Last week, I testified before the Fairfax County Board of Supervisors at their public hearing concerning their wish list of State legislation they wish to see enacted by the General Assembly. I brought to their attention an ethical issue that needs to be addressed by legislation. Here is the written version of my testimony, edited for clarity:
The population of the Commonwealth of Virginia is well over 8 million people. There are 50,000 members of the Virginia State Bar. The General Assembly has 140 members and approximately 1/4 of them are members of the Virginia State Bar, and practicing attorneys. Virginia is one of only two States in which State Court judges are actually appointed and re-appointed by votes of members of the legislature, in Virginia's case, the General Assembly. A newspaper article published in 2016 found that approximately one dozen of the lawyer members of the General Assembly actually practice law attending hearings in our State Courts representing clients before judges they vote to appoint. In fact, on the law firm websites of two of our local State Senators, they tout their status as State Senators and describe the kinds of cases they handle which require appearances before those judges in State Courts. This doesn’t pass the ethical smell test - it constitutes a clear conflict of interest. As such, I have prepared a proposed amendment to Section 30-100 of the Virginia Code for members of the Board and General Assembly to consider.
Section 30-100 et seq. of the Virginia Code is the General Assembly Conflicts of Interest Act. I request that this section be amended to forbid any member of the General Assembly from appearing in any Virginia State Court as an attorney on behalf of a client before a judge appointed or re-appointed by votes of members of the General Assembly. My proposed amendment also would forbid any law firm employing any member of the General Assembly to permit any employed lawyer to appear in any Virginia State Court on behalf of a client before a judge appointed or re-appointed by vote of the General Assembly. This latter provision is included because a law firm should not be able to profit from attending Court hearings where its employed lawyer member of the General Assembly stands to profit from such activities, since this raises, at minimum, an appearance of a conflict of interest. Proposed penalties include referral to the Virginia State Bar for consideration of ethics proceedings. This isn’t a political issue. It’s an ethics issue. (End of testimony)
I've spoken to dozens of friends and colleagues about this issue, lawyers and non-lawyers. The verdict is unanimous — this conflict of interest is offensive and must not occur. As a practicing attorney, I don't want to enter a courtroom in the Circuit Court of Fairfax County with my client only to discover my opposing counsel is a member of the General Assembly who played a role in appointing our judge. My client would be at an automatic and inherent disadvantage. Our elected officials should be held to the highest standard of ethics — even an appearance of an ethical issue must be avoided. No one forces anyone to become a politician and become elected to the General Assembly. However, if someone takes that choice, they must adhere to the highest ethical standards. My proposed legislation should be enacted in the 2020 legislative session to prevent our General Assembly from being categorized as an old-time good old boys (and girls) network.
H. Jay Spiegel