Cummings v. Virginia State Bar, 850338

• Decision Date: 24 April 1987
• Docket Number: No. 850338,850338
• Citation: 233 Va. 363,355 S.E.2d 588
• Parties: Eric L. CUMMINGS v. VIRGINIA STATE BAR Record
• Court: Virginia Supreme Court

Page 588

355 S.E.2d 588

233 Va. 363

Eric L. CUMMINGS v. VIRGINIA STATE BAR

Record No. 850338.

Supreme Court of Virginia.

April 24, 1987.

Patrick M. McSweeney (David William Patton, McSweeney & Burtch, Richmond, on briefs), for appellant.

Guy W. Horsley, Jr., Senior Asst. Atty. Gen. (William G. Broaddus, Atty. Gen., Gregory E. Lucyk, Asst. Atty. Gen., on brief), for appellee.

Present: CARRICO, C.J., and COCHRAN, ^* POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ.

RUSSELL, Justice.

This appeal presents a question concerning the latitude permitted under the Rules of Court, Part 6, § IV, Para. 13(F), ^** to an attorney, disbarred or suspended from practice in another jurisdiction, to show cause by the presentation of evidence why like discipline should not be imposed in Virginia.

Eric L. Cummings (Cummings) was an attorney licensed to practice law in the District of Columbia and in Virginia. In 1981, one of his clients complained of an ethical violation in the District of Columbia. Counsel for the Bar in that jurisdiction conducted an investigation over a three-year period which involved several judicial proceedings related to discovery issues, but no formal complaint or petition was ever filed by the Bar of the District of Columbia against Cummings. In 1984, Cummings filed an affidavit with the District of Columbia Court of Appeals, consenting to disbarment. The affidavit contained the following language:

4. That affiant is aware that there is presently pending an investigation of an allegation that affiant is guilty of misconduct in violation of Disciplinary Law 9-103(A) of the Code of Professional Responsibility in that, as attorney for Tranne Trading Corporation and B & G Corporation, trading as Goldberg's Deli, he distributed some of the assets belonging to the clients for his own use in apparent violation of Disciplinary Rule 9-103(A).

5. That affiant acknowledges that the material facts upon which the said allegation is predicated are true.

6. That affiant submits this Affidavit of Consent to Disbarment because if this allegation is prosecuted in this jurisdiction, he does not believe that in light of the proceedings to date he will be able to successfully defend against it and he does not any longer have the resources to defend against such allegation.

The District of Columbia Court of Appeals entered an order on August 27, 1984, disbarring Cummings "on consent" in that jurisdiction. The order further provided: "it is ... ORDERED by the court sua sponte that paragraph 6 of the affidavit is stricken as superfluous and self-serving."

In November 1984, the Virginia State Bar Disciplinary Board (the Board) issued an order temporarily suspending Cummings' license to practice law in Virginia and directing him to show cause why his license should not be permanently revoked, pursuant to our Rule 13(F), because of the proceedings in the District of Columbia. Cummings filed an answer with the Board in which he denied that he had used his clients' funds without their knowledge and consent. His answer also asserted that "[a]ny discipline based upon the action of the District of Columbia Court of Appeals ... would be unwarranted and would result in a grave injustice" and "[t]he same conduct would not be the basis for the same or any discipline in the Commonwealth of Virginia."

The Board conducted a hearing in February 1985 at which Cummings sought to introduce evidence in support of his answer. The Board ruled that Cummings' answer failed to allege any grounds which would authorize the Board to impose any discipline other than that imposed in the District of Columbia, and accordingly refused to hear any evidence in support of the answer. The Board permitted Cummings to make a proffer of the excluded evidence through affidavits and exhibits. Cummings appeals a final order of disbarment entered March 20, 1985.

Cummings argues that his consent to disbarment in the District of Columbia is not conclusive because it did not constitute an admission of an ethical violation there. Cummings points to language in his affidavit which concedes only an "apparent violation." He also contends that the Board erred in ruling that his answer was insufficient under the rules and in refusing to receive evidence to support its allegations.

The Board contends that Cummings' answer was purely conclusory, and could have been supported by no evidence other than the District of Columbia record which was already before the Board. Thus, says the Board, it could determine as a matter of law from the record before it that the imposition of the same discipline was warranted.

Neither principles of collateral estoppel nor the full faith and credit clause of the Federal Constitution govern a domestic proceeding based upon a foreign disbarment. See Florida Bar v. Wilkes, 179 So.2d 193, 196 (Fla.1965), cert. denied, 390 U.S. 983, 88 S.Ct. 1104, 19 L.Ed.2d 1280 (1968); Kentucky Bar Association v. Signer, 533 S.W.2d 534, 536 (Ky.1976); In re Weiner, 530 S.W.2d 222, 224 (Mo.1975). Rather, such proceedings in Virginia are governed by the rules of this Court, which are designed to protect the public and to maintain the integrity of the Bar. See Blue v. Seventh District Committee, 220 Va. 1056, 1061, 265 S.E.2d 753, 756 (1980). To that end, the rule quoted above requires the Board to impose the same discipline as that imposed by the foreign jurisdiction unless the respondent attorney alleges, and carries the burden of proving, at least one...