Peter Vieth//April 10, 2013
Peter Vieth//April 10, 2013//
For the second time in a dozen years, a Virginia State Bar discipline panel has struggled with whether Virginia lawyers should be forced to defend their VSB privileges based on suspension or revocation by federal authorities.
The issue of so-called “reciprocal discipline” arose in the case of a Portsmouth lawyer who had his privilege to practice in federal bankruptcy court revoked by a bankruptcy judge.
Denny P. Dobbins should have his Virginia bar license similarly revoked, a five-member VSB Disciplinary Board panel decided, but not without some hesitation about the procedure.
In a Feb. 7 order and opinion, members of the panel questioned whether a federal court should be viewed as “another jurisdiction” under a procedural rule governing VSB discipline. Paragraph 13-24 of the Rules of the Supreme Court of Virginia, Part Six, Section IV, triggers a show cause order upon notice that “another jurisdiction” has suspended or revoked the license of a Virginia lawyer.
Dobbins’ case presented the “anomaly” that, if a Virginia circuit court had taken the same action, the VSB could not have taken reciprocal action, the Disciplinary Board said. Although the VSB could still file separate charges of misconduct, if warranted, that procedure provides additional protections for the accused attorney.
Shifting the burden
The distinction could be significant.
When the VSB files a charge of misconduct, the bar has the burden of proving its case by clear and convincing evidence. A lawyer has 21 days to respond and at least 42 days before facing a hearing.
When the VSB acts under the reciprocal discipline rule, however, the VSB first summarily suspends the lawyer’s license and then gives the lawyer just 14 days to file a written response limited to three possible defenses. At a hearing, the lawyer, not the VSB, has the burden of showing by clear and convincing evidence that there is good cause not to impose the same discipline.
Dobbins was disbarred by the VSB after his privilege to practice in bankruptcy court was revoked in September by U.S. Bankruptcy Judge Stephen St. John.
St. John found that Dobbins had continued to practice in the bankruptcy court after his license was suspended by the VSB. Dobbins told the bankruptcy judge he had suffered a stroke last January and was closing his office.
Dobbins offered little in his defense when the VSB directed him to show why he should not be disbarred based on St. John’s revocation. He failed to file a written response as directed by the reciprocal discipline rule. He showed up for a Nov. 16 VSB hearing, but presented no evidence or argument to avoid the sanction, according to the board’s order.
Board asked for briefs
Nevertheless, the board put aside its initial revocation ruling and requested briefing and argument from the two sides on the issue of whether a ruling by a judge “falls within the purview” of the Rule’s requirement that discipline arise from “another jurisdiction.”
The board asked for analysis of two cases. In one, an Arlington circuit judge revoked a lawyer’s right to appear in that court, and the Supreme Court of Virginia affirmed, holding a court has an inherent authority to discipline attorneys apart from the VSB procedures.
In the other case reviewed by the panel, the VSB disciplined former lawyer Martin G. Mullen of Alexandria, based on a suspension by the U.S. Patent and Trademark Office.
Norfolk lawyer Joseph R. Lassiter Jr., a member of the Mullen discipline panel, wrote a pointed dissent in that case, saying he remained “unconvinced” as to what constitutes another “jurisdiction” as used in the reciprocal discipline rule.
“While it is not clear to me that ‘jurisdiction’ as used in [the rule] is limited to state bars, I am uncomfortable with broadening the definition to include any tribunal which might elect to adopt rules of admission for lawyers appearing before the tribunal,” Lassiter wrote in 2002.
Despite Lassiter’s misgivings, the Mullen panel imposed discipline based on the PTO suspension. The board found the PTO provided due process and used disciplinary rules similar to those of the VSB.
Noting similar protections afforded by the bankruptcy court for Dobbins, Assistant Bar Counsel Richard E. Slaney argued in a brief that reciprocal discipline would not be unfair. Considering the bankruptcy court as “another jurisdiction” follows VSB precedent and opinions from other states, Slaney said. “There is nothing unfair” about following the plain terms of the rule, he wrote.
Dobbins also responded to the discipline board’s concern. In a one-page brief, he argued his revocation by the bankruptcy court was “not similar to a disciplinary hearing.” The bankruptcy court was “just a single court of limited jurisdiction,” he said.
Reservations aside, the Disciplinary Board members decided they had no choice but to revoke Dobbins’ license, since he had failed to offer a timely defense to the show cause order.
The members of the disciplinary board panel were lawyers Paul M. Black, Samuel R. Walker, William H. Atwill Jr., and Pleasant S. Brodnax III, along with lay member Robert W. Carter. Brodnax presided and signed the order and opinion expressing the panel’s reservations about the process.
Lawyers raise concerns
Lassiter – the dissenter in the 2002 Mullins case – said he still has concerns about the use of a single judge’s actions to trigger the reciprocal discipline procedure.
He said in an interview that it is possible to get on the wrong side of a judge and incur summary punishment for some slight infraction. “They’re human, they each have their own quirks,” Lassiter said. When a judge acts to discipline a lawyer, “The judge you have offended passes sentence on you,” without the protections of a disciplinary hearing, he said.
A lawyer facing revocation or long-term suspension based on a judge’s decision should get a full airing of charges, Lassiter argued. “If the behavior is unethical, then why shouldn’t the bar panel hear the case? Their decision might be more lenient, or tougher for that matter,” he said, but the panel could craft punishment to fit the crime.
A former bar official expressed many of the same concerns.
Leslie A.T. Haley of Richmond, now in private practice, was for 14 years the Senior Assistant Ethics Counsel at the VSB. She said Dobbins’ behavior in the bankruptcy court was akin to unauthorized practice of law, with no indication of any prior problems in that court.
“It’s a very, very stiff penalty to him to have lost his license because the bankruptcy court revoked his privileges,” Haley said. She wondered aloud if the bankruptcy judge intended the ultimate effect of his decision.
Alexandria lawyer Bernard J. DiMuro, who has represented lawyers before the VSB, noted a bankruptcy court revocation is not equivalent to a general disbarment.
“Why should a court’s action within the court be given ‘full faith and credit’ in a reciprocal proceeding?” he asked. An attorney barred from court would still be able to handle some matters in his office, such as drafting wills or reviewing contracts, DiMuro said.
Ironically, the lawyer who represented Mullins in 2002, Timothy J. Battle of Alexandria, has no beef with the outcome in the Dobbins matter. “I thought it was a very fair result. I thought the reasoning was solid,” he said.
The shifting of the burden does not pose a major obstacle for lawyers facing reciprocal discipline, Battle said. In Virginia discipline cases, it makes little difference who has the burden of proof and which side goes first, because all the evidence ultimately comes in and equitable principles come into play, he said. “I’m not sure it’s a huge difference,” he said. “It should lead to the same result.”
The Virginia rule for reciprocal discipline is consistent with those in other jurisdictions, Battle said. “I can tell you around the country, almost all the states and the District of Columbia have something very similar to what they have in Virginia,” he said.