ANALYSIS OF AUGUST 11, 2022 SUPREME COURT OPINIONS

(Posted August 11, 2022) The printing presses at Ninth and Franklin crank out two published opinions this morning.

Criminal procedure

The issue in Hill v. Commonwealth is narrow, in my view: When a circuit court revokes a suspended sentence and extends a period of probation, does that act necessarily resuspend the original sentence?  Hill received a three-year prison term in 2015, with 2½ years of that suspended. The circuit court later revoked the suspension for a probation violation and reimposed the three-year term, suspending two years. Effectively, the court gave him six more months to ponder his misdeeds.

A year after that, Hill landed in hot water again. The court issued a bench warrant, but Hill moved to dismiss it because his original three-year suspension had expired. He claimed that the court no longer had jurisdiction to act on his original sentence.

The circuit court disagreed and imposed the entire three-year term. The Court of Appeals affirmed in a published opinion last year. Today the Supreme Court agrees, so Hill has gone 0-for-appellate in this case.

In a short opinion by Justice Kelsey, the court reasons that “a revocation order that extends a period of probation necessarily extends the period of sentence suspension.” This is true even if the sentencing order doesn’t expressly say that.

Hill argued that the courts speak only through their orders, and that the law doesn’t read into those orders matters that aren’t stated there. Justice Kelsey offers this concise riposte: “In judicial orders, as in ordinary conversation, meaning can be clearly expressed and just as clearly implied.” Count me among those who foresee that this sentence will be among the most-cited future references to this morning’s opinion.

Attorney discipline

In the 17+ years that I’ve been posting essays on Supreme Court opinions, I’ve come to recognize categories of appeals that I find truly distasteful. Grisly murders, malicious assaults, and child-abuse cases clearly fit that bill, but among nonviolent cases, legal discipline proceedings may be the most demoralizing. That’s in part because they’re comparatively rare. There are over 30,000 active lawyers licensed in Virginia, and the State Bar has active investigations open on only about 1% of them. That means that 99% of lawyers play by the rules, including those governing honesty.

The public doesn’t know that. When word hits the newspapers about attorneys’ misconduct, it feeds the false narrative that our profession is inherently dishonest. This is the stereotype of the lawyer who will say anything, no matter how false, to secure a win for his client and a fee for himself. We know it’s false, but John Q. Public doesn’t.

In the first substantive paragraph of today’s opinion in Haley v. Virginia State Bar, we learn that the respondent lawyer bounced a trust account check that he had written to one of his employees. That’s two strikes; there’s not much defense to a rubber-check allegation, and what’s he doing paying an employee from the trust account?

In the next paragraph, we discover that the lawyer “regularly deposited unearned advance fees from his clients directly into his operating account,” and that he had bounced 53 checks over a 27-month period. That’s two a month.

In the next paragraph, the opinion reveals that the lawyer made false or misleading statements to a Bar investigator. Before the short facts section ends, we’ll find out that the lawyer had been disciplined by the North Carolina Bar, and hadn’t reported that sanction to the Virginia State Bar. The North Carolina discipline was for – get this – failing to report previous discipline when he filed a pro hac vice motion in the Tar Heel State. We ultimately learn that New York was investigating him for a similar omission in a PHV application filed up there.

In fairness to the lawyer, he admitted in the disciplinary proceeding that he had blown it regarding his trust account, and the Bar stipulated that he had taken steps to clean up his account-keeping act. But a subcommittee certified charges against him, and the Bar found the charges to be substantiated. It recommended an 18-month license suspension.

The lawyer exercised his automatic right of appeal – no writ required – to the Supreme Court. Today, the justices affirm the Bar’s decision. Justice Chafin’s opinion for a unanimous court lays out the evidence in the case and finds that the Bar’s finding and its recommended disposition are both appropriate.

The recitation of facts and the procedural history of the disciplinary proceeding is fairly straightforward, but I’ll mention one aspect that caught my eye – especially as I had read the Hill criminal decision just before this one.

One of the charges lodged against the attorney related to false statements to the Bar investigator about a client named Campbell. That client had paid a fee that the lawyer had deposited directly into his operating account, before the fee was earned. The lawyer, who is licensed here and in South Carolina, told the investigator that he represented multiple people with that exact name, and he believed that this fee came from a South Carolina client.

That matters because in the Palmetto State, bar regulations permit lawyers to deposit advance fees directly into an operating account, contrary to the rule here. As it turns out, the lawyer hadn’t represented the South Carolina Campbell for several years; this check came from his Virginia namesake, whom the lawyer was representing when the Bar investigation began.

When the disciplinary subcommittee certified the charges here, it mentioned the failure to report the NC discipline but didn’t specify the Campbell misstatement. It did state that, in the words of today’s opinion, the “false and material misstatements were ‘not limited’ to the statements that were expressly referenced in the certification.” The lawyer objected at the Bar hearing and again in the Supreme Court to any mention of the two-Campbells issue.

He may have a point here. Bar discipline is civil and administrative, not criminal; it exists to protect the public, not to punish lawyers. Even so, I believe that most lawyers would perceive that it’s a matter of fundamental fairness that the charging document should identify the specific misconduct at issue in the case. The lawyer should be properly informed of what he’s being accused of.

Today’s opinion notes that the Rules require that the certification “include sufficient facts to reasonably notify Bar Counsel and Respondent of the basis for such certification and the Disciplinary Rules alleged to have been violated.” In affirming the sanction today, the Supreme Court holds that while a specific mention of the Campbells incident would have been better practice, it’s close enough in this context, particularly because the certification included the “not limited to” reference.

Because of my sense of fair play, described two paragraphs above this one, that doesn’t quite sit well with me. In both of the decisions handed down today – Hill being the other one – the Supreme Court has ruled that it’s permissible to read unstated words into critical documents. The first case is a criminal matter, involving significant incarceration; the second implicates a person’s career. We aren’t talking about a $15,000 monetary judgment here.

Considering everything, I agree with the Supreme Court’s disposition of the disciplinary appeal. This morning’s opinion states that the 18-month suspension “was an appropriate sanction.” I might have phrased it slightly differently: “… was not excessive.” The combination of trust-account malfeasance and dishonesty fully justifies a significant response, and I see 18 months as being at the lower end of the proper spectrum.