Present: All the Justices
ALAN J. CILMAN
OPINION BY
v. Record No. 022458 JUSTICE LAWRENCE L. KOONTZ, JR.
June 6, 2003
VIRGINIA STATE BAR
FROM THE VIRGINIA STATE BAR DISCIPLINARY BOARD
This is an appeal by an attorney from an order of the
Virginia State Bar Disciplinary Board (the Board) suspending his
license to practice law in this Commonwealth for a period of two
years. The Board imposed the suspension upon determining that
the attorney had failed to comply with the provisions of former
Part 6 § IV Paragraph 13(K)(1) of the Rules of this Court.
Paragraph 13 was rewritten and amended effective September 18,
2002, and former subparagraph (K)(1) became designated as
subparagraph (M). Although the proceedings before the Board
were conducted prior to that date, the former and current
versions of the Rule are substantially the same for purposes of
conducting our analysis of this appeal. Accordingly, we will
refer to the current version of the Rule and, for brevity, cite
it as “Paragraph 13(M)” in this opinion. The dispositive issue
is whether an attorney subject to the sanctions permitted by
Paragraph 13(M) is entitled, in accordance with the provisions
of Code § 54.1-3915, to have that issue tried before a three-
judge court upon making a timely demand for such a trial.
BACKGROUND
In at least four proceedings prior to May 2002, Alan Jay
Cilman, a member of the Virginia State Bar (the Bar), was the
subject of a disciplinary complaint brought by the Bar. Three
of those proceedings were conducted before the Board. In each
instance, upon Cilman’s failure to comply with the initial terms
of the Board’s order, his license to practice law was
administratively suspended for varying periods of time. In a
fourth proceeding, Cilman made a timely demand that the
proceedings before the Board be terminated and that further
proceedings be conducted before a three-judge court in
accordance with the provisions of Code § 54.1-3935 (Chief
Justice of this Court to designate three circuit court judges to
hear and decide certain cases involving attorney misconduct).
The duly convened three-judge court ultimately imposed a one-
year suspension of Cilman’s license to practice law.
In each of these proceedings, Cilman was advised of the
requirements of Paragraph 13(M) that he give notice of his
suspension, by certified mail, to his current clients, and to
all opposing counsel and presiding judges in pending litigation.
Cilman was further advised that he was required to provide the
Bar with proof of compliance with these notice requirements and
he was provided a form on which to supply that proof. In
addition, Cilman was also advised that, under Paragraph 13(M),
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the Board would determine his compliance with these notice
requirements and that the Board could impose further sanctions
if Cilman failed to comply. 1
On May 2, 2002, the Bar issued a notice and motion to show
cause seeking the revocation or an additional suspension of
Cilman’s license to practice law on the ground that he had
failed to comply sufficiently with the notice requirements of
Paragraph 13(M) as directed in the prior proceedings in which
his license had been suspended. The motion to show cause was
served on Cilman by mail on May 17, 2002. On May 20, 2002,
Cilman responded to the motion to show cause by letter in which
he requested that the matter be heard before a three-judge
court.
By order entered May 24, 2002, the Board denied Cilman’s
request for a three-judge court, finding that Paragraph 13(M)
vested the Board with the sole authority to decide issues
concerning the adequacy of compliance with the notice
requirements of this paragraph. The matter proceeded to a
1
The order of the three-judge court provided that “pursuant
to the provisions of [Paragraph 13(M)]” Cilman was directed,
among other things, to comply with the notice requirements of
that paragraph. The Bar contends this language was sufficient
to direct that compliance issues would be reviewed by the Board.
We disagree. However, for the reasons subsequently addressed in
this opinion, the question whether the court intended for
compliance issues to be determined by the Board is not critical
to our analysis in this appeal.
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hearing before the Board on June 28, 2002. Cilman renewed his
request for a hearing before a three-judge court, and the Board
again denied his request.
Because the dispositive issue in this appeal does not
invoke our consideration of the merits of the Bar’s complaint
against Cilman, we need not recount the evidence that was
adduced during the June 28, 2002 proceedings. In brief, the
Board found the evidence sufficient to sustain the allegation
that Cilman had not complied sufficiently with the notice
requirements of Paragraph 13(M) as he was directed in any of the
prior proceedings in which his license had been suspended. By
order entered on August 9, 2002, the Board suspended Cilman’s
license to practice law in the Commonwealth for a further period
of two years. This appeal of right by Cilman followed.
DISCUSSION
On appeal, Cilman asserts fourteen assignments of error to
the proceeding against him before the Board. However, we need
not address each of these assignments of error in light of the
conclusion we reach regarding the issue whether the Board erred
in denying Cilman’s timely demand for a three-judge court to
decide the Bar’s complaint against him in this case.
The provisions of Code § 54.1-3915 are clear and
unambiguous:
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Notwithstanding the foregoing provisions of this
article, the Supreme Court shall not promulgate rules
or regulations prescribing a code of ethics governing
the professional conduct of attorneys which are
inconsistent with any statute; nor shall it promulgate
any rule or regulation or method of procedure which
eliminates the jurisdiction of the courts to deal with
the discipline of attorneys. In no case shall an
attorney who demands to be tried by a court of
competent jurisdiction for the violation of any rule
or regulation adopted under this article be tried in
any other manner.
(Emphasis added).
Similarly, the authority conferred on the Board by
Paragraph 13(M) to resolve issues arising under this Rule as
they relate to an attorney whose license to practice law has
been suspended or revoked is plain. In clear and unambiguous
terms, Paragraph 13(M), in pertinent part, provides that:
The Board shall decide all issues concerning the
adequacy of the notice and arrangements required
herein, and the Board may impose a sanction of
Revocation or additional Suspension for failure to
comply with the requirements of this subparagraph.
Cilman contends that the above quoted provision of
Paragraph 13(M) with regard to the authority of the Board is in
conflict with the provisions of Code § 54.1-3915, which he
further contends grants an attorney subject to discipline for a
violation of any rule the right to have the matter tried before
a three-judge court. The Bar responds that Paragraph 13(M) is
not in conflict with Code § 54.1-3915 because the enforcement
proceedings under Paragraph 13(M) are administrative in nature
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and are not separate disciplinary proceedings for the violation
of a rule. 2 Rather, according to the Bar, such proceedings are
merely the continuation of prior proceedings in which an
attorney has waived his right to demand a three-judge court or
has been ordered by a three-judge court to submit to the Board’s
authority for the administrative oversight of a disciplinary
sanction imposed by the court. Thus, the Bar concludes that an
attorney subject to further disciplinary proceedings for an
alleged failure to comply with the notice requirements of
Paragraph 13(M) is not entitled to have the matter determined by
a three-judge court. While we agree with the Bar that Paragraph
13(M) and Code § 54.1-3915 are not in conflict, we disagree with
the Bar’s conclusion that an attorney subject to discipline for
an alleged violation of Paragraph 13(M) is not entitled to have
the matter determined by a three-judge court.
Under well-established principles, rules promulgated by
this Court under statutory authority are to be construed in a
manner consistent and harmonious with that authority. When a
statute and a rule of this Court address the same or a related
subject matter, the proper construction of the rule “avoids any
conflict between rule and statute and permits the two to work
2
In the present case, the proceeding before the Board was
given its own docket number. During oral argument of this
appeal, counsel for the Bar was unable to offer an explanation
for why this was done.
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alongside each other in . . . a harmonious manner.” Clark v.
Butler Aviation, 238 Va. 506, 512, 385 S.E.2d 847, 850 (1989).
Accordingly, we will construe Paragraph 13(M) in a manner
consistent with the requirement of Code § 54.1-3915 that we not
“promulgate any rule or regulation or method of procedure which
eliminates the jurisdiction of the courts to deal with the
discipline of attorneys.”
The sanctions of “Revocation or additional Suspension” of
an attorney’s license to practice law in the Commonwealth
permitted by Paragraph 13(M) are significant and obviously
intended to be additional means to discipline an attorney
determined to have failed to comply with the requirements of
this Rule. And Code § 54.1-3915 could not be more plain or
express in providing that “[i]n no case shall an attorney who
demands to be tried by a court of competent jurisdiction for the
violation of any rule . . . be tried in any other manner.”
Nothing within the provisions of Paragraph 13(M) purports to
“eliminate[] the jurisdiction of the courts to deal with the
discipline of attorneys” or to bar an attorney from having an
alleged violation of this Rule tried by a three-judge court upon
making a timely demand for such a proceeding. Rather, in proper
context, Paragraph 13(M) merely contemplates and directs that
the Board shall have the initial authority to decide issues of
compliance with this Rule’s notice requirements. However, when
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an attorney makes a timely demand for the matter to be tried by
a three-judge court, the proceedings before the Board shall
terminate, and the Bar shall proceed against the attorney in
such a court as provided in Code § 54.1-3935. See former Part 6
§ IV Paragraph 13(c)(6)(a)(ii)(currently, Part 6 § IV Paragraph
13(I)(1)(a)(1)(b)).
In short, it is the right of any attorney subject to
additional discipline for the alleged violation of Paragraph
13(M) to demand to have the case tried by a court of competent
jurisdiction, which removes any conflict between this Rule and
Code § 54.1-3915. When the demand is timely made, such demand
terminates the Board’s authority to continue the proceeding
before it. It is of no moment that the alleged violation of
this Rule arises from the attorney’s failure to comply with a
prior order of the Board or from a prior order of a three-judge
court. Accordingly, we hold that when Cilman made a timely
demand that his alleged violations of Paragraph 13(M) be tried
before a three-judge court, the Board’s authority in the matter
terminated and it had no authority to enter its order of August
9, 2002, which is the subject of this appeal.
CONCLUSION
For these reasons, we will reverse the order of the Board
and remand the case with directions that further proceedings be
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conducted in accord with the provisions of Part 6 § IV Paragraph
13(I)(1)(a)(1)(b) and Code § 54.1-3915.
Reversed and remanded.
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