Report of the Office of Bar Counsel

EDWARD L. DAVIS, BAR COUNSEL
 

  1. Overview

The Office of Bar Counsel [OBC] consists of the intake and discipline departments. The intake department initially receives and screens all inquiries to the bar about attorney conduct and proactively handles inquiries alleging minor misconduct.  Intake also performs preliminary investigations in a limited class of cases. 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.
 

  1. Personnel Matters

Renu Brennan was promoted from assistant bar counsel to deputy executive director of the Virginia State Bar effective April 2016.  She filled a position adroitly handled for 22 years by Mary Yancey Spencer.  For the past eight years, Renu has kept ahead of her dockets while prosecuting some very difficult cases to conclusion.  The search for a new assistant bar counsel to replace Renu is ongoing.

In addition to the position vacancy created by Renu’s promotion, there were three other vacancies occasioned by attorney departures.  As discussed below in Part IV, the OBC decided not to fill one of these vacancies as part of its new strategic plan.

Richmond attorney Elizabeth Shoenfeld joined the VSB staff on August 12, 2015.  She brings 12 years of litigation experience in courts throughout the nation, primarily auto products liability defense but also, in her words, everything from consumer disputes to defamation to business deals gone sour.  Elizabeth assumed responsibility for the Fifth District Committee, Section II, and part of 5-III.

On January 11, 2016, Christine Corey became the newest assistant bar counsel.  She replaced Rich Slaney who ably served the bar for 17 years.  Christine worked as a prosecutor for the state of Florida before becoming a law clerk for the U.S. District Court, Northern District of Florida.  She has spent most of her career handling complex domestic relations cases in the Richmond area.  Christine assumed responsibility for the First District Committee and part of the Second District Committee, Section II.

Veteran VSB investigator Gene Reagan announced his retirement last fall, and his last day with the VSB was November 20, 2015.  For nearly 25 years, Gene was a well-respected, well-liked ambassador for the VSB as well as a top producer.  Needless to say, he has been greatly missed.

Gene was replaced by retired federal investigator John Pucky in January 2016.  John is acquainted with fellow Tidewater investigator Ron Pohrivchak from their days in the Naval Investigative Service.  John worked several years for the Department of Justice investigating fraud and financial crimes that were prosecuted by the U.S. Attorney’s office

Brian Callen joined the investigator staff on September 21, 2015, replacing VSB investigator Edward “Bo” Bosack, who departed on temporary assignment with the Department of Defense in Kuwait.  Brian retired from the District of Columbia Metropolitan Police Department after 23 years of service. His extensive investigative experience includes financial crimes.  He received many awards during his career, including a medal of honor and a medal of valor. 

Effective March 21, 2016, Mike Keen became the newest investigator for the Virginia State Bar.  He filled the southwest Virginia position vacancy created by the departure of Mary Beth Nash.  Ms. Nash, an attorney, missed the practice of law and accepted employment with the Roanoke County Attorney late last year.  Mike is from Salem, Virginia, and brings with him an extensive background in state and federal fraud investigations.

Fifteen-year, central Virginia investigator Gene Rhodenizer announced his retirement effective this fall.  He will be replaced by northern Virginia investigator Dave Jackson, who is moving to Orange County.  Dave in turn will be replaced by former VSB Investigator Edward Bosack upon his return from assignment in Kuwait.  With these hirings, the VSB investigator staff is at full strength.
 

  1.  Production

In fiscal year 2016, there were 110 public trials, agreed dispositions and consents to revocation.  This is a significant reduction from the 167 reported one year ago, as is the reduction in the total volume of open cases, 348, down 16.3% from the 416 one year ago.  This is also a 57% reduction from the 809 total open cases five years ago. The number of “pre-015” district committee cases (13) as of June 30, 2016, was one less than the year before and continues to be the lowest it has been since I began reporting this number in 2008.  The new fiscal year begins with 70 “pre-016” cases, an increase of 20 over the previous year.  This number is skewed somewhat because it includes 25 cases against a revoked attorney whose appeal is pending before the Supreme Court of Virginia.  By comparison, the number was 250 on July 1, 2008.

These reductions reflect continued increases in the processing of cases as well as the quality of attorneys and staff now at the bar.  In addition, the intake staff continues to process more cases to conclusion through proactive resolutions of minor misconduct without creating disciplinary records, and summary dismissals of other complaints.

 

  1. Outlook

Rather than fill a position vacancy created by the departure of an attorney late last year, the OBC sought approval of a new strategic plan that includes two new intermediate-level managerial positions.  This effort has come to fruition.  Effective May 10, 2016, Ed Dillon and Brent Saunders were promoted to Senior Assistant Bar Counsel.  In consultation with the Bar Counsel and Deputy Bar Counsel, they will review all charging documents issued by staff attorneys, take the lead on planning and executing the Disciplinary Conference, provide cross-training to the attorneys and administrative staff, manage special projects, and advise us on issues affecting our department and its public protection mission.  Meanwhile the Bar Counsel and Deputy Bar Counsel will continue to focus on docket review and other managerial functions.  With this development comes a responsibility to continue the trend the OBC has set in bringing cases to conclusion more quickly while maintaining a lower volume of open cases.

In furtherance of its public protection mission, the OBC began working on some special projects.  Among them is the development of a trust account school to assist attorneys in understanding this important process.  With the gracious assistance of several volunteer attorneys and the bar’s publications department, the trust account school instructional video is nearly complete.

Not counting the current position vacancy, the OBC is operating with two less attorneys and one less administrative assistant than two years ago as part of its strategic plan.  We will continue our endeavor to keep the volume of open cases lower and bring cases to closure more quickly as we meet our public protection mission.
 

  1. Changes to Procedural Rules and Rules of Professional Conduct

Effective March 1, 2016 the Supreme Court of Virginia approved amendments to the Rules of Court, Part 6, Section IV, Paragraph 13-11.B, allowing the Bar Counsel to disclose exculpatory evidence to respondents regardless of whether other rules provide that the evidence is confidential and shall not be disclosed.

Also effective March 1, 2016, the Supreme Court approved amendments to the Rules of Court, Part 6, Section IV, Paragraph 13-25, Board Proceedings for Reinstatement. The new rule provides for the Clerk of the Disciplinary System to conduct the initial review of all petitions for reinstatement, a function previously handled by the Supreme Court of Virginia.  Specific prerequisites for consideration of a reinstatement petition are now clearly set forth in the rule.  The amendments also incorporate the ten factors set forth In the Matter of Alfred Lee Hiss for the Board to consider in reinstatement proceedings.  These factors were incorporated by reference in the previous rule.

Finally, effective March 1, 2016, the Supreme Court approved amendments to the comments to Rule 1.1 (Competence)  and Rule 1.6 (Confidentiality of Information) of the Rules of Professional Conduct that address the need of attorneys to pay attention to the benefits and risks associated with technology, and to avoid the inadvertent or unauthorized disclosure of confidential information.   
 

  1. Matters in the Supreme Court of Virginia

 

  1.  Appeals Decided by the Supreme Court of Virginia

By order, entered October 29, 2015, the Supreme Court of Virginia held that a three-judge circuit court sitting in Colonial Heights had jurisdiction to rehear the matter of Neil Kuchinsky on remand, and affirmed its decision to impose a public reprimand.  Mr. Kuchinsky appealed the matter to the Supreme Court once before, which dismissed one of the rule violations and remanded the matter to the three-judge circuit court for further proceedings.  Mr. Kuchinsky argued that jurisdiction to rehear the matter on remand rested with the Third District Committee where the matter originated.

On January 11, 2016, the Supreme Court of Virginia dismissed Bernice Stafford Turner’s appeal of the one-year suspension of her law license on procedural grounds.  Previously, Ms. Turner filed a petition to stay the suspension pending appeal.  The bar filed a response in opposition, and the Supreme Court denied the stay.

On April 5, 2016, Rocco DeLeonardis noted the appeal of the four-year suspension of his law license imposed by the Disciplinary Board on February 19, 2016.  Mr. DeLeonardis also filed a petition to stay the suspension pending appeal, which was denied.  Mr. DeLeonardis then withdrew his appeal.

On April 14, 2016, the Supreme Court of Virginia affirmed a public reprimand with terms issued to Ronald Albert Robinson, Jr., by the Fifth District Committee, Section III.   Mr. Robinson previously appealed the matter to the Disciplinary Board, which affirmed the decision.  The Supreme Court also awarded damages to the bar.

 

  1.  Appeals Pending before the Supreme Court of Virginia  

On January 14, 2016, Jean Jerome Dandy Ngando Ekwalla appealed the revocation of his law license imposed by the Disciplinary Board on October 29, 2015. Mr. Ngando Ekwalla also filed a petition to stay the revocation and the bar filed a response in opposition.  On January 27, 2016, the Supreme Court of Virginia denied the stay.  Oral arguments are pending.

On June 28, 2016, Jane Karen Eshagpoor appealed the two-year suspension of her law license imposed by the Disciplinary Board on May 23, 2016.  She also filed a petition to stay the suspension pending appeal, and the bar filed a response in opposition.  By order, entered July 7, 2016, the Supreme Court denied the stay.

 

Updated: Aug 11, 2016