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RULES OF SUPREME COURT OF VIRGINIA
PART SIX. INTEGRATION OF THE STATE BAR
SECTION IV. ORGANIZATION AND GOVERNMENT.

Va. Sup. Ct. Organ. and Gov. PARA 13 (2001)

Review Court Orders which may amendthis Rule

13. Procedure for Disciplining, Suspending, and Disbarring Attorneys.

A. Definitions. - As used in this Rule (Paragraph), the following terms shall have the meaning herein stated unless the context clearly requires otherwise:

"Admonition" means a determination by the Board and "Private Reprimand" means a determination by a District Committee that misconduct has been established but that no substantial harm to the Complainant or the public has occurred and that no further disciplinary action is necessary.

"Attorney" means a member of the Virginia State Bar, any other attorney admitted to regular or limited practice in this State, and any member of the bar of any other jurisdiction while engaged, pro hac vice or otherwise, in the practice of law in Virginia.

"Bar" means the Virginia State Bar.

"Bar Counsel" means an attorney who, together with such assistants as may be required, is appointed as Bar Counsel, subject to the approval of the Attorney General pursuant to 2.1-122(c) of the Code of Virginia (1950), as amended, by the Council of the Bar.

"Board" means the Virginia State Bar Disciplinary Board appointed as hereinafter provided.

"Charge of Misconduct" means the notice given by the bar to the Respondent, setting forth the Misconduct alleged to have been committed by the Respondent, and the rules of conduct alleged to have been violated.

"Clerk of the Disciplinary System" means that employee of the Virginia State Bar who, together with such assistants as may be required, provides administrative support to the disciplinary system and serves as official keeper of the Bar's disciplinary records.

"Complainant" means the initiator of a Complaint.

"Complaint" means any oral or written communication to the Bar alleging Misconduct or from which allegations of Misconduct reasonably may be inferred.

"Committee Counsel" means a District Committee member assigned to conduct or oversee the investigation of a Complaint.

"Council" means the Council of the Bar.

"Crime" means:

(a) any offense declared to be a felony by federal or state law;

(b) any other offense, whether federal or state, involving theft, fraud, forgery, extortion, bribery, or perjury; or

(c) an attempt, solicitation or conspiracy to commit any of the foregoing.

"Disability" means: (a) the status of being a drug addict, an alcoholic, or mentally ill as those terms are defined in 37.1-1 of the Code of Virginia; or

(b) any physical or mental condition that materially impairs the fitness of an Attorney to practice law.

"Disciplinary Record" means any record of any proceeding in which the Respondent has been found guilty of Misconduct, including those proceedings in which (1) the Board's or Court's finding of Misconduct has been appealed to the Supreme Court of Virginia; (2) the Respondent has surrendered his license to practice law or has been found guilty of a Crime; or (3) the Respondent has received a sanction pursuant to paragraph 13.K.(1). "Disciplinary Record" shall also include those cases in which a Charge of Misconduct has been (1) dismissed with Terms; (2) dismissed for exceptional circumstances; or (3) dismissed upon a finding that the alleged or questioned Misconduct is not of sufficient magnitude to warrant disciplinary action and the Respondent has taken reasonable precautions against a recurrence of the same Misconduct.

"District Committee" means one of the District Committees appointed as hereinafter provided or, where the context requires, a panel thereof.

"Executive Director" means the Executive Director of the Bar and any assistant designated by Council to act in his stead.

"Judge" means a person within the definition of judge contained in 2.1-37.1 of the Code of Virginia.

"Misconduct" means:

(a) any unlawful conduct, as described in 54.1-3935 of the Code of Virginia;

(b) any violation of the Rules of Professional Conduct or the Code of Professional Responsibility; or

(c) conviction of a criminal offense, other than a Crime as defined herein, which reflects upon the fitness of an Attorney to practice law.

"Public Reprimand" means a determination that Misconduct has been established, but that the nature of such Misconduct and its consequent harm to the Complainant or the public, though substantial, does not justify the more severe sanction of suspension or revocation of the Respondent's license.

"Respondent" shall mean any Attorney against whom a Complaint has been made or who is the subject of any proceeding under this Paragraph 13.

"Revocation" shall include revocation of an Attorney's license (a) by the Board whether for Misconduct, Crime, Disability or suspension or revo-cation in another jurisdiction, or (b) by a court, whether pursuant to Paragraph 13.1. or Va. Code 54.1-3935.

"Standing Committee" means the Standing Committee on Lawyer Discipline created and appointed under Article VIII, Section 3 of the Bylaws of the Virginia State Bar and Council.

"Subcommittee" means a Subcommittee of the District Committee or any Panel thereof, consisting of (i) the District Committee member appointed by the District Committee Chairman to act as chairman pro tempore, (ii) a non-lawyer member of the District Committee, and (iii) a lawyer member, which is convened for the purpose of performing the functions described in subsection (B)(5) of this Paragraph 13.

"Terms" shall mean those conditions imposed by the Subcommittee, District Committee or Disciplinary Board on the Respondent, by which the Respondent is required to perform certain remedial actions as a condition predicate for the dismissal of a Complaint or the imposition of an Admonition, or a private or public reprimand, under such rules as are prescribed by Council.

B. Authority and Duties of the Council, the Standing Committee, Subcommittees, District Committees and Bar Counsel; Investigation and Prosecution of Complaints:

(1) The Council shall have general administrative authority over and responsibility for the disciplinary system created pursuant to this Paragraph 13; provided, however, that the Council shall have no authority over the Board, nor shall the Council have authority over a District Committee exercising its adjudicative powers under this Rule. Council shall appoint District Committees as provided herein and shall prescribe uniform rules of procedure for the District Committees. All such powers and duties of Council may be exercised by the Standing Committee, subject to direction and control of the Council, except the power to appoint District Committees and prescribe rules of procedure.

(2) Appointment of Committees, Panels and Subcommittees:

(a) Council shall appoint a sufficient number of District Committees to carry out the intent of this Paragraph 13. District Committees shall be appointed from geographical areas consisting of one or more judicial circuits. In creating the District Committee areas, Council shall give due consideration to attorney population and the community of interest among different judicial circuits within a District Committee area.

(b) Each member of a District Committee shall be a resident of or have his or her office in the District Committee area for which he or she is appointed. Members shall, to the extent practicable, be appointed from different geographical sections of their districts.

(c) Council shall appoint members of each District Committee for such terms of service as will allow for the retirement from the Committee or completion of the existing terms of one-third (1/3) of the Committee membership at the end of each fiscal year. A District Committee member's term shall be for three (3) years, and, upon completion of such term, such member is eligible for appointment to a second successive three (3) year term. A member who has served two (2) full successive terms of three (3) years each on a District Committee shall not be eligible to serve again until one (1) year after the expiration of his or her second term.

(d) Each District Committee shall consist of ten, or in the discretion of Council, twenty, thirty or forty members. Further, former members of a District Committee may serve on a District Committee Subcommittee or participate in a District Committee hearing whenever the District Committee Chairman determines that such service is necessary for the orderly administration of the District Committee's work. Three members of a ten-member District Committee, six members of a twenty-member District Committee, nine members of a thirty-member District Committee, and twelve members of a forty-member District Committee shall be non-lawyers. If a District Committee consists of twenty members or more, ten members designated by the Council or District Committee Chairman, or as otherwise designated pursuant to this Paragraph 13, shall become a panel and may act on matters which come before it. A quorum shall consist of five persons. One person assigned to a District Committee or Panel shall be a present or former non-lawyer member of either the District Committee before which the proceeding is held or a present or former member of any other District Committee. If the scheduled non-lawyer person is unable to attend, and if an alternate non-lawyer is not reasonably available, participation by non-lawyer members shall not be required in a proceeding if a quorum is otherwise present. The action of a majority of a quorum shall be the action of the District Committee or Panel.

There shall also be one or more Subcommittees of each District Committee, appointed by the Chair thereof. Where a District Committee is divided into two or more panels, there shall be one or more Subcommittees of each panel, as determined by the District Committee Chairman. A quorum of a Subcommittee shall consist of all three members, who may act in person or through any means of communication.

(3) Authority and Duties of Bar Counsel:To the extent provided in this rule and subject to the general supervision of the Standing Committee, Bar Counsel shall initiate, investigate, present or prosecute Complaints or other proceedings before Subcommittees, District Committees, the Board and the Circuit Courts. In the course of performing these functions, Bar Counsel shall act independently and exercise prosecutorial autonomy and discretion. This includes, but is not limited to, the authority to examine criminal history record information relating to any Respondent from any state or federal law enforcement agency, and to examine the financial books and records maintained by an attorney for the practice of law, including, without limitation, any and all trust accounts, estate accounts, fiduciary accounts and operating accounts maintained by the attorney or his/her law firm. Bar Counsel may also examine an attorney's trust account whenever Bar Counsel reasonably believes that the trust account may not be in compliance with the Rules of Professional Conduct or the Code of Professional Responsibility. In the exercise of this authority, Bar Counsel may issue such summonses or subpoenas as he/she may reasonably deem necessary for the effective conduct of an investigation or an examination of an attorney's trust account. In every case in which Bar Counsel initiates examination of an attorney's trust account or issues any summonses or subpoenas in the conduct of an examination of or an investigation concerning an attorney's trust account, other than on the basis of a Complaint against the attorney, Bar Counsel shall file a written statement as part of the record in the case setting forth the reasons supporting his/her belief that the subject trust account may not be in compliance with the Rules of Professional Conduct or the Code of Professional Responsibility. A copy of this written statement shall be delivered to the attorney whose trust account is the subject of the investigation when an examination is begun or any summons or subpoena is issued.

(4) Authority and Duties of District Committees; Jurisdiction; Venue:

(a) The principal duty of a District Committee shall be to consider, adjudicate and make disposition of Complaints filed with the District Committee pursuant to this Rule. Where appropriate, the District Committee or Subcommittee shall also counsel with Respondents about their conduct. In addition, members of a District Committee, other than non-lawyer members, may participate in the investigation of Complaints, provided that a member participating in such investigation shall not participate in a District Committee's consideration, adjudication and disposition of such Complaint.

(b) A District Committee shall have jurisdiction over all Complaints filed with it against any Respondent. Venue shall not be jurisdictional, but venue shall lie in the following order of preference in any district where:

(i) any portion of the alleged Misconduct occurred; or

(ii) the Respondent resides; or

(iii) the Respondent maintains an office; or

(iv) the address of the Respondent on record with the Virginia State Bar as the Respondent's address for licensing purposes lies.

If preferred venue does not lie with any District Committee able to adjudicate the Complaint against a Respondent, such Complaint may be filed with and adjudicated by a District Committee designated by the Clerk of the Disciplinary System. In determining to which committee a Complaint should be referred, the Clerk shall 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 committee.

Either the Respondent or Bar Counsel may object to venue by filing a Notice of Objection with the Clerk of the Disciplinary System within ten days of notification by the Clerk of the referral of the Complaint to a District Committee. Objections to venue shall be deemed waived unless made within this ten day time period. Upon receipt of a timely filed Notice of Objection, the Clerk shall forward the Notice of Objection to the Chairman of the Board, whose decision on the matter shall be final.

(c) Subject to the rules of procedure prescribed by Council, each District Committee shall have the power:

(i) to elect a chairman, vice-chairman, secretary and assistant secretary and such other officers as it considers appropriate;

(ii) to conduct hearings and adjudicate Charges of Misconduct as provided in this Rule;

(iii) to summon and examine witnesses under oath administered by any member of the District Committee and to compel the attendance of witnesses and the production of documents necessary or material to any inquiry; and

(iv) to rule on the admissibility of evidence. Any summons or subpoena may be issued on behalf of a District Committee by any lawyer member thereof or by Bar Counsel.

(5) Investigations: (a) Complaints Unrelated to the Virginia Rules of Professional Conduct or the Virginia Code of Professional Responsibility: - All Complaints of Misconduct filed with the Virginia State Bar shall be reviewed by Bar Counsel. If, following review of the Complaint, Bar Counsel determines that the conduct questioned or alleged does not present an issue under the Virginia Rules of Professional Conduct or the Virginia Code of Professional Responsibility, Bar Counsel shall not open an investigative file.

(b) Informal or Abbreviated Investigations: - When Bar Counsel determines to open an investigative file, he or she may decide if the Complaint is appropriate for an informal or abbreviated investigation. It is contemplated that this type of investigation would be generally appropriate when the Complaint of Misconduct involves less serious allegations of Misconduct. Bar Counsel may assign such a Complaint to a staff member, a District Committee member, or use any other means practicable to speedily investigate and conclude the allegation of Misconduct. If the Complaint is resolved through this process to the satisfaction of the Complainant, the Respondent and the Bar, Bar Counsel shall then dismiss the Complaint. Such dismissal shall not become part of the Respondent's Disciplinary Record. In the event Bar Counsel chooses not to proceed under this subsection (b) or, having elected to proceed under this subsection (b), the Complaint is not resolved within ninety days from the date of filing the Complaint, Bar Counsel shall proceed pursuant to subsection (c), below.

(c) Preliminary Investigation and Filing of a Complaint with the District Committee and Action by Subcommittee: -

(i) Bar Counsel shall conduct a preliminary investigation of any Complaint to determine whether the same should be filed with a District Committee. Bar Counsel shall decline filing a Complaint with a District Committee following a preliminary investigation when, in Bar Counsel's judgment:

(a) As a matter of law, the conduct questioned or alleged does not constitute Misconduct;

(b) The evidence available shows that the Respondent did not engage in the Misconduct questioned or alleged;

(c) There is no credible evidence to support any allegation of Misconduct by the Respondent; or

(d) The evidence available could not reasonably be expected to support any allegation of Misconduct under a "clear and convincing" evidentiary standard.

When filing a Complaint with a District Committee, Bar Counsel shall notify the District Committee Chairman thereof of Bar Counsel's recommendation that the matter be investigated by a member of Bar Counsel's staff, by a District Committee member or both. The District Committee Chairman shall promptly notify Bar Counsel of any disagreement with Bar Counsel's recommendation. If Bar Counsel and the District Committee Chairman are unable to agree, the Standing Committee or member thereof serving as its designee, shall determine by whom the investigation is to be conducted. Thereafter, in accordance with procedural rules established by the Council, the Complaint shall be investigated and a report thereof made to the Subcommittee.

(ii) Action by the Subcommittee: - When submitting a Report of Investigation to the Subcommittee, Bar Counsel or Committee Counsel shall include a recommendation as to the appropriate disposition of the Complaint and shall indicate any agreement with the Respondent with respect to such recommendation. Following receipt of the report, the Subcommittee shall:

(a) refer the matter to Bar Counsel for further investigation; or

(b) dismiss the Complaint with or without Terms; provided, however, that if the Subcommittee dismisses the Complaint with Terms and the Respondent fails to comply with such Terms, the Subcommittee shall set the Complaint for a hearing before the District Committee; and provided further that a respondent, within ten days of the issuance of the dismissal, may request a hearing before the District Committee whenever the dismissal creates a "Disciplinary Record," as that term is defined in /P13.A., supra; or

(c) certify the Complaint to the Disciplinary Board pursuant to Subsection (12), infra, or file a complaint in a circuit court, pursuant to Section 54.1-3935, Va. Code, 1950 as amended. Certification hereunder shall be based on a reasonable belief that the Respondent has engaged or is engaged in Misconduct which, if proved, would justify a suspension or revocation of Respondent's license to practice law; or

(d) impose one of the following conditions or sanctions:

i. a private reprimand, with or without Terms;

ii. a public reprimand, with or without Terms; or (e) set the Complaint for hearing before the District Committee.

Notwithstanding any other provision of these Rules, any member of the Subcommittee may require that the Complaint be set for hearing.

No action under (ii)(d) above shall be taken by the Subcommittee except by unanimous vote and with the concurrence of both Bar Counsel and Respondent.

In any case where Terms are included in the disposition, the Subcommittee shall specify the time period within which compliance shall be completed and the alternative disposition in the event the Terms are not complied with. Bar Counsel shall be responsible for monitoring compliance with Terms and reporting any noncompliance to the Subcommittee. If the Respondent fails to comply with the Terms within the stated time period, as determined by the Subcommittee, the alternative disposition shall be imposed.

All Subcommittee actions shall be reported to the District Committee as provided in the Rules of Procedure adopted by the Council.

(6) Procedures for District Committee Hearings: -

(a) Notice of Hearing: - If the Subcommittee determines that a hearing should be held before a District Committee, Bar Counsel shall at least twenty-one days prior to the date fixed for the hearing, serve upon the Respondent by certified mail a notice of the hearing. The notice, called the Charge of Misconduct throughout the remainder of this /P13, shall contain a statement of the time and place designated by the District Committee for the hearing, a clear and concise statement of the alleged Misconduct and any disciplinary rules alleged to have been violated.

(b) Procedure at Hearing: - The hearing shall be conducted as an adversary proceeding before a District Committee. The District Committee shall hear witnesses and receive witnesses. The Charges of Misconduct shall be prosecuted by Bar Counsel or Committee Counsel. The Respondent may be represented by counsel, may cause witnesses and documents to be summonsed and subpoenaed by the District Committee, and may cross-examine witnesses. The testimony shall be taken and preserved, together with all exhibits (or copies thereof) received in evidence or refused by the District Committee. At the conclusion of the evidence of the Bar and at the conclusion of all the evidence, a motion to strike the evidence of the Bar as to some or all charges may be made on behalf of the Respondent. If the motion is sustained, the charges not supported by the evidence shall be dismissed.

(c) Determination by District Committee: - At the conclusion of the hearing, if the District Committee determines that the evidence fails to show Misconduct by the Respondent, it shall dismiss the proceeding.

If the District Committee determines that the evidence shows Misconduct by the Respondent, the District Committee Chairman shall issue its determination in writing, setting forth the following:

(i) brief findings of the facts established by the evidence; and

(ii) the nature of the Misconduct shown by the facts so established, including any disciplinary rules violated by the Respondent; and

(iii) the disposition made by the District Committee.

The writing shall constitute the "District Committee's Determination" for purposes of further proceedings under this Rule.

(7) Disposition: - Upon a finding of Misconduct a District Committee may:

(a) dismiss with specified Terms;

(b) impose a private reprimand, with or without Terms;

(c) impose a public reprimand, with or without Terms; or

(d) certify the Charges of Misconduct to the Board or file a complaint in a circuit court, pursuant to 54.1-3935, Va. Code, 1950, as amended.

In any case where Terms are included in the disposition, the District Committee shall specify the time period within which compliance shall be completed and the alternative disposition in the event the Terms are not complied with. Bar Counsel shall be responsible for monitoring compliance with Terms and reporting any non-compliance to the District Committee. If the Respondent fails to comply with the Terms within the stated time period, as determined by the District Committee, the alternative disposition shall be imposed.

(8) Notice to Respondent and Bar Counsel: - The District Committee Chairman by certified or registered mail, return receipt requested, shall promptly notify the Respondent and Bar Counsel of the District Committee's Determination.

(9) Notice to Complainant: -

(a) If the Subcommittee has dismissed the Complaint or the District Committee has dismissed the Charges of Misconduct, the District Committee Chairman by mail shall promptly and simultaneously notify the Complainant, the Respondent and Bar Counsel of such dismissal and the factual and legal bases thereof.

(b) If the Subcommittee or District Committee determines to issue a private or public reprimand, with or without Terms, or a dismissal upon Terms, then upon expiration of the period for appeal, if any, the District Committee Chairman shall promptly send the Complainant a copy of the District Committee's Determination. If the Respondent appeals the District Committee's Determination as provided in this rule, the District Committee Chairman shall promptly notify the Complainant of the District Committee's Determination and Respondent's demand for review by the Board. If the Respondent fails to comply with the Terms imposed by the Subcommittee or District Committee, the District Committee Chairman shall notify the Complainant upon imposition of the alternative disposition. If the Subcommittee or District Committee determines to certify the matter to the Board, the District Committee Chairman shall mail a copy of the District Committee Determination to the Complainant simultaneously with the mailing of the District Committee Determination to the Respondent.

(10) Appeal from District Committee's Determination: -

(a) A Respondent as to whom a District Committee has determined to issue a private or public reprimand or to impose Terms, within ten days after notice thereof, may demand an appeal by filing with the Clerk of the Disciplinary System either a notice of appeal or a written demand that further proceedings be conducted pursuant to Article 6 of Chapter 39 of Title 54.1 of the Code of Virginia. In either case, a copy shall be sent to the District Committee Chairman and to Bar Counsel.

(b) When proceeding by notice of appeal or a written demand that further proceedings be conducted pursuant to Article 6 of Chapter 39 of Title 54.1 of the Code of Virginia, the Respondent shall certify in the notice of appeal or written demand that he or she has ordered from the court reporter the transcript of the proceedings before the District Committee, at the Respondent's cost. Upon receipt of such notice or written demand by the Clerk of the Disciplinary System, the imposition of any reprimand or term shall be stayed. No appeal shall lie from any sanction to which the Respondent has agreed. Upon receipt of notice of appeal or written demand, Bar Counsel shall forward those portions of the Record in his or her possession to the Clerk. The transcript is a part of the record when it is received in the office of the Clerk of the Disciplinary System within 40 days after filing of the notice of appeal or written demand. The Clerk shall retain the Record until the transcript has been received or for 40 days after the notice of appeal or written demand has been received, whichever first occurs, and shall then dispose of the Record as provided in subparagraph D of this rule in case of an appeal to the Disciplinary Board and as provided by subparagraph (c) below in case of an appeal to a three-judge court. Failure of the Respondent to make the transcript a part of the Record as specified herein shall result in dismissal of the appeal by the Disciplinary Board, whether initiated by notice of appeal or written demand, and affirmance of the sanction imposed by the District Committee. Bar Counsel shall initiate the three-judge court process for the appeal only after receipt of the transcript by the Clerk of the Disciplinary System.

(c) When proceeding by written demand that further proceedings be conducted pursuant to Article 6 of Chapter 39 of Title 54.1 of the Code of Virginia, such proceeding shall be conducted before a duly convened three-judge court as an appeal on the Record pursuant to the same procedure for an appeal before the Board under subparagraph D herein, except that all such proceedings shall be public. The Clerk of the Disciplinary System shall forward the Record to the Clerk of the designated Circuit Court only upon receipt of the transcript as provided in subparagraph (b) above. References in subparagraph D of this rule to "Clerk" or "Clerk of the Disciplinary System" shall mean the Clerk of the designated Circuit Court when appropriate, and to "Board" shall mean the three-judge court.

(11) Issuance of Reprimand: - Upon the expiration of the period for appeal of a reprimand, if notice of appeal has not been given by the Respondent, the District Committee shall issue the reprimand to the Respondent and, if the reprimand is a public reprimand, Bar Counsel shall issue a public statement thereof as provided in the Rules of Procedure adopted by Council.

(12) Certification to the Board: - If the Subcommittee has elected to certify the Complaint or the District Committee has elected to certify the Charges of Misconduct to the Board, it will promptly mail to the Clerk of the Disciplinary System a statement of the certified charges which shall include sufficient facts to reasonably notify Bar Counsel and the Respondent of the basis for such certification and the Disciplinary Rules alleged to have been violated.

C. The Board and Procedure Before the Board. -

(1) Appointment: - The Chief Justice of the Supreme Court shall appoint, after consultation with the Council, twenty members of the Board, sixteen of whom shall be members of the Bar and four of whom shall be lay persons. One member shall be designated by the Chief Justice as Chairman and two members as Vice-Chairmen. Members shall serve staggered terms of three years each. No member shall serve more than two consecutive three year terms but shall be eligible for reappointment after the lapse of one or more years following expiration of the previous three year term. Provided, however, that in the fiscal year beginning July 1, 1994, when the membership of the Board was expanded by six, from fourteen to twenty members, the additional six members shall be appointed as follows: two members of the Bar for one year terms, two members of the Bar for two year terms, and two lay persons for three year terms. At the expiration of the initial term of any member so appointed for less than a three year term, such member shall be eligible for immediate reappointment to the Board for two additional consecutive three year terms.

(2) Notice of Meetings; Quorum: - The Board shall meet on reasonable notice by the Chairman, or a Vice-Chairman. Five members shall constitute a quorum and the action of a majority of a quorum shall constitute action of the Board. One of the five members assigned to any proceeding shall be a non-lawyer. If the scheduled non-lawyer member is unable to attend and if an alternate non-lawyer member is not reasonably available, participation by a non-lawyer member shall not be required in any proceeding if a quorum is otherwise present.

(3) Jurisdiction: - The Board shall have jurisdiction to consider:

(a) Complaints and Charges of Misconduct certified to it by a Subcommittee or a District Committee, respectively;

(b) conviction of a Crime;

(c) disability proceedings;

(d) disbarment or suspension in another jurisdiction;

(e) any petition from Bar Counsel or the chairman of a District Committee as provided in subparagraph (5)(b) hereof;

(f) appeals from reprimands or Terms imposed by District Committees;

(g) petitions for reinstatement referred to it by this Court;

(h) violations of the Virginia Consumer Real Estate Settlement Protection Act or any regulations adopted pursuant thereto; and

(i) the failure of a Respondent to make a transcript part of the Record as provided in subparagraph B.(10)(b) of this Paragraph 13.

(4) Powers of the Board: - The Board shall have the power:

(a) to adopt such rules and regulations not inconsistent herewith as may be convenient for the conduct of its business;

(b) on its own motion or upon request by Bar Counsel or the Respondent, to summon and examine witnesses under oath administered by any member of the Board and to compel the attendance of witnesses and the production of documents necessary or material to any proceeding; any summons or subpoena may be issued by any member of the Board or the Clerk of the Disciplinary System and shall have the force of a summons or subpoena issued by a circuit court; and

(c) to rule on the admissibility of evidence.

(5) Procedure on Certification to the Board: -

(a) Whenever a matter is certified to the Board by a Subcommittee or a District Committee the Charge of Misconduct shall be served on the Respondent and the Board shall set a time and place for hearing and shall serve notice upon the Respondent at least twenty-one days prior to the date fixed for the hearing. The Respondent may, within twenty-one days after such service:

(i) file his answer which shall be conclusively deemed to be a consent to the jurisdiction of the Board; or

(ii) file a demand that the proceedings before the Board be terminated and that further proceedings be conducted pursuant to Article 6 of Chapter 39 of Title 54.1 of the Code of Virginia, whereupon further proceedings before the Board shall be terminated and Bar Counsel shall file the complaint required by 54.1-3935 of the Code.

The Respondent shall have the right to representation by counsel, to examine and cross-examine witnesses, and to present evidence in his own behalf.

(b) The testimony shall be taken and preserved, together with all exhibits or copies thereof received in evidence or refused by the Board.

(i) If Bar Counsel or a District Committee Chairman has reasonable cause to believe that an Attorney is engaging in Misconduct which is likely to result in injury to, or loss of property of, one or more of the Attorney's clients or any other person, and that the continued practice of law by the Attorney poses an imminent danger to the public, Bar Counsel or the District Committee Chairman may petition the Board to issue an order requiring the Attorney to appear before the Board for a hearing in accordance with the procedures set forth below.

(ii) The petition shall be under oath and shall set forth the nature of the alleged Misconduct, the factual basis for the belief that immediate action by the Board is reasonable and necessary, and any other facts which may be relevant to the Board's consideration of the matter, including any prior disciplinary record of the Attorney.

(iii) Upon receipt of the petition, the Chairman or a Vice-Chairman of the Board shall issue an order requiring the Respondent to appear before the Board not less than 14 nor more than 30 days from the date of the order for a hearing to determine whether the Misconduct has occurred and the imposition of sanctions is appropriate. The Board's order shall be served on the Respondent no fewer than ten days prior to the date set for hearing.

(iv) If the Respondent, at the time the petition is received by the Board, is the subject of an order then in effect by a circuit court pursuant to 54.1-3936 of the Code of Virginia appointing a receiver for his accounts, the Board shall issue a further order summarily suspending the license of the Respondent until the Board enters its order upon such hearing.

(v) At least five days prior to the date set for hearing, the Respondent shall either (a) file a formal answer to the petition which shall be conclusively deemed to be a consent to the jurisdiction of the Board or (b) file a demand that proceedings before the Board be terminated and that further proceedings be conducted pursuant to Article 6 of Chapter 39 of Title 54.1 of the Code of Virginia, whereupon further proceedings before the Board shall be terminated and Bar Counsel shall file a complaint under 54.1-3935 of the Code. Failure to file such demand within the time prescribed herein shall be a conclusive waiver of the right to subsequently file such demand.

(vi) If proceedings continue before the Board, the conduct of the hearing shall be as provided in subsection (a) of this section 5. If proceedings continue pursuant to 54.1-3935 of the Code, the court designated pursuant to that section shall conduct the hearing provided for therein not more than 60 days from the date of filing of the complaint. If any order of summary suspension has been entered, such suspension shall remain in effect until the court designated under 54.1-3935 of the Code enters a final order disposing of the issues before it.

(6) Determination by Board: - At the conclusion of the evidence of the Bar and at the conclusion of all the evidence, a motion to strike the evidence of the Bar as to some or all charges may be made on behalf of the Respondent. If the motion is sustained, those charges not supported by the evidence shall be dismissed. If the Board determines that the evidence fails to show Misconduct it shall dismiss the proceeding.

Upon a finding of Misconduct, the Board shall enter and serve upon the Respondent its memorandum order, setting forth:

(a) brief findings of the facts established by the evidence;

(b) the nature of the Misconduct shown by the facts so established;

(c) the sanction imposed, which shall be:

(i) dismissal with Terms;

(ii) issuance of an admonition, with or without Terms;

(iii) issuance of a public reprimand, with or without Terms;

(iv) suspension of the license of the Respondent for a stated period of time not in excess of five years, provided, however, that an attorney whose license has been suspended for more than one (1) year must apply for reinstatement as provided in Paragraph J, infra; or (v) revocation of the Respondent's license;

(d) the effective date of the sanction imposed; and

(e) the name and address of the court reporter who served at the hearing.

At the close of the hearing before the Board, if the Board determines that the Respondent has engaged in Misconduct and that the continued practice of law by the Attorney constitutes an imminent danger to the public, the Board may enter a summary order immediately suspending or revoking the license of the Attorney. In those cases, the Board shall, in addition to the summary order and within a reasonable time after the hearing, enter and serve upon the Respondent its memorandum order setting forth the information described in subsections (a) through and including (e) above.

If the Board finds that the Misconduct was the result of a Disability, it may consider the Disability in mitigation of any discipline imposed, and if the Board finds that the Disability exists at the time of the hearing, it shall dispose of the matter in the manner provided in Subparagraph F below. The Board may refuse to accept evidence of Disability if the Respondent has not raised the issue in his answer or has not provided to Bar Counsel at least thirty days prior to the hearing date copies of any reports of health care practitioners which the Respondent intends to introduce into evidence.

In any case where Terms are included in the disposition, the Board shall specify the time period within which compliance shall be completed and the alternative disposition in the event the Terms are not complied with. Bar Counsel shall be responsible for monitoring compliance with Terms and reporting any noncompliance to the Board. If the Respondent fails to comply with the Terms within the stated time period, as determined by the Board, the alternative disposition shall be imposed.

D. Proceedings Upon Appeal of a District Committee Determination. -

(1) Upon receipt of notice from the Clerk that a Respondent has filed an Appeal from a District Committee Determination, the Board shall place such matter on its docket for review. The Clerk shall notify the Respondent when the entire Record of the proceedings before the District Committee has been received or when 40 days from receipt of the notice of appeal has expired. The Record shall consist of the notice of hearing, the transcript of testimony (if any), any exhibits received or refused by the District Committee, the District Committee Determination, and all briefs, memoranda or other papers filed with the District Committee by the Respondent or the Bar. Upon petition of the Respondent, for good cause shown, the Board may permit the Record to be supplemented to prevent injustice, such supplement to be in such form as the Board may deem appropriate. Thereafter, briefs shall be filed as follows:

(a) The Respondent shall file an opening brief in the office of the Clerk of the Disciplinary System within 40 days after the filing by the Clerk of notice to the Respondent regarding the Record.

(b) The Bar shall file its brief in the office of the Clerk of the Disciplinary System within 25 days after filing of the opening brief.

(c) The Respondent may file a reply brief within 14 days after filing of the Bar's brief.

Failure of the Respondent to file an opening brief within the time specified herein shall result in the dismissal of the appeal and affirmance of the sanction imposed by the District Committee.

(2) Standard of Review: - The Standard for review by the Board shall be the same as is provided in 9-6.14:17 of the Code of Virginia for review of administrative agency decisions.

(3) Oral argument: - Oral argument shall be granted unless waived by the Respondent.

(4) Imposition of Sanctions: - Upon review of the Record in its entirety, the Board may:

(a) dismiss the Charges of Misconduct upon a finding that the District Committee Determination is contrary to the law or is not supported by substantial evidence; or

(b) affirm the District Committee Determination, in which instance the Board may impose the same or lesser sanction as that imposed by the District Committee, but in no case shall it increase the severity of the Sanction imposed by the District Committee.

E. Proceedings Upon Adjudication of a Crime. -

(1) Summary Suspension: - Whenever the Clerk of the Disciplinary System receives written notification from any court of competent jurisdiction stating that an Attorney has been found guilty of a Crime by verdict of a judge or jury, irrespective of whether sentencing has occurred, the Board shall forthwith enter an order summarily suspending the license of the Attorney and shall forthwith serve upon the Attorney (a) a copy of the written notification from the court, (b) a copy of the Board's order, and (c) a notice fixing the time and place of a hearing to determine whether the license of the Attorney should be revoked or further suspended. The hearing shall be set not less than fourteen nor more than thirty days after the date of the Board's order. Upon written request of the Respondent, the hearing shall be continued until after sentencing has occurred, and on receipt by the Board of a certified copy of a notice of appeal from the conviction, proceedings before the Board shall, upon request of the Respondent, be continued pending disposition of such appeal. The Board may, upon request of the Respondent, hold an interim hearing and terminate such suspension during the pendency of such sentencing or appeal if it finds that such suspension, if not terminated, would be likely to exceed the discipline imposed by the Board upon a hearing on the merits of the case.

Upon presentation to the Board of a certified copy of an order setting aside the verdict or reversing the conviction on appeal, any suspension of the license shall be automatically terminated and any revocation of the license shall be vacated, and the license shall be deemed automatically reinstated. Nothing herein shall preclude further proceedings against the Respondent upon Charges of Misconduct arising from the facts leading to such conviction.

(2) Action By the Board: - If the Board shall find at the hearing that the Respondent has been found guilty of a Crime by the verdict of a judge or jury, an order shall be issued and served upon the Respondent in which the Board shall:

(a) Suspend, or continue the suspension of, the license of the Respondent for a stated period not in excess of five years; or

(b) Revoke the license of the Respondent.

(3) Procedure: - The procedure applicable to hearings relating to Misconduct shall apply to hearings relating to a Crime, except that if the Attorney elects to have further proceedings conducted pursuant to Article 6, Chapter 39, Title 54.1 of the Code, he shall file his demand therefor not later than ten days prior to the date set for the hearing. In the event the Attorney files a demand that the Proceedings before the Board be terminated, and that further proceedings be conducted by a three-judge Circuit Court, the order of the Board suspending the license of the Attorney shall remain in full force and effect until the conclusion of the hearing conducted by the three-judge court, at which time said Court shall deal with the order of suspension as part of its ruling; subject, however, to the provisions of 54.1-3935 of the Code of Virginia.

F. Disability. - (1) Burden of Proof: - Whenever the existence of a Disability is alleged in a proceeding under this Rule for the suspension of the license of an Attorney or in mitigation of Charges of Misconduct, the burden of proving such Disability shall rest with the party asserting its existence. The issue of Disability may be raised by any person at any time and if a District Committee or the Disciplinary Board, during the course of hearing Charges of Misconduct against a Respondent, believes that the Respondent may then be suffering from a Disability, the District Committee or the Disciplinary Board may postpone the hearing and initiate Disability proceedings under this Rule. In proceedings to terminate a suspension for Disability, the burden of proving the termination of Disability shall be on the Attorney.

(2) Suspension for Disability: - The Board shall have the Power to suspend the license of an Attorney who is under a Disability. The term of such suspension shall be indefinite, and except as provided in (6)(a) below shall be terminated only upon determination by the Board that the Disability no longer exists. A finding of Disability shall not terminate any proceeding upon Charges of Misconduct involving the Respondent, but may be considered by the Board in mitigation as provided in Subsection C (6).

(3) Investigation and Summary Suspension: -

(a) Suspension upon Proof of Prior Adjudication of, or Hospitalization for, Disability. Upon receipt of a notice from the Clerk of the Disciplinary System with supporting documentary evidence that an Attorney has been adjudicated by a Court of competent jurisdiction to suffer from Disability, or that the Attorney has been involuntarily admitted to a hospital (as defined in 37.1-1 of the Code of Virginia) for treatment of any addiction, inebriacy, insanity or mental illness, the Board shall enter an order suspending the license of the Attorney and serve the order on the Attorney.

(b) Suspension in Absence of Prior Adjudication of, or Hospitalization for, Disability. Upon receipt of notice or evidence that an Attorney is or may be suffering from Disability and in the absence of prior adjudication of or hospitalization for Disability, Bar Counsel shall cause an investigation to be made to determine whether there is probable cause to believe that the Disability exists. If Bar Counsel determines that there is probable cause to believe that the Attorney suffers Disability, he shall file a petition with the Board, which shall promptly hold a hearing to determine whether such Disability exists. A copy of the petition shall be served on the Attorney.

(4) Hearing Procedure: - The Board shall conduct a hearing to determine whether a Disability exists in the following instances:

(a) Upon petition of Bar Counsel or a District Committee alleging that an Attorney is under a Disability.

(b) Upon petition of an Attorney who has been suspended from practice for Disability and who alleges that the Disability no longer exists. Evidence that the Attorney is no longer hospitalized as provided in (3)(a) above shall not be conclusive to the Board's determination of the Attorney's ability to resume the practice of law.

(5) General Provisions: - The following additional provisions apply to Disability hearings:

(a) Guardian Ad Litem. - The notice of any hearing to determine whether an Attorney suffers from Disability shall request the Attorney to advise the Board whether he has retained counsel to represent him at the hearing. Unless counsel for the Attorney enters an appearance with the Board within ten (10) days of the date of the notice, the Board shall appoint a guardian ad litem to represent the Attorney at the hearing.

(b) Examination. - The Board may require the Attorney to undergo a psychiatric, physical or other medical examination by a qualified physician selected by the Board. A written report of the results of such examination, along with written reports from any other physicians who have examined the Attorney, may be considered as evidence by the Board.

(6) Termination of Suspension: -

(a) In cases where a suspension for Disability is based upon an adjudication of Disability by a Court, as provided in (3)(a) above, upon receipt of documentary evidence of adjudication by a Court of competent jurisdiction that the Attorney's Disability has terminated, the Board shall promptly enter an order terminating the suspension of the Attorney's license.

(b) In all other cases the Board shall hold a hearing on the issue of termination of the Disability promptly upon receipt of a request from the Attorney.

G. Disbarment or Suspension in Another Jurisdiction. - Whenever there shall be filed with the Clerk of the Disciplinary System evidence that an Attorney admitted to practice in this State has been disbarred or suspended from practice in another jurisdiction and that such disciplinary action has become final, the Board shall forthwith enter an order suspending the license of the Attorney and directing the Attorney to show cause why the same sanction that was imposed in the other jurisdiction should not be imposed by the Board. The Board shall forthwith serve upon the Respondent by certified mail (a) a copy of such certificate, (b) a copy of such order, and (c) a notice fixing the time and place of a hearing to determine what action should be taken by the Board. The hearing shall be set not less than twenty-one nor more than thirty days after the date of the order. Within fourteen days of the date of mailing, the Respondent shall file a written response, which shall be confined to allegations that:

(1) the record of the proceeding in the other jurisdiction would clearly show that such proceeding was so lacking in notice or opportunity to be heard as to constitute a denial of due process; or

(2) the imposition by the Board of the same discipline upon the same proof would result in a grave injustice; or

(3) the same conduct would not be ground for disciplinary action or for the same discipline in this State.

The Respondent shall have the burden of producing the record upon which he relies to support allegations (1), (2), or (3) above, and he shall be limited at the hearing to reliance upon the allegations of his written response. Except to the extent the allegations of the Respondent's written response are established, the findings in the other jurisdiction shall be conclusive of all matters for purposes of the proceeding before the Board.

If at the time fixed for hearing the Respondent has not filed a written response or shall not appear or if the Board, after hearing, shall determine that the Respondent has failed to establish the allegations of his written response, the Board shall impose the same discipline that was imposed in the other jurisdiction. If the Board shall determine that the Respondent has established the allegations of his written response, it shall, in its discretion, dismiss the proceeding or impose a lesser discipline than was imposed in the other jurisdiction. A copy of any order imposing sanction shall be served upon the Respondent by certified mail. Any such order shall be final and binding subject only to appeal as hereinafter provided.

H. Appeal. - (1) Right: - As a matter of right any Respondent may appeal to this Court from an order of public reprimand, suspension, or disbarment imposed by the Board. An appeal shall lie once the memorandum order described in Paragraph 13C(6), supra, has been served on the Respondent. No appeal shall lie from a summary order.

(2) Notice of Appeal: - The Respondent shall file with the Clerk of the Disciplinary System a notice of appeal and assignments of error within thirty days after the memorandum order of the Board is served on him. This action within the time prescribed is jurisdictional.

(3) Further Proceedings: - Further proceedings shall be as provided in this Court's procedure for filing an appeal from a trial court and procedure following perfection of appeal. For the purposes of determining dates of filing, the date of filing the record with the clerk of this Court shall be deemed to be the date of the issuance of the certificate of the Clerk of this Court under Rule 5:23. The Clerk of the Disciplinary System of the Virginia State Bar shall immediately notify the Respondent and his counsel, if any, by certified mail, of the date on which the record is filed.

(4) Determination: - This Court shall hear the case and make such determination in connection therewith as it shall deem right and proper.

(5) Office of the Attorney General: - In all appeals to this Court, the Office of the Attorney General, or the Bar Counsel, if so requested by the Attorney General, shall represent the interests of the Commonwealth and its citizens as appellees.

(6) Stay Pending Appeal: - Upon the entry by the Board of either a summary or memorandum order of suspension, this Court may, upon petition of the Respondent, stay the effect of such an order of suspension prior to or during the pendency of the appeal. Any order of public reprimand shall be automatically stayed prior to or during the pendency of an appeal therefrom. No stay shall be granted in cases where the Respondent's license to practice law has been revoked by either the summary or memorandum order of the Board.

I. (Effective January 1, 2001) Resignation. Any Attorney may at any time surrender his license by tendering his notarized resignation in writing to the Clerk of this Court or the Clerk of the Disciplinary System, but any resignation tendered by an Attorney at a time when charges are pending against him before the Board, or a District Committee, or a Court, shall be deemed an admission that such charges are true. This admission shall not be deemed an admission in any proceeding except one relating to the status of the Attorney as a member of the Virginia State Bar. This Court or the Board will by order accept such resignation and revoke the license of such Attorney. Upon acceptance of such resignation by this Court or the Board, Bar Counsel, in his discretion, may dismiss without prejudice any and all files of Charges of Misconduct then pending by notification of such action to the Clerk of the Disciplinary System and the Committee, Court or Board wherein the case lies. Upon tendering his resignation to this Court or the Board, the Attorney shall immediately cease the practice of law and shall comply with the notice requirements set forth in Paragraph K(1), infra.

J. Reinstatement. - (1) Reinstatement After Revocation. - Any Attorney whose license has been revoked may petition this Court for reinstatement, setting forth in his or her petition the reasons he or she should be reinstated. The following requirements shall apply: (1) the petition shall be filed under oath or affirmation with penalty of perjury; (2) no petition may be filed sooner than five years from the effective date of the revocation; and (3) the Attorney must certify in the petition that he or she has met the requirements of the following subparagraph. This Court may deny the petition or refer it to the Board for recommendation. Upon such reference, the Board shall hold a hearing and file its recommendation, together with the record before it, with the Clerk of this Court. The Board may recommend approval or disapproval of the petition. Final action will be taken by this Court.

No license to practice law shall be reinstated for any revoked Attorney unless the Attorney demonstrates to the Board that he or she (1) within five (5) years of filing the petition has attended sixty (60) hours of continuing legal education of which at least ten (10) shall be in the area of legal ethics or professionalism, and has taken the Multistate Professional Responsibility Examination and received a scaled score of 85 or higher; (2) has reimbursed the Bar's Clients' Protection Fund for any sums of money it may have paid as a result of the Attorney's misconduct; and (3) has paid the Bar all costs that have been assessed against him or her, together with any interest due thereon.

In addition to meeting the foregoing requirements, an Attorney whose license to practice law was revoked must also show by clear and convincing evidence that he or she is a person of honest demeanor and good moral character and possesses the requisite fitness to practice law.

The filing by an Attorney of a petition for reinstatement shall constitute a waiver of all confidentiality relating to the petition, and to the Complaint or Complaints that resulted in, or were pending at the time of, the revocation of the Attorney's license.

Upon approval of a Petition by this Court, the revoked Attorney shall meet the following requirements prior to and as a condition of his or her reinstatement: (1) take and pass the written portion of the Virginia State Bar examination; (2) if required by the Board, obtain and maintain a professional liability insurance policy issued by a company authorized to write such insurance in Virginia at the cost of the Attorney in an amount and for such term as are set by the Board; and (3) if required by the Board, obtain and maintain a blanket fidelity bond or dishonesty insurance policy issued by a company authorized to write such bonds or insurance in Virginia at the cost of the Attorney in an amount and for such term as are set by the Board.

(2) Reinstatement After Suspension for More than One Year. - No license to practice law shall be reinstated for any Attorney whose license has been suspended for more than one year unless the Attorney demonstrates to the Board that he or she (1) has attended twelve hours of continuing legal education, of which at least two hours shall be in the area of legal ethics or professionalism, for every year or fraction thereof that the Attorney's license has been suspended; (2) has taken the Multistate Professional Responsibility Examination since imposition of discipline and received a scaled score of 85 or higher; (3) has reimbursed the Bar's Clients' Protection Fund for any sums of money it may have paid as a result of the Attorney's misconduct; and (4) has paid to the Bar all costs that have been assessed against him or her, together with any interest due thereon.

(3) The requirements of this subparagraph J shall apply to all petitions filed after July 1, 2000.

K. General Provisions. - (1) Duties of Disbarred or Suspended Attorney: - Any attorney who is disbarred or suspended as a result of a proceeding under this paragraph 13 shall forthwith give notice, by certified mail, of his disbarment or suspension to all clients for whom he is currently handling matters and to all opposing attorneys and the presiding judges in pending litigation. The Attorney shall also make appropriate arrangements for the disposition of matters then in his care in conformity with the wishes of his client. The Attorney shall give such notice within fourteen (14) days of the effective date of the disbarment or suspension order, and make such arrangements as are required herein within forty-five (45) days of the effective date of the disbarment or suspension order. The Attorney shall also furnish proof to the bar within sixty (60) days of the effective date of the disbarment or suspension order that such notices have been timely given and such arrangements for the disposition of matters made. Issues concerning the adequacy of the notice and arrangements required herein shall be determined by the Disciplinary Board, which may impose a sanction of revocation or suspension for failure to comply with the requirements of this subparagraph.

(2) Authority of Judge: - Every Judge shall have authority to take such action as may be necessary or appropriate to protect the interests of clients of any Attorney who is disbarred or suspended.

(3) Enforcement: - Every Circuit Court shall have power to enforce any order, summons or subpoena issued by the Board, a District Committee or Bar Counsel and to adjudge disobedience thereof as contempt.

NOTES:
Cross references. -- As to transmittal to House and Senate Committees for Courts of Justice of evidence in the possession of the Virginia State Bar relating to pending disciplinary proceedings involving a licensed attorney being considered for election as a judge, see � 54.1-3911. As to proceedings pending disciplinary action, see � 54.1-3936.

Editor's note. -- Amendments to former paragraphs 13(c) and 13(d) of Section IV are published at 202 Va. lxi (1961). Amendments to paragraphs 13G(6) and 13J(5) are published at 221 Va. 381 (1980). Paragraph 13B(1)(d) was amended in 1981 (see 221 Va. 1147). Paragraphs 13A(9), 13D(1), 13D(2) and 13D(3) were amended effective July 1, 1983. Additional amendments to paragraph 13 are published at 210 Va. 411 (1970); 211 Va. cxxxiii (1971); and 217 Va. 173 (1976).

The amendments, effective January 23, 1995, adopted January 23, 1995, in subdivision C(1), in the first sentence, substituted "twenty" for "fourteen," substituted "sixteen" for "twelve," and substituted "four" for "two," substituted "two members as Vice-Chairmen" for "another as Vice-Chairman" at the end of the second sentence, inserted "three year" following "two consecutive" in the third sentence, and added the final two sentences; substituted "a Vice-Chairman" for "the Vice-Chairman" at the end of the first sentence of subdivision C(2); in subdivision C(5)(b), added the introductory paragraph, and in the first sentence of subdivision (iii), substituted "a Vice-Chairman" for "Vice Chairman" and inserted "the" preceding "date of the order"; and rewrote subdivision K(5).

The amendment, effective May 4, 1995, adopted May 4, 1995, rewrote subdivision K(5)(c).

The amendment, effective July 1, 1995, adopted May 1, 1995, in subdivision C(10), added the subdivision (a) designation, and in subdivision C(10)(a), in the first sentence, substituted "by filing with the Clerk of the Disciplinary System either a notice of appeal or" for "either by filing" and deleted "or by giving notice of an appeal to the District Committee Chairman with a copy to the Clerk of the Disciplinary System and to Bar Counsel" at the end of the sentence; substituted the present second, third and fourth sentences for the former second sentence which referred to the consequences and disposition of the notice of appeal as provided in subdivision D; and added subdivision C(10)(b); and in subdivision D(1), in the introductory paragraph, in the second sentence, inserted "entire" preceding "Record of the proceedings" and substituted "has been received or when 40 days from receipt of the notice of appeal has expired" for "is received" at the end of the sentence; inserted "the" preceding "District Committee Determination" in the third sentence; and added "by the Clerk of notice to the Respondent regarding the Record" at the end of subdivision D(1)(a).

The amendment, effective September 15, 1995, adopted September 15, 1995, in subdivision A, inserted "and 'Private Reprimand' means a determination by a District Committee" in the paragraph defining "Admonition," added the paragraph defining "Public Reprimand" and inserted "an Admonition, or" in the paragraph defining "Terms"; and in subdivision K, inserted "investigation" in subdivision K(5), inserted "Virginia State Bar staff member or component of" in subdivision K(5)(a), in subdivision K(5)(b), inserted "disciplinary or related criminal" and deleted "or a related criminal investigation" at the end, added present subdivision K(5)(d), redesignated former subdivisions K(5)(d) through K(5)(f) as present subdivisions K(5)(e) through K(5)(g), in present subdivision K(5)(e), substituted "three-judge Circuit Court, or the Board imposing a" for "Board or three-judge Circuit Court relating to" and substituted "to the Clerk of each Circuit Court, General District Court and Juvenile and Domestic Relations District Court" for "each Circuit Court and General District Court," inserted "private" in present subdivision K(5)(f), deleted "generally" preceding "known to the public" in the third sentence of present subdivision K(5)(g), substituted "subparagraph (e)" for "subparagraph (d)" in present subdivision K(5)(g)(v) and added subdivision K(5)(h).

The amendment, effective April 24, 1996, adopted April 24, 1996, in subdivision A, substituted "a District Committee member appointed by the District Committee Chairman to act" for "the District Committee or Panel Chairman or other Committee or Panel officer acting" in clause (i) of the definition of "Subcommittee"; in subdivision B(2)(d), added the second sentence, substituted "shall become" for "shall constitute" following "Paragraph 13" in the present fourth sentence, substituted "persons" for "members and the action of a majority of a quorum shall be the action of the District Committee or Panel" at the end of the present fifth sentence, added the present sixth sentence, added "If the scheduled non-lawyer person is unable to attend, and if an alternate non-lawyer is not reasonably available" at the beginning of the present seventh sentence, deleted "any" preceding "proceeding" in the present seventh sentence, and added the present eighth sentence; in subdivision B(5)(b), added "and provided further that a respondent, within ten days of the issuance of the dismissal, may request a hearing before the District Committee whenever the dismissal creates a 'Disciplinary Record,' as that term is defined in /P13.A., supra" at the end of clause (ii) and added "provided, however, that in no case shall a member of the Subcommittee which considered the Charges of Misconduct sit on the District Committee Panel which hears the Charges of Misconduct" at the end of the first sentence in clause (v); in subdivision B(6)(b), substituted "witnesses" for "exhibits" at the end of the second sentence and deleted the former sixth sentence which read "Members of a Subcommittee may participate in the hearing process and vote on the disposition of the Charges of Misconduct"; in subdivision C(2), added the present third sentence, and inserted "If the scheduled non-lawyer member is unable to attend and if an alternate non-lawyer member is not reasonably available" at the beginning of the fourth sentence, and substituted "a non-lawyer member" for "nonlawyer members" following "participation by" in the fourth sentence; and in subdivision K(9)(a), deleted "In any proceeding before a District Committee, the Board or a court on a Charge of Misconduct" at the beginning and added "at any stage involving a Charge of Misconduct" at the end of the introductory paragraph, and substituted "Council" for "Executive Committee" preceding "of the bar" in clause (i).

The amendment, effective January 13, 1997, adopted January 13, 1997, substituted "Complaint" for "Charge of Misconduct" throughout the rule, in subdivision A, rewrote the definition of "Charge of Misconduct" which formerly read: "the notice given by the bar to the Respondent, setting forth the Misconduct alleged to have been committed by the Respondent, and the disciplinary rules alleged to have been violated" and added the definition for "Complaint"; in subdivision B, in subdivision B(5), added the catchline, added subdivisions B(5)(a) and B(5)(b), and redesignated former subdivision B(5) as present subdivision B(5)(c), inserted "called the Charge of Misconduct throughout the remainder of this /P13" following "The notice" in the second sentence in subdivision B(6)(a), substituted "has dismissed the Complaint or the" for "or" following "If the Subcommittee" in subdivision B(9)(a), in subdivision B(12)(a), substituted "has elected to certify the Complaint or the" for "or" following "If the Subcommittee" and substituted "for such certification" for "of such Charges" following "Respondent of the basis"; in subdivision C, in subdivision C(3)(a), added "Complaints and" at the beginning and added "respectively" at the end, and in subdivision C(5)(a), inserted "of a Complaint" following "by a Subcommittee" and substituted "certified charges" for "Charges certified to the Board" at the end of the first sentence; and moved the first paragraph in subdivision K(9) to follow the catchline for subdivision K(9)(a).

The amendment, effective July 1, 1997, adopted May 2, 1997, in 13(C) added the second sentence in the second paragraph of subdivision (1); added "the" after "notice of"; and added the language beginning "the costs assessed" at the end of the paragraph. In the third paragraph of subdivision (10) deleted "practice of law by the former attorney." and added "license to practice law to the former attorney." at the end.

The amendment, effective July 30, 1997, adopted July 30, 1997, in subdivision (3) added designation (h); and made minor changes in phraseology in subdivisions (3)(f) and (g).

The amendment, effective January 27, 1998, adopted January 27, 1998, in subdivision A, rewrote the paragraph defining "Disciplinary Record"; and rewrote subdivisions K(1) and K(4).

The amendment, effective September 23, 1998, adopted September 23, 1998, in subdivision (5), in the first sentence, substituted "Procedure on Certification to the Board" for "Procedure on Charges of Misconduct"; and in subdivision (5) (a), rewrote the introductory paragraph which formerly read: "Upon certification by a Subcommittee of a Complaint or a District Committee of a Charge of Misconduct, Bar Counsel shall cause to be served on the Respondent a statement of the certified charges. The Respondent may, within twenty-one days after such service," and deleted the first sentence in the concluding paragraph which formerly read: "After the answer has been filed, or the time has expired for either filing an answer or demanding that the proceeding be terminated, the Board shall set a time and place for hearing and shall, at least twenty-one days prior to the date fixed for the hearing, serve notice thereof upon the Respondent."

The amendment effective July 1, 1999, adopted April 23, 1999, in B (2) d, substituted "ten, or in the discretion of Council, twenty, thirty or forty members" for "nine, or in the discretion of Council, eighteen, twenty-seven or thirty-six members" in the first sentence, substituted "Three members of a ten-member District Committee, six members of a twenty-member District Committee, nine members of a thirty member District Committee, and twelve members of a forty-member" for "Two members of a nine-member District Committee and four members of an eighteen-member District Committee and six members of a twenty-seven member District Committee and eight members of a thirty-six member" in the second sentence and substituted "twenty members or more, ten members" for "eighteen members or more, nine" in the third sentence; redesignated the last three sentences in subdivision B (10) (a) as the first three sentences in subdivision B (10) (b) and in subdivision B (10) (b), inserted "or written demand" following "notice of appeal" in the first, second, fourth, fifth and sixth sentences, added "When proceeding by notice of appeal or a written demand that further proceedings be conducted pursuant to Article 6 of Chapter 39 of Title 54.1 of the Code of Virginia" in the first sentence, inserted "by the Clerk of the Disciplinary System, the imposition of any" in the second sentence, inserted "of" following "after filing" in the fifth sentence, substituted "subparagraph (c) below in the case of an appeal to a three-judge court" for "statute in case of an appeal to the Court" in the sixth sentence, in the seventh sentence, deleted "Except as provided in Paragraph 13.D.(1)" preceding "failure of the Respondent" and inserted "by the Disciplinary Board, whether initiated by notice of appeal or written demand" and added the last sentence; inserted subdivision B (10) (c); inserted subdivision C (3) (i); in subdivision K (10), in the first sentence, inserted "The Clerk of the Disciplinary system shall assess costs against the Respondent in the following cases," inserted the subdivision (a) designator, substituted "All" for "In a" and deleted "the Clerk of the Disciplinary System shall assess costs against the Respondent-attorney," in the second sentence, deleted "The Clerk shall also assess costs in those cases in which the Respondent-attorney," inserted the subdivision (b) designator and inserted "All cases against a Respondent who," inserted subdivisions (c) and (d), inserted the subdivision (e) designator, inserted the first sentence in subdivision (e), and in the former third sentence, inserted "reasonable costs paid by the Bar to outside experts or consultants" and substituted "and transcript fees, copying, mailing and required publication costs" for "fees, copy costs."

The amendment, effective February 4, 2000, substituted "Rules of Professional Conduct" for "Code of Professional Responsibility" throughout the section; in subdivision B (2) (d), in the first sentence, substituted "ten" for "nine," and substituted "twenty, thrity or forty" for "eighteen, twenty-seven or thirty-six," rewrote the third sentence, in the fourth sentence, substituted "twenty" for "eighteen," and substituted "ten" for "nine"; in subdivision K (5) (b), in the second sentence, inserted "Attorney's disciplinary record or any disciplinary," inserted "for bar admission or enforcement purposes," deleted "but" preceding "only is," and substituted "Chair" for "Chairman" twice; rewrote subdivision K (5) (d); in subdivision K (5) (e), 'deleted "public, and shall be" following "revocation shall be"; and in subdivision K (5) (f), inserted "and its dispositive orders," and deleted "and appeals of private reprimands or Terms."

The amendment, effective March 29, 2000, inserted "or the Code of Professional Responsibility" following "Rules of Professional Conduct" in this rule.

The amendment, effective March 29, 2000, inserted "or the Code of Professional Responsibility" following "Rules of Professional Conduct" in this rule.

The amendment, effective July 1, 2000, inserted the paragraph defining "Revocation" in subdivision A; in subdivision B(5)(c)(ii), substituted "i." for "(i)" and "ii." for "(ii)" in (d), and in (e), deleted the language following "before the District Committee," and in the third paragraph of (e), inserted "(ii)" preceding "(d)"; in subdivision H(2), substituted "thirty" for "twenty-one"; and in subdivision J, in the first paragraph, inserted "(1) Reinstatement After Revocation," and inserted the present second and fifth sentences, inserted the present second, fourth and fifth paragraphs, and added subdivisions (2) and (3).

The amendment, effective January 1, 2001, adopted October 23, 2000, in subdivision I, in the first sentence, inserted "notarized" preceding "resignation" and substituted "Board, or a District Committee, or a Court, shall" for "Board, District Committee, or a Court shall"; and substituted "Paragraph K(1)" for "paragraph K.(1)" near the end of the fifth sentence.

Amended December 18, 2000, effective immediately.

Editor's note. -- Many of the cases below were decided under prior law.

Purpose of preliminary investigation. -- A duly constituted committee of the Virginia State Bar is authorized in any case of alleged unprofessional conduct by an attorney, to "make such preliminary investigation as may be appropriate." Through the medium of such investigation a number of frivolous and groundless complaints preferred against attorneys are dismissed. The attorney involved is thereby spared the embarrassment and the unwarranted publicity that attends the filing of a formal complaint and a hearing. Seventh Dist. Comm. v. Gunter, 212 Va. 278, 183 S.E.2d 713 (1971).

Disciplinary proceedings may be conducted administratively or before three judge court. -- Read together, � 54.1-3935 and paragraph 13 vest Bar Counsel and a district committee with the option of conducting disciplinary proceedings either administratively or before a three-judge court; there is no due process defect in such an option. Gunter v. Virginia State Bar ex rel. Seventh Dist. Comm., 241 Va. 186, 399 S.E.2d 820, cert. denied, 500 U.S. 953, 111 S. Ct. 2260, 114 L. Ed. 2d 712 (1991).

District committee may instigate a disciplinary proceeding on its own. Delk v. Virginia State Bar, 233 Va. 187, 355 S.E.2d 558 (1987).

No attorney has right to insist proceedings be confined to administrative forum. -- Although an attorney, like a district committee, is given a right to remove disciplinary proceedings from the administrative forum to a circuit court, no attorney has a right to insist that the proceedings be confined to the administrative forum. Gunter v. Virginia State Bar ex rel. Seventh Dist. Comm., 241 Va. 186, 399 S.E.2d 820, cert. denied, 500 U.S. 953, 111 S. Ct. 2260, 114 L. Ed. 2d 712 (1991).

Acquittal in a criminal proceeding presents no bar to a disciplinary proceeding arising out of substantially the same facts. The rationale which underlies this distinction is that the purpose of the disciplinary proceeding is not to punish, but to protect the public from unfit members of the bar. Smolka v. Second Dist. Comm., 224 Va. 161, 295 S.E.2d 267 (1982).

A circuit court's conclusion that an attorney's offense in removing office equipment from another's business and placing it in his own law office did not rise above trespass in no way precluded the State Bar Disciplinary Board from independently examining the matter and reaching a determination of misconduct. Smolka v. Second Dist. Comm., 224 Va. 161, 295 S.E.2d 267 (1982).

Jurisdictional requirements of subparagraph B(4) involve venue, not subject-matter jurisdiction. A provision may use the word "jurisdiction" in the sense that the court has territorial jurisdiction over the subject matter, meaning that the court is the proper venue. Smolka v. Second Dist. Comm., 224 Va. 161, 295 S.E.2d 267 (1982).

The use of "jurisdiction" in subparagraph B(4) establishes the territorial jurisdiction, or venue, of the district committee. The provision in no way limits the Board's authority to determine cases of attorney misconduct. Smolka v. Second Dist. Comm., 224 Va. 161, 295 S.E.2d 267 (1982).

Under paragraph 13, it is the duty of a district committee to investigate charges of misconduct against an attorney when the misconduct occurs in that district or the attorney resides in or maintains an office in the district. However, this paragraph establishes venue rather than subject-matter jurisdiction. Stith v. Virginia State Bar, 233 Va. 222, 355 S.E.2d 310 (1987).

Failure to timely object to venue in disciplinary action. -- Ordinarily, venue is waived if the defendant does not make a timely objection. This concept is implicit in subparagraph C(5). Smolka v. Second Dist. Comm., 224 Va. 161, 295 S.E.2d 267 (1982).

Under subparagraph C(5), when an attorney files his answer to a charge of misconduct, he waives his privilege to assert lack of venue. If he waits until after the adverse decision of the Virginia State Bar Disciplinary Board to state his objection to venue, his objection is untimely. Smolka v. Second Dist. Comm., 224 Va. 161, 295 S.E.2d 267 (1982).

Venue is waived if timely objection is not made. Stith v. Virginia State Bar, 233 Va. 222, 355 S.E.2d 310 (1987).

Where attorney's first objection to venue of record was his motion to dismiss filed with the disciplinary board, this objection came too late in the disciplinary proceedings to afford him relief, and the disciplinary board properly overruled this motion. Stith v. Virginia State Bar, 233 Va. 222, 355 S.E.2d 310 (1987).

Where attorney appeared before the district committee on the first complaint and did not raise objection to the venue, this was equivalent to an express waiver. Where he did not appear on the second complaint and did no more than communicate by telephone with a member of the committee, his failure to object either in person or in writing again waived any objection to venue. Stith v. Virginia State Bar, 233 Va. 222, 355 S.E.2d 310 (1987).

The attorney's failure to make a timely demand for a three-judge court constituted a conclusive waiver of the right to subsequently file such demand. Wright v. Virginia State Bar, 233 Va. 491, 357 S.E.2d 518, cert. denied, 484 U.S. 930, 108 S. Ct. 300, 98 L. Ed. 2d 259 (1987).

Petition merely repeating untimely venue objection was properly denied. -- Where attorney filed with the Disciplinary Board a petition for review of its decision and remand of the case to the Fourth District Committee for a hearing de novo on the ground that the Fifth District Committee lacked jurisdiction to investigate the complaints against him, and his petition merely repeated his untimely objection to venue, the Disciplinary Board did not err in denying it. Stith v. Virginia State Bar, 233 Va. 222, 355 S.E.2d 310 (1987).

Committee for district to which attorney improperly removes goods has jurisdiction. -- Where attorney takes office equipment from one district and uses it in his law office in another district, the committee for the latter district has jurisdiction to investigate this misconduct. Larceny is a continuing offense and use of the equipment by the attorney in his law office constituted misconduct in the district in which it was located. Smolka v. Second Dist. Comm., 224 Va. 161, 295 S.E.2d 267 (1982).

Use of bar funds to pay counsel in suits to enjoin unauthorized practice of law. -- Payment from bar funds of reasonable counsel fees for the prosecution of suits on behalf of the Virginia State Bar to enjoin the unauthorized practice of law is within the authority of the Bar Rules and the Bar Act; but such payments shall be limited to attorneys specially employed for that purpose and only in cases in which special counsel is requested by the Attorney General. Button v. Day, 204 Va. 547, 132 S.E.2d 292 (1963).

Attorney's failure to handle a legal matter in a timely fashion and failure to keep his client reasonably informed as to the status of the matter was misconduct in violation of subsection (C) of DR 6-101, and the State Bar Disciplinary Board did not abuse its discretion in ordering disbarment. Tucker v. Virginia State Bar, 233 Va. 526, 357 S.E.2d 525 (1987).

Sanctions for misconduct. -- Upon finding misconduct proved, the State Bar Disciplinary Board may (a) deliver a private reprimand; (b) deliver a public reprimand; (c) suspend the attorney's license for a stated period up to five years; or (d) revoke the attorney's license. Tucker v. Virginia State Bar, 233 Va. 526, 357 S.E.2d 525 (1987).

Foreign adjudication on merits held conclusive. -- This rule does not permit the respondent attorney to relitigate any issues of fact which were expressly or implicitly decided in the foreign jurisdiction. The board, therefore, correctly held that the foreign adjudication on the merits was conclusive. Cummings v. Virginia State Bar, 233 Va. 363, 355 S.E.2d 588 (1987).

Appellate review of Disciplinary Board findings and conclusions. -- On review the Supreme Court will make an independent examination of the whole record, giving the factual findings of the Disciplinary Board substantial weight and viewing them as prima facie correct. While not given the weight of a jury verdict, those conclusions will be sustained unless it appears they are not justified by a reasonable view of the evidence or are contrary to law. Blue v. Seventh Dist. Comm., 220 Va. 1056, 265 S.E.2d 753, stay denied, 448 U.S. 904, 100 S. Ct. 3045, 65 L. Ed. 2d 1134 (1980).

The penalty imposed by the State Bar Disciplinary Board in a disciplinary proceeding will be viewed on appeal as prima facie correct and will not be disturbed unless, upon the Supreme Court's independent examination of the whole record, it appears unjustified by a reasonable view of the evidence or is contrary to law. Tucker v. Virginia State Bar, 233 Va. 526, 357 S.E.2d 525 (1987).

A sanction imposed by the Disciplinary Board will be viewed on appeal as prima facie correct and will not be disturbed unless, upon independent examination of the whole record, it appears unjustified by a reasonable view of the evidence or is contrary to law. Shea v. Virginia State Bar, 236 Va. 442, 374 S.E.2d 63 (1988).

Applied in Tucker v. Seventh Dist. Comm., 202 Va. 840, 120 S.E.2d 366 (1961); Maddy v. First Dist. Comm., 205 Va. 652, 139 S.E.2d 56 (1964); Blum v. Tenth Dist. Comm., 210 Va. 5, 168 S.E.2d 121 (1969); Greene v. Virginia State Bar Ass'n, 411 F. Supp. 512 (E.D. Va. 1976).

Document 20 of 28.


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