VIRGINIA BEACH — The proponent of a plan to go back to paper ballots for Virginia State Bar presidential elections found himself swimming against a tsunami at a VSB Council meeting June 18.
Despite more than an hour of debate and discussion, Thomas A. Edmonds’ proposal to dump online voting for contested statewide elections met resounding defeat, by a 10 to 1 margin.
With 70 active Bar Council members present, 47 votes were needed to pass Edmonds’ proposed bylaws change, which required a two-thirds vote.
The bylaws change failed by a vote of 59-6.
A substitute motion for a moratorium and study of digital balloting garnered only three votes.
The rejection of a return to paper ballots followed a strong recommendation from a four-member study panel to continue with electronic elections and make adjustments to both avoid glitches and boost participation.
The study committee said most voters contacted responded: “It was fast. It was easy. Thank you.”
Nearly all of those who did not vote acknowledged various forms of apathy. They were not interested in bar governance, they did not know the candidates, or they did not care to vote, reported study panel chair Sharon D. Nelson.
Edmonds was one of three candidates in the November balloting for VSB president-elect. He lost to Michael W. Robinson by 449 votes, about 10 percent of the votes cast.
Edmonds contended that many would-be voters were tripped up by the complexities of online voting or just never saw the critical emails.
“I think we did have a lot of people who would like to have participated and didn’t,” Edmonds said, arguing for the change.
Incoming VSB president Edward Weiner pledged to take a hard look at ways to increase both interest and participation in bar activities.
VSB prosecutors’ duties to disclose
The Bar Council also approved a rule change that makes it clear that VSB prosecutors – the lawyers who present evidence in attorney discipline cases – have an overriding obligation to advise their targets of any evidence in their favor.
The change removed an apparent rules conflict that sometimes provoked accusations of wrongdoing against members of the Bar Counsel staff. Some lawyers believed that confidential information about them had been improperly disclosed, said Bar Counsel Edward L. Davis.
The issue arose because VSB rules emphasize the need for confidentiality in several places. Confidential matters include bar complaints, bar investigations and private discipline.
Nevertheless, Davis explained, there is a paramount duty for the bar to conduct proceedings fairly and to disclose any evidence that might help accused attorneys in their defense.
“The clear consensus is that the duty to disclose exculpatory information to respondents outweighs the duty of confidentiality,” Davis said in a memo.
The Bar Council unanimously approved additional language to Rule 13-11 of the bar’s discipline procedures. The change requires Bar Counsel to disclose exculpatory evidence regardless of whether the information is deemed confidential.
The rule requires Bar Counsel – in most cases – to advise the subject of the otherwise confidential information that it is being disclosed. That is where misunderstandings have arisen in the past, Davis said.
“We’ve had lawyers tell us: ‘You keep that information confidential or I’ll sue you,’” Davis told the Bar Council.
Under the new language, bar prosecutors may disclose confidential information without notice to the subject if they believe that giving notice “will prejudice a disciplinary investigation.”