Bar Counsel’s Message by Renu M. Brennan Fair, Effi cient, and Transparent Words from a 1985 report of the Special Committee on Lawyer Discipline still ring true today: “While only a small percentage of lawyers en-gage in improper activities, those that do so present a danger to the public, diminish respect for our system of justice, and mar the reputation of the bar as a whole. It is therefore essential for the public welfare and vitality of the bar that the disciplinary system be as effi cient and effective as possible.” 1 Strong and effective self-regula-tion requires the active and informed participation of Virginia’s lawyers. “Transparency, greater access to infor-mation about lawyer misconduct, and knowledge about how the disciplinary system works help increase the public’s confi dence in the effectiveness of the disciplinary system and the profes-sion’s ability to self-regulate.” 2 Why Do We Exist? What Rules Govern Disciplinary Proceedings? The disciplinary system protects the public, maintains the integrity of the profession, and deters lawyers from misconduct by disciplining lawyers who have acted unethically. Part Six, Section IV, Paragraph 13 of the Rules of the Supreme Court of Virginia, 3 governs all stages of the disciplinary process, from complaint through appeals. Respondents have a further right of appeal to the Supreme Court of Virginia. 4 Who Are We? The disciplinary system is comprised of the Offi ce of Bar Counsel (OBC) 5 (13 attorneys) and over 200 volunteers who serve on 17 disciplinary district committees 6 – each comprised of seven attorneys and three lay members or-ganized geographically by judicial cir-cuits – and the disciplinary board 7 (16 attorneys and 4 lay members). Active and retired circuit court judges sit on three-judge panels. The 13-member Committee on Lawyer Discipline 8 oversees the disciplinary process. What Do We Do? The OBC has two departments: Intake and Discipline. Intake reviews all bar complaints to determine whether the conduct alleged states a violation of the Rules of Professional Conduct (RPC). If not, the complaint is dis-missed. 9 Intake resolves complaints involving minor misconduct suscepti-ble of early resolution, such as failure to communicate or to provide the client their fi le. 10 Discipline analyzes the remaining complaints from Intake, obtains and reviews additional infor-mation from the parties, and decides whether to dismiss or refer for further investigation to the district commit-tee. 11 District Committee The local district committee, through a subcommittee, reviews bar counsel’s recommendation after the investiga-tion and decides whether to dismiss, admonish, approve an agreed dispo-sition for an admonition or private or public reprimand, set for hearing be-fore the district committee, or certify to the disciplinary board, if suspension or revocation is warranted. 12 Sanctions Depending on the tribunal, sanctions include: dismissals de minimis, dis-missals for exceptional circumstances, admonitions, reprimands, suspen-sions, and revocation. 13 With some variation, terms may be imposed or agreed to in order to ensure fi tness to practice law and to prevent recurrence of misconduct. Terms carry a more severe alternative sanction for failure to comply. 14 Private discipline shall be imposed only in cases of minor misconduct, when there is little or no injury to a client, the public, the legal system or the profession, and when there is little likelihood of repetition of misconduct. There is a rebuttable pre-sumption against private discipline if the attorney has received two or more private sanctions, excepting dismiss-als de minimis, during any ten-year period. 15 Respondent’s Right to Three-Judge Panel and Burden of Proof in Proceedings Discipline prosecutes the cases. 16 A respondent attorney may opt for a three-judge circuit court panel in lieu of the district committee or disci-plinary board. 17 The burden of proof at all stages of the process and for all proceedings is clear and convincing evidence. 18 Board Proceedings In addition to hearing misconduct cases which would justify suspen-sion or revocation, 19 the board hears appeals from district committees, 20 show cause proceedings arising from criminal convictions 21 /fi rst offender pleas, 22 terms violations, 23 discipline imposed by another jurisdiction, 24 as Bar Counsel continued on page 58 12 VIRGINIA LAWYER | August 2019 | Vol. 68 www.vsb.org