Did a Virginia Commonwealth's attorney have to ask a circuit court's permission to stop handling an appealed misdemeanor case?

Currency note

This opinion was issued in 2008. 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.

Plain-English summary

A circuit court chief judge asked the Attorney General whether Rule 1:5 of the Rules of the Supreme Court of Virginia, which governs an attorney's withdrawal as "counsel of record," applied to Commonwealth's attorneys, and specifically whether a prosecutor had to get the circuit court's permission before dropping an appealed misdemeanor case he chose not to prosecute.

The opinion concluded that Rule 1:5 and the related order-endorsement rule, Rule 1:13, applied to Commonwealth's attorneys the same as to any other lawyer once they became "counsel of record" by appearing in a case, whether civil or criminal. But being counsel of record was treated as a court-by-court matter: since an appeal of a misdemeanor conviction from general district court to circuit court created an entirely new case (a trial de novo), a prosecutor who had not yet made an appearance in that circuit court proceeding did not need the circuit court's leave to decline to enter an appearance or prosecute the appeal. The opinion also noted that while Rule 1:13 required notice or endorsement of proposed orders by counsel of record, courts retained broad discretion to dispense with that requirement.

Background and analysis (as of 2008)

The request arose from a circuit's practice of treating an attorney who was counsel of record in a general district court proceeding as automatically counsel of record in the circuit court appeal. The opinion reasoned that Rule 1:5's definition of "counsel of record," someone who has signed a pleading or notified the clerk in writing of an appearance, contained nothing that excluded Commonwealth's attorneys, and that reading the rule to exclude prosecutors entirely would be contrary to precedent and to the harmonious reading of related rules like Rule 1:4(l). At the same time, the opinion recognized that Commonwealth's attorneys have broad statutory discretion under § 15.2-1627(B) over whether to prosecute Class 1, 2, and 3 misdemeanors, and that an appeal to circuit court for a trial de novo wipes away the district court proceeding as if there had been no prior trial, meaning the appealing attorney's appearance in the new proceeding, not the old one, controlled whether Rule 1:5's withdrawal procedure applied.

Citations and references

Statutes and rules (as they stood in 2008):

• VA. SUP. CT. R. 1:5, definition of "counsel of record" and the withdrawal procedure
• VA. SUP. CT. R. 1:13, endorsement or notice requirement for draft orders and decrees
• §§ 16.1-132, 16.1-136, appeal of a general district court conviction to circuit court
• § 15.2-1627(B) (2008), Commonwealth's attorney's discretion to prosecute certain misdemeanors

Cases:

• Cregger v. Commonwealth, 25 Va. App. 87, 486 S.E.2d 554 (1997), an appeal to circuit court invokes that court's jurisdiction as a new proceeding
• Walker v. Dep't of Pub. Welfare, 223 Va. 557, 290 S.E.2d 887 (1982), a trial de novo proceeds as if there had been no previous trial
• Smith v. Stanaway, 242 Va. 286, 410 S.E.2d 610 (1991), notice or endorsement is unnecessary when counsel are present when a ruling is announced orally

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2008/08-056-Dorsey.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Robert F. McDonnell

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

October 21, 2008

The Honorable Charles E. Dorsey
Chief Judge Twenty-Third Judicial Circuit
P.O. Box 211
Roanoke, Virginia 24002-0211
Dear Judge Dorsey:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of
the Code of Virginia.
Issues Presented
You ask whether Rule 1:5 of Rules of the Supreme Court of Virginia (the "Rules"), regarding
withdrawal of counsel, applies to a Commonwealth's attorney in a civil or criminal proceeding. You also
ask whether counsel of record must endorse an order to allow the Commonwealth's attorney to withdraw
and whether the Commonwealth's attorney must give reasonable notice about the presentment of such
order. Finally, you ask whether a Commonwealth's attorney must obtain leave from the court to withdraw
as counsel when he chooses not to prosecute a misdemeanor conviction that was appealed from general
district court.
Response
Where a Commonwealth's attorney has become "counsel of record" by making an appearance in
a particular court, whether in civil or criminal proceedings, it is my opinion that Rules 1:5 and 1:13 of the
Rules of the Supreme Court of Virginia apply. It is my opinion that a Commonwealth's attorney is not
required to seek leave from the circuit court to withdraw from an appeal of a misdemeanor conviction
from general district court, if he has not yet made an appearance in that de novo proceeding. Finally, it is
my opinion that although Rule 1:13 applies to Commonwealth's attorneys regarding notice and
endorsement of orders, courts have broad discretion to dispense with endorsements.
Applicable Law and Discussion
You indicate that your questions arise based on decisions of a Commonwealth's attorney in your
circuit not to prosecute certain misdemeanor cases appealed from general district court to circuit court.
You relate that it is the practice of your court to treat counsel of record in a general district court
proceeding as ipso facto counsel of record in a circuit court proceeding. For example, when a defendant
appeals his conviction from the general district court under §§ 16.1-132 and 16.1-136, you ask whether
that attorney must seek leave to withdraw as counsel in accordance with Rules 1:5 and 1:13.

The Honorable Charles N. Dorsey
October 21, 2008
Page 2
Part One of the Rules ("Part One") by its terms applies to "all proceedings," including those
involving Commonwealth's attorneys. Rule 1:5 provides, in pertinent part, that:
When used in these Rules, the word "counsel" includes a partnership, a professional
corporation or an association of members of the Virginia State Bar practicing under a firm
name.
When such firm name is signed to a pleading, notice or brief, the name of at least one
individual member or associate of such firm must be signed to it. Signatures to briefs and
petitions for rehearing may be printed or typed and need not be in handwriting.
Service on one member or associate of such firm shall constitute service on the
firm.…
"Counsel of record" includes a counsel or party who has signed a pleading in the case
or who has notified the other parties and the clerk in writing that he appears in the case.
Counsel of record shall not withdraw from a case except by leave of court after notice to
the client of the time and place of a motion for leave to withdraw.
Generally, Rule 1:5 appears to be directed primarily toward attorneys in private practice. Similarly, the
term "counsel of record" contemplates attorneys who have "clients" that must be notified about an
attorney's withdrawal. There are no statements that describe the unique position of a Commonwealth's
attorney whose "client" is the Commonwealth. However, no part of Rule 1:5 specifically excludes
2
Commonwealth's attorneys. Court rules, like statutes, should be interpreted whenever possible in a
manner that harmonizes the rules. If a Commonwealth's attorney is not considered as "counsel" or
"counsel of record" under Rule 1:5, then it follows that none of the Rules would apply to him. Such an
3
interpretation is contrary to precedent and reason.

Additionally, Rule 1:4(l) provides that "[e]very pleading, motion or other paper served or filed
shall contain at the foot the office address and telephone number of the counsel of record submitting it,
along with any facsimile number regularly used for business purposes by such counsel of record." Rule
1.4(1), which parallels Rule 1:5, envisions that every attorney filing a pleading or motion is "counsel of
record." Therefore, I cannot interpret Rule 1:5 to apply narrowly only to private attorneys.

Upon an appeal from the general district court for a trial de novo, the proceeding in circuit court
4
is an entirely new case. Indeed, the appeal wipes away the district court proceeding "'as completely as if

The Honorable Charles N. Dorsey
October 21, 2008
Page 3
5
there had been no previous trial.'" Commonwealth's attorneys have broad discretion regarding
6
prosecution of misdemeanor appeals unless an appeal is mandated by statute or city ordinance. Being
"counsel of record" is a court-by-court matter; i.e., being counsel of record in a lower court does not
7
automatically make an attorney counsel of record in other courts.
8
When an attorney files a notice of appeal, he makes an appearance before the appellate court.
After an appeal is noted, the appealing attorney must obtain leave from the appellate court to withdraw as
9
counsel. The attorney who does not appeal and does not enter an appearance before the appellate court
does not need permission to withdraw from such court.
Rule 1:13 provides that:
Drafts of orders and decrees shall be endorsed by counsel of record, or reasonable
notice of the time and place of presenting such drafts together with copies thereof shall be
served pursuant to Rule 1:12 upon all counsel of record who have not endorsed them.
Compliance with this Rule and with Rule 1:12 may be modified or dispensed with by the
court in its discretion.
As with Rule 1:5, it is my opinion that the term "counsel of record" in Rule 1:13 would include
Commonwealth's attorneys in both civil and criminal cases. Virginia courts have, in fact, applied Rule
10
1:13 to situations involving Commonwealth's attorneys. When a Commonwealth's attorney is counsel
of record, he must comply with this rule. Of course, a court may dispense with endorsements in civil and
11
criminal cases where, for example, a court provides notice of its ruling to all counsel from the bench.

Footnotes:
2 The Supreme Court of Virginia interprets its own rules. See Brown v. Black, 260 Va. 305, 311, 534 S.E.2d 727,
730 (2000). In interpreting rules of court, "other canons of construction are commonly used." 3A NORMAN J.
SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 67:14, at 233 (6th ed. 2003). "Courts will liberally construe
[court] rules to achieve their purposes." Id. at 236; see also Linkenhoker's Heirs v. Detrick, 81 Va. 44, 50 (1885)
("One primary canon of construction, whether of private instruments or of public statutes, is to look to every part,
and to construe every part so as to lead to a harmonious interpretation of the whole").
3 See, e.g., Palmer v. Commonwealth, Record No. 1263-05-4, 2006 Va. App. LEXIS 434, 8-9 (Oct. 3, 2006)
(applying Rule 1:13 in criminal case where court waived endorsements); see also VA. SUP. CT. R. 3A:8 (referring to
"attorney for the Commonwealth" and "counsel"); VA. SUP. CT. R. 3A:21(a) (providing that written motions must be
served on "counsel of record," which necessarily must include Commonwealth's attorneys).
4 See, e.g., Walker v. Dep't of Pub. Welfare, 223 Va. 557, 563, 290 S.E.2d 887, 890 (1982); Cregger v.
Commonwealth, 25 Va. App. 87, 91, 486 S.E.2d 554, 556 (1997).
5 Cregger, 25 Va. App. at 91, 486 S.E.2d at 556 (quoting Walker, 223 Va. at 563, 290 S.E.2d at 890).
6 Commonwealth's attorneys are granted broad discretion regarding the cases they choose to take or not take. See
VA. CODE ANN. § 15.2-1627(B) (2008) (providing that Commonwealth's attorney "may in his discretion prosecute
Class 1, 2 and 3 misdemeanors") (emphasis added); § 15.2-1627.3 (2008) (mandating fees that are paid to
Commonwealth's attorneys for each person "which he is required by law to prosecute") (emphasis added); Boyd v.
County of Henrico, 42 Va. App. 495, 521, 592 S.E.2d 768, 781 (2004) (discussing broad authority of prosecutors);
see also, e.g., Op. Va. Atty. Gen.: 1994 at 9; 1990 at 141, 142 (discussing prosecutorial discretion in bringing
misdemeanors before general district court, including for staffing reasons).
7 See, e.g., Green County Dep't of Soc. Servs. v. Green, Record No. 2522-05-2, 2006 Va. App. LEXIS 452, 4
(Oct. 10, 2006) (holding that removal of counsel in Juvenile and Domestic Relations court did not affect such
attorney's position as counsel of record in circuit court).
8 Cregger, 25 Va. App. at 91, 486 S.E.2d at 556 (noting that appeal of conviction to circuit court invokes
jurisdiction of circuit court in that proceeding).
9 See, e.g., Francis v. Francis, 30 Va. App. 584, 589, 518 S.E.2d 842, 845 (1999); Kuzminski v. Commonwealth,
8 Va. App. 106, 108, 378 S.E.2d 632, 633 (1989).
10 See, e.g., Palmer, 2006 Va. App. LEXIS 434 at *8-9 (applying Rule 1:13 in criminal case where court waived
endorsements).
11 See VA. SUP. CT. R. 1:13; Smith v. Stanaway, 242 Va. 286, 289, 410 S.E.2d 610, 612 (1991) (holding that
"[n]otice or endorsement is unnecessary because, as here, counsel are present in court when the ruling is made orally
and are fully aware of the court's decision").

The Honorable Charles N. Dorsey
October 21, 2008
Page 4
Conclusion
Accordingly, where a Commonwealth's attorney has become "counsel of record" by making an
appearance in a particular court, whether in civil or criminal proceedings, it is my opinion that Rules 1:5
and 1:13 of the Rules of the Supreme Court of Virginia apply. It is my opinion that a Commonwealth's
attorney is not required to seek leave from the circuit court to withdraw from an appeal of a misdemeanor
conviction from general district court, if he has not yet made an appearance in that de novo proceeding.
Finally, it is my opinion that although Rule 1:13 applies to Commonwealth's attorneys regarding notice
and endorsement of orders, courts have broad discretion to dispense with endorsements.
Thank you for letting me be of service to you.
Sincerely,

Robert F. McDonnell