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Court lacked jurisdiction in disciplinary matter

Virginia Lawyers Weekly//April 3, 2023

Court lacked jurisdiction in disciplinary matter

Virginia Lawyers Weekly//April 3, 2023

Where appellant, proceeding pro se, filed disciplinary complaints in the circuit court against a dozen attorneys, the case was correctly dismissed with prejudice for lack of jurisdiction.

Appellant, as a complainant, lacks standing to file a disciplinary complaint in any circuit court.

The circuit court’s disposition is affirmed.


Citing alleged unethical conduct, appellant “Daniel prayed for the circuit court to suspend or revoke all of the appellees’ licenses to practice law in the Commonwealth of Virginia. Alternatively, she requested that the circuit court discipline the appellees consistent with the laws of the Commonwealth of Virginia and award her attorney fees and costs.

“In response, the appellees demurred to Daniel’s complaint. The appellees also specially pled that the circuit court lacked subject matter jurisdiction and was barred from considering alleged professional ethics violations ‘for alleged misconduct before a different [c]ircuit [c]ourt.’

“The appellees further contended that the circuit court lacked authority to grant Daniel’s requested relief and suspend and revoke their licenses to practice law.

“While awaiting the hearing on the pre-trial motions in the case, Judge Timothy K. Sanner (‘Judge Sanner’) notified the parties that he had sent a congratulatory email to Justice Lemons upon learning of Justice Lemons’ retirement.

“Because Justice Lemons was a named party in the case, Judge Sanner volunteered to recuse himself from presiding in the case. In response, Daniel requested he recuse himself, and Judge Sanner then entered a ‘Recusal Order’ requesting that Chief Judge Worrell designate a new presiding judge in the case.

“By order of designation (‘Designation Order’), Chief Judge Worrell designated retired Judge Farris to preside in the case.

“Judge Farris subsequently conducted a hearing regarding the jurisdictional issue raised in the appellees’ responsive pleadings. During that hearing, Daniel did not object to the designation of Judge Farris as presiding judge and argued against the jurisdictional issues raised by the appellees on the merits.

“The circuit court subsequently determined that it lacked jurisdiction to decide Daniel’s professional ethics claims or to grant the requested disciplinary relief.

“As a result, by final order, the circuit court dismissed Daniel’s complaint with prejudice, holding that Code §§ 54.1-3915 and 54.1-3934 ‘do not create a private cause of action permitting the filing of a complaint to adjudicate matters of attorney discipline.’”

Daniel then moved for reconsideration and to vacate the final orders. “For the first time, Daniel claimed that ‘Judge Farris lacked authority to preside’ over these cases. The circuit court subsequently denied Daniel’s motion for reconsideration, finding that during the hearing ‘plaintiff expressed no objection and participated in the argument.’

“The court further noted that Daniel had waived any argument about receiving notice. Daniel timely appealed.”


“Daniel contends that the circuit court possessed subject matter jurisdiction and ‘she should be allowed to file ethical complaints against defendants directly with Louisa County Circuit Court’ regardless of whether the alleged unethical conduct took place in a different circuit court.

“She further argues that because Virginia courts have ‘the sole authority’ to discipline attorneys under Code § 54.1-3915 and Part 6, § IV, Paragraph 13-2 of the Rules of the Supreme Court, limiting the authority of the courts effectively allows the VSB [Virginia State Bar] to act as a ‘kangaroo court’ and ‘impose discipline’ on attorneys which is inconsistent with the intent of the General Assembly as expressed in Code § 54.1-3910. We disagree. …

“Taken together, Code § 54.1-3915 ‘signals the right to a judicial adjudication only with respect to “an attorney who demands to be tried by a court,” not to a complainant … [while] the attorney demanding to be tried by a court must be the attorney who is subject to the Bar disciplinary proceedings initiated under Code § 54.1-3935(A).’ … (emphases in original). …

“Since Daniel is not the subject of a disciplinary proceeding here but is instead a complainant requesting professional discipline against others, she lacks standing under Code § 54.1-3935 to file her disciplinary complaint directly in any circuit court.

“Daniel further contends that Code § 54.1-3915 provides ‘only the Virginia courts’ with jurisdiction over disciplinary matters since the statute limits the ability of the Supreme Court to promulgate rules and procedures that would eliminate jurisdiction from the circuit courts to decide matters of attorney discipline. …

“Code § 54.1-3935 is not a ‘rule or regulation or method of procedure’ implemented by ‘the Supreme Court’ under Code § 54.1-3915 attempting to circumvent an attorney’s right to be heard in a court. Rather, Code § 54.1-3935 is a procedure implemented by the General Assembly to ensure that attorneys who are ‘the subject of a disciplinary proceeding’ have the procedural means to remove their disciplinary proceeding to a circuit court. …

“Thus, under Code § 54.1-3915, Daniel is not confronting the potential loss of any of her rights, and we therefore agree with the circuit court’s holding that it lacked subject matter jurisdiction.”

Judicial designation

Daniels challenges the designation of Judge Farris as the presiding judge in this matter. “We decline to reach this assignment of error for lack of jurisdiction. …

“[D]esignation matters are not questions of subject matter jurisdiction, thus they are subservient to the greater lack of jurisdiction for the case. Because we must reach decisions on the ‘best and narrowest grounds available,’ we decline to reach the designation question because there was no jurisdiction for the case more broadly, and questions of designation are not jurisdictional[.]”


Daniel v. Ferguson, et al., Record No. 0685-22-2, March 14, 2023. CAV (unpublished opinion) (Athey). From the Circuit Court of Louisa County (Farris). Rhetta M. Daniel, pro se. Alan Brody Rashkind, Michele A. Mulligan, Jason S. Miyares, Steven G. Popps, Jacqueline, C. Hedblom, Amy E. Hensley, David L. Arnold Matthew R. Hull; John F. Sawyer, Wolcott Rivers Gates for appellees. VLW 023-7-111, 8 pp.

VLW 023-7-111

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