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Proposed | amendments to Paragraph 13 regarding clarification of the term “shall.” Comments due December 1, 2022.

Virginia State Bar is seeking public comment on proposed amendments to the Rules of Supreme Court of Virginia, Part 6, Section IV, Paragraph 13 (“Paragraph 13”) regarding the clarification of the term “shall,” which appears 482 times in Paragraph 13.    

In an August 16, 2018, Memorandum to the Boyd-Graves Conference, the Committee on Using “Shall” in Legislative Drafting concluded that “shall is susceptible to significant ambiguity and the better practice in legislative drafting would be to eliminate shall altogether and to use the more precise term intended – such as must, may, will, should, is, or is entitled to.” 

In November 2020, the Supreme Court of Virginia amended the Rules of Supreme Court of Virginia, Parts 1-5A and 7-11, to clarify the meaning of “shall.” 

The Committee on Lawyer Discipline (“COLD”) has approved amendments to Paragraph 13 that eliminate the word “shall.”  During this process, COLD identified certain changes that either are substantive or could be perceived as substantive, as identified below. 

Paragraph 13-23.C

The recommended changes include a substantive change to Paragraph 13-23.C, as follows:

  1. Investigation. Upon receipt of notice or evidence reliable information that raises a substantial question as to whether an Attorney has or may have an Impairment, Bar Counsel shall must cause an Investigation to be made to determine whether there is reason to believe that the Respondent has the Impairment.

COLD concluded that adding the terms “reliable information” and “substantial question” to Paragraph 13-23.C, while also changing “shall” to “must,” strikes a balance between (1) requiring bar counsel to investigate incredible or remote allegations of Impairment and (2) ensuring that potential Impairments are appropriately investigated.    

Paragraphs 13-16.L and 13-18.I.1

Paragraphs 13-16.L and 13-18.I.1 are parallel provisions regarding District Committee and Disciplinary Board hearings.  The revision reads:

Bar Counsel shall may present witnesses and other evidence supporting the Certification.  The Respondent shall must be afforded the opportunity to cross-examine the Bar’s witnesses and to challenge any evidence introduced on behalf of the Bar.  Board members may also examine witnesses offered by Bar Counsel.

COLD concluded that “may” is appropriate in the first line, instead of “must.”  If the tribunal determines that Bar Counsel has not presented sufficient evidence to support a charge in the Certification, the tribunal must sustain a motion to strike.  See Para. 13-16.R; 13-18.J.

Paragraph 13-18.G

Paragraph 13-18.G currently states that the Chair of the Disciplinary Board “shall state in the presence of the Respondent and the Complainant, if present, a summary of the alleged Misconduct, the nature and purpose of the hearing, the procedures to be followed during the hearing, and the dispositions available to the Board following the hearing.”  Current practice is for the Chair to ask whether the parties are familiar with the procedures and, if both state that they are, the Chair does not explain the procedures in detail.  In order to ensure that the procedures are described where necessary while still allowing the parties to waive the description, COLD approved the following revision: 

G.        Preliminary Explanation.  Absent waiver by the parties, Tthe Chair shall must state in the presence of the Respondent and the Complainant, if present, a summary of the alleged Misconduct, the nature and purpose of the hearing, the procedures to be followed during the hearing, and the dispositions available to the Board following the hearing.  The Chair shall must also inquire of the members present whether any member has any personal or financial interest that may affect, or be reasonably perceived to affect, his or her ability to be impartial.  Any member answering in the affirmative shall must be excused from participation in the matter.

There are eight instances where COLD approved replacing shall with “should.”  In all these examples, COLD concluded that the use of “should,” rather than “must,” conveys the meaning intended by the previous use of “shall.” 

  • Paragraph 13-2: Nothing in this Paragraph shall should be interpreted so as to eliminate, restrict or impair the jurisdiction of the courts of this Commonwealth to deal with the disciplining of Attorneys as provided by law. 
  • Paragraph 13-4.A: In creating the District Committee areas, Council shall should give due consideration to Attorney population and the community of interest among different judicial circuits within a District Committee area. 
  • Paragraph 13-4.D: Council shall should appoint members of each District Committee for such terms of service as will allow for the retirement from the District Committee, or completion of the existing terms, of one-third of the District Committee membership at the end of each fiscal year. 
  • Paragraph 13-4.E:  Before nominating any individual for membership on a District Committee, the Council members making such recommendation shall should first determine that the nominee is willing to serve on the District Committee and will conscientiously discharge the responsibility as a member of the District Committee.
  • Paragraph 13-6.A: Before nominating any individual for membership on the Board, the Bar's nominating committee shall should first determine that the nominee is willing to serve on the Board and will conscientiously discharge the responsibilities as a member of the Board.
  • Paragraph 13-7.E: Any Respondent who has received two determinations of Private Discipline within the ten-year period immediately preceding the Bar’s receipt of the oldest Complaint that the Subcommittee is considering, shall should receive public discipline for any violation of the Disciplinary Rules, unless there are sufficient facts and circumstances to rebut such presumption.
  • Paragraph 13-7.G: In determining to which District Committee a Complaint should be referred, the Clerk shall should consider the volume of Complaints pending before the District Committee and the inconvenience imposed upon the Respondent and the witnesses by the location of the District Committee.
  • Paragraph 13-12.G: All communication with the Bar, whether written or oral, shall should be in English.

The proposed amendments may be inspected below or at the office of the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, Virginia 23219-0060, between the hours of 9:00 am and 4:30 pm, Monday through Friday.

Any individual, business, or other entity may submit written comments in support of or in opposition to the proposed opinion to Cameron Rountree, executive director of the Virginia State Bar, not later than December 1, 2022. Comments may be submitted via email to publiccomment@vsb.org.

View proposed Paragraph 13 (PDF posted 9/29/22)

Updated: October 3, 2022