Moseley v. Va. State Bar

• Citation: 694 S.E.2d 586
• Decision Date: 10 June 2010
• Docket Number: Record No. 092126.
• Parties: Jonathon Alden MOSELEY, Appellant,v.VIRGINIA STATE BAR, ex rel. SEVENTH DISTRICT COMMITTEE, Appellee.
• Court: Virginia Supreme Court

694 S.E.2d 586

Jonathon Alden MOSELEY, Appellant,v.VIRGINIA STATE BAR, ex rel. SEVENTH DISTRICT COMMITTEE, Appellee.

Record No. 092126.

Supreme Court of Virginia.

June 10, 2010.

COPYRIGHT MATERIAL OMITTED

Upon consideration of the record, briefs, and argument of counsel, the Court is of opinion there is no error in the memorandum order that is the subject of this appeal.

Jonathon Moseley represented Tracy E. Ammons in a breach of contract action against the Christian Coalition of America (CCA). The CCA argued that the proceedings were stayed by the operation of an arbitration clause in the employment contract. Moseley argued that the contract existed, but that his client did not have a copy; therefore, his client was not sure that there was an arbitration clause.

The circuit court held an evidentiary hearing to determine the contents of the employment contract as regards an agreement to arbitrate. On cross-examination, Ammons admitted that he had given a copy of the employment contract to Moseley and that the contract did contain an arbitration clause. The contract was produced and Moseley then made a motion for nonsuit, which was granted.^*

The circuit court sanctioned Moseley and Ammons because they proceeded with their decision to have an evidentiary hearing regarding the existence of an agreement to arbitrate, knowing that the alleged employment contract containing an arbitration clause existed. The circuit court also reprimanded Ammons and Moseley, who filed in excess of eighty pleadings and motions in the case, for using abusive discovery tactics and filing frivolous pleadings. The circuit court stated that Ammons and Moseley conducted the proceeding without any basis and with the goal “to specifically harm, deter, and harass the Defendant through vexatious litigation.” Moseley and Ammons were sanctioned and ordered to pay attorney's fees and costs.

After the evidentiary hearing, Roberta Combs, the president of the CCA, filed a complaint with the Virginia State Bar, alleging that Moseley had acted in an unprofessional manner by filing nearly 90 pleadings and also writing letters to the CCA that were unprofessional and intended to intimidate and harass the CCA.

Moseley also wrote a letter to the AAA, stating that the circuit court judge who had adjudicated the evidentiary hearing “was caught engaging in serious misconduct” and that the circuit court judge was the subject of an investigation by the Judicial Inquiry and Review Commission as a result of this misconduct. Additionally, Moseley sent an email to colleagues in which he stated that the monetary sanctions award entered by the circuit court judge was “an absurd decision from a whacko judge, whom I believe was bribed,” and that he believed that opposing counsel was demonically empowered.

After these and other incidents, Moseley's right to practice in the Circuit Court of Arlington County was revoked. Moseley appealed that revocation to this Court, where it was affirmed. In re: Moseley, 273 Va. 688, 643 S.E.2d 190 (2007). The circuit court also referred the issue to the Virginia State Bar and this Court “for consideration of reciprocal revocation of licensure.”

The Seventh District Committee of the Virginia State Bar filed a complaint against Moseley, after investigating the various allegations, and charged Moseley with violating Sections 1.7, 3.1, 3.3, 3.4, 3.7, 4.1, 8.2 and 8.4 of the Rules of Professional Conduct. Moseley requested a three-judge circuit court panel (the panel) pursuant to Code § 54.1-3935 and appeared before the panel. At the conclusion of the hearing, the panel found that Moseley had violated Rules 3.3(a)(1), 3.4(e), 3.4(j), 4.1(a), 8.2 and 8.4(a), (b), and (c). The panel suspended Moseley's license to practice law for six months. Moseley appeals.

Moseley contends that the Rule 8.2 violations were improperly based on private speech that should not have been a predicate for discipline under the Rules of Professional Conduct. He also argues that Rule 8.2 is void for vagueness because it does not distinguish between private attorney speech and public attorney speech. Moseley relies on Anthony v. Virginia State Bar, 270 Va. 601, 609, 621 S.E.2d 121, 126 (2005), for the proposition that a lawyer's right to free speech is limited only by the lawyer's obligation to abstain from public debate that will obstruct the administration of justice.

However, as we have previously stated, public statements by attorneys concerning the integrity of judges and judicial officers are not protected speech because they create a “ ‘substantial likelihood of material prejudice’ to the administration of justice.” Id. at 610, 621 S.E.2d at 126 (quoting Gentile v. State Bar of Nevada, 501 U.S. 1030, 1074-75, 111 S.Ct. 2720, 115 L.Ed.2d 888 (1991)). Moseley clearly made derogatory statements about the integrity of the judicial officer adjudicating his matters and those statements were made either with knowing falsity or with reckless disregard for their truth or falsity. Therefore we hold that Moseley's contentions that Rule 8.2 is void for vagueness and that his statements were not a proper predicate for discipline under that Rule are without merit.

Moseley also contends that his due process rights were violated. Moseley argues that the disciplinary proceedings are quasi-criminal; therefore, he asserts that the original complaint was not valid because it was not verified by an affidavit that included detailed allegations which could not be amended during the proceedings. Moseley also argues that the panel erred in failing to dismiss as invalid various allegations that never identified the precise conduct violating the rules.

We have previously stated that the proceeding to discipline an attorney is a civil proceeding. Norfolk & Portsmouth Bar Ass'n v. Drewry, 161 Va. 833, 837, 172 S.E. 282, 284 (1934). The primary purpose of such disciplinary proceedings is to protect the public, not punish the attorney. Virginia State Bar v. Gunter, 212 Va. 278, 284, 183 S.E.2d 713, 717 (1971). To that end, “it is only necessary that the attorney be informed of the nature of the charge preferred against him and be given an opportunity to answer.” Id. The record reflects that Moseley had adequate notice and opportunity to answer, as he was present for the proceedings and responded not only to the charges of misconduct pending against him, but disputed the underlying facts as well. Further, the Virginia State Bar complied with the statutory requirements of Code § 54.1-3935 by verifying the district committee complaint by affidavit. Therefore, we reject Moseley's contention that his due process rights were violated by the proceedings before ...