Candid In Camera

A district committee of the Virginia State Bar Disciplinary Board accepted an agreed disposition and imposed a public reprimand without terms in connection with an attorney’s conduct in a criminal matter.

Respondent represents a defendant who, along with his co-accused, was charged with multiple counts of identity theft and obstruction of justice. The defendants allegedly committed offenses in both Greene and Orange Counties, so they were indicted in both jurisdictions. The matters were consolidated with Judge Dale B. Durrer presiding over all matters, but separate court files were maintained in the clerk’s offices of the respective counties.

Respondent had filed a discovery request; the prosecutor responded with an in camera submission to the court

Respondent…discovered DCA Fitzgerald’s in camera submission when she was reviewing the case file from the Orange County Clerk’s Office.

DCA Fitzgerald’s in camera submission was contained in a plain manila envelope that was sealed with tape. On the front of the envelope which was face-down in the court file was writing that included the case name, the docket number and the words: “Sealed Material For Court’s In Camera Review.” Respondent asserts that she did not see the front of the envelope prior to opening it and the envelope was not marked conspicuously as she was accustomed to.

Respondent opened the envelope notwithstanding the fact that it was sealed with tape and removed the documents contained in the envelope to review.

The document inside the sealed manila envelope was titled “Commonwealth’s Discovery Submission Under Seal” on the first page of the document.

Respondent reviewed the document and made a copy of the document, which she retained. Respondent had not previously received permission to open the sealed envelope or to review and copy the contents of the sealed envelope.

The parties stipulate that Respondent did not review the material in the file to gain unfair advantage in the matter and she did not hide her actions. Respondent asserts that she made a copy of the document because she believed that DCA Fitzgerald’s submission constituted improper ex parte communication with the court and filed a Motion to Disqualify the Orange County’s Commonwealth’s Attorney Office from further proceedings in the case and also filed a motion to unseal the documents.

It is noted, in mitigation, that Respondent has been in the active practice of law for more than 30 years with no prior disciplinary record.

The stipulated violation was Rule 3.4(d), which provides that a lawyer shall not

(d) Knowingly disobey or advise a client to disregard a standing rule or a ruling of a tribunal made in the course of a proceeding, but the lawyer may take steps, in good faith, to test the validity of such rule or ruling.

The stipulation suggests that it was not “knowing” misconduct.

After the conduct

Judge Durrer had previously reviewed the Commonwealth’s submission and although the Commonwealth’s submission was not fully responsive to his order, he did not reject the document or demand full compliance with his order. Judge Durrer subsequently recused himself for unrelated reasons and the successor judge unsealed the documents in question, but denied Respondent’s Motion To Disqualify the Orange County Commonwealth’s Attorney’s Office.

(Mike Frisch)