Rule 13-18 - Board Proceedings Upon CertificationA.Filing by Respondent. After a Subcommittee or District Committee certifies a matter to the Board, and the Respondent has been served with the Certification, the Respondent must, within 21 days after service of the Certification: 1. File an Answer to the Certification with the Clerk, which Answer is deemed consent to the jurisdiction of the Board; or2. File an Answer to the Certification and a demand with the Clerk that the proceedings before the Board be terminated and that further proceedings be conducted pursuant to Va. Code § 54.1-3935; and simultaneously provide available dates for a hearing not less than 30 nor more than 120 days from the date of the demand. Upon the filing of an Answer and such demand and provision of available dates as specified above, further proceedings before the Board must terminate, and Bar Counsel must file the complaint required by Va. Code § 54.1-3935.T he hearing must be scheduled as soon as practicable. However, the 30- to 120-day time frame is not a deadline for the hearing to be held.B.No Filing by Respondent. If the Respondent fails to file an Answer, or an Answer and a demand, and provide available dates, as specified above, the Respondent is deemed to have consented to the jurisdiction of the Board.C.Notice of Hearing. The Board must set a date, time, and place for the hearing, and must serve notice of such hearing upon the Respondent at least 21 days prior to the date fixed for the hearing.D.Expedited Hearings.1. If Bar Counsel or a District Committee Chair has reasonable cause to believe that an Attorney is engaging in Misconduct which is likely to result in injury to, or loss of property of, one or more of the Attorney's clients or any other person, and that the continued practice of law by the Attorney poses an imminent danger to the public, Bar Counsel or the District Committee Chair may petition the Board to issue an order requiring the Attorney to appear before the Board for a hearing in accordance with the procedures set forth below.2. The petition must be under oath and must set forth the nature of the alleged Misconduct, the factual basis for the belief that immediate action by the Board is reasonable and necessary and any other facts which may be relevant to the Board's consideration of the matter, including any prior Disciplinary Record of the Attorney.3. Upon receipt of the petition, the Chair or Vice-Chair of the Board must issue an order requiring the Respondent to appear before the Board not less than 14 nor more than 30 days from the date of the order for a hearing to determine whether the Misconduct has occurred and the imposition of sanctions is appropriate. The Board's order must be served on the Respondent no fewer than ten days prior to the date set for hearing. 4. If the Respondent, at the time the petition is received by the Board, is the subject of an order then in effect by a Circuit Court pursuant to Va. Code § 54.1-3936 appointing a receiver for his accounts, the Board must issue a further order summarily suspending the License of the Respondent until the Board enters its order following the expedited hearing.5. At least five days prior to the date set for hearing, the Respondent must either file an Answer to the petition with the Clerk, which Answer is conclusively deemed consent to the jurisdiction of the Board; or file an Answer and a demand with the Clerk that proceedings before the Board be terminated and that further proceedings be conducted pursuant to Va. Code § 54.1-3935; and simultaneously provide available dates for a hearing not less than 30 days nor more than 120 days from the date of the Board order. Upon the filing of an Answer and such demand and provision of available dates as specified above, further proceedings before the Board must be terminated and Bar Counsel must file the complaint required by Va. Code § 54.1-3935.T he hearing must be scheduled as soon as practicable. However, the 30- to 120-day time frame does not constitute a deadline for the hearing to be held. If any order of summary Suspension has been entered, such Suspension must remain in effect until the court designated under Va. Code § 54.1-3935 enters a final order disposing of the issue before it. If the Respondent fails to file an Answer, or an Answer and a demand, and provide available dates, as specified above, the Respondent is deemed to have consented to the jurisdiction of the Board.E.Pre-Hearing Orders. The Chair may, sua sponte or upon motion of the Respondent or Bar Counsel, enter such pre-hearing order as is necessary for the orderly conduct of the hearing before the Board in Misconduct cases. Such order may establish time limits and: 1. Direct Bar Counsel and the Respondent to provide to each other, with a copy to the Clerk, a list of and copies of all exhibits proposed to be introduced at the Misconduct stage of the hearing;2. Encourage Bar Counsel and the Respondent to confer and discuss stipulations; and3. Direct Bar Counsel and the Respondent to provide to each other, with a copy to the Clerk, lists setting forth the name of each witness the party intends to call.F.Continuance of a Hearing. Absent exceptional circumstances, once the Board has scheduled a hearing, no continuance may be granted unless, in the judgment of the Chair, the continuance is necessary to prevent injustice. No continuance will be granted because of a conflict with the schedule of the Respondent or the Respondent's counsel unless such continuance is requested in writing by the Respondent or the Respondent's counsel within 14 days after mailing of a notice of hearing. Any request for a continuance must be filed with the Clerk.G.Preliminary Explanation. Absent waiver by the parties, the Chair must state in the presence of the Respondent and the Complainant, if present, a summary of the alleged Misconduct, the nature and purpose of the hearing, the procedures to be followed during the hearing, and the dispositions available to the Board following the hearing. The Chair must also inquire of the members present whether any member has any personal or financial interest that may affect, or be reasonably perceived to affect, his or her ability to be impartial. Any member answering in the affirmative must be excused from participation in the matter.H.Attendance at Hearing. Witnesses other than the Complainant and the Respondent must be excluded until excused from a public hearing on motion of Bar Counsel, the Respondent or the Board.I.Order of Hearing.1. Brief opening statements by Bar Counsel and by the Respondent or the Respondent's counsel must be permitted but are not required.2. Bar Counsel may present witnesses and other evidence supporting the Certification. The Respondent must be afforded the opportunity to crossexamine the Bar's witnesses and to challenge any evidence introduced on behalf of the Bar. Board members may also examine witnesses offered by Bar Counsel.3. Respondent must be afforded the opportunity to present witnesses and other evidence. Bar Counsel must be afforded the opportunity to crossexamine Respondent's witnesses and to challenge any evidence introduced on behalf of Respondent. Board members may also examine witnesses offered on behalf of a Respondent.4. Bar Counsel may rebut the Respondent's evidence.5. Bar Counsel may make the initial closing argument.6. The Respondent or the Respondent's counsel may then make a closing argument.7. Bar Counsel may then make a rebuttal closing argument.J.Motion to Strike. At the conclusion of the Bar's evidence or at the conclusion of all the evidence, the Board on its own motion, or the Respondent or the Respondent's counsel may move to strike the Bar's evidence as to one or more allegations of Misconduct contained in the Certification. A motion to strike an allegation of Misconduct must be sustained if the Bar has failed to introduce sufficient evidence that would under any set of circumstances support the conclusion that the Respondent engaged in the alleged Misconduct that is the subject of the motion to strike. If the Chair sustains the motion to strike an allegation of Misconduct, subject to being overruled by a majority of the remaining members of the Board, that allegation of Misconduct must be dismissed from the Certification.K.Deliberations. As soon as practicable after the conclusion of the evidence and arguments as to the issue of Misconduct, the Board deliberates in private. If the Board finds by clear and convincing evidence that the Respondent has engaged in Misconduct, the Board must, prior to determining the appropriate sanction to be imposed, inquire whether the Respondent has a Disciplinary Record in this or any other jurisdiction and must give Bar Counsel and the Respondent an opportunity to present material evidence and arguments in aggravation or mitigation. The Board deliberates in private on the issue of sanctions. The Board may address any legal questions to the Office of the Attorney General.L.Dismissal for Failure of the Evidence. If the Board concludes that the evidence fails to show under a clear and convincing evidentiary standard that the Respondent engaged in the Misconduct, the Board must dismiss any allegation of Misconduct not so proven.M.Disposition Upon a Finding of Misconduct. If the Board concludes that there has been presented clear and convincing evidence that the Respondent has engaged in Misconduct, after considering evidence and arguments in aggravation and mitigation, the Board must impose one of the following sanctions and state the effective date of the sanction imposed:1. Admonition, with or without Terms;2. Public Reprimand, with or without Terms;3. Suspension of the License of the Respondent:a. For a stated period not exceeding five years; provided, however, if the Suspension is for more than one year, the Respondent must apply for Reinstatement as provided in this Paragraph; orb. For a stated period of one year or less, with or without terms; or4. Revocation of the Respondent's License.N.Dismissal for Failure to Reach a Majority Decision. If the Board is unable to reach a decision by a majority vote of those constituting the hearing panel, the Certification, or any allegation thereof, must be dismissed on the basis that the evidence does not reasonably support the Certification, or one or more allegations thereof, under a clear and convincing evidentiary standard.O.Enforcement of Terms. In all cases where Terms are included in the disposition, the Board must specify the time period within which compliance must be completed and, if required, the time period within which the Respondent must deliver a written certification of compliance to Bar Counsel. The Board must specify the alternative disposition if the Terms are not complied with or, if required, compliance is not certified to Bar Counsel. Bar Counsel is responsible for monitoring compliance and reporting any noncompliance to the Board. Whenever it appears that the Respondent has not complied with the Terms imposed, including written certification of compliance if required, Bar Counsel must serve notice requiring the Respondent to show cause why the alternative disposition should not be imposed. If the Respondent elects to have further show cause proceedings conducted pursuant to Va. Code § 54.1-3935, the Respondent must file a demand with the Clerk within 10 days of the date of mailing of the notice to show cause and simultaneously provide available dates for a hearing not less than 30 nor more than 120 days from the date of the demand. Upon such demand and provision of available dates as specified above, further proceedings before the Board must be terminated and Bar Counsel must file the complaint required by Va. Code § 54.1-3935.T he hearing must be scheduled as soon as practicable. However, the 30- to 120-day time frame does not constitute a deadline for the hearing to be held. If the Respondent fails to file a demand, and provide available dates, as specified above, the Respondent is deemed to have consented to the jurisdiction of the Board, and the show cause proceeding must be set for hearing before the Board at its next available hearing date. The burden of proof is on the Respondent to show compliance by clear and convincing evidence. If the Respondent has failed to comply with the Terms, including written certification of compliance if required, within the stated time period, as determined by the Board, the alternative disposition must be imposed. Any show cause proceeding involving the question of compliance is deemed a new matter and not a continuation of the matter that resulted in the imposition of Terms.P.Orders, Findings and Opinions. Upon disposition of a matter, the Board must issue the Summary Order. Thereafter, the Board must issue the Memorandum Order. A Board member must prepare the Summary Order and Memorandum Order for the signature of the Chair or the Chair's designee. Dissenting opinions may be filed. Upon disposition of a matter conducted pursuant to Va. Code § 54.1-3935, the three-judge Circuit Court must issue the Summary Order and the Memorandum Order, except that explicit findings of fact are not required.Q.Change in Composition of Board Hearing Panel. Whenever a hearing has been adjourned for any reason and one or more of the members initially constituting the quorum for the hearing are unable to be present, the hearing of the matter may be completed by furnishing a transcript of the subsequent proceedings conducted in one or more member's absence to such absent member, or substituting another Board member for any absent member and furnishing a transcript of the prior proceedings in the matter to such substituted member(s).R.Reconsideration of Board Action. No motion for reconsideration or modification of the Board's decision may be considered unless it is filed with the Clerk within 10 days after the hearing before the Board. The moving party must file the motion and all supporting exhibits with the Clerk. Such motion may be granted only to prevent manifest injustice upon the ground of: 1. Illness, injury or accident which prevented the Respondent or a witness from attending the hearing and which could not have been made known to the Board within a reasonable time prior to the hearing; or2. Evidence which was not known to the Respondent at the time of the hearing and could not have been discovered prior to, or produced at, the hearing in the exercise of due diligence and would have clearly produced a different result if the evidence had been introduced at the hearing. If such a motion is timely filed, the Clerk must promptly forward copies to each member of the hearing Panel. The Panel may deny the motion without response from the other party. No relief may be granted without allowing the other party an opportunity to oppose the motion in writing. If no relief is granted, the Board must enter its order disposing of the motion.
Amended by order dated February 27, 2009, effective 5/1/2009; amended by order dated March 19, 2010, effective immediately; amended by order dated October 2, 2019, effective 12/1/2019; amended by order dated May 17, 2021, effective 7/16/2021; order dated May 9, 2023, effective 5/9/2023; order dated September 29, 2023, effective 11/28/2023.