Publications

Virginia Lawyer Register - August/September 2010

Contents

In this issue:

Disciplinary Proceedings

Disciplinary Summaries

October Council Proposals — Public Comment Requested


Other Proposals for Public Comment


Notices to Members

View August/September Virginia Lawyer Register (PDF of mailed version with hyperlinks to additional materials)


Disciplinary Proceedings

Respondent’s Name Address of RecordAction Effective Date
Circuit Courts
 Thomas Michael Blanks Jr. Richmond, VA Public Reprimand w/Terms February 10, 2010
 Hugh Fairley O’Donnell Norton, VA Dismissal for Exceptional Circumstances April 9, 2010
 David Loren Shurtz
 Arlington, VA Suspension — 18 months June 25, 2010
Disciplinary Board
 Spiros S. Anthony Arlington, VA Revocation June 28, 2010
 Robert Britton Armstrong Lexington, VA Suspension — 30 days June 25, 2010
 Richard Johan Conrod Sr. Virginia Beach, VA Admonition w/Terms May 27, 2010
 Jon Ian Davey Danville, VA Suspension — 60 days April 23, 2010
 Anthony Gerome Davis Birmingham, AL Suspension — 4 years October 19, 2009
 Christopher Scott Dillon Richmond, VA Revocation June 22, 2010
 Robert Edley Jr. Richmond, VA Revocation June 16, 2010
 Diane Baily Fenton Virginia Beach, VA Suspension w/Terms — 60 days April 30, 2010
 Crystal Anita Gist Fisher Waldorf, MD Revocation May 18, 2010
 Joseph Marshall Garrett Danville, VA Public Reprimand w/Terms May 12, 2010
 Michael Mitry Hadeed Jr. Alexandria, VA Summary Suspension May 27, 2010
 Dean Spiro Kalivas Seattle, WA Revocation June 15, 2010
 Jay Lawrence Pickus Richmond, VA Suspension — 4 years February 19, 2010
 Kimberly Loyd Scott Virginia Beach, VA 2 Public Reprimands w/Terms May 17, 2010
 John Lester Squires III Richmond, VA Suspension — 9 months April 23, 2010
 William David Timberlake Virginia Beach, VA Revocation June 22, 2010
 Paul Granville Watson IV Eastville, VA Suspension — 60 days May 21, 2010
District Committees
 Stephen Alan Bamberger Dumfries, VA Public Reprimand April 30, 2010
 James Pearce Brice Jr. Virginia Beach, VA Public Reprimand w/Terms April 20, 2010
 Larry Cecil Brown Jr. Alexandria, VA Public Admonition April 30, 2010
 David Glenn Hubbard Vienna, VA Public Reprimand April 26, 2010
 John Edward Jessee Abingdon, VA Public Reprimand w/Terms April 26, 2010
 Vaughan Christopher Jones Richmond, VA Public Reprimand w/Terms June 3, 2010
 Ruth Arleathia Norrell Richmond, VA Public Dismissal De Minimis April 20, 2010
 Jan C. Smith Montross, VA Public Reprimand w/Terms May 20, 2010
 Nnika Evangeline White Richmond, VA Public Admonition w/Terms May 7, 2010
Impairment Suspension
Effective Date
James Berkley Priest
South Boston, VA
June 21, 2010
 
Suspension – Failure to Pay Disciplinary Costs
Effective DateLifted
Jeffrey Frederick Bradley
Erie, PA
June 17, 2008
April 23, 2010
Stacy F. Garrett III
Midlothian, VA
April 19, 2010
 
Anne Marston Lynch
Portsmouth, VA
June 28, 2010
 
Anne Marie Miller
Roanoke, VA
May 17, 2010
 
Peter Campbell Sackett
Lynchburg, VA
June 17, 2010
 
Suspension – Failure to Comply with SubpoenaEffective DateLifted
Barbara Lyn Brackett
Vienna, VA
May 12, 2010
 
Neville Paul CrenshawChantilly, VA May 12, 2010
 
Michael Raymond ThamesArlington, VAJune 21, 2010
 
Karen Patricia WoolleySouthern Pines, NC
June 9, 2010
 
David Redd Young Jr.
Leesburg, VA
June 9, 2010
 

 

Features

Disciplinary Summaries

The following are summaries of disciplinary actions for violations of the Virginia Rules of Professional Conduct (RPC) (Rules of the Supreme Court of Virginia, Part 6, § II, eff. Jan. 1, 2000) or another of the Supreme Court rules (Rules). References to Rules Part 6, Section IV Paragraph 13 are assumed to be the reformatted rules effective May 1, 2009, unless otherwise indicated.
Copies of complete disciplinary orders are available at the Web link provided with each summary or by contacting the Virginia State Bar Clerk’s Office at (804) 775-0539 or clerk@vsb.org. VSB docket numbers are provided.

 

Circuit Courts

Thomas Michael Blanks Jr.
Richmond, Virginia
08-032-07321
On February 10, 2010, a three-judge court of the Circuit Court of the City of Richmond issued a public reprimand with terms to Thomas Michael Blanks Jr. for violating disciplinary rules that govern safekeeping property, responsibilities regarding nonlawyer assistants, and misconduct that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness to practice. Mr. Blanks acknowledged that he failed to preserve escrow funds of clients and failed to maintain escrow accounts as required by the Rules of Professional Conduct. This was an agreed disposition of misconduct charges. RPC 1.15(a)(1), (2), (c)(1–4), (e)(1)(i–v), (e)(2)(i–iii), (f)(2), (3), (4)(i), (ii), (5)(i–iii), (6); 5.3(a), (b), (c)(1), (2); 8.4(a), (b)
http://www.vsb.org/docs/Blanks-022310.pdf
———
Hugh Fairley O’Donnell
Norton, Virginia
07-102-2580
On April 9, 2010, a three-judge panel of the Wise County Circuit Court issued a dismissal for exceptional circumstances to Hugh Fairley O’Donnell. The court found he had violated disciplinary rules that govern scope of representation and communication, but there existed exceptional circumstances that mitigated against further proceedings. RPC 1.2(a); 1.4(b)
http://www.vsb.org/docs/ODonnell_04-16-10.pdf
———
David Loren Shurtz
Arlington, Virginia
07-041-1154
On May 27, 2010, a three-judge court in Arlington County Circuit Court suspended David Loren Shurtz’s license to practice law for eighteen months, effective June 25, 2010. Mr. Shurtz violated disciplinary rules that govern communication, conflict of interest: prohibited transactions, and misconduct that reflects adversely on a lawyer’s honesty, trustworthiness, or fitness to practice. The violations occurred during his representation of a client in a personal injury case. The suspension originally was imposed on March 26, 2009, but was stayed by the Supreme Court of Virginia when Mr. Shurtz appealed. The Court denied his petition for rehearing on April 22, 2010. RPC 1.4(b), (c); 1.8(e)(1), (2); 8.4(b), (c)
http://www.vsb.org/docs/Shurtz_05-14-09.pdf
http://www.vsb.org/docs/Shurtz-062510.pdf
———


Disciplinary Board


Spiros S. Anthony
Arlington, Virginia
10-000-083868
On June 28, 2010, the Virginia State Bar Disciplinary Board revoked Spiros S. Anthony’s license to practice law. In consenting to the revocation, Mr. Anthony acknowledged that in 2001 he pled guilty to felony embezzlement in the Loudoun County Circuit Court. Mr. Anthony’s license was summarily suspended on May 27, 2010. Rules Part 6, § IV, ¶ 13–28
http://www.vsb.org/docs/Anthony-070110.pdf
———
Robert Britton Armstrong
Lexington, Virginia
09-080-078374, 09-080-077694
Effective June 25, 2010, the Virginia State Bar Disciplinary Board suspended Robert Britton Armstrong’s license to practice law for thirty days for violating the professional rule that governs misconduct that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness to practice. Mr. Armstrong acknowledged that he was recorded making a sexual advance toward a client who was in jail. He pled no contest to misdemeanor sexual assault in a criminal prosecution of the case. This was an agreed disposition of the disciplinary charges. RPC 8.4(b)
http://www.vsb.org/docs/Armstrong-062410.pdf
———
Richard Johan Conrod Sr.
Virginia Beach, Virginia
06-021-2496
On November 11, 2009, the Virginia State Bar Disciplinary Board imposed a public admonition with terms on Richard Johan Conrod Sr. for violating disciplinary rules that govern safekeeping property. The matter involved his failure to reconcile his real estate trust account as required. The board heard the matter on appeal of a VSB Second District Committee decision. The board dismissed one of the committee’s findings of misconduct, but upheld two others and the sanction imposed. Mr. Conrod appealed the board’s decision to the Supreme Court of Virginia, which dismissed the appeal on May 27, 2010. RPC 1.15(e)(1), (f)(5)
http://www.vsb.org/docs/Conrod-112009.pdf
———
Jon Ian Davey
Danville, Virginia
09-090-079865, 09-090-079790
On April 23, 2010, the Virginia State Bar Disciplinary Board suspended Jon Ian Davey’s license to practice law for sixty days for violating professional rules that govern diligence and communication. Mr. Davey failed to perfect appeals to the Virginia Court of Appeals in three criminal cases and failed to appear for oral arguments in two other cases. RPC 1.3(a); 1.4(a)
http://www.vsb.org/docs/Davey-052110.pdf
———

Anthony Gerome Davis
Birmingham, Alabama
10-000-083444
On June 10, 2010, the Virginia State Bar suspended Anthony Gerome Davis’s license to practice law for four years, effective October 19, 2009. Mr. Davis did not comply with the board’s order to refund money and pay expenses of a complainant in a previous disciplinary case. Mr. Davis received an eight-month suspension in that matter and has been ineligible to practice law since October 19, 2009. Rules Part 6, §IV, ¶ 13–18(O)
http://www.vsb.org/docs/Davis-070110.pdf
———
Christopher Scott Dillon
Richmond, Virginia
10-032-083489
On June 22, 2010, the Virginia State Bar Disciplinary Board revoked Christopher Scott Dillon’s license to practice law. In consenting to the revocation, Mr. Dillon acknowledged the material facts of a pending disciplinary complaint and that he violated the professional rule that governs safekeeping client property. Rules Part 6, § IV, ¶ 13–28
http://www.vsb.org/docs/Dillon-072210.pdf
———
Robert Edley Jr.
Richmond, Virginia
09-033-076276, 09-033-076344, 09-033-076751, 09-033-077278
On June 16, 2010, the Virginia State Bar Disciplinary Board revoked Robert Edley Jr.’s license to practice law. In consenting to the revocation, Mr. Edley acknowledged the material facts of four pending disciplinary cases and that he could not successfully defend against the charges. Rules Part 6, § IV, ¶ 13–28
http://www.vsb.org/docs/Edley-061710.pdf
———
Diane Bailey Fenton
Virginia Beach, Virginia
09-022-078407
On April 23, 2010, the Virginia State Bar Disciplinary Board suspended Diane Bailey Fenton’s license to practice law for sixty days, effective April 30, 2010, and imposed terms, for violating professional rules that govern diligence and declining or terminating representation. Ms. Fenton stipulated that, during her representation in a child support matter, she failed to respond in a timely fashion to requests for discovery and to other communications. RPC 1.3(a); 1.16(a)(3)
http://www.vsb.org/docs/Fenton-051210.pdf
———
Crystal Anita Gist Fisher
Waldorf, Maryland
08-042-074643, 09-042-079863, 09-042-077378
On May 18, 2010, the Virginia State Bar Disciplinary Board revoked Crystal Anita Gist Fisher’s license to practice law. In consenting to the revocation, Ms. Fisher acknowledged the material facts of pending disciplinary charges and that she could not successfully defend herself against the charges. Rules Part 6, § IV, ¶ 13–28
http://www.vsb.org/docs/Fisher-052110.pdf
———

Joseph Marshall Garrett
Danville, Virginia
09-090-079759, 10-090-080731
On May 12, 2010, the Virginia State Bar Disciplinary Board issued a public reprimand with terms to Joseph Marshall Garrett for violating professional rules that govern safekeeping property and responsibilities regarding nonlawyer assistants. In two cases, which occurred after Mr. Garrett’s bookkeeper became disabled, Mr. Garrett failed to account for client fees as the rules require. This was an agreed disposition of misconduct charges. RPC 1.15(a)(1), (2), (c)(3), (e)(1)(i-v), (f)(2), (3), (4)(i), (ii), (5)(i–iii), (6); (7); 5.3(a), (b), (c)(1), (2)
http://www.vsb.org/docs/Garrett-051310.pdf
———
Michael Mitry Hadeed Jr.
Alexandria, Virginia
10-000-077606
On May 27, 2010, the Virginia State Bar Disciplinary Board summarily suspended Michael Mitry Hadeed Jr.’s license to practice law based on his 2009 conviction in the U.S. District Court for the Eastern District of Virginia, Alexandria Division, of conspiracy to commit immigration fraud and other charges. The board ordered him to appear June 25, 2010, to show cause why his license should not be further suspended or revoked. On June 16, 2010, the board continued the case to August 27, 2010. Rules Part 6, §IV, ¶ 13–22 A.
———
Dean Spiro Kalivas
Seattle, Washington
06-053-3184
Effective June 15, 2010, the Virginia State Bar Disciplinary Board revoked Dean Spiro Kalivas’s license to practice law. The board found he had failed to comply with professional rules that govern fees, safekeeping property, unauthorized practice of law, firm names and letterheads, and misconduct that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice. The misconduct included trust account violations. This was an agreed disposition of disciplinary charges. RPC 1.5(c); 1.15(a)(1), (2); 5.5(a)(1); 7.5(a); 8.4(b)
http://www.vsb.org/docs/Kalivas-062510.pdf
———
Jay Lawrence Pickus
Richmond, Virginia
09-033-076639
On February 19, 2010, the Virginia State Bar Disciplinary Board suspended Jay Lawrence Pickus’s license to practice law for four years for violating professional rules that govern diligence, communication, fees, and safekeeping property. The misconduct occurred in Mr. Pickus’s representation in a federal lawsuit and included failure to maintain his client’s accounts as required by the Rules of Professional Conduct. RPC 1.3(a); 1.4(a–c); 1.5(b); 1.15(a)(2), (c)(3), (e)(1)(i–iv), (f)(2), (3), (4)(i), (ii), (5)(i–iii), (6)
http://www.vsb.org/docs/Pickus_04-23-10.pdf
———
Kimberly Loyd Scott
Virginia Beach
10-000-082142
On May 17, 2010, the Virginia State Bar Disciplinary Board issued a public reprimand with terms to Kimberly Loyd Scott for violating the Virginia Consumer Real Estate Settlement Protection Act and fined her $6,000. This is an agreed disposition of the CRESPA charges. Virginia Code 6.1-2.21.C.D.(1–3); 6.1-2.23.A(1), (2),B(1), (2); 15 VAC 5-80-30; 15 VAC 5-80-50(1), (2), (3)B
http://www.vsb.org/docs/Scott-051910-CRESPA.pdf

09-021-076863, 09-021-078757
On May 17, 2010, the Virginia State Bar Disciplinary Board issued a public reprimand with terms to Kimberly Loyd Scott for violating professional rules that govern competence, diligence, safekeeping property, and misconduct that reflects adversely on a lawyer’s fitness to practice. The misconduct occurred in two real estate closings. This was an agreed disposition of disciplinary charges. RPC 1.1; 1.3(a–c); 1.15(c)(4); 8.4(c)
http://www.vsb.org/docs/Scott-051910.pdf
———
John Lester Squires III
Richmond, Virginia
09-031-076263, 09-031-076442
On April 23, 2010, the Virginia State Bar Disciplinary Board suspended John Lester Squires III’s license to practice law for nine months for violating disciplinary rules that govern diligence, communication, fees, safekeeping property, declining or terminating representation, and misconduct that reflects adversely on the lawyer’s honesty, trustworthiness or fitness to practice. Mr. Squires stipulated that he abandoned his practice and did not protect the interests of his clients in two cases. RPC 1.3(a), (b); 1.4(a); 1.5(b); 1.15(c)(4); 1.16(d); 8.4(b)
http://www.vsb.org/docs/Squires-052110.pdf
———
William David Timberlake
Virginia Beach, Virginia
10-000-083869
On June 22, 2010, the Virginia State Bar Disciplinary Board revoked William David Timberlake’s license to practice law. In consenting to the revocation, Mr. Timberlake acknowledged the material facts of pending disciplinary charges and that he could not successfully defend against the charges. The board summarily suspended Mr. Timberlake’s license on May 27, 2010, after he pled guilty to a felony in the United States District Court. Rules Part 6, § IV, ¶ 13–28
http://www.vsb.org/docs/Timberlake-062310.pdf
———
Paul Granville Watson IV
Eastville, Virginia
09-022-077938
On May 21, 2010, the Virginia State Bar Disciplinary Board suspended Paul Granville Watson IV’s license to practice law for sixty days for violating disciplinary rules that govern diligence, communication, and failing to respond to a lawful demand from a disciplinary authority. The misconduct occurred in a court-appointed criminal appeal. RPC 1.3(a); 1.4(a); 8.1(c)
http://www.vsb.org/docs/Watson-052110.pdf

District Committees


Stephen Alan Bamberger
Dumfries, Virginia
08-052-074046
On April 30, 2010, a Virginia State Bar Fifth District-Section II Subcommittee issued a public reprimand to Stephen Alan Bamberger for violating professional rules that govern competence, diligence, communication, safekeeping property, and declining or terminating representation. The misconduct occurred in his representation of the executor of an estate. This was an agreed disposition of misconduct charges. RPC 1.1; 1.3(a); 1.4(a), (b); 1.15(c)(4); 1.16(d), (e)
http://www.vsb.org/docs/Bamberger-043010.pdf
———
James Pearce Brice Jr.
Virginia Beach, Virginia
09-022-076815
On April 20, 2010, a Virginia State Bar Second District Subcommittee issued a public reprimand with terms to James Pearce Brice Jr. for violating professional rules that govern fees and declining or terminating representation. This was an agreed disposition of misconduct charges. RPC 1. 5(a)(1–8); 1.6(a)(3)
http://www.vsb.org/docs/Brice_04-27-10.pdf
———
Larry Cecil Brown Jr.
Alexandria, Virginia
07-053-1194
On April 30, 2010, a Virginia State Bar Fifth District-Section III Subcommittee issued a public admonition to Larry Cecil Brown Jr. for violating professional rules that govern communication, safekeeping property, and declining or terminating representation. The misconduct occurred in Mr. Brown’s employment to appeal a murder conviction in Maryland. This was an agreed disposition of misconduct charges. RPC 1.4(b); 1.15(a)(2); 1.16(d)
http://www.vsb.org/docs/Brown-043010.pdf
———
David Glenn Hubbard
Vienna, Virginia
07-032-1466, 07-032-062224
On April 26, 2010, a Virginia State Bar Third District-Section II Subcommittee issued a public reprimand to David Glenn Hubbard for violating disciplinary rules that govern diligence, communication, declining or terminating representation, and failing to respond to a lawful demand for information from a disciplinary authority. The misconduct occurred in two criminal representations and the ensuing bar investigations. This was an agreed disposition of misconduct charges. RPC 1.3(a); 1.4(a); 1.16(c); 8.1(c)
http://www.vsb.org/docs/Hubbard_04-29-10.pdf
———
John Edward Jessee
Abingdon, Virginia
09-102-079600
On April 26, 2010, a Virginia State Bar Tenth District-Section II Subcommittee issued a public reprimand with terms to John Edward Jessee for violating disciplinary rules that govern safekeeping property and responsibilities regarding nonlawyer assistants. Mr. Jessee failed to manage and reconcile a real estate escrow account from which a bookkeeper for his law firm embezzled funds. This was an agreed disposition of misconduct charges. RPC 1.15(a), (e)(1)(i–v), (f)(2), (4)(i), (ii), (5)(i–iii), (6); 5.3(a), (b), (c)(1), (2)
http://www.vsb.org/docs/Jessee_04-26-10.pdf
———
Vaughan Christopher Jones
Richmond, Virginia
10-033-082001
On June 3, 2010, the Virginia State Bar Third District Committee imposed a public reprimand with terms on Vaughan Christopher Jones for violating disciplinary rules that govern diligence, declining or terminating representation, and failing to respond to a lawful demand for information from a disciplinary authority. The misconduct occurred in his withdrawal from a criminal defense representation. RPC 1.3(a); 1.16(c); 8.1(c)
http://www.vsb.org/docs/Jones-061710.pdf
———
Ruth Arleathia Norrell
Richmond, Virginia
08-032-072392
On April 20, 2010, a Virginia State Bar Third District-Section II Subcommittee issued a public dismissal de minimis to Ruth Arleathia Norrell for violating a disciplinary rule that governs unauthorized practice of law. The committee determined she held herself out as a practicing lawyer while she was an associate member of the Virginia bar. RPC 5.5(a)(1) (in effect during the 2007 facts of the case)
http://www.vsb.org/docs/Norrell-042010.pdf
———
Jan C. Smith
Montross, Virginia
09-060-076463
On May 20, 2010, a Virginia State Bar Sixth District Subcommittee imposed a public reprimand with terms on Jan C. Smith for violating disciplinary rules that govern competence, diligence, communication, and failure to respond to a lawful demand for information from a disciplinary authority. This was an agreed disposition of disciplinary charges. RPC 1.1; 1.3(a); 1.4(a–c); 8.1(c)
http://www.vsb.org/docs/Smith-062510.pdf
———
Nnika Evangeline White
Richmond, Virginia
09-031-076943, 09-031-078618
On May 7, 2010, a Virginia State Bar Third District-Section I Subcommittee issued a public admonition to Nnika Evangeline White for violating professional rules that govern diligence, communication, and failing to respond to a lawful demand for information from a disciplinary authority. The misconduct occurred in her representations in a bankruptcy and a divorce. This was an agreed disposition of disciplinary charges. RPC 1.3(a); 1.4(a); 8.1(c)
http://www.vsb.org/docs/White-051410.pdf

October Council Proposals – Public Comment Requested


The following proposals are published for public comment and will be considered at the Virginia State Bar Council meeting on October 15, 2010. Comments should be submitted in writing to Karen A. Gould, Executive Director, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, VA 23219, no later than end of business on the day of deadline.

October Council Proposal: Proposed Amendments to Rules of the Supreme Court of Virginia Part 6, § IV, ¶ 13
Procedure for Disciplining, Suspending, and Disbarring Attorneys Regulation of Multijurisdictional Practice
Deadline for comment: September 15, 2010
On June 2, 2010, the Virginia State Bar Standing Committee on Lawyer Discipline (COLD) approved the proposed procedures for regulating lawyers who are not members of the Virginia State Bar, but who are authorized to conduct a limited practice here.
Multijurisdictional practice is now authorized in Virginia pursuant to several provisions of the Rules of Court. As a result, a lawyer not admitted in Virginia is subject to the disciplinary authority of Virginia if he or she provides, holds himself or herself out as providing, or offers to provide legal services in Virginia. (See, for example, Rule 8.5(a), Rules of Professional Conduct.)
The proposed changes provide the bar with needed procedural authority to implement these rules and apply its disciplinary authority to multijurisdictional respondents.
The proposed changes also incorporate in Paragraph 13 certain requirements for persons serving as members of a district committee, the Disciplinary Board, and COLD. These requirements are also found in the Bylaws of the Virginia State Bar.
Details: http://www.vsb.org/docs/prop-para13_7-27-10.pdf

October Council Proposal: Proposed Amendments to Rules of the Supreme Court of Virginia Part 6, § IV, ¶ 17
Mandatory Continuing Legal Education Rule Proposal to Establish Council Oversight and Increase MCLE Board Quorum

Deadline for comment: September 15, 2010
The Task Force on Paragraph 17, chaired by former Virginia State Bar president Howard W. Martin Jr., recommendeds changes that would give the VSB Council authority to reject regulations or amendments to regulations adopted by the Mandatory Continuing Legal Education (MCLE) Board on or after July 1, 2010. The proposed Paragraph 17 amendments also would increase the number of MCLE Board members required to pass a proposed new rule or amendment.
Paragraph 17 sets forth the requirement that Virginia lawyers must attend twelve hours of approved continuing legal education each year. It also establishes the regulatory framework by which the MCLE Board carries out its functions as delegated to it by the Supreme Court of Virginia.
Under current procedures, the MCLE Board presents proposed regulatory changes to the council for comment only. The MCLE Board has authority to adopt or amend regulations without formal approval by the council, which represents Virginia’s more than twenty-nine thousand active lawyers. The MCLE Board has twelve members, but under the current rule new MCLE regulations or amendments could be adopted by a majority of a quorum of five members of the twelve-person board, although this has never been known to occur.
The proposed changes would require the MCLE Board (1) to approve new regulations or amendments by a majority of the full twelve-person membership, (2) to bring proposed amendments or new regulations to the council for advice and comment prior to being adopted by the MCLE Board, and (3) to permit the council to reject regulations or amendments by a two-thirds vote of those members of council present and voting, once such regulations or amendments were adopted by the MCLE Board.??
Specifically, the task force recommends that the following changes to Paragraph 17(B): ??
    (2) Notice of Meetings/Quorum:
    The board shall meet on reasonable notice by the Chair, Vice chair or the Executive Director. Five members shall constitute a quorum and the action of a majority of a quorum shall constitute action of the Board; however, new regulations or amendments shall be approved by a majority of the full membership of the Board.?
    (3) Powers:
    The Board shall have those general administrative and supervisory powers necessary to effectuate the purposes of this Rule, including the power to adopt, following the advice and comment of Council, reasonable and necessary regulations consistent with this Rule. The Council may reject any regulations or amendments to the regulations adopted by the board on or after July 1, 2010, by a 2/3 vote of those members of Council present and voting. The Virginia State Bar shall have the responsibility for funding the Board and for enforcing Mandatory Continuing Legal Education requirements.?
Current rule: http://www.vsb.org/pro-guidelines/index.php/bar-govt/mandatory-continuing-legal-education-rule/

October Council Proposal: Proposed Amendments to Code of Virginia § 19.2-8. Limitation of Prosecutions § 54.1-3904. Penalty for Practicing without Authority
The Standing Committee on the Unauthorized Practice of Law (UPL) seeks authority from the VSB Council to ask the General Assembly for statutory amendments that would:

  • extend the statute of limitation for prosecution of UPL from one year to two years with a limit of five years from the commission of the crime;
  • impose a civil penalty of up to $5,000 per violation; and
  • allow the court to order restitution.

The UPL Committee requests the authority in order to strengthen the bar’s ability to prosecute violators, to provide a civil penalty for UPL, and to protect the public.
Details: http://www.vsb.org/site/regulation/proposal-statute-extension-UPL

Other Proposals for Public Comment


The VSB Standing Committee on Legal Ethics requests public comment on the following proposed advisory ethics opinion. Comments should be submitted in writing to Karen A. Gould, Executive Director, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, VA 23219, no later than end of business on the day of deadline.

Proposed Legal Ethics Opinion 1802 Advising Clients on the Use of Lawful Undisclosed Recording
Deadline for comment: September 23, 2010
This proposed legal ethics opinion (LEO) generally addresses the ethical implications of a lawyer’s advising clients regarding the use of undisclosed recording. The Standing Committee on Legal Ethics introduces the opinion by discussing the legality of undisclosed recording since, fundamentally, a lawyer cannot advise a client to engage in conduct that is illegal or fraudulent. Rules of Professional Conduct 1.2(c). The committee notes that federal law and more than two-thirds of the states permit “one party consent recording.” Virginia falls within this two-thirds majority. See Virginia Code Section 19.2-62(B)(2). The question then presented is, “May a lawyer advise a client to engage in lawful undisclosed recording without violating Rule 8.4(c)’s prohibition of deceitful conduct?”

Prior to answering this question, the committee provides an in-depth analysis of Gunter v. Virginia State Bar, 238 Va. 617, and reviews its prior legal ethics opinions regarding undisclosed recordings. The committee notes that its first ethics opinions on the subject did not impose a per se or general ban on undisclosed recording, but instead took the view that undisclosed recording violates ethical rules only when it occurs in conjunction with other unethical conduct. In Gunter, the Supreme Court of Virginia ruled that the lawyer engaged in conduct involving “dishonesty, fraud, and deceit” for recording telephone conversations between third persons without consent or prior knowledge of each party to the conversation. The recordings made were illegal under federal and state law.

It was after Gunter that the Legal Ethics Committee issued a number of opinions resulting in a blanket ban on lawyers using or even advising their clients to use one-party consent recording. Not until LEOs 1738 and 1765 did the committee carve out any ethical exceptions to this blanket prohibition. Concluding that prior opinions sweep too broadly, the committee acknowledges in LEO 1738 that three circumstances exist where such recording would be ethical: in a criminal investigation, in a housing discrimination investigation, and in situations involving threatened or actual criminal activity in which the recording lawyer was the victim. LEO 1765 carves out an additional exception for a lawyer involved in government intelligence activities using nonconsensual tape recording as well as misrepresentation of identity and purpose. The committee reiterates in LEO 1765 the admonition in Gunter v. Virginia State Bar “that conduct that is legal may nevertheless be unethical for a lawyer”; however, the committee further notes that “while these principles are important, they must also be balanced against the lawyer’s ethical obligations to the client.” The committee then examines two situations in which it believes that a lawyer may ethically advise or counsel a client to use lawful undisclosed recording to obtain information relevant to the client’s legal matter.

The first example reexamines the hypothetical presented in LEO 1448, in which a father sexually abused his daughter for an extended period of time during her childhood. Since the father, in talking to the daughter, openly acknowledges the abuse, the daughter’s lawyer suggests that she engage in undisclosed recording. In balancing the competing interests of Rule 1.3 (requiring the lawyer to pursue the legal objectives of his client), Rule 1.2(a) (requiring the lawyer to consult with the client as to means by which the client’s objectives’ are to be pursued), Rule 1.2(c) (prohibiting the lawyer from counseling the client to engage or assist the client in conduct that the lawyer knows is criminal or fraudulent), and Rules 1.4(b) and (c) (requiring the lawyer to explain and give the client pertinent facts about a matter), the committee overturns LEO 1448 and opines that that the lawyer may “advise, suggest or recommend” that the daughter lawfully record her conversation with her father without disclosing that the conversation is recorded.

The second hypothetical involves an employee of a company who is being subjected to a hostile work environment, where a co-worker repeatedly makes sexually offensive remarks in the workplace. The opinion questions whether the company’s in-house counsel violates Rule 8.4(c), directly or indirectly via Rule 8.4(a), by advising management of the company to have the employee wear a hidden recording device. The committee opines that, while this scenario does not fall within the limited exceptions outlined in LEOs 1738 and 1765, those opinions acknowledge that there may be other circumstances under which a lawyer may use or advise another to use lawful undisclosed recording. The committee opines that under this example, the lawyer has not violated Rule 8.4(c) directly or indirectly.

In conclusion, the Legal Ethics Committee notes that in both of the examples provided, the committee is faced with situations in which the client has asked the lawyer for his or her opinion on how to address the client’s legal problem. Further, the proposed undisclosed recording in both examples is not only lawful, but it could very well be the only means by which the client can obtain relevant information. The committee believes that the circumstances presented are easily distinguishable from and stand in stark contrast to the illegal wiretapping case presented in Gunter.

Proposal: http://www.vsb.org/docs/Draft-LEO-1802_20100722.pdf

Notices to Members

MCLE Board Postpones Effective Date of Amended Regulations
The Mandatory Continuing Legal Education Board has postponed until November 1, 2011, the implementation of amended regulations, including a requirement that four of the twelve hours of annual MCLE be live and interactive.
The remaining eight MCLE hours can be either prerecorded or live and interactive.
MCLE Regulations 102, Requirements and Computations, as amended, states:
     (a) … Of the twelve credit hours required, no more than eight (8) may be earned from prerecorded courses.

http://www.vsb.org/docs/MCLE-regs-eff-110110.pdf

The MCLE Board decided on July 21, 2010, that more time is needed so that lawyers and MCLE providers have an opportunity to clearly understand the regulations before they go into effect.

VSB Ethics Hotline Now Accepts Questions by E-mail
Lawyers now can use e-mail to submit their ethics questions to the Virginia State Bar Ethics Hotline by going to http://www.vsb.org/site/regulation/ethics/ and clicking E-mail Your Ethics Questions. The hotline will continue to accept questions by phone at (804) 775-0564. The confidential service is available to members of the Virginia State Bar and their staffs.

Nominations Sought for VSB Disciplinary Board, MCLE Board, and Council Members at Large
Deadline for Nominations: September 7, 2010
Virginia State Bar President Irving M. Blank has appointed a nominating committee to consider nominees for board vacancies in 2011 to be filled by the Supreme Court. The nominating committee consists of Jon D. Huddleston, chair; Brian L. Buniva; Mark B. Holland; Ray W. King; Darrel T. Mason, Jean K. Niebauer; and Edna Ruth Vincent.??

Vacancies beginning on July 1, 2011, are listed below. Appointments are for the terms specified. The nominating committee’s recommendations will be acted on by the Virginia State Bar Council in October 2010, and the names of the nominees will then be forwarded to the Supreme Court of Virginia for consideration.??

Nominations, along with a brief résumé, should be sent to?Jon D. Huddleston, Chair, VSB Nominating Committee, Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, VA 23219, or e-mailed to Valerie Breeden at breeden@vsb.org.

Council Members at Large
Three vacancies (of which two incumbents are eligible for reappointment to a second term). May serve two consecutive three-year terms.??

Disciplinary Board
Five lawyer vacancies and two lay member vacancies (of which two lawyer members are eligible for reappointment to a second three-year term, one lawyer member is eligible for reappointment to a full three-year term, and two lay members are eligible for reappointment to a second three-year term). District committee service is preferred. May serve two consecutive three-year terms.??
Mandatory Continuing Legal Education Board

Five lawyer vacancies (of which three current members are eligible for reappointment to a second term). May serve two consecutive three-year terms.??

MCLE Administrative Suspensions
A list has been posted of Virginia State Bar members who have been administratively suspended for failure to comply with the Mandatory Continuing Legal Education requirements described in Part 6, Section IV, Paragraphs 17,13.2, and 19, Rules of the Supreme Court of Virginia.
The VSB has been unable to contact some of these attorneys. The bar requests that members report the location and practice status of any person on the list of contacting the MCLE Department at (804) 775-0577 or MCLE@vsb.org. The posted list is current as of July 20, 2010.
List: http://www.vsb.org/site/members/administrative-suspensions/