Virginia Code 54.1-3936: Protection of client interests in proceedings pending disciplinary action.
A. If Bar Counsel has reasonable cause to believe that an attorney is engaging in any activity which is unlawful or violates the Virginia Rules of Professional Conduct and which will result in loss of property of one or more of the attorney’s clients or any other person, Bar Counsel may submit an ex parte petition to the circuit court of the city or county wherein the attorney who is the subject of the petition resides or is doing business for the issuance of an order authorizing the immediate inspection by and production to representatives of the petitioner of any records, documents, and physical or other evidence belonging to the subject attorney or any professional partnership, professional limited liability company, or professional corporation with which the subject attorney is associated. The court may issue such order without notice to the attorney if the petition, supported by affidavit of the petitioner and such other evidence as the court may require, shows reasonable cause to believe that such action is required to prevent immediate loss of property of one or more of the subject attorney’s clients or any other person. The papers filed with the court pursuant to this subsection shall be placed under seal.
Terms Used In Virginia Code 54.1-3936
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
- attorney: means attorney-at-law. See Virginia Code 54.1-3900
- City: means an independent incorporated community which became a city as provided by law before noon on July 1, 1971, or which has within defined boundaries a population of 5,000 or more and which has become a city as provided by law. See Virginia Code 1-208
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- in writing: include any representation of words, letters, symbols, numbers, or figures, whether (i) printed or inscribed on a tangible medium or (ii) stored in an electronic or other medium and retrievable in a perceivable form and whether an electronic signature authorized by Virginia Code 1-257
- Injunction: An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
- Partnership: A voluntary contract between two or more persons to pool some or all of their assets into a business, with the agreement that there will be a proportional sharing of profits and losses.
- Personal representative: includes the executor of a will or the administrator of the estate of a decedent, the administrator of such estate with the will annexed, the administrator of such estate unadministered by a former representative, whether there is a will or not, any person who is under the order of a circuit court to take into his possession the estate of a decedent for administration, and every other curator of a decedent's estate, for or against whom suits may be brought for causes of action that accrued to or against the decedent. See Virginia Code 1-234
- State: when applied to a part of the United States, includes any of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, and the United States Virgin Islands. See Virginia Code 1-245
- Statute: A law passed by a legislature.
B. If Bar Counsel has reasonable cause to believe that an attorney is engaging in any activity which is unlawful or in violation of the Virginia Rules of Professional Conduct and which will result in loss of property of one or more of the attorney’s clients or any other person, Bar Counsel may file a petition with the circuit court of the county or city wherein the subject attorney resides or is doing business. The petition may seek the following relief: (i) an injunction prohibiting the withdrawal of any bank deposits or the disposition of any other assets belonging to or subject to the control of the subject attorney or any professional partnership, professional limited liability company, or professional corporation with which the subject attorney is associated; and (ii) the appointment of a receiver for all or part of the funds or property of the subject attorney’s law practice or of any professional partnership, professional limited liability company, or professional corporation with which the subject attorney is associated. The subject attorney shall be given notice of the time and place of the hearing on the petition and an opportunity to offer evidence. The court, in its discretion, may require a receiver appointed pursuant to this section to post bond, with or without surety. The papers filed with the court under this subsection shall be placed under seal until such time as the court grants an injunction or appoints a receiver. The court may issue an injunction, appoint a receiver or provide such other relief as the court may consider proper if, after a hearing, the court finds that such relief is necessary or appropriate to prevent loss of property of one or more of the subject attorney’s clients or any other person.
C. In any proceeding under subsection B, any professional partnership, professional limited liability company, or professional corporation with which the subject attorney is associated and any other person or entity known to Bar Counsel to be indebted to or having in his possession property, real or personal, belonging to or subject to the control of the subject attorney’s law practice and which property Bar Counsel reasonably believes may become part of the receivership assets, shall be served with a copy of the petition and notice of the time and place of the hearing.
D. The receiver shall, unless otherwise ordered by the court, (i) prepare and file with the Virginia State Bar an inventory of all case files under the subject attorney’s control; (ii) notify in writing all of the subject attorney’s clients of the appointment and take whatever action the receiver deems appropriate to protect the interests of the clients until such time as the clients have had an opportunity to obtain successor counsel, and in the case of a deceased attorney, notify in writing the personal representative, if any, of the deceased attorney’s estate and the commissioner of accounts of the circuit court in which the deceased attorney’s estate is being administered that the receiver may have a claim against the deceased attorney’s estate for fees and costs of the receivership; (iii) identify and take control of all bank accounts, including without limitation trust and operating accounts, over which the subject attorney had signatory authority in connection with his law practice; (iv) prepare and submit an accounting of receipts and disbursements and account balances of all funds under the receiver’s control for submission to the court within four months of the appointment and annually thereafter until the receivership is terminated by the court; (v) attempt to collect any accounts receivable related to the subject attorney’s law practice; (vi) identify and attempt to recover any assets wrongfully diverted from the subject attorney’s law practice, or assets acquired with funds wrongfully diverted from the subject attorney’s law practice; (vii) terminate the subject attorney’s law practice; (viii) reduce to cash all of the assets of the subject attorney’s law practice, and in the case of a deceased attorney notify in writing the personal representative, if any, of the deceased attorney’s estate, and the commissioner of accounts of the circuit court in which the deceased attorney’s estate is being administered of any proposed liquidations of assets; (ix) determine the nature and amount of all claims of creditors, including clients, of the subject attorney’s law practice; and (x) prepare and file with the court a report of such assets and claims proposing a distribution to such creditors and, in the case of a deceased attorney, notify in writing the personal representative, if any, of the deceased attorney’s estate and the commissioner of accounts of the circuit court in which the deceased attorney’s estate is being administered of the proposed distribution of the receivership funds. Upon the court’s approval of the receiver’s report, at a hearing after such notice as the court may require to creditors, the personal representative of the subject attorney’s estate and the commissioner of accounts of the circuit court in which the deceased attorney’s estate is being administered, the receiver shall distribute the assets of the subject attorney’s law practice first to clients whose funds were or ought to have been held in trust by the subject attorney, then to the receiver for fees, costs, and expenses awarded pursuant to subsection E, and thereafter to the general creditors of the subject attorney’s law practice, including clients whose funds were not required to have been held in trust by the subject attorney, and then to the subject attorney or the subject attorney’s personal representative.
E. A receiver appointed pursuant to this section shall be entitled, upon proper application to the court in which the appointment was made, to recover an award of reasonable fees, costs, and expenses. If there are not sufficient nontrust funds to pay the award, then the shortfall shall be paid by the Virginia State Bar, to the extent that the Virginia State Bar has funds available. The Virginia State Bar shall have a claim against the subject attorney or the subject attorney’s estate for the amount paid.
F. The court may determine whether any assets under the receiver’s control should be returned to the subject attorney or the subject attorney’s personal representative during the receivership.
G. This statute is declared to be remedial. Its purpose is to protect the interests of clients adversely affected by attorneys who have engaged in misconduct. It is to be liberally administered in order to protect those interests and thereby the public’s interest in the quality of legal services provided by Virginia attorneys.
1985, c. 418, § 54-74.01; 1988, c. 765; 1992, c. 574; 1997, c. 239; 2005, cc. 184, 212.