Nickolas G. Spanos v. Michael Y. Feinmel, Esquire

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Friedman and Callins
UNPUBLISHED
Argued by videoconference
NICKOLAS G. SPANOS
MEMORANDUM OPINION* BY
v. Record No. 0140-22-2 JUDGE FRANK K. FRIEDMAN
MARCH 7, 2023
MICHAEL Y. FEINMEL, ESQUIRE
FROM THE CIRCUIT COURT OF LOUISA COUNTY
Timothy K. Sanner, Judge
Nickolas George Spanos, pro se.
John P. O’Herron (William W. Tunner; ThompsonMcMullan, P.C.,
on brief), for appellee.
Nickolas G. Spanos filed a legal ethics complaint against attorney Michael Y. Feinmel in the
Circuit Court of Louisa County. The circuit court sustained Feinmel’s amended demurrer and
dismissed the complaint, ruling that the court lacked jurisdiction to hear the complaint or to grant
the relief sought. Spanos challenges the circuit court’s judgment. For the following reasons, we
affirm.
BACKGROUND AND MATERIAL PROCEEDINGS BELOW
Spanos filed a complaint against Feinmel seeking “to revoke the Defendant’s license(s) [to]
practice law in the Commonwealth of Virginia, or discipline the Defendant[] consistent with the
laws of the Commonwealth of Virginia.” Spanos asserted that the circuit court had jurisdiction
under Code § 54.1-3915 to grant the relief he requested. Feinmel filed an amended demurrer
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
arguing, among other things, that the circuit court “ha[d] no jurisdiction to determine the matter
raised in the [c]omplaint or to grant the relief requested.”
The circuit court heard argument; Spanos filed a written opposition but did not appear for
the hearing. At the hearing, the court found the lack of jurisdiction and lack of available relief
dispositive. The court ruled “that the [c]ourt has no jurisdiction whatsoever to entertain the relief
sought in this case to, generally, revoke the attorneys’ right to practice in the Commonwealth of
Virginia or otherwise subject them to discipline.” The circuit court entered a final order
incorporating its bench ruling, sustaining the demurrer, and dismissing the complaint. This appeal
followed.
ANALYSIS
In multiple assignments of error, Spanos presents three basic arguments: (1) that the circuit
court’s dismissal of his complaint violated Code § 54.1-3915 which Spanos claims requires that a
circuit court discipline lawyers rather than the Bar; (2) that the Disciplinary Rules set out in the
Rules of the Supreme Court give “mandatory jurisdiction to Virginia Courts” to address his
attempt to revoke Feinmel’s license; and (3) that the circuit court’s ruling dismissing his claim
was arbitrary and capricious. Based on these alleged errors, Spanos concludes that the circuit
court improperly determined that it lacked jurisdiction to address his claims. We will address
each of Spanos’ theories in turn.
I. The Circuit Court Correctly Ruled That It Lacked Jurisdiction to Determine the
Matter Raised or to Grant the Relief Requested
The basic premise underpinning Spanos’ claims is that “any person or entity has standing to
file a Virginia legal ethics complaint within any court according to [Code] § 54.1-3915.”1 He
1
Code § 54.1-3915 provides that
the Supreme Court shall not promulgate rules or regulations
prescribing a code of ethics governing the professional conduct of
-2-
argues that under Code § 54.1-3910, the Virginia State Bar “has no authority to prosecute or
discipline attorneys”; rather, “only the courts (of record) are authorized to discipline attorneys.”
Continuing, he asserts that Code § 54.1-39102 requires the Bar to “act as an administrative agency
of the Court” to investigate and report violations of rules and regulations adopted by the Court. He
contends, however, that the Bar’s power to investigate and report such violations excludes the
power to adjudicate them. In In re Moseley, 273 Va. 688 (2007), Spanos continues, the Supreme
Court acknowledged that “[l]icensure of an attorney, and revocation of that license, are matters
governed by statute. It is not within the jurisdiction of a circuit court to adjudicate the revocation of
a license to practice law except in compliance with the statutory authority.” Id. at 695. He
interprets Moseley to require the circuit court to adjudicate his ethics complaint under Code
§ 54.1-3915.
Spanos expressly disclaims, however, any reliance on Code § 54.1-3935, which provides for
the adjudication of a legal ethics complaint by a three-judge court, after certain prerequisite
attorneys which are inconsistent with any statute; nor shall it
promulgate any rule or regulation or method of procedure which
eliminates the jurisdiction of the courts to deal with the discipline
of attorneys. In no case shall an attorney who demands to be tried
by a court of competent jurisdiction for the violation of any rule or
regulation adopted under this article be tried in any other manner.
2
Code § 54.1-3910 provides:
The Supreme Court may promulgate rules and regulations
organizing and governing the Virginia State Bar. The Virginia
State Bar shall act as an administrative agency of the Court for the
purpose of investigating and reporting violations of rules and
regulations adopted by the Court under this article. All advisory
opinions issued by the Virginia State Bar’s Standing Committees
on Legal Ethics, Lawyer Advertising and Solicitation, and
Unauthorized Practice of Law shall be incorporated into the Code
of Virginia pursuant to § 30-154. All persons engaged in the
practice of law in the Commonwealth shall be active members in
good standing of the Virginia State Bar.
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conditions are met. Similarly, he acknowledges that the Virginia Rules of Professional Conduct do
not confer a private right of action, but merely provide the metric for evaluating whether an attorney
has committed an ethical violation warranting discipline. He contends that the allegations in his
complaint sufficiently stated a claim that Feinmel violated those rules, so he concludes the
complaint properly invoked the circuit court’s jurisdiction to discipline him.
We are unpersuaded by Spanos’ interpretation of the statutory framework governing
attorney discipline. We agree with the circuit court’s judgment that it lacked jurisdiction under that
statutory framework to revoke Feinmel’s license to practice law in Virginia.
A. Virginia’s Statutory Scheme Does Not Provide a Mechanism Allowing
Citizens to File Actions in Circuit Court Seeking to Disbar an Attorney
“Jurisdiction is the power to adjudicate a case upon the merits and dispose of it as justice
may require.” Pure Presbyterian Church of Washington v. Grace of God Presbyterian Church, 296
Va. 42, 49 (2018) (ellipsis omitted) (quoting Shelton v. Sydnor, 126 Va. 625, 629 (1920)). “In order
for a court to have the authority to adjudicate a particular case upon the merits, to have what we
have termed ‘active jurisdiction,’ several elements are needed.” Id. (citation omitted) (quoting
Farant Inv. Corp. v. Francis, 138 Va. 417, 427 (1924)). Foremost among these elements is
subject-matter jurisdiction “which is the authority granted through constitution or statute to
adjudicate a class of cases or controversies.” Id. (quoting Morrison v. Bestler, 239 Va. 166, 169
(1990)). “[S]ubject-matter jurisdiction is the paramount consideration in assessing whether a court
has authority to enter judgment, and a judgment will always be void without it.” Watson v.
Commonwealth, 297 Va. 347, 352 (2019). Subject-matter jurisdiction “can only be acquired by
virtue of the Constitution or of some statute. Neither the consent of the parties, nor waiver, nor
acquiescence can confer it.” Pure Presbyterian Church, 296 Va. at 49 (quoting Humphreys v.
Commonwealth, 186 Va. 765, 772 (1947)). Whether a court has subject-matter jurisdiction presents
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a question of law an appellate court considers de novo. Knight v. Ottrix, 69 Va. App. 519, 523
(2018); accord Parrish v. Fed. Nat’l Mortg. Ass’n, 292 Va. 44, 49 (2016).
1. Distinguishing Discipline Within a Specific Case or Court From
Proceedings Involving Disbarment, Revocation, and Suspension
In Moseley, the Supreme Court discussed two separate forms of attorney discipline. First,
any court may suspend or revoke an attorney’s privilege to appear before that court. 273 Va. at
695-96, 698 n.10; Ex Parte Fisher, 33 Va. (6 Leigh) 619, 624-25 (1835). Each court’s inherent
power to discipline attorneys practicing before that court arises directly from the Constitution of
Virginia: it is “derived from the separation of powers between the judiciary, as an independent
branch of government, and the other branches.” Moseley, 273 Va. at 697 (citing Va. Const. art. III,
§ 1; art. IV, § 1). Therefore, it “is not dependent on its creation by legislative enactment and thus
cannot be limited by statute.” Id. at 698. This authority of a court “to control those who practice
before it,” id. at 696, in a pending matter is not at issue in this case.3
The second form of attorney discipline involves inquiries into alleged misconduct which
may affect the attorney’s licensure to practice law. “A license to practice law covers the full
panoply of actions an attorney can undertake from writing a will to representing a person in a
3
Spanos’ complaint asked the circuit court not only to revoke Feinmel’s license to
practice law in Virginia but also to “discipline [him] consistent with the laws of the
Commonwealth of Virginia.” There is, however, no allegation that Feinmel has active cases or is
practicing in the Circuit Court of Louisa County. Moreover, Spanos has not asserted on appeal
that the circuit court erred by failing to exercise its discretion to limit or revoke his privilege to
appear before that court. Therefore we do not consider that question on appeal. See Moseley,
273 Va. at 698 n.9 (declining to review whether a court properly revoked an attorney’s privilege
to appear before it because the appellant did not challenge the court’s exercise of discretion); see
also Blankenship v. Commonwealth, 71 Va. App. 608, 623 n.2 (2020) (holding that an “issue is
waived” when “a party fail[ed] to develop an argument” on brief regarding the issue). Generally,
the violations for which a court imposes discipline under its inherent authority occur within the
context of a proceeding pending, or conduct arising, in that court. See Moseley, 273 Va. at
690-92 (describing the actions of the attorney in the pending proceeding); Nusbaum v. Berlin,
273 Va. 385, 391-94 (2007) (recounting that an attorney had “shove[d]” opposing counsel during
a bench conference but in the presence of the jury).
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controversy before a court.” Id. at 695. Licensure, and suspension or revocation of a license to
practice law, “are matters governed by statute.” Id.; see Code §§ 54.1-3900 to -3944.4 Therefore,
we must examine the statutory framework applicable to Spanos’ complaint. In doing so, “it is our
duty to interpret the several parts of a statute as a consistent and harmonious whole so as to
effectuate the legislative goal.” Bd. of Supervisors of Fairfax Cnty. v. Cohn, 296 Va. 465, 473
(2018) (quoting Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425 (2012)). We
also consider “statutes related to the same subject matter” in order “to ‘make the body of the laws
harmonious and just in their operation.’” Id. (quoting Lucy v. County of Albemarle, 258 Va. 118,
130 (1999)).
2. Virginia’s Statutory Scheme Regarding Attorney Discipline
Under the controlling statutes, the Supreme Court of Virginia has express authority to
“[p]rescrib[e] a code of ethics governing the professional conduct of attorneys,” to “[d]efin[e] the
practice of law,” and to “[p]rescribe[e] procedures for disciplining, suspending, and disbarring
attorneys.” Code § 54.1-3909. Consistent with this charge, the Supreme Court has adopted detailed
guidelines and procedures for disciplinary proceedings involving attorneys. See Va. Sup. Ct. R. Part
6, § IV, ¶ 13. This framework has been aptly summarized as follows:
Disciplinary cases begin when the Virginia State Bar, an agency of
the Supreme Court of Virginia, receives a “complaint.” Id. para.
13-1. After the Bar’s staff “determines that the conduct questioned
or alleged [presents] an issue under the Disciplinary Rules,” it
investigates the complaint, which proceeds through several
preliminary reviews by Bar committees. Id. paras. 13-10 to 13-15.
If appropriate, the Bar eventually issues a “charge of misconduct,”
which proceeds to a hearing. Id. para. 13-16. If the case involves
possible suspension or revocation of the respondent’s license to
4
As the Supreme court explained in Moseley, 273 Va. at 696, “the local circuit courts had
jurisdiction in the 19th century both to issue a license to practice law and control the actual practice
before that court.” However, circuit courts were divested of this licensing power upon introduction
of “the intervening statutory regimen ceding licensure to the Virginia State Bar.” Id. As Moseley
makes clear, this loss of licensing authority “has no effect on the continuing authority of a court to
regulate the privilege of practicing before that court.” Id.
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practice, the hearing occurs either before the Bar’s Disciplinary
Board or, at the option of the charged attorney, before a
three-judge circuit court. Id. para. 13-18; Va. Code Ann.
§ 54.1-3935 (2017). If the charges are proved, the Bar or the
three-judge court can suspend or revoke the respondent’s
license. Id.Spanos v. Vick, 576 F. Supp. 3d 361, 367 (E.D. Va. 2021).
Code § 54.1-3935 governs who—what body—will decide whether an attorney’s misconduct
justifies disbarment. Code § 54.1-3935(A)5 permits either “[a]ny attorney who is the subject of a
disciplinary proceeding or the Virginia State Bar . . . to terminate the proceeding before the Bar
Disciplinary Board or a district committee and demand that further proceedings be conducted by a
three-judge circuit court.” (Emphases added). When such a three-judge court is demanded, the Bar
“shall file a complaint in a circuit court where venue is proper,” whereupon the chief judge of that
court issues the rule to show cause. Id. The rule to show cause is then heard by a three-judge court
designated by the Chief Justice and prosecuted by Bar Counsel or special counsel appointed under
5
Code § 54.1-3935(A) states:
Any attorney who is the subject of a disciplinary proceeding or the
Virginia State Bar may elect to terminate the proceeding before the
Bar Disciplinary Board or a district committee and demand that
further proceedings be conducted by a three-judge circuit court.
Such demand shall be made in accordance with the rules and
procedures set forth in Part Six, Section IV, Paragraph 13 of the
Rules of Supreme Court of Virginia. Upon receipt of a demand for
a three-judge circuit court, the Virginia State Bar shall file a
complaint in a circuit court where venue is proper and the chief
judge of the circuit court shall issue a rule against the attorney to
show cause why the attorney shall not be disciplined. At the time
the rule is issued by the circuit court, the court shall certify the fact
of such issuance and the time and place of the hearing thereon to
the Chief Justice of the Supreme Court, who shall designate the
three-judge circuit court, which shall consist of three circuit court
judges of circuits other than the circuit in which the case is
pending, to hear and decide the case. The rules and procedures set
forth in Part Six, Section IV, Paragraph 13 of the Rules of Supreme
Court of Virginia shall govern any attorney disciplinary proceeding
before a three-judge circuit court.
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Code § 2.2-510. Code § 54.1-3935(A), (B). Virginia law does not authorize the revocation or
disbarment proceedings Spanos seeks to pursue in any other form. Nor does it provide for
individual citizens to prosecute disbarment or disciplinary proceedings against attorneys in circuit
courts.6
B. Spanos Erroneously Reads Virginia’s Statutory Scheme to Permit Any
Citizen to File and Prosecute Attorney Disbarment Proceedings in a Circuit
Court
Spanos insists that Code § 54.1-3915, not Code § 54.1-3935, confers subject-matter
jurisdiction to the circuit court to adjudicate his complaint. Spanos fundamentally misapprehends
the purpose and function of Code § 54.1-3915 (supra at 2-3, n.1); the statute does not authorize
anyone to file an ethics complaint or empower any court to consider one. Rather, Code § 54.1-3915
limits the Supreme Court’s rule-making authority. That statute requires that the Supreme Court’s
rules, regulations, and modes of procedure governing legal ethics be consistent with the governing
statutes.
In providing that Supreme Court Rules cannot be “inconsistent with any statute,” Code
§ 54.1-3915 provides checks and balances against rules which ignore or seek to override statutory
provisions. The rules which Spanos challenges, however, are wholly consistent with the statutory
framework.7 Under these rules any attorney who prefers court adjudication over Bar review of his
discipline is free to select it. Part 6, Section IV, Paragraphs 13-16(B)(2) and 13-18(A)(2) of the
Under prior law, “any person” could file a verified complaint in the Supreme Court or a
6
circuit court alleging that an “attorney has been convicted of a misdemeanor involving moral
turpitude or a felony or has violated the Virginia Code of Professional Responsibility.” Former
Code § 54.1-3935(A) (Repl. Vol. 2013). In 2017, however, the General Assembly amended
Code § 54.1-3935 and replaced the earlier statutory framework. 2017 Va. Acts chs. 40, 91. As
will be discussed, infra, this statutory change removed any reference to allowing “any person” to
file such a complaint in circuit court.
7
Under rules of construction, a statute prevails over a contrary rule in any event. See
Helms v. Manspile, 277 Va. 1, 7 (2009); Va. Const. art. VI, § 5.
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Rules of the Supreme Court permit an attorney to file a demand for a three-judge panel court in a
proceeding before a district committee or the Bar Disciplinary Board, respectively. These
provisions are not “inconsistent with any statute,” nor do they “eliminate[] the jurisdiction of the
courts to deal with the discipline of attorneys.” Code § 54.1-3915.8 Instead, the provisions
effectuate and preserve the right to a judicial adjudication of legal ethics complaints as Code
§ 54.1-3935(A) requires.
Similarly, there is no merit to Spanos’ attempts to construe Code § 54.1-3915 to confer a
personal right on an individual to file an ethics complaint in a circuit court, rather than with the Bar.
The statute signals the right to a judicial adjudication only with respect to “an attorney who
demands to be tried by a court,” not to a complainant. Code § 54.1-3915 (emphasis added).
Furthermore, the attorney demanding to be tried by a court must be the attorney who is subject to
the Bar disciplinary proceedings initiated under Code § 54.1-3935(A). Any citizen, of course,
may initiate a legal ethics complaint by alleging, in writing, that an attorney has committed
misconduct and filing that complaint with the Bar. See Va. Sup. Ct. R. Part 6, § IV, ¶ 13-1.9
8
Code § 54.1-3935 is the only statute authorizing a court to adjudicate an ethics complaint
involving licensure. Spanos has disclaimed any reliance on that statute and, in any event, under the
express language of Code § 54.1-3935(A), a court’s jurisdiction is initiated only upon the filing of a
complaint by the Bar. This matter, again, does not involve a court’s inherent authority to regulate
attorneys who are practicing before that specific court. Moseley, 273 Va. at 696.
9
Virginia law also establishes that attorney disciplinary rules do not provide a basis for a
private cause of action, with respect to a recovery for damages. See Carter v. Williams, 246 Va.
53, 60 (1993) (citing Ayyildiz v. Kidd, 220 Va. 1080, 1085 (1980)). See also In re Palumbo
Family Ltd. P’ship, 182 B.R. 447, 469-70 (Bankr. E.D. Va. 1995) (“[T]he ethical considerations
contained in the Virginia Code of Professional Responsibility are merely aspirational and, as
such, they fail to supply a cause of action to private litigants.”).
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C. The Legislative History of the Commonwealth’s Statutory Scheme Further
Rebuts Spanos’ Construction of the Law
As noted above, in the not-so-distant past, Virginia statutes did allow for individuals to file
complaints against lawyers in a circuit court, in a limited form. However, the General Assembly
specifically repealed this statutory language, further undercutting Spanos’ claims here.
Prior to July 1, 2017, Code § 54.1-3935 permitted “any person” to file a verified complaint
in the Supreme Court or a circuit court alleging that an “attorney has been convicted of a
misdemeanor involving moral turpitude or a felony or has violated the Virginia Code of
Professional Responsibility.” Former Code § 54.1-3935(A) (Repl. Vol. 2013). The statute, in early
2017, provided that a circuit court that received such a verified complaint was authorized only to
“assign the matter to the Virginia State Bar for investigation.” Id. The court was not empowered to
open its own investigation, as Spanos urged the circuit court to do here.10
In 2017, however, the General Assembly amended Code § 54.1-3935 and replaced the
earlier statutory framework with its current version. 2017 Va. Acts chs. 40, 91. (See current
version, supra n.5.) After July 1, 2017, Code § 54.1-3935(A) provides that “[a]ny attorney who is
the subject of a disciplinary proceeding or the Virginia State Bar may elect to terminate the
proceeding before the Bar Disciplinary Board or a district committee and demand that further
proceedings be conducted by a three-judge circuit court.” (Emphasis added). Simply put, Code
10
Unless the verified complaint was filed by a district committee of the Bar, the court in
which the verified complaint was filed was authorized to issue a rule to show cause against the
attorney only “[u]pon receipt of the report of” the Bar. Former Code § 54.1-3935(A) (Repl. Vol.
2013). The rule to show cause was then to be heard by a three-judge court designated by the Chief
Justice and prosecuted by Bar Counsel or a special counsel appointed under Code § 2.2-510.
Former Code § 54.1-3935(B), (C) (Repl. Vol. 2013). Earlier versions of this statute did permit
circuit court judges who received a complaint to issue a rule to show cause and to hear the
disciplinary matter along with two additional designated judges. See, e.g., 1964 Virginia laws Ch.
201 (H.B. 25).
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§ 54.1-3935 no longer provides for the filing of a complaint by anyone other than the Bar or an
“attorney who is the subject of a disciplinary proceeding.” The prior language recognizing a
complaint made by “any person” was removed from the statutory language.11 The revised statute
also expressly sets forth that the “rules and procedures set forth in Part Six, Section IV, Paragraph
13 of the Rules of Supreme Court of Virginia shall govern any attorney disciplinary proceeding
before a three-judge circuit court.” Id.
Here, the General Assembly’s actions flatly rebut Spanos’ claims that Code § 54.1-3915
was meant to guarantee citizen filings in circuit courts and that this statute somehow overrides the
rest of the statutory scheme as well as the Commonwealth’s extensive disciplinary rules. Code
§ 54.1-3915, upon which Spanos rests his argument, has remained unchanged since 1988. The
General Assembly’s 2017 revision to Code § 54.1-3935 reveals that the legislature plainly did not
intend, as Spanos argues, that only circuit courts can hear disciplinary and disbarment matters.12
11
2017 Virginia laws Ch. 91 (S.B. 874) specifically removed the following language
from then-existing Code § 54.1-3935:
A. If the Supreme Court, the Court of Appeals, or any circuit court
of this Commonwealth observes, or if a complaint, verified by
affidavit is made by any person to such court, that any attorney has
been convicted of a misdemeanor involving moral turpitude or a
felony or has violated the Virginia Code of Professional
Responsibility, the court may assign the matter to the Virginia
State Bar for investigation. Upon receipt of the report of the
Virginia State Bar, the court may issue a rule against such attorney
to show cause why his license to practice law shall not be revoked.
If the complaint, verified by affidavit, is made by a district
committee of the Virginia State Bar, the court shall issue a rule
against the attorney to show cause why his license to practice law
shall not be revoked.
12
The General Assembly is presumed to be aware of case law and judicial interpretation of
existing statutes. See Townes v. Va. State Board of Elections, 299 Va. 34, 49 (2020); Waterman v.
Halverson, 261 Va. 203, 207 (2001). Further, “[w]hen a statute or a group of statutes has been
revised, and the General Assembly has omitted provisions formerly enacted, the parts omitted may
not be revived by construction, but must be considered as annulled.” Cummings v. Fulghum, 261
Va. 73, 79 (2001).
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Under Virginia law, citizens are not empowered to prosecute disbarment proceedings in circuit
courts. “Citizens only have the power to make a complaint to the bar, which then prosecutes the
matter.” Vick, 576 F. Supp. 3d at 368.
* * *
The Commonwealth’s statutory scheme does not grant the Circuit Court of Louisa County
the power to disbar attorneys—and the court lacked authority to grant Spanos the relief he desires.
Accordingly, the circuit court did not err by ruling that it lacked jurisdiction to revoke Feinmel’s
license to practice law. The court has only such subject-matter jurisdiction as is conferred by the
Constitution or by statute. See Pure Presbyterian Church, 296 Va. at 49. Despite Spanos’
assertions to the contrary, Code § 54.1-3915 does not confer jurisdiction, and the circuit court was
without authority to redress Spanos’ claims. See also Vick, 576 F. Supp. 3d at 367 (absence of
redressability renders claimant without standing).
II. The Circuit Court’s Ruling Does Not Violate the Rules of the Supreme Court of
Virginia and Those Rules Do Not Provide Mandatory Jurisdiction
to Circuit Courts to Disbar Attorneys
Spanos next argues that the circuit court’s ruling violated Part 6, Section IV, Paragraph 13-2
of the Rules of the Supreme Court. This rule states:
13-2. AUTHORITY OF THE COURTS
Nothing in this Paragraph shall be interpreted so as to eliminate,
restrict or impair the jurisdiction of the courts of this
Commonwealth to deal with the disciplining of Attorneys as
provided by law. Every Judge shall have authority to take such
action as may be necessary or appropriate to protect the interests of
clients of any Attorney whose License is subject to a Suspension or
Revocation. Every Circuit Court shall have power to enforce any
order, summons or subpoena issued by the Board, a District
Committee or Bar Counsel and to adjudge disobedience thereof as
contempt.
Spanos’ reliance on this rule, in essence, is a reprise of his statutory logic. On appeal, he contends
that the rule gives “mandatory jurisdiction to Virginia Courts” to address citizens’ ethics claims
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against lawyers. He suggests that by allowing courts to deal with disciplining attorneys “as
provided by law,” Part 6, Section IV, Paragraph 13-2 of the Rules of the Supreme Court revives his
argument that Code § 54.1-3915 grants circuit courts jurisdiction to adjudicate claims regarding
disbarment. His reasoning with respect to the statutory scheme, however, has already been
addressed and rejected.
Moreover, we need not analyze this argument in detail as it was not preserved below. “No
ruling of the trial court . . . will be considered as a basis for reversal unless an objection was
stated with reasonable certainty at the time of the ruling, except for good cause shown or to
enable this Court to attain the ends of justice.” Rule 5A:18. Spanos has not invoked either
exception to Rule 5A:18, and we do not consider them sua sponte. Edwards v. Commonwealth,
41 Va. App. 752, 761 (2003) (en banc).
Suffice it to say, Virginia courts retain the power to discipline attorneys practicing before
them. Moseley, 273 Va. at 695-96; Nusbaum v. Berlin, 273 Va. 385, 391-93 (2007); Taboada v.
Daly Seven, Inc., 272 Va. 211 (2006). The Commonwealth’s courts also have the power to enforce
any orders, summons, or subpoena issued in the disciplinary process. See Va. Sup. Ct. R. Part 6,
§ IV, ¶ 13-2. The Disciplinary Rules set out the detailed procedures for invoking a three-judge
panel to preside over a disciplinary hearing involving an attorney. See Va. Sup. Ct. R. Part 6, § IV,
¶¶ 13-16, 13-18. The Rules simply do not provide any authority or jurisdiction for a circuit court to
entertain a disciplinary action filed by a citizen for the purpose of revoking an attorney’s license.
III. The Circuit Court’s Ruling Was Not Arbitrary or Capricious
Spanos’ final attack on the circuit court’s ruling is a claim that the decision was arbitrary and
capricious. Spanos alleges that the circuit court previously exercised jurisdiction over a separate
ethics complaint he filed against a circuit judge for the Fourteenth Judicial Circuit, so it should have
exercised jurisdiction over his complaint in this case. According to Spanos, the circuit court
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dismissed his ethics complaint against a judge on a plea of judicial immunity, not for lack of
jurisdiction. Spanos contends that the court’s disparate treatment of the two complaints shows its
jurisdictional ruling in this case was arbitrary and capricious. We again disagree.
The judicial ethics case Spanos references is not before us in this appeal—but Spanos did
file portions of that record in this case. It is clear from these documents that Feinmel was not a
party to those proceedings and that the issue of jurisdiction simply was not raised. Spanos’
argument implies that the Circuit Court of Louisa County was somehow estopped to deny that it had
subject-matter jurisdiction to hear his complaint against Feinmel after addressing judicial immunity
in his other citizen’s “ethics” case against a judge. Subject-matter jurisdiction, however, cannot be
conferred by estoppel.
The existence of subject-matter jurisdiction cannot be waived or conferred on the court by
agreement of the parties. Morrison, 239 Va. at 169-70. Moreover, the “lack of subject matter
jurisdiction can be raised at any time in the proceedings, even for the first time on appeal by the
court sua sponte.” Id. at 170; Thacker v. Hubard & Appleby, 122 Va. 379, 386 (1918) (“Objection
for want of jurisdiction of the subject-matter may be taken by demurrer, or motion, or in any way by
which the subject may be brought to the attention of the court, and, if not brought to the attention of
the trial court, it may be taken notice of by the appellate court . . . for the first time.” (emphasis
added)); Lucas v. Biller, 204 Va. 309, 313-14 (1963).
The circuit court correctly concluded that it lacked subject-matter jurisdiction in this case,
and its ruling to that effect was neither arbitrary nor capricious. See School Bd. of Norfolk v.
Wescott, 254 Va. 218, 224 (1997) (arbitrary and capricious connotes “willful and unreasonable”
actions and decisions made without consideration or in disregard of facts or law or without a
determining principle). Spanos’ attempt to establish jurisdiction by estoppel was properly denied.
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CONCLUSION
For the foregoing reasons, we affirm the circuit court’s judgment.
Affirmed.
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