A Virginia State Bar committee wants to reaffirm the bar’s authority to punish Virginia lawyers based on discipline imposed by authorities elsewhere.
At the same time, a proposal to revise the VSB reciprocal discipline rules would remove “strict default provisions” that could pose a trap for the unwary.
The rewrite of the bar’s reciprocal discipline process was prompted by the refusal of the VSB Disciplinary Board to impose a license suspension on a lawyer who was suspended by a federal court.
A disciplinary board panel – on a 4-1 vote in January – concluded the Virginia reciprocal discipline rule applied only for discipline imposed by a jurisdiction “with sanction powers equivalent to those delegated” to the VSB Disciplinary Board.
The VSB Committee on Lawyer Discipline on Dec. 3 approved proposed amendments to Paragraph 13-24 of Part 6, Section IV, of the Rules of the Supreme Court of Virginia – the rule that governs reciprocal discipline.
The COLD panel is inviting public comment through Jan. 15.
The committee’s suggested changes would clarify what qualifies as “another jurisdiction” for purposes of reciprocal discipline.
The new rule would allow for reciprocal discipline based on actions of a “state or federal licensing or disciplinary authority; a state or federal agency; a court in any state, United States territory, foreign nation, or District of Columbia authorized to discipline attorneys; or a United States military tribunal.”
The amended rule would allow the VSB to impose the same or similar discipline as that imposed in the other jurisdiction.
The addition of the phrase “or similar” would allow for leniency as appropriate, the committee said.
The COLD proposal would allow postponement of a hearing on reciprocal discipline if the subject attorney expresses intent to challenge the proceedings, avoiding an automatic suspension.
The suggestions for change in part address the case of Sandy Y. Chang, a bankruptcy lawyer who was suspended by federal courts in Maryland, but who avoided a corresponding penalty from the VSB.
The Disciplinary Board majority in Chang’s case said it could not impose the same discipline because a VSB license suspension “would be a greater discipline” than suspension by the Maryland federal courts.
“That fact leads us to conclude that the federal court is not ‘another jurisdiction’ under the current framework of the reciprocal discipline rule,” wrote Bristol lawyer R. Lucas Hobbs for the Chang majority.
“The plain meaning of the rule, as written, is that ‘another jurisdiction’ is one with sanction powers equivalent to those delegated to this Board,” Hobbs said.
Comments on the proposed revision of the reciprocal discipline rule can be sent to VSB executive director Karen Gould at firstname.lastname@example.org.