ERIC JOSEPH LIVINGSTON v. VIRGINIA STATE BAR
Record No. 122144
Supreme Court of Virginia
June 6, 2013
CHIEF JUSTICE CYNTHIA D. KINSER
PRESENT: All the Justices; FROM THE VIRGINIA STATE BAR DISCIPLINARY BOARD
In this appeal of right by an attorney from an order of the Virginia State Bar Disciplinary Board (Disciplinary Board), we conduct an independent review of the record to determine whether there is clear and convincing evidence that Eric Joseph Livingston violated Rules 1.1, 3.1, and 3.8(a) of the Virginia Rules of Professional Conduct. Because we find such evidence only with regard to the violation of Rule 1.1, we will affirm in part and reverse in part the Disciplinary Board‘s order and remand for consideration of an appropriate sanction.
I. RELEVANT FACTS AND PROCEEDINGS
Pursuant to Part 6, Section IV, Paragraph 13-16(A) of the Rules of this Court, the Virginia State Bar (VSB) served Livingston with a Charge of Misconduct, alleging that he violated Rule 1.1 requiring competent representation, Rule 3.1 regarding assertion of frivolous claims or contentions, and Rule 3.8(a) addressing additional responsibilities of a prosecutor. The Charge of Misconduct related to Livingston‘s conduct, as an Assistant Commonwealth‘s Attorney in Prince George County,
Collins was arrested after he purchased 50 pills of what he believed were 80 mg Oxycontin from an undercover police officer at a park within 1,000 feet of a public school in Prince George County. The pills that Collins purchased were imitations of the actual prescription drug and were made especially for undercover drug operations.
Collins initially agreed to work with police narcotics investigators as an informant, but after he stopped doing so, Livingston obtained two direct indictments against Collins. In the first indictment, a grand jury charged that Collins “did manufacture, sell, give, distribute or possess with the intent to manufacture, sell, give, or distribute, a controlled substance listed in Schedule I or Schedule II of the Drug Control Act namely Oxycodone, in violation of”
In the second indictment, the grand jury charged that Collins
did manufacture, sell or distribute or possess with intent to sell, give or distribute any controlled substance, imitation controlled substance or marijuana while upon the property, including buildings and grounds, of any public or private elementary, secondary, or post secondary school, or any public or private two-year or four-year institution of higher education; or upon public property or any property open
to public use within 1,000 feet of such school property, in violation of [ Code § 18.2-255.2 ].
Collins was tried on both indictments in a bench trial in the Circuit Court of Prince George County. During the trial, Livingston called a surveillance narcotics officer and the undercover police officer as witnesses. The undercover police officer testified that she sold Collins the 50 pills in exchange for $500. The surveillance narcotics officer testified that after Collins’ arrest, Collins initially stated that he intended to keep all 50 pills for himself but, in a subsequent interview, admitted he could sell each pill for $80.
After Collins moved to dismiss both charges at the close of the Commonwealth‘s evidence and again at the close of all the evidence, the parties submitted to the trial court memoranda addressing two issues: (1) whether Collins was guilty of possession with the intent to distribute a controlled substance when he was unaware that the item possessed was an imitation controlled substance; and (2) whether the Commonwealth must prove that Collins actually intended to distribute the imitation controlled substance within 1,000 feet of public school property.
As to the first issue, Livingston conceded in his memorandum that it would be error for the trial court to find Collins guilty of possession with the intent to distribute
On the second issue, Livingston argued that the decision in Toliver v. Commonwealth, 38 Va. App. 27, 561 S.E.2d 743 (2002), was not controlling. He maintained that unlike the defendant in Toliver, who was chased onto school property, Collins’ purchase of the imitation controlled substance and his subsequent statement to a police officer that he could sell each pill for approximately $80 established that, while within 1,000 feet of a public school, Collins possessed the pills and had the intent to distribute them.
The trial court denied Livingston‘s motion to amend the first indictment, finding that the “motion [was] untimely” and stating that if Livingston believed it appropriate, he could “reindict” Collins. The trial court entered an order dismissing the first and second indictments; however, in the order, the court referred to the charge in the second indictment as “possession with intent to distribute marijuana on or near school property.” Collins moved to amend that portion of the order by substituting the phrase “imitation controlled
Livingston subsequently presented a third indictment to a grand jury, which charged that Collins “did manufacture, sell, give, or distribute an imitation controlled substance which imitates a schedule I or II controlled substance, namely, Oxycodone, in violation of”
Livingston challenged the trial court‘s judgment dismissing the third indictment in an appeal to the Court of Appeals of Virginia. The Court of Appeals dismissed the appeal because Livingston failed to file a timely petition for appeal. In his
Based on these facts, the VSB charged that Livingston was “incompetent” in approving the issuance of the first indictment and proceeding to trial because it charged possession with the intent to distribute a controlled substance, Oxycodone, when Livingston knew that the pills Collins purchased were an imitation controlled substance. The indictment, according to the VSB, was not supported by probable cause. In the Charge of Misconduct, the VSB further alleged that Livingston was “incompetent and obtained an indictment not supported by probable cause when he obtained the third indictment” because Livingston knew there was no evidence that Collins actually manufactured or distributed the pills. Furthermore, the VSB claimed that Livingston repeatedly and incorrectly referred to the third indictment as charging possession with the intent to distribute. The VSB also charged that Livingston was “incompetent” when he filed the petition for appeal late. Finally, the VSB alleged that Livingston “maintained an argument that was frivolous in objecting to the substitution of the words ‘imitation controlled substance‘” for the word “‘marijuana.‘”
With regard to the third indictment, evidence presented at the hearing showed that Livingston instructed his staff to prepare an indictment for possession with the intent to distribute an imitation controlled substance. Livingston admitted that he never reviewed the indictment for accuracy before presenting it to a grand jury and that he repeatedly referred to the charge as possession with the intent to
At the conclusion of the hearing, the District Committee found that Livingston violated Rules 1.1, 3.1, and 3.8(a) and sanctioned him by imposing a public reprimand with terms.4 Livingston appealed the District Committee‘s determination, in accordance with Part 6, Section IV, Paragraph 13-17(A), to the Disciplinary Board. After hearing argument from the parties and reviewing the parties’ briefs along with the record from the District Committee hearing, the Disciplinary Board found that “there is substantial evidence in the record upon which the District Committee could reasonably have found as it did.” The Disciplinary Board thus affirmed the District Committee‘s determination that Livingston violated Rules 1.1, 3.1, and 3.8(a) and imposed the same sanction. Pursuant to Part 6, Section IV, Paragraph 13-26 of the Rules of this Court, Livingston appeals the Disciplinary Board‘s Memorandum Order dated October 5, 2012 and challenges the Disciplinary Board‘s determination that substantial evidence exists in the record to support the District Committee‘s findings.
A. Standard of Review
The VSB has the burden to prove by clear and convincing evidence that an attorney violated the Rules of Professional Conduct. Weatherbee v. Virginia State Bar, 279 Va. 303, 306, 689 S.E.2d 753, 754 (2010). In reviewing the Disciplinary Board‘s decision, “we conduct an independent examination of the entire record.” Williams v. Virginia State Bar, 261 Va. 258, 264, 542 S.E.2d 385, 389 (2001); accord Northam v. Virginia State Bar, 285 Va. 429, 435, 737 S.E.2d 905, 908 (2013). We review the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the VSB, the prevailing party. El-Amin v. Virginia State Bar, 257 Va. 608, 612, 514 S.E.2d 163, 165 (1999). We give factual findings substantial weight and view them as prima facie correct. Id. The factual conclusions are not given the weight of a jury verdict, but they “will be sustained unless it appears they are not justified by a reasonable view of the evidence or are contrary to law.” Id. (internal quotation marks and citation omitted).
B. Rule 1.1 - Competence
Rule 1.1 provides that a “lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation
“Whether an attorney is subject to discipline for failing to provide competent representation is a matter decided on a case by case basis.” Barrett v. Virginia State Bar, 272 Va. 260, 272, 634 S.E.2d 341, 347 (2006). For example, in Barrett, we considered charges of misconduct that arose from an attorney‘s failure to file or settle a personal injury lawsuit prior to the expiration of the statute of limitations, filing a special plea based on incorrect legal research, and delay in reading responsive pleadings and withdrawing the special plea. Id. at 271, 634 S.E.2d at 347. The Court concluded that the attorney‘s conduct, while negligent or in error, nevertheless did not
However, in Green v. Virginia State Bar, 274 Va. 775, 652 S.E.2d 118 (2007), we affirmed a judgment holding that an attorney violated Rule 1.1 when he filed an appeal in the wrong court and did not advise his client that the appeal had been dismissed, and when he failed to timely file another appeal and again did not inform his client that the appeal had been dismissed. Id. at 781-91, 652 S.E.2d at 120-26; see also Motley v. Virginia State Bar, 260 Va. 251, 263-64, 536 S.E.2d 101, 106-07 (2000) (imposing discipline for incompetence under former DR 6-101 when an attorney permitted his client to sign a promissory note that did not reflect the parties’ agreement and caused consequences the attorney did not understand).
In this case, Livingston concedes that he made three “mistakes” in his prosecution of Collins: (1) reaching an incorrect legal conclusion about the law of factual impossibility and thus erroneously charging Collins with possession with the intent to distribute the actual controlled substance; (2) obtaining the third indictment for distribution of an imitation controlled substance rather than for possession
Based on our “independent examination of the entire record,” giving the District Committee‘s factual findings “substantial weight and view[ing] them as prima facie correct,” we find no error in the Disciplinary Board‘s order holding that Livingston violated Rule 1.1. Williams, 261 Va. at 264, 542 S.E.2d at 389. During the prosecution of Collins, he failed to provide the “thoroughness and preparation reasonably necessary for the representation” of his client, the Commonwealth. Rule 1.1. Even if an attorney has the necessary legal knowledge and skill, “thoroughness and preparation” require the “[c]ompetent handling of a particular matter,” which includes “inquiry into and analysis of the factual and legal elements of the problem and use of methods and procedures meeting the standards of
Livingston obtained three indictments against Collins. Each was based on factual and/or legal errors due not to mere negligence, but to his failure to analyze the evidence and the elements of the charges he brought against Collins. And, without checking the accuracy of the charge in the third indictment, which contained the wrong criminal offense, he presented the indictment to a grand jury and pursued it in the trial court and also on appeal when he filed the untimely petition for appeal. It is not necessary to determine whether any one of these acts of misconduct alone would violate Rule 1.1. In this case, viewing the record in its entirety, there is clear and convincing evidence that Livingston failed to provide competent representation to his client in the prosecution of Collins.
C. Rule 3.1 - Meritorious Claims and Contentions
In relevant part, Rule 3.1 states that “[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” We have defined the term “frivolous” as “[o]f little weight or importance, having no basis in law or fact: light, slight, sham,
The Charge of Misconduct alleged that Livingston “maintained an argument that was frivolous in objecting to the substitution of the words ‘imitation controlled substance’ for ‘marijuana,‘” because “he anticipated that [Collins] would then argue to dismiss the third indictment due to collateral estoppel and double jeopardy.”6 However, the record shows that Livingston
Based on our independent review of the record, we do not find clear and convincing evidence that Livingston violated Rule 3.1. The argument he asserted in response to Collins’ motion to amend the language of the order dismissing the second indictment was not frivolous. Thus, the portion of Disciplinary Board‘s order finding that Livingston violated Rule 3.1 was in error.
D. Rule 3.8 - Additional Responsibilities of a Prosecutor
Pursuant to Rule 3.8(a), a prosecutor may “not file or maintain a charge that the prosecutor knows is not supported by probable cause.” A prosecutor is prohibited “from initiating or maintaining a charge once he knows that the charge is not supported by even probable cause.” Va. Sup. Ct. R., Part 6, § II, R. 3.8, cmt. 1a. The term “knows” “denotes actual knowledge of the fact in question. A person‘s knowledge may be inferred from circumstances.” Va. Sup. Ct. R., Part 6, § II, Preamble.
Livingston argues that he did not initiate or maintain any indictment against Collins with actual knowledge that it was not
As we have already discussed, Livingston‘s erroneous and/or complete lack of legal research along with his failure to examine the evidence in conjunction with the elements of the respective offenses resulted in his belief, albeit erroneous, that he had probable cause to initiate and maintain the first and second indictments. After he ultimately realized that he could not charge Collins with possession with the intent to distribute the actual controlled substance, he moved to amend the first indictment to the charge of “attempt to possess with the intent to distribute a controlled substance.” Livingston proceeded with the second indictment without reading the decision in Toliver. When he did read it, Livingston, nevertheless, surmised that Toliver could be distinguished on its facts, leading to his erroneous belief that he did not need to prove Collins intended to distribute the pills within the prohibited school zone. While this evidence supports the determination that Livingston was “incompetent” under Rule 1.1, it does not constitute clear and convincing evidence that Livingston violated Rule 3.8(a). In other words, Livingston‘s incompetent representation of his client in pursuing the first and second indictments actually demonstrates that he did not
With regard to the third indictment, evidence introduced at the District Committee hearing established that Livingston instructed his staff to prepare an indictment charging the correct offense, possession with the intent to distribute an imitation controlled substance. Livingston admitted that he never reviewed the indictment for accuracy before presenting it to a grand jury. Accordingly, the District Committee determined that Livingston “did not read the indictment carefully before submitting it to the grand jury” and “did not realize the indictment did not contain the language ‘possession with intent to distribute’ until a few weeks before the District Committee hearing.” Viewing these factual findings as prima facie correct, we conclude that they are “justified by a reasonable view of the evidence” and are not “contrary to law,” meaning Livingston did not initiate or maintain the third indictment with actual knowledge that it was not supported by probable cause. El-Amin, 257 Va. at 612, 514 S.E.2d at 165 (internal quotation marks and citation omitted).
But, we must point out that “[a]n indictment is a written accusation of crime, prepared by the attorney for the Commonwealth.”
Thus, with regard to all three indictments, the record does not contain clear and convincing evidence that Livingston violated Rule 3.8(a). The portion of the Disciplinary Board‘s order finding a violation of this Rule was in error.
III. CONCLUSION
For these reasons, we will affirm the portion of the Disciplinary Board‘s order finding that Livingston violated Rule 1.1 and reverse the part of the order finding that he violated Rules 3.1 and 3.8(a). Because the sanction imposed by the
Affirmed in part, reversed in part, and remanded.