Va. R. Sup. Ct. 13-6

As amended through September 26, 2024

Rule 13-6 - Disciplinary Board

A.Appointment of Members. This Court must appoint, upon recommendation of Council, 20 members of the Board, 16 of whom must be active members of the Bar and four of whom must be nonlawyers. One Attorney member must be designated by the Court as Chair and two Attorney members as Vice Chairs, upon recommendations of Council. Before nominating any individual for membership on the Board, the Bar's nominating committee should first determine that the nominee is willing to serve on the Board and will conscientiously discharge the responsibilities as a member of the Board. All nominees must have previously served on a district committee. The Bar nominating committee must also obtain a statement from the nominees, in writing, that the nominees are willing to serve on the Board, if elected and appointed. In order to be considered as a potential appointee to the Board, each potential appointee must execute the following:

(1) a waiver of confidentiality with respect to his or her Disciplinary Record and any pending Complaints and a release allowing production of his or her Disciplinary Record and pending Complaints from any jurisdiction for purposes of the appointment process; and

(2) an authorization for the Bar to conduct a criminal records check of all jurisdictions for any conviction of a Crime and provide the results to the members of Council and the staff of the Bar for purposes of the appointment process.

B.Persons Ineligible for Appointment. Any potential appointee is ineligible for appointment to the Board if such potential appointee has:

(1) ever been convicted in any jurisdiction of a Crime;

(2) ever committed any criminal act that reflects adversely on the potential appointee's honesty, trustworthiness, or fitness as a member of a District Committee;

(3) a Disciplinary Record in any jurisdiction consisting of a Disbarment, Revocation, Suspension imposed at any time or Public Reprimand imposed within the ten years immediately preceding the proposed appointment date; or

(4) a Disciplinary Record in any jurisdiction, imposed within the five years immediately preceding the proposed appointment date, consisting of Private Discipline or an Admonition, except for a de minimis dismissal or a dismissal for exceptional circumstances. The Standing Committee on Lawyer Discipline has the sole discretion to determine whether a de minimis dismissal or a dismissal for exceptional circumstances disqualifies a potential appointee.

C.Term of Office. Members serve staggered terms of three years each. No member may serve more than two consecutive three-year terms but a member is eligible for reappointment after the lapse of one or more years following expiration of the previous three-year term. At the expiration of the initial term of any member so appointed for less than a three-year term, such member is eligible for immediate reappointment to the Board for two additional consecutive three-year terms.

D.Meetings and Quorum. The Board meets on reasonable notice by the Chair or a Vice Chair. A Panel of five members constitutes a quorum, and the action of a majority of a Panel constitutes action of the Board. For the exclusive purposes of considering an Agreed Disposition, pursuant to subparagraph 13-6.H, a Panel may act in a meeting in person or through any means of communication by which all five members participating may simultaneously hear each other during the meeting. One of the five persons assigned to any Panel must be a present or former nonlawyer member unless the scheduled nonlawyer is unable to attend and an alternate nonlawyer member or former member is not reasonably available. In such event, participation by a nonlawyer is not required in any proceeding if a quorum is otherwise present.

E.Roster. The Clerk establishes a roster of Board members sufficient to constitute a quorum for action on the matter to which they are being assigned. Former members of the Board may serve on a Panel of the Board or participate in Board matters whenever the Chair, Vice Chair or Clerk determines that such service is necessary for the orderly administration of the Board's work.

F.Jurisdiction. The Board has jurisdiction to consider:

(1) Appeals from Public or Private Reprimands, with or without Terms, or Admonitions, with or without Terms, imposed by District Committees or Dismissals that otherwise create a Disciplinary Record;

(2) Complaints and Certifications submitted to it by a Subcommittee or a District Committee;

(3) Misconduct by reason of conviction of a Crime;

(4) Impairment Proceedings;

(5) Revocation or Suspension in another jurisdiction;

(6) Petitions from Bar Counsel or the Chair of a District Committee seeking summary Suspension upon a belief that an Attorney is engaging in Misconduct likely to result in injury to or loss of property of a client or other entity or alleging an Attorney poses imminent danger to the public;

(7) Petitions for Reinstatement referred to the Board for its recommendation to this Court;

(8) Violations of RESA or any regulations adopted pursuant thereto;

(9) Failure of Respondent to make a complete transcript part of the Record, as provided in this Paragraph;

(10) Failure of an Attorney to comply with an order, summons or subpoena issued in connection with a Disciplinary Proceeding or Impairment Proceeding; and

(11) Failure of Respondent to fulfill the terms of a Public Reprimand with Terms certified to it by a District Committee for sanction determination.

G.Additional Board Powers. The Board has the following powers in addition to all other powers granted to the Board:

1. To sanction a Respondent for failing to comply with an order issued by the Board. This sanction can include an interim Suspension. Before imposing an interim Suspension, the Board must issue a notice to the Respondent advising the Respondent that he or she may petition the Board within ten days after service of the notice to withhold entry of an interim Suspension order and to hold an evidentiary hearing. If ten days after service of the notice the Respondent has not petitioned the Board to withhold entry of an interim Suspension order, the Board must enter an Order suspending the Attorney's License until such time as the Attorney remedies the failure to comply or a determination is made as to whether the Attorney has violated any Disciplinary Rules. An Attorney suspended pursuant to this subparagraph G.1. is subject to the provisions of subparagraph 13-29;

2. On its own motion or upon request by Bar Counsel or the Respondent, to summon and examine witnesses under oath or affirmation administered by any member of the Board and to compel the attendance of witnesses and the production of documents necessary or material to any proceeding. Any summons or subpoena may be issued by any Board member or the Clerk and has the force of and may be enforced as a summons or subpoena issued by a Circuit Court. A subpoena duces tecum which compels the Respondent to produce documents may be served upon the Respondent by certified mail at the Respondent's last address of record for membership purposes with the Bar or, if service cannot be effected at the Respondent's last address on record, or the Respondent is a Foreign Lawyer, or a lawyer engaged pro hac vice in the practice of law in Virginia, or a lawyer not admitted in Virginia, by first class mail to the Clerk of this Court.

3. To impose an interim Suspension if an Attorney fails to comply with a summons or subpoena issued by any member of the Board, the Clerk, or Bar Counsel, for trust account, estate account, fiduciary account, operating account or other records maintained by the Attorney or the Attorney's law firm. In the event of alleged noncompliance, Bar Counsel may file with the Board and serve on the Attorney a notice of noncompliance requesting the Board to suspend the Attorney's License. The noncompliance notice must advise the Attorney that he or she may petition the Board within 10 days of service of the notice to withhold entry of a Suspension order and to hold a hearing, at which time the Attorney has the burden of proving good cause for the alleged noncompliance. If 10 days after service of the notice of noncompliance the Attorney has not petitioned the Board to withhold entry of an interim Suspension order, the Board must summarily enter an Order suspending the Attorney's License. If the Board finds at any hearing conducted hereunder that the Attorney has failed to establish good cause for the alleged noncompliance, the Board must enter an Order suspending the Attorney's License. A suspension imposed under this subparagraph must remain in place until:

i) the Attorney fully complies with the summons or subpoena;

ii) a determination is made as to whether the Attorney's noncompliance violated the Disciplinary Rules; or

iii) the Complaint or Disciplinary Proceeding in which the summons or subpoena was issued is closed. An Attorney suspended pursuant to this subparagraph G.3. is subject to the provisions of subparagraph 13-29;

4. To rule on the admissibility of evidence, through a panel Chair, which rulings may be overruled by a majority of the Panel; and

5. To act through its Chair or one of the Vice Chairs (an officer) on any non-dispositive pre-hearing matters and on any dispositive matters where all parties are in agreement, subject to the following qualification and exception:

(1) any pre-hearing ruling on a non-dispositive matter made by an officer of the Board is subject to being overruled by a majority vote of the Panel which actually hears the matter; and

(2) Agreed Dispositions must be approved by a Panel.

H.Agreed Disposition. Whenever Bar Counsel and Respondent are in agreement as to the disposition of a Disciplinary Proceeding, the parties may submit a proposed Agreed Disposition to five members of the Board selected by the Chair. The five members so selected will constitute a Panel. If the proposed Agreed Disposition is accepted by a majority of the Panel so selected, the Agreed Disposition will be adopted by order of the Board. No appeal will lie from any sanction to which Respondent has agreed. If the Agreed Disposition is not accepted by the Panel, the Disciplinary Proceeding will then be set for hearing before another Panel of the Board at the earliest possible date. No member of the Panel which considered the proposed Agreed Disposition may be assigned to the Panel which hears the Disciplinary Proceeding. In the event the Panel rejects the proposed Agreed Disposition, the Panel may advise Bar Counsel and Respondent as to the reason for the rejection. Bar Counsel and Respondent may then meet privately and determine whether to revise the proposed Agreed Disposition and the Panel may reconsider any revised proposed Agreed Disposition within a timeframe determined by the Panel.

Va. Sup. Ct. 13-6

Amended by order dated February 27, 2009, effective 5/1/2009; amended by order dated March 19, 2010, effective immediately; The amendments effective 2/17/2011, revised Paragraph 13 regarding multijurisdictional practice. The amendments effective 3/19/2010, revised Paragraph 13 dealing with the use of the phrase "Charge of Misconduct". The amendment effective 4/13/2012, revised Paragraph 13 regarding appointment to the Disciplinary Board; amended by Order dated April 16, 2018, effective 6/15/2018; amended by order dated October 2, 2019, effective 12/1/2019; amended by order dated December 23, 2020, effective 2/22/2021; amended by order dated May 17, 2021, effective 7/16/2021; amended by order dated January 11, 2022, effective 3/12/2022; order dated May 9, 2023, effective 5/9/2023.