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High court reverses lawyer discipline

The Supreme Court of Virginia has reversed a public admonition for a prosecutor who talked to a defendant without his lawyer. The defendant was involved in two separate cases and the high court said the disciplinary charge did not adequately inform the lawyer which matter was at issue.

The Virginia State Bar charged Caroline County Commonwealth’s Attorney Tony Spencer with violating Rule 4.2 of the Rules of Professional Conduct, which governs communicating with an adverse party who is represented by counsel. The prosecutor’s alleged misconduct arose out of an interview Spencer conducted with a criminal defendant in custody who was charged with possession of a firearm and also was involved in a civil action involving an allegedly forged will.

Spencer knew the defendant was represented by counsel in both matters and the misconduct charge said Spencer questioned the defendant about the forged will and tried to obtain admissions, according to the Supreme Court’s account of the disciplinary case.

After a hearing before the VSB Disciplinary Board, VSB counsel confirmed Spencer had not been charged with communicating with the defendant about the criminal offense, which was the basis of the district committee’s finding of a rule violation. The board nevertheless affirmed the committee’s sanction of a public admonition.

The Supreme Court reversed and dismissed the VSB disciplinary complaint.

“In this case, the charge of misconduct against Spencer neither included the factual allegation that Spencer had discussed the pending criminal offense with the defendant, nor accused him of misconduct in that regard,” so Spencer was not given a chance to defend against the charge, the Feb. 24 order said.

–Deborah Elkins

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