There Is No Subpart Five

The Virginia Supreme Court affirmed the findings of misconduct and sanction of a circuit court three judge panel

The trial judge…filed a complaint about Cofield’s conduct with the Virginia State Bar. The Bar investigated and charged Cofield with violations of Rules 1.1 and 3.3(a)(1) of the Rules of Professional Conduct. Cofield demanded that a three-judge circuit court panel conduct a hearing pursuant to Code § 54.1-3935.

At the conclusion of the misconduct phase of the hearing, the three-judge panel found that Cofield had violated Rule 3.3(a)(1), but not Rule 1.1. The panel explained in a memorandum order that it unanimously found under the clear and convincing evidentiary standard that the manner Respondent presented the language from the HHS website in her pleadings was intentional and constituted knowingly false statements of the content of 45 C.F.R. § 164.524(c)(4), in that she presented that language as a sequentially numbered subpart of the C.F.R. along with the four actual numbered subparts of the C.F.R. and cited to the C.F.R. but made no citation or reference to the HHS website—all with knowledge that the C.F.R. did not contain that language or a fifth subpart and that the HHS website was the source of that language—in violation of [Rule 3.3(a)(1)].

After hearing evidence and argument during the sanctions phase of the hearing, the panel unanimously determined that an admonition was the appropriate sanction for Cofield’s conduct.

We agree with the memorandum order of the three-judge panel and affirm. This order shall be published in the Virginia Reports and shall be certified to the Circuit Court of the City of Virginia Beach.

(Mike Frisch)