Report of the Executive Director/Chief Operating Officer

Karen A. Gould

Membership in the Virginia State Bar grew slowly this year.  Active “in good standing” membership increased to 31,752 (which includes corporate counsel admittees), an increase of 725 over last year.

 

2013-14

2012-13

Active

31,752

31,027

Corporate Counsel Admittees

917

896

Corporate Counsel Registrants

519

487

Associate

12,841

12,569

Judicial (includes active and retired)

1,296

1,221

Retired/Disabled

2,220

2,079

Total

48,628

47,383

 

 

 

 

 

 

 

 

 

 

 

 

Bar Activities, Officers, and Council During 2013-2014

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

Sharon D. Nelson, of Fairfax, served as president of the bar from June 16, 2012, until June 16, 2013. President Nelson advanced the mission of the Virginia State Bar throughout her term as president by advocating on behalf of the bar staff, directing the creation of VSB informational videos, overseeing the member survey, teaching on legal technology issues at numerous VSB functions, assisting the staff in marking the bar’s 75th anniversary and obtaining new bar office space, attending meetings in and outside the Commonwealth of Virginia to proselytize on behalf of Virginia's lawyers, and speaking eloquently and forcefully whenever called upon regarding the mission of the Virginia State Bar

Kevin E. Martingayle became president of the VSB at the conclusions of the 2014 Annual Meeting.  Edward L. Weiner, of Fairfax, was the sole candidate to file a petition for the office of president-elect in 2013, and he officially became president-elect on Saturday, June 14, 2014. 

Mr. Weiner will serve ex-officio on the VSB Executive Committee during 2014-2015 as president-elect.  Alan Anderson, Doris E.H. Causey, and Tracy A. Giles will continue to serve on the Executive Committee during the 2014-2015 bar year. Nancy C. Dickerson, Leonard C. Heath Jr., and Michael W. Robinson were elected by the council as new members of the 2014-15 executive committee, replacing Donna Sue Baker Cox, Ray King, and William Schmidt.  Mary M. Benzinger, Eva N. Juncker, and Renae R. Patrick, the new chairs of the Conference of Local Bar Associations, the Diversity Conference, and the Senior Lawyers Conference, respectively, and Maureen E. Danker, the incoming president of the Young Lawyers Conference, complete the 2014-15 roster of the executive committee.

CIRCUIT

COUNCIL MEMBER LEAVING

OR Eligible for re-election

CANDIDATES

WINNING CANDIDATE(S)

1

Nancy Parr

Nancy Parr

Nancy G. Parr

2

William Drinkwater

Judith Rosenblatt

Steven Owen

Judith Rosenblatt

Hilton Oliver

Steven G. Owen & Judith L. Rosenblatt

4

Ray King

Lisa Bertini

Ann Brogan

Lisa A. Bertini

7

Len Heath

Len Heath

Leonard C. Heath, Jr.

9

John Tarley, Jr.

W. Hunter Old

W. Hunter Old

10

Bob Hawthorne

 

BY MEETING –Charles H. Crowder, III

11

Dale Pittman

Dale Pittman

Dale W. Pittman

13

Guy Crowgey

Brian Buniva

Stephen Baril

Brian L. Buniva

14

William Viverette

Jon Nichols

Jon A. Nichols

15

Grayson Johnson

 

BY MEETING – Jennifer L. Parrish

18

Carolyn Grimes

Carolyn Grimes

Carolyn M. Grimes

19

Susan Butler

Paul Hammack, Jr.

Daniel Krisky

William Schmidt

Joyce Henry-Schargorodski

Dennis Quinn

Jay Myerson

John Carter

Michael York

Gary Moliken

Richard Ruddy

Dennis Quinn

Joyce Henry –S.

James Davis

James F. Davis, Joyce Henry-Schargorodski, Gary H. Moliken, Jay B. Myerson, Dennis J. Quinn, Michael M. York

20

T. Huntley Thorpe, III

T. Huntley Thorpe, III

T. Huntley Thorpe, III

25

Roscoe Stephenson

Roscoe Stephenson, III

Roscoe B. Stephenson, III

Newly Appointed Council Members-at-Large                                                   

William E. Glover
Fredericksburg

A. Benjamin Spencer
University of Virginia Law School

Reappointed Council Member at-Large

Todd A. Pilot
Alexandria

2014-15 Conference Chairs

CLBA Chair – Mary M. Benzinger, Washington, DC                                           

Diversity Conference Chair – Eva N. Juncker, Silver Spring, MD

Senior Lawyers Conference  Chair – Renae R. Patrick, Winchester

Young Lawyers Conference President – Maureen E. Danker, Fairfax            

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.

2014 Annual Meeting

The VSB 2014 Annual Meeting was not hosted for the first time in many years at the Cavalier Hotel because it had changed ownership the previous year and was not taking reservations at the critical time.  Instead, the Better Annual Meeting Committee and Bar Services planned activities to occur at three hotels:  the Holiday Inn & Suites North Beach; the Sheraton Virginia Beach Oceanfront Hotel; and the Hilton Virginia Beach Oceanfront.  Room blocks were arranged at those three 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 2014 meeting went very well, with few complaints.

VSB Informational Videos Debut

Nineteen informational videos about the work of the Virginia State Bar have been posted on YouTube. Among other things, the videos discuss the Clients’ Protection Fund, Fee Dispute Resolution, the Senior Citizens Handbook, the So You’re 18 brochure, and the Virginia Lawyer Referral Service.

The videos were created as part of a project initiated by VSB President Sharon D. Nelson. Ms. Nelson noted that, “More people prefer to receive information via videos today. By making sure key VSB information is available to our members and the public, we help fulfill our regulatory, educational, and accessibility missions.” The videos were written by the VSB Publications Department, approved by the Special Committee on Communications, and produced in the studios of the Virginia Information Technologies Agency. They are intended to provide information about the bar and its services to the public and to our members.

VSB Budget

The Supreme Court of Virginia and Council approved the FY2014-2015 budget, but asked the bar staff to cut 5 percent from operating expenditures.

707 E. Main Street Leasehold Terminated and 1111 E. Main Street Leasehold Begun

Dominion Resources, which owns 707 E. Main Street, informed the VSB on February 13, 2013, that the bar’s lease would not be renewed, but extended the lease to April 30, 2014.  In mid-November 2013, the Virginia State Bar executed a lease with the owner of the Bank of America building in downtown Richmond, located at 1111 E. Main Street.  The bar's offices are now located on the 7th floor of the building, with additional office space on the 6th floor.  Day One in the new space was April 14, 2014. 

The bar had been located at 707 E. Main Street since 1992. The rent at the time of lease termination at 707 E. Main St. cost $ 472,961 on 22,328 sq ft plus $9.62 on 1,897 sq ft.   The BOA term is 10 year 6 months from April 1, 2013, 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 is $16.25 rsf (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 will cost $513,890 the first year, less $256,945 free rent.  

JUDICIAL CANDIDATE EVALUATION COMMITTEE EVALUATIONS

On March 26, 2014, JCEC interviewed ten candidates for the Western District of Virginia district court judgeship created by the departure of Judge Sam Wilson.  Six of those candidates were evaluated as either qualified or highly qualified as follows:

                                                                   Qualified                        Highly Qualified

Ward L. Armstrong                                         10-1                               6-5

The Honorable Robert S. Ballou                     11-0                                 10-1

Elizabeth K. Dillon                                         11-0                               10-1

Julia C. Dudley                                               11-0                             10-1

Rachel A. Harmon                                          11-0                               8-3

The Honorable Pamela M. Sargent                   9-2

The report is available on the website at http://www.vsb.org/site/news/item/VSB_judicial_recommendations

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 three years:

  FY2014 FY2013 FY2012 FY2011
Web Payments (see Note 1) $4,095,295.00 $3,519,525.00 $2,744,775.00 N/A       
Date range of collections 6/12-10/8/2013 6/18-10/9/2012 5/24-10/7/2011 N/A
Increase over prior year $575,770.00 $774,750.00 N/A  
Past Dues & Penalities $448,125.00 $411,585.00 $332,455.00 $381,415.00
Increase (Decrease) over prior year $36,540.00 $79,130.00 ($48,960.00)  

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

FY2013 Audit Report

The audit report for FY2013, completed November 22, 2013, found (1) proper recording and reporting of all transactions in the Commonwealth Accounting and Reporting System and our internal financial system; (2) no matters involving internal control and its operations necessary to bring to management’s attention; and (3) no instances of noncompliance with applicable laws and regulations or other matters that are required to be reported. 

Legislative Update

Clients’ Protection Fund Assessment Extended

The Clients' Protection Fund $25 assessment paid by Virginia’s active lawyers was set to expire June 30, 2015.  Senator Richard H. Stuart and CPF Finance Subcommittee Chair Jack Harris were instrumental in getting the assessment extended for another five years through Senate Bill 7.  It will now expire June 30, 2020. 

The Clients’ Protection Fund was established in 1976 to make monetary awards to persons who suffered financial losses due to the dishonest conduct of Virginia lawyers.  The total amount paid during FY2013-2014 was $353,540 for 57 claims.  Seventeen petitions were denied, and twelve  petitions were rejected for not meeting the CPF rule requirements.  The fund balance as of December 31, 2013, was $7,213,162.78.

Amendment to Risk Management Plan Statute

The amendments to Va. Code § 2.2-1839, the risk management plan statute, to provide for inclusion under the state's risk management plan for attorneys providing pro bono legal services under a Virginia State Bar approved program, were sponsored by Delegate G. Manoli Loupassi (HB 712) and Senator Thomas K. Norment Jr. (SB 486).  SB 486 passed through the House and the Senate unanimously and was signed by the governor to become law.

Enterprise Client Management Project

After undertaking a high level assessment of its operations and record management needs in FY2011, in FY2012, the bar developed a request for proposal to purchase enterprise content records management software and purchased the software from Open Text.  During fiscal year 2012-2013, consultants completed the content inventory, aligned the content items with required and best practices record-retention policies, issued an RFP for consultants to undertake implementation of the ECRM project, which was awarded to The IQ Group Consultants, who began work on January 24, 2013. 

During FY2013-2014, the ECRM project continued with the successful completion of several major milestones including completion of the detailed system design; software and hardware installation, including the database servers and desktop setups; back-file scanning of Clerks' and Member Services' paper files in support of the office move; Clerk’s Office digital mail and document distribution was accomplished along with the task of making all orders searchable in the system. The Membership Department finished its implementation and now handles most of its day-to-day work in a paperless manner.

ALPS

ALPS has been the VSB's endorsed lawyers' professional liability carrier since October 2000.  As established by the committee in October 2008, one of its five-year goals was to reevaluate its endorsement of ALPS or whether it should endorse any malpractice carrier. In June of 2013, the committee decided to hire a consultant to assist in its evaluation of the ALPS endorsement. The LMI Committee issued a Request for Proposals in the summer of 2013 for a consultant to assist it in review of the bar's endorsement of ALPS.   

Bickmore, a California company, was chosen to undertake the study and submitted its report on February 25, 2014.  The report was submitted to the Special Committee on Lawyer Malpractice Insurance and was considered at its meeting on March 17, 2014.  The report was positive in its findings regarding ALPS and recommended that the endorsement relationship be continued.  The LMI Committee accepted the Bickmore report and made a report to council at its June 2014 meeting about the findings.  The report in its totality can be found on the VSB website at http://www.vsb.org/site/news/item/alps-reaffirmed-2014.

In 2013 year-end results, ALPS reported a net combined ratio of 99.17 percent overall with the Virginia book at 63.27 percent.  Of its total 13,616 insureds, 3,756 were Virginia attorneys as of 12/31/2013.  Claims frequency in 2013 was 3.27 percent in Virginia, compared to 3.82 percent overall.  Gross written premium from the Virginia book was $9,457,831, and overall was $42,190,661.  Net written premium from Virginia was $6,294,297, and overall was $28,078,379.  As of June 30, 2014, 3,714 Virginia lawyers were insured by ALPS in 1,827 firms.

On the risk management front, ALPS contributed 3 percent of its Virginia gross written premium in FY2014, or $270,099, to support a variety of VSB risk management activities.  Those dollars supported the ALPS Fall VSB‐ALPS Ethics and Professionalism program which drew 1,496 attendees.  Virginia attorneys earned 3 hours of CLE ethics credit.  The risk management budget also supported a Risk Management Hotline, ten live webinars, programs uploaded into a Virginia on-demand library, risk management seminars with Virginia local, county and specialty bars, a Substantive Law CLE Series and the contribution of $30,000 to Virginia's Lawyers Helping Lawyers.

Pursuant to the endorsement agreement, ALPS sought the LMI Committee’s advisory input to proposed changes to its policy form.  Two changes were determined to be potentially disadvantageous to Virginia lawyers.  The first, which permitted the company the right to require a statement of the insured under oath, was eliminated in Virginia via a state amendatory endorsement.  The second, which provided ALPS a right to seek reimbursement for amounts paid in defending non-covered claims, was kept in the policy although ALPS agreed to provide the LMI Committee an annual report on any instances when the policy language had been invoked.  Recently, ALPS notified the LMI Committee of its intent in its next national form filing (June 2014) to eliminate both provisions entirely from the ALPS policy form, not only in Virginia but all states where ALPS does business. 

Throughout 2013 and the first half of 2014, ALPS continued to move forward with plans to relinquish its Risk Retention Group status and become an admitted carrier in all states in which it does business, achieving that goal in all states except Virginia.  In consultation with the Virginia State Corporation Commission, it withdrew its Virginia application in February 2013, but refilled the application after the completion of a triennial financial examination.  As of the date of this report, the SCC had not ruled on ALPS’ Virginia application. The LMI Committee sent a letter in December 2013 to the SCC urging acceptance of ALPS application, because acceptance of ALPS as an admitted carrier in Virginia will inure to the benefit of Virginia's ALPS-insured lawyers. ALPS would be subject to SCC regulation and in the event of insolvency, ALPS insureds would have access to the Virginia Guarantee Fund. 

Regulatory Changes

Amendments to Rules of Professional Conduct 1.11, 1.15 and 5.4

On November 1, 2013, the Court entered an order effective immediately amending Rules of Professional Conduct 1.11, 1.15 and 5.4. 

Rule of Professional Conduct 1.11 

One change to RPC 1.11 is cosmetic:  it moved the definition of "confidential government information from standalone section (g) to section (c), which is the only place in the rule that the term is used.  The second change to Rule 1.11 added a provision to section (d), allowing the conflict for a lawyer who is currently in government service to be waived with consent from the private client and the appropriate government agency.  This provisions parallels section (b), which allows for informed consent to conflicts created by a lawyer's move from government service to private practice.  The third change to RPC 1.11 was the adoption of American Bar Association Model Rule Comment 3, which explains why paragraphs (b) and (d) are not limited to situations in which a lawyer would be adverse to her former client, but rather apply to any matter in which the lawyer participated personally and substantially prior to her move from government to private employment or vice versa. 

Rule 1.11 now reads as follows:

RULE 1.11      Special Conflicts of Interest for Former and Current Government Officers and Employees

(a)        A lawyer who holds public office shall not:

(1) use the public position to obtain, or attempt to obtain, a special advantage in legislative matters for the lawyer or for a client under circumstances where the lawyer knows or it is obvious that such action is not in the public interest;

(2) use the public position to influence, or attempt to influence, a tribunal to act in favor of the lawyer or of a client; or

(3) accept anything of value from any person when the lawyer knows or it is obvious that the offer is for the purpose of influencing the lawyer's action as a public official.

(b) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the private client and the appropriate government agency consent after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:

(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule.

(c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term "confidential government information" means information that has been obtained under governmental authority and that the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and that is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.

(d) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee shall not:

(1) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter or unless the private client and the appropriate government agency consent after consultation; or

(2) negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer, mediator or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b)                

(e) Paragraph (d) does not disqualify other lawyers in the disqualified lawyer’s agency.

(f) As used in this Rule, the term "matter" includes:

(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and

(2) any other matter covered by the conflict of interest rules of the appropriate government agency.

Comment

[1] This Rule prevents a lawyer from exploiting public office for the advantage of the lawyer or a private client. A lawyer who is a public officer should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with official duties or obligations to the public.

[2] A lawyer representing a government agency, whether employed or specially retained by the government, is subject to the Rules of Professional Conduct, including the prohibition against representing adverse interests stated in Rule 1.7 and the protections afforded former clients in Rule 1.9. In addition, such a lawyer is subject to Rule 1.11 and to statutes and government regulations regarding conflict of interest. Such statutes and regulations may circumscribe the extent to which the government agency may give consent under this Rule.

[3] Paragraphs (b) and (d) apply regardless of whether a lawyer is adverse to a former client and are thus designed not only to protect the former client, but also to prevent a lawyer from exploiting public office for the advantage of another client. For example, a lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer has left government service, except when authorized to do so by the government agency under paragraph (b). Similarly, a lawyer who has pursued a claim on behalf of a private client may not pursue the claim on behalf of the government, except when authorized to do so by paragraph (d). Rule 1.10 is not applicable to the conflicts of interest addressed by these paragraphs.

[4] Where the successive clients are a public agency and a private client, the risk exists that power or discretion vested in public authority might be used for the special benefit of a private client. A lawyer should not be in a position where benefit to a private client might affect performance of the lawyer's professional functions on behalf of public authority. Also, unfair advantage could accrue to the private client by reason of access to confidential government information about the client's adversary obtainable only through the lawyer's government service. However, the rules governing lawyers presently or formerly employed by a government agency should not be so restrictive as to inhibit transfer of employment to and from the government. The government has a legitimate need to attract qualified lawyers as well as to maintain high ethical standards. The provisions for screening and waiver are necessary to prevent the disqualification rule from imposing too severe a deterrent against entering public service.  The private client should be informed of the lawyer's prior relationship with a public agency at the time of engagement of the lawyer's services.

[5] When the client is an agency of one government, that agency should be treated as a private client for purposes of this Rule if the lawyer thereafter represents an agency of another government, as when a lawyer represents a city and subsequently is employed by a federal agency.

[6] Paragraphs (b)(1) and (c) do not prohibit a lawyer from receiving a salary or partnership share established by prior independent agreement. They prohibit directly relating the attorney's compensation to the fee in the matter in which the lawyer is disqualified.

[7] Paragraph (b)(2) does not require that a lawyer give notice to the government agency at a time when premature disclosure would injure the client; a requirement for premature disclosure might preclude engagement of the lawyer. Such notice is, however, required to be given as soon as practicable in order that the government agency will have a reasonable opportunity to ascertain that the lawyer is complying with Rule 1.11 and to take appropriate action if it believes the lawyer is not complying.

[8] Paragraph (c) operates only when the lawyer in question has knowledge of the information, which means actual knowledge; it does not operate with respect to information that merely could be imputed to the lawyer.

[9] Paragraphs (b) and (d) do not prohibit a lawyer from jointly representing a private party and a government agency when doing so is permitted by Rule 1.7 and is not otherwise prohibited by law.

Virginia Code Comparison

Paragraph (a) is identical to DR 8-101(A).

Paragraph (b) is substantially similar to DR 9-101(B), except that the latter used the terms "in which he had substantial responsibility while he was a public employee."  The Rule also requires consent of both a current client and the former agency.

Paragraphs (c), (d), (e) and (f) have no counterparts in the Virginia Code.

Committee Commentary

The Committee believed that the ABA Model Rule provides more complete guidance regarding lawyers' movement between the public and private sectors. However, the Committee added the language of DR 8-101(A) as paragraph (a) in order to make this Rule a more complete statement regarding the particular responsibilities of lawyers who are public officials. Additionally, to make paragraph (b) consistent with similar provisions under Rule 1.9(a) and (b), the Committee modified the paragraph to require consent to representation by both the current client and the lawyer's former government agency.

Rule of Professional Conduct 1.15

The amendment to RPC 1.15 clarifies that money held by a lawyer on behalf of a client must be held in a trust account, while other property may be placed in a safe deposit box or other place of safekeeping.  As it was previously written, Rules 1.15(a) appeared to permit a lawyer to place money held on behalf of a client into a safe deposit box rather than a trust account.  The Court also replaced the word "monies" with "funds" in Comment 1 to be consistent with the language in the remainder of the Rules and Comments.

The rule now reads as follows, in pertinent part (additions noted in red):

RULE 1.15 Safekeeping Property

(a) Depositing Funds.

(1) All funds received or held by a lawyer or law firm on behalf of a client or a third party, or held by a lawyer as a fiduciary, other than reimbursement of advances for costs and expenses shall be deposited in one or more identifiable trust accounts; all other property held on behalf of a client should be or placed in a safe deposit box or other place of safekeeping as soon as practicable.

***

Rule of Professional Conduct 5.4

The amendments to Rule of Professional Conduct 5.4 bring subpart (d)(2) into alignment with Virginia Code § 54.1-3902(B)(1).  The statute permits a nonlawyer to serve as the secretary, treasurer, office manager or business manager of a professional entity that is authority to practice law.  The rule change now provides an exception when a nonlawyer corporate officer is authorized by law.

The rule now reads as follows (additions noted in red):

 Rule 5.4 Professional Independence of a Lawyer

***

(d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:

(1) a nonlawyer owns any interest therein, except as provided in (a)(3) above, or except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;

(2) a nonlawyer is a corporate director or officer thereof, except as permitted by law; or

(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

***

Amendments to Rule of Professional Conduct 5.5

On December 13, 2013, the Court entered an order, effective immediately, amending Rule of Professional Conduct 5.5, Comments 5 and 13.  Rule 5.5(d)(4) permits temporary and occasional practice by foreign lawyers under certain circumstances.   

The amendment to Comment [13] clarifies that Rule 5.5(d)(4) permits U.S. admitted lawyers, not admitted in Virginia, to engage in temporary and occasional practice under this subsection. The amendment to Comment [5] clarifies that Rule 5.5(d)(4) identifies circumstances in which both U.S. lawyers and lawyers admitted in a foreign nation may provide legal services on a temporary basis even though they are not licensed to practice in Virginia.

The comments [5] and [13]were amended to read as follows (strikeouts indicate deleted text):

[5] Paragraph (d)(4)(i), (ii) and (iii) identifies circumstances in which a Foreign Lawyer may provide legal services on a temporary basis in Virginia that do not create an unreasonable risk to the interests of their clients, the public, or the courts. The fact that conduct is not so identified does not imply that the conduct is or is not authorized. Except as authorized by this rule or other law, a Foreign Lawyer may not establish an office or other systematic and continuous presence in Virginia without being admitted to practice generally here.

[13] Paragraph (d)(4)(iv) permits a Foreign Lawyer to provide certain legal services on a temporary basis in Virginia that arise out of or are reasonably related to that lawyer’s practice in a jurisdiction in which the Foreign Lawyer is admitted but are not within paragraphs (d)(4)(ii) or (d)(4)(iii). These services include both legal services and services that nonlawyers may perform but that are considered the practice of law when performed by lawyers.  Paragraph (d)(4)(iv) applies to a Foreign Lawyer admitted to practice only in a foreign nation.

AMENDMENTS TO PARAGRAPH 13 OF PART 6, § IV

The Supreme Court, by order entered January 31, 2014, effective immediately, made three changes to Paragraph 13, which sets forth the procedural rules for disciplinary cases. 

The change to Paragraph 13-1 corrected the cite to the Code of Virginia concerning appointment of Bar Counsel.

13-1     DEFINITIONS

*   *    *

“Bar Counsel” means the Attorney who is appointed as such by Council and who is approved by the Attorney General pursuant to Va. Code §2.1-122(c) 2.2-510, and such deputies, assistants, and Investigators as may be necessary to carry out the duties of the office, except where the duties must specifically be performed by the individual appointed pursuant to Va. Code §2.1-122(c) 2.2-510.

The changes to Paragraph 13-13 will ease the restrictions involving imputation of conflicts of interest for attorneys representing respondents in bar disciplinary actions. These revisions will allow more attorneys to participate in the disciplinary system as counsel for respondents, while maintaining disqualification in appropriate circumstances.

13-13   Participation and Disqualification of Counsel

            *   *   *

C.        Disqualification. An Attorney shall not represent a Respondent at any time with respect to a Complaint or allegation of Misconduct:

                        1.         While such Attorney is a current employee or current officer of the Bar or is a member of Council, COLD, the Board, or a District Committee;

                        2.         For 90 days after such Attorney ceases to be an employee or officer of the Bar or a member of Council, COLD, the Board, or a District Committee;

                        3.         At any time, after such Attorney ceases to be an employee or officer of the Bar or a member of Council, COLD, the Board, or a District Committee, if such Attorney was personally involved in the subject matter of the Complaint, allegation of Misconduct or any related matter while acting as such employee, officer or member;

                        4.         At any time after such Attorney ceased to be a liaison from COLD to a District Committee before which the Disciplinary Proceeding involving such Complaint or Charge of Misconduct was pending during the time such Attorney was such liaison; or

                        5.         If such Attorney is a partner or an associate of, or is a member, shareholder or has a similar relationship with any Attorney described in the preceding subparagraph C.1 through C.4. an Attorney who is a current member of COLD or an officer of the Bar, or who was a member of COLD or an officer of the Bar within the previous 90 days.

                        6.         If such Attorney is a partner or an associate of, or is a member, shareholder or has a similar relationship with an Attorney who is a current member of the Board or was a member of the Board within the previous 90 days, unless the Attorney’s representation of the Respondent with respect to a Complaint or allegation of Misconduct preceded the Board member’s appointment to the Board.  In such cases, the Attorney may continue to represent the Respondent as follows:

a.         Before a Three Judge Court in proceedings conducted pursuant to Va. Code § 54.1-3935, or any appeal therefrom;

b.         Before any District Committee.

                        7.         If such Attorney is a partner or an associate of, or is a member, shareholder or has a similar relationship with an Attorney who is a member of a District Committee, before that District Committee, or if the District Committee is divided into sections, before the District Committee section of which the Attorney’s partner or associate is a member.

D.        No Imputation of Conflict.  Except as set forth in subparagraph C, there shall be no imputation of conflict that disqualifies an Attorney from representing a Respondent with respect to a Complaint or Charge of Misconduct.

            *   *   *  *

The amendments to Paragraph 13-26 add new language with a cross-reference to Rule 5:28 of the Rules of Court which allows the Virginia State Bar to file assignments of cross-error in the event that a respondent appeals a disciplinary action to the Supreme Court of Virginia.  Also added is a cross-reference to Rule 5:21(b) of the Rules of Court, which sets forth specific procedures for perfecting and prosecuting appeals from the Disciplinary Board and three-judge circuit courts.  Because Supreme Court Rule 5:21(b) overrides existing language in Paragraph 13-26, that language has been removed.  The Court also amended Supreme Court Rule 5:21.

13-26   APPEAL FROM BOARD DETERMINATIONS

A.        Right of Appeal.  As a matter of right any Respondent may appeal to this Court from an order of Admonition, Public Reprimand, Suspension, or Disbarment imposed by the Board using the procedures outlined in Rule 5:21(b) of the Rules of the Supreme Court of Virginia.  An appeal shall lie once the Memorandum Order described in this Paragraph has been served on the Respondent.  No appeal shall lie from a Summary Order.  If a Respondent appeals to the Supreme Court, then the Bar may file assignments of cross-error pursuant to Rule 5:28 of the Rules of the Supreme Court of Virginia.

B.        Notice of Appeal.  The Respondent shall file with the Clerk of the Disciplinary System a notice of appeal and assignments of error within 30 days after the Memorandum Order of the Board is served on the Respondent.  This action within the time prescribed is jurisdictional.

C.        Further Proceedings.  Further proceedings shall be as provided in this Court’s procedure for filing an appeal from a trial court and procedure following perfection of appeal.  For the purposes of determining dates of filing, the date of filing the record with the clerk of this Court shall be deemed to be the date of the issuance of the certificate of the clerk of this Court under Rule 5:23.  The Clerk of the Disciplinary System shall immediately notify the Respondent and his counsel, if any, by certified mail, of the date on which the record is filed.

DB.     Determination.  This Court shall hear the case and make such determination in connection therewith as it shall deem right and proper.

EC.      Office of the Attorney General.  In all appeals to this Court, the Office of the Attorney General, or the Bar Counsel, if so requested by the Attorney General, shall represent the interests of the Commonwealth and its citizens as appellees.

F.         Stay Pending Appeal.  Upon the entry by the Board of either a Summary or Memorandum Order of Suspension, this Court may, upon petition of the Respondent, stay the effect of such an order of Suspension prior to or during the pendency of the appeal.  Any order of Admonition or Public Reprimand shall be automatically stayed prior to or during the pendency of an appeal therefrom.  No stay shall be granted in cases where the Respondent’s License has been revoked by either the Summary or Memorandum Order of the Board.

Rule 5:21.  Special Rules Applicable to Certain Appeals of Right

(b) Appeals from the Virginia State Bar Disciplinary Board of Three-Judge Circuit

Court Determination. --

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(5) Stay Pending Appeal. The Respondent may file a motion with the clerk of this Court requesting a stay pending appeal of an order suspending or revoking the Respondent’s license. The Respondent must file four copies of the motion for stay along with a copy of the order imposing the suspension or revocation and a copy of the Respondent’s notice of appeal, which must contain the date stamp of the clerk showing the date the notice of appeal was filed.  Any order of Admonition or Pubic Reprimand shall be automatically stayed prior to or during the pendency of an appeal of the order.

Proposed Emergency Legal Services rule

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.

Sample VSB Meetings and Programs

  • March 7, 2014 | VSB Solo & Small Firm/Regional Bench Bar Conference, Danville
  • May 2, 2014 | Tenth Annual Indigent Defense Training Seminar, Richmond
  • May 15, 2014 | Past Presidents’ Dinner, Richmond
  • May 19, 2014 | VSB TECHSHOW
  • May 23, 2014 | VSB Solo & Small Firm Forum, Staunton
  • June 4, 2014 | VSB/YLC Admission & Orientation Ceremony, Richmond
  • June 11, 2014 | VSB Executive Committee meeting, Virginia Beach
  • June 12, 2014 | VSB Council meeting, Virginia Beach
  • June 12-15, 2014 | VSB Annual Meeting, Virginia Beach
Updated: Aug 07, 2014