Appellant tells court early disclosure of prior discipline tainted bar process; state bar urges affirmation

John O'Hara, counsel for appellant James Lee, told the Supreme Court that bar disciplinary proceedings are properly bifurcated into a misconduct phase and a sanctions phase, and that Lee's prior disciplinary history was disclosed too early, tainting the process.

"These bar disciplinary proceedings are meant to be bifurcated," O'Hara said, adding that "it is at the sanctions phase that the disciplinary record becomes relevant in considering the sanction to impose." He asked the court to dismiss the charges on the ground that the subcommittee learned of Lee's prior discipline at the misconduct stage and that taint infected the certification of charges.

Throughout the argument, justices questioned both sides about timing, remedies and practical consequences. One justice noted that the 3-judge panel had "announced its decision," pressing whether an announced but un-entered decision makes later procedural objections untimely; O'Hara responded that the panel had not yet entered its order and that counsel faced a dilemma in choosing when to press the issue without undermining the protections the rules provide.

Appellee counsel Robert Clayborne, appearing for the Virginia State Bar, urged the court to affirm the panel. Clayborne framed four reasons to reject reversal on assignment of error 1: waiver for failing to object earlier, an approbate-and-reprobate argument based on Lee's prior actions, the absence of a rule-based requirement that noncompliance mandates dismissal, and harmless-error principles. "These passing references within the email and the complaint do not suffice" as formal disciplinary records, Clayborne told the justices, arguing that the formal agreed dispositions and official memoranda are the records contemplated by the rule.

The bench and counsel debated analogies to criminal procedure. Several justices observed that judges frequently hear prejudicial information at preliminary stages and are expected to disregard it at decision time; counsel for Lee countered that disciplinary proceedings are uniquely consequential to an attorney's livelihood and that the rules exist to prevent premature disclosure that could influence certification.

Justices also questioned whether public availability of past dispositions undermines the argument that a subcommittee's knowledge is prejudicial. Clayborne noted that prior dispositions are publicly available and said the rules permit subcommittee access in certain circumstances; O'Hara maintained that even a mere awareness of a prior record at the misconduct determination risks impermissible influence.

On remedy, O'Hara asked the court to dismiss the charges arising from the tainted certification; Clayborne said dismissal is not the appropriate remedy even if the rules were imperfectly followed, and urged the court to find any error harmless under the circumstances and to affirm the 3-judge panel's findings. O'Hara reserved time for rebuttal.

The justices pressed both sides on how their proposed rules would operate in hypotheticals (for example, forged certification documents or widely publicized prior discipline) and on the precise wording of the applicable provisions (cited in argument as "13-30," "13-15(b)(3)," and related rule text). The court heard argument on both assignment-of-error positions and moved to further questions; no final decision was announced at the conclusion of argument.

The court is expected to issue an opinion resolving whether the premature disclosure at the subcommittee stage requires dismissal, remand for a new subcommittee determination, or whether any error was waived or harmless.