Livingston v. Virginia State Bar

PRESENT: All the Justices

ERIC JOSEPH LIVINGSTON
OPINION BY
v. Record No. 122144 CHIEF JUSTICE CYNTHIA D. KINSER
June 6, 2013
VIRGINIA STATE BAR

FROM THE VIRGINIA STATE BAR DISCIPLINARY BOARD

In this appeal of right by an attorney from an order of the

Virginia State Bar Disciplinary Board (Disciplinary Board), we

conduct an independent review of the record to determine whether

there is clear and convincing evidence that Eric Joseph

Livingston violated Rules 1.1, 3.1, and 3.8(a) of the Virginia

Rules of Professional Conduct. Because we find such evidence

only with regard to the violation of Rule 1.1, we will affirm in

part and reverse in part the Disciplinary Board's order and

remand for consideration of an appropriate sanction.

I. RELEVANT FACTS AND PROCEEDINGS

Pursuant to Part 6, Section IV, Paragraph 13-16(A) of the

Rules of this Court, the Virginia State Bar (VSB) served

Livingston with a Charge of Misconduct, alleging that he

violated Rule 1.1 requiring competent representation, Rule 3.1

regarding assertion of frivolous claims or contentions, and Rule

3.8(a) addressing additional responsibilities of a prosecutor.

The Charge of Misconduct related to Livingston's conduct, as an

Assistant Commonwealth's Attorney in Prince George County,
during his prosecution of James Collins on drug-related

offenses.

Collins was arrested after he purchased 50 pills of what he

believed were 80 mg Oxycontin from an undercover police officer

at a park within 1,000 feet of a public school in Prince George

County. The pills that Collins purchased were imitations of the

actual prescription drug and were made especially for undercover

drug operations.

Collins initially agreed to work with police narcotics

investigators as an informant, but after he stopped doing so,

Livingston obtained two direct indictments against Collins. In

the first indictment, a grand jury charged that Collins "did

manufacture, sell, give, distribute or possess with the intent

to manufacture, sell, give, or distribute, a controlled

substance listed in Schedule I or Schedule II of the Drug

Control Act namely Oxycodone, in violation of" Code § 18.2-248. 1

In the second indictment, the grand jury charged that Collins

did manufacture, sell or distribute or
possess with intent to sell, give or
distribute any controlled substance,
imitation controlled substance or marijuana
while upon the property, including buildings
and grounds, of any public or private
elementary, secondary, or post secondary
school, or any public or private two-year or
four-year institution of higher education;
or upon public property or any property open

1
Oxycodone is the generic name for Oxycontin. See Startin
v. Commonwealth, 281 Va. 374, 376, 706 S.E.2d 873, 875 (2011).

2
 to public use within 1,000 feet of such
school property, in violation of [Code §
18.2-255.2].

Collins was tried on both indictments in a bench trial in

the Circuit Court of Prince George County. During the trial,

Livingston called a surveillance narcotics officer and the

undercover police officer as witnesses. The undercover police

officer testified that she sold Collins the 50 pills in exchange

for $500. The surveillance narcotics officer testified that

after Collins' arrest, Collins initially stated that he intended

to keep all 50 pills for himself but, in a subsequent interview,

admitted he could sell each pill for $80.

After Collins moved to dismiss both charges at the close of

the Commonwealth's evidence and again at the close of all the

evidence, the parties submitted to the trial court memoranda

addressing two issues: (1) whether Collins was guilty of

possession with the intent to distribute a controlled substance

when he was unaware that the item possessed was an imitation

controlled substance; and (2) whether the Commonwealth must

prove that Collins actually intended to distribute the imitation

controlled substance within 1,000 feet of public school

property.

As to the first issue, Livingston conceded in his

memorandum that it would be error for the trial court to find

Collins guilty of possession with the intent to distribute

3
Oxycodone because the pills he purchased were an imitation

controlled substance. Livingston, nevertheless, asserted that

factual impossibility was not a defense to an attempted crime.

Accordingly, Livingston moved to amend the indictment to the

charge of "attempt to possess with the intent to distribute a

controlled substance."

On the second issue, Livingston argued that the decision in

Toliver v. Commonwealth, 38 Va. App. 27, 561 S.E.2d 743 (2002),

was not controlling. He maintained that unlike the defendant in

Toliver, who was chased onto school property, Collins' purchase

of the imitation controlled substance and his subsequent

statement to a police officer that he could sell each pill for

approximately $80 established that, while within 1,000 feet of a

public school, Collins possessed the pills and had the intent to

distribute them.

The trial court denied Livingston's motion to amend the

first indictment, finding that the "motion [was] untimely" and

stating that if Livingston believed it appropriate, he could

"reindict" Collins. The trial court entered an order dismissing

the first and second indictments; however, in the order, the

court referred to the charge in the second indictment as

"possession with intent to distribute marijuana on or near

school property." Collins moved to amend that portion of the

order by substituting the phrase "imitation controlled

4
substance" for the word "marijuana." Because of concerns about

possible res judicata or collateral estoppel arguments that

Collins might raise, Livingston opposed the wording of Collins'

requested amendment but agreed to an amendment of the order

substituting the exact language of the offense as charged in the

indictment for the word "marijuana." The trial court agreed and

entered an order adopting Livingston's proposed wording.

Livingston subsequently presented a third indictment to a

grand jury, which charged that Collins "did manufacture, sell,

give, or distribute an imitation controlled substance which

imitates a schedule I or II controlled substance, namely,

Oxycodone, in violation of" Code § 18.2-248. Collins moved to

dismiss that indictment on the basis of, among other things,

double jeopardy. At the hearing on the motion, Livingston

referred to the charge in the third indictment as "possession

with intent to distribute" even though the indictment charged a

different offense, i.e., "manufacture, sell, give, or

distribute." Livingston never moved to amend the third

indictment to charge possession with the intent to distribute,

and the trial court granted Collins' motion to dismiss it.

Livingston challenged the trial court's judgment dismissing

the third indictment in an appeal to the Court of Appeals of

Virginia. The Court of Appeals dismissed the appeal because

Livingston failed to file a timely petition for appeal. In his

5
"brief" filed in the Court of Appeals, Livingston again

incorrectly referred to the charge in the third indictment as

"possession with intent to distribute" while at the same time

quoting the charge in the indictment verbatim.

Based on these facts, the VSB charged that Livingston was

"incompetent" in approving the issuance of the first indictment

and proceeding to trial because it charged possession with the

intent to distribute a controlled substance, Oxycodone, when

Livingston knew that the pills Collins purchased were an

imitation controlled substance. The indictment, according to

the VSB, was not supported by probable cause. In the Charge of

Misconduct, the VSB further alleged that Livingston was

"incompetent and obtained an indictment not supported by

probable cause when he obtained the third indictment" because

Livingston knew there was no evidence that Collins actually

manufactured or distributed the pills. Furthermore, the VSB

claimed that Livingston repeatedly and incorrectly referred to

the third indictment as charging possession with the intent to

distribute. The VSB also charged that Livingston was

"incompetent" when he filed the petition for appeal late.

Finally, the VSB alleged that Livingston "maintained an argument

that was frivolous in objecting to the substitution of the words

'imitation controlled substance'" for the word "'marijuana.'"

6
 In a hearing before the Third District Committee, Section I

of the VSB (District Committee), Livingston testified that he

has worked as a prosecutor since he obtained his license to

practice law in 2007. He acknowledged that he has handled

hundreds of cases involving drug-related offenses, including

charges of possession with the intent to distribute. With

regard to the first indictment, Livingston admitted that in

other instances involving a controlled buy of an imitation

controlled substance, he had always charged the suspect with

possession with the intent to distribute the imitation

controlled substance. Livingston explained that he previously

had not charged possession with the intent to distribute the

controlled substance because he "never had the person actually

handling it, examining it, being satisfied that it's Oxycodone,

and having such a good statement where he intends to sell it for

$80 a pill." Also, after researching the issue of factual and

legal impossibility, Livingston believed he had probable cause

to indict Collins for possession with the intent to distribute

the actual controlled substance. According to Livingston, he

did not realize he had misanalysed the law until he prepared the

post-trial memorandum. 2

2
Livingston testified that when he researched the issue of
factual and legal impossibility, he "glazed over the section"
and did not recognize that the cases he was reviewing involved
charges of attempted offenses, not completed crimes.

7
 As to the second indictment, Livingston admitted that he

had not read the decision in Toliver when he presented that

indictment to the grand jury. In fact, Livingston did not read

that opinion until after Collins' attorney discussed it in his

brief to the trial court. Livingston also acknowledged that he

could not prove where Collins intended to distribute the pills.

But, Livingston asserted, Code § 18.2-255.2 could be interpreted

to require only a showing that when Collins was within 1,000

feet of public school property, he possessed the pills with the

intent to distribute them, even if the distribution was to be

accomplished elsewhere. According to Livingston, he did not

have to prove that Collins intended to distribute the pills

within the prohibited school zone. 3

With regard to the third indictment, evidence presented at

the hearing showed that Livingston instructed his staff to

prepare an indictment for possession with the intent to

distribute an imitation controlled substance. Livingston

admitted that he never reviewed the indictment for accuracy

before presenting it to a grand jury and that he repeatedly

referred to the charge as possession with the intent to

3
Contrary to Livingston's argument, the Court of Appeals in
Toliver clearly held that Code § 18.2-255.2 "does not state that
it prohibits possession of a controlled substance while upon
school property, or within 1,000 feet thereof, with the intent
to sell, give or distribute the substance elsewhere." 38 Va.
App. at 32, 561 S.E.2d at 746.

8
distribute, even though the indictment charged a different

offense. Livingston claimed that he did not realize the mistake

until he received the Charge of Misconduct from the VSB.

At the conclusion of the hearing, the District Committee

found that Livingston violated Rules 1.1, 3.1, and 3.8(a) and

sanctioned him by imposing a public reprimand with terms. 4

Livingston appealed the District Committee's determination, in

accordance with Part 6, Section IV, Paragraph 13-17(A), to the

Disciplinary Board. After hearing argument from the parties and

reviewing the parties' briefs along with the record from the

District Committee hearing, the Disciplinary Board found that

"there is substantial evidence in the record upon which the

District Committee could reasonably have found as it did." The

Disciplinary Board thus affirmed the District Committee's

determination that Livingston violated Rules 1.1, 3.1, and

3.8(a) and imposed the same sanction. Pursuant to Part 6,

Section IV, Paragraph 13-26 of the Rules of this Court,

Livingston appeals the Disciplinary Board's Memorandum Order

dated October 5, 2012 and challenges the Disciplinary Board's

determination that substantial evidence exists in the record to

support the District Committee's findings.

4
The terms required Livingston to complete two hours of
Continuing Legal Education on the subject of ethics, in addition
to the two hours required annually, and to certify completion of
such hours to the VSB no later than December 9, 2012.

9
 II. ANALYSIS

A. Standard of Review

The VSB has the burden to prove by clear and convincing

evidence that an attorney violated the Rules of Professional

Conduct. Weatherbee v. Virginia State Bar, 279 Va. 303, 306,

689 S.E.2d 753, 754 (2010). In reviewing the Disciplinary

Board's decision, "we conduct an independent examination of the

entire record." Williams v. Virginia State Bar, 261 Va. 258,

264, 542 S.E.2d 385, 389 (2001); accord Northam v. Virginia

State Bar, 285 Va. 429, 435, 737 S.E.2d 905, 908 (2013). We

review the evidence and all reasonable inferences that may be

drawn from the evidence in the light most favorable to the VSB,

the prevailing party. El-Amin v. Virginia State Bar, 257 Va.

608, 612, 514 S.E.2d 163, 165 (1999). We give factual findings

substantial weight and view them as prima facie correct. Id.

The factual conclusions are not given the weight of a jury

verdict, but they "will be sustained unless it appears they are

not justified by a reasonable view of the evidence or are

contrary to law." Id. (internal quotation marks and citation

omitted).

B. Rule 1.1 - Competence

Rule 1.1 provides that a "lawyer shall provide competent

representation to a client. Competent representation requires

the legal knowledge, skill, thoroughness and preparation

10
reasonably necessary for the representation." To determine

"whether a lawyer employs the requisite knowledge and skill in a

particular matter, relevant factors include . . . the lawyer's

training and experience in the field in question, the

preparation and study the lawyer is able to give the matter and

whether it is feasible to refer the matter to, or associate or

consult with, a lawyer of established competence in the field in

question." Va. Sup. Ct. R., Part 6, § II, R. 1.1, cmt. 1. In

addition, "[c]ompetent handling of a particular matter includes

inquiry into and analysis of the factual and legal elements of

the problem, and use of methods and procedures meeting the

standards of competent practitioners. It also includes adequate

preparation." Id. at cmt. 5.

"Whether an attorney is subject to discipline for failing

to provide competent representation is a matter decided on a

case by case basis." Barrett v. Virginia State Bar, 272 Va.

260, 272, 634 S.E.2d 341, 347 (2006). For example, in Barrett,

we considered charges of misconduct that arose from an attorney's

failure to file or settle a personal injury lawsuit prior to the

expiration of the statute of limitations, filing a special plea

based on incorrect legal research, and delay in reading

responsive pleadings and withdrawing the special plea. Id. at

271, 634 S.E.2d at 347. The Court concluded that the attorney's

conduct, while negligent or in error, nevertheless did not

11
constitute clear and convincing evidence of incompetence under

Rule 1.1. Id. at 272, 634 S.E.2d at 347-48. We explained that

"negligence without more," or "incorrect legal research alone,"

or practicing law in a manner that is not the "preferred way"

did not support a finding of incompetent representation. Id.

However, in Green v. Virginia State Bar, 274 Va. 775, 652

S.E.2d 118 (2007), we affirmed a judgment holding that an

attorney violated Rule 1.1 when he filed an appeal in the wrong

court and did not advise his client that the appeal had been

dismissed, and when he failed to timely file another appeal and

again did not inform his client that the appeal had been

dismissed. Id. at 781-91, 652 S.E.2d at 120-26; see also Motley

v. Virginia State Bar, 260 Va. 251, 263-64, 536 S.E.2d 101, 106-

07 (2000) (imposing discipline for incompetence under former DR

6-101 when an attorney permitted his client to sign a promissory

note that did not reflect the parties' agreement and caused

consequences the attorney did not understand).

In this case, Livingston concedes that he made three

"mistakes" in his prosecution of Collins: (1) reaching an

incorrect legal conclusion about the law of factual

impossibility and thus erroneously charging Collins with

possession with the intent to distribute the actual controlled

substance; (2) obtaining the third indictment for distribution

of an imitation controlled substance rather than for possession

12
with the intent to distribute and failing to recognize that

mistake during the trial and on appeal; and (3) missing the

deadline for filing the petition for appeal in the Court of

Appeals. 5 Livingston argues, however, that while these mistakes

might constitute negligence, they do not rise to the level of

clear and convincing evidence of incompetent representation in

violation of Rule 1.1.

Based on our "independent examination of the entire

record," giving the District Committee's factual findings

"substantial weight and view[ing] them as prima facie correct,"

we find no error in the Disciplinary Board's order holding that

Livingston violated Rule 1.1. Williams, 261 Va. at 264, 542

S.E.2d at 389. During the prosecution of Collins, he failed to

provide the "thoroughness and preparation reasonably necessary

for the representation" of his client, the Commonwealth. Rule

1.1. Even if an attorney has the necessary legal knowledge and

skill, "thoroughness and preparation" require the "[c]ompetent

handling of a particular matter," which includes "inquiry into

and analysis of the factual and legal elements of the problem

and use of methods and procedures meeting the standards of

5
Livingston does not acknowledge any mistake with regard to
the second indictment charging possession with the intent to
distribute an imitation controlled substance within 1,000 feet
of public school property or his failure to read the decision in
Toliver until after Collins' attorney cited it to the trial
court.

13
competent practitioners." Va. Sup. Ct. R., Part 6, § II, R.

1.1, cmt. 5 (emphasis added).

Livingston obtained three indictments against Collins.

Each was based on factual and/or legal errors due not to mere

negligence, but to his failure to analyze the evidence and the

elements of the charges he brought against Collins. And,

without checking the accuracy of the charge in the third

indictment, which contained the wrong criminal offense, he

presented the indictment to a grand jury and pursued it in the

trial court and also on appeal when he filed the untimely

petition for appeal. It is not necessary to determine whether

any one of these acts of misconduct alone would violate Rule

1.1. In this case, viewing the record in its entirety, there is

clear and convincing evidence that Livingston failed to provide

competent representation to his client in the prosecution of

Collins.

C. Rule 3.1 - Meritorious Claims and Contentions

In relevant part, Rule 3.1 states that "[a] lawyer shall

not bring or defend a proceeding, or assert or controvert an

issue therein, unless there is a basis for doing so that is not

frivolous, which includes a good faith argument for an

extension, modification or reversal of existing law." We have

defined the term "frivolous" as "[o]f little weight or

importance, having no basis in law or fact: light, slight, sham,

14
irrelevant, superficial." Weatherbee, 279 Va. at 309, 689

S.E.2d at 756 (internal quotation marks and citation omitted);

see also Black's Law Dictionary 739 (9th ed. 2009) (defining the

term "frivolous" as "[l]acking a legal basis or legal merit; not

serious; not reasonably purposeful").

The Charge of Misconduct alleged that Livingston

"maintained an argument that was frivolous in objecting to the

substitution of the words 'imitation controlled substance' for

'marijuana,'" because "he anticipated that [Collins] would then

argue to dismiss the third indictment due to collateral estoppel

and double jeopardy." 6 However, the record shows that Livingston

6
The VSB also argues that Livingston violated Rule 3.1 by
obtaining three indictments against Collins that had no basis in
law or fact. However, the VSB did not make that argument at the
District Committee hearing. Not until questioning by members of
the Disciplinary Board did the VSB take the position that it was
not relying solely on Livingston's objection to the proposed
amended wording of the dismissal order as the basis for the
charge that he violated Rule 3.1. Even in its brief to the
Disciplinary Board, the VSB did not argue that Livingston's
conduct in pursuing indictments that lacked probable cause
violated Rule 3.1. Although a proceeding to discipline an
attorney is an informal proceeding, an attorney nevertheless is
entitled to be informed of the nature of the charge against him.
See Moseley v. Virginia State Bar, 280 Va. 1, 3, 694 S.E.2d 586,
589 (2010); Virginia State Bar v. Gunter, 212 Va. 278, 284, 183
S.E.2d 713, 717 (1971). Given the language of the Charge of
Misconduct and the VSB's position at the District Committee
hearing when evidence was presented, we conclude that Livingston
was not fairly informed that the VSB was including his conduct
with regard to the three indictments as a basis for the charge
that he violated Rule 3.1. So, in determining whether there is
clear and convincing evidence that Livingston violated Rule 3.1,
we will consider only his response to the motion to amend the
order dismissing the second indictment.

15
did not oppose the amendment of the order dismissing the second

indictment. Instead, Livingston stated to the trial court that

"the Commonwealth doesn't oppose [the] motion to modify, the

Commonwealth opposes [the] motion to modify as written."

Moreover, the trial court adopted Livingston's position and

amended the order to include the language that Livingston urged.

Based on our independent review of the record, we do not

find clear and convincing evidence that Livingston violated Rule

3.1. The argument he asserted in response to Collins' motion to

amend the language of the order dismissing the second indictment

was not frivolous. Thus, the portion of Disciplinary Board's

order finding that Livingston violated Rule 3.1 was in error.

D. Rule 3.8 - Additional Responsibilities of a Prosecutor

Pursuant to Rule 3.8(a), a prosecutor may "not file or

maintain a charge that the prosecutor knows is not supported by

probable cause." A prosecutor is prohibited "from initiating or

maintaining a charge once he knows that the charge is not

supported by even probable cause." Va. Sup. Ct. R., Part 6, §

II, R. 3.8, cmt. 1a. The term "knows" "denotes actual knowledge

of the fact in question. A person's knowledge may be inferred

from circumstances." Va. Sup. Ct. R., Part 6, § II, Preamble.

Livingston argues that he did not initiate or maintain any

indictment against Collins with actual knowledge that it was not

16
supported by probable cause. He asserts, instead, that his

"negligence" led to the mistakes in the indictments.

As we have already discussed, Livingston’s erroneous and/or

complete lack of legal research along with his failure to

examine the evidence in conjunction with the elements of the

respective offenses resulted in his belief, albeit erroneous,

that he had probable cause to initiate and maintain the first

and second indictments. After he ultimately realized that he

could not charge Collins with possession with the intent to

distribute the actual controlled substance, he moved to amend

the first indictment to the charge of "attempt to possess with

the intent to distribute a controlled substance." Livingston

proceeded with the second indictment without reading the

decision in Toliver. When he did read it, Livingston,

nevertheless, surmised that Toliver could be distinguished on

its facts, leading to his erroneous belief that he did not need

to prove Collins intended to distribute the pills within the

prohibited school zone. While this evidence supports the

determination that Livingston was "incompetent" under Rule 1.1,

it does not constitute clear and convincing evidence that

Livingston violated Rule 3.8(a). In other words, Livingston’s

incompetent representation of his client in pursuing the first

and second indictments actually demonstrates that he did not

17
initiate and maintain those indictments with actual knowledge

that they were not supported by probable cause.

With regard to the third indictment, evidence introduced at

the District Committee hearing established that Livingston

instructed his staff to prepare an indictment charging the

correct offense, possession with the intent to distribute an

imitation controlled substance. Livingston admitted that he

never reviewed the indictment for accuracy before presenting it

to a grand jury. Accordingly, the District Committee determined

that Livingston "did not read the indictment carefully before

submitting it to the grand jury" and "did not realize the

indictment did not contain the language 'possession with intent

to distribute' until a few weeks before the District Committee

hearing." Viewing these factual findings as prima facie

correct, we conclude that they are "justified by a reasonable

view of the evidence" and are not "contrary to law," meaning

Livingston did not initiate or maintain the third indictment

with actual knowledge that it was not supported by probable

cause. El-Amin, 257 Va. at 612, 514 S.E.2d at 165 (internal

quotation marks and citation omitted).

But, we must point out that "[a]n indictment is a written

accusation of crime, prepared by the attorney for the

Commonwealth." Code § 19.2-216 (emphasis added). Livingston

quoted the charge in the third indictment verbatim in his brief

18
to the Court of Appeals, i.e., that Collins did "manufacture,

sell, give, or distribute an imitation controlled substance

. . . in violation" of Code § 18.2-248. And, he signed that

brief as the attorney of record for the Commonwealth. See Code

§ 8.01-271.1. His signature constituted "a certificate" that he

had read the brief, and having done so, he then should have

realized that the third indictment contained the wrong charge.

Id. As with the first and second indictments, these

circumstances likewise support the determination that Livingston

did not provide competent representation to his client as

required by Rule 1.1. But, in light of the District Committee’s

factual findings, we cannot infer from these circumstances

Livingston’s actual knowledge that the third indictment lacked

probable cause to support it. See Va. Sup. Ct. R., Part 6, §

II, Preamble.

Thus, with regard to all three indictments, the record does

not contain clear and convincing evidence that Livingston

violated Rule 3.8(a). The portion of the Disciplinary Board’s

order finding a violation of this Rule was in error.

III. CONCLUSION

For these reasons, we will affirm the portion of the

Disciplinary Board's order finding that Livingston violated Rule

1.1 and reverse the part of the order finding that he violated

Rules 3.1 and 3.8(a). Because the sanction imposed by the

19
Disciplinary Board was a single sanction for violation of all

three Rules, we will vacate the sanction and remand for further

consideration of an appropriate sanction for Livingston's

violation of Rule 1.1. See Barrett, 272 Va. at 273, 634 S.E.2d

at 348.

Affirmed in part,
reversed in part,
and remanded.

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