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- Subject Index: Since 1995
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Developed and maintained by the Division of Legislative Automated Systems.
2005 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 2.2-1839, as it is effective and as it shall become effective, 54.1-3900.01, and 54.1-3936 of the Code of Virginia are amended and reenacted as follows:
§ 2.2-1839. (For expiration date -- See Editor's note) Risk management plans administered by the Department of the Treasury's Risk Management Division for political subdivisions, constitutional officers and others.
A. The Division shall establish one or more risk management plans specifying the terms and conditions for coverage, subject to the approval of the Governor, and which plans may be purchased insurance, self-insurance or a combination of self-insurance and purchased insurance to provide protection against liability imposed by law for damages and against incidental medical payments resulting from any claim made against any county, city or town; authority, board, or commission; sanitation, soil and water, planning or other district; public service corporation owned, operated or controlled by a locality or local government authority; constitutional officer; state court-appointed attorney; any attorney for any claim arising out of the provision of pro bono legal services for custody and visitation to an eligible indigent person under a program approved by the Supreme Court of Virginia or the Virginia State Bar; any receiver for an attorney's practice appointed under § 54.1-3900.01 or 54.1-3936; affiliate or foundation of a state department, agency or institution; any clinic that is organized in whole or primarily for the delivery of health care services without charge; any individual serving as a guardian or limited guardian as defined in § 37.1-134.6 for any consumer of a community services board or behavioral health authority or any patient or resident of a state facility operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services; or the officers, agents or employees of any of the foregoing for acts or omissions of any nature while in an authorized governmental or proprietary capacity and in the course and scope of employment or authorization.
For the purposes of this section, "delivery of health care services without charge" shall be deemed to include the delivery of dental, medical or other health services when a reasonable minimum fee is charged to cover administrative costs.
B. Participation in the risk management plan shall be voluntary and shall be approved by the participant's respective governing body or by the State Compensation Board in the case of constitutional officers, by the office of the Executive Secretary of the Virginia Supreme Court in the case of state court-appointed attorneys, including attorneys appointed to serve as receivers under § 54.1-3900.01 or 54.1-3936, or attorneys under Virginia Supreme Court or Virginia State Bar approved programs, by the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services for any individual serving as a guardian or limited guardian for any patient or resident of a state facility operated by such Department or by the executive director of a community services board or behavioral health authority for any individual serving as a guardian or limited guardian for a consumer of such board or authority, and by the Division. Upon such approval, the Division shall assume sole responsibility for plan management, compliance, or removal. The Virginia Supreme Court shall pay the cost for coverage of eligible persons performing services in approved programs of the Virginia Supreme Court or the Virginia State Bar. The Department of Mental Health, Mental Retardation and Substance Abuse Services shall be responsible for paying the cost of coverage for eligible persons performing services as a guardian or limited guardian for any patient or resident of a state facility operated by the Department. The applicable community services board or behavioral health authority shall be responsible for paying the cost of coverage for eligible persons performing services as a guardian or limited guardian for consumers of such board or authority.
C. The Division shall provide for the legal defense of participating entities and shall reserve the right to settle or defend claims presented under the plan. All prejudgment settlements shall be approved in advance by the Division.
D. The risk management plan established pursuant to this section shall provide for the establishment of a trust fund for the payment of claims covered under such plan. The funds shall be invested in the manner provided in § 2.2-1806 and interest shall be added to the fund as earned.
The trust fund shall also provide for payment of legal defense costs, actuarial costs, administrative costs, contractual costs and all other expenses related to the administration of such plan.
E. The Division shall, in its sole discretion, set the premium and administrative cost to be paid to it for providing a risk management plan established pursuant to this section. The premiums and administrative costs set by the Division shall be payable in the amounts at the time and in the manner that the Division in its sole discretion shall require. The premiums and administrative costs need not be uniform among participants, but shall be set so as to best ensure the financial stability of the plan.
§ 2.2-1839. (For effective date -- See Editor's note) Risk management plans administered by the Department of the Treasury's Risk Management Division for political subdivisions, constitutional officers, etc.
A. The Division shall establish one or more risk management plans specifying the terms and conditions for coverage, subject to the approval of the Governor, and which plans may be purchased insurance, self-insurance or a combination of self-insurance and purchased insurance to provide protection against liability imposed by law for damages and against incidental medical payments resulting from any claim made against any county, city or town; authority, board, or commission; sanitation, soil and water, planning or other district; public service corporation owned, operated or controlled by a locality or local government authority; constitutional officer; state court-appointed attorney; any attorney for any claim arising out of the provision of pro bono legal services for custody and visitation to an eligible indigent person under a program approved by the Supreme Court of Virginia or the Virginia State Bar; any receiver for an attorney's practice appointed under § 54.1-3900.01 or 54.1-3936; affiliate or foundation of a state department, agency or institution; any clinic that is organized in whole or primarily for the delivery of health care services without charge; any individual serving as a guardian or limited guardian as defined in § 37.1-134.6 for any consumer of a community services board or behavioral health authority or any patient or resident of a state facility operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services; any participant who satisfies the requirements of § 2.2-1839.1; or the officers, agents or employees of any of the foregoing for acts or omissions of any nature while in an authorized governmental or proprietary capacity and in the course and scope of employment or authorization.
For the purposes of this section, "delivery of health care services without charge" shall be deemed to include the delivery of dental, medical or other health services when a reasonable minimum fee is charged to cover administrative costs.
B. Participation in the risk management plans shall be voluntary and shall be approved by both the participant's respective governing body or by the State Compensation Board in the case of constitutional officers, by the office of the Executive Secretary of the Virginia Supreme Court in the case of state court-appointed attorneys, including attorneys appointed to serve as receivers under § 54.1-3900.01 or 54.1-3936, or attorneys under Virginia Supreme Court or Virginia State Bar approved programs, by the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Services for any individual serving as a guardian or limited guardian for any patient or resident of a state facility operated by such Department or by the executive director of a community services board or behavioral health authority for any individual serving as a guardian or limited guardian for a consumer of such board or authority, and by the Division. Those participants under § 2.2-1839.1 shall not be required to obtain approval from any entity other than the Division. Upon such approval, the Division shall assume sole responsibility for plan management, compliance, or removal. The Virginia Supreme Court shall pay the cost for coverage of eligible persons performing services in approved programs of the Virginia Supreme Court or the Virginia State Bar. The Department of Mental Health, Mental Retardation and Substance Abuse Services shall be responsible for paying the cost of coverage for eligible persons performing services as a guardian or limited guardian for any patient or resident of a state facility operated by the Department. The applicable community services board or behavioral health authority shall be responsible for paying the cost of coverage for eligible persons performing services as a guardian or limited guardian for consumers of such board or authority.
C. The Division shall provide for the legal defense of participants and shall reserve the right to settle or defend claims presented under the plan. All prejudgment settlements shall be approved in advance by the Division.
D. The risk management plans established pursuant to this section shall provide for the establishment of trust funds for the payment of claims covered under such plans. The funds shall be invested in the manner provided in § 2.2-1806 and interest shall be added to the fund as earned.
Trust funds shall also provide for payment of legal defense costs, actuarial costs, administrative costs, contractual costs and all other expenses related to the administration of such plans.
E. The Division shall, in its sole discretion, set the premium, deductible, and administrative cost to be paid to it for providing risk management plans established pursuant to this section. The premiums and administrative costs set by the Division shall be payable in the amounts at the time and in the manner that the Division in its sole discretion shall require. The premiums, deductibles, and administrative costs need not be uniform among participants, but shall be set so as to best ensure the financial stability of the plans.
§ 54.1-3900.01. Protection of client interests; appointment of receiver for practice of a disabled, impaired, absent, deceased, suspended or disbarred attorney.
A. Upon a showing that an attorney is unable to properly discharge
properly responsibilities to his clients by reason of the
attorney's disability, impairment, absence or death or that an a
suspended or disbarred attorney has been disbarred or suspended and has
not complied with Part Six, Section IV, Paragraph 13 (K) (1) M
of the Rules of the Virginia Supreme Court, and that no responsible party
capable of conducting the affairs of the attorney properly
discharging the attorney's responsibilities to clients is known to exist,
the circuit court of any city or county wherein such the attorney
resides, or in the case of a deceased attorney resided, or maintained an
office, upon the ex parte petition of Bar Counsel or the chairman of
a district committee of the Virginia State Bar, may issue an order
appointing an attorney or one or more attorneys who
shall have to serve as receiver with the powers and duties specified
in this section. The court, in its discretion, may require a receiver
appointed pursuant to this section to post bond, with or without surety. The
court may issue such order if the petition, supported by affidavit of the
petitioner and such other evidence as the court may require, shows reasonable
cause to believe that by reason of the subject attorney's disability, impairment,
absence, or death, the subject attorney is unable to properly discharge his
responsibilities to clients; or that the subject attorney's law license has
been suspended or revoked and the subject attorney has not complied with Part
Six, Section IV, Paragraph 13 M of the Rules of Supreme Court; and that no
responsible party capable of properly discharging the subject attorney's
responsibilities to clients is known to exist. The Virginia State Bar shall use
its best efforts to provide a copy of the petition, affidavits, and notice of
the time and place of any hearing to the subject attorney and any known duly
appointed personal representative of the subject attorney or the subject
attorney's estate.
B. Any attorney receiver so appointed shall be
bound by the attorney-client privilege and confidentiality under the
Virginia Rules of Professional Conduct with respect to the records of
individual clients client matters and shall not disclose any privileged
or confidential client information contained in the files so inventoried
without the client consent of the client to whom the file
relates, except or as required to carry out an order of
the court by court order, or to respond to a Virginia State Bar
disciplinary investigation or an investigation by the Virginia State Bar
Clients' Protection Fund involving the subject attorney.
C. Any attorney receiver so appointed shall,
unless otherwise ordered by the court, (i) prepare and file with the Virginia
State Bar an inventory of all case files under the subject attorney's control
of the subject attorney; (ii) notify in writing all of the subject's
subject attorney's clients of the appointment and take whatever
action seems indicated the receiver deems appropriate to protect
the interests of the clients until such time as the clients have had an
opportunity to obtain substitute successor counsel, and in the
case of a deceased attorney, notify in writing the personal representative, if
any, of the deceased attorney's estate and the commissioner of accounts of the
circuit court in which the deceased attorney's estate is being administered
that the receiver may have a claim against the deceased attorney's estate for
fees and costs of the receivership; (iii) identify and take control of all
bank accounts, including without limitation trust or otherwise
and operating accounts, over which the subject attorney had
signatory authority and take control of the trust and operating accounts
in connection with his law practice; (iv) prepare and submit an
accounting of receipts and disbursements and account balances of all funds
under the receiver's control for submission to the court within four months of
the appointment and annually thereafter until the receivership is terminated by
the court; (v) attempt to collect any accounts receivable related to the subject's
subject attorney's law practice; (v) (vi) identify and
attempt to recover any assets wrongfully diverted from the subject attorney's
law practice, or assets acquired with funds wrongfully diverted from the
subject attorney's law practice; (vii) terminate the subject's subject
attorney's law practice; (vi) (viii) reduce to cash all of
the assets of the subject's subject attorney's law practice,
and in the case of a deceased attorney notify in writing the personal
representative, if any, of the deceased attorney's estate, and the commissioner
of accounts of the circuit court in which the deceased attorney's estate is
being administered of any proposed liquidations of assets; (vii) (ix)
determine the nature and amount of all claims of creditors, including
clients, of the subject's subject attorney's law practice; and (viii)
(x) prepare and file with the court a report of such assets and
claims proposing a distribution to such creditors and, in the case of a
deceased attorney, notify in writing the personal representative, if any, of
the deceased attorney's estate and the commissioner of accounts of the circuit
court in which the deceased attorney's estate is being administered of the
proposed distribution of the receivership funds. Upon the court's approval
of the receiver's report of the receiver, at a hearing after
such notice as the court may require to creditors, the personal representative
of the subject attorney's estate and the commissioner of accounts of the
circuit court in which the deceased attorney's estate is being administered, the
receiver shall distribute the assets funds in the receiver's control,
including funds produced by the liquidation of the subject's subject
attorney's law practice, first to clients whose funds were or ought
to have been held in trust by the subject attorney, then to the receiver
in respect of the fees and for fees, costs and expenses awarded
pursuant to subsection D E below, and thereafter to the general
creditors of the subject's subject attorney's law practice,
including clients whose funds were not required to have been held in trust by
the subject. The appointed attorney shall also prepare a statement of
receipts and disbursements and account balances of all funds under his control
for submission to the court. The statement shall be submitted within two months
of the appointment and annually thereafter until the receivership is terminated
by the court. The court, in its discretion, may require any attorney appointed
pursuant to this section to post bond, with or without surety attorney,
and then to the subject attorney or the subject attorney's personal
representative.
D. The court may determine whether any assets under the receiver's control should be returned to the subject attorney or the subject attorney's personal representative during the receivership.
D. E. Any attorney receiver so
appointed shall be entitled, upon proper application to the court in which the
appointment was made, to recover an award of reasonable fees for services
rendered and to a recovery of necessary costs incurred, costs and
expenses. If there are not sufficient nontrust funds to pay the award, then
the shortfall shall be paid by the Virginia State Bar, to the extent that the Virginia
State Bar has funds available and. The Virginia State Bar
shall have a claim against the subject attorney or his the attorney's
estate for the amount paid.
F. This statute is declared to be remedial. Its purpose is to protect the interests of clients adversely affected by attorneys who have either engaged in misconduct or because of disability, impairment, absence, or death are unable to provide legal services for their clients. It is to be liberally administered in order to protect those interests and thereby the public's interest in the quality of legal services provided by Virginia attorneys.
§ 54.1-3936. Protection of client interests in proceedings pending disciplinary action.
A. If Bar Counsel or the chairman of a district committee
of the Virginia State Bar has reasonable cause to believe that an attorney
is engaging in any activity which is unlawful or in violation of violates
the Virginia Code of Professional Responsibility Rules of
Professional Conduct and which will result in loss of property of one or
more of the attorney's clients or any other person, he Bar Counsel may
make submit an ex parte application petition to the
circuit court of the city or county wherein the attorney who is the subject of
the complaint petition resides or is doing business for the
issuance of an order authorizing the immediate inspection by and production
to representatives of the applicant petitioner of any
records, documents, and physical or other evidence belonging to the subject attorney
or any professional partnership, professional limited liability company, or
professional corporation with which he the subject attorney is
associated. The court may issue such order without notice to the attorney if
the application, on verified petition, supported by affidavit of
the applicant petitioner and such other evidence as the court may
require, shows reasonable cause to believe that such action is required to
prevent immediate loss of property of one or more of the subject attorney's
clients or any other person. The papers filed with the court pursuant to this
subsection shall be placed under seal.
B. If Bar Counsel or the chairman of a district committee
of the Virginia State Bar has reasonable cause to believe that an attorney
is engaging in any activity which is unlawful or in violation of the Virginia Code
of Professional Responsibility Rules of Professional Conduct and
which will result in loss of property of one or more of the attorney's clients
or any other person, he Bar Counsel may file a complaint petition
with the circuit court of the county or city wherein the attorney who is
the subject of the complaint subject attorney resides or is doing
business. The complaint petition may seek the following relief:
(i) an injunction prohibiting the withdrawal of any bank deposits or the
disposition of any other assets belonging to or subject to the control of the
attorney who is the subject of the complaint the subject attorney or
any professional partnership, professional limited liability company, or
professional corporation with which he the subject attorney is
associated; and (ii) the appointment of a receiver for all or part of the funds
or property belonging to or of the subject to the control of
the attorney who is the subject of the complaint attorney's law practice
or of any professional partnership, professional limited liability
company, or professional corporation with which he the subject
attorney is associated. The attorney who is the subject of the complaint
subject attorney shall be given notice of the time and place of the
hearing on the complaint petition and an opportunity to offer
evidence. The court, in its discretion, may require a receiver appointed
pursuant to this section to post bond, with or without surety. The papers
filed with the court under this subsection shall be placed under seal until
such time as the court grants an injunction or appoints a receiver. The court
may issue an injunction, appoint a receiver or provide such other relief as the
court may consider proper if, after a hearing, the court finds that such relief
is necessary or appropriate to prevent loss of property of one or more of the subject
attorney's clients or any other person.
C. In any proceeding under subsection B of this section,
any professional partnership, professional limited liability company, or
professional corporation with which the subject attorney who is the
subject of the complaint is associated and any other person or entity
known to Bar Counsel to be indebted to or having in his possession
property, real or personal, belonging to or subject to the control of such
attorney the subject attorney's law practice and which property is
sought to be protected, Bar Counsel reasonably believes may become part
of the receivership assets, shall be served with a copy of the complaint
petition and notice of the time and place of the hearing and
shall be afforded an opportunity to respond and offer evidence.
D. The court, on motion filed by any party, may transfer a
proceeding under this section to any court in which a proceeding is pending
pursuant to § 54.1-3935 or § 54.1-3937 for the revocation of the license of the
attorney who is the subject of an order issued pursuant to this section.
E. D. Any attorney so appointed shall
The receiver shall, unless otherwise ordered by the court, (i) prepare and
file with the Virginia State Bar an inventory of all case files under the subject
attorney's control of the subject attorney; (ii) notify in
writing all of the subject's subject attorney's clients of
the appointment and take whatever action seems indicated the receiver
deems appropriate to protect the interests of the clients until such time
as the clients have had an opportunity to obtain substitute successor
counsel, and in the case of a deceased attorney, notify in writing the
personal representative, if any, of the deceased attorney's estate and the
commissioner of accounts of the circuit court in which the deceased attorney's
estate is being administered that the receiver may have a claim against the
deceased attorney's estate for fees and costs of the receivership; (iii)
identify and take control of all bank accounts, including without
limitation trust or otherwise and operating accounts, over
which the subject attorney had signatory authority and take control
of the trust and operating accounts in connection with his law practice;
(iv) prepare and submit an accounting of receipts and disbursements and
account balances of all funds under the receiver's control for submission to
the court within four months of the appointment and annually thereafter until
the receivership is terminated by the court; (v) attempt to collect any
accounts receivable related to the subject's subject attorney's law
practice; (v) (vi) identify and attempt to recover any assets
wrongfully diverted from the subject attorney's law practice, or assets
acquired with funds wrongfully diverted from the subject attorney's law
practice; (vii) terminate the subject's subject attorney's law
practice; (vi) (viii) reduce to cash all of the assets of the subject's
subject attorney's law practice; (vii) , and in the case
of a deceased attorney notify in writing the personal representative, if any,
of the deceased attorney's estate, and the commissioner of accounts of the
circuit court in which the deceased attorney's estate is being administered of
any proposed liquidations of assets; (ix) determine the nature and amount
of all claims of creditors, including clients, of the subject's subject
attorney's law practice; and (viii) (x) prepare and file with
the court a report of such assets and claims proposing a distribution to such
creditors and, in the case of a deceased attorney, notify in writing the
personal representative, if any, of the deceased attorney's estate and the
commissioner of accounts of the circuit court in which the deceased attorney's
estate is being administered of the proposed distribution of the receivership
funds. Upon the court's approval of the receiver's report
of the receiver, at a hearing after such notice as the court may require
to creditors, the personal representative of the subject attorney's estate and
the commissioner of accounts of the circuit court in which the deceased
attorney's estate is being administered, the receiver shall distribute the
assets of the subject's subject attorney's law practice first to
clients whose funds were or ought to have been held in trust by the subject
attorney, then to the receiver in respect of the for fees
and, costs, and expenses awarded pursuant to subsection F
below E, and thereafter to the general creditors of the subject's
subject attorney's law practice, including clients whose funds were
not required to have been held in trust by the subject. The appointed
attorney shall also prepare a statement of receipts and disbursements and
account balances of all funds under his control for submission to the court.
The statement shall be submitted within two months of the appointment and
annually thereafter until the receivership is terminated by the court. The
court, in its discretion, may require any attorney appointed pursuant to this
section to post bond, with or without surety attorney, and then to the
subject attorney or the subject attorney's personal representative.
F. E. A receiver appointed pursuant to this
section shall be entitled, upon proper application to the court in which the
appointment was made, to recover an award of reasonable fees for services
rendered and to a recovery of necessary , costs incurred,
and expenses. If there are not sufficient nontrust funds to pay the award,
then the shortfall shall be paid by the Virginia State Bar, to the extent that
the Virginia State Bar has funds available and. The
Virginia State Bar shall have a claim against the subject attorney or his
the subject attorney's estate for the amount paid.
G. F. The court may determine whether any assets
under the receiver's control of the receiver should be turned
over returned to the subject attorney or the subject attorney's
personal representative during the receivership.
G. This statute is declared to be remedial. Its purpose is to protect the interests of clients adversely affected by attorneys who have engaged in misconduct. It is to be liberally administered in order to protect those interests and thereby the public's interest in the quality of legal services provided by Virginia attorneys.