Va. Lawyers Weekly article on online disciplinary info
Court: Delay Web discipline postings
Bar cites 2001 rules about transparency
By Alan Cooper
April 21, 2008
http://www.valawyersweekly.com/weeklyedition/2008/04/21/court-delay-web-discipline-postings/
The Supreme Court of Virginia has told the Virginia State Bar that the bar should not post disciplinary information about a lawyer on its Web site until the time for filing any appeal has expired.
But the VSB has responded that the restriction on Web site postings is inconsistent with 2001 rule changes that made the VSB’s disciplinary process more transparent.
In a letter last week to Chief Justice Leroy Rountree Hassell Sr., VSB President Howard W. Martin Jr. asked the court to reconsider the restriction.
Hassell wrote a letter last month to Martin addressing several VSB matters of interest to the court.
One was unexpected. "The Justices have decided that the Virginia State Bar should not post any information about disciplinary complaints filed against lawyers on the Virginia State Bar’s website until a decision has been made ad-verse to the lawyer and the time for filing an appeal from that decision has expired," Hassell wrote.
If the lawyer appeals, the matter should not appear on the Web site until the Supreme Court issues a mandate or order, Hassell said. "The Supreme Court would like this policy implemented immediately."
At a meeting of the VSB’s executive committee earlier this month, Martin said, "This creates some issues for us." Martin said then that he understood the action was in response to a complaint by an attorney who had a disciplinary citation dismissed on appeal.
In a letter to Hassell dated April 11, Martin elaborated on those issues. The 2001 rules specify that a charge of misconduct becomes public once a finding of probable cause of a violation of legal ethics is made. The VSB maintains a docket of cases pending before a district disciplinary committee, the disciplinary board or a three-judge panel.
Because that docket is public information, it is posted on the VSB Web site, Martin said. In addition, the clerk of the disciplinary system responds to inquiries from the press and public about the nature of such charges.
Once a matter is on the public docket, the clerk tracks all subsequent procedural developments on the Web site, including appeals, stays, reversals and dismissals.
"This procedure has been very popular with the public and the press," Martin said. "It, along with the disciplinary record search, is the primary source for public information about disciplinary actions."
The rules require the clerk to issue press releases "summarizing each public Admonition, Public Reprimand, Suspen-sion or Revocation," Martin wrote. The clerk typically does not issue them in the case of admonitions or public reprimands until the time for an appeal expires or the sanction is upheld.
However, because there is no provision for an automatic stay from a suspension and a stay cannot be granted for a revocation, the clerk issues press releases in those cases immediately. Martin contended that the clerk should be able to continue to promptly issue the suspension and revocation releases and place the information on the Web site because the rules also require the clerk to notify the courts where the defendant practices of the suspension or revocation.
"[T]he failure to publicize such information could lead to the anomalous result of an attorney being suspended for a year, appealing his sanction, and by the time the appeal is resolved and the sanction affirmed, the time of suspension would have been served," Martin wrote. "The fact that the public would have been unaware of the attorney’s status during this time frame would be problematic."
He added, "The rules of the Court mandate a public process for the serious offenders. We believe the inability of Virginians to readily ascertain the discipline information via the bar’s website during the appeal process significantly impairs the bar’s important efforts to protect the public. Finally, such deference to the respondent lawyer is in stark contrast to the court system’s treatment of the ordinary litigant or defendant."
Forrest M. Landon, the former executive director of the Virginia Coalition for Open Government and a lay member of the VSB’s Committee on Lawyer Discipline said, he was disappointed at the directive "to change what has been a good transparency effort over the years.
"The court, if it thinks it through clearly," should reverse its position, he said.
"If self-regulation is going to continue, there’s got to be trust in the system," and that trust can only come from an open system once probable cause of an ethical violation has been established, he said. He noted that most complaints are thrown out through the bar’s confidential intake and district subcommittee procedures, so that only misconduct allegations with some merit are ever made public.
Megan Rhyne, associate director of the coalition, said, "We are concerned any time records and information previously available to the public, whether in paper form or over the Internet, are suddenly and without notice removed from public view.
"The justices are perhaps concerned that a bell can’t be unrung: that a lawyer found to be innocent of any wrongdoing will nonetheless suffer because information about an unfounded complaint was already publicized. But we believe the justices’ order is too broad in calling for . . .any information’ to be pulled from the bar’s Web site," she said.
"The public - and other attorneys (including those from out of state) who may need to rely on a local counsel - deserve a comprehensive and accessible resource to research the background of the attorneys they may retain," Rhyne continued. "We applaud the bar’s efforts so far, as noted in Martin’s letter, to make the lawyer disciplinary system more transparent and would like to see this trend continue, rather than move backward."
Bar cites 2001 rules about transparency
By Alan Cooper
April 21, 2008
http://www.valawyersweekly.com/weeklyedition/2008/04/21/court-delay-web-discipline-postings/
The Supreme Court of Virginia has told the Virginia State Bar that the bar should not post disciplinary information about a lawyer on its Web site until the time for filing any appeal has expired.
But the VSB has responded that the restriction on Web site postings is inconsistent with 2001 rule changes that made the VSB’s disciplinary process more transparent.
In a letter last week to Chief Justice Leroy Rountree Hassell Sr., VSB President Howard W. Martin Jr. asked the court to reconsider the restriction.
Hassell wrote a letter last month to Martin addressing several VSB matters of interest to the court.
One was unexpected. "The Justices have decided that the Virginia State Bar should not post any information about disciplinary complaints filed against lawyers on the Virginia State Bar’s website until a decision has been made ad-verse to the lawyer and the time for filing an appeal from that decision has expired," Hassell wrote.
If the lawyer appeals, the matter should not appear on the Web site until the Supreme Court issues a mandate or order, Hassell said. "The Supreme Court would like this policy implemented immediately."
At a meeting of the VSB’s executive committee earlier this month, Martin said, "This creates some issues for us." Martin said then that he understood the action was in response to a complaint by an attorney who had a disciplinary citation dismissed on appeal.
In a letter to Hassell dated April 11, Martin elaborated on those issues. The 2001 rules specify that a charge of misconduct becomes public once a finding of probable cause of a violation of legal ethics is made. The VSB maintains a docket of cases pending before a district disciplinary committee, the disciplinary board or a three-judge panel.
Because that docket is public information, it is posted on the VSB Web site, Martin said. In addition, the clerk of the disciplinary system responds to inquiries from the press and public about the nature of such charges.
Once a matter is on the public docket, the clerk tracks all subsequent procedural developments on the Web site, including appeals, stays, reversals and dismissals.
"This procedure has been very popular with the public and the press," Martin said. "It, along with the disciplinary record search, is the primary source for public information about disciplinary actions."
The rules require the clerk to issue press releases "summarizing each public Admonition, Public Reprimand, Suspen-sion or Revocation," Martin wrote. The clerk typically does not issue them in the case of admonitions or public reprimands until the time for an appeal expires or the sanction is upheld.
However, because there is no provision for an automatic stay from a suspension and a stay cannot be granted for a revocation, the clerk issues press releases in those cases immediately. Martin contended that the clerk should be able to continue to promptly issue the suspension and revocation releases and place the information on the Web site because the rules also require the clerk to notify the courts where the defendant practices of the suspension or revocation.
"[T]he failure to publicize such information could lead to the anomalous result of an attorney being suspended for a year, appealing his sanction, and by the time the appeal is resolved and the sanction affirmed, the time of suspension would have been served," Martin wrote. "The fact that the public would have been unaware of the attorney’s status during this time frame would be problematic."
He added, "The rules of the Court mandate a public process for the serious offenders. We believe the inability of Virginians to readily ascertain the discipline information via the bar’s website during the appeal process significantly impairs the bar’s important efforts to protect the public. Finally, such deference to the respondent lawyer is in stark contrast to the court system’s treatment of the ordinary litigant or defendant."
Forrest M. Landon, the former executive director of the Virginia Coalition for Open Government and a lay member of the VSB’s Committee on Lawyer Discipline said, he was disappointed at the directive "to change what has been a good transparency effort over the years.
"The court, if it thinks it through clearly," should reverse its position, he said.
"If self-regulation is going to continue, there’s got to be trust in the system," and that trust can only come from an open system once probable cause of an ethical violation has been established, he said. He noted that most complaints are thrown out through the bar’s confidential intake and district subcommittee procedures, so that only misconduct allegations with some merit are ever made public.
Megan Rhyne, associate director of the coalition, said, "We are concerned any time records and information previously available to the public, whether in paper form or over the Internet, are suddenly and without notice removed from public view.
"The justices are perhaps concerned that a bell can’t be unrung: that a lawyer found to be innocent of any wrongdoing will nonetheless suffer because information about an unfounded complaint was already publicized. But we believe the justices’ order is too broad in calling for . . .any information’ to be pulled from the bar’s Web site," she said.
"The public - and other attorneys (including those from out of state) who may need to rely on a local counsel - deserve a comprehensive and accessible resource to research the background of the attorneys they may retain," Rhyne continued. "We applaud the bar’s efforts so far, as noted in Martin’s letter, to make the lawyer disciplinary system more transparent and would like to see this trend continue, rather than move backward."
