Present: All the Justices
KENNETH HARRISON FAILS, II
OPINION BY
v. Record No. 021851 CHIEF JUSTICE HARRY L. CARRICO
January 10, 2003
VIRGINIA STATE BAR
FROM THE VIRGINIA STATE BAR DISCIPLINARY BOARD
This appeal is from an order of the Virginia State Bar
Disciplinary Board (the Disciplinary Board) revoking the license
of Kenneth Harrison Fails, II (Fails), to practice law in
Virginia. Disposition of the appeal involves the interaction
between Part 6, § IV, ¶ 13(C)(6)(a)(i) of the Rules of Court
(hereinafter, Rule 13(C)(6)) 1 and Code § 54.1-3915.
Rule 13(C)(6) provides that a respondent in a proceeding
before the Disciplinary Board shall be served with a Charge of
Misconduct and with notice of the date fixed for hearing. The
respondent may, within twenty-one days after such notice, (i)
"file his answer which shall be conclusively deemed to be a
consent to the jurisdiction of the Board," or (ii) "file a
demand that the proceeding before the Board be terminated and
that further proceedings be conducted [by a three-judge court]
pursuant to Article 6 of Chapter 39 of Title 54.1 of the Code of
1
Since the conclusion of the disciplinary proceedings below
on May 6, 2002, Part 6, § IV, ¶ 13 has been revised effective
September 18, 2002. Rule 13(C)(6) is now Rule
13(I)(1)(a)(1)(a). We will refer in this opinion to the version
of ¶ 13 in effect at the time of the proceedings below.
Virginia, whereupon further proceedings before the Board shall
be terminated and Bar Counsel shall file the complaint required
by § 54.1-3935 of the Code.” 2
Code § 54.1-3915 provides in pertinent part as follows:
[T]he Supreme Court shall not promulgate . . . any rule or
regulation or method of procedure which eliminates the
jurisdiction of the courts to deal with the discipline of
attorneys.[ 3 ] 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.
The record shows that by letter dated February 6, 2002, the
Virginia State Bar served notice upon Fails of the certification
by a district committee of charges of misconduct against him.
The letter stated that, within twenty-one days of its date,
Fails could (a) file an original and eight copies of an answer,
or (b) demand that the charges against him be heard by a three-
judge court pursuant to Code § 54.1-3935. The letter also
advised that the matter was set for hearing before the
Disciplinary Board on March 22, 2002.
On March 6, 2002, Fails filed an answer to the
certification, and on March 12, 2002, he moved for a continuance
2
The provision for a demand for a three-judge court is now
found in Rule 13(I)(1)(a)(1)(b).
3
Paragraph 13 itself recognizes this limitation. Rule
13(K)(6) provides that "[n]othing contained in this Rule 13
shall be so interpreted as to eliminate the jurisdiction of the
courts of this Commonwealth to deal with the discipline of
attorneys-at-law as provided by law." This provision in
slightly different language is now found in Rule 13(B)(1)(a).
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of the hearing scheduled for March 22, 2002, in order to retain
counsel. After a pre-hearing conference call involving Fails,
the chair of the Disciplinary Board, and the assistant bar
counsel, an order was entered by the Disciplinary Board on March
13, 2002, denying the motion for a continuance.
Fails then on the same date demanded that he be tried by a
three-judge court and that the proceeding before the
Disciplinary Board be suspended. Following a telephone
conference call again involving Fails, the chair of the
Disciplinary Board, and the assistant bar counsel, an order was
entered by the Disciplinary Board on March 19, 2002, denying
Fails' demand as untimely because the demand was made past the
twenty-one day limitation of Rule 13(C)(6).
On March 22, 2002, Fails appeared with counsel at the
hearing before the Disciplinary Board and renewed his demand for
a trial before a three-judge court. When the Disciplinary Board
refused the demand, Fails and his counsel excused themselves
from the remainder of the proceedings. The Disciplinary Board
heard the evidence, found Fails guilty of misconduct, and
revoked his license to practice law in Virginia. Fails appeals
as a matter of right from the Disciplinary Board's final order.
Fails argues that when he demanded a trial before a three-
judge court, the Disciplinary Board lost subject matter
jurisdiction to hear the certification of charges against him.
3
Fails recognizes the authority of this Court under Code § 54.1-
3909 to prescribe "a code of ethics governing the professional
conduct of attorneys" and to prescribe "procedures for
disciplining, suspending, and disbarring attorneys." Fails
says, however, that the General Assembly limited this authority
by providing in Code § 54.1-3915 that this Court could devise no
procedure that eliminates the jurisdiction of the courts to deal
with attorney discipline or that requires an attorney to be
tried in any forum other than a three-judge court after a demand
therefor. Fails states that an interpretation of Rule 13(C)(6)
that would require an attorney to elect trial by a three-judge
court within twenty-one days of service of notice of misconduct
would conflict with Code § 54.1-3915 in that it would eliminate
the jurisdiction of the courts to deal with the discipline of
attorneys and force attorneys to be tried by a forum other than
a three-judge court.
Fails maintains that Code § 54.1-3915 neither provides any
time or procedural constraints upon an attorney's demand to be
tried by a three-judge court nor permits this Court to place
constraints upon such a demand. Therefore, Fails says, Rule
13(C)(6) is void and the Disciplinary Board's order of
revocation is void as well.
Finally, Fails insists that he did not waive his right to a
three-judge trial by filing an answer with the clerk of the
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Disciplinary System. Fails says the provision of Rule 13(C)(6)
that the filing of an answer "shall be conclusively deemed to be
a consent to the jurisdiction of the Board" is "in opposition to
the statutory mandate that an attorney who demands to be tried
for disciplinary charges before a court of competent
jurisdiction shall be tried before no other forum."
We disagree with Fails. On the jurisdictional question, as
the State Bar asserts and Fails acknowledges, we have treated
Rule 13(C)(6) "as a limit or restriction only on 'territorial'
jurisdiction or venue and not on subject matter jurisdiction."
See Smolka v. Second District Committee of the Virginia State
Bar, 224 Va. 161, 165-66, 295 S.E.2d 267, 269 (1982); see also
Stith v. Virginia State Bar, 233 Va. 222, 224, 355 S.E.2d 310,
311-12 (1987). Fails has not convinced us that we should treat
the Rule differently here, and we reject his argument that when
he demanded trial before a three-judge court, the Disciplinary
Board lost subject matter jurisdiction to hear the certification
of charges against him.
On the question whether Rule 13(C)(6) conflicts with Code
§ 54.1-3915, we find no conflict. The message of Rule 13(C)(6)
is clear: if an attorney does not wish to be tried by the
Disciplinary Board, he or she should not file an answer to a
certification of misconduct within twenty-one days. Instead,
the attorney should file within that time a demand for trial by
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a three-judge court. This simple procedural step neither
eliminates the jurisdiction of the courts to deal with the
discipline of attorneys nor denies the right of an attorney to
trial by a three-judge court.
In fact, Rule 13(C)(6) complements Code § 54.1-3915. The
Code section is silent on how and when an attorney must make a
demand for trial by a three-judge court, and nothing in the
statute forbids this Court from supplying the how and when.
Rule 13(C)(6) fills the void in the statute with a reasonable
requirement that puts the disciplinary authorities and the
attorney on notice that they need not prepare for a hearing
before the Disciplinary Board but before a three-judge court.
Yet the key to the courthouse all along is in the attorney's own
hands. He or she alone is free to make the choice whether to be
tried by the Disciplinary Board or a three-judge court.
On the question of waiver, we find nothing whatsoever in
Code § 54.1-3915 even suggesting that the right to be tried by a
three-judge court may not be waived. By way of analogy, a party
charged with crime may waive, among other constitutional rights,
the right to demand counsel or the right to demand trial by
jury. Surely, therefore, an attorney charged with misconduct
may waive the less-important statutory right to be tried by a
three-judge court. Indeed, in Wright v. Virginia State Bar, 233
Va. 491, 357 S.E.2d 518 (1987), we said that the ”failure [of an
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attorney charged with misconduct] to make a timely demand for a
three-judge court constitute[s] a conclusive waiver of the right
to subsequently file such demand." Id. at 497, 357 S.E.2d at
520 (internal quotation marks omitted). In Smolka, supra, after
interpreting the use of "jurisdiction" as establishing venue, we
said that it "is implicit in [Rule 13(C)(6)]" that,
"[o]rdinarily, venue is waived if the defendant does not make a
timely objection," 224 Va. at 165, 295 S.E.2d at 269, and that
"[b]ecause Smolka filed his answer, he waived his privilege to
assert lack of venue," id. at 166, 295 S.E.2d at 269. And in
Stith, supra, we said that "[v]enue is waived if timely
objection is not made." 233 Va. at 224, 355 S.E.2d at 312.
Fails neither mentions Wright nor attempts to distinguish
it. He says Smolka and Stith are distinguishable on the ground
that the attorneys in those cases failed to invoke their
statutory right to a three-judge court prior to the conclusion
of the hearings before the Disciplinary Board while he, Fails,
invoked his right to a three-judge court twice prior to the
commencement of his hearing before the Board. This is a
distinction without a difference. Fails was still late under
the twenty-one day limitation of Rule 13(C)(6) in filing his
demand for a three-judge court, so the difference between this
case and Smolka and Stith is in degree of tardiness only and not
in substance.
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For the reasons assigned, we will affirm the Disciplinary
Board's order revoking Fails' license to practice law in this
Commonwealth, effective March 22, 2002.
Affirmed.
8