Report of the Office of Bar Counsel

Edward L. Davis, bar counsel

 

I. 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.

II. Personnel Matters

There was little turnover in the OBC during the fiscal year.  Two legal secretaries and one Intake analyst departed for employment opportunities in the private sector and with other agencies. The OBC hired Cassidy Revelo as a legal secretary in October 2017.  Cassidy worked for two years as a paralegal at large law firms focusing on immigration services.  Her experience in high volume, detailed work under tight deadlines and her fluency in Spanish have served the OBC well.  In January 2010, Kelly Armentrout became the newest Intake analyst.  Kelly is a graduate of James Madison University with five years of large and small law firm administrative experience.  Finally, effective May 25, 2018, Suzette Walker became our newest legal secretary.  Suzette brings more than 20 years of experience in the legal field.  She worked for nine years in the Petersburg Juvenile and Domestic Relations District Court.  

As discussed below in Part IV, the OBC chose not to fill three position vacancies created by the departures of attorneys in recent years. The result is a reduction in the number of discipline attorneys from 13 to 10.  The OBC will keep the staff of attorneys at this level as part of its new strategic plan.

The April edition of the Virginia Lawyer included a profile of Assistant Bar Counsel Katie Uston concerning her role as President of the National Organization of Bar Counsel (NOBC). She completes her term on July 1, 2018. As NOBC President, Katie has been involved in the implementation of the recommendations made in the August 14, 2017 report of the National Task Force on Lawyer Well-Being.  Chief Justice Lemons, who was a member of the National Task Force, organized a statewide task force to study the report and appointed Katie to participate.  More information about the OBC’s initiatives in adopting provisions of the Lawyer Well-Being Report appears below in Part V.  

III. Production

As of June 25, 2018, there were 115 public trials, agreed dispositions and consents to revocation, a decrease of 8.7% from the 126 reported one year ago.  The total volume of open cases, however, has dropped to 330 from 352 at the end of the last fiscal year, a decrease of 6.25%, and a reduction of 50.2% from the 663 total open cases five years ago. As of June 25, there were only seven “pre-017” cases remaining. This is the lowest that this number has ever been since I began reporting it ten years ago. The fiscal year began with 41 such cases.  By comparison, the number was 250 ten years ago 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 summary dismissals of complaints that do not affect the disciplinary rules, and the proactive resolutions of minor misconduct complaints without creating disciplinary records.

IV. Outlook

Last year, the OBC chose once again not to fill a position vacancy among its attorneys.  The result was an overall reduction in the attorney staff from 13 to 10.  The OBC also reduced its administrative support staff in recent years.  The reasons for these reductions were budgetary and strategic in nature.  We found that a high-caliber of attorneys and support staff enabled the OBC to reduce significantly the overall volume of open cases, as indicated above in Part III.    Further, the new managerial structure implemented two years ago, with Ed Dillon and Brent Saunders serving as Senior Assistant Bar Counsel, has led to more timely review and issuing of charging documents in disciplinary cases.  The OBC has kept a watchful eye on the dockets following this reduction in staff, and the numbers are improving.  We will strive to continue this trend while meeting our public protection mission.

V. Changes to Procedural Rules and Rules of Professional Conduct

The OBC has been working on several recommendations for The Standing Committee on Lawyer Discipline (COLD) to consider that address the recommendations of the National Task Force on Lawyer Well-Being, issued August 14, 2017.  On Saturday, February 24, 2018, the Virginia State Bar Council (Council) approved by unanimous vote changes to the disciplinary procedural rules developed and approved by COLD.  Among the changes are clarification that a Disciplinary Record does not include administrative suspensions, such as impairment suspensions. This will remove the stigma of a disciplinary record from impairment, which addresses health concerns as opposed to attorney misconduct.  Another rule change approved by Council clarifies that the burden of proof in all proceedings is clear and convincing evidence. Existing rules do not set forth the burden of proof in impairment cases.  These changes represent the first of many steps toward implementing measures that emphasize lawyer well-being.  On April 16, 2018, the Supreme Court of Virginia approved these changes, effective June 15, 2018.

At its meeting on March 7, 2018, COLD approved additional amendments to the procedural rules intended to address lawyer well-being.  One proposal would facilitate “retirement with dignity” for a lawyer suffering from irreversible cognitive decline. It would allow transfer to the Retired/Disabled class of membership in lieu of an impairment suspension. The other proposal would allow the OBC to furnish confidential information to an approved Lawyer Assistance Program in an attempt to accelerate help to lawyers who need it.  The proposal is on point with the report of the National Task Force on Lawyer Well-Being, which recommends that when information indicating mental health or substance abuse issues is discovered during investigation or prosecution of lawyer regulation matters, confidentiality rules should allow sharing of such information with lawyer assistance programs.  On Thursday, June 14, Council approved the proposed amendments by unanimous vote.  They are now under consideration at the Supreme Court of Virginia.

At future meetings, COLD will continue to study the report of the National Task Force on Lawyer Well-Being and what amendments, if any, are needed to the Rules of Court to support lawyer well-being.

At its meeting on June 14, 2018, Council approved proposed Comment [7] to Rule 1.1 of the Rules of Professional Conduct, intended to address lawyer well-being.  The proposed comment states that the maintenance of mental, emotional and physical ability is an important aspect of maintaining competence to practice law.  The proposal is under consideration by the Supreme Court of Virginia.

On April 20, 2018, the Supreme Court approved Legal Ethics Opinion (LEO) 1750, the Advertising Compendium Opinion, effective immediately.  The LEO clarifies the implications of the April 17, 2017 amendments to the advertising rules, RPCs 7.1 and 7.3.

The Study Committee for Revision of the UPL Rules (SCRUPL) had its final meeting on May 3, 2018, and on May 16, 2018, presented a revised draft of the Definition of the Practice of Law to the Legal Ethics Committee.  The Legal Ethics Committee voted to release this version of the rule for public comment. The deadline for comments is July 13, 2018.

VI. Matters in the Supreme Court of Virginia

  1. Reinstatement Cases

On January 11, 2018, Steven Frank Helm petitioned for the reinstatement of his law license.  Mr. Helm consented to the revocation of his license on April 1, 2011, with disciplinary charges pending.  Following an investigation, the Virginia State Bar Disciplinary Board will hold a hearing on the petition.

On February 9, 2017, Anne Marston Lynch petitioned for the reinstatement of her law license.  Ms. Lynch consented to the revocation of her license on December 3, 2009, while disciplinary charges were pending.  On December 8, 2017, Deputy Bar Counsel Kathryn Montgomery tried the case before the Disciplinary Board, which, by Order entered February 8, 2018, recommended against reinstatement.  On April 16, 2018, the Supreme Court approved the Disciplinary Board’s Order.

  1. Appeals Decided by the Supreme Court of Virginia

As of June 25, 2018, the Supreme Court has decided no appeals during the current fiscal year.  Two appeals are pending, as indicated below in Part VI.C.

  1.  Appeals Pending before the Supreme Court of Virginia 

On June 13, 2018, Joseph Dee Morrissey noted the appeal of the revocation of his law license imposed by a three-judge circuit court on March 30, 2018, effective June 15, 2018.  With his notice of appeal, he also filed a petition to stay the revocation pending appeal. Assistant Bar Counsel Christine Corey filed an opposition the following day.  By Order, entered June 14, 2018, the Supreme Court denied the stay.  

On June 6, 2018, the Supreme Court heard the appeal of a Public Reprimand issued to Thomas Hunt Roberts.  A decision is pending.  Assistant Attorney General Madeline Gibson represents the bar on the appeal.

Updated: Jun 29, 2018