Saturday, November 25, 2017

Reprimand For Confidentiality Violation In Response To Bar Complaint

A public reprimand with terms was imposed by a Subcommittee of the Virginia State Bar Disciplinary Board for what appears to me to be pretty serious misconduct,

The attorney had represented the complainant on criminal matters for a period of about five years beginning in 2007.

When that client filed a bar complaint, the attorney responded by providing the bar investigator with 

a list of 17 witnesses that he believed had detrimental information concerning the complainant, and he provided a summary of the anticipated testimony of each identified witness, which related to the alleged criminal activity of the Complainant.

The conduct violated Rules 1.6 and 3.3.

The effective sanction?

Three hours of ethics CLE.

The order also notes that the attorney had prior discipline. 

Virginia is one of those few jurisdictions where discipline is almost entirely controlled by the Bar with very little oversight of the highest court.

As happened here, it is lamentably true that much serious misconduct gets a reprimand.

That is what happens when regulation is left to the Bar.

Sad! (Mike Frisch)

Bar Discipline & Process | Permalink


Maybe I’m missing something, but if the client filed a Bar Complaint against the attorney, wouldn’t the attorney have the right to disclose information to the Bar (which presumably would not be released to the public) that explains why that attorney took the particular action that he or she took? Maybe someone can explain since this summary was confusing to me. Thanks.

Posted by: Kevin Kershaw | Nov 27, 2017 12:25:59 PM

The attorney would have the ability to respond to the specifics of the client 's complaint pursuant to Rule 1.6. That is not a license to give the Bar (or anyone else) any information protected by the same rule beyond what is necessary to respond.

Posted by: Mike Frisch | Nov 28, 2017 4:30:52 AM

We have absolutely no information from the decision (other than the attorney's consent to discipline and the fact he was disciplined) as to whether the information was reasonably necessary to respond.

We do know that often complaints by clients (and particularly criminal clients) raise credibility issues, and we also know that often "derogatory" information can shed light on credibility.

Other than the consent and outcome, we just don't even know if ANY misconduct was actually evidenced or if the scope 1.6 exception for responses was even raised or adjudicated. And we certainly don't know that the case can (without knowing more) be fairly used as an example of what happens when the bar regulates itself without more Court oversight.

Posted by: George Weiss | Nov 28, 2017 1:57:04 PM

I appreciate the last comment but respond that part of the problem here is what we do not know. I am comfortable in opining that handing the bar a roadmap to a criminal case against a complaining former client well crosses the sometime indistinct line of disclosure particularly given his concession.

Posted by: Mike Frisch | Nov 29, 2017 4:13:03 AM

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