Thursday’s decision by the high court means a Virginia State Bar disciplinary panel will reconsider the public reprimand issued to Eric J. Livingston, an assistant commonwealth’s attorney in Prince George County.

Livingston obtained an indictment charging a defendant with illegal possession of a pain killer drug even though the defendant had purchased only fake medication in a police sting. Other charges were flawed as well, the VSB contended.

The VSB reprimanded Livingston saying he violated provisions of the Rules of Professional Conduct regarding competent representation, meritorious claims and a prosecutor’s duty to ensure charges are supported by probable cause.

Considering Livingston’s appeal, the Supreme Court decided the evidence was clear and convincing that he failed to provide competent representation. The evidence fell short of showing rules violations for intentionally advancing frivolous charges or charges without probable cause, the court said.

Livingston’s case was sent back to the VSB to reconsider the proper disciplinary penalty.

The high court has agreed to hear a case in which a Fairfax County judge ruled he had no authority to consider dismissal after a drug defendant pleaded guilty amid “overwhelming” evidence of guilt.

Lawyers for William Starrs say Circuit Judge Randy Bellows ignored Virginia cases suggesting he still had authority to defer and dismiss because he never made a finding of guilt in the case.

A Court of Appeals panel concluded otherwise in October. When Bellows accepted Starrs’ “knowing and voluntary guilty pleas” and entered those pleas on the record, “it thereafter had no discretion to dismiss the charges against him,” wrote Chief Judge Walter S. Felton for the panel. He equated the guilty plea to a “self-supplied conviction” barring any discretionary dismissal.

Starrs’ lawyers say the decisions of Bellows and the Court of Appeals are in direct conflict with the Supreme Court’s 2011 holding in Hernandez v. Commonwealth.

The extent of a trial judge’s authority to postpone judgment and dismiss criminal charges has pitted defense lawyers against prosecutors in and out of court and led General Assembly members to question judicial candidates about their views on the issue.

While a settlement brought an end to most of Tareq’s claims against Michaele, her new partner Neal Schon and his band Journey, a claim against a former publicist for the couple remains in play.

DD Entertainment LLC once represented Tareq and Michaele. Tareq called “foul” when the company switched allegiance to Michaele and Schon.

A circuit court judge threw out claims of contract breach and tortious interference with contract, but on May 22 the Supreme Court agreed to hear Salahi’s appeal.

Richmond Circuit Judge Melvin R. Hughes Jr. dismissed the claims last year saying the lawsuit filed by the widow of Earl Paschall failed to state sufficient facts to show the elevator companies “knew, or had reason to know” of the hazards of asbestos.

The facts alleged were sufficient to support the products liability claims against the elevator companies, the Supreme Court held Friday in an unpublished order in Paschall v. Dover Elevator Co.

The high court’s vote was 5-2. Chief Justice Cynthia D. Kinser and Justice Elizabeth A. McClanahan were listed as dissenters.

The decision could mean a $5.4-million difference in a medical malpractice recovery for the 11-year-old child who suffered a severe brain injury from birth complications.

A Roanoke City jury that heard the case over 10 days last May returned verdicts of $2 million and $7 million respectively for mother and daughter. The applicable medical malpractice cap under Virginia law was $1.6 million for each.

Lawyers for the daughter say the trial court erred in ruling the child was a patient of the defendant obstetrician and her claim therefore was subject to the malpractice cap. The Supreme Court granted an appeal on that issue April 25.

If the cap on the daughter’s recovery is affirmed, her recovery from the lawsuit will not even cover her medical expenses to date, according to one of her lawyers.

In another case to be reviewed by the Supreme Court, the trial judge took away a $3-million defamation verdict against the Norfolk daily newspaper.

Lawyers for a school principal who claimed he was libeled by a news story in The Virginian-Pilot say Chesapeake Circuit Judge Randall Smith got it wrong when he declared the principal a public figure and set a high bar for evidence of malice.

Smith set aside the verdict last August. The Supreme Court granted an appeal April 26.

The jury returned a $9.18-million verdict for the family of John Bristow, a retired shipyard worker who died from mesothelioma, the alleged result of working with asbestos gaskets and packing material in the 1960s.

After a reduction to reflect pre-trial settlements with co-defendants, Judge David Pugh entered an $8,477,906 judgment against John Crane Inc.

The Supreme Court granted a writ of appeal this month to hear one assignment of error: “The trial court committed reversible error in permitting the implied warranty claim to be tried under a ‘substantial contributing factor’ theory of causation, instead of Virginia’s well-established ‘but for’ standard for causation.”

The ruling could allow the couple to recover up to $4 million for a birth injury-related claim against the doctor, more than twice the limit of the Virginia medical malpractice cap that would otherwise apply.

Michele and Nathan Davidson of Ashburn say they selected Dr. Chauncey Stokes to deliver their expected child in part because he said he participated in the Virginia Birth-Related Neurological Injury Compensation Act. Despite written notice that his practice participated in the birth injury fund, Stokes was no longer a participant when the Davidsons’ son Grant was born in May 2007.

With severe birth injuries, Grant would have been eligible for benefits under the fund. The Davidsons sued Stokes and his practice, seeking compensation for the doctor’s alleged breach of contract.

Recovery under a medical malpractice action would be limited to $1.85 million under the Virginia Code. There would be no such limit on a successful breach of contract action. The doctor’s insurance company has claim limits of $2 million per claim, and both mother and father assert contract claims.

Loudoun County Circuit Judge Burke McCahill ruled Stokes’ insurer was obliged to cover the contract claims, and the Supreme Court affirmed his ruling Thursday in a 5-2 decision.

The Supreme Court said the alleged breach – nonparticipation in the fund – and resulting damages could not have occurred without the professional medical services provided, so the contract claim arose from those services under terms of the insurance policy. Even though the policy excluded coverage for liability arising out of violation of any statute, the court held the prohibited misrepresentation about participation was merely “incidental” to the contract action.

Justice Cleo E. Powell, joined by Justice Elizabeth A. McClanahan, dissented on that last holding. The state statute bars misrepresentation about participation in the birth fund, and misrepresentation formed the basis of the contract claim, Powell said.

“Were it not for the misrepresentation, the Davidsons affirmatively state that they would have taken their business elsewhere,” Powell wrote.

Over a protest from the lawyer’s client, a Northampton County Circuit Court had paid the fee to Accomac law firm Ayers & Hartnett PC as their designated fee on the HUD-1 form used in the sale.

Client Thomas Henderson had hired the firm to defend him in two cases filed by his brother James that challenged Henderson’s actions as executor of the separate estates of Edmund Henderson and Mary Henderson. After an administrator c.t.a. appointed by the circuit court submitted his report, the parties reached a settlement that called for sale of a property called Wellington.

When Henderson refused to finalize the sale because he did not want to pay the $130,000 legal fee, the parties agreed to complete the sale with the proceeds paid into the circuit court for distribution. Henderson hired another lawyer to challenge the fee award. The circuit court said the fee was reasonable and ordered immediate payment.

Henderson appealed to the Supreme Court, which said the trial court erred in refusing to allow an appeal bond pursuant to Va. Code § 8.01-676.1(C) to suspend execution of the fee award. But the award itself was proper and was affirmed by a unanimous court in Henderson v. Ayres & Hartnett PC.

Last September, the VSB Disciplinary Board affirmed a public reprimand of a Prince George County prosecutor who allegedly pursued criminal charges without probable cause.

Eric J. Livingston of Chesterfield, an assistant commonwealth’s attorney in Prince George County, obtained two indictments against a man who allegedly tried to purchase 50 Oxycontin pills, according to a VSB disciplinary determination. Unknown to the defendant, the seller was a police informant and the pills were fakes.

After the defendant stopped cooperating, Livingston approved indictments charging the defendant with possession of oxycodone (the active ingredient of Oxycontin) with intent to distribute and with possession of an imitation controlled substance within 1,000 feet of a school with intent to distribute.

There were problems with those charges, the bar alleged. Livingston knew the substance the defendant purchased was not Oxycontin or oxycodone, the bar findings stated.

After a trial and objections from the defense lawyer, Livingston moved to amend the first indictment to “attempt” to possess with intent to distribute and urged the judge to convict on both counts. According to the bar, Livingston did not read the annotations to the “school zone” law which pointed to a 2002 appellate case holding the law applies only if a defendant intended to distribute contraband in the area near a school, not elsewhere.

Livingston obtained a third indictment against the defendant the next month, charging him with selling imitation oxycodone. Over the course of two hearings, the judge tossed all three charges.

In arguments to the trial court and, later, to the Court of Appeals, Livingston referred to the charge in the third indictment as “possession with the intent to distribute,” although the indictment did not contain that language. According to the bar’s findings, Livingston did not realize the indictment did not contain that language until a few weeks before the first VSB disciplinary hearing.

A VSB district committee found Livingston’s conduct violated provisions of the Rules of Professional Conduct regarding competent representation, meritorious claims, and a prosecutor’s duty to ensure charges are supported by probable cause. On Sept. 28, the VSB disciplinary board affirmed a public reprimand with terms, and Livingston appealed.

Livingston’s attorney, former Richmond prosecutor William Dinkin, told the Supreme Court on April 16 that Livingston made mistakes in handling the criminal case, but he “never knowingly filed charges that lacked probable cause.”

Livingston made “errors in legal research as he approached the charging decision,” Dinkin said, and he missed the way the offense had been drafted by a clerk. But missing an error in the language of the indictment “comes down to whether he was deliberately indifferent,” Dinkin argued.

The bar’s own charging document came up for review as well, as Dinkin argued the VSB was trying to broaden its allegations of misconduct on appeal beyond its earlier claim that Livingston made a frivolous argument to support the indictment in the underlying criminal case.

But VSB counsel Farnaz Farkish stressed a pattern of misconduct in Livingston’s handling of the case, and said the disciplinary board’s action related to the totality of the evidence.

The question for the court, according to Dinkin, is “whether the pattern is sufficient to demonstrate incompetence.”

Where is the “tipping point when a lawyer has gone from negligence to incompetence?” asked Justice Donald W. Lemons. Is a single act of negligence sufficient, or will multiple acts of negligence in one case amount to incompetence?

On rebuttal, Dinkin said Livingston had realized that he made a mistake about the defense of factual impossibility in the case, which he belatedly tried to correct.

But “that’s not incompetence, that’s somebody who recognized he made a mistake and he did what we would hope he would do” to correct it, Dinkin said.

A Supreme Court decision is expected in June.

The Supreme Court of Virginia said that the deputies were acting in the normal course of their professional duties as police officers, and the fireman’s rule barred their suits.

The deputies, Steven Kulick and Eldridge Motley III, were stationed in an unmarked SUV to provide perimeter support and backup coverage for the primary arresting unit that wanted to arrest target Melissa Joyce Allen.

Police detonated a distraction device next to Allen’s vehicle. She accelerated away from the explosion, and Motley drove the unmarked SUV into Allen’s path. Allen swerved to the right to avoid a head-on collision, but the deputies swerved to the left, and the two vehicles collided.

The deputies filed personal injury suits against Allen, who responded with pleas in bar based on the fireman’s rule.

The Gloucester County Circuit Court sustained the pleas in bar. On appeal, the deputies argued that the circuit court erred by denying them their right to a jury trial on the factual issues raised by the pleas in bar.

In its April 5 unpublished order in Kulick v. Allen, the Supreme Court of Virginia agreed, but held that the circuit court’s denial of a jury trial was invited error.

Although Kulick’s lawyer sent a letter to the court stating an intention to file a motion for a jury trial on the pleas, he did not do so until the day of the hearing on the pleas, which was too late under S. Ct. Rule 3:21(b).

As there was sufficient evidence to support the trial court’s application of the fireman’s rule, the high court upheld dismissal of the deputies’ p.i. cases.

Justices Leroy F. Millette Jr., Elizabeth A. McClanahan and Cleo E. Powell dissented without comment.