25 March 2022

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?

No comments: