Lawyer Discipline

James W. Hundley, Chair

The Standing Committee on Lawyer Discipline (COLD) oversees the attorney disciplinary system to ensure that it is efficient, effective, fair, and accountable to the public.  As part of its review of the efficiency and efficacy of the disciplinary system, COLD monitors the progress of complaints and investigations through monthly reports from Bar Counsel and dialogue with other volunteers in the disciplinary system, including the District Committee Chairs.  

COLD also oversees the disciplinary process through two subcommittees, Oversight and Rules.  The Oversight Subcommittee conducts random reviews of complaints to ensure that all procedures are followed. In FY 2020, there were approximately 120 random reviews. Specific files are also reviewed if complainants or respondents question the handling of a case. In FY 2020 there were five such reviews. Elsey A. Harris, III chaired the Oversight Committee.

The Rules Subcommittee, chaired by COLD Vice-Chair, Peter A. Dingman, regularly reviews and, as appropriate, suggests amendments to Part Six, Section IV, Paragraph 13 of the Rules of the Supreme Court of Virginia, which governs the disciplinary process.  COLD publishes all proposed amendments for comment, reviews the comments received, and presents proposed amendments to the Virginia State Bar Council, which decides whether to petition the Supreme Court for adoption of the proposed changes.  

Effective December 1, 2019, COLD’s proposed amendments to Paragraph 13 of Part 6, Section IV of the Rules of the Supreme Court of Virginia were approved by the Supreme Court of Virginia.  The amendments promote transparency, remove confusing terminology, and ensure uniformity in disciplinary proceedings.

During FY 2020, the Rules Subcommittee studied succession planning and whether to encourage or require some or all attorneys to create and maintain a succession plan.  The Subcommittee expanded the discussion to include practitioners with expertise in the area, including Barbara Anderson, and Assistant Ethics Counsel.   The Subcommittee also reviewed information from other jurisdictions, particularly those which had recently enacted requirements regarding succession planning or encouraged members to voluntarily identify that they had a plan in place.  After the review and discussion, the Subcommittee concluded that Comment 5 to Rule 1.3, Diligence, which encourages solo practitioners to have a succession plan is sufficient. Comment 5 to Rule 1.3 provides as follows:  “A lawyer should plan for client protection in the event of the lawyer's death, disability, impairment, or incapacity. The plan should be in writing and should designate a responsible attorney capable of making, and who has agreed to make, arrangements for the protection of client interests in the event of the lawyer’s death, impairment, or incapacity.”

COLD’s annual disciplinary conference was held at the Virginia Crossing Hotel in Glen Allen, Virginia on July 25 and 26, 2019.  The 139 attendees included COLD and the district committee and Disciplinary Board members that hear disciplinary matters.  The programs at the conference seek to enhance the disciplinary system by educating, training, and updating the disciplinary system volunteers on the disciplinary process, caselaw, and ethics, as well as providing interactive sessions and opportunities for members to collaborate and ask questions about the disciplinary process.

 

In the fall of 2019, the Office of Bar Counsel, COLD, and members of the District Committees and Disciplinary Board also participated in District Committee training in each of the districts.  This training was enthusiastically received, and the plans are to continue and enhance the training, perhaps virtually.  Unfortunately, the July 2020 disciplinary conference was cancelled due to COVID-19.  COLD and the Office of Bar Counsel are working on virtual training for the last summer and fall. 

 

COLD is comprised of 10 attorneys, two laypersons, and the first vice chair of the VSB Disciplinary Board, who serves ex-officio.  In FY 2020, the committee met every other month beginning in July continuing through March.  Due to the COVID-19 pandemic, COLD did not hold the May meeting; however, staff issued its regular reports to COLD.   

 

This year four of us are retiring after six years of service to COLD:  I, Lizzie Martingayle, E.M. Wright, and Skip Francis.  On behalf of COLD, I thank Lizzie, E.M., and Skip for their dedication and lengthy service in the disciplinary system including their six years of service in COLD.  Also, on behalf of COLD, I welcome the new members:  R. Braxton Hill, IV, Sean C.E. McDonough, Melissa W. Robinson, and Gaye T. Stone.  Peter A. Dingman and Pleasant A. Broadnax will serve as Chair and Vice-Chair, respectively.  Pleasant Broadnax will also chair the  Rules Subcommittee, and Elsey A. Harris, III will continue to chair the Oversight Committee.   

Submitted June 17, 2020 

Updated: Jul 15, 2020