PRESENT: All the Justices
ERIC JOSEPH LIVINGSTON OPINION BY v. Record No. 122144 CHIEF JUSTICE CYNTHIA D. KINSER June 6, 2013 VIRGINIA STATE BAR
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, during his prosecution of James Collins on drug-related
offenses.
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" Code § 18.2-248. 1
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
1 Oxycodone is the generic name for Oxycontin. See Startin v. Commonwealth, 281 Va. 374, 376, 706 S.E.2d 873, 875 (2011).
2 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
3 Oxycodone because the pills he purchased were an imitation
controlled substance. Livingston, nevertheless, asserted that
factual impossibility was not a defense to an attempted crime.
Accordingly, Livingston moved to amend the indictment to the
charge of "attempt to possess with the intent to distribute a
controlled substance."
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
4 substance" for the word "marijuana." Because of concerns about
possible res judicata or collateral estoppel arguments that
Collins might raise, Livingston opposed the wording of Collins'
requested amendment but agreed to an amendment of the order
substituting the exact language of the offense as charged in the
indictment for the word "marijuana." The trial court agreed and
entered an order adopting Livingston's proposed wording.
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" Code § 18.2-248. Collins moved to
dismiss that indictment on the basis of, among other things,
double jeopardy. At the hearing on the motion, Livingston
referred to the charge in the third indictment as "possession
with intent to distribute" even though the indictment charged a
different offense, i.e., "manufacture, sell, give, or
distribute." Livingston never moved to amend the third
indictment to charge possession with the intent to distribute,
and the trial court granted Collins' motion to dismiss it.
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
5 "brief" filed in the Court of Appeals, Livingston again
incorrectly referred to the charge in the third indictment as
"possession with intent to distribute" while at the same time
quoting the charge in the indictment verbatim.
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.'"
6 In a hearing before the Third District Committee, Section I
of the VSB (District Committee), Livingston testified that he
has worked as a prosecutor since he obtained his license to
practice law in 2007. He acknowledged that he has handled
hundreds of cases involving drug-related offenses, including
charges of possession with the intent to distribute. With
regard to the first indictment, Livingston admitted that in
other instances involving a controlled buy of an imitation
controlled substance, he had always charged the suspect with
possession with the intent to distribute the imitation
controlled substance. Livingston explained that he previously
had not charged possession with the intent to distribute the
controlled substance because he "never had the person actually
handling it, examining it, being satisfied that it's Oxycodone,
and having such a good statement where he intends to sell it for
$80 a pill." Also, after researching the issue of factual and
legal impossibility, Livingston believed he had probable cause
to indict Collins for possession with the intent to distribute
the actual controlled substance. According to Livingston, he
did not realize he had misanalysed the law until he prepared the
post-trial memorandum. 2
2 Livingston testified that when he researched the issue of factual and legal impossibility, he "glazed over the section" and did not recognize that the cases he was reviewing involved charges of attempted offenses, not completed crimes.
7 As to the second indictment, Livingston admitted that he
had not read the decision in Toliver when he presented that
indictment to the grand jury. In fact, Livingston did not read
that opinion until after Collins' attorney discussed it in his
brief to the trial court. Livingston also acknowledged that he
could not prove where Collins intended to distribute the pills.
But, Livingston asserted, Code § 18.2-255.2 could be interpreted
to require only a showing that when Collins was within 1,000
feet of public school property, he possessed the pills with the
intent to distribute them, even if the distribution was to be
accomplished elsewhere. According to Livingston, he did not
have to prove that Collins intended to distribute the pills
within the prohibited school zone. 3
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
3 Contrary to Livingston's argument, the Court of Appeals in Toliver clearly held that Code § 18.2-255.2 "does not state that it prohibits possession of a controlled substance while upon school property, or within 1,000 feet thereof, with the intent to sell, give or distribute the substance elsewhere." 38 Va. App. at 32, 561 S.E.2d at 746.
8 distribute, even though the indictment charged a different
offense. Livingston claimed that he did not realize the mistake
until he received the Charge of Misconduct from the VSB.
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.
4 The terms required Livingston to complete two hours of Continuing Legal Education on the subject of ethics, in addition to the two hours required annually, and to certify completion of such hours to the VSB no later than December 9, 2012.
9 II. ANALYSIS
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
10 reasonably necessary for the representation." To determine
"whether a lawyer employs the requisite knowledge and skill in a
particular matter, relevant factors include . . . the lawyer's
training and experience in the field in question, the
preparation and study the lawyer is able to give the matter and
whether it is feasible to refer the matter to, or associate or
consult with, a lawyer of established competence in the field in
question." Va. Sup. Ct. R., Part 6, § II, R. 1.1, cmt. 1. In
addition, "[c]ompetent handling of a particular matter includes
inquiry into and analysis of the factual and legal elements of
the problem, and use of methods and procedures meeting the
standards of competent practitioners. It also includes adequate
preparation." Id. at cmt. 5.
"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
11 constitute clear and convincing evidence of incompetence under
Rule 1.1. Id. at 272, 634 S.E.2d at 347-48. We explained that
"negligence without more," or "incorrect legal research alone,"
or practicing law in a manner that is not the "preferred way"
did not support a finding of incompetent representation. Id.
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
12 with the intent to distribute and failing to recognize that
mistake during the trial and on appeal; and (3) missing the
deadline for filing the petition for appeal in the Court of
Appeals. 5 Livingston argues, however, that while these mistakes
might constitute negligence, they do not rise to the level of
clear and convincing evidence of incompetent representation in
violation of Rule 1.1.
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
5 Livingston does not acknowledge any mistake with regard to the second indictment charging possession with the intent to distribute an imitation controlled substance within 1,000 feet of public school property or his failure to read the decision in Toliver until after Collins' attorney cited it to the trial court.
13 competent practitioners." Va. Sup. Ct. R., Part 6, § II, R.
1.1, cmt. 5 (emphasis added).
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,
14 irrelevant, superficial." Weatherbee, 279 Va. at 309, 689
S.E.2d at 756 (internal quotation marks and citation omitted);
see also Black's Law Dictionary 739 (9th ed. 2009) (defining the
term "frivolous" as "[l]acking a legal basis or legal merit; not
serious; not reasonably purposeful").
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
6 The VSB also argues that Livingston violated Rule 3.1 by obtaining three indictments against Collins that had no basis in law or fact. However, the VSB did not make that argument at the District Committee hearing. Not until questioning by members of the Disciplinary Board did the VSB take the position that it was not relying solely on Livingston's objection to the proposed amended wording of the dismissal order as the basis for the charge that he violated Rule 3.1. Even in its brief to the Disciplinary Board, the VSB did not argue that Livingston's conduct in pursuing indictments that lacked probable cause violated Rule 3.1. Although a proceeding to discipline an attorney is an informal proceeding, an attorney nevertheless is entitled to be informed of the nature of the charge against him. See Moseley v. Virginia State Bar, 280 Va. 1, 3, 694 S.E.2d 586, 589 (2010); Virginia State Bar v. Gunter, 212 Va. 278, 284, 183 S.E.2d 713, 717 (1971). Given the language of the Charge of Misconduct and the VSB's position at the District Committee hearing when evidence was presented, we conclude that Livingston was not fairly informed that the VSB was including his conduct with regard to the three indictments as a basis for the charge that he violated Rule 3.1. So, in determining whether there is clear and convincing evidence that Livingston violated Rule 3.1, we will consider only his response to the motion to amend the order dismissing the second indictment.
15 did not oppose the amendment of the order dismissing the second
indictment. Instead, Livingston stated to the trial court that
"the Commonwealth doesn't oppose [the] motion to modify, the
Commonwealth opposes [the] motion to modify as written."
Moreover, the trial court adopted Livingston's position and
amended the order to include the language that Livingston urged.
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
16 supported by probable cause. He asserts, instead, that his
"negligence" led to the mistakes in the indictments.
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
17 initiate and maintain those indictments with actual knowledge
that they were not supported by probable cause.
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." Code § 19.2-216 (emphasis added). Livingston
quoted the charge in the third indictment verbatim in his brief
18 to the Court of Appeals, i.e., that Collins did "manufacture,
sell, give, or distribute an imitation controlled substance
. . . in violation" of Code § 18.2-248. And, he signed that
brief as the attorney of record for the Commonwealth. See Code
§ 8.01-271.1. His signature constituted "a certificate" that he
had read the brief, and having done so, he then should have
realized that the third indictment contained the wrong charge.
Id. As with the first and second indictments, these
circumstances likewise support the determination that Livingston
did not provide competent representation to his client as
required by Rule 1.1. But, in light of the District Committee’s
factual findings, we cannot infer from these circumstances
Livingston’s actual knowledge that the third indictment lacked
probable cause to support it. See Va. Sup. Ct. R., Part 6, §
II, Preamble.
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
19 Disciplinary Board was a single sanction for violation of all
three Rules, we will vacate the sanction and remand for further
consideration of an appropriate sanction for Livingston's
violation of Rule 1.1. See Barrett, 272 Va. at 273, 634 S.E.2d
at 348.
Affirmed in part, reversed in part, and remanded.