Amendments to Part 6, Section IV, Paragraph 13H and 13I

of the Rules of the Supreme Court of Virginia concerning provision of available dates

Provision of Available Dates

On February 29, 2008, the Supreme Court of Virginia approved proposed amendments to the Rules of Court, Part Six, Section IV, Paragraph 13, which clarify when a Respondent must provide available dates for scheduling of a hearing.

13. PROCEDURE FOR DISCIPLING, SUSPENDING, AND DISBARRING ATTORNEYS

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H. District Committee Proceedings

1. Pre-Hearing Matters

a. Charge of Misconduct

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(2) After the Respondent has been served with the Charge of Misconduct, the Respondent shall, within 21 days after service of the Charge of Misconduct:

(a) file an answer to the Charge of Misconduct, which answer shall be deemed consent to the jurisdiction of the District Committee; or

(b) file an answer to the Charge of Misconduct and a demand with the Clerk of the Disciplinary System that the proceedings before the District Committee be terminated and that further proceedings be conducted pursuant to Va. Code § 54.1-3935; and simultaneously provide available dates for a hearing to be scheduled not less than 30 nor more than 120 days from the date of the demand.

Upon such demand and provision of available dates as specified above, further proceedings before the District Committee shall terminate, and Bar Counsel shall file the Ccomplaint required by Va. Code § 54.1-3935. The hearing shall be scheduled as soon as practicable. However, the 30 to 120 day time frame shall not constitute a jurisdictionally specific time deadline for the hearing to be held.

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4. Perfecting an Appeal from District Committee’s Determination

a. By the Respondent

(1) Notice of Appeal; Demand

Within ten days after service on the Respondent of the District Committee Determination, notice is mailed of a District Committee’s issuance of an Admonition, with or with Terms, or a Public Reprimand, with or without Terms, a Respondent the Respondent may file with the Clerk of the Disciplinary System either a notice of appeal to the Board or a notice of appeal and a written demand that further Proceedings be conducted in a Circuit Court pursuant to Va. Code § 54.1-3935. In either case, the Respondent shall send copies to the District Committee Chair and to Bar Counsel.

Upon such demand, further proceedings before the Board shall terminate, and Bar Counsel shall file the complaint required by Va. Code §54.1-3935. The hearing shall be scheduled as soon as practicable.

If the Respondent fails to file a demand, as specified above, the Respondent shall be deemed to have consented to the jurisdiction of the Board.

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(4) Appeal to a Circuit Court. An appeal to a Circuit Court pursuant to Va. Code §54.1-3935 shall be conducted before a duly convened three-judge Circuit Court as an appeal on the record using the same procedure prescribed for an appeal of a District Committee Determination before the Board under this Paragraph. The Clerk of the Disciplinary System shall forward the record to the clerk of the designated Circuit Court only upon receipt of the transcript as provided in the preceding subparagraph.

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I. Board Proceedings

1. Pre-Hearing Matters

a. Procedure on Certification to the Board

(1) After a Subcommittee or District Committee certifies a matter to the Board, and the Respondent has been served with the Certification, the Respondent shall, within 21 days after service of the Certification:

(a) file an answer to the Certification with the Clerk of the Disciplinary System, which answer shall be deemed consent to the jurisdiction of the Board; or

(b) file an answer to the Certification and a demand with the Clerk of the Disciplinary System that the proceedings before the Board be terminated and that further proceedings be conducted pursuant to Va. Code §54.1-3935; and simultaneously provide available dates for a hearing to be scheduled not less than 30 nor more than 120 days from the date of the demand.

Upon such demand and provision of available dates as specified above, further proceedings before the Board shall terminate, and Bar Counsel shall file the Ccomplaint required by Va. Code §54.1-3935. The hearing shall be scheduled as soon as practicable. However, the 30 to 120 day time frame shall not constitute a jurisdictionally specific time deadline for the hearing to be held.

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b. Expedited Hearings

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(5) At least five days prior to the date set for hearing, the Respondent shall either:

(a) file an formal answer to the petition with the Clerk of the Disciplinary System, which answer shall be conclusively deemed to be a consent to the jurisdiction of the Board; or

(b) file an answer and a demand with the Clerk of the Disciplinary System that proceedings before the Board be terminated and that further proceedings be conducted pursuant to Article 6 of Chapter 39 of Title 54.1 of the Code of Virginia Va. Code § 54.1-3935; and simultaneously provide available dates for a hearing not less 30 days nor more than 120 days from the date of the Board order. whereupon

Upon such demand and provision of available dates as specified above, further proceedings before the Board shall be terminated and Bar Counsel shall file a the complaint under required by Va. Code § 54.1-3935;. The hearing shall be scheduled as soon as practicable. However, the 30 to 120 day time frame shall not constitute a jurisdictionally specific time deadline for the hearing to be held. Failure to file such demand within the time prescribed herein shall be a conclusive waiver of the right to subsequently file such demand. If any order of summary Suspension has been entered, such Suspension shall remain in effect until the court designated under Va. Code § 54.1-3935 enters a final order disposing of the issue before it.

If the Respondent fails to file an answer, or an answer and a demand, and provide available dates, as specified above, the Respondent shall be deemed to have consented to the jurisdiction of the Board.

(6) If proceedings continue before the Board, the conduct of the hearing shall be as provided herein. If proceedings continue pursuant to Va. Code § 54.1-3935, the court designated pursuant to that section shall conduct the hearing provided for therein no more than 60 days from the date of filing of the complaint. If any order of summary Suspension has been entered, such Suspension shall remain in effect until the court designated under Va. Code § 54.1-3935 enters a final order disposing of the issue before it.

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5. Proceedings upon First Offender Plea, Guilty Plea or Adjudication of a Crime

a. Plea under First Offender Statute

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(3) If the Attorney elects to have further proceedings conducted pursuant to Article 6, Chapter 39, Title 54.1 of the Code Va. Code § 54.1-3935, the Attorney shall file a demand with the Clerk of the Disciplinary System therefor not later than ten days prior to the date set for the Board hearing, and simultaneously provide available dates for a hearing not less than 30 nor more than 120 days from the date of the demand.

Upon such demand and provision of available dates as specified above, further proceedings before the Board shall be terminated and Bar Counsel shall file the complaint required by Va. Code § 54.1-3935. The hearing shall be scheduled as soon as practicable. However, the 30 to 120 day time frame shall not constitute a jurisdictionally specific time deadline for the hearing to be held.

If the Respondent fails to file a demand, and provide available dates, as specified above, the Respondent shall be deemed to have consented to the jurisdiction of the Board.

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b. Guilty Plea or Adjudication of a Crime

(1) Whenever the Clerk of the Disciplinary System receives written notification from any court of competent jurisdiction stating that an Attorney (the “Respondent??) has been found guilty or convicted of a Crime by a Judge or jury, pled guilty to a Crime or entered a plea wherein the facts found by a court would justify a finding of guilt, irrespective of whether sentencing has occurred, a member of the Board shall forthwith and summarily issue an order of Suspension on behalf of the Board against the Respondent and shall forthwith cause to be served upon the Respondent: a copy of the written notification from the court; a copy of the Board member’s order; and a notice fixing the time and place of a hearing to determine whether Revocation or further Suspension is appropriate.

The hearing shall be set not less than 14 or more than 30 days after the date of the Board’s order. Upon written request of the Respondent, the hearing may be continued until any probation ordered by a court has ended or after sentencing has occurred. Upon receipt by the Board of a certified copy of a notice of appeal from the conviction, proceedings before the Board shall, upon request of the Respondent, be continued pending disposition of such appeal. The Board shall, upon request of the Respondent, hold an interim hearing and shall terminate such Suspension while the probation, sentencing, or appeal is pending, if the Board finds that such Suspension, if not terminated, would be likely to exceed the discipline imposed by the Board upon a hearing on the merits of the case.

Upon presentation to the Board of a certified copy of an order setting aside the verdict or reversing the conviction on appeal, any Suspension shall be automatically terminated and any Revocation shall be vacated, and the License shall be deemed automatically reinstated. Discharge or Dismissal of a guilty plea or termination of probation shall not result in the automatic termination of the Suspension or vacation of the Revocation. Nothing herein shall preclude further proceedings against the Respondent upon Charges of Misconduct arising from the facts leading to such conviction.

c.(2) Procedure

The procedure applicable to Proceedings related to Misconduct shall apply to Proceedings relating to guilty pleas or Adjudication of a Crime,. except that

Iif the Respondent elects to have further Proceedings conducted pursuant to Va. Code § 54.1-3935, the Respondent shall file the Respondent’s a demand with the Clerk of the Disciplinary System herefore not later than ten days prior to the date set for the hearing before the Board,. and simultaneously provide available dates for a hearing not less than 30 nor more than 120 days from the date of the demand.

Upon such demand and provision of available dates as specified above, further proceedings before the Board shall be terminated and Bar Counsel shall file the complaint required by Va. Code § 54.1-3935. The hearing shall be scheduled as soon as practicable. However, the 30 to 120 day time frame shall not constitute a jurisdictionally specific time deadline for the hearing to be held. The order of Suspension issued by the Board shall remain in effect until the court designated under Va. Code § 54.1-3935 enters a final order disposing of the issue before it.

If the Respondent fails to file a demand, and provide available dates, as specified above, the Respondent shall be deemed to have consented to the jurisdiction of the Board.

If the Respondent files a demand that the Proceedings before the Board be terminated, and that further Proceedings be conducted by a three-judge Circuit Court, the order of Suspension issued by the Board shall remain in effect until the three-judge Circuit Court issues its ruling, subject, however, to the provisions of Va. Code § 54.1-3935.

d.(3) Action by the Board at the Hearing

If the Board finds at the hearing that the Respondent has been found guilty or convicted of a Crime by a Judge or jury, pled guilty to a Crime or entered a plea wherein the facts found by a court would justify a finding of guilt, an order shall be issued, and a copy thereof served upon the Respondent in which the Board shall:

(a)(1) continue the Suspension or issue an order of Suspension against the Respondent for a stated period not in excess of five years; or

(b)(2) issue an order of Revocation against the Respondent.


Updated: Apr 22, 2008