The Actual Powers of the Bar: Part Three

 

1. Powers the Bar Claims   2. Actual Powers: The Primary Enabling Statute    

3. Actual Powers: Article One  4. Actual Powers: Article Two (A)             

5. Actual Powers: Article Two (B)

 

Articles Three thru Five aren't really about the Bar, so I'll just address those sections which enable the Bar in some way.


§ 54.1-3921 allows one member of the Bar to serve both as secretary and treasurer of the Election Board.

[It is not required and at the behest of the Board, not the Bar.]

And that's it. Next time we delve into Article Six: Revocation or Suspension of Licenses; Disbarment Proceedings.

The Actual Powers of the Bar: Part Two (B)

 

1. Powers the Bar Claims   2. Actual Powers: The Primary Enabling Statute    

3. Actual Powers: Article One  4. Actual Powers: Article Two (A)             

We left off at § 54.1-3913.1. So let's move on to the statues which follow.

§ 54.1-3914 creates by reference an Executive Director of the Virginia State Bar. The ED is tasked with notifying, by certified or registered mail, any lawyer who hasn't paid dues for two years that she hasn't paid. By implication the ED will keep records of non-payment and addresses of attorneys. If payment is not made within six months the ED is required to remove the attorney from the list of Virginia attorneys and tells the Supreme Court. If the attorney pays her dues and a $100 fine the ED is required to put her back on the list of Virginia attorneys and tell the Supreme Court. By implication the ED will keep a list of all licensed attorneys in Virginia.

[Off Point Note: Interestingly, there doesn't seem to be a time limit for reinstatement or an ability for the ED to refuse it. So, if you let your license lapse 15 years back . . . ]

 

§ 54.1-3915 mandates that the Courts remain in control of attorney discipline. Possibly creates by inference non-judicial discipline when it states that an attorney who demands trial by court will get it. 

 

§ 54.1-3915.1 [repealed] This was the statute that stated an attorneys constitutional right to choose non-association was greater than the Bar's right to force her to give it money to be spent on legal aid. 

[While I sympathize with the sentiment behind the former statute, the constitutional analysis that says a mandated association (the Bar) which attorneys are already forced to pay taxes in support of can't snatch further funds for one of its mandated duties seems a stretch - even if the analysis is correct, it's something courts are not going to follow through on.]

 

§ 54.1-3916(A) creates by reference the Legal Service Corporation of Virginia and gives it one power: to receive money from the interest that attorney trust accounts accrue.

[Effectively, this is a tax on your client for hiring an attorney.]

This statute also specifically gives the Bar the power to make rules and regulations for legal aid societies with the specific mission of providing representation to those who cannot afford it.

§ 54.1-3916(B) specifically gives the Bar the power to enforce its rules for legal aid or to farm out enforcement to the Attorney General.

§ 54.1-3916(C) by inference gives the Bar the power to enjoin any organization giving out free legal aid without following the rules it promulgated pursuant to (A). By weaker, possible inference, combined with (B), it gives the Bar the power to prosecute a class 1 misdemeanor if any organization is giving out free legal aid with following the rules it promulgated pursuant to (A).

 

§ 54.1-3917  allows the Bar to administer and participate in a "master retirement program" for all attorneys their families, and employees. Creates by reference the State Bar Fund which is to pay for explaining the Master retirement program to members of the Bar.

[Huh? Never heard of this and couldn't find any reference to it anywhere. As far as I can tell, the Bar may be authorized to do this, but it isn't.]

§ 54.1-3917.1 allows the Bar to either (a) endorse certain insurance coverage or (b) to hold insurance policies for Bar members, their families, and employees.

[I seem to remember the Bar recommending certain companies for malpractice, but nothing further.]

§ 54.1-3918 requires the Bar to give over a list of all members to all Virginia legal organizations which do CLE's upon request.

And, that finishes off Article Two. Articles Three, Four, and Five don't look like they'll have much about the Bar. Then comes Article Six which is the disciplinary article. That may clear up a lot of what's missing under this article. We'll see once we get there.

Confusing Circular and Definitive

 Over at PrawfsBlawg, Gerard Magliocca isn't allowing comment on his dubious claim that  "plain meaning arguments are largely circular." This is a basic argument which is thrown at every statute which doesn't have enough ambiguity to open it to interpretation from outside sources. It's also superficial and flawed.

Circular Reasoning: When you see an explanation of circular reasoning you usually see something like this:

 

 The characteristic most pointed out in circular reasoning is that both statements can be perfectly true, but not actually require the other. It's accurate as far as it goes, but it doesn't really explain the problem correctly.

 

What you actually have in circular reasoning are two sets of possibilities which overlap (sometimes one is a subset of the other). A more accurate depiction would be: 

There are many other reasons that we know Elvis is dead other than no one seeing him today. There are many other reasons you might not see Elvis other than him being dead (after all, there are indications he fought off a mummy in an East Texas retirement home). The sets do overlap and you can make both statements honestly, but the entirety of each set is larger than the assumption in the argument.

While it could get more nuanced, this is a good basic understanding of why the circular argument is problematic.

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Definitive: What Professor Magliocca doesn't like is that his learned, well researched, dare we say erudite argument is running into a stone wall. Either the other party is stating there is a plain meaning or the judge is finding so. The very first test is the plain meaning test. If the statute passes that one then it is immune from collateral attacks. In other words, the statute itself is definitive.

Arguing something is definitive is not making a circular argument. It is stating that the meaning is settled. Collateral attempts to get around the actual meaning are entirely irrelevant. When someone demands the irrelevant be considered in a settled matter, it is not circular to point out that it is settled. It is pointing out an a priori condition which precludes consideration of further, irrelevant evidence. There are not two or three differing sets that overlap making a circular argument. The model for the professor's situation looks like this:

Ignoring the wording used to label the circle, the black circle speaks for itself. It is a black circle. It is definitive. The other circles do not intersect in any way with it and they do not change the nature of the circle. Telling someone this truth does not constitute a circular argument. It is pointing out a definitive point which cannot be changed thus making the other three circles incidental at best.

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Contrary to what the professor states, a plain meaning does not require that both parties agree on the meaning for existence. It requires that there be a solid established understanding of the terms in the statute/contract. It is quite possible for philosophical differences to color arguments. In other words, if one were to believe that meanings can constantly be reinterpreted and there is no such thing as a definitive statute, then one would always say that the outside considerations should be allowed and even relied heavily upon. Thus, Professor Plum's article pointing out that black is the lack of any color, the fact that the artist meant it to be navy blue, and the fact that all the other circles are in the rainbow could be applied to find the circle is meant to be blue and therefore is. When it's necessary for your case it's amazing what you can come to truly believe.

Meanwhile, everyone else in the world is looking at the circle and saying it's a black circle on its face and needs no further interpretation. And they're right.

The actual battle in most statutes is whether there is ambiguity such that interpretation of the language is needed. If it is the party arguing for ambiguity gets to have its secondary sources considered. The reality here is that we've all seen courts rule things were plain on there face when they weren't and vice-versa. It's unfortunate, but true. I know that I actually included a sentence diagram in an appellate court petition once to show the court how its interpretation was badly out of kilter with the plain language of a statute. My brave foray back into 7th grade English did me no good. The unpublished rejection I got seemed to be confused about what the diagram was. I guess I can take solace in the knowledge that my 7th grade English teacher was better than that of whoever the appellate judge's intern was. Reality is always going to be that statutory interpretation is an inexact science, but that doesn't make a definitive statute ambiguous or the defense of it circular.

So You Want To Be A Virginia Prosecutor (The Ads)

Whether you're a newly minted attorney or somebody who's been a round a bit, if you want to be a prosecutor (or get a better prosecutor job) one of the best places to start looking is the Commonwealth's Attorneys Services Council's Employment board. [link here] Everybody from population 5,000 Pitcairn County to the metropolis of Erehwon City with 500,000 people puts their open positions on this site. It is, however, a place where you need to know what you're looking at, so let's go through some of the things to look for.

Location: Self Explanatory [unless you mix up Richmond City and Richmond County] 

Job Title: With some variations, you will see Assistant Commonwealth's Attorney I, II, or III and sometimes part time or hourly positions. Attorney I is your basic starting position prosecutor. Attorney II is expected to be more advanced/capable. Attorney III is more highly experienced and capable - often filling an administrative position of some sort. No matter what other titles are put up (ie Domestic Violence Prosecutor) at core they all fall under the I, II, III system. Part time / hourly prosecutors are usually positions a locality is funding for use by the Commonwealth Attorney in traffic or misdemeanor court.

Salary / Salary Range: This is where the games start. Counties which can't match the salaries from bigger cities will note the fact that they give benefits. Everybody gives medical benefits and, if you last that long, retirement benefits. Don't get distracted by that. On the other hand, if you take a job in a more rural community keep in mind the fact that you may not need as much money. I've been paid less for years where I'm at and I rent a house on a river surrounded by beautiful land and wildlife while being no more than 15 minutes from a medium size city across the Tennessee line. If I'd stayed in the Richmond area I'd be renting an apartment surrounded by other apartments and parking lots. Money is important, but it isn't everything. [Now that I've finished my ad for the wonders of taking a job in Wise County, let's get back to our regularly scheduled program already in progress]

You will often see some variation on $56,000 - 65,000, depending on experience and qualifications. Read that as $56,000. Again, read that as $56,000. No matter what anybody tells you, especially the people trying to fill their slot, read that as $56,000. Any amount above that assumes you are impressive enough to get the Comp Board [a mysterious, impenetrable agency in Richmond which determines base salaries] or the county to give you above all others extra money. You may be the one rose that blooms in that desert, but the dirt looks awful dry from here. It was when I first got my job [not a penny of extra money for six prior years experience; not that I'm a bitter, unforgiving person who has sworn eternal vengeance or anything; nope; not me; I promise]. If they don't list any salary assume the minimum comp board salary. Keep in mind, those big salary offers you see in bigger offices often come after you've had a job for a few years at a place with lower salaries [if you don't decide to stay at the really cool job with great people at the place that pays less].

 Start Date / Closing Date: These are pretty self explanatory. Make sure you look at the start date because sometimes there is a delay. If Jane is kind enough to tell her boss that she's leaving in six months to join the Marines the boss may order a mental evaluation, but he probably isn't going to kick her out the door immediately. I'm not sure why there is a closing date listed. Usually that's "until filled."

Description of Job /Special Requirements: These are basically one section describing the job and this is where you really need to start paying attention. Some places keep this short and sweet: "Prosecuting attorney with responsibilities for felony and misdemeanor offenses in General District and Circuit Court." Unless there is  something significantly different about the job, I think this is the most respectable approach. The hiring office is neither trying to baffle you with BS nor is it trying to put out sheet anchors before you are even hired. It gives you an idea in which court you will work and what you'll be doing. Do you need much more?

Apparently many offices think you do. Most of this will consist of elaborations on the basic duties of the job:

The attorney holding this position will be expected to prepare and prosecute felony and misdemeanor cases in district and circuit courts, conduct any research and writing needs to prepare prosecutions, compose appellate briefs, advise local law enforcement agencies and work closely with Victim/Witness advocates. Due to the high caseload, the attorney must be able to organize and work efficiently. Additionally, the attorney must be decisive and able to exercise discretion.

That is a rather tight version of the usual boilerplate describing the job of a prosecutor. As far as it goes, it's fine. In fact, it's probably better than most [I have to say this otherwise the very competent lady in my office who wrote it may thump me - Hi Jessica ;-)]. However, in a number of postings the boilerplate just gets out of control. I mean, for goodness sake, some of them are so long that they have labeled sub-sections: Essential Duties, Our Locality, Physical Requirements, etc. Generally they all boil down to "You will be a prosecutor in our county/city." Some seem to also use this section to show how hip they are to new prosecution trends. "We employ vertical prosecutions in all courts" is a prosecution fad that popped up a few years back describing the practice of a single lawyer handling a case from charging in district court thru sentencing in circuit court. It wasn't really something new; most serious cases have gotten handled this way in most places since the beginning of time. However, it got a fancy name and suddenly all sorts of offices started pledging their allegiance to "vertical prosecution." You'll see it thrown in any number of postings and it probably means different things at different offices.

Things to Be Cautious About:

A disturbing thing which should make you cautious is when a posting starts the description of the job it's trying to sell you on by telling you the boss can fire you. I don't know who first started putting "This is an at-will position which serves at the pleasure of the Commonwealth’s Attorney" as THE VERY FIRST LINE in their job description. All I know is that the first time I saw it it was jarring. It's like the office is setting you up to fire you before you've even shown any interest in the job. I'd tell you that this is a giant red flag except for the fact that I'm fairly certain it's now been picked up as boilerplate in various jurisdictions (everybody plagiarizes everybody else's descriptions).¹ 

Another thing that raises caution flags for me is if the ad reads like an employee's manual with a long and very, very specific list of duties. If it feels like they are writing the list more for their benefit than to attract you [We told you before you were hired you'd have to care for the office plants. The hydrangea is dead. You're out of here.] you might want to be cautious.

If you're looking at the ads for a while - not that any of us long practicing types ever look around to see if the grass is greener elsewhere - and you see an office is constantly hiring large numbers of attorneys or constantly hiring supervisory attorneys (Attorney III's) you should ask around to see why. Be aware that larger jurisdictions are always hiring someone and a smaller jurisdiction may have trouble getting someone to move out to a place like Pitcarin County. It's when you see a long term repetitive pattern that you should check it out. If Pitcairn County is filling its sole assistant position every six months you want to know why. If Erehwon City is constantly down 10 or so assistants or constantly hiring new supervisors, you want to know why. Ask someone from outside the office if you can.

Things to Notice: 

Longer descriptions are not always bad. Look for ones that describe unique(ish) positions like supervisor over general district court or member of our economics crime section. You should particularly pay attention to any clarification of Attorney II & III duties because these can vary significantly from location to location. The single Attorney II in Pitcairn County could be the Chief Deputy while Erehwon City may have four Attorney III's each supervising a different part of the office. In particular, an Attorney III should always have some explanation of the duties attached.

Experience desired/required: Treat these as advisory. Often enough they are unrealistic. An office trying to find someone with 10 years prosecuting experience can be over shooting by just a wee bit. However, you should not ignore this completely. If they are asking for 10 years and you have 6 you're probably in range; if you have 0 you're almost assuredly wasting your time and theirs. If you are a new(ish) attorney, don't be scared away by 2 or 3 years experience wanted. Some places mean it, but many are operating on a hope and a prayer and they'll be happy to talk to you - or at least they will after the position has been open for a while.

Interesting Quirks: If they are going to put in bunches and bunches of words look for things which catch your attention. Recently, I saw a jurisdiction specifically looking for someone who spoke Arabic. This caught my eye because once upon a time I studied and used Arabic quite a bit (haven't had anybody to talk to in twenty years). Every so often you see something unique like this. If you qualify it could prove useful.

Contact / Title: This is not really a make or break thing, but it does give you an idea of some of the dynamics of the office. Is the Big Boss the contact? If not, is the contact another attorney or has at least the initial stage of the hiring process been put on a staff member? None of these things are bad; they just give you an idea. Personally, the only thing here that makes me leery is when a Commonwealth has his initial application process run through the County/City. They aren't part of the County/City government and this always leaves me wondering if the office might be a little too much under the thumb of the locality. This is almost assuredly a ridiculous concern. Still it's mine and I will cling stubbornly to my irrational preconceptions until someone actually proves to me that the lizard people aren't running the world from their underground civilization in Antarctica.

Good Hunting folks. I hope my ramblings prove somewhat useful in your quest.

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¹  Look, I get where this could come from. You'd still be better off addressing it with paperwork once you've got the person hooked on your office. I know I had a boss once who made us sign a sheet acknowledging the fact we were at will employees every year. Legally, it made no difference - I was always and will always be an employee serving at the will of my constitutional officer whether I signed that paper or not. Still, it was a little painful each time I signed it. I'm not sure I'd have come on board if the pitch had been "Hey, I can fire you any time I want. Want a job?" Yeesh.

Virginia's Constitution Does Not Allow Defendants to Unilaterally Deny Jury Sentencing

My Brethren and Sistren in the Commonwealth's Attorneys offices of Virginia are meeting this week to become educated as to how to improve themselves in the profession. I'll add my two cents worth by supplying this motion which I created when the General Assembly unconstitutionally denied the Commonwealth and the trial judge their right to a complete jury. I haven't had the opportunity to use it yet. I gift it to all of you. Remember, the Virginia Constitution applies to the defense just as much as it does to us.

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VIRGINIA:

IN THE CIRCUIT COURT OF PITCAIRN COUNTY

COMMONWEALTH

v.

JOHN SMITH

 

Case No: CR00-0000

Commonwealth’s Notice

Not Concurring in Defendant’s Waiver of Jury

 

In the matter of Commonwealth v. John Smith, pursuant to Virginia Constitution Article I section 8, the Commonwealth does not concur in the accused’s partial waiver of a jury.

In support of this the Commonwealth states as follows:

Virginia’s Constitution in Art. I sec. 8 states “If the accused plead not guilty, he may, with his consent and the concurrence of the Commonwealth's Attorney and of the court entered of record . . . waive a jury. In case of such waiver or plea of guilty, the court shall try the case.”

(1) Pursuant to the final sentence, a judge cannot try a person unless he has waived a jury or pled guilty.

(2) Pursuant to the first sentence quoted above, the accused cannot waive a jury without the concurrence of the Commonwealth’s Attorney and Trail Judge.

(3) Nothing in the Virginia Constitution allows for a partial waiver of a jury and juries have been sentencing bodies for the entirety of their existence in Virginia. Nancy J. King, The Origins of Felony Jury Sentencing in the United States, 78 Chi.-Kent L. Rev. 937 (2003) (Jury sentencing replaced automatic death penalties for felonies in 1796).

(4) As a statutory matter, the General Assembly has recognized that sentencing by jury remains part of Virginia law, § 19.2-295.1 (Sentencing proceeding by the jury after conviction), although a statute purports to default the accused to the status of having waived the sentencing portion of trial:

§ 19.2-295 (B) When the accused is tried by a jury, deliberations of the jury shall be confined to a determination of the guilt or innocence of the accused, except that when the ascertainment of punishment by the jury has been requested by the accused, a proceeding in accordance with § 19.2-295.1 shall apply.

Inasmuch as § 19.2-295 (B) purports to waive an existing part of a jury for the accused without the concurrence of both the Commonwealth's Attorney and the trial court, this statute directly conflicts with Article I section 8.

(5) In the case at bar, the accused has not given notice under § 19.2-295 (B). This means that the accused is waiving the sentencing portion of the jury. Neither the Commonwealth nor the trial court have concurred in this waiver. Without these necessary concurrences creating a valid waiver, the trial court cannot try this case.

Wherefore, the Commonwealth does not waive a jury in this case and prays the court to impanel a constitutionally valid jury to determine both guilt and the appropriate sentence.

____________________________                     ____________________

Ken Lammers Jr.                                                                   Date

Deputy Commonwealth's Attorney

Pitcairn County

CERTIFICATION

I certify that a copy of this Notice was delivered to Mary Sue, Attorney for the defendant on the date below by email and fax.

____________________________                     ____________________

Ken Lammers Jr.                                                               Date

Deputy Commonwealth's Attorney

Pitcairn County

 

 

The Actual Powers of the Bar: Part Two(A)

 

1. Powers the Bar Claims   2. Actual Powers: The Primary Enabling Statute    

3. Actual Powers: Article One              

Okay, let's move on to Article Two of Chapter 39 (Attorneys) of Title 54.1 (Professions and Occupations). The Article is specifically named "Bar Organization and Government." This is a misnomer, because much of this Article is actually laying out powers and duties of the Virginia Supreme Court - starting with the very first statute. After the second statute creates the Bar, the remaining statutes are a mishmash of duties and powers for both entities.

This Article starts with an enabling statute for the Supreme Court of Virginia giving it the power to set rules and regulations pertaining to lawyers and legal practice.  § 54.1-3909. Then it goes on to create the State Bar and set the lesser parameters within which it can act.  § 54.1-3910 (the previously explored primary enabling statute). After that are the various and sundry other statutes and any powers/duties they may establish.

§ 54.1-3910.1 creates by reference both the Disciplinary Board and the Clerk of the Disciplinary System. The difficulty here is that it doesn't specifically place either of them in the Bar. The general inference by the name of the Chapter would be that they are included, but the very first statute in this Article gives the disciplinary power to the Supreme Court not the Bar. Remember, the initial enabling statute for the Bar limits the Bar to "investigating and reporting violations of rules and regulations." Thus, as the statutes have enabled so far, the place these should both be is under the Supreme Court.

[Reality check. They are both (Board; Clerk) under the Bar. Mayhap there is a statute later enabling this. And before anybody says "but Supreme Court Rule X says . . .", a rule can interpret but not wholly ignore, bypass, or expand beyond an enabling statute. Unless a later statue enables, the limitation in the primary enabling statute of the Bar is clear and unambiguous.]

Anyway, this statute enables the two parties to register penalties with a circuit court that have been assessed pursuant to a Supreme Court Rule (problematic, but outside the scope of what we're covering here).

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§ 54.1-3911 enables and requires the Bar to turn over any investigatory evidence it has of ethics violations for attorneys whom the General Assembly is considering for a judgeship to the General Assembly upon request. By inference, it creates a "record of any previous disciplinary action taken against [attorneys]" which must be maintained.

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§ 54.1-3912 enables the Supreme Court to tax up to $250 against every member of the Bar (by legal mandate all attorneys in Virginia) and to spend the money to enact Article 2 (§§ 54.1-3909 thru 54.1-3918).

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§ 54.1-3913 enables "an authorized officer of the Virginia State Bar" to withdraw the money taxed above so it can be spent.

[Note: Here is where a Supreme Court Rule could clarify who the "authorized officer" is. To do so by naming an officer already enabled to exist by statute would not be ignoring, bypassing, or expanding beyond the enabling statute. It would be clarifying within the statute's mandate.]

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§ 54.1-3913.1 creates by reference [the statute implies by recognition] a Client's Protection Fund in the Bar. It also creates by reference the Virginia State Bar's Administration and Finance Account. The only listed power of this account is to transfer money to the Client's Protection Fund. 

Beyond that, it (for now) gives the Supreme Court the power to tax each member of the Bar (by legal mandate all attorneys in Virginia) up to $25 for the Client's Protection Fund.

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 Okay for the moment we're going to pause here. The next few statutes should get us to a few with a little more meat to them.

Actual Powers of the Bar: Starting at the Start

 

Now we've examined the primary enabling statute for the Bar, let's start back at the beginning of Article I of Chapter 39 and see what various powers are found therein. Keep in mind that words like "member of the Virginia State Bar" do not give the Bar powers. It's merely a long winded way of saying "licensed Virginia attorney.

§ 54.1-3900.01(A) creates by reference "Bar Counsel"¹ and give it one power - to make an ex parte motion to a court to appoint someone to takeover a law practice which an attorney can no longer handle.

§ 54.1-3900.01(B) creates by reference the Virginia State Bar Clients' Protection Fund and tells us it has a generalized power to investigate. It also confirms that the Bar can do disciplinary investigations.

§ 54.1-3900.01(E) gives the Bar the duty to pay an attorney who closes down another's practice - if it has the money. It gives the Bar the power to sue the attorney whose practice was closed, or her estate, for the money paid.

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§ 54.1-3902(B) makes the Bar the entity which takes a fee from and gives a certificate of registration to "a professional corporation, a professional limited liability company, or a registered limited liability partnership." In the included (B)(1) & (2) there are requirements for the members of the organization, BUT there is neither a granted power to investigate under this section nor a required duty to do so. In other words, this statute makes the Bar nothing more than the fee collection bureaucracy for the Commonwealth.  

[Comment: However, the Bar can still investigate under (B)(2) if the name of the organization violates the ethics rules the attorney members are subject to.]

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And that's it. There are more laws pertaining to Bar members as attorneys in this chapter, but nothing more that empowers or obligates the Bar itself.

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¹  Keep in mind that there may be statutes later on actually stating they create things and positions. Since I am covering this from the beginning forward, when I refer to a statute "creating by reference" a position, committee, etc. it means this is the first statute it appears in not that the statute addressed is the end all be all about it.