13 May 2022

The Actual Power of the Bar: Part Five

 

 

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)  6. Actual Powers: Articles Three thru Five 

7: Actual Powers: Article Six

Now we're down to Article 7 under Chapter 39 of Title 54.1; in other words, it's the last article under the chapter governing lawyers as a profession. This one governs the solicitation of clients. Anyone who has turned on a TV in the last twenty or thirty years has to realize that the various Bars have lost thier fights to keep lawyers from soliciting clients thru advertisements. That doesn't mean the laws against solicitation through a salesman have gone away, although all we're going to do today is look to see what powers the Bar is granted under them.

Surprisingly, it's not much. In fact, most of this article is handled through the criminal law and there's only one reference to the Bar in the entire article:


§ 54.1-3939 gives the Bar, by inference, the ability to approve legal aid plans and lawyer referral plans.

11 May 2022

The Actual Powers of the Bar: Part Four

 

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)  6. Actual Powers: Articles Three thru Five 


Article Six is the part of this Chapter which lays out disciplinary procedures for attorneys in Virginia which fail to follow the Supreme Court's ethics rules. 

§ 54.1-3935(A) creates by reference hearings before the Bar Disciplinary Committee. It also creates by reference a district committee and hearings before it. It allows either an attorney or the Bar to bypass either of these hearings and present the case to a three judge circuit court. It cedes the power to determine how this bypass will work to the Supreme Court's rules. Thereafter, it requires the Bar to file a complaint in the appropriate jurisdiction.

[Thus, by implication the Bar is allowed to have some sort of proceedings, but the lawyer can escape them.]

 

§ 54.1-3935(B) requires Bar Counsel to prosecute the case.


§ 54.1-3936(A) allows Bar Counsel to ex parte petition a circuit court to cause a lawyer or firm to produce evidence if she has "reasonable belief" the lawyer is doing something  (1)(a) unlawful,  (b) or violating the ethics rules that will  (2) cause someone to lose property.

["Reasonable belief" has been read by Virginia courts to actually fall under the reasonable articulable suspicion standard.  See Bagley v. Commonwealth, 73 VaApp 1, 13 (2021)("if a police officer possesses a reasonable belief based on specific and articulable facts that reasonably warrant..."]

 

§ 54.1-3936(B) allows Bar Counsel to petition a circuit court if she has "reasonable cause" the lawyer is doing something  (1)(a) unlawful,  (b) or violating the ethics rules that will  (2) cause someone to lose property.  The Bar Counsel's petition can seek to:

(3) Get an injunction to keep an attorney or firm from withdrawing money from its bank and dispose of any property owned or controlled by the attorney or firm.

(4) Get a receiver appointed to take control of the attorney's funds and property of the lawyer's (or firm's) practice.

["Reasonable cause" would seem to fit naturally under probable cause.]


§ 54.1-3937(A) - Allows, by inference, Bar Counsel and district committees the power to file compliants to a circuit court against legal firms that are violating ethics rules or laws pertaining to law practice entities.


§ 54.1-3938.1 creates by reference a chair and vice-chair of the Virginia State Bar Disciplinary Board. By inference, it allows Bar Counsel to apply for a subpoena to gather evidence for another State's discipline or disability proceedings. It further gives the chair and vice chair the power to issue subpoenas to require testimony and document production for the foreign Bar.

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That is it for the statutes describing the Bar's role in suspensions/revocations of attorney's license to practice law. It is disturbingly incomplete.

Next time we'll look at the last set of statutes having to do with lawyers: Article 7: Solicitation of Professional Employment. I won't cover how that's mostly been rendered moot by the 1st Amendment and the US Supreme Court; I'll just be looking at the statutes to see what powers have been assigned to the Bar in this area.

18 April 2022

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.

17 April 2022

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.

11 April 2022

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.

10 April 2022

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

 

 

09 April 2022

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.

01 April 2022

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.

31 March 2022

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.]

28 March 2022

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

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?

18 March 2022

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.

-------- 

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

17 March 2022

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!

16 March 2022

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?

12 March 2022

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.


---------
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.