Report of the Executive Director/Chief Operating Officer

Karen A. Gould

The Virginia State Bar grew slowly this year. Active membership1 increased to 32,891 as of June 1, 2019, compared to 32,782 last year.

 

 2018-19

  2017-18

Active

31,908

31,878

Virginia Corporate Counsel licensed under SCV Rule 1A:5, Part I

981

942

Corporate Counsel Registrants licensed under SCV Rule 1A:5, Part II

597

561

Associate

13,502

13,493

Judicial (includes active and retired)

1,448

1,449

Retired/Disabled

3,483

2,945

Total

51,919

51,268

Karen A. Gould has served as executive director of the Virginia State Bar since January 1, 2008. 

Leonard C. Heath Jr. served as president of the VSB from June 17, 2018, until June 16, 2019. Mr. Heath was the first VSB president from the Peninsula since William O. Prince was president from 1978 to 1979. A private practitioner in Newport News, his year as VSB president has been focused on lawyer wellness, after a landmark report was issued by the National Task Force on Lawyer Well-being in August 2017, entitled “The Path to Lawyer Well-being: Practical Recommendations for Positive Change.” As a result of Len’s leadership, numerous rule changes in the disciplinary rules and the MCLE rules have been made affecting how the VSB regulates lawyers who are having problems with their health.  

In addition to these efforts, Len created the President’s Special Committee on Lawyer Well-Being, which focused its efforts on identifying the occupational risks for lawyers. This landmark report takes a global view of the risks associated with the practice of law. It identifies each risk and provides recommendations to individuals and organizations on how to avoid, or at least minimize, the risks. 

Executive Committee members 2018-2019

Ex-Officio Members

President                                                         Leonard C. Heath Jr.

President-elect                                                Marni E. Byrum          

Immediate Past President                               Doris Henderson Causey 

Conference of Local Bars Chair                     Charles M. Lollar            

Diversity Conference  Chair                           Luis A. Perez-Pietri

Senior Lawyers Conference Chair                 Carollyn C. Cox

Young Lawyers Conference President           Brian T. Wesley

 

At-large members

Joseph M. Bowen                               Tazewell

Brian L. Buniva                                  Richmond 

Eugene M. Elliott, Jr.                          Roanoke 

William E. Glover                              Fredericksburg

Beverly P. Leatherbury                      Eastville 

Jay B. Myerson                                   Reston 

 

Council consists of the three officers, four conference chairs, nine at-large members appointed by the Supreme Court of Virginia, and sixty-five elected members.

Council elections

The following persons were elected to three-year terms on the Virginia State Bar Council with terms beginning July 1, 2019.

Winners of contested Council elections Spring 2019:

Circuit 1 (1 vacancy)

Damian J. (D.J.) Hansen, Chesapeake (1stterm)

Circuit 13 (2 vacancies)

Eric M. Page, Richmond (1st term)

Cullen D. Seltzer, Richmond (1st term)

Circuit 17 (3 vacancies)

Adam D. Elfenbein, Arlington (2nd term)

Greg T. Hunter, Arlington (2nd term)

Josh D. Katcher, Arlington (1st term)

Circuit 20 (1 vacancy)

R. Penn Bain, Leesburg (1st term)

Circuit 24 (1 vacancy)

                           Eugene N. Butler, Lynchburg (elected to 1st term at circuit meeting)

Circuit 29 (1 vacancy)

D. Greg Baker, Clintwood (elected to 1st term at circuit meeting)

 

Uncontested Council election winners are as follows:

Circuit 2          Jeffrey B. Sodoma, Virginia Beach (1st term)

Circuit 3          Meredith B. Travers, Portsmouth (1st term)

Circuit 4          Ann B. Brogan, Norfolk (2nd term)

Circuit 5          Thomas G. Shaia, Suffolk (1st term)

Circuit 6          J. Daniel Vinson, Emporia (re-elected to 1st full term by circuit meeting; next election by electronic ballot)

Circuit 16        Palma E. Pustilnik, Charlottesville (2nd term)

Circuit 19        David J. Gogal, Fairfax (2nd term)

                        Doug R. Kay, Tysons Corner (2nd term)

Circuit 22        Eric H. Ferguson, Rocky Mount (1st term)

Circuit 23        K. Brett Marston, Roanoke (2nd term)

Circuit 26        Nancy M. Reed, Luray (2nd term)

Circuit 27        R. Cord Hall, Christiansburg (2nd term)

Circuit 31        Maryse C. Allen, Prince William (2nd term)

 

A Council at-large appointment was made by the Supreme Court of Virginia effective 4/10/2019 (vacancy created as a result of William E. Glover being appointed by the legislature to the circuit court bench and Judge Glover’s subsequent resignation from Council):

Atiqua Hashem, Richmond

Council at-large appointments by the Supreme Court of Virginia effective 7/1/2019:

Stephanie G. Cox, Blacksburg

Denise W. Bland, Eastville

Patricia E. Smith, Abingdon
 

Rule Changes and LEOs Approved by the Supreme Court of Virginia- FY 2019

Effective October 31, 2018, the Court approved proposed Comment [7] to Rule 1.1 of Professional Conduct (Competence). The proposed comment states that the maintenance of mental, emotional and physical ability is an important aspect of maintaining competence to practice law.  

Effective November 8, 2018, the Court approved LEO 1885, Legal Matchmaking Services, and LEO 1889, Duty to Appeal Termination of Parental Rights Cases When Client Is Missing.

Effective December 1, 2018, the Court approved a new provision, Paragraph 22, that requests each active VSB member report their pro bono hours and/or financial contribution in support of pro bono legal services on their annual dues statement.  The requirement complements the aspirational goal of Virginia Rule of Professional Conduct 6.1 that each lawyer should render at least two percent of professional time annually to pro bono legal services.

By Order entered December 12, 2018, the Court rejected revisions to Rule 1.10, imputed disqualification.  

Effective January 1, 2019, the Court approved two amendments to Paragraph 13.  The first facilitates “retirement with dignity” for a lawyer suffering from irreversible cognitive decline and allows transfer to the Retired/Disabled class of membership in lieu of an impairment suspension.  The other amendment allows the Office of Bar Counsel to furnish confidential information to an approved Lawyer Assistance Program to accelerate help to lawyers who need it.  

Also, effective January 1, 2019, the Court approved related amendments to Paragraph 13:  (1) a change to the definition of “Costs” to allow the assessment of guardian ad litem fees by the Clerk of the Disciplinary System if the Disciplinary Board chooses to assess such costs in its discretion; (2) a change to the impairment rules allowing the bar to dismiss pending cases upon a finding of impairment or a transfer to the disabled and retired class of membership under the new “retirement with dignity” rule; and (3) adding a definition for “Lawyer Assistance Program.” 

Effective February 15, 2019, the Court approved amendments to Rule 1.8(e)(1) of Professional Conduct.  The amendments allow attorneys to advance court and litigation expenses and to condition repayment on the outcome of the case, and to pay such costs on behalf of indigent clients.

At the October 2018 meeting Council considered a proposal to amend the rules under which the Virginia Lawyer Referral Service operates.  The VLRS rule amendmentswere approved by the Supreme Court of Virginia on April 9, 2019.  The rules will become effective July 1, 2020.  https://www.vsb.org/pro-guidelines/index.php/rule_changes/item/revisions_to_UPL

On April 26, 2019, the Supreme Court of Virginia approved the proposed rewrite of the unauthorized practice of law rules, which will become effective July 1, 2019.

Effective July 1, 2019, the Court approved revisions to Part 6, §I of the Rules of the Supreme Court of VA on the unauthorized practice of law: (1) Paragraph 3.A. Exceptions, was amended by the addition at the end of the paragraph to include non-lawyers or paralegals employed by legal aid societies; and (2) Paragraph 5.D, Comments, was amended to correct the reference to Paragraph 3(Q) to Paragraph 3(R).

Also, effective July 1, 2019, the Court approved amendments to Paragraph 17 regarding MCLE.  Beginning in the November 2019 through October 2020 MCLE compliance period, revised Paragraph 17 requires active members to affirm that they have attended at least one hour of lawyer well-being education within the past three (3) years. Members will be required to provide this information during the end-of-year reporting process for the period ending October 31, 2020, and annually thereafter. Failure to comply with this requirement will notsubject the member to the penalties set forth in Paragraph 19.

Matters still pending before the Court

Comment 5 to Rule 3.8(d) – Additional obligations of prosecutors

Council approved a revised version of proposed Comment 5 by a vote of 47 to 13. The petition was filed with the SCV in March 2019, and subsequently the Supreme Court of Virginia requested public comment on the proposal with a comment deadline of May 21, 2019. The petition is available on the VSB website.  As of the date of this report, June 18, 2019, no action has been taken on Comment 5 by the Court.

Matters to be filed with the SCV from the June 2019 Council meeting

The Standing Committee on Legal Ethics proposed three items that were approved by Council at its meeting on June 13, 2019 and will be presented to the Supreme Court of Virginia for approval:

LEO 1872– Virtual law office and use of executive office suites.  The proposed revisions to update references to Rule 1.6(d), on a lawyer’s duty to protect confidential information, and Rule 7.1, on advertising; the revisions also remove references to former Regulation 7 Governing Applications for Admission to the Virginia Bar Pursuant to Rule 1A:1 of the Supreme Court of Virginia since that regulation has been modified and no longer requires that lawyers admitted to practice by motion maintain a physical office space. The proposed revisions also modify the discussion of when a lawyer may advertise a non-exclusive office space as a location of the firm. The revisions remove the “factors to be considered” in making that determination, which currently include frequency of use, whether nonlawyers use the space, and whether signage indicates that the space is used as a law office. Thus, the analysis in the opinion is narrowed to the question of whether the advertised location is an office where the lawyer provides legal services, and whether the advertised location is being used to mislead prospective clients that the lawyer’s practice or firm is more geographically diverse or larger than is actually the case. This revision conforms the LEO with revisions made to LEO 1750 (approved by the Supreme Court of Virginia), which refers to and cites LEO 1872 excluding these two sentences.

LEO 1750 – Advertising compendium opinion.  The proposed revisions to this LEO remove citations to now-withdrawn Lawyer Advertising Opinions (LAOs) 0101, 0102, 0104, 0105, and 0113. The Committee withdrew those LAOs, along with seven others, on August 1, 2018, because they were obsolete, superseded by amendments to the Rules of Professional Conduct, or restated in whole or in part in LEO 1750.  The proposed revisions also include a substantial revision to section B of the LEO, on the use of the phrase “no recovery, no fee.” Effective February 15, 2019, Rule 1.8(e) is amended to allow a lawyer to make the repayment of advanced costs and expenses of litigation contingent upon the outcome of the client’s matter; therefore, it is no longer per se misleading for a lawyer or law firm to advertise that a client will pay nothing if there is no recovery. The LEO has been revised to reflect that fact, though it will still be misleading to advertise “no recovery, no fee” with no additional clarification if the lawyer or law firm may or will require the client to remain responsible for the costs and expenses of litigation.

Rule 4.4(b) – Receipt of inadvertently disclosed information.  The proposed changes to the Rule add paragraph (b), which codifies the guidance currently found in LEO 1702 regarding a lawyer who receives privileged information that was inadvertently sent. Specifically, paragraph (b) requires that a lawyer who receives information relating to the representation of the lawyer’s client and who knows that the information is privileged and was inadvertently sent must immediately terminate review or use of the information, promptly notify the sender, and abide by the sender’s instructions, if applicable, to return or destroy the information.

LEO 1890 was withdrawn from consideration.

Paragraph 13 changes were proposed and passed unanimously by Council at its June 13, 2019 meeting.  The Virginia State Bar’s Standing Committee on Lawyer Discipline proposed the amendments to Paragraph 13 of Part 6, Section IV of the Rules of the Supreme Court of Virginia in order to: (1) clarify and enhance the transparency and uniformity of the VSB’s disciplinary process while protecting the confidentiality of medical, psychological, treatment, and other sensitive information in public disciplinary proceedings; (2) eliminate two “dismissal” sanctions that create a disciplinary record; and (3) ensure the rules are consistent with procedure and practice. Specifically, the proposed Paragraph 13 rule changes will achieve the following if approved by the Supreme Court of Virginia:

Convert Dismissals De Minimis and Dismissals for Exceptional Circumstances from Disciplinary Sanctions to Outright Dismissals which do not Create a Disciplinary Record (13-15 and 13-16)

Elimination of “Dismissals De Minimis” and “Dismissals for Exceptional Circumstances” as disciplinary sanctions is proposed because the terminology is misleading to the public, complainants, and respondents. These misnomers perpetuate confusion as to whether a sanction has actually been imposed. 

The amendments incorporate the elements of Dismissals De Minimisand Dismissals for Exceptional Circumstances as bases for outright dismissal of complaints at the Subcommittee stage.  Similar to the existing limitations on private discipline at Paragraph 13-7.E, the amended Paragraph 13-15 places presumptive limitations on dismissing cases for de minimisviolations and exceptional circumstances. 

Revised Definition of Admonition (Paragraph 13-1)

These revisions set Admonition as the lowest disciplinary sanction, thus conforming Virginia to the vast majority of other jurisdictions and the ABA’s Model Rules of Disciplinary Enforcement.  The revised definition of Admonition expands the bases for the imposition of that sanction to include similar factors previously considered for Dismissals De Minimis and Dismissals for Exceptional Circumstances.

Confidentiality of Disciplinary Records and Proceedings (Paragraph 13-30)

The proposed amendments to Paragraph 13-30, consistent with the public’s general right of access to non-confidential information, accomplish the following: (1) promote transparency by providing a presumption of open records, hearings, determinations imposing public discipline, and all orders of license suspension, (2) clarify the proceedings and records that are confidential, and (3) create a new mechanism for parties to seal sensitive information, such as medical, psychological, or treatment information, for good cause shown. 

Clerk’s Duties to Publicize Sanctions (Paragraph13-9), the Requirement of Summary Orders in District Committee Proceedings (Paragraph 13-16), and District Committee Filings with Clerk (Paragraph 13-16)

Paragraph 13-9 delineates the duties of the Clerk of the Disciplinary System to maintain dockets, retain records, and publicize public sanctions. The amendments designate the Clerk to receive District Committee filings, consistent with Disciplinary Board proceedings and the Clerk’s status as official custodian of the records of the disciplinary system.

The amendments also require District Committees to issue a Summary Order upon conclusion of a hearing, consistent with the Disciplinary Board and three-judge Circuit Courts.  Finally, the amendments clarify the Clerk’s duties to notify the public, courts, and other jurisdictions of sanctions imposed upon issuance of a Summary Order.

These proposed revisions seek to protect the public by ensuring prompt dissemination of public sanctions and uniformity in disciplinary proceedings.

Subcommittee Members Who Considered Complaint May Not Serve on District Committee Hearing Panel (Paragraph 13-4)

This amendment provides that Subcommittee members who considered a Complaint will not participate in any District Committee hearing, consistent with the existing rule disallowing Board members who consider and reject an agreed disposition from serving on the hearing panel. This change will instill greater integrity and fairness into the District Committee hearing process.

 No Appeal from Agreed Dispositions at the Board Level (Paragraphs 13-6 and 13-26)

This proposal likewise ensures uniformity by clarifying that no appeal will lie from Agreed Dispositions at the Board level, consistent with Agreed Dispositions at the District Committee level.    

 Revise “Disciplinary Proceedings” to Exempt “Impairment Proceedings” (Paragraph 13-1) and Related Amendments (Paragraphs 13-1.1and 13-6.F)

Impairment proceedings are not disciplinary in nature. The purpose of Impairment proceedings is to determine whether the respondent is physically and mentally fit to practice law. While the bar does not treat Impairment proceedings as a disciplinary matter, these amendments explicitly exempt Impairment matters from the defined term “Disciplinary Proceedings” to further clarify the non-disciplinary nature of those proceedings.

Clarify that the Clerk Determines Compliance with Prerequisitesfor Reinstatement After a Disciplinary Suspension of More than One Year (Paragraph 13-25.D) Paragraph 13-25.D requires lawyers who have been under a disciplinary suspension for more than one year to meet certain requirements before seeking reinstatement of their law license. This amendment clarifies that the Clerk determines compliance, consistent with the Clerk’s existing duty to determine compliance with the prerequisites for reinstatement following revocation. (Paragraph 13-25.E).

Housekeeping Amendments

Paragraph 13 is revised throughout to clarify and simplify language as follows:

  • Amend Paragraph 13-1 definition of “Private Discipline” to clarify that Private Discipline means any form of discipline that is not public.
  • Revise definition of “Clerk of the Disciplinary System” to clarify the scope of the records of which the Clerk is the official custodian and allow for the use of the shortened “Clerk” throughout Paragraph 13.
  • Amend Paragraph 13-1 definition of “Disciplinary Record” to include any proceeding, in this or any other jurisdiction, which resulted in a sanction and clarify that Disciplinary Record does not include interim or summary Suspensions (such as suspensions for failure to comply with bar subpoenas, show cause suspensions issued in criminal conviction and reciprocal proceedings, and impairment suspensions).  
  • Replace “Disciplinary Rule” and “Disciplinary Rules” with “Rule of Professional Conduct” or “Rules of Professional Conduct” when referring to specific provisions of the Rules of Professional Conduct (Paragraphs 13-5, 13-7, and 13-30).   
  • Clarify “Disciplinary Record” as an appropriate factor in assessing sanctions (Paragraphs 13-16 and 13-18), as opposed to the overly broad “Disciplinary Proceedings” currently used.
  • Clarify language regarding persons ineligible for appointment in the Disciplinary System (Paragraphs 13-4 and 13-6).
  • Implement use of “this Court” when referring to the Supreme Court of Virginia.

SALARIED EMPLOYMENT CHANGES IN FY2019 (July 1, 2018 to June 30, 2019) 

  • Andrew Barber (Administrative Assistant, Bar Services) separated 07/24/2018 
  • Mallory Ralston (Meetings Assistant) hired to replace Andrew 08/20/2018  
  • Saunder Johnson (Membership Specialist) hired 09/05/2018
  • Lauren Parrish (Meetings Coordinator) separated 03/24/2019
                (Mallory Ralston promoted to replace Lauren 04/10/2019)
  • Kim Karnes (Meetings Assistant) hired to replace Mallory 05/25/2019
  • Darren Harris (Senior Software Engineer and Assistant Director of Information Technology) hired 10/25/2018
  • Bill Dickinson (Director of Information Technology) retired 01/01/2019
  • Selina Deale (Director of Information Technology) hired to replace Bill 01/25/2019 
  • Ned Davis (Bar Counsel) retired 03/01/2019  
                (Renu Brennan promoted to replace Ned on 02/23/2019)
  • Cameron Rountree (Deputy Executive Director) hired to replace Renu 03/10/2019
  • Andrea Lewis (Intake Analyst) separated 03/09/2019 
  • Adni Rahman (Intake Analyst) hired to replace Andrea 05/6/2019 
  • Brian Callen (Investigator/Northern Virginia) separated 03/24/19
  • Jim Haughton (Investigator/Northern Virginia) hired to replace Brian 05/15/2019 
  • Spencer Hall (IT Systems Support Specialist) separated 04/09/2019 
  • Kathy LaMotte (Assistant Clerk) separated 04/09/2019  
  • Kathryn Montgomery (Deputy Bar Counsel) separated 04/19/2019
  • Laurie Fuller (Legal Assistant/Litigation) retired 05/01/2019
                (Steven Long promoted to replace Laurie as a Paralegal 03/25/2019)  
  • Jamie Mathes (Senior Software Developer) hired 05/10/2019  

Positions filled as of June 30, 2019:  89

FTE FOR FY19:         92

FTE FOR FY20:         92

 


1  To reach this total, the VSB calculates total active membership by adding the number of active members licensed to practice in the Commonwealth of Virginia, active military spouse lawyers licensed under Rule 1A:8, and active Virginia Corporate Counsel lawyers licensed under Rule 1A:5.  Lawyers must be in good standing with the VSB to be considered an active member. The term “in good standing” means that the individual is current with dues payments and other membership requirements such as MCLE.  
Updated: Aug 29, 2019