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Bar proposes elimination of lowest sanctions

vsb-150x150_mainThe Virginia State Bar may drop two low-level options for resolving ethics charges against attorneys.

The VSB’s Standing Committee on Lawyer Discipline also proposes changes aimed at improving public notice of disciplinary actions and open access to disciplinary proceedings.

Two sanctions would be cut

The proposed rule revisions announced Jan. 24 would eliminate “dismissal de minimis” and dismissal “for exceptional circumstances” as low-level sanctions in discipline cases. The change would leave “admonition” as the lowest disciplinary sanction.

The committee said the dismissal terminology is misleading to the public, to those making bar complaints and to the accused lawyers themselves.

Although characterized as “dismissals,” the bar treats those dispositions as sanctions, since they rely on findings of rules violations, COLD chair David J. Gogal explained.

A lawyer with a dismissal de minimis or for exceptional circumstances could mistakenly believe he had no disciplinary record, since the charges were nominally “dismissed.”

“It was really a misnomer, and one that was not good to have,” Gogal said.

A Virginia lawyer who received a dismissal de minimis in 2012 appealed that finding to the Supreme Court of Virginia, which reversed the judgment and vacated the sanction. The lawyer for attorney Heather E. Zaug said she fought the de minimis finding because it carried the stigma that a discipline panel had made a finding of misconduct. The sanction could keep a lawyer from serving on the VSB Council and district committees.

Enhanced transparency

Other rule changes are designed to make the disciplinary process more open to the public.

New language in paragraph 13-30 of the VSB rules would declare that all district committee, disciplinary board and three-judge circuit court hearings and all determinations imposing public discipline are public.

Also deemed open are orders of summary, interim or administrative suspensions.

Once a disciplinary proceeding is set for hearing, all notices, orders, pleadings and other documents filed with the clerk would be public.

There would be an express procedure for blocking access to some matters. The changes would add a provision allowing a district committee, the disciplinary board or a three-judge court to seal records or close proceedings for good cause shown.

A petition for an expedited hearing against an attorney would be public when filed with the VSB clerk, the rule changes would say. Under current rules, most bar charges become public when filed with the clerk or posted on the VSB hearing calendar. Nevertheless, the present rules have no similar provision for petitions for expedited hearing, even though such filings generally involve the most dangerous allegations of rule violations.

The rule revisions would speed public notice of some proceedings. The proposed amendments would require a district committee to issue a summary order on conclusion of a hearing, as is required now with the disciplinary board and three-judge courts. Summary orders provide a minimal description of the proceedings and specify the precise discipline imposed. Under the rule changes, the VSB clerk would issue a news release on receipt of a summary order.

The suggested rule changes were up for comment through Feb. 18. They could be considered by the VSB Council Feb. 23.