IN THE SUPREME COURT OF VIRGINIA AT RICHMOND IN THE MATTER OF SUPREME COURT RULES, PART 6, IV, PARAGRAPH RECIPROCAL DISCIPLINE PETITION

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1 VIRGINIA: IN THE SUPREME COURT OF VIRGINIA AT RICHMOND IN THE MATTER OF SUPREME COURT RULES, PART 6, IV, PARAGRAPH RECIPROCAL DISCIPLINE PETITION TO THE HONORABLE CHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT OF VIRGINIA: The Virginia State Bar, by its president and executive director, pursuant to Part 6, IV of the Rules of this Court, requests review and approval of proposed amendments to Paragraph of Part 6, IV of the Rules of Court governing the Organization and Governance of the Virginia State Bar. The proposed amendments were unanimously approved by the Council of the Virginia State Bar on October 7, I. Revisions to subparagraph Board proceedings upon disbarment, revocation or suspension in another jurisdiction A. Overview of the issues

2 The proposed amendments result from the collaboration of the Standing Committee on Lawyer Discipline (COLD) and the Disciplinary Board to revise the procedures used to impose reciprocal discipline upon a Virginia lawyer whose law license in another jurisdiction has been suspended or revoked. The amendments provide greater specificity as to the outof-state proceedings that will result in reciprocal discipline and provide additional due process protections and fairness than the current reciprocal discipline rule. State bars throughout the country use reciprocal discipline as an efficient means of public protection when a lawyer s license has been suspended or revoked by another jurisdiction. It provides a summary procedure to impose discipline while obviating the need to relitigate matters that have already been adjudicated by another jurisdiction during proceedings where the respondent attorney was provided notice, had - 2 -

3 an opportunity to be heard, and was afforded due process. The purpose of the amendments proposed by COLD is to clarify what qualifies as another jurisdiction for reciprocal discipline purposes, to clarify the Board s authority to impose the same, equivalent, or lesser discipline as another jurisdiction, to allow for leniency as appropriate, and to remove the default provision. B. The details of the proposed amendments to Paragraph The amendments first define the disciplining authorities the VSB will rely on in imposing reciprocal discipline on a Virginia licensed attorney. It does so by defining the terms Jurisdiction and State Jurisdiction. Proposed subparagraph A defines Jurisdiction to include both other state licensing or disciplinary authorities and federal courts and agencies, including the military. This definition is in keeping with the rules and holdings of the majority of other states and with most prior Board decisions - 3 -

4 imposing reciprocal discipline. Subparagraph A.1. defining a State Jurisdiction then distinguishes a state licensing or disciplinary authority from other authorities such as federal courts or agencies. The distinction is important because orders from state licensing or disciplinary authorities are treated differently than orders from other jurisdictions in proposed subparagraph B. Proposed subparagraph B introduces the term equivalent discipline, which is intended to provide the Board with authority to impose reciprocal discipline available in Virginia when the other jurisdiction has imposed a sanction not provided for in the Virginia Rules of Court. For example, some states include as discipline an indefinite suspension, whereas in Virginia all suspensions are for a definite period. When the VSB receives notice that a lawyer s license has been suspended or revoked by another jurisdiction, it issues a Rule to Show Cause why the VSB should not likewise impose the discipline. The - 4 -

5 proposed amended rule would maintain the automatic suspension from the current rule when the other jurisdiction is a state licensing or disciplinary authority. Proposed subparagraph B, however, eliminates the automatic suspension of the respondent s law license upon issuance of the rule to show cause when the other jurisdiction is not a state licensing or disciplinary authority. This change is intended to address concerns that a suspension from another jurisdiction that is not a state licensing or disciplinary authority, such as a single judge or agency, may not warrant a suspension of the respondent s law license in Virginia, or may have been issued without the formality or due process protections that accompany suspensions from a licensing or disciplinary authority. Proposed subparagraph B also eliminates the automatic suspension of the respondent s law license upon issuance of the rule to show cause when the other jurisdiction s suspension order has been suspended or - 5 -

6 stayed. This change is intended to address fairness concerns that a respondent s law license in Virginia should not be suspended prior to the Paragraph proceeding if the respondent remains authorized to practice law in the other jurisdiction that imposed the suspension. Proposed subparagraph B. also clarifies that reciprocal discipline shall be initiated only upon a suspension or revocation from another jurisdiction imposed as a disciplinary measure. Administrative suspensions and revocations, such as those resulting from a failure to pay dues or complete required continuing legal education, shall not form the basis for reciprocal discipline. This clarification was made after a comment was received regarding the need to differentiate administrative suspensions from disciplinary suspensions and revocations. See the comment from Dan Zavadil attached. Proposed subparagraph C addresses service of the Rule to Show Cause and removes return receipt - 6 -

7 requested, as such service is not required to be effective under Part 6, Section IV, Paragraph C of the Rules of Court. Proposed subparagraph C now includes an additional ground of defense that provides that a respondent may present argument and evidence supporting the imposition of lesser discipline than was imposed in the other jurisdiction. This option is not specifically provided in the existing rule, and would allow the Board to consider the facts of a particular case when deciding on the imposition of reciprocal discipline. Proposed subparagraphs D and E address administrative matters and the minor revisions are intended to clarify the language and do not change the substance of the procedures. Proposed subparagraph F gives bar counsel the authority to present evidence and argument of the existence of one or more of the grounds against reciprocal discipline enumerated in subparagraph C. Under the existing rule, bar counsel lacks - 7 -

8 authority to present evidence and argument against the imposition of the same discipline as ordered by the other jurisdiction. Thus, if bar counsel reviews the matter and believes that reciprocal discipline may not be appropriate, bar counsel could now raise those concerns with the Board. Proposed subparagraph F also removes the automatic default provision of the existing rule, which denies the respondent the opportunity to put on a defense if the respondent has failed to submit a written response to the rule to show cause within 14 days of service. The result under the current rule is that the Board has no option but to impose the same discipline as the other jurisdiction. The proposed revision instead provides the Board with discretion to decide whether to allow the respondent to put on evidence despite the respondent s failure to file a timely written response. If after proffer the Board is willing to hear the respondent s full evidence and - 8 -

9 argument, bar counsel may move for a continuance of the hearing to investigate the respondent s defenses. Proposed subparagraph G replaces existing subparagraph F and provides that the burden of proof is clear and convincing evidence. This is not a change. This burden typically lies with the respondent, but may also lie with bar counsel if bar counsel seeks to prove the existence of one or more of the grounds found in subparagraph C. In essence, any party arguing against reciprocal discipline must meet its burden by clear and convincing evidence. Proposed subparagraph G also provides that absent clear and convincing evidence of the existence of any of the grounds specified in subparagraph C, the Board will adopt the findings of the other jurisdiction and conclude that the respondent was afforded due process. The purpose of this addition is to underscore that, absent sufficient proof to the contrary, the Board will give full faith and credit to the order of the other jurisdiction

10 Proposed subparagraph H gives the Board discretion to dismiss the case or impose lesser discipline if it finds clear and convincing proof of the existence of any of the grounds specified in subparagraph C. Under the existing rule, the respondent alone may bear the burden of proof, and if the respondent fails to prove one or more of the grounds of defense by clear and convincing evidence, the Board must impose the same discipline as the other jurisdiction. C. Concluding remarks The proposed amendments maintain the public protection goal inherent in prompt action regarding attorneys whose license has been suspended or revoked in other states, maintain efficiency and utility of a reciprocal discipline regime, while also making the reciprocal discipline system under Paragraph fairer and more able to consider and evaluate, when appropriate, the particular circumstances of a case

11 II. Publication and Comments The proposed amendments to Paragraph were approved by COLD on June 1, Notice of the proposed amendments, with a request for written comments and questions, was posted on the bar s website, and a link to the website was provided in the Virginia State Bar E-News dated July 1, Four comments were received regarding Paragraph 13-24, which are attached. Council unanimously approved the proposed amendments on October 7, III. Proposed Rule Changes 1 Revisions to subparagraph Board proceedings upon disbarment, revocation or suspension in another jurisdiction 13. PROCEDURE FOR DISCIPLINING, SUSPENDING, AND DISBARRING ATTORNEYS * * * BOARD PROCEEDINGS UPON DISBARMENT, REVOCATION OR SUSPENSION IN ANOTHER JURISDICTION A. Definitions Specific to Paragraph The following terms shall have the meaning set forth below unless the content clearly requires otherwise: 1. State Jurisdiction means any state, United States Territory, or District of 1 Additions are denoted by underlining. Deletions are noted by strikethroughs

12 Columbia law licensing or attorney disciplinary authority, including the highest court of any such jurisdiction, authorized to impose attorney discipline effective throughout the jurisdiction. 2. Jurisdiction shall refer to either a State Jurisdiction or any federal court or agency authorized to discipline attorneys, including the United States military. B.A. Initiation of Proceedings. Upon receipt of a notice from the Clerk of the Disciplinary System that another Jjurisdiction has, as a disciplinary measure, suspended or revoked the law license of an Attorney ( Respondent ) License of the Respondent or has suspended or revoked Respondent s privilege to practice law in that Jurisdiction, and that such action has become final (the Suspension or Revocation Notice ), any Board member shall enter on behalf of the Board an order of Suspension against such requiring Respondent to show cause why discipline that is the same or equivalent to the discipline imposed in the other jurisdiction should not be imposed by the Board. If the Suspension or Revocation Notice is from a State Jurisdiction and the suspension or revocation has not been suspended or stayed, then the Board s order shall suspend Respondent s License pending final disposition of the Proceeding hereunder. The Board shall serve upon such Respondent by certified mail the following: a copy of the Suspension or Revocation Notice; a copy of the Board s order; and a notice fixing the date, time and place of the hearing before the Board to determine what action should be taken in response to the Suspension or Revocation Notice and stating that the purpose of the hearing is to provide Respondent an opportunity to show cause why the same or equivalent discipline that was imposed in the other Jjurisdiction should not be imposed by the Board. Notwithstanding the above, notice of a suspension or revocation for merely administrative reasons, such as the failure to

13 pay dues or the failure to complete required continuing legal education, shall not be considered a Suspension or Revocation Notice. C.B. Opportunity for Response. Within 14 days of the date of mailing of the Board order, via certified mail, return receipt requested, to the Respondent s last address of record of the Respondent with the Bar, Respondent shall file with the Clerk of the Disciplinary System an original and six copies of any a written response and any communications or other materials, which shall be confined to allegations that argument and exhibits supporting one or more of the following grounds for dismissal or imposition of lesser discipline: 1. The record of the proceeding in the other Jjurisdiction would clearly show that such proceeding was so lacking in notice or opportunity to be heard as to constitute a denial of due process; 2. The imposition by the Board of the same or equivalent discipline upon the same proof would result in an grave injustice; or 3. The same conduct would not be grounds for disciplinary action or for the same or equivalent discipline in Virginia; or 4. The misconduct found in the other Jurisdiction would warrant the imposition of substantially lesser discipline in the Commonwealth of Virginia. D.C. Scheduling and Continuance of Hearing. Unless continued by the Board for good cause, the hearing shall be set not less than 21 nor more than 30 days after the date of the Board s order of Suspension. E.D. Provision of Copies. The Clerk of the Disciplinary System shall furnish to the Board members designated for the hearing and make available to Respondent copies of the Suspension or Revocation Notice, the Board s order of Suspension against the Respondent, the notice of hearing, any notice of

14 continuance of the hearing, and any written response or materials filed by Respondent or by Bar Counsel. F.E. Hearing Procedures. Insofar as applicable, the procedures for Proceedings on allegations of Misconduct shall govern Proceedings under this subparagraph Bar Counsel has discretion to put forth evidence and argument that one or more of the grounds specified in Paragraph C exists. If Respondent does not file a timely written response, but appears at the hearing and expresses intent to present evidence or argument supporting the existence of one or more of the grounds specified in Paragraph C, Respondent shall make a proffer to the Board. The Board may refuse to consider such evidence or argument as untimely. If the Board in its discretion is willing to consider such evidence or argument, then Bar Counsel, upon motion, may be entitled to a continuance. G.F. Burden of Proof. The Respondent shall have the burden of proof, by a clear and convincing evidentiary standard, and the burden of producing the Record upon which the Respondent relies to support the Respondent s contentions, and shall be limited at the hearing to proof of the specific contentions raised in any written response. Except to the extent the allegations of the written response are established, the findings in the other jurisdiction shall be conclusive of all matters for purposes of the Proceeding before the Board. The burden of proof to establish the existence of one or more of the grounds specified in Paragraph C is clear and convincing evidence. Unless one or more of the grounds specified in Paragraph C has been established by clear and convincing evidence, the Board shall conclude that Respondent was afforded due process by the other Jurisdiction and the findings of the other Jurisdiction shall be conclusive of all matters for purposes of the Proceeding before the Board. H.G. Action by the Board. If the Board determines that none of the grounds specified in Paragraph C exist by clear and convincing evidence, it shall impose the same or equivalent discipline as imposed in the

15 other Jurisdiction. If the Board finds by clear and convincing evidence the existence of one or more of the grounds specified in Paragraph C, the Board shall enter an order it deems appropriate. If Respondent has not filed a timely written response, or does not appear at the hearing or if the Board, after a hearing, determines that the Respondent has failed to establish the contentions of the written response by clear and convincing evidence, the Board shall impose the same discipline as was imposed in the other jurisdiction. If the Board determines that the Respondent has established such contentions by clear and convincing evidence, the Board may dismiss the proceeding or impose a lesser discipline than was imposed in the other jurisdiction. A copy of any order imposing discipline shall be served upon the Respondent via certified mail, return receipt requested. Any such order shall be final and binding, subject only to appeal as set forth in the Rules of Court provided in this Paragraph. * * * IV. Conclusion The Virginia State Bar, by its president and executive director, respectfully requests the Court to adopt the foregoing amendments to Part 6, IV, Paragraph for the reasons stated above. Respectfully submitted, VIRGINIA STATE BAR Michael W. Robinson, President

16 Karen A. Gould, Executive Director Dated this 24 th day of October,

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