Bar Counsel’s Message by Edward L. Davis A Primer on Reciprocal Discipline Proposed Changes to a Longstanding Disciplinary Procedure Seek Protection of the Public as well as Fairness to Respondents “ You mean if I have a bad day in an Oklahoma traffi c court, and the trial judge bars me from appearing in that court, the Virginia State Bar will summarily suspend my Virginia law license and require me to show cause why my license should not be further suspended or revoked?” The short an-swer is no, although existing rules are not perfectly clear about what consti-tutes another jurisdiction for purposes of reciprocal discipline. What is reciprocal discipline? It is a disciplinary procedure that deter-mines what, if anything, should be done with the Virginia law license of an attorney who has been suspended or revoked by another jurisdiction for professional misconduct. Virginia’s existing reciprocal discipline rule 1 requires the summary suspension of a Virginia lawyer’s license upon receipt by the bar of a fi nal suspension or revocation order from another juris-diction. The attorney is then required to appear before the Virginia State Bar Disciplinary Board to show cause why his or her Virginia law license should not be further suspended or revoked because of the action taken by the other jurisdiction. Additionally, the existing rule allows an attorney to raise three specifi c contentions in defense, but to suffer the same discipline as imposed in the other jurisdiction if he or she does not fi le the response within fourteen days of the mailing of the show cause notice, does not meet his or her burden of proof, or fails to appear at the show cause hearing. 2 Proposed changes to the rule are intended to address the issues created by these summary, default procedures, making them more fair for respon-dents while protecting the public. Specifi cally, the proposed changes clarify what constitutes another jurisdiction, provide exceptions to the summary law license suspension requirements, and allow respondents greater opportunities to gather and prepare their defenses without suffer-ing the automatic default provisions of the existing rule. Every state law licensing jurisdic-tion has a form of reciprocal discipline. Virginia limits reciprocal discipline to suspensions or revocations only. The imposition of lesser sanctions by other jurisdictions, such as reprimands, cannot lead to reciprocal discipline in Virginia, although it may in some other jurisdictions. Why have reciprocal discipline? The purpose is to protect the public and prevent lawyers whose misconduct was so severe as to warrant the suspen-sion or revocation of their law licenses in one jurisdiction from immediately practicing law in another jurisdiction without showing by clear and convinc-ing evidence that the same discipline should not be imposed. Reciprocal discipline also prevents licensing au-thorities from having to relitigate mis-conduct actions that have been tried to conclusion and fi nalized in other jurisdictions. 3 Public confi dence in the profession is enhanced when lawyers who are admitted in more than one ju-risdiction are prevented from avoiding the effect of discipline by practicing in another. 4 What constitutes another juris-diction? For decades, Virginia did as the majority of other states and imposed reciprocal discipline in disciplinary actions from not only other state licensing authorities, but from federal courts, bankruptcy courts, and some federal agencies that have disciplinary procedures, such as the US Patent and Trademark Offi ce, and the Immigration and Naturalization Service. More recently, however, in the Matter of Sandy Yeh Chang 5 , the Disciplinary Board determined that a United States District Court does not constitute another jurisdiction for purposes of reciprocal discipline. In the Chang matter, the United States District Court for the District of Maryland convened formal disci-plinary proceedings. Chang appeared at the hearing, where she presented evidence, called witnesses, and argued the matter before three specially appointed US District Court judges. The three-judge court found that she had committed professional miscon-duct and recommended the one-year suspension of her privilege to practice law in that court. The US District Court approved the recommendation in accordance with the disciplinary procedures, and Chang’s privilege to practice law in that court was suspend-ed for one year with terms. When she appeared before the Virginia State Bar Disciplinary Board, Discipline continued on page 14 12 VIRGINIA LAWYER | August 2016 | Vol. 65 www.vsb.org