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Senator proposes revamp of lawyer discipline system

A state senator says Virginia lawyers deserve a more independent ear when they fight against Virginia State Bar ethics charges.

The VSB retorts that the Jan. 12 proposal from Sen. Chap Petersen favors accused lawyers at the expense of protecting the public and would make Virginia the only state to hold lawyer discipline cases before a legislative body.

Petersen’s Senate Bill 561 proposes a General Assembly-appointed commission to replace the VSB’s panels of volunteer lawyers and citizens sitting in judgment of alleged ethics violations.

“I don’t think we should have the State Bar serving as both a prosecutor and a jury,” Petersen said in a Jan. 19 interview with Virginia Lawyers Weekly.

Three-member panels

Petersen proposes a 15-member “Virginia Attorney Disciplinary Commission” in the legislative branch to hear lawyer discipline cases prosecuted by the VSB’s office of Bar Counsel. Cases would be heard by three-member panels of the commission, with at least one retired judge on each panel.

Some lawyers have grumbled that the existing VSB discipline system forces accused lawyers to defend ethics charges in front of panels of volunteers trained and mentored by the very organization that brought the charges.

“I think you need to have people outside the system, so to speak,” Petersen said.

A commission panel could issue sanctions if it unanimously found a charge to be “well founded.” Under current procedures, a VSB discipline panel can impose penalties if a majority finds that misconduct has been shown by “clear and convincing” evidence.

Appeals would go to the Court of Appeals and then to the Supreme Court. Current procedure allows appeals directly to the Supreme Court.

The proposed Discipline Commission would be made up of three delegates, three senators, five retired judges, two lawyers and two lay citizens. The commission would be administered by an executive director appointed by the Assembly’s joint rules committee.

Curbing Supreme Court authority

The VSB objected to Petersen’s plan.

“The bill would implement a less protective and less transparent disciplinary system that would shift power from the public to accused lawyers, and from the Supreme Court of Virginia to the General Assembly,” a VSB statement said.

The Supreme Court now appoints the 20 members of the VSB Disciplinary Board based on recommendations of the Bar Council. The Supreme Court and the Bar Council approved the VSB lobby effort to oppose SB 561, according to a VSB official.

The bar objected that Petersen’s proposal would call for common law and statutory rules of evidence, in place of the “relaxed evidentiary standards” now in use. The change would bring “an increased likelihood that evidence of culpability is excluded … making it more difficult to prove an attorney’s misconduct,” the VSB said.

The bar also objected to the need for unanimous agreement by three-member panels, giving any one commissioner a veto power on lawyer discipline.

Petersen’s plan “represents an uprooting of hundreds of years of self-regulation of the legal practice (and oversight by the Courts),” a bar official said in an email to Virginia Lawyers Weekly.

Petersen’s bill was referred to the Senate Judiciary Committee. It was not yet scheduled for committee consideration as of Jan. 24.