Report of the Executive Director/Chief Operating Officer

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 32,378 (which includes corporate counsel admittees), an increase of 1% over last year.

 

2014-15

2015-16

Active

31,260

31,455

Corporate Counsel Admittees

938

923

Corporate Counsel Registrants

536

546

Associate

13,082

13,332

Judicial (includes active and retired)

1,363

1,399

Retired/Disabled

2,401

2,669

Total

49,580

50,324

 

 

 

 

 

 

 

 

 

 

 

 



Bar Activities, Officers, and Council During 2015-2016

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

Ed Weiner of Fairfax served as president of the bar from June 21, 2015, until June 16, 2016.  President Weiner advanced the mission of the Virginia State Bar by promoting the efforts of the Diversity Conference, promoting Jazz for Justice programs to help fund access to justice programs, supporting the pro bono efforts of the bar, 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.  His leadership as president of the Virginia State Bar was exemplified by his unwavering commitment to improving the profession and to protecting and informing the public;

Ed Weiner became president of the VSB at the conclusion of the 2015 Annual Meeting.  Michael Robinson of Tysons Corner won a three-way contested election for the office of president-elect in 2014, and he officially became president-elect on Saturday, June 20, 2015. 

Mr. Robinson served ex-officio on the VSB Executive Committee during 2015-2016 as president-elect.  Nancy C. Dickenson and Leonard C. Heath, Jr. continued 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.

 

Newly Appointed Council Members-at-Large effective July 1, 2015

Marni E. Byrum
Alexandria

Afshin Farashahi
Virginia Beach

Reappointed Council Member at-Large

Lorrie A. Sinclair, Leesburg

2015-16 Conference Chairs

CLBA Chair – Jack W. Burtch, Jr., Richmond                                           

Diversity Conference Chair – Providence E. Napoleon, Washington, D.C.

Senior Lawyers Conference  Chair – Robert T. Vaughan, Jr., Danville

Young Lawyers Conference President – Nathan J. Olson, 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.


Highlights from the FY2015-2016 Council Meetings

1. October 23, 2015 Meeting

Council approved the Nominating Committee report.

2. February 27, 2016 Meeting

Council debated whether the Diversity Conference should be funded with dues dollars.  By vote of 52 to 7, Council approved the Diversity Conference being funded by VSB dues.

3. June 16, 2016 Meeting

At its meeting on June 16, 2016, in Virginia Beach, the Virginia State Bar Council heard the following significant reports and took the following actions:

 

Amendment to Rules of Professional Conduct 1.6 and 3.3

By a vote of 52-7, the council approved the proposed amendments to Rules of Professional Conduct 1.6: Confidentiality of Information, and 3.3: Candor Toward the Tribunal. The proposed amendments clarify a lawyer’s obligations when a client discloses an intent to commit perjury well in advance of trial, and when the lawyer can withdraw from the representation before the client’s intended perjury occurs.  The proposed amendments must be approved by the Supreme Court of Virginia before becoming effective.

 

Legal Ethics Opinion 1884

The council unanimously approved LEO 1884: Conflicts arising from a lawyer-legislator’s employment with a consulting firm owned by a law firm. The proposed opinion addresses a situation where a lawyer who is a member of the Virginia General Assembly joins a consulting firm owned by a law firm. The lawyer inquires whether the lawyers and non-lawyers in the consulting firm would be barred from lobbying the General Assembly. The Standing Committee on Legal Ethics concludes that both lawyers and non-lawyers in the consulting firm, as well as all lawyers in the law firm that own the consulting firm, would be barred from representing clients or otherwise lobbying before the General Assembly.  The proposed LEO must be approved by the Supreme Court of Virginia before becoming effective.

 

Budget

The council approved a $14.9 million budget for FY2016-17.  This is an increase of $277,000 over the 2015-16 operating budget.  The budget includes a 3 percent raise for VSB employees as authorized by the General Assembly, contingent on the state achieving the revenue forecast for FY2016.  Management reported that a savings of over $1million is being projected for FY2015-2016 over what was budgeted this time last year.

 

2016 Annual Meeting

The VSB 2016 Annual Meeting was hosted for the third time 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 2016 meeting went very well, with few complaints.

VSB Budget

The Supreme Court of Virginia and Council approved the FY2015-2016 budget.  The 5% cuts imposed the previous year were restored to operating expenditures.  The Court increased bar dues by $25 effective July 1, 2015 to $250.

 

JUDICIAL CANDIDATE EVALUATION COMMITTEE EVALUATIONS

The JCEC did not interview or evaluate candidates in FY2015-2016.  By way of followup, however, President Obama, based on the recommendations of Virginia Senators Mark Warner and Tim Kaine, appointed Elizabeth K. Dillon to be U.S. District Court judge for the Western District of Virginia.  Judge Dillon was one of the candidates evaluated to be Highly Qualified for the position after its interviews on March 26, 2014.  The report is available on the website at http://www.vsb.org/site/news/item/VSB_judicial_recommendations

FY2014 Audit Report

The audit report for FY2014, completed in May of 2016, 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. 

Clients’ Protection Fund

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.  Please refer to the Annual Report of the Clients’ Protection Fund for details of the Fund’s activity during FY2015-2016.

Enterprise Client Management Project

During FY2015-2016, the ECRM project continued with the successful completion of several major milestones including the implementation of a new secure digital workflow for case files between Professional Regulation and investigators in the field. ECRM was also implemented for the Ethics and Executive Management departments along with significant hardware and software upgrades. It should be noted that progress was slowed by re-assignment of internal resources to complete the implementation of the new Commonwealth of Virginia Accounting System, aka the Cardinal Project, and the slow return of IQ Consulting resources to the project after the funding reduction of the previous year.

 

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.  ALPS is now subject to SCC regulation and in the event of insolvency, ALPS insureds would have access to the Virginia Guarantee Fund. In May 2016, A.M. Best affirmed ALPS’ A- (Excellent) rating with Stable outlook. The VSB Special Committee on Lawyer Malpractice Insurance continued its work during FY2015-2016 in implementation of the 3% risk management fund created from gross written premium as part of the ALPS endorsement agreement permitted by statute.  This fund is maintained and utilized by ALPS as agreed by the committee and the ALPS management team in CLE programs held throughout Virginia.

Regulatory Changes

Changes to the Rules of Professional Conduct

 

Rule of Professional Conduct 1.10(a) and Comment [2a]

The Supreme Court of Virginia approved the proposed changes to Rule of Professional Conduct 1.10, effective July 31, 2015.  The redline version below shows the changes:

RULE 1.10     Imputed Disqualification: General Rule

(a) While lawyers are associated in a firm, none of them shall  represent a client when the lawyer knows or reasonably should know that any one of them practicing alone would be prohibited from doing so by Rules 1.6, 1.7, 1.9, or 2.10(e).

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Comment

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[2a] A lawyer or firm should maintain and use an appropriate system for detecting conflicts of interest. The failure to maintain a system for identifying conflicts or to use that system when making a decision to undertake employment in a particular matter may be deemed a violation of Rule 1.10(a) if proper use of a system would have identified the conflict.

 

Committee Commentary

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The amendments effective January 1, 2004, in paragraph (a), added the references to Rules 1.6 and 2.10(e), deleted the references to Rules 1.8(c) and 2.2; added paragraphs (d) and (e).

 

The amendments effective July 31, 2015, in paragraph (a), deleted “knowingly” and added “the lawyer knows or reasonably should know that…” and added Comment [2a].

 

Rules of Professional Conduct 5.5 and 8.3

Amendments to Rules of Professional Conduct 5.5 and 8.3 were approved by the Supreme Court of Virginia on November 17, 2015, effective February 1, 2016.  The changes are as follows (additions denoted by underlining; deletions by stippling):

 

Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law

 

 

(c) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

 

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Comment

[1a] For purposes of paragraphs (a), and (b), and (c) “Lawyer,” denotes a person authorized by the Supreme Court of Virginia or its Rules to practice law in the Commonwealth of Virginia including persons admitted to practice in this state pro hac vice.

 

Rule 8.3 Reporting Misconduct

 

(e) A lawyer shall inform the Virginia State Bar if:

(1) the lawyer has been disciplined by a state or federal disciplinary authority, agency or court in any state, U.S. territory, or the District of Columbia, for a violation of rules of professional conduct in that jurisdiction;

(2) the lawyer has been convicted of a felony in a state, U.S. territory, District of Columbia, or federal court;

(3) the lawyer has been convicted of either a crime involving theft, fraud, extortion, bribery or perjury, or an attempt, solicitation or conspiracy to commit any of the foregoing offenses, in a state, U.S. territory, District of Columbia, or federal court.

 

The reporting required by paragraph (e) of this Rule shall be made in writing to the Clerk of the Disciplinary System of the Virginia State Bar not later than 60 days following entry of any final order or judgment of conviction or discipline.

 

Rules of Professional Conduct 1.1 and 1.6

Amendments were made to Rules 1.1 (Competence) and 1.6 (Confidentiality) by order dated December 17, 2015, effective March 1, 2016.  The changes are as follows (additions noted by underlining):

RULE 1.1        Competence

 

            *  * * *

Comment

Maintaining Competence

[6] To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education in the areas of practice in which the lawyer is engaged. Attention should be paid to the benefits and risks associated with relevant technology. The Mandatory Continuing Legal Education requirements of the Rules of the Supreme Court of Virginia set the minimum standard for continuing study and education which a lawyer licensed and practicing in Virginia must satisfy. If a system of peer review has been established, the lawyer should consider making use of it in appropriate circumstances.  

RULE 1.6        CONFIDENTIALITY

 

            * * * *

 

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

 

Comment

 

***

 

Acting Reasonably to Preserve Confidentiality

 

[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.

 

[20] Paragraph (d) makes clear that a lawyer is not subject to discipline under this Rule if the lawyer has made reasonable efforts to protect electronic data, even if there is a data breach, cyber-attack or other incident resulting in the loss, destruction, misdelivery or theft of confidential client information. Perfect online security and data protection is not attainable.  Even large businesses and government organizations with sophisticated data security systems have suffered data breaches. Nevertheless, security and data breaches have become so prevalent that some security measures must be reasonably expected of all businesses, including lawyers and law firms.  Lawyers have an ethical obligation to implement reasonable information security practices to protect the confidentiality of client data. What is “reasonable” will be determined in part by the size of the firm. See Rules 5.1(a)-(b) and 5.3(a)-(b). The sheer amount of personal, medical and financial information of clients kept by lawyers and law firms requires reasonable care in the communication and storage of such information. A lawyer or law firm complies with paragraph (d) if they have acted reasonably to safeguard client information by employing appropriate data protection measures for any devices used to communicate or store client confidential information.

To comply with this Rule, a lawyer does not need to have all the required technology competencies.  The lawyer can and more likely must turn to the expertise of staff or an outside technology professional.  Because threats and technology both change, lawyers should periodically review both and enhance their security as needed; steps that are reasonable measures when adopted may become outdated as well.

[21] Because of evolving technology, and associated evolving risks, law firms should keep abreast on an ongoing basis of reasonable methods for protecting client confidential information, addressing such practices as:

(a) Periodic staff security training and evaluation programs, including precautions and procedures regarding data security;

(b) Policies to address departing employee’s future access to confidential firm data and return of electronically stored confidential data;

(c) Procedures addressing security measures for access of third parties to stored information;

(d) Procedures for both the backup and storage of firm data and steps to securely erase or wipe electronic data from computing devices before they are transferred, sold, or reused;

(e) The use of strong passwords or other authentication measures to log on to their network, and the security of password and authentication measures; and

(f) The use of hardware and/or software measures to prevent, detect and respond to malicious software and activity.

 

Amendments to Paragraph 10 of Part Six § IV of the Rules of the Supreme Court of Virginia

(1) The Supreme Court of Virginia amended Paragraph 10-2.C. and 10-3.A., effective October 30, 2015, to provide that all legal advisory opinions (LEOs) will be reviewed by Council if adopted or modified and then sent to the Court for review. 

 

10-2. ADVISORY OPINIONS OR RULES.

C.        Notice and Comments. The Committee shall provide Notice and opportunity for public comment on proposed Advisory Opinions or proposed Rules.   Public comments shall be directed to the Executive Director of the Virginia State Bar.  For proposed Advisory Opinions, the Committee will consider any comments received and either publish  adopt, modify or withdraw the opinion as an Advisory Opinion. If the Advisory Opinion is adopted or modified, the Committee shall or ask for Council review in accordance with section 10-3.  Advisory Opinions express the judgment of the Committee and are not binding on any judicial or administrative tribunal.  In the case of a Rule, the Committee will consider any comments received and then submit the Rule to Council for consideration in accordance with section 10-3.

                       

10-3. ADVISORY OPINION OR RULE CONSIDERATION BY COUNCIL.

 

A.        Review.  After considering all materials and written comments, Council may approve, modify, or disapprove any Advisory Opinion or Rule by a majority vote of those present and voting.  If Council approves or modifies an Advisory Opinion or Rule, it mayshall be published as an Advisory Opinion of the Bar and have the same legal effect as a Committee-issued opinion.  Council may determine to submit the Advisory Opinion or Rule sent to the Court for review along with copies of all public comments.

 

(2)  The Court further amended Paragraph 10, effective May 1, 2016, sunsetting the Standing Committee on the Unauthorized Practice of Law Committee and making other changes on how UPL matters are handled.  The changes are as follows:

 

10.  Promulgation of Legal Ethics, Unauthorized Practice of Law Opinions, and Rules of Court; Informal Staff Opinions of Ethics Counsel; and Complaints of Unauthorized        Practice of Law.

 

10-1. DEFINITIONS

As used in this Paragraph, the following terms shall have the meaning herein stated unless the context clearly requires otherwise:

"Advisory Opinion" means a written statement of the subject involved, the question presented, the Rule of Court or other precedents relied upon, the opinion reached, and the reasons therefore.

"Bar" means the Virginia State Bar.

"Committee" means the Standing Committee on Legal Ethics or the Standing Committee on Unauthorized Practice of Law.

"Council" means the Council of the Virginia State Bar.

"Court" means the Supreme Court of Virginia.

"Ethics Counsel" means the Ethics Counsel or an assistant ethics counsel of the Virginia State Bar.

"Member" means any active member of the Virginia State Bar or a Foreign Lawyer as defined under Rule 5.5(d)(1) of the Rules of Professional Conduct.

"Notice" means publishing in the Virginia Lawyer Register and at a minimum posting on the Virginia State Bar’s website for at least 30 calendar days.

"Rule" means any proposed new Rule of Court or any modification, amendment, or proposed repeal of any existing Rule of Court promulgated by either the Standing Committee on Legal Ethics or the Standing Committee on Unauthorized Practice of Law.

 

10-2. ADVISORY OPINIONS OR RULES.

A.        Request for Advisory Opinion.  Any Member may request a legal ethics opinion or unauthorized practice of law opinion. The request shall be submitted as a hypothetical on a form approved by the Committee.  A request for an Advisory Opinion will be reviewed by Ethics Counsel and forwarded to the appropriate Committee for consideration.  In its discretion, the Committee may decline to render an Advisory Opinion regarding a previously resolved issue, or any matter that is currently the subject of any disciplinary proceeding or litigation. 

B.        Rules. The Committee may propose a new Rule or propose amendments, modifications, or repeal of existing Rules at its discretion.  For rule changes that declare conduct as the unauthorized practice of law, the Bar shall seek comment from the Attorney General’s office analyzing any restraint on competition that might result from the adoption of the proposed change.

C.        Notice and Comments. The Committee shall provide Notice and opportunity for public comment on proposed Advisory Opinions or proposed Rules.   Public comments shall be directed to the Executive Director of the Virginia State Bar.  For proposed Advisory Opinions, the Committee will consider any comments received and either adopt, modify or withdraw the opinion as an Advisory Opinion. If the Advisory Opinion is adopted or modified, the Committee shall ask for Council review in accordance with section 10-3.  Advisory Opinions express the judgment of the Committee and are not binding on any judicial or administrative tribunal.  In the case of a Rule, the Committee will consider any comments received and then submit the Rule to Council for consideration in accordance with section 10-3.

D.        Appeal. After the comment period, any party requesting an Advisory Opinion who disagrees with the result may appeal the opinion to Council for approval, modification, or disapproval. 

ED.      Unauthorized Practice of Law Advisory Opinions.  An unauthorized practice of law Advisory Opinion in which the Committee concludes that the conduct in question constitutes or would constitute the unauthorized practice of law shall be sent to Council in accordance with section 10-3.  For these Advisory Opinions, the Bar shall seek comment from the Attorney General’s office analyzing any restraint on competition that might result from the promulgation and implementation of the opinion.

FE.      Confidentiality.  All Committee deliberations, memoranda, correspondence, and work product shall be confidential and privileged from discovery or subpoena and will not be provided to anyone absent a court order. 

                       

10-3. ADVISORY OPINION OR RULE CONSIDERATION BY COUNCIL.

 

A.        Review.  After considering all materials and written comments, Council may approve, modify, or disapprove any Advisory Opinion or Rule by a majority vote of those present and voting.  If Council approves or modifies an Advisory Opinion or Rule, it shall be sent to the Court for review along with copies of all public comments.

B.        Unauthorized Practice of Law Advisory Opinions.  If Council concurs by a majority vote of those present and voting that the proposed conduct in any unauthorized practice of law Advisory Opinion constitutes the unauthorized practice of law, the Advisory Opinion shall be sent to the Court for review along with copies of all public comments.

 

  1. ADVISORY OPINION OR RULE REVIEW BY THE SUPREME COURT OF VIRGINIA.

A.        Review. After considering all materials submitted to it, the Court shall approve, modify, or disapprove any Advisory Opinion or Rule.

 

10-5. INFORMAL STAFF OPINIONS OF ETHICS COUNSEL.

A.        Informal Advice.  At the request of a Member, Ethics Counsel shall provide informal advice or opinion based on the facts provided.

B.        Protection. Ethics Counsel shall not be compelled to testify, via subpoena or otherwise, in any judicial or adjudicative proceeding, except on behalf of a respondent in disciplinary proceedings of the Virginia State Bar, regarding any advice or opinion provided to that attorney.  Except as stated herein, Ethics Counsel shall not be subject to subpoena or otherwise compelled to testify or to produce any documents in any judicial or adjudicative proceeding or to testify as an expert witness regarding legal ethics or the practice of law.  In a disciplinary proceeding, testimony of Ethics Counsel shall be limited to the substance of any communications by and between Ethics and the Member, where such communications are an issue in the proceeding.

C.        Confidentiality.  All communications between Ethics Counsel and any Member requesting advice or opinion shall be confidential.  Ethics Counsel shall not disclose the content of any such discussion without the express written consent of the Member to whom Ethics Counsel provided such advice or opinion.  No Member shall withhold consent if the Member is claiming, in the course of a disciplinary investigation or hearing, that the Member relied on the advice of Ethics Counsel.

D.        Use of Informal Advice in Collateral Litigation.  Informal advice of Ethics Counsel is advisory only and expresses the judgment of the Ethics Counsel and is not binding on the Court, Council, Committee or any judicial or administrative tribunal.  Except as provided herein in connection with attorney disciplinary proceedings, informal advice of Ethics Counsel shall not be used, admitted, introduced, argued or cited in any litigation or before any judicial or administrative tribunal for the purpose of seeking disqualification of a lawyer or law firm.

10-6. COMPLAINTS OF UNAUTHORIZED PRACTICE OF LAW.

 

A.        Review of ComplaintsAny Ethics Counsel shall review all written complaints alleging the unauthorized practice of law shall be reviewed by Ethics Counsel and either dismissed the complaint, if no violation is identified in the complaint, or referred open it for investigation with full report to the Committee. If the complaint is opened, Ethics Counsel shall send notice of the complaint to the Respondent, requesting a written response. After reviewing a report of investigation, the Committee may conduct a hearing to take testimony review of any response from witnesses and review evidence.  By majority vote the Committee may dismiss the complaint due to insufficient evidence or other good cause, Respondent, or if Respondent submits no response, Ethics Counsel may dismiss the complaint, recommend a disposition subject to review by the Clerk of the Disciplinary System in accordance with paragraph (E), or refer the complaint for full investigation. with cautionary language, or enter a finding of probable cause to believe there is unauthorized practice of law.

B.        Referral.  If a majority of the Committee finds probable cause to believe there is unauthorized practice of law, the Committee may dismiss the complaint by letter agreement in which the party against whom the complaint is pending agrees to cease the activity; or refer the complaint to the Attorney General, a Commonwealth’s Attorney, or other appropriate agency for action.

C.        Summons or Subpoena.  If a summons or subpoena is necessary for investigation of a matter outlined in section 10-6.A., Ethics Counsel may issue such a summons or subpoena in the name of the Commonwealth.  The CommitteeEthics Counsel or a Virginia State Bar investigator may use a summons to examine a witness or to obtain statements from persons having knowledge about the subject of the complaint.

DC.     Enforcement of Summons or Subpoena.  Every Circuit Court shall have power to enforce a summons or subpoena issued by the Ethics Counsel pursuant to this paragraph and to adjudge disobedience thereof as contempt.

  1.  Review of Investigative Report and Disposition.  After review of an investigative report, Ethics Counsel may dismiss the complaint or, if Ethics Counsel believes the investigation establishes probable cause that the Respondent engaged in UPL, Ethics Counsel may, after an independent review by the Clerk of the Disciplinary System: (a) dismiss the complaint with a letter of caution; (b) issue a letter agreement in which the Respondent agrees to cease the activity challenged as UPL; or (c) refer the investigation to the Attorney General, a Commonwealth’s Attorney, or other appropriate agency for action. 
  2.  Review by the Clerk of the Disciplinary System.  Other than decisions to dismiss a complaint for insufficient evidence or other good cause, the Clerk of the Disciplinary System, a non-lawyer, shall actively supervise and independently review all recommendations of Ethics Counsel regarding disposition of a complaint.  The Clerk may veto or modify the recommendations, after undertaking an independent analysis of the recommendation.  The Clerk’s decisions shall be final, and not subject to review by Ethics Counsel.

 

Amendments to Paragraph 13 of Part Six § IV of the Rules of the Supreme Court of Virginia

 

Amendments to Paragraph 13-11, 13-25 and 13-30, were approved by the Supreme Court of Virginia effective March 1, 2016:

13.       PROCEDURE FOR DISCIPLINING, SUSPENDING, AND DISBARRING ATTORNEYS

 

*    *    *

 

13-11   LIMITED RIGHT TO DISCOVERY

 

There shall be no right to discovery in connection with disciplinary matters, including matters before three-judge Circuit Courts, except:

            A.        Issuance of such summonses and subpoenae as are authorized; and

B.        Bar Counsel shall furnish to Respondent a copy of the Investigative Report considered by the Subcommittee when the Subcommittee set the Complaint for hearing before the District Committee or certified the Complaint to the Board, with the following limitations:

1.         Bar Counsel shall not be required to produce any information or document obtained in confidence from any law enforcement or disciplinary agency, or any documents that are protected by the attorney-client privilege or work product doctrine, unless attached to or referenced in the Investigative Report;

2.         Bar Counsel shall not be required to reveal other communications between the Investigator and Bar Counsel, or between Bar Counsel and the Subcommittee; and

3.         Bar counsel shall make a timely disclosure to the Respondent of all known evidence that tends to negate the Misconduct of the Respondent or mitigate its severity or which, upon a finding of Misconduct, would tend to support imposition of a lesser sanction than might be otherwise imposed.  Bar Counsel shall comply with the duty to disclose this evidence regardless of whether the information is confidential under this Paragraph.  If Bar Counsel discloses under this subparagraph information that is otherwise confidential, Bar Counsel shall promptly notify the Attorney or Complainant who is the subject of the disclosure unless Bar Counsel decides that giving such notice will prejudice a disciplinary investigation.  Notice shall be in writing and shall be deemed effective when mailed by first-class mail to the Bar’s last known address of the subject Complainant or Attorney.

 

*    *    *

 

13.       PROCEDURE FOR DISCIPLINING, SUSPENDING, AND DISBARRING ATTORNEYS

 

*    *    *

 

13-25   BOARD PROCEEDINGS FOR REINSTATEMENT

 

A.        Waiver of Confidentiality.  The filing by a former Attorney of a petition for Reinstatement shall constitute a waiver of all confidentiality relating to the petition, and to the Complaint or Complaints that resulted in, or were pending at the time the former Attorney resigned or his or her License was revoked.

B.I.      Investigation of Impairment in Reinstatement Matters.  Upon receipt of notice or evidence that an individual seeking Reinstatement has or may have an Impairment, Bar Counsel shall cause an Investigation to be made to determine whether there is reason to believe that the Impairment exists.  As part of the Investigation of whether an Impairment exists, and for good cause shown in the interest of public protection, Bar Counsel may petition the Board to order the individual:

1.         To undergo at his or her expense a psychiatric, physical or other medical examination by a qualified physician or other health care provider selected by the Board; and

2.         To provide appropriate releases to health care providers authorizing the release of his or her psychiatric, physical or other medical records to Bar Counsel and the Board for purposes of the Investigation and any subsequent Reinstatement Proceedings.

The Board shall hold a hearing to determine whether such examination(s) and releases(s) are appropriate, upon notice to the individual petitioning for Reinstatement.

C.B.     Readmission After Resignation.  If after resigning from the Bar, a former Attorney wishes to resume practicing law in the Commonwealth of Virginia, the former Attorney must apply to the Board of Bar Examiners, satisfy the character and fitness requirements and pass the Bar examination.  Before being readmitted to the Bar, the former Attorney must also satisfy any membership obligations that were delinquent when the former Attorney resigned.

D.H.    Reinstatement After Disciplinary Suspension for More than One Year.  After a Suspension for more than one year, the License of the Attorney subject to the Suspension shall not be reinstated unless the Attorney demonstrates to the Board that he or she has:

1.         Attended 12 hours of continuing legal education, of which at least two hours shall be in the area of legal ethics or professionalism, for every year or fraction thereof of the Suspension;

2.         Taken the Multistate Professional Responsibility Examination since imposition of discipline and received a scaled score of 85 or higher;

3.         Reimbursed the Bar’s Clients’ Protection Fund for any sums of money it may have paid as a result of the Attorney’s Misconduct;

4.         Paid to the Bar all Costs that have been assessed against him or her, together with any interest due thereon at the judgment rate at the time the Costs are paid; and

5.         Reimbursed the Bar for any sums of money it may have paid as a result of a receivership involving Petitioner's law practice.

E.C.     Petition for Reinstatement After Revocation.  After a Revocation, a Petitioner may file with the Clerk of the Disciplinary System a petition for Reinstatement petition this Court for Reinstatement, setting forth in that petition the reasons why his or her License should be reinstated.  The Petitioner must comply with the requirements of subparagraph 13-25.F as a precondition to filing the petition.  Compliance with subparagraph 13-25.F shall be determined by the Clerk of the Disciplinary System after the petition is filed, and the Clerk of the Disciplinary System shall notify the Petitioner of compliance or noncompliance.  Upon a determination of compliance with the requirements of subparagraph 13-25.F, the Clerk of the Disciplinary System shall enter the petition on the docket of the Board and shall refer it to the office of Bar Counsel for investigation.  The Board may recommend approval or disapproval of the petition.  Final action on the petition shall be taken by the Supreme Court of Virginia.  The following requirements shall apply:  the petition shall be filed under oath or affirmation with penalty of perjury; no petition may be filed sooner than five years from the effective date of the Revocation; and the Petitioner must certify in the petition that he or she has met the requirements of the following subparagraph D.  This Court may deny the petition or refer it to the Board for recommendation, together with the record before the clerk of this Court.  The Board may recommend approval or disapproval of the petition.  Final action on the petition shall be taken by this Court.

F.D.     Threshold Requirements for Reinstatement After Revocation. Evidence Required for Reinstatement After Revocation.  After a Revocation, Petitioner’s License shall not be considered for Reinstatement reinstated unless the Petitioner has provided  proves by clear and convincing evidence of proof of compliance with the following requirements that Petitioner:

1.         No petition may be filed sooner than five years from the effective date of the Revocation;

2.         The petition has been filed under oath or affirmation with penalty of perjury;

3.1.      Within five years prior to the filing of the petition, Petitioner has attended 60 hours of continuing legal education, of which at least ten hours shall be in the area of legal ethics or professionalism;

4.2.      The Petitioner has Has taken the Multistate Professional Responsibility Examination and received a scaled score of 85 or higher;

5.3.      The Petitioner has Has reimbursed the Bar’s Clients’ Protection Fund for any sums of money it may have paid as a result of Petitioner’s Misconduct;

6.4.      The Petitioner has Has paid the Bar all Costs that have been previously assessed against Petitioner, together with any interest due thereon at the judgment rate;

7.5.      The Petitioner has Has reimbursed the Bar for any sums of money it may have paid as a result of a receivership involving Petitioner's law practice; and

6.         Is a person of honest demeanor and good moral character and possesses the requisite fitness to practice law.

8.E.      Bond Required for Reinstatement After Revocation.  The Petitioner has posted  shall post with his or her petition for Reinstatement a $5,000 cash bond for payment of Costs resulting from the Reinstatement Proceedings. 

G.J.     Reinstatement Proceedings After a Revocation HearingsIf the threshold requirements of subparagraph 13.25-F have been met, the following processes shall ensue: The Clerk of the Disciplinary System shall advise the Petitioner in writing upon receipt of a petition for Reinstatement from the clerk of this Court and arrange a hearing date with the Petitioner and Bar Counsel.

1.         Quorum.  A quorum shall be five members of the Board.

1.4.      Investigation.  Bar Counsel shall conduct such Investigation and make such inquiry as it deems appropriate.  On request of Bar Counsel, the Petitioner shall promptly sign such forms and give such permission as are necessary to permit inquiry of the Petitioner’s background through the Internal Revenue Service, the National Criminal Information Center, the National Criminal Information Network and any other similar information network or system. The petition for Reinstatement shall not proceed without such forms and permissions being signed by Petitioner and returned to Bar Counsel.

2.6.      Bill of Particulars.  On written request by Bar Counsel, served by certified mail, return receipt requested, a Petitioner seeking Reinstatement shall file with the Clerk of the Disciplinary System within 21 days after service of the request, an original and six copies of a bill of particulars setting forth the grounds for Reinstatement.  The petition for Reinstatement shall not proceed without such Bill of Particulars being filed with the Clerk of the Disciplinary System.

3.         Hearing Date.  The date of the hearing shall be determined by the Clerk of the Disciplinary System, in consultation with the Bar Counsel and the Petitioner.  Chair.  Upon the scheduling of a hearing date, the Clerk of the Disciplinary System shall file six copies of the available transcript, exhibits, pleadings, and orders from the original Disciplinary Proceeding.

4.5.      Notice.  Reasonable notice of filing of the petition and the date of the hearing shall be distributed by mail or electronic means  mailed by the Clerk of the Disciplinary System to all members of the Bar of the circuit in the jurisdictions in which the Petitioner resided, and of the circuit in which the Petitioner maintained a principal office, at the time of the Revocation or Suspension.  The Clerk of the Disciplinary System shall also distribute by mail or electronic means mail the notice to the members of the District Committee who heard the original Complaint, to members of the Board who heard the original Complaint, to the members of the District Committee for the judicial circuit in which the Petitioner currently resides, to the complaining witness or witnesses on all Complaints pending against the Petitioner before the Board, a District Committee or a court at the date of the Revocation or Suspension and to such other individuals as the Clerk of the Disciplinary System deems appropriate.  The Clerk of the Disciplinary System shall publish a synopsis of the petition in the Virginia Lawyer Register or Virginia Lawyer and in a newspaper of general circulation in the judicial circuit where the Petitioner currently resides and where the Petitioner maintained a principal office at the time of the Revocation or Suspension.  The entire petition, as well as the transcript, exhibits, pleadings and orders from the original Disciplinary Proceedings and Bill of Particulars, and exhibits together with the documents referred to in subparagraph 13-25.F D. above, shall be available for inspection and copying by interested persons at the office of the Bar on reasonable notice and on payment of costs incurred to make the copies.

5.         Proof of Good Character. Petitioner must prove by clear and convincing evidence that Petitioner is a person of honest demeanor and good moral character and possesses the requisite fitness to practice law.  After a Revocation, an attorney's license shall not be reinstated without such proof.

6.2.      Powers of the Board in Reinstatement Cases.  The Board is empowered to hold a hearing and make its recommendation to this Court either to approve or disapprove the petition.

            a.7.      Hearing.  On the date set for the hearing, the Petitioner shall have the right to representation by counsel, to examine and cross-examine witnesses and to present evidence.  The testimony and other incidents of the hearing shall be transcribed and preserved, together with all exhibits (or copies thereof) received into evidence or refused.  Bar Counsel shall appear and represent the Commonwealth and its citizens.  Bar Counsel shall have the right to cross-examine, call witnesses and present evidence in opposition to the petition.  Board members may examine witnesses called by either party.  Legal advice to the Board, if required, shall be rendered by the Office of the Attorney General.

            b.8.      Factors to be Considered.  In considering the matter prior to making a recommendation to this Court the Board may consider the following factors:  , but is not bound by, the factors spelled out In the Matter of Alfred Lee Hiss, VSB Docket No. 83-26 (Va. Sup. Ct. July 2, 1984).

i.          The severity of the Petitioner’s Misconduct, including, but not limited to, the nature and circumstances of the Misconduct;

ii.         The Petitioner’s character, maturity and experience at the time of his or her Revocation;

iii.        The time elapsed since the Petitioner’s Revocation;

iv.        Restitution to the clients and/or the Bar;

v.         The Petitioner’s activities since Revocation, including, but not limited to, his or her conduct and attitude during that period of time;

vi.        The Petitioner’s present reputation and standing in the community;

vii.       The Petitioner’s familiarity with the Virginia Rules of Professional Conduct and his or her current proficiency in the law;

viii.The sufficiency of the punishment undergone by the Petitioner;

ix.        The Petitioner’s sincerity, frankness and truthfulness in presenting and discussing factors relating to his Revocation and Reinstatement; and

x.         The impact upon public confidence in the administration of justice if the Petitioner’s License is restored.

c.9.      Character Witnesses.  Up to five character witnesses supporting and up to five character witnesses opposing the petition shall be heard.  In addition, the Board may consider any letters submitted regarding the Petitioner’s character and fitness.

d.         Character and Fitness Determination.  The Board shall offer an opinion in its recommendation as to whether the Petitioner is a person of honest demeanor and good moral character and possesses the requisite fitness to practice law.

e.10.    Determination by the Board.  The Board shall, within 60 days after the receipt of the transcript, forward the record and its recommendations to the Supreme Court of Virginia.  this Court with a A copy of the recommendation shall be forwarded to the Petitioner and Bar Counsel. 

i.          If the Board recommends Reinstatement A recommendation of approval, it may be conditioned upon Petitioner obtaining malpractice insurance coverage and/or a blanket fidelity bond or dishonesty insurance coverage in an amount(s) set by the Board from an approved professional insurance carrier for a definite term or on an ongoing basis.

ii.F.      Determination of Costs for Reinstatement After Revocation.  At the conclusion of the Reinstatement Proceeding. , the Board or the Clerk of the Disciplinary System shall determine the Costs associated with such Proceeding. and submit that determination to the clerk of his Court as part of the Board’s findings of fact.  The Clerk of the Disciplinary System shall refund any remaining surplus or shall assess to the Petitioner any deficiencies that exist and submit a report on same to the Clerk of the Supreme Court of Virginia as part of the Board’s recommendation order.

iii.G.    Additional Requirements After Approval of Petition.  Upon approval of a petition by this Court, the Petitioner shall meet the following requirements prior to and as a condition of his or her Reinstatement:

a)1.      Pay to the Bar any Costs assessed in connection with the Reinstatement Proceeding;

b)2.      Take and pass the written portion of the Virginia State Bar examination;

c)3.      If required by the Board, obtain and maintain a professional liability insurance policy issued by a company authorized to write such insurance in Virginia at the cost of the Petitioner in an amount and for such term as set by the Board; and

d)4.      If required by the Board, obtain and maintain a blanket fidelity bond or dishonesty insurance policy issued by a company authorized to write such bonds or insurance in Virginia at the Petitioner’s cost in an amount and for such term as set by the Board.

 

*    *    *

13-30 Confidentiality of Disciplinary Records and Proceedings

  1. Confidential Matters. Except as otherwise provided in this subparagraph 13-30, or in subparagraph 13-11, the following Disciplinary Proceedings, records, and information are confidential and shall not be disclosed:….

 

 

Amendments to Paragraph 13-4.E

Approved on August 21, 2015, effective immediately, the amendment to Paragraph 13-4.E exempts the ex-officio members of Council who serve one year as chairs and presidents of conferences of the Virginia State Bar from having to resign from district committees because of their service on Council.  The amendment reads in pertinent part:

No member of Council shall be a member of a District Committee; however, this rule shall not apply to the chair or president of any conference of the Virginia State Bar, such as the Conference of Local Bar Associations, Diversity Conference, Senior Lawyers Conference, or Young Lawyers Conference, who are ex officio members of Council. An ex-officio member of Council who is also a member of a District Committee shall not vote on the selection or confirmation of nominees for any District Committee.

 

New Paragraph 13.4

The Supreme Court of Virginia approved new Paragraph 13.4 to Part 6, § 4 of the Rules of the Supreme Court of Virginia on August 21, 2015, effective immediately.

 

13.4 Insurance Coverage Requirement for Respondents under Va. Code § 54.1-3935 (D) .

 

Pursuant to Va. Code § 54.1-3935(D), when an attorney who has been found guilty of engaging in criminal activity that violates the Rules of Professional Conduct and results in the loss of property of one or more of the attorney's clients and has been required by a three-judge court to maintain professional malpractice insurance during the time he or she is licensed to practice law in the Commonwealth of Virginia, that attorney shall carry such coverage in the minimum amount of $500,000 per claim and $1 million in the aggregate with a maximum $10,000 deductible, with a Virginia licensed insurer, eligible surplus line insurer or registered risk retention group. The coverage provider must have an A.M. Best minimum rating of A-. The attorney shall require the insurer to include language in the policy specifying that the VSB be given notice of cancellation or nonrenewal. The attorney shall certify such coverage and the notice requirement to the VSB on a yearly basis with a certificate of insurance provided to the VSB by an agent or broker licensed in Virginia. This certificate must be received initially within 10 days after inception or reinstatement of the policy.

 

Emergency Legal Services rule

The Supreme Court of Virginia approved an emergency legal services rule on October 30, 2015, effective January 1, 2016.  The new rule provides as follows:

PART TEN

PROVISION OF LEGAL SERVICES FOLLOWING DETERMINATION OF MAJOR DISASTER

Rule 10. Provision of Legal Services Following Determination of Major Disaster

(a) Determination of existence of major disaster. -- Solely for purposes of this Rule, the Chief Justice of this Court shall determine when, as a result of a major disaster, an emergency affecting the justice system has occurred in:

(1) this jurisdiction and, if so, whether that emergency affects the entirety or only a part of this jurisdiction, or

(2) another jurisdiction, but only if such a determination and its geographical scope have previously been made by the highest court of that jurisdiction.

(b) Temporary practice in this jurisdiction following major disaster. -- Following a determination, pursuant to paragraph (a) of this Rule, of an emergency affecting the justice system in this jurisdiction that warrants the assistance of lawyers from outside this jurisdiction, or a determination by the Chief Justice that persons displaced by a major disaster in another jurisdiction and residing in this jurisdiction are in need of pro bono services and the assistance of lawyers from outside of this jurisdiction is Updated: Aug 02, 2016