloquently and forcefully whenever called upon regarding the mission of the Virginia Bar.

Edward L. Weiner became president of the VSB at the conclusion of the 2015 Annual Meeting.  Michael W. Robinson, of Fairfax, won a hotly contested president-elect race against two other candidates (Raymond Benzinger and Thomas A. Edmonds) in the bar’s first electronic election in the fall of 2014, and he officially became president-elect on Saturday, June 20, 2015. 

Mr. Robinson will serve ex-officio on the VSB Executive Committee during 2015-2016 as president-elect.  Nancy C. Dickenson and Leonard C. Heath, Jr. will continue to serve on the Executive Committee during the 2015-2016 bar year. Brian L. Buniva, Marni E. Byrum, Michael HuYoung and Daniel L. Rosenthal were elected by the council as new members of the 2015-16 executive committee, replacing Alan S. Anderson, Doris H. Causey, Tracy A. Giles and Michael W. Robinson.  Jack W. (JB) Burtch, Jr., Providence E. Napoleon, and Robert T. Vaughan, Jr. are the new chairs of the Conference of Local Bar Associations, the Diversity Conference, and the Senior Lawyers Conference, respectively, and Nathan J. Olson, the incoming president of the Young Lawyers Conference, complete the 2015-16 roster of the executive committee.

Council elections were run in 7 circuits (6 by electronic ballot and 1 by meeting) through May 1, 2015.  Six circuits had candidates who were uncontested and, therefore, were deemed to be the duly elected or reelected candidates for their circuits.  They are:

 

Circuit 12        Graham C. Daniels (reelected)

Circuit 14        Daniel L. Rosenthal (reelected)

                        Rhysa G. South (elected; will replace Thomas A. Edmonds)

Circuit 16        R. Lee Livingston (elected; will replace Bruce T. Clark)

Circuit 21        Joan Ziglar (reelected)

Circuit 23        Eugene ("Gene") M. Elliott, Jr. (elected; will replace Tracy A. Giles)

Circuit 30        William E. Bradshaw (reelected)

The candidates who ran contested elections are as follows, along with the winning candidate(s):

VSB Council Elections

Status as of July 1, 2015

CIRCUIT

COUNCIL MEMBER leaving

OR eligible for re-election

# OF

VACANCIES

# OF CANDIDATES

WINNING

CANDIDATE(S)

 

4

I. Lionel Hancock

1

1 – Gary A. Bryant

2 – Neil S. Lowenstein

Gary Bryant

8

Lesa J. Yeatts

1

Election by meeting

April 23

Marqueta Tyson

 

13

Doris E. H. Causey

O. Randy Rollins

Paula S. Beran

George W. Marget III

Eric M. Page

5

1 – Paula S. Beran

2 – Dabney Carr

3 – Guy C. Crowgey

4 – Leah A. Darron

5 – George W. Marget III

6 – Malcolm “Mic” McConnell

7 – Eric M. Page

Paula Beran Dabney Carr

Leah Darron

George Marget

Eric Page

 

17

Adam D. Elfenbein

David A. Oblon

2

1 – Timothy B. Beason

2 – Jonathan S. Gelber

3 – Rachelle E. Hill

4 – Eva N. Juncker

Tim Beason

Rachelle Hill

 

18

Alan S. Anderson

Foster S. B. Friedman

2

1 – Barbara S. Anderson

2 – Foster S. B. Friedman

3 – Stacy R. Harris

4 – Nathan J. D. Veldhuis

B. Anderson Foster Friedman

 

 

 

19

Peter D. Greenspun

Catherine M. Reese

Michael W. Robinson

Luis A. Perez

William B. Porter

Melinda L. VanLowe

6

1 – Richard A. Gray

2 – Chidi I. James

3 - Daniel B. Krisky

4 – Anita V. McFadden

5 – David L. Marks

6 – David D. Masterman

7 – Luis A. Perez

8 – William B. Porter

9 - William L. Schmidt

10 – Wayne G. Travell

11 – Melinda L. VanLowe

Chidi James

David Marks

Luis Perez

Bill Porter

Bill Schmidt

M. VanLowe

 

28

Roy F. Evans

1

1 - William M. Moffet

2 – Helen E. Phillips

Bill Moffet

 

In addition to these newly elected Council members, we also welcomed several new and reappointed at-large members to Council.  They are:

Lorrie A. Sinclair, Leesburg (reappointed for a second 3-year term)

Marnie E. Byrum, Alexandria (appointed for a 3-year term) (replaced Savalle Sims)

Afshin Farashahi, Virginia Beach (appointed for a 3-year term) (replaced (Darrel Tillar Mason)

In summary, Council consists of the three officers, four conference chairs, nine at-large members appointed by the Supreme Court of Virginia, and sixty-five elected members.

2015 Annual Meeting

For the second year in a row since the closing of the Cavalier Hotel, the VSB Better Annual Meeting Committee and Bar Services planned activities to occur at four hotels:  the Holiday Inn & Suites North Beach; the Sheraton Virginia Beach Oceanfront Hotel; the Hilton Garden Inn; and the Hilton Virginia Beach Oceanfront.  Room blocks were arranged at those four hotels, in addition to five additional hotels in an eight-block radius. An online app was available to download and was helpful in orienting members to their meetings' locations.  The 2015 meeting went very well, with few complaints.  The CLEs received rave reviews.

VSB Budget and Dues Increase Effective 7/1/2015

The Supreme Court of Virginia and Council approved the FY2015-2016 budget.  By Supreme Court of Virginia order dated September 1, 2014, effective July 1, 2015, bar dues increased by $25 for active members and by $12.50 for associate members.  In 2011, dues were decreased from $250 to $225 for active members and $125 to $112.50 for associate members.  Dues have not been increased since 2000.

The previous 5% cut from expenditures was restored to the budget, with expenditures budgeted at $14.6 million.  Included in the budget was a revenue/expense neutral Techshow, to be given in April 2016 at the Richmond Convention Center.  A $100 fee is to be charged to an expected 400 registrants to offset the $40,000 cost. 

Year 2 at 1111 E. Main Street Leasehold

Forced to move in April 2014 from its long-time home at 707 E. Main Street (1992-2014), the VSB moved to the Bank of America Building at 1111 E. Main Street with the official first day being April 14, 2014. 

The BOA term is 10 year 6 months from April 1, 2014, to September 30, 2024, with two five-year options with six months prior notice with six months of free rent the first year. The first year’s rent was $16.25 rentable sq ft on 31,624 sq. ft.   There is a 2.5 percent annual rent escalation factor.  The landlord provided a $25 per sf Tenant Improvement Allowance below a finished ceiling.  The new lease cost $513,890 the first year, less $256,945 free rent.  We are now in the second year of the leasehold and the 2.5 percent escalation factor is effective, with the total rent for FY2016 amounting to $543,930 (includes storage space and operating expense pass through).

JUDICIAL CANDIDATE EVALUATION COMMITTEE EVALUATIONS

On October 21, 2014, JCEC interviewed twenty-five candidates for vacancies on the Supreme Court of Virginia and the Court of Appeals of Virginia.  The candidates evaluated as either qualified or highly qualified are listed below in alphabetical order:

Supreme Court of Virginia

Qualified

Highly Qualified

W. Coleman Allen, Jr.

16-0

 

The Honorable Rossie D. Alston

16-0

 

The Honorable Randolph A. Beales

15-1

 

L. Steven Emmert

16-0

14-2

The Honorable D. Arthur Kelsey

16-0

14-2

The Honorable Stephen R. McCullough

11-5

 

                                                           

Court of Appeals of Virginia

Qualified

Highly Qualified

The Honorable Chadwick S. Dotson

12-4

 

L. Steven Emmert

15-0

(1 abstention)

12-3

(1 abstention)

The Honorable Mary Jane Hall

9-7

 

The Honorable Gary A. Hicks

16-0

14-2

The Honorable Christopher W. Hutton

16-0

15-1

The Honorable Stacey W. Moreau

16-0

16-0

The Honorable Lorraine Nordlund

11-5

 

The Honorable Mary Grace O'Brien

16-0

16-0

Wesley G. Russell, Jr.

13-3

 

The Honorable Josiah T. Showalter

15-0

(1 abstention)

14-1

(1 abstention)

The Honorable Robert J. Smith

16-0

 

Virginia B. Theisen

16-0

 

The report is available on the website at http://www.vsb.org/docs/2014-10-GA-JCEC-summaries.pdf.

Status of Online Payments

The bar started a partial online payment system in FY2011, which required changes to the VSB website and integration with IBIS, the bar's membership database.  The membership has responded to this investment with continued increase in the use of the system.  The chart below shows how the amount of payments has increased over the last four years:

 

FY2015

FY2014

FY2013

FY2012

Web Payments(see Note 1)

 

 

$4,564,182

$4,095,295

$3,519,525

$2,744,775

Date range of collections

6/18-

10/14/2014

6/12-10/8/2013

6/18-10/9/2012

5/24-10/7/2011

Increase in web payments over prior year

 

$468,887

$575,770

$774,750

N/A

Past Dues & Penalties

 

$537,175

$452,935

$417,183

$340,414

Increase (Decrease) in penalties over prior year

 

 

$89,050

$35,752

$76,769

($44,800)

Note 1: Includes Active, Associate, CPF Assessment, section dues, and some penalties (September/October)

Legislative Update

There was no legislation affecting the VSB during FY2015.

Enterprise Content and Records Management Project

In FY2015, work was completed on the Clients’ Protection Fund implementation.  There was additional implementation and training for Professional Regulation.  Because of the 5% budget cutback requested by the Virginia Supreme Court, the VSB took a hiatus on additional development of its Enterprise Client Management project during FY2015.

ALPS

ALPS has been the VSB's endorsed lawyers' professional liability carrier since October 2000.  ALPS became an admitted carrier in Virginia on February 1, 2015.  The VSB Lawyer Malpractice Insurance Committee believes this change will inure to the benefit of Virginia's ALPS-insured lawyers. ALPS is now subject to SCC regulation and in the event of insolvency, ALPS insureds would have access to the Virginia Guarantee Fund. In June 2015, A.M.Best affirmed ALPS’ A- (Excellent) rating with Stable outlook. 

STUDY GROUP ON VSB ONLINE ELECTIONS

In light of questions and complaints raised at the February 2015 Council meeting regarding the December 2014 online president-elect election, President Kevin Martingayle appointed a four-person study group to look into these issues.  The study group consisted of Sharon D. Nelson, chair, Tracy A. Giles, Christy E. Kiely and Jay B. Myerson.  After extensive study, a report was issued containing ten recommendations, all of which were accepted by the VSB, subject to monetary considerations for two of the recommendations.  Council received the report at the June 2015 meeting.  Notwithstanding the report, a Council member introduced a bylaw amendment to delete the option of online elections for president-elect elections, which was considered at the June 2015 Council meeting.  That motion failed 59-6.  A substitute motion for a moratorium and study of digital balloting garnered only three affirmative votes.  The full text of the report, its recommendations and the VSB response can be found at http://www.vsb.org/docs/election-study-report-2015-05.pdf.

FUTURE OF LAW PRACTICE STUDY COMMITTEE

Early in his tenure as president of the VSB, Kevin Martingayle appointed a blue ribbon group to study the future of law practice.  Chaired by Allen C. Goolsby, III, of Hunton & Williams, the other members of the committee are:  Marni E. Byrum, Stephanie E. Grana, Andrew H. Hook, J. Neal Insley, Maurice A. Jones, Walter D. Kelley, Jr., Senior Justice Elizabeth B. Lacy, Sharon D. Nelson, Anita O. Poston, Michael W. Robinson, Thomas E. Spahn, Prof. A. Benjamin Spencer, and Neil Talegaonkar.  

The committee had three meetings in FY2014-2015:  September 30, 2014; January 13, 2015; and May 5, 2015.  At the last meeting it appeared that a majority of those attending were interested in drafting a proposal that included alternative business structures and nonlawyer ownership, which would require revisions to Rules of Professional Conduct 5.4 and statutory amendments.  It was agreed that the proposal would need to be reviewed by the Standing Committee on Legal Ethics because it involved amendments to the Rules of Professional Conduct.

MIDYEAR LEGAL SEMINAR STUDY COMMITTEE

Irving M. Blank was appointed by President Martingayle to chair the Midyear Legal Seminar Study Group in followup to the cancellation of the bar trip to Israel in November 2015. The following members also have been appointed to serve on the study group:

Afshin Farashahi, Afshin Farashahi PC, Virginia Beach

Chidi I. James, Blankingship & Keith PC, Fairfax

Judy Linn Bristow, Williams Mullen, Richmond

Margaret A. Nelson, Margaret A. Nelson Law, Lynchburg

Andrea Rahal, Rahal Immigration Law PLC, Richmond

Judith L. Rosenblatt, Judith L. Rosenblatt, PC, Virginia Beach

 

The study group has been asked to consider the following issues:

1)      Is the VSB-sponsored Midyear Legal Seminar within the mission and purpose of the VSB?

2)      If the answer to #1 is yes, what criteria should be developed and implemented to guide future trips in terms of site selection and CLE programming?

Council was asked via a June email to provide input on these issues by July 15, 2015 to: MidStudyGroup@vsb.org

Regulatory Changes Adopted and Proposed in FY2014-2015

Council Bylaws Amended

On October 24, 2014, the VSB Council approved amending the bylaws in Council elections to change the instructions so that members can vote for fewer candidates than the number of vacancies to be filled.

Increased Payment for Losses under Amended Clients’ Protection Fund Rules

On October 24, 2014, the VSB Council approved amending the Clients' Protection Fund Rules to increase the maximum payment to any one petitioner to $75,000 for losses incurred on or after July 1, 2015. Maximum payments for losses incurred before that date will remain $50,000. The total amount of losses reimbursable for any one lawyer or association of lawyers will increase from 10 percent of the net worth of the fund to 15 percent.

New Rule of Professional Conduct 5.8 (effective 5/1/2015)

Rule 5.8 Procedures For Notification to Clients When a Lawyer Leaves a Law Firm or When a Law Firm Dissolves.

(a) Absent a specific agreement otherwise:

            (1) Neither a lawyer who is leaving a law firm nor other lawyers in the firm shall unilaterally contact clients of the law firm for purposes of notifying them about the anticipated departure or to solicit representation of the clients unless the lawyer and an authorized representative of the law firm have conferred or attempted to confer and have been unable to agree on a joint communication to the clients concerning the lawyer leaving the law firm; and

            (2) A lawyer in a dissolving law firm shall not unilaterally contact clients of the law firm unless authorized members of the law firm have conferred or attempted to confer and have been unable to agree on a method to provide notice to clients.

(b) When no procedure for contacting clients has been agreed upon:

            (1) Unilateral contact by a lawyer who is leaving a law firm or the law firm shall not contain false or misleading statements, and shall give notice to the clients that the lawyer is leaving the law firm and provide options to the clients to choose to remain a client of the law firm, to choose representation by the departing lawyer, or to choose representation by other lawyers or law firms; and

            (2) Unilateral contact by members of a dissolving law firm shall not contain false or misleading statements, and shall give notice to clients that the firm is being dissolved and provide options to the clients to choose representation by any member of the dissolving law firm, or representation by other lawyers or law firms.

(c) Timely notice to the clients shall be given promptly either by agreement or unilaterally in accordance with Rule 5.8(a) or (b).

 (d) In the event that a client of a departing lawyer fails to advise the lawyer and law firm of the client’s intention with regard to who is to provide future legal services, the client shall be deemed a client of the law firm until the client advises otherwise or until the law firm terminates the engagement in writing.

(e) In the event that a client of a dissolving law firm fails to advise the lawyers of the client’s intention with regard to who is to provide future legal services, the client shall be deemed to remain a client of the lawyer who is primarily responsible for the legal services to the client on behalf of the firm until the client advises otherwise.

Comment

[1] Although there may also be significant business and legal issues involved when a lawyer leaves a law firm or a law firm dissolves, this rule addresses the rights of the clients to be fully informed and able to make decisions about their representation. Accordingly, the rule emphasizes both the timing and the content of the required notice to clients. Upon the departure of a lawyer or the dissolution of the law firm, the client is entitled to notice that clearly provides the contact information for the departing lawyer and information about the ability and willingness of the lawyer and/or firm to continue the representation, subject to Rule 1.16.  Either the departing lawyer or the law firm shall take appropriate steps in accordance with Rule 1.16 regarding the client's file, and any other property, including advanced legal fees.  Nothing in this rule or in the contract for representation may alter the ethical obligations that individual lawyers have to a client as provided elsewhere in these rules. Any client notification agreement, whether pursuant to this rule or otherwise, must also comport with Rule 5.6(a). Lawyers may also have fiduciary, contract, or other obligations to their firms that are outside the scope of these rules.

[2] While this rule requires the departing lawyer and the law firm to confer in order to make a joint communication to the departing lawyer’s clients, the duty to communicate with clients and to avoid prejudicing the clients during the course of representation requires prompt communication when the lawyer primarily responsible for those clients is leaving the firm. See, e.g., Rules 1.3(c), 1.16(d) and 1.16(e).  If continued representation by the departing lawyer and/or by the law firm is not possible, the communication shall clearly state that fact and advise the client of the remaining options for continued representation, including the client’s right to choose other lawyers or law firms.

[3] For purposes of the notification required by this rule, "client" refers to clients for whose active matters the departing lawyer has primary responsibility.

[4] While clients have the right to choose counsel, such choice may implicate obligations. Those obligations may include a requirement to pay for legal services previously rendered and costs expended in connection with the representation as well as a reasonable fee for copying the client’s file.  See Rule 1.16(e).  Some clients may be limited in their ability to choose counsel. For example, when the lawyer is appointed by a court to represent a client, the appointed lawyer is responsible for the representation until relieved or replaced by the court.

[5] Lawyers involved in either a change in law firm composition or a law firm dissolution may have duties to notify the court if they represent clients in litigation.  In either case, a lawyer who is counsel of record before a court must file a motion to withdraw or a motion for substitution of counsel if he no longer represents the client. See Rule 1.16(c).

Effective date – This rule and commentary thereto became effective May 1, 2015.

Pending Rule Changes (these rule changes have been approved by the Council of the Virginia State Bar and have been submitted to the Supreme Court of Virginia for approval)

Proposed Amendment to Rules 1.1 (Competence) and 1.6 (Confidentiality) (filed with SCV 3/2015)

The proposed amendment to Comment [6] of Rule 1.1 is as follows:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

The VSB also proposes that the Supreme Court of Virginia adopt a new paragraph (d) to Va. Rule 1.6 stating:

(d)  A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information protected under this Rule.

In addition to the new paragraph (d), the VSB proposes the following amendments to the comments:

[19] Paragraph (d) requires a lawyer to act reasonably to safeguard information protected under this Rule against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3.  The unauthorized access to, or the inadvertent or unauthorized disclosure of, confidential information does not constitute a violation of this Rule if the lawyer has made reasonable efforts to prevent the access or disclosure.  Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the employment or engagement of persons competent with technology, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

19[a]  Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other laws, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of this Rule.

Many comments were received.  The record filed with the petition contains these comments.  Please refer to the VSB website to review the comments in the record filed with the SCV.  http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/amendments-rules-1_1-1_6-112514.

Proposed Amendment to Paragraph 13-4.E (service on district committees by certain ex-officio members of Council) (filed with the SCV 3/2015)

On September 3, 2014, the Committee on Lawyer Discipline (COLD) approved amendments to Part Six, Section IV, Paragraph 13-4.E of the Rules of the Supreme Court of Virginia.  Chairs and presidents of conferences of the Virginia State Bar serve one year as ex-officio members of Council.  Paragraph 13-4.E as currently written requires such Council members to resign their positions on district committees to avoid conflicts in selection of new district committee members.  The proposed amendment clarifies the issue and exempts the ex-officio members from having to resign from district committees.  Council approved the amendment on February 28, 2015.

See the VSB website for additional details, including a copy of the petition to the SCV:  http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/prop_13_4e_service_ex-officio.

Proposed Amendment to Paragraph 13-4 (malpractice insurance requirements in Va. Code Section 54.1-3935(D)) (filed with the SCV 3/2015)

On May 7, 2014, the Committee on Lawyer Discipline (COLD) voted unanimously to approve the proposed Paragraph 13.4 to be included in Part Six, Section IV of the Rules of the Supreme Court of Virginia.  This Paragraph is in response to changes to Virginia Code Section 54.1-3935(D) which charge the bar with setting standards for minimum malpractice coverage when disciplinary charges heard by a three-judge panel result in a finding of criminal conduct involving loss of client property.  Council approved the proposal at its February 28, 2015, meeting. 

See the VSB website for additional details, including a copy of the petition to the SCV:  http://www.vsb.org/pro-guidelines/index.php/rule_changes/item/prop-paragraph-13.4

Proposed Amendment to Paragraph 13-11.B

The proposed amendments are the result of discussions among the members of COLD, the Executive Committee, and Council concerning the obligation of bar counsel to disclose exculpatory evidence to respondents under Paragraph 13-11.B, notwithstanding other rules that proscribe such disclosure on the basis that the information found in bar complaints, bar investigations and private disciplinary actions, as set forth in Paragraph 13-30.A, is confidential and not to be disclosed.  The proposed amendments allow for notice by regular mail to attorneys and complainants affected by the disclosure of otherwise confidential information pertaining to them and allows for an exception to this notification if bar counsel decides that giving such notice prejudices a disciplinary investigation.  This language is drawn from existing Paragraph 13-30.G, which allows for an identical exception when bar counsel furnishes evidence of criminal activity to law enforcement authorities. These amendments are meant to make the bar’s duty to disclose exculpatory evidence clear and to remove any ambiguity posed by other rules stating that the information is confidential and not to be disclosed.  Council approved the proposed amendment at its June 18, 2015, meeting.

See the VSB website for additional details, including a copy of the petition to the SCV:  http://www.vsb.org/docs/SCV-petition-1311-1325-062915.pdf.

Proposed Amendments to Paragraph 13-25

The proposed amendments to Paragraph 13-25 restructure the reinstatement rule to bring order and clarity to the procedure.  Currently, a lawyer seeking reinstatement after disbarment has to talk to the Clerk of the Disciplinary System to understand how the process really works.  With these revisions, the process is clearly set forth.

Currently, petitions for reinstatement after revocation are filed with the Clerk of the Supreme Court of Virginia.  The revised rule would require the petitions be filed with the Clerk of the Disciplinary System at the Virginia State Bar.  Other parts of Paragraph 13-25 not dealing with reinstatement after a revocation have been moved to the first part of the rule. See, for instance, "Investigation of Impairment in Reinstatement Matters," proposed 13-25.B (current 13-25.1); "Readmission After Resignation," proposed 13-25.C. (current 13-25.B.); "Reinstatement After Disciplinary Suspension for more than One Year," proposed 13-25.D (current 13-25.H). The substance of these sections was not changed.

The threshold requirements before a petition for reinstatement after revocation can be pursued would be consolidated in proposed Subparagraph 13-25.F, instead of being listed in three locations, i.e., current Subparagraphs 13-25.C, 13-25.E.1-4., and 13-25.E.  One of the current threshold determinations before the petition can be processed is that the Petitioner be of good and honest demeanor and good moral character and possess the requisite fitness to practice law (see revision at 13-25.G.5).  Since such a determination cannot be made without hearing evidence and making a judgment, that analysis is more properly contained in the hearing section (see proposed 13-25.G.6.d).

The revised rule reorganizes and restates the reinstatement process to reflect the way the process actually operates.  Compare the process proposed in 13-25.G with the procedures set forth in current 13-25.J.  Changes in technology are also reflected in the rule. For instance, instead of requiring that notices to the membership be mailed (current 13-25.J.5), proposed 13-25.G.4 would permit those notices to be distributed by mail or electronic means, e.g., email. Instead of referring to the factors spelled out In the Matter of Alfred Lee Hiss, VSB Docket No. 83-26 (Va. Sup. Ct. July 2, 1984), the Hiss factors are set forth in the proposed revision (compare current 13-25.J.8 with proposed 13-25.G.6.b).  A change was made in the investigation paragraph (proposed 13-25.G.1) regarding the written request for permission to conduct an inquiry into Petitioner's background, clarifying that the petition will not proceed without such forms and permissions being signed by the Petitioner and returned to Bar Counsel (under the current system, sometimes the Petitioner fails to return these forms to Bar Counsel, which are essential to an adequate investigation). The same would apply to the Bill of Particulars being filed with the Clerk of the Disciplinary System (proposed 13-25.G.2).

The section identified as "Determination by the Board," contained in proposed 13-25.G.6.e, is a compilation of current 13-25.J.10, 13-25.F and 13-25.G, which all relate to what happens once the Board issues its recommendation. Subparagraph 13-25.G.6.e.ii was revised to show the payment or refund of the bond required by Subparagraph 13-25.F.8 (current 13-25.E).

The quorum language contained in current 13-25.J.1 was eliminated as being unnecessary because Paragraph 13-6.D establishes that a quorum of the Disciplinary Board is five members.

See the VSB website for additional details, including a copy of the petition to the SCV:  http://www.vsb.org/docs/SCV-petition-1311-1325-062915.pdf.

Proposed Amendment to RPC 1.10 (Imputation of conflict of interest) (filed with the SCV 6/2014)

Submitted to the Supreme Court on June 18, 2014, the proposed rule amendment to Rule of Professional Conduct 1.10 is intended to avoid a situation in which a lawyer avoids the imputation of a conflict of interest by avoiding the knowledge that another lawyer in the firm has a conflict as to the representation.  Under the current standard of “knowing” that another lawyer in the firm is prohibited from undertaking the representation, a lawyer can avoid the application of Rule 1.10(a), which would impute a conflict to him, by willfully failing to learn the information that establishes the existence of the conflict.  

The proposed Rule amendment imputes a conflict if the lawyer “knows or reasonably should know” that another lawyer in the firm is prohibited from representing the client.  The proposed amendment adds a new Comment [2a] to explain that the failure to maintain or use a system for identifying conflicts may be deemed a violation of Rule 1.10(a), if proper use of the system would have identified the conflict.

One person opposed the amendment to Rule 1.10; one person wrote in favor of the amendment.  The proposed amendment to Rule 1.10 was approved by a unanimous vote (0 abstentions) by the Council of the Virginia State Bar on June 12, 2014.  No action has been taken by the Court yet on the amendments to RPC 1.10.  The amendments to Rule 1.10 were submitted with new Rule 5.8, which was approved by the Supreme Court on 2/25/2015, effective 5/1/2015.

Proposed Emergency Legal Services rule (filed with the SCV 7/2008)

Pending before the Supreme Court is a proposal for an Emergency Legal Services rule which would set up a system for the provision of emergency legal services in the event of a disaster. The Virginia Supreme Court would first have to declare an emergency to trigger the rule coming into play. Under the proposal, out-of-state lawyers could provide pro bono legal services to Virginia citizens within certain constraints, and displaced out-of-state lawyers could provide legal services in Virginia on a temporary basis if those services were reasonably related to the lawyer's practice in the affected jurisdiction. The proposal was unanimously approved by the council on June 19, 2008, and was submitted to the Court on July 11, 2008.

Updated: Jul 20, 2015