Lawyer beats bar discipline charge

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A lawyer charged with lying to a Virginia State Bar investigator has avoided bar discipline with a three-judge deadlock.

The circuit court panel issued an order last month stating the three judges could not reach a majority decision on whether the bar had proved by clear and convincing evidence that Brandon H. Ziegler knowingly made a false statement of material fact in connection with a bar investigation.

The case may have turned on the term “material,” according to Ziegler’s lawyer in the discipline case.

The charge against the Virginia Beach lawyer arose from a 2012 divorce case.

Sandra and Tim Costen broke up that year, with Sandra accusing Tim of brandishing a firearm and assaulting her.

After bringing criminal charges against Tim and obtaining a protective order, Sandra hired Ziegler to represent her in the anticipated divorce. The couple had a young daughter.

Sandra told Ziegler she would rather not testify against her husband and hoped to relocate to Florida with the daughter.

The criminal charges were set for trial in the Virginia Beach Juvenile and Domestic Relations Court.

Ziegler went to court with Sandra. Tim was there with his lawyer, Thomas B. Shuttleworth.

Before the case was called, Ziegler allegedly offered to ask the prosecutor drop the criminal charges if Tim would agree to allow Sandra to move to Florida with the daughter. Tim refused.

At trial, one of Tim’s three criminal charges was dismissed. Two other charges were deferred.

Tim filed a bar complaint against Ziegler.

Ziegler denied making the alleged offer, both in writing and in an interview with a bar investigator, the bar said.

The bar claimed Ziegler’s denial was contradicted by entries in his own billing records.

Ziegler made a false statement to the bar, the bar’s lawyers charged. That was a violation of Rule 8.1 of the Rules of Professional Conduct which forbids knowing, material false statements in connection with disciplinary matters.

Represented by Richmond’s Michael L. Rigsby, Zielger defended the charge before a Virginia Beach Circuit Court panel Sept. 24.

Rigsby acknowledged the judges heard conflicting evidence. Shuttleworth testified Ziegler had made the offer. Ziegler denied it.

Rigsby argued that, no matter whom the court believed, Ziegler’s purported courthouse offer was not unethical and so any reference to it was not “material.”

The bar’s case relied on the premise that Ziegler violated Rule of Professional Conduct 3.4 (i) which forbids a lawyer to present or threaten to present criminal or disciplinary charges solely to obtain an advantage in a civil matter.

“It was clear that Mr. Ziegler had not threatened or initiated a criminal matter to gain any advantage in a civil case,” Rigsby said.

The judges’ questions indicated they were skeptical about the underlying theory of wrongdoing in Ziegler’s alleged offer, Rigsby continued.

“I just believe the court wondered how in the world that could be a material fact,” Rigsby said.

The judicial panel was led by Albemarle County Judge Cheryl V. Higgins. The other members were Judge Beverly W. Snukals of Richmond and retired Judge Daniel T. Balfour of Henrico County.

After lengthy deliberation, Higgins announced the panel could not reach a majority decision, Rigsby said.

The official order came Nov. 5:

“After due deliberation, the panel reconvened and announced that it was unable to reach a decision by majority vote that the rule violation charged in this case had been proved by clear and convincing evidence. Accordingly, it is ORDERED that this case is hereby DISMISSED,” Higgins wrote for the court.

“I truly don’t know what the hang up was. I’ve never had one like this before,” Rigsby said.

Bar Counsel Edward L. Davis said he, also, had no insight into the views of the three-judge panel.

“We can’t speculate as to the reasoning, and can only say that the panel reached its decision based upon the evidence presented, and that the disciplinary process worked as it should,” Davis said.