Actual Powers of the Bar: The Primary Enabling Statute

 

So, I've gone over what the Bar claims its powers and duties are, but the Bar is an agency created by the General Assembly approved by the Governor, and placed in the Supreme Court's demesne. It does things which are executive powers (investigation of attorney misbehavior), It does things that are legislative (making rules cum laws for attorneys). It does things that are judicial (punishing attorneys for rules violations). In other words, it is an agency for regulating and controlling attorneys. As with all administrative agencies, there have to be enabling statutes for any powers it has. 

Powers can be those directly enabled by a statute or those required by inference flowing from a duty assigned. This is the start of the slippery slope as the agency claims more and more power until it is well beyond what could originally have been reasonably read into the enabling statutes. Another possible cause of agency overreach is the vagueness / overbroadness of an enabling statute which basically lays no meaningful parameters so the agency can claim any powers it wants.

With all that in mind, let's see if we can list both the direct and inferred powers of the Virginia State Bar, starting with its primary enabling statute.

§ 54.1-3910 is the statute which creates the Bar as a top down organization which is subject to rules and regulations from the Supreme Court of Virginia and enables it to investigate violations of rules promulgated by the Supreme Court for lawyers and report violations to the court. By inference, it allows the Bar to create three committees: Legal Ethics, Lawyer Advertising and Solicitation, and Unauthorized Practice of Law. It then subjects all lawyers in Virginia to its dominion.

All the committees are given one power by inference: to issue advisory opinions. No other powers are given specifically or through inference. There is also no setting of parameters of the opinions requiring us once again to infer them through the names of the committees what they would be opining about.

[Comment: Under its primary enabling statute the Bar has no power to punish formally or informally any attorney for anything. This is entirely a power of the Supreme Court and if the Bar does not have the power to do it the Supreme Court cannot offload one of its powers on the Bar. As far as it goes, the Bar doesn't have the power to prosecute under the primary enabling statute either. Thus a reported violation would stand on the report.  

Remember, a basic, bedrock tool of statutory interpretation is inclusio unius est exclusio alterius; in other words, if specific a list of things are granted all others are excluded. Thus, if three committees are named all others are disallowed. If there are listed powers/duties for the committees all others are disallowed. HOWEVER, don't get too excited here and start start wringing your hands while you mumble about having the Bar just where you want it (for whatever nefarious reasons you may have for wanting to make our beloved Bar rue the day). There are other statutes scattered around Chapter 39 of Title 54.1 handing other powers to the Bar and we haven't finished looking at them yet. Surely, in the name of all that's good, the Bar's been enabled for all the things it does, all the positions it fills, and all the committees it's formed. We'll keep moving forward to explore further.]

Virginia Criminal Case Law for the Last Year

Me practicing my presentation for the 30th Circuit Bench-Bar. There will be stuttering and trying lines over again, but generally it should give you an idea what the Virginia appellate courts have been up to over the last year - or at least those parts I thought most interesting / helpful / important.

Fixed

The Virginia State Bar: Claimed Duties and Powers

I was thinking about a particular legal issue involving the Bar overstepping its legal and constitutional parameters (inspired by Scott's soliloquy about the ABA trying to get States to repeal free speech via ethics rules). Realizing that I couldn't think of a place in the law that I knew gave a raison d'etre for the Bar, I stared into space and came up with the best purpose I could come up with in a couple moments.

1. To enforce rules that protect both attorneys and their clients from harm while they are engaged in, or preparing for, a legal proceeding or procedure or the possibility of either.

2. To present before the Courts any attorney who, through willful misconduct or gross negligence caused more than de minimis demonstrable harm to a client.

With that as a starting place, I went to the Bar's own website, sure they would have their mission statement well put forth. Instead, I find this:

The mission of the Virginia State Bar is (1) to protect the public, (2) to regulate the legal profession of Virginia, (3) to advance access to legal services, and (4) to assist in improving the legal profession and the judicial system.

 Huh.  (1) True.  (2) Seems overly broad, but generally true.  (3) Partially true; probably mostly not.  (4) Seems an awful lot like self appointed duties; unlikely to find support in enabling statutes.  Of course, not satisfied with that vague explanation the Bar goes further:

(a)  Enforces the rules and regulations that govern lawyer ethical behavior and the unauthorized practice of law;
(b)  Disciplines lawyers who violate the rules;
(c)  Regulates attorneys’ completion of mandatory continuing legal education (MCLE);
(d)  Promotes access to legal services; and
(e)  Advances diversity and inclusion in the legal profession.

 (a) & (b) True. We shouldn't be very proud of this. The Bar should be limited to investigating and reporting to courts. The fact that it star chambers lawyers isn't a good thing. The Bar acts, in many cases as investigator, jury, and sentencing judge. Sure, it can be fought and forced into the light, but if you're a solo practitioner busting your rear to keep your business going [the natural prey of the Bar's investigators] you don't have the time or resources and when you are offered a "private reprimand" that will disappear, unseen by anyone, in a set number of years if nothing further happens you take it. You might even take a "public reprimand" if it will get them to stop wasting your time so you can get back to representing your clients. Or, you could go the Horace Hunter route and spend years fighting the Bar to defend your free speech rights when it is so much easier to take that slap on the wrist so they will quit wasting your time and your clients'. The Bar shouldn't be able to take action unless it has a matter serious enough to take to a court. (c) True. The Bar is the organization that makes sure we get to spend hours in training that most ignore by reading their phone, playing on their computer, or catching up on work. To be fair, the quality of the CLE's isn't really the Bar's fault and you can find useful CLE's out there, but you have to search a bit and be picky. The Bar doesn't particularly care as long as you get your set number of hours.  (d) Partially true. The Bar has some responsibilities toward legal aid and will, after last year's law change, be able to force lawyers to give money to this no matter how much they disagree with being forced into such an association. However, this is a minor, minor part of the Bar's duties.  (e) Somebody please show me an enabling statute. This seems another self appointed duty/power and well outside the Bar's lane. The Bar doesn't determine who becomes a lawyer. It is merely enabled to deal with them once they are. The fact that there aren't enough Hasidic-Ukranian-Americans in the Virginian Bar isn't something the Bar should be worried about. It may be something the education system needs to concern itself with, but not the Bar.

Next Time: Enabling Statutes?

Exploring the Chaste Reputation Statute

Believe it or not, someone actually asked me to do a for real analysis of the chaste reputation statute. I aim to please so here we go.

The Statute:

§ 18.2-417. Slander and libel.

Any person 

[1] who  [a] shall falsely  [i] utter and speak, or  [ii] falsely write and publish,  [b] of and concerning any person of chaste character,  [c] any words  [i] derogatory of such person's character for virtue and chastity, or  [ii] imputing to such person acts not virtuous and chaste, 

OR

[2] who  [a] shall  [i] falsely utter and speak, or  [ii] falsely write and publish,  [b] of and concerning another person,  [c] any words which from their usual construction and common acceptation  [i] are construed as insults and  [ii] tend to violence and breach of the peace

OR 

[3] who  [a] shall use grossly insulting language [b] to any person of  [i] good character or  [ii] reputation

is guilty of a Class 3 misdemeanor.

The defendant shall be entitled to prove upon trial in mitigation of the punishment, the provocation which induced the libelous or slanderous words, or any other fact or circumstance tending to disprove malice, or lessen the criminality of the offense.

Really, what we've got here are three different crimes. The first is about impugning any person's chastity and virtue.  Here the original purpose of the statute comes to the fore when this was meant to apply to women. Any honest reading of the meaning of "chaste and virtuous" cannot fail to understand that this was about punishing someone who put out in the community that a woman sleeps around or, at the very least, has had sex with someone out of wedlock. When the General Assembly changed "woman" to "person" it may have broadened to whom this outdated concept applied, it did not change the concept attached to the "person." To be blunt, this section is about attacking someone's reputation for being a virgin or only having sex within the bounds of matrimony. 

The second crime is saying or publishing something that's an insult AND tends toward violence. At the time this statute was originally written it was probably something like: "You're a cad and a poltroon and I shall be at your doorstep at noon to do something about it." It is kin to assault only it doesn't require an actual threat, merely words which tend in that direction.

The third crime is using really, really insulting language TO someone of good character or reputation. So, you don't have to actually have a good character; you can skate by as long as you have the reputation. Anyway, this reads very much as if it meant "If you are a person of means or status none of the hoi polloi shall sully your ears with brutish insults." However, a fair reading is that anyone with a good reputation - no matter their class - can be the victim under this statute. The "to someone" section seems to indicate that this is probably going to occur in person most of the time. However, if someone were to write, and attempt to cause to be delivered, an obscenity laced letter it would most likely fall under this section as well.

To be honest, this entire statute should be scrapped. The third crime [3] is almost surely unconstitutional as it contains no requirement of possible incitation of violence. The first crime [1] maybe has one part that might be salvageable. [1][c][ii] would be falsely saying someone did an act which involved premarital sex or sex outside of an existing marriage. This smells awfully civil to me, but the General Assembly (and the common law) criminalizes lies in other areas of the law (primarily financial¹) and this part of the statute could be thought to be on the same wavelength. Crime two [2] is the most viable of the three. As a milder form of assault it could survive. In fact, I'd kinda like to see it used and challenged to see how it would fare.

Good luck with the statute folks. If anybody ever uses it or defends somebody who has been charged under it let me know. I'd like to see how it fares.

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¹ An example is larceny by trick wherein the thief lies to get the item by claiming he will return it.

Everybody Now Has a Chaste Reputation

If you've read this blog for a while, you'll remember that I was tickled by the impugning of chastity statute meant to protect womenkind's good names. Back then, I pointed out that as a gender specific statute it was clearly unconstitutional (kind of like the common scold) and bemoaned the fact that nobody cared about the chastity of we poor, trod upon men.

Well, the General Assembly heard my plaintive cries for help and fixed the statute. It now protects every man, woman and child's chaste reputation:

§ 18.2-417: Any person who shall falsely utter and speak, or falsely write and publish, of and concerning any person of chaste character, any words derogatory of such person's character for virtue and chastity, or imputing to such person acts not virtuous and chaste, . . . who shall use grossly insulting language to any person of good character or reputation is guilty of a Class 3 misdemeanor.

I know personally I feel a great oppressive weight lifted from my soul. All those rumors you people keep spreading about me sleeping my way across Ghana, Taiwan, and Columbia are now illegal. You hear that? STOP! For goodness sake, they won't let me back into those countries anymore! You people have to stop this!

The Every Ten Day Bond Hearing Rule

It is a matter of writ in stone belief in our local jail that every ten days you can get a new bond hearing. Everybody believes it except for us skeptical legal types - not that it does us much good. There's a reality which thumps legal theory no matter how much we point at our laws and rules.

The defendant has had a bond hearing. He was denied bond, it was set at a level difficult to pay, or he just doesn't have anyone willing to put up the money. Everyone at the jail tells him he has a right to another hearing in ten days.

He besieges his defense attorney. He sics Mom and girlfriend on defense attorney to start calling 24 hours a day and eventually the defense attorney is faced with the prospect of never answering the phone again or scheduling another bond hearing. Needing the phone to make a living, she files the putatively futile motion.

A day or two later, everyone is in court and everyone knows how the hearing is going to go. The prosecutor is going to stand up and say the magic words "No significant change in circumstances" and ask the motion be dismissed. The judge will say he doesn't know that until after evidence is presented. The defense attorney will put on exactly the same evidence as was put on in the first hearing except the defendant will now swear he's woken up because of the time he's spent in jail and he'll stay on the straight and narrow from this point forward. The prosecutor and defense attorney then rehash the same arguments made in the prior hearing with a few new (and massively unimportant) flourishes thrown in. Finally, the prosecutor says the magic words again: "No significant change in circumstance."

We all know how this ends, right? The judge looks over his bench and says, "You just had a bond hearing 12 days ago. You don't get a new one just because you don't like the result. Your remedy is to appeal this to the Court of Appeals." 

Riiiiiiggghht.

Well, to be honest, it does work that way somewhere between 75-90% of the time. The other 10-25% of the time the defendant's Mom cried more believably this time, or they brought Little Timmy to tell the judge how much he misses his daddy, or the judge over the bond hearing has changed and the new judge has different, more lenient bond standards. Whatever the reason, suddenly defendant has a lower bond - often enough one that has no security attached to it at all.

Defendant has just gotten out of jail because he got his every ten day bond hearing. If he is gone from the jail everybody knows what happened. Heck, he probably got shipped back to the jail to get his stuff and do outprocessing paperwork. People see him getting out and know it was because of his every ten day bond hearing. Nobody remembers that it didn't work for the last eight guys. All they know is that it works (besides, the last eight guys can schedule another every ten day bond hearing and try again).

The myth is spread by the jailhouse lawyers because there is a truth at its core. There is a significant enough success rate that it doesn't matter that it's contrary to law. A defense attorney may tell his client that he's not entitled to a new bond hearing every ten days, but it doesn't matter because the jail residents all know that no matter what the law may say some people have gotten out asserting their every ten day bond hearing right.

And thus, the theoretically legally invalid becomes something more and more attempt because it works for some of them. So, we can say the every ten day bond hearing isn't real and they'll keep on trying it because they know it's worked for some in the past. In a clash of what's on the books versus what's really happening, the reality of the every ten days bond hearing is solid enough that anything we lawyers say goes in one ear and out the other. After all, they know it's worked in the past. Why can't it work for them?

The Model Penal Code Was an Interesting Idea

(1) The MPC is perhaps the last gasp of the failed American dream of a common law. An organization called the American Legal Institute tried to create a common criminal code that could be used across the country by both States and the federal government. Although it had a good deal of momentum in the 1960's and 70's, in the end 13 States and, most importantly, the federal government rejected the MPC in its entirety. Most spectacularly, Idaho adopted the MPC and within two months the Idaho legislature ripped up the new laws and went back to its own criminal laws. In most States which adopted it the legislatures picked and chose which parts they would use and there are few States you can find commonly listed as having adopted it almost entirely; usually I see New York, New Jersey, and Oregon. Even then, flaws in the MPC, such as its failure to deal with drug offenses in any manner, left the most slavishly loyal States on their own in dealing with these crimes. Furthermore, as decades have passed various legislatures have continued to modify their State's version of the MPC¹ independent of each other and the laws of each have moved further away from the common law aspiration behind the MPC.

(2) Times do not seem ripe for another attempt. In part this is because in the modern era the ALI, much like the ABA, has become more and more overtly an advocacy group undertaking efforts to eliminate the death penalty and, most recently, trying to water down sex offender registration (some might say drown). It has gotten to the point that there have been calls for judges to not associate themselves with the organization. To be fair, the ALI's MPC was never not advocating for positions that weren't part of most State's criminal laws. In fact, its imposition of its writers' moral values was present from the beginning. It ignored the moral crimes found in most every State's laws (mostly based on sexual mores of the time which went back legally to 1533) and toughened gun control laws². It never claimed the MPC was a "restatement" like it does for areas of law such as torts.  (a) The MPC's strengths were that it cleaned out the detritus of existing criminal law, which was based largely on a jumble of judicial precedent combined with statutory interventions from the various legislatures, and replaced them with a better organized, more easily accessible code. This same could have been accomplished with a restatement - basically a much distilled version of criminal laws as found in treatises like Corpus Juris Secundum and/or its predecessor.  (b) It was a choice to put forth a set of statutes which its authors saw as morally forward looking. It's not hard to see why legislatures would be drawn by the siren song of (a) even if it came with the baggage of (b) - which many did their best to excise. The modern problem seems to be that the ALI has lost the pragmatism of an organization offering a strong value added prospect to the legislatures while it has leaned into pushing the adoption of its moral positions of the moment.

(3) The ALI's attempt to create one common law across the United States has failed and is further fraying. Moreover, a revised attempt by the ALI to create one common criminal code across the country would almost surely fail. Current conditions aren't nearly the same and, having fallen farther into the pit of morality advocacy, the ALI has lost much of its universal respect. Sure, it's still loved by academics, but its appeal is muted in legislatures. The States interested in cleaning up their criminal law and adopting a code did so back in the 60's and 70's. Once these States adopted codes, the strongest point in the MPC's favor was fulfilled. There's far less incentive to go back in and do another rehash because someone wants a legislature to change laws to conform with their moral perspective once a code has already been adopted that makes criminal law simpler and more pragmatic.³

 (4) Can a nationwide criminal code be developed in the United States? No. Not really. Even assuming you could get the federal government (the big get) and every single one of the 50 States to adopt the exact same code, the very next time the legislatures met they would all come up with new and different laws to add and the fraying would begin again. Could the MPC have been more successful?⁴ Probably. That would have required something more along the lines of a Code Restating Criminal Law which started with federal law, perhaps reorganizing and simplifying it, and then filled in the gaps left from laws which a majority of States either recognized through their statues or case law. 

If this approach had been used instead of the MPC approach, a Code Restating Penal Law (CRPL) would be relevant even in those jurisdictions which had not adopted the Restatement. As things are today, the ALI's effort stands irrelevant in California, Idaho, Maryland, Massachusetts, Michigan, Mississippi, Nevada, North Carolina, Oklahoma, Rhode Island, South Carolina, Vermont, West Virginia, Louisiana, and to federal criminal law (and, in my experience, Virginia although there are consistent claims Virginia has adopted some of it). If the ALI had taken this approach, the fact that South Carolina didn't adopt its code wouldn't mean that the CRPL's commentary and case law developed in CRPL States would be useless. By gambling for all, the ALI excluded itself from some. Whether that was a good or bad approach is a matter of opinion.

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¹  "[W]hen the MPC reform movement conflicted with the tough-on-crime movement, it was, unsurprisingly, the MPC’s reform efforts—the efforts of legal professionals and academics more than politicians—that lost." [unsurprising because we live in a democratic republic, not an oligarchy]

See a more thought through explanation: Can a Model Penal Code Second Save the States from Themselves, page 170 (The Degradation Problem)

²  For instance:

§ 5.06(2):  If a person possesses a firearm or other weapon on or about his person,in a vehicle occupied by him, or otherwise readily available for use, it is presumed that he had the purpose to employ it criminally, unless:(a) the weapon is possessed in the actor's home or place of business;(b) the actor is licensed or otherwise authorized by law to possess such weapon; or (c) the weapon is of a type commonly used in lawful sport.  [no mens rea and assumes licensing] 

³  I've tried to finds a news article or anything else on the internet that shows the adoption of any of the new "revisions" that the ALI is making to the MPC which do not reflect the statutes developed by the various states. There must be some state somewhere doing it. Otherwise the ALI is just putting things out there to show how out of touch and irrelevant it currently is. I just haven't found them. If anyone can point me to an article or paper, I would appreciate it.

 

 ⁴  Yes, I know the MPC has been adopted in 35 to 37 States (depending upon which article I'm reading). This is successful, but the MPC never got over the summit. Some fairly important States rejected it (California, Michigan, North Carolina) and I know at least one other listed as adopting part of the MPC, Virginia, doesn't seem to have very much of it. I know I'm still using common law definitions of trespass, larceny, robbery, etc. derived mostly from judicial sources. The biggest failure was the inability to get it adopted by Congress as federal law which guaranteed semi-failure.

Kisses and Laser Beams: How Slight is a Battery in Virginia?

Pretty slight:

"The slightest touching of another if done in a rude, insolent, or angry manner, constitutes a battery." Kelley v. Commonwealth, 69 Va.App. 617 (2019)(unwanted kiss is a battery). This slight touching does not necessitate physical contact between the two individuals. See Hardy v. Commonwealth, 58 Va. 592, 601 (1867)(Spitting), Adams v. Commonwealth, 33 Va. App. 463 (2000)(laser beam), Gilbert v. Commonwealth, 45 Va.App. 67 (2005 (spitting), & Moore v. Commonwealth, Va.App. no. 0721-17-2 (2018 (U)(spitting). "In Virginia, it is abundantly clear that a perpetrator need not inflict a physical injury to commit a battery." Adams v. Commonwealth, 33 Va. App. 463 (2000). “It is sufficient if it does injury to the victim's mind or feelings.” Kelley.

(Lifted from a brief I wrote a year back or so.)