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Adopted | Proposed changes to the Clients’ Protection Fund Rules.

The proposed amendments were approved by Bar Council on October 25, 2019.


The VSB Clients’ Protection Fund Board is seeking public comment on proposed amendments to Clients’ Protection Fund rules.

Any individual, business, or other entity may file or submit written comments in support of or in opposition to the proposed changes with Vivian R. Byrd, Clients’ Protection Fund administrator of the Virginia State Bar, not later than October 11, 2019.

Comments may be submitted via email to cpf@vsb.org. Inspect the changes proposed and read additional commentary below.

 

 

EXECUTIVE SUMMARY FOR PROPOSED
CLIENTS’ PROTECTION FUND RULE REVISIONS

 September 20, 2019

 

Noteworthy proposed rule revisions:

1. Allow petitions for alleged losses caused by attorneys who transfer to the Disabled and Retired class of membership.

  • Preamble, Section 4.B.1
  • Rule II.E.1(a)

2.  Clarify petitioner’s duty to seek reimbursement from other sources besides the Clients’ Protection Fund.

  • Rule I.
  • Rule II.E.1(f)

3. Move provisions in the Rules pertaining to the appropriate measure/quantum of an award from the “Definition” sub-heading to the “Processing Petitions” subheading.

  • Rule V.F.2. & 3.

4. Add requirement that alleged loss have a nexus to Virginia.

  • Rule II.E.3.

5. Add new procedure if CPF Board’s investigation reveals a loss greater than amount requested by Petitioner

  • Rule V.F.4.

6.  Clarify procedure for requests for reconsideration

  • Rule VI.

 

COMMENTARY FOR PROPOSED
CLIENTS’ PROTECTION FUND RULE REVISIONS

 September 20, 2019

 

1.     These changes are proposed pursuant to the addition of subparagraph K. to Pt. 6 § IV. Para. 13-23 of the Rules of the Supreme Court of Virginia effective January 1, 2019. This subparagraph allows “Bar Counsel to terminate and close an Impairment Proceeding if the Respondent transfers to the Disabled and Retired class of membership . . . and files a declaration . . . that the Respondent will not seek transfer from the Disabled and Retired class of membership.” Just as lawyers whose licenses are suspended or revoked for disciplinary reasons often leave petitioners without a financial remedy, lawyers who transfer to the new status as the result of a disciplinary impairment proceeding would likely not have resources from which petitioners could receive reimbursement of a loss caused by dishonest conduct. Thus, it is recommended the Fund’s rules be broadened to include eligible claims resulting from the actions of Disabled and Retired lawyers.

2.     These changes are meant to reiterate that the Fund is a remedy of last resort as stated in the “Jurisdiction” subheading, the language of which was moved from former Paragraph 4—“Eligible Claims.” Additionally, Rule II.E.1.(f) shifts the burden for exhausting efforts to obtain knowledge of the whereabouts of the Lawyer from the Bar to the Petitioner. The latter change is recommended because the Bar’s knowledge of the Lawyer’s whereabouts is inconsequential to the Petitioner’s knowledge of the Lawyer’s whereabouts and whether the Petitioner has sought compensation from the responsible party.

3.     This change is proposed simply to classify the Rules more appropriately by function; the text was not changed. The means by which a Petitioner can be awarded an amount for full compensation or fifty percent compensation is the procedure regarding the processing of petitions and not simply a definition as currently classified.

4.     This change is proposed to minimize claims on the fund when a Virginia licensed attorney, practicing in another state, engages in dishonest conduct which leads to a loss not impacting Virginia residents. In such situations, confusion can arise between the Fund and other states’ clients’ protection funds as to which, if any, will compensate the Petitioner. This rule is meant to impose some nexus (the amount of which is left to the discretion of the board) between the loss suffered and the Commonwealth.

5.     This change is meant to afford a Lawyer an opportunity to respond to a petition in the event the investigation reveals a Petitioner may be entitled to more than what he/she sought in the original petition. Given that dishonest conduct is a requirement for an eligible claim, many, if not most, Lawyers who face a Fund petition will also confront disciplinary or even criminal consequences that can be more disconcerting than the pecuniary risk of a Petitioner’s demand. For that reason, some Lawyers may decide to ignore the Petition and instead compensate the Fund if/when they decide to return to practice. In some cases, however, a material increase in the amount sought might lead a Lawyer to vigorously defend against the petition and potential Fund obligation. Due process dictates in such cases the Lawyer be advised of the increased jeopardy and be afforded an opportunity to respond. This rule change would not deprive the Petitioner the option to persist with the amount sought in the original petition, but rather only ensure the Lawyer is given an opportunity to respond to any increase in petition demand.

6.     This change is meant to clarify when requests for reconsideration are deemed exhausted. As currently written, a Lawyer could seek reconsideration of a full award to a Petitioner, and if, as a result, the award were reduced to fifty percent, the Lawyer could still seek reconsideration yet again in hopes that the second reconsideration would lead to a denial of the Petition. On the other hand, a Petitioner could seek reconsideration of a denial decision, and then seek reconsideration again if only a partial award were made. Along the way, both parties could seek reconsideration of the other’s award, partial award or denial. This proposed change limits and makes explicit the circumstances giving rise to a right to reconsideration for both the Petitioner and the Lawyer.

View the full proposed Rule Changes (PDF)

Updated: October 28, 2019