Report of the Office of Bar Counsel

Edward L. Davis

Overview
The Office of Bar Counsel [OBC] consists of the following departments: intake, ethics and discipline. 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 ethics department provides confidential ethics advice to Virginia lawyers through the bar’s ethics hotline or e-mail 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. 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.

Personnel Matters
Effective September 25, 2013, Edward S. Bosak became the newest Virginia State Bar investigator replacing Don Lange, who retired earlier last year.  Mr. Bosak brings a wealth of experience as an investigator and forensic accountant for the federal government.  Joyce Johnson joined as an administrative assistant last fall. 

Assistant Bar Counsel Kara McGehee departed for California June 30.  Long-time VSB legal secretary and executive assistant Gwen Evans will be retiring at the end of the calendar year. Unfortunately, due to budget constraints, these vacancies will not be filled this fiscal year. The OBC will continue 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.

Production
In fiscal year 2014 there were 186 public trials, agreed dispositions, and consents to revocation. The number of open cases as of June 30, 2014, was 485.  This represents a 22.7 percent reduction from the total of 628 one year ago and, more significantly, a 49.6 percent reduction from 963 five years ago. The number of “pre-013” district committee cases (eighteen) as of June 30, 2014, continues to be the lowest it has been since I began reporting this number in 2008. The new fiscal year begins with a total number of seventy-two “pre-014” cases, also the lowest reported in the past six years.  By comparison, the number was 250 on July 1, 2008.

These reductions reflect an increase in the processing of cases the past year, especially in Northern Virginia, as well as the quality of attorneys and staff that we now have.  To better track aging cases, we will begin monitoring all cases more than 180 days old on a monthly basis under the watchful eye of the Standing Committee on Lawyer Discipline.

Initiative to go paperless through the Enterprise Content Retention Management (ECRM) document management program:  The OBC formed a committee to plan the Discipline Department’s integration into the new document management program. The committee, led by Assistant Bar Counsel Renu Brennan, completed its plan for the Discipline department’s integration into the document management program this past spring. As a result, the Professional Regulation staff completed its training on schedule to assimilate the program. Implementing this paperless program presents a significant challenge to productivity, especially with the hiring freeze mentioned above. It is the intent of the OBC to accomplish this transition with as little impact as possible.  

Changes to Procedural Rules and Rules of Professional Conduct
On January 31, 2014, the Supreme Court of Virginia approved amendments to the Rules of Court, Part Six, Section IV, Procedure for Disciplining, Suspending, and Disbarring Attorneys, Paragraph 13-13, Participation and Disqualification of Counsel, allowing more attorneys to represent respondents at disciplinary proceedings.  

At the Annual Meeting on June 12, 2014, the Virginia State Bar Council approved for consideration by the Supreme Court of Virginia proposed Rule of Professional Conduct 1.10, Imputed Disqualification:  General Rule.

Council also approved for consideration proposed Rule of Professional Conduct 5.8, Procedures for Lawyers Leaving Law Firms and Dissolution of Law Firms

Matters in the Supreme Court of Virginia

  1. Reinstatement Cases

On February 11, 2014, the Supreme Court of Virginia approved the Disciplinary Board’s recommendation to reinstate the law license of Ricky Gene Young, subject to his reimbursement of $11,398.85 to the Client Protection Fund, passing the written portion of the Virginia Bar Examination, and paying his bar dues and assessment.

On June 6, 2014, the Supreme Court of Virginia approved the Disciplinary Board’s recommendation to reinstate the law license of Kristen Dawn Dean subject to her passing the written portion of the Virginia Bar Examination.

  1. Appeals to the Supreme Court of Virginia

By order entered April 17, 2014, the Supreme Court of Virginia affirmed in part and reversed and remanded in part the appeal by attorney Neil Kuchinsky of a public reprimand issued by the Third District Committee, Section I, and affirmed by a three-judge circuit court. The Supreme Court affirmed violations of Rules 1.8a and 8.4a of the Rules of Professional Conduct, but reversed the underlying decisions concerning Rule 3.4d and remanded the case for reconsideration of sanction.  A three-judge circuit court will hold a rehearing on the sanction.

  1. Appeals Pending before the Supreme Court of Virginia  

Another attorney, Eric Livingston, noted the appeal of a Public Reprimand with Terms also imposed by the Third District Committee, Section I, and affirmed by the Disciplinary Board following a previous remand from the Supreme Court of Virginia. The Office of the Attorney General will represent the bar before the Supreme Court of Virginia once again.

Updated: Jul 21, 2014