Lawyers cleared in probe of firing

A Virginia State Bar investigation has concluded that the 2011 firing of a controversial VSB investigator was driven by protests from lawyers and judges over what they saw as tactless investigative methods and was not an attempt to stifle investigation of a prosecutor.

The Aug. 29, 2011, termination of investigator James Whitener – who reportedly resigned under threat of firing – was preceded by a fact-finding mission to Southwest Virginia by a top VSB officer to gather information about Whitener’s conduct.

Whitener’s firing later sparked an ethics complaint against VSB Counsel Edward L. Davis, then-VSB president-elect W. David Harless, and eight Southwest Virginia lawyers who complained about Whitener’s tactics.

In his 2012 bar complaint, Richmond lawyer David P. Baugh said the circumstances reported to him suggested a conspiracy to obstruct a lawful investigation. Baugh has been a frequent critic of the disciplinary arm of the VSB, contending the bar often turns a blind eye to professional misconduct by prosecutors.

What would ordinarily be an internal VSB personnel matter came to light after widespread complaints about Whitener, the unusual listening session by Harless and the resulting bar complaint from Baugh.

Harless, as president-elect of the VSB, traveled from his Richmond office to Wise in August 2011 to listen to Southwest Virginia lawyers with concerns about the bar’s investigative methods. He said he turned over his report on those concerns to staffers at the VSB and had no hand in what was done with Whitener.

Whitener, for his part, said he accepts his forced separation, but he accused the VSB of going easy on the well-connected while encouraging aggressive investigation of solos and small firm lawyers.
Special counsel appointed

Because Davis – the bar’s chief prosecutor – was among the lawyers targeted by Baugh’s complaint, the VSB referred the ethics complaint to Roanoke lawyer Daniel C. Summerlin in the role of acting bar counsel. Summerlin’s six-page report dated June 6 concluded that the circumstances failed to suggest any attempt to obstruct an investigation and that the VSB had sound reasons to terminate Whitener.

Summerlin dismissed the complaints against Davis and the nine other lawyers.

Summerlin’s report is accompanied by letters from all 10 lawyers named in Baugh’s complaint, most saying that Whitener’s conduct threatened to undermine the integrity and reputation of the VSB. None gave any credence to the suggestion of intent to derail an investigation.

Investigator ‘ran his mouth’

Several of the attorneys who complained about Whitener remain adamant that their gripes had nothing to do with the lawyers or subjects Whitener was investigating, but rather what they described as his bullying tactics and unprofessional disclosures about unrelated investigations.

Even though Whitener was in the midst of an investigation of a prosecutor accused by criminal defendants of having a sexual relationship with an informant, lawyers such as Thomas W. Baker of Gate City rejected the suggestion of a corrupt influence in Whitener’s firing:

“That’s blatant bulls—,” Baker said in an interview. “He was fired because he was slanderous and libelous in his investigations.”
Baker said Whitener called on him during an investigation and disclosed information about other investigations far afield from the subject of the interview.

“The guy’s a loose cannon,” Baker said.

It was Baker who first called Harless in June 2011 and asked him to meet with bar members in Southwest Virginia with regard to Whitener’s investigations, according to Harless’ written account.

One of Baker’s concerns was a “general perception” that the bar counsel’s office was conducting a “disproportionate number” of discipline investigations in the Southwest Virginia area, Harless said.

Harless enlisted Thomas R. Scott Jr. of Grundy to take part in the planned meeting. Scott served at the time as chair of the VSB Disciplinary Board.

“The complaint from lawyers was that this guy was going out and running his mouth, basically,” Scott said in an interview.
Prosecutor cleared

Scott denied hearing any report of an effort to turn down the heat on prosecutors.

“None of the prosecutors ever suggested they were filing complaints to get this guy off their a–,” Scott said.

Whitener had been looking into complaints about alleged misconduct by Russell County Commonwealth’s Attorney Brian K. Patton, but every account of the matter, even Whitener’s, acknowledged the accuser had little credibility. When Whitener was fired, a retired investigator was hired to complete the investigation and the complaints against Patton were dismissed, according to Summerlin’s report.

Harless said in his letter to Summerlin that he met with a group of 16 people in Wise, listened to their concerns and turned over the information to bar staffers for whatever action they deemed appropriate.

In an interview, Harless said he “had no hand” in how the VSB staff handled Whitener. Harless declined further comment saying the issue involved both a personnel matter and a discipline matter.

Investigator claims favoritism

Whitener, for his part, agreed his style of investigation may have been unorthodox, but he said he was given a free hand by his supervisors at the VSB. “Go do what you do,” they told him when he was hired in 2007, he said in an interview. “They told me to be aggressive, to push these people,” he said.

“I pissed some people off,” he said.

He said he was taught to follow up any information he developed in an investigation, even if it led beyond the scope of the original mission. He said he was taught to use what he termed “investigative disclosure” to elicit additional information from sources.

Whitener said there is a tendency for many in Southwest Virginia to be suspicious and resentful of any official from Richmond, since they believe the rest of the state generally ignores the region. On his first trip to Wise, he said, “They were stunned I showed up.”

Whitener also said he has come to agree with a federal prosecutor who once told him Southwest Virginia was the “most corrupt area he’s ever seen.”

Whitener did not explicitly endorse Baugh’s suggestion that he was yanked off the job to protect a prosecutor, but he said he feels there has been “selective enforcement” of bar discipline in Southwest Virginia.

Investigating a solo practitioner in a small town, “you expect me to go hard,” Whitener said of bar officials. “If it’s someone with some juice, you expect me to whitewash it,” he said. “I was uncovering things they didn’t want me to uncover.”

Whitener said he declined to pursue a lawsuit over his firing, saying what’s done is done.

“I miss my job,” he said, adding, “I’ll get over it. I’m a big boy.”

Baugh said his view of the VSB’s discipline arm is unchanged. Since the Whitener matter was reported by the Richmond Times-Dispatch Aug. 4, Baugh said he has received 15 phone calls from other lawyers complaining about the same issue.

“I am convinced more than ever that the office of bar counsel has a different standard for evaluation of ethical complaints against prosecutors, and prosecutors are allowed to commit significant violations and the bar tolerates it,” Baugh said.

Summerlin did not respond to a request for comment. A VSB spokesperson declined comment on behalf of Davis, saying the bar is unable to comment or even acknowledge discipline investigations.