A disciplined lawyer has an appeal of right to the Supreme
Court of Virginia from the Disciplinary Board or a Three-Judge Court. However, it is not common for lawyer
discipline cases appealed to the Court to result in a written published
opinion. To see even one opinion issued
in a year is noteworthy, but to have four published cases in a year is quite
extraordinary. Three of the cases, (Hunter, Zaug and Northam) were handed down on the same day February 28, 2013. Livingston
was issued on June 6, 2013.
What these cases have in common is that the Supreme Court of
Virginia dismissed charges of misconduct in all four cases. In addition, in all four cases there were
findings of misconduct at two hearing levels before each were appealed to the
Court. In other words, the VSB was the
prevailing party in all four cases before they were heard by the Court. In two of the cases, Zaug and Northam, the
Respondent attorney was completely vindicated and suffered no discipline. In Hunter,
the disciplinary sanction was upheld. In
Livingston, the matter was remanded
to the Board reconsider the appropriate sanction.
The standard of review applied by the Supreme Court of
Virginia in lawyer discipline cases is unlike that applied in criminal and
civil cases appealed to the Court. In
lawyer discipline cases, the standard of review is less deferential to the
tribunals in the proceedings below. The
VSB has the burden to prove by clear and convincing evidence that an attorney
violated the Rules of Professional Conduct. Weatherbee
v. Virginia State Bar, 279 Va. 303, 306, 689 S.E.2d 753, 754 (2010). In
reviewing the Disciplinary Board's decision, the Court “conduct[s] an
independent examination of the entire record.” Williams v. Virginia State Bar, 261 Va. 258, 264, 542 S.E.2d 385,
389 (2001); accord Northam v. Virginia
State Bar, 285 Va. 429, 435, 737 S.E.2d 905, 908 (2013). The Court reviews
the evidence and all reasonable inferences that may be drawn from the evidence
in the light most favorable to the VSB, the prevailing party. El–Amin v. Virginia State Bar, 257 Va.
608, 612, 514 S.E.2d 163, 165 (1999). The Court gives factual findings
substantial weight and view them as prima facie correct. Id. The factual conclusions are not given the weight of a jury
verdict, but they “will be sustained unless it appears they are not justified
by a reasonable view of the evidence or are contrary to law.” Id.
Three of these cases (Zaug, Northam and Livingston)
demonstrate that the Court will examine the record closely for the findings of
fact made by the lower tribunals in the proceedings below in addition to an independent
review of the record for facts that support those findings. There must be specific findings of fact made
in the record to support each charge of misconduct. The Court will not independently make
findings of fact that are absent from the record. Thus, the failure of the lower tribunal to
make an finding of fact necessary to support a charge of misconduct, will
result in a reversal of that lower tribunal’s finding of misconduct.
Hunter v. Virginia State Bar
In Hunter v. Virginia State Bar, the Respondent was a lawyer who published a blog that described his past successes in court as a criminal defense lawyer. The bar charged Hunter for violating an advertising rule that required a lawyer to use a disclaimer when advertising specific case results. Rule 7.2(a)(2). The bar also charged that Hunter breached his confidentiality duty to former clients by posting information detrimental and embarrassing to a client. Rule 1.6. For example, one of his posts disclosed that his former client "had tested positive for cocaine." Hunter stipulated that he did not obtain his clients' consent beforehand when he posted information about their cases.
Hunter challenged the bar, arguing that his blog was not commercial speech so the bar could not use its advertising rules to regulate non-commercial speech, and any attempt to regulate non-commercial speech had to be tested under a "strict scrutiny" standard. In regard to the charged that he breached Rule 1.6, Hunter argued that his statements about his former clients were made in a public proceeding and were therefore not confidential, or, alternatively, that the bar's application of Rule 1.6 to his blog posts was an unconstitutional abridgement of his right of free speech.
The Supreme Court ruled that Hunter's blog was commercial speech and could be regulated by the bar if the statements or claims made were potentially misleading without the required disclaimer and affirmed the lower court's finding that Rule 7.2 was violated. On the Rule 1.6 charge, the court held that the bar's application of the rule to Mr. Hunter was unconstitutional, and dismissed that charge.
Zaug v. Virginia State Bar
In Zaug v. Virginia State Bar, the respondent lawyer and her partner were defending a medical-malpractice action. On the day in which a
deposition was scheduled to occur (the deposition was to be covered by the respondent
attorney’s partner), Ms. Zaug accepted a call. It was one of the plaintiffs.
The lawyer took the call and asked the caller how she could help her. There were facts in the record from which one
could infer that Ms. Zaug knew right away that the caller was the represented
plaintiff. But the Court, doing an
independent review of the record and noting that there had not been a specific finding made by the lower court, concluded otherwise.
After a very brief exchange, the caller became emotionally upset and went into how the lawsuit was affecting her family. She eventually told Zaug that she wanted to withdraw the suit and move on with their
lives. Zaug attempted to disengage politely, eventually ending
the call something like 60 seconds from when it began according to the testimony of an employee in Zaug's law firm.
When the plaintiffs’ lawyer found out about this, she filed
a Bar complaint against the respondent, claiming that the defense lawyer had
wrongfully taken the call and spoken directly with a represented adverse party
about a matter involving the representation. The Bar issued a charge of
misconduct; a district committee found a de
minimis violation and dismissed the charge.
The Bar relied on comment 3 to Rule 4.2 that indicates that the rule applies even when the represented person initiates the contact
with the lawyer, requiring the lawyer to terminate the communication immediately once the lawyer knows that
the communication is prohibited by the Rule.
But a de minimis
dismissal is not a ruling in favor of the respondent, makes a finding of
misconduct and creates a disciplinary record.
Not happy with this outcome, Ms. Zaug appealed, first to a three-judge panel (which affirmed the de minimis dismissal) and then to the
Supreme Court.
The Court unanimously reversed and dismissed the charge
of misconduct. Citing duties of a lawyer to act professionally and civilly, the
court rejected the Bar’s application of the rule requiring that
Ms. Zaug immediately hang up on the
caller, but should allow time for her to disengage politely and civilly.
Northam v. Virginia State Bar
This case shows what happens when a conflicts check
fails. The attorney is a partner in a small firm on the Eastern Shore of Virginia. He was consulted by the Husband for
representation in a divorce, and met with the man and agreed to representation.
The next day, one of the lawyer’s partners met with the client’s wife, also to
evaluate representation in divorce proceedings.
Obviously, two lawyers from the same firm cannot serve on
opposite sides of a divorce case (or any other kind of litigation, for that
matter). During a second meeting, the partner asked the wife if she knew who
her husband was consulting. She replied
“Northam something,” and the lawyer immediately went to his secretary and
learned that his partner had, indeed, met with the husband the day before. He thereupon told the wife that he couldn’t
represent her, so she got other counsel, who later raised the disqualification
issue.
A bar complaint was filed because Northam refused to
withdraw from the husband's case.He continued to represent the husband. According to the Court’s view of the record, the
only information that he received from his partner was, “I think we have a
problem and I’m getting out.” The partner never told the first lawyer anything
that the wife had disclosed to him during the intake interview.
The district committee found violations of three provisions:
conflict of interest, imputed disqualification, and declining or terminating
representation. Rules 1.7, 1.10 and
1.16. On appeal to the Bar’s disciplinary board, the respondent prevailed with
regard to the first and third charges, but the board affirmed the finding based
solely on the imputed disqualification (Rule 1.10), ordering an admonition
without terms. The lawyer appealed to the Supreme Court.
This case is similar to the Court’s analysis of the record in the Zaug appeal – the majority reversed,
based on the absence of a specific factual finding by the lower tribunals
that the lawyer had actual (as opposed to constructive) knowledge of the fact
that his partner was disqualified. There
was testimony in the record from the partner that he had told the lawyer about
the purpose (though not the details) of his conversation with the wife, but the
Board’s findings of fact didn’t include a specific statement that the
respondent lawyer actually knew that his partner was prohibited from the
representation. Since the imputed disqualification rule requires actual
knowledge, the record fails to support the charge, so the judgment is reversed
and the disciplinary charge dismissed.
One might wonder how the two lawyers didn’t
have a duty to follow up, and why they failed to ask more questions once they were aware that
there was “a problem.” However, that was not an issue or charge raised in this case.
Justice Powell dissented, and her reasoning is that the
court reviews the record as a whole, not merely the Bar’s stated factual
findings, to see if the decision is supported; she would have affirmed the
Board’s decision based on the partner’s disclosure.
Here is a specific statement of the majority’s holding that,
as raised by the Court in Zaug, establishes
an emerging standard of review in attorney disciplinary appeals:
An attorney charged with a violation of professional
responsibility is entitled to findings of fact that contain a clear statement
of how the Board resolved disputed issues.
The bar will need to make sure that the disciplinary tribunal makes
specific findings of fact necessary to support a rule violation or risk
reversal of a decision on appeal.
Livingston v. Virginia State Bar
The charges of misconduct in the case arose out a
prosecutor’s handling of a drug case.
The defendant, Collins, was arrested after he purchased from an
undercover agent some 50 pills that Collins thought were Oxycontin. This offense occurred within 1000 feet of a
school and therefore triggered a separate and additional criminal charge. What Collins purchased were in fact
imitations of the actual prescription drug that were specially made for police
undercover operations.
Collins was tried in a bench trial on two drug charge
indictments. After Collins moved to
dismiss both charges at the close of the Commonwealth's evidence and again at
the close of all the evidence, the parties filed with the trial court memoranda
addressing two issues: (1) whether Collins was guilty of possession with the
intent to distribute a controlled substance when he was unaware that the item
possessed was an imitation controlled substance; and (2) whether the
Commonwealth must prove that Collins actually intended to distribute the
imitation controlled substance within 1,000 feet of public school property.
On the first issue Livingston conceded that it would be
error for the trial court to find Collins guilty because the pills he purchased
were an imitation controlled substance. Livingston
moved to amend the indictment but the trial court overruled the motion on the
basis that it was not timely. The Court
stated Livingston could reindict Collins if he thought it was appropriate.
On the second issue, Livingston argued that the decision in Toliver v. Commonwealth, 38 Va.App. 27,
561 S.E.2d 743 (2002), was not controlling. He maintained that unlike the
defendant in Toliver, who was chased onto school property, Collins' purchase of
the imitation controlled substance and his subsequent statement to a police
officer that he could sell each pill for approximately $80 established that,
while within 1,000 feet of a public school, Collins possessed the pills and had
the intent to distribute them.
Livingston subsequently presented a third indictment to a
grand jury, which charged that Collins “did manufacture, sell, give, or
distribute an imitation controlled substance which imitates a schedule I or II
controlled substance, namely, Oxycodone, in violation of” Code § 18.2–248.
Collins moved to dismiss that indictment on the basis of, among other things,
double jeopardy. At the hearing on the motion, and in proceedings thereafter, Livingston
kept describing the charge in the third indictment as “possession with intent
to distribute” even though the indictment charged a different offense, i.e.,
“manufacture, sell, give, or distribute.” Livingston never moved to amend the
third indictment to charge possession with the intent to distribute, and the
trial court granted Collins' motion to dismiss it.
Livingston challenged the trial court's judgment dismissing
the third indictment in an appeal to the Court of Appeals of Virginia. The
Court of Appeals dismissed the appeal because Livingston failed to file a
timely petition for appeal. In his “brief” filed in the Court of Appeals,
Livingston again incorrectly referred to the charge in the third indictment as
“possession with intent to distribute” while at the same time quoting the
charge in the indictment verbatim.
The VSB charged Livingston with incompetence under Rule 1.1
in the conduct of the case against Collins for charging Collins with possession
with intent to distribute Oxycontin when Livingston knew that the pills Collins
purchased were an imitation controlled substance. The VSB also charged that Livingston violated
Rule 3.8(a) for maintaining a charge Livingston knew was not supported by
probable cause. VSB further alleged that
Livingston was “incompetent and obtained an indictment not supported by
probable cause when he obtained the third indictment” because Livingston knew
there was no evidence that Collins actually manufactured or distributed the
pills. Furthermore, the VSB claimed that Livingston repeatedly and incorrectly
referred to the third indictment as charging possession with the intent to
distribute. The VSB also charged that Livingston was “incompetent” when he
filed the petition for appeal late. Finally, the VSB alleged that Livingston
“maintained an argument that was frivolous in objecting to the substitution of
the words ‘imitation controlled substance’ “ for the word “ ‘marijuana.’ “
As to the second indictment, during the district committee
hearing, Livingston admitted that he had not read the Toliver decision until after Collins’ attorney had discussed the
case in his brief to the trial court.
Livingston also acknowledged that he could not prove where Collins
intended to distribute the pills but argued that Collins’ possession of them
within 1000 feet of school property was sufficient and that he did not have to
prove that Collins intended to distribute the pills within the prohibited
school zone.
With regard to the third indictment, evidence produced at
the hearing showed that Livingston instructed his staff to prepare an
indictment for possession with intent to distribute an imitation controlled
substance, did not review the indictment before he presented it to the grand
jury and did not realize that his repeated references to the charge as
possession with intent to distribute were wrong and that the indictment
presented a different offense, until the VSB served charges of misconduct.
The District Committee found that Livingston violated Rules
1.1 (competence), 3.1 (frivolous positions) and 3.8(a)(charge not supported by
probable cause) and imposed a public reprimand with terms.
Livingston appealed the District Committee’s determination
to the VSB Disciplinary Board, which affirmed and imposed the same sanction.
In this case, Livingston conceded that he made three
“mistakes” in his prosecution of Collins: (1) reaching an incorrect legal
conclusion about the law of factual impossibility and thus erroneously charging
Collins with possession with the intent to distribute the actual controlled
substance; (2) obtaining the third indictment for distribution of an imitation
controlled substance rather than for possession with the intent to distribute
and failing to recognize that mistake during the trial and on appeal; and (3)
missing the deadline for filing the petition for appeal in the Court of
Appeals.5
Livingston asserted, however, that while these mistakes might constitute
negligence, they do not rise to the level of clear and convincing evidence of
incompetent representation in violation of Rule 1.1.
The Court disagreed with Livingston and found no error in
the Board’s conclusion that Livingston had violated Rule 1.1, finding that
Livingston failed to provide the “thoroughness and preparation reasonably
necessary for the representation” of his client, the Commonwealth. Even if an attorney has the necessary legal
knowledge and skill, “thoroughness and preparation” require the “[c]ompetent
handling of a particular matter,” which includes “inquiry into and analysis of
the factual and legal elements of the problem and use of methods and procedures
meeting the standards of competent practitioners.” Va. Sup.Ct. R., Part 6, §
II, R. 1.1, cmt. 5.
Livingston obtained three indictments against Collins. Each
was based on factual and/or legal errors due not to mere negligence, but to his
failure to analyze the evidence and the elements of the charges he brought
against Collins. And, without checking the accuracy of the charge in the third
indictment, which contained the wrong criminal offense, he presented the indictment
to a grand jury and pursued it in the trial court and also on appeal when he
filed the untimely petition for appeal. It is not necessary to determine
whether any one of these acts of misconduct alone would violate Rule 1.1. In
this case, viewing the record in its entirety, there is clear and convincing
evidence that Livingston failed to provide competent representation to his
client in the prosecution of Collins.
The Court dismissed the remaining charges under Rules 3.1
and 3.8(a) finding that the Board’s finding on those charges were in
error. The Court vacated the Board’s
order and remanded the case to the Disciplinary Board to determine the
appropriate sanction based on the Rule 1.1 violation.
One observation shared by some lawyers regarding this
decision is that because Livingston was so incompetent in his prosecution of
the drug charges against Collins, the VSB could not prove, to the Court’s
satisfaction, the charges under Rules 3.1 and 3.8(a). This is because the VSB
could not prove the requisite scienter
or mens rea to support those charges,
i.e., that Livingston actually knew
that those charges were not supported by probable cause.
