Present: All the Justices
CURTIS TYRONE BROWN
v. Record No. 050315 OPINION BY JUSTICE ELIZABETH B. LACY
November 4, 2005
VIRGINIA STATE BAR
FROM THE VIRGINIA STATE BAR DISCIPLINARY BOARD
In this appeal of right, Curtis Tyrone Brown challenges
the jurisdiction and rulings of the Virginia State Bar
Disciplinary Board (Board) in a proceeding in which the Board
suspended Brown's license to practice law in this Commonwealth
for a period of one year. The dispositive issue is whether
Brown was entitled to a hearing before a three-judge panel
when the Virginia State Bar (Bar) stipulated that his demand
for such a panel was timely. Because we conclude that the Bar
submitted itself to the jurisdiction of the three-judge panel
when it stipulated that Brown's demand was timely, we will
reverse the decision of the Board and remand the case for
further proceedings before a three-judge panel.
FACTS AND PROCEEDINGS
On September 30, 2003, the First District Subcommittee of
the Virginia State Bar served Brown with a Subcommittee
Determination (Certification) alleging multiple violations of
the Virginia Rules of Professional Conduct. In response,
Brown mailed to the Virginia State Bar Disciplinary System
Clerk's Office his demand that proceedings before the Board be
terminated and that further proceedings be conducted before a
three-judge panel pursuant to Part Six, § IV, Para.
13(I)(1)(a)(1)(b) of the Rules of Court (2003).1 The Bar filed
an objection arguing that the demand was untimely because it
was not filed with the Clerk within 21 days after Brown
received the Certification as required by Para.
13(I)(1)(a)(1). The Board entered an order on January 9, 2004
setting a briefing schedule on the Bar's objection and
scheduling a telephone conference call to consider the matter.
In its response filed pursuant to that order, the Bar withdrew
its objection to Brown's demand for a three-judge panel and
stipulated that the demand was timely.
Brown responded to the January 9 scheduling order noting
that, "the Assistant Bar Counsel has withdrawn his objections
to the demand for a three-judge panel, therefore, there are no
issues in dispute." Brown again demanded a three-judge panel
and asserted that the Board did not have jurisdiction to
consider the matter. On January 22, 2004, the Board entered
an order stating: "The parties are hereby advised that [the
Bar's objection] will be considered at said hearing
1
Part Six, § IV, Para. 13 (I)(1)(a) of the Rules of Court
was amended in 2004 and 2005. Because the relevant
proceedings in this case began in 2003, we apply the rule as
it existed in 2003. Further references to subsections of Part
Six, § IV, Para. 13(I)(1)(a) of the Rules of Court (2003) will
be cited as "Para. 13(I)(1)(a)" along with the relevant
subsections.
2
notwithstanding Bar Counsel's retraction of the objection to
Respondent's demand that further proceedings be conducted
before a three-judge court . . . ."
The Board considered the matter by telephone conference
call on August 6, 2004 and ruled that the Bar may not waive
the 21 day requirement for filing the demand for a three-judge
panel because that requirement is jurisdictional. The Board
entered an order declaring Brown's demand untimely. Following
a hearing, the Board found that Brown violated the Virginia
Rules of Professional Conduct and suspended Brown's license
for one year. Brown timely appealed to this Court, and this
Court stayed suspension of his license pending appeal.
DISCUSSION
At the time Brown filed his demand for a three-judge
panel, Para. 13(I)(1)(a)(1) provided in relevant part:
After a Subcommittee or District Committee
certifies a matter to the Board, and the Respondent
has been served with the Certification, the
Respondent shall, within 21 days after service of
the Certification:
(a) file an answer that shall be conclusively
deemed to be a consent to the jurisdiction of the
Board; or
(b) file a demand that the proceedings before
the Board be terminated and that further proceedings
be conducted pursuant to Va. Code § 54.1-3935,
whereupon further proceedings before the Board shall
terminate, and Bar Counsel shall file the Complaint
required by Va. Code § 54.1-3935.
We have held that the requirements of this Rule, while
jurisdictional in nature, do not involve subject matter
3
jurisdiction. Fails v. Virginia State Bar, 265 Va. 3, 7, 574
S.E.2d 530, 532-33 (2003); Smolka v. Second Dist. Comm. of the
Virginia State Bar, 224 Va. 161, 165-66, 295 S.E.2d 267, 269
(1982). Both the Board and a three-judge panel have subject
matter jurisdiction to consider charges of a district
disciplinary committee. The issue in this case is which
entity acquired jurisdiction over the parties to the
proceeding.
When considering the appropriate forum for a bar
disciplinary proceeding, the respondent is analogous to a
plaintiff who may choose the court in which to file an action.
Under Para. 13(I)(1)(a)(1)(a), when a respondent files an
answer to a Certification, the answer is "conclusively deemed
to be a consent to the jurisdiction of the Board." Brown
never filed an answer to the Certification and, therefore, did
not invoke the jurisdiction of the Board. Compare Fails, 265
Va. at 7, 574 S.E.2d at 532-33. Rather, Brown sought to
invoke the jurisdiction of the three-judge panel.
The Bar, in a posture analogous to a defendant, may
object to the election made by the respondent based on defects
in the service of process. However, like a defendant who
objects to defects in the service of process but then enters a
general appearance, the Bar may waive those objections. See
Gilpin v. Joyce, 257 Va. 579, 581, 515 S.E.2d 124, 125 (1999)
4
(citing Nixon v. Rowland, 192 Va. 47, 50, 63 S.E.2d 757, 759
(1951)). In this proceeding, when the Bar withdrew its
objection to Brown's demand for a three-judge panel and
stipulated that the demand was timely filed, the Bar submitted
itself to the jurisdiction of the three-judge panel. At that
point the Board's jurisdiction over Brown and the Bar
terminated. Therefore, the Board did not have jurisdiction to
enter an order suspending Brown's license to practice law.
Accordingly, we will reverse the Board's order of
November 24, 2004 and remand the matter with directions to Bar
Counsel to "file the Complaint required by Va. Code § 54.1-
3935." Para. 13(I)(1)(a)(1)(b).2
Reversed and remanded.
2
Because of this disposition, we need not consider
Brown's remaining assignments of error.
5