Livingston v. Virginia State Bar, 744 S.E.2d 220

Livinston, an Assistant Commonwealth's Attorney, prosecuted Collins on drug charges in Prince George County.
VSB charged Livingston with Rule 1.1 (competence), Rule 3.1 (meritorious claims), and Rule 3.8(a) (prosecutorial responsibilities).
Three indictments were pursued: (1) possession with intent to distribute actual Oxycodone; (2) possession with intent to distribute an imitation substance near a school under 18.2-255.2; (3) an imitation substance charge, later misrepresented as possession with intent to distribute.
Livingston admitted three “mistakes”: erroneous legal conclusion on the first indictment, pursuing the second indictment without Toliver awareness, and misnaming the third indictment.
District Committee found violations of Rules 1.1, 3.1, and 3.8(a) and imposed a public reprimand with terms; Disciplinary Board affirmed.
Court independently reviewed and affirmed Rule 1.1 violation, reversed Rules 3.1 and 3.8(a), and remanded for sanction consideration.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Livingston violated Rule 1.1 (competence).	VSB contends Livingston failed to provide competent representation.	Livingston argues negligence but not clear and convincing incompetence.	Rule 1.1 violated; clear and convincing evidence of incompetence.
Whether Livingston violated Rule 3.1 (meritorious claims).	VSB contends his frivolous objection to wording showed frivolous argument.	Livingston's position on amendment was not frivolous and not unsupported by law.	No clear and convincing evidence of Rule 3.1 violation.
Whether Livingston violated Rule 3.8(a) (probable cause).	VSB contends omissions and misstatements show lack of probable cause.	Livingston did not initiate or maintain indictments with actual knowledge of no probable cause; errors were due to incompetence.	No clear and convincing evidence of Rule 3.8(a) violation.
Scope of disciplinary sanctions given multiple Rule violations.			Remand for appropriate sanction on Rule 1.1 violation; sanction re-evaluation necessary.

Weatherbee v. Virginia State Bar, 279 Va. 303 (Va. 2010) (burden of proof in discipline; independent review standard)
Green v. Virginia State Bar, 274 Va. 775 (Va. 2007) (factors for Rule 1.1 incompetence)
Barrett v. Virginia State Bar, 272 Va. 260 (Va. 2006) (negligence alone not necessarily incompetence under Rule 1.1)
El-Amin v. Virginia State Bar, 257 Va. 608 (Va. 1999) (competence and thoroughness requirements)