Does the Virginia State Bar's 60-day suspension for unpaid dues conflict with the statutory two-year forfeiture rule, and is the Supreme Court's rule unconstitutional?

Plain-English summary

Delegate Debra Rodman asked the AG to weigh in on a separation-of-powers question affecting Virginia lawyers: does the Virginia State Bar's 60-day administrative suspension for unpaid dues (under Part 6, § IV, Paragraphs 11 and 19 of the Rules of the Supreme Court of Virginia) conflict with the General Assembly's statutory two-year forfeiture penalty (under § 54.1-3914), and if so, is the Supreme Court's rule unconstitutional under Va. Const. art. VI, § 5?

AG Mark Herring's answer was that the two regimes don't conflict. They operate at different stages with different remedies:

• Statute (§ 54.1-3912) authorizes the Supreme Court to promulgate rules fixing the schedule of bar fees and providing for collection and disbursement.
• Court Rule (Part 6, § IV, Paragraphs 11 and 19) uses that statutory authority to set the actual fee amounts and to impose an administrative suspension if a delinquent member fails to comply within 60 days of notice. The suspension can be cured by paying the back fees, delinquency fee ($50), and reinstatement fees.
• Statute (§ 54.1-3914) kicks in at a much later stage: an attorney who fails to pay annual fees "for two successive years" forfeits the license. Forfeiture is cured by paying all accrued fees plus a $100 penalty and applying for restoration.

The AG read the General Assembly as having set an "outer limit": two-year forfeiture is the maximum penalty for nonpayment. Within that limit, the Supreme Court has authority (delegated by § 54.1-3912) to provide intermediate, less severe consequences. The 60-day administrative suspension is a reasonable, less-severe penalty operating well inside the outer limit. The two penalties are "separate and distinct, with the more severe penalty of forfeiture imposed for a longer period of delinquency."

A footnote noted the AG was assuming, without deciding, that art. VI, § 5 even applies to court rules in this scenario.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Section 54.1-3912 provides: "The Supreme Court may promulgate rules and regulations fixing a schedule of fees to be paid by members of the Virginia State Bar ... and providing for the collection and disbursement of such fees."

Under that delegation, the Supreme Court promulgated Part 6, § IV, Paragraph 11 (setting the active and associate member fees) and Paragraph 19 (delinquency, notice, and administrative suspension procedure). Paragraph 19 requires the Bar's Secretary-Treasurer to mail a notice to a delinquent member by August (after a July 31 deadline) demanding compliance within 60 days and payment of a $50 delinquency fee. Failure to comply within 60 days triggers administrative suspension of the member's Bar status. An administrative suspension does not relieve the member of the obligation to continue paying dues or completing CLE; it just suspends the ability to practice. The member can cure the suspension by paying the back dues, the delinquency fee, and the reinstatement fee.

Section 54.1-3914 deals with much more serious noncompliance: failure to pay annual fees for two successive years results in forfeiture of the law license. The Executive Director gives the attorney timely notice; if no payment within six months, the Executive Director removes the name from the list of qualified attorneys and notifies the Clerk of the Supreme Court. Forfeiture is cured by application and payment of "a sum equal to the aggregate of all fees which are due, plus a penalty of $100."

Virginia Constitution art. VI, § 5 gives the Supreme Court authority to make rules governing the practice and procedure of all courts, but provides that any such rule shall not be in conflict with the general law. The Delegate's challenge was that the suspension rule was a "rule" that conflicted with § 54.1-3914's "general law" forfeiture.

Common questions

Q: Does the 60-day suspension affect every bar member who's a day late?
A: Not immediately. The clock starts only when the Secretary-Treasurer mails the notice after the July 31 nonpayment. The member then has 60 days from that notice to comply. So the actual practical timeline is longer than 60 days from the due date.

Q: What happens during an administrative suspension?
A: The member can't hold himself or herself out as a member of the Virginia State Bar or practice law. But the member still owes dues, still needs CLE, and can cure by paying the back fees, the $50 delinquency fee, and the reinstatement fee.

Q: If a lawyer goes two years without paying, is forfeiture automatic?
A: Section 54.1-3914 builds in a six-month grace period after the Executive Director's notice. The forfeiture isn't automatic on day 1 of year 3; the lawyer has six months from notice to pay before name removal.

Q: How is forfeiture different from administrative suspension?
A: Administrative suspension is reversible by paying back fees and reinstatement. Forfeiture requires application and a $100 penalty on top of all back fees. Forfeiture also formally removes the name from the qualified-attorney list (the Clerk of the Supreme Court is notified), whereas suspension is internal to the Bar's records.

Q: Why did the Delegate question whether this is constitutional?
A: The challenge would be that the General Assembly, by setting the forfeiture rule, occupied the field of nonpayment penalties, leaving no room for the Supreme Court to impose a separate intermediate penalty. The AG read § 54.1-3912 as expressly delegating fee enforcement authority to the Court, with § 54.1-3914 setting an outer limit, not the whole field.

Q: What's the role of art. VI, § 5?
A: Art. VI, § 5 lets the Supreme Court make rules of practice and procedure that don't conflict with general law. The opinion assumed (without deciding) that the rule here falls under that provision and held the rule doesn't conflict with the statutory forfeiture.

Q: Could the General Assembly forbid administrative suspension by statute?
A: The opinion doesn't say, but the structure suggests yes: the General Assembly delegated fee enforcement authority under § 54.1-3912, and it could revise that delegation. The two-year forfeiture rule is the only express limit; an explicit limit on intermediate suspension would be a clear retraction of delegated authority.

Q: Does this apply to inactive bar members or recently admitted members?
A: The opinion does not address membership categories specifically; it addressed the basic suspension/forfeiture interplay. Part 6, § IV of the Rules has its own classifications and procedures for different member types.

Citations

The opinion is built on § 54.1-3912 and § 54.1-3914, Va. Const. art. VI, § 5, and Part 6, § IV, Paragraphs 11 and 19 of the Rules of the Supreme Court of Virginia. It contains no case citations.

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2019/19-030-Rodman-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

Cynthia E. Hudson
Chief Deputy Attorney General

November 8, 2019

202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

The Honorable Debra H. Rodman
Member, Virginia House of Delegates
Post Office Box 17278
Henrico, Virginia 23226

Dear Delegate Rodman:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented
You ask whether suspension of a law license for failure to pay Virginia State Bar annual fees within 60 days of notice of delinquency under the Rules of the Supreme Court of Virginia conflicts with the penalty of license forfeiture imposed by the General Assembly in § 54.1-3914 of the Code of Virginia for nonpayment of fees for two successive years, thereby rendering the Rules, in pertinent part, unconstitutional under Article VI, § 5 of the Constitution of Virginia.

Applicable Law and Discussion
Section 54.1-3912 of the Code of Virginia provides in relevant part that "[t]he Supreme Court may promulgate rules and regulations fixing a schedule of fees to be paid by members of the Virginia State Bar ... and providing for the collection and disbursement of such fees."[1] Accordingly, the Supreme Court has promulgated rules establishing the amount of annual fees for each active and associate member and proscribing and imposing a penalty for nonpayment.[2]

Specifically, Part 6, § IV of the Rules of the Supreme Court compels the Secretary-Treasurer of the Virginia State Bar, upon a bar member's nonpayment of annual fees by July 31, to mail a notice to the Bar member advising him of his noncompliance and demanding both (1) compliance within sixty days of the date of such notice, and (2) payment of a delinquency fee of $50. Should the member fail to comply with this directive within the allotted time, the Virginia State Bar shall then suspend the attorney's membership in the Bar.[3] "An administrative suspension shall not relieve the delinquent member of his or her annual responsibility to attend continuing legal education programs or to pay his or her dues to the Virginia State Bar."[4] Thus, even while an attorney's ability to practice law or hold himself out as a member of the Virginia State Bar has been administratively suspended, the attorney must continue to honor his obligations to the Bar. The attorney can cure the administrative suspension by paying in full the delinquent annual fees, along with delinquency and reinstatement fees.

Section 54.1-3914 provides that any attorney licensed to practice law in Virginia who fails to pay annual fees for two successive years "shall thereby forfeit his license to practice law in this Commonwealth."[5] In such event, the Executive Director of the Virginia State Bar shall give timely notice to the nonpaying attorney, and if payment is not made within six months from the date of that notice, the Executive Director shall remove the name of the attorney from the list of persons qualified to practice law in Virginia and notify the Clerk of the Supreme Court of Virginia that the name of the attorney has been removed.[6] After such forfeiture, an attorney may have his name restored on the list of persons qualified to practice law by application and payment of "a sum equal to the aggregate of all fees which are due, plus a penalty of $100."[7] Thus, the payment of all accrued annual, delinquency, and reinstatement fees, plus a penalty of $100, cures the forfeiture.

You ask whether § 54.1-3914 and the Rules of the Supreme Court of Virginia are in conflict with one another. Here, general law authorizes the Supreme Court to promulgate rules and regulations to fix and collect fees.[8] The Supreme Court has exercised this authority by promulgating Part Six, § IV, Paragraphs 11 and 19 of the Rules of the Supreme Court. An administrative suspension of membership in the Bar pursuant to these rules is a reasonable exercise of the authority set forth in § 54.1-3912 and does not conflict with the harsher requirement for forfeiture of an attorney's license to practice law imposed by § 54.1-3914. The two penalties are separate and distinct, with the more severe penalty of forfeiture imposed for a longer period of delinquency.

Thus, a careful reading of Virginia law is instructive here. In essence, the General Assembly, by enacting § 54.1-3914, established an outer limit of conduct and corresponding penalty for nonpayment of annual fees. Within this confine, however, the General Assembly has authorized the Supreme Court to penalize nonpayment of such fees. In my view, this authority has been properly and reasonably exercised by promulgation of Part Six, § IV, Paragraphs 11 and 19 of the Rules of the Supreme Court of Virginia.

Conclusion
For the reasons given above, it is my opinion that Part Six, § IV, Paragraphs 11 and 19 of the Rules of the Supreme Court of Virginia do not conflict with § 54.1-3914 or violate Article VI, § 5 of the Constitution of Virginia.[9]

With kindest regards, I am,

Very truly yours,

Mark R. Herring
Attorney General

1. VA. CODE ANN. § 54.1-3912 (2013).
2. VA. SUP. CT. R. Pt. 6, § IV, Paras. 11, 19.
3. VA. SUP. CT. R. Pt. 6, § IV, Para. 19.
4. Id.
5. VA. CODE ANN. § 54.1-3914 (2013).
6. Id.
7. Id.
8. VA. CODE ANN. § 54.1-3912; see also VA. CODE ANN. § 54.1-3914 (requiring payment of fees imposed by the Supreme Court of Virginia as provided for in § 54.1-3912).
9. For purposes of this opinion, I assume, without deciding, that Article VI, § 5 of the Constitution of Virginia applies to the court rules in the scenario you present.