PRESENT: All the Justices 

ERIC JOSEPH LIVINGSTON 

 OPINION BY 

v. Record No. 122144 CHIEF JUSTICE CYNTHIA D. KINSER 

 June 6, 2013 

VIRGINIA STATE BAR 

FROM THE VIRGINIA STATE BAR DISCIPLINARY BOARD 

In this appeal of right by an attorney from an order of the 

Virginia State Bar Disciplinary Board (Disciplinary Board), we 

conduct an independent review of the record to determine whether 

there is clear and convincing evidence that Eric Joseph 

Livingston violated Rules 1.1, 3.1, and 3.8(a) of the Virginia 

Rules of Professional Conduct. Because we find such evidence 

only with regard to the violation of Rule 1.1, we will affirm in 

part and reverse in part the Disciplinary Board's order and 

remand for consideration of an appropriate sanction. 

I. RELEVANT FACTS AND PROCEEDINGS 

Pursuant to Part 6, Section IV, Paragraph 13-16(A) of the 

Rules of this Court, the Virginia State Bar (VSB) served 

Livingston with a Charge of Misconduct, alleging that he 

violated Rule 1.1 requiring competent representation, Rule 3.1 

regarding assertion of frivolous claims or contentions, and Rule 

3.8(a) addressing additional responsibilities of a prosecutor. 

The Charge of Misconduct related to Livingston's conduct, as an 

Assistant Commonwealth's Attorney in Prince George County, 
2 

during his prosecution of James Collins on drug-related 

offenses. 

Collins was arrested after he purchased 50 pills of what he 

believed were 80 mg Oxycontin from an undercover police officer 

at a park within 1,000 feet of a public school in Prince George 

County. The pills that Collins purchased were imitations of the 

actual prescription drug and were made especially for undercover 

drug operations. 

Collins initially agreed to work with police narcotics 

investigators as an informant, but after he stopped doing so, 

Livingston obtained two direct indictments against Collins. In 

the first indictment, a grand jury charged that Collins "did 

manufacture, sell, give, distribute or possess with the intent 

to manufacture, sell, give, or distribute, a controlled 

substance listed in Schedule I or Schedule II of the Drug 

Control Act namely Oxycodone, in violation of" Code § 18.2-248.1 

In the second indictment, the grand jury charged that Collins 

did manufacture, sell or distribute or 

possess with intent to sell, give or 

distribute any controlled substance, 

imitation controlled substance or marijuana 

while upon the property, including buildings 

and grounds, of any public or private 

elementary, secondary, or post secondary 

school, or any public or private two-year or 

four-year institution of higher education; 

or upon public property or any property open 

 1 Oxycodone is the generic name for Oxycontin. See Startin 

v. Commonwealth, 281 Va. 374, 376, 706 S.E.2d 873, 875 (2011). 
3 

to public use within 1,000 feet of such 

school property, in violation of [Code § 

18.2-255.2]. 

Collins was tried on both indictments in a bench trial in 

the Circuit Court of Prince George County. During the trial, 

Livingston called a surveillance narcotics officer and the 

undercover police officer as witnesses. The undercover police 

officer testified that she sold Collins the 50 pills in exchange 

for $500. The surveillance narcotics officer testified that 

after Collins' arrest, Collins initially stated that he intended 

to keep all 50 pills for himself but, in a subsequent interview, 

admitted he could sell each pill for $80. 

After Collins moved to dismiss both charges at the close of 

the Commonwealth's evidence and again at the close of all the 

evidence, the parties submitted to the trial court memoranda 

addressing two issues: (1) whether Collins was guilty of 

possession with the intent to distribute a controlled substance 

when he was unaware that the item possessed was an imitation 

controlled substance; and (2) whether the Commonwealth must 

prove that Collins actually intended to distribute the imitation 

controlled substance within 1,000 feet of public school 

property. 

As to the first issue, Livingston conceded in his 

memorandum that it would be error for the trial court to find 

Collins guilty of possession with the intent to distribute 
4 

Oxycodone because the pills he purchased were an imitation 

controlled substance. Livingston, nevertheless, asserted that 

factual impossibility was not a defense to an attempted crime. 

Accordingly, Livingston moved to amend the indictment to the 

charge of "attempt to possess with the intent to distribute a 

controlled substance." 

On the second issue, Livingston argued that the decision in 

Toliver v. Commonwealth, 38 Va. App. 27, 561 S.E.2d 743 (2002), 

was not controlling. He maintained that unlike the defendant in 

Toliver, who was chased onto school property, Collins' purchase 

of the imitation controlled substance and his subsequent 

statement to a police officer that he could sell each pill for 

approximately $80 established that, while within 1,000 feet of a 

public school, Collins possessed the pills and had the intent to 

distribute them. 

The trial court denied Livingston's motion to amend the 

first indictment, finding that the "motion [was] untimely" and 

stating that if Livingston believed it appropriate, he could 

"reindict" Collins. The trial court entered an order dismissing 

the first and second indictments; however, in the order, the 

court referred to the charge in the second indictment as 

"possession with intent to distribute marijuana on or near 

school property." Collins moved to amend that portion of the 

order by substituting the phrase "imitation controlled 
5 

substance" for the word "marijuana." Because of concerns about 

possible res judicata or collateral estoppel arguments that 

Collins might raise, Livingston opposed the wording of Collins' 

requested amendment but agreed to an amendment of the order 

substituting the exact language of the offense as charged in the 

indictment for the word "marijuana." The trial court agreed and 

entered an order adopting Livingston's proposed wording. 

Livingston subsequently presented a third indictment to a 

grand jury, which charged that Collins "did manufacture, sell, 

give, or distribute an imitation controlled substance which 

imitates a schedule I or II controlled substance, namely, 

Oxycodone, in violation of" Code § 18.2-248. Collins moved to 

dismiss that indictment on the basis of, among other things, 

double jeopardy. At the hearing on the motion, Livingston 

referred to the charge in the third indictment as "possession 

with intent to distribute" even though the indictment charged a 

different offense, i.e., "manufacture, sell, give, or 

distribute." Livingston never moved to amend the third 

indictment to charge possession with the intent to distribute, 

and the trial court granted Collins' motion to dismiss it. 

Livingston challenged the trial court's judgment dismissing 

the third indictment in an appeal to the Court of Appeals of 

Virginia. The Court of Appeals dismissed the appeal because 

Livingston failed to file a timely petition for appeal. In his 
6 

"brief" filed in the Court of Appeals, Livingston again 

incorrectly referred to the charge in the third indictment as 

"possession with intent to distribute" while at the same time 

quoting the charge in the indictment verbatim. 

Based on these facts, the VSB charged that Livingston was 

"incompetent" in approving the issuance of the first indictment 

and proceeding to trial because it charged possession with the 

intent to distribute a controlled substance, Oxycodone, when 

Livingston knew that the pills Collins purchased were an 

imitation controlled substance. The indictment, according to 

the VSB, was not supported by probable cause. In the Charge of 

Misconduct, the VSB further alleged that Livingston was 

"incompetent and obtained an indictment not supported by 

probable cause when he obtained the third indictment" because 

Livingston knew there was no evidence that Collins actually 

manufactured or distributed the pills. Furthermore, the VSB 

claimed that Livingston repeatedly and incorrectly referred to 

the third indictment as charging possession with the intent to 

distribute. The VSB also charged that Livingston was 

"incompetent" when he filed the petition for appeal late. 

Finally, the VSB alleged that Livingston "maintained an argument 

that was frivolous in objecting to the substitution of the words 

'imitation controlled substance'" for the word "'marijuana.'" 
7 

In a hearing before the Third District Committee, Section I 

of the VSB (District Committee), Livingston testified that he 

has worked as a prosecutor since he obtained his license to 

practice law in 2007. He acknowledged that he has handled 

hundreds of cases involving drug-related offenses, including 

charges of possession with the intent to distribute. With 

regard to the first indictment, Livingston admitted that in 

other instances involving a controlled buy of an imitation 

controlled substance, he had always charged the suspect with 

possession with the intent to distribute the imitation 

controlled substance. Livingston explained that he previously 

had not charged possession with the intent to distribute the 

controlled substance because he "never had the person actually 

handling it, examining it, being satisfied that it's Oxycodone, 

and having such a good statement where he intends to sell it for 

$80 a pill." Also, after researching the issue of factual and 

legal impossibility, Livingston believed he had probable cause 

to indict Collins for possession with the intent to distribute 

the actual controlled substance. According to Livingston, he 

did not realize he had misanalysed the law until he prepared the 

post-trial memorandum.2

 2

 Livingston testified that when he researched the issue of 

factual and legal impossibility, he "glazed over the section" 

and did not recognize that the cases he was reviewing involved 

charges of attempted offenses, not completed crimes. 
8 

As to the second indictment, Livingston admitted that he 

had not read the decision in Toliver when he presented that 

indictment to the grand jury. In fact, Livingston did not read 

that opinion until after Collins' attorney discussed it in his 

brief to the trial court. Livingston also acknowledged that he 

could not prove where Collins intended to distribute the pills. 

But, Livingston asserted, Code § 18.2-255.2 could be interpreted 

to require only a showing that when Collins was within 1,000 

feet of public school property, he possessed the pills with the 

intent to distribute them, even if the distribution was to be 

accomplished elsewhere. According to Livingston, he did not 

have to prove that Collins intended to distribute the pills 

within the prohibited school zone.3

With regard to the third indictment, evidence presented at 

the hearing showed that Livingston instructed his staff to 

prepare an indictment for possession with the intent to 

distribute an imitation controlled substance. Livingston 

admitted that he never reviewed the indictment for accuracy 

before presenting it to a grand jury and that he repeatedly 

referred to the charge as possession with the intent to 

 3

 Contrary to Livingston's argument, the Court of Appeals in 

Toliver clearly held that Code § 18.2-255.2 "does not state that 

it prohibits possession of a controlled substance while upon 

school property, or within 1,000 feet thereof, with the intent 

to sell, give or distribute the substance elsewhere." 38 Va. 

App. at 32, 561 S.E.2d at 746. 
9 

distribute, even though the indictment charged a different 

offense. Livingston claimed that he did not realize the mistake 

until he received the Charge of Misconduct from the VSB. 

At the conclusion of the hearing, the District Committee 

found that Livingston violated Rules 1.1, 3.1, and 3.8(a) and 

sanctioned him by imposing a public reprimand with terms.4 

Livingston appealed the District Committee's determination, in 

accordance with Part 6, Section IV, Paragraph 13-17(A), to the 

Disciplinary Board. After hearing argument from the parties and 

reviewing the parties' briefs along with the record from the 

District Committee hearing, the Disciplinary Board found that 

"there is substantial evidence in the record upon which the 

District Committee could reasonably have found as it did." The 

Disciplinary Board thus affirmed the District Committee's 

determination that Livingston violated Rules 1.1, 3.1, and 

3.8(a) and imposed the same sanction. Pursuant to Part 6, 

Section IV, Paragraph 13-26 of the Rules of this Court, 

Livingston appeals the Disciplinary Board's Memorandum Order 

dated October 5, 2012 and challenges the Disciplinary Board's 

determination that substantial evidence exists in the record to 

support the District Committee's findings. 

 4

 The terms required Livingston to complete two hours of 

Continuing Legal Education on the subject of ethics, in addition 

to the two hours required annually, and to certify completion of 

such hours to the VSB no later than December 9, 2012.
10 

II. ANALYSIS 

A. Standard of Review 

The VSB has the burden to prove by clear and convincing 

evidence that an attorney violated the Rules of Professional 

Conduct. Weatherbee v. Virginia State Bar, 279 Va. 303, 306, 

689 S.E.2d 753, 754 (2010). In reviewing the Disciplinary 

Board's decision, "we conduct an independent examination of the 

entire record." Williams v. Virginia State Bar, 261 Va. 258, 

264, 542 S.E.2d 385, 389 (2001); accord Northam v. Virginia 

State Bar, 285 Va. 429, 435, 737 S.E.2d 905, 908 (2013). We 

review the evidence and all reasonable inferences that may be 

drawn from the evidence in the light most favorable to the VSB, 

the prevailing party. El-Amin v. Virginia State Bar, 257 Va. 

608, 612, 514 S.E.2d 163, 165 (1999). We give factual findings 

substantial weight and view them as prima facie correct. Id. 

The factual conclusions are not given the weight of a jury 

verdict, but they "will be sustained unless it appears they are 

not justified by a reasonable view of the evidence or are 

contrary to law." Id. (internal quotation marks and citation 

omitted). 

B. Rule 1.1 - Competence 

Rule 1.1 provides that a "lawyer shall provide competent 

representation to a client. Competent representation requires 

the legal knowledge, skill, thoroughness and preparation 
11 

reasonably necessary for the representation." To determine 

"whether a lawyer employs the requisite knowledge and skill in a 

particular matter, relevant factors include . . . the lawyer's 

training and experience in the field in question, the 

preparation and study the lawyer is able to give the matter and 

whether it is feasible to refer the matter to, or associate or 

consult with, a lawyer of established competence in the field in 

question." Va. Sup. Ct. R., Part 6, § II, R. 1.1, cmt. 1. In 

addition, "[c]ompetent handling of a particular matter includes 

inquiry into and analysis of the factual and legal elements of 

the problem, and use of methods and procedures meeting the 

standards of competent practitioners. It also includes adequate 

preparation." Id. at cmt. 5. 

"Whether an attorney is subject to discipline for failing 

to provide competent representation is a matter decided on a 

case by case basis." Barrett v. Virginia State Bar, 272 Va. 

260, 272, 634 S.E.2d 341, 347 (2006). For example, in Barrett, 

we considered charges of misconduct that arose from an attorney's 

failure to file or settle a personal injury lawsuit prior to the 

expiration of the statute of limitations, filing a special plea 

based on incorrect legal research, and delay in reading 

responsive pleadings and withdrawing the special plea. Id. at 

271, 634 S.E.2d at 347. The Court concluded that the attorney's 

conduct, while negligent or in error, nevertheless did not 
12 

constitute clear and convincing evidence of incompetence under 

Rule 1.1. Id. at 272, 634 S.E.2d at 347-48. We explained that 

"negligence without more," or "incorrect legal research alone," 

or practicing law in a manner that is not the "preferred way" 

did not support a finding of incompetent representation. Id. 

However, in Green v. Virginia State Bar, 274 Va. 775, 652 

S.E.2d 118 (2007), we affirmed a judgment holding that an 

attorney violated Rule 1.1 when he filed an appeal in the wrong 

court and did not advise his client that the appeal had been 

dismissed, and when he failed to timely file another appeal and 

again did not inform his client that the appeal had been 

dismissed. Id. at 781-91, 652 S.E.2d at 120-26; see also Motley 

v. Virginia State Bar, 260 Va. 251, 263-64, 536 S.E.2d 101, 106-

07 (2000) (imposing discipline for incompetence under former DR 

6-101 when an attorney permitted his client to sign a promissory 

note that did not reflect the parties' agreement and caused 

consequences the attorney did not understand). 

In this case, Livingston concedes that he made three 

"mistakes" in his prosecution of Collins: (1) reaching an 

incorrect legal conclusion about the law of factual 

impossibility and thus erroneously charging Collins with 

possession with the intent to distribute the actual controlled 

substance; (2) obtaining the third indictment for distribution 

of an imitation controlled substance rather than for possession 
13 

with the intent to distribute and failing to recognize that 

mistake during the trial and on appeal; and (3) missing the 

deadline for filing the petition for appeal in the Court of 

Appeals.5

 Livingston argues, however, that while these mistakes 

might constitute negligence, they do not rise to the level of 

clear and convincing evidence of incompetent representation in 

violation of Rule 1.1. 

Based on our "independent examination of the entire 

record," giving the District Committee's factual findings 

"substantial weight and view[ing] them as prima facie correct," 

we find no error in the Disciplinary Board's order holding that 

Livingston violated Rule 1.1. Williams, 261 Va. at 264, 542 

S.E.2d at 389. During the prosecution of Collins, he failed to 

provide the "thoroughness and preparation reasonably necessary 

for the representation" of his client, the Commonwealth. Rule 

1.1. Even if an attorney has the necessary legal knowledge and 

skill, "thoroughness and preparation" require the "[c]ompetent 

handling of a particular matter," which includes "inquiry into 

and analysis of the factual and legal elements of the problem 

and use of methods and procedures meeting the standards of 

 5

 Livingston does not acknowledge any mistake with regard to 

the second indictment charging possession with the intent to 

distribute an imitation controlled substance within 1,000 feet 

of public school property or his failure to read the decision in 

Toliver until after Collins' attorney cited it to the trial 

court. 
14 

competent practitioners." Va. Sup. Ct. R., Part 6, § II, R. 

1.1, cmt. 5 (emphasis added). 

Livingston obtained three indictments against Collins. 

Each was based on factual and/or legal errors due not to mere 

negligence, but to his failure to analyze the evidence and the 

elements of the charges he brought against Collins. And, 

without checking the accuracy of the charge in the third 

indictment, which contained the wrong criminal offense, he 

presented the indictment to a grand jury and pursued it in the 

trial court and also on appeal when he filed the untimely 

petition for appeal. It is not necessary to determine whether 

any one of these acts of misconduct alone would violate Rule 

1.1. In this case, viewing the record in its entirety, there is 

clear and convincing evidence that Livingston failed to provide 

competent representation to his client in the prosecution of 

Collins. 

C. Rule 3.1 - Meritorious Claims and Contentions 

In relevant part, Rule 3.1 states that "[a] lawyer shall 

not bring or defend a proceeding, or assert or controvert an 

issue therein, unless there is a basis for doing so that is not 

frivolous, which includes a good faith argument for an 

extension, modification or reversal of existing law." We have 

defined the term "frivolous" as "[o]f little weight or 

importance, having no basis in law or fact: light, slight, sham, 
15 

irrelevant, superficial." Weatherbee, 279 Va. at 309, 689 

S.E.2d at 756 (internal quotation marks and citation omitted); 

see also Black's Law Dictionary 739 (9th ed. 2009) (defining the 

term "frivolous" as "[l]acking a legal basis or legal merit; not 

serious; not reasonably purposeful"). 

The Charge of Misconduct alleged that Livingston 

"maintained an argument that was frivolous in objecting to the 

substitution of the words 'imitation controlled substance' for 

'marijuana,'" because "he anticipated that [Collins] would then 

argue to dismiss the third indictment due to collateral estoppel 

and double jeopardy."6

 However, the record shows that Livingston 

 6

 The VSB also argues that Livingston violated Rule 3.1 by 

obtaining three indictments against Collins that had no basis in 

law or fact. However, the VSB did not make that argument at the 

District Committee hearing. Not until questioning by members of 

the Disciplinary Board did the VSB take the position that it was 

not relying solely on Livingston's objection to the proposed 

amended wording of the dismissal order as the basis for the 

charge that he violated Rule 3.1. Even in its brief to the 

Disciplinary Board, the VSB did not argue that Livingston's 

conduct in pursuing indictments that lacked probable cause 

violated Rule 3.1. Although a proceeding to discipline an 

attorney is an informal proceeding, an attorney nevertheless is 

entitled to be informed of the nature of the charge against him. 

See Moseley v. Virginia State Bar, 280 Va. 1, 3, 694 S.E.2d 586, 

589 (2010); Virginia State Bar v. Gunter, 212 Va. 278, 284, 183 

S.E.2d 713, 717 (1971). Given the language of the Charge of 

Misconduct and the VSB's position at the District Committee 

hearing when evidence was presented, we conclude that Livingston 

was not fairly informed that the VSB was including his conduct 

with regard to the three indictments as a basis for the charge 

that he violated Rule 3.1. So, in determining whether there is 

clear and convincing evidence that Livingston violated Rule 3.1, 

we will consider only his response to the motion to amend the 

order dismissing the second indictment. 
16 

did not oppose the amendment of the order dismissing the second 

indictment. Instead, Livingston stated to the trial court that 

"the Commonwealth doesn't oppose [the] motion to modify, the 

Commonwealth opposes [the] motion to modify as written." 

Moreover, the trial court adopted Livingston's position and 

amended the order to include the language that Livingston urged. 

Based on our independent review of the record, we do not 

find clear and convincing evidence that Livingston violated Rule 

3.1. The argument he asserted in response to Collins' motion to 

amend the language of the order dismissing the second indictment 

was not frivolous. Thus, the portion of Disciplinary Board's 

order finding that Livingston violated Rule 3.1 was in error. 

D. Rule 3.8 - Additional Responsibilities of a Prosecutor 

Pursuant to Rule 3.8(a), a prosecutor may "not file or 

maintain a charge that the prosecutor knows is not supported by 

probable cause." A prosecutor is prohibited "from initiating or 

maintaining a charge once he knows that the charge is not 

supported by even probable cause." Va. Sup. Ct. R., Part 6, § 

II, R. 3.8, cmt. 1a. The term "knows" "denotes actual knowledge 

of the fact in question. A person's knowledge may be inferred 

from circumstances." Va. Sup. Ct. R., Part 6, § II, Preamble. 

Livingston argues that he did not initiate or maintain any 

indictment against Collins with actual knowledge that it was not 
17 

supported by probable cause. He asserts, instead, that his 

"negligence" led to the mistakes in the indictments. 

As we have already discussed, Livingston’s erroneous and/or 

complete lack of legal research along with his failure to 

examine the evidence in conjunction with the elements of the 

respective offenses resulted in his belief, albeit erroneous, 

that he had probable cause to initiate and maintain the first 

and second indictments. After he ultimately realized that he 

could not charge Collins with possession with the intent to 

distribute the actual controlled substance, he moved to amend 

the first indictment to the charge of "attempt to possess with 

the intent to distribute a controlled substance." Livingston 

proceeded with the second indictment without reading the 

decision in Toliver. When he did read it, Livingston, 

nevertheless, surmised that Toliver could be distinguished on 

its facts, leading to his erroneous belief that he did not need 

to prove Collins intended to distribute the pills within the 

prohibited school zone. While this evidence supports the 

determination that Livingston was "incompetent" under Rule 1.1, 

it does not constitute clear and convincing evidence that 

Livingston violated Rule 3.8(a). In other words, Livingston’s 

incompetent representation of his client in pursuing the first 

and second indictments actually demonstrates that he did not 
18 

initiate and maintain those indictments with actual knowledge 

that they were not supported by probable cause. 

With regard to the third indictment, evidence introduced at 

the District Committee hearing established that Livingston 

instructed his staff to prepare an indictment charging the 

correct offense, possession with the intent to distribute an 

imitation controlled substance. Livingston admitted that he 

never reviewed the indictment for accuracy before presenting it 

to a grand jury. Accordingly, the District Committee determined 

that Livingston "did not read the indictment carefully before 

submitting it to the grand jury" and "did not realize the 

indictment did not contain the language 'possession with intent 

to distribute' until a few weeks before the District Committee 

hearing." Viewing these factual findings as prima facie 

correct, we conclude that they are "justified by a reasonable 

view of the evidence" and are not "contrary to law," meaning 

Livingston did not initiate or maintain the third indictment 

with actual knowledge that it was not supported by probable 

cause. El-Amin, 257 Va. at 612, 514 S.E.2d at 165 (internal 

quotation marks and citation omitted). 

But, we must point out that "[a]n indictment is a written 

accusation of crime, prepared by the attorney for the 

Commonwealth." Code § 19.2-216 (emphasis added). Livingston 

quoted the charge in the third indictment verbatim in his brief 
19 

to the Court of Appeals, i.e., that Collins did "manufacture, 

sell, give, or distribute an imitation controlled substance 

. . . in violation" of Code § 18.2-248. And, he signed that 

brief as the attorney of record for the Commonwealth. See Code 

§ 8.01-271.1. His signature constituted "a certificate" that he 

had read the brief, and having done so, he then should have 

realized that the third indictment contained the wrong charge. 

Id. As with the first and second indictments, these 

circumstances likewise support the determination that Livingston 

did not provide competent representation to his client as 

required by Rule 1.1. But, in light of the District Committee’s 

factual findings, we cannot infer from these circumstances 

Livingston’s actual knowledge that the third indictment lacked 

probable cause to support it. See Va. Sup. Ct. R., Part 6, § 

II, Preamble. 

Thus, with regard to all three indictments, the record does 

not contain clear and convincing evidence that Livingston 

violated Rule 3.8(a). The portion of the Disciplinary Board’s 

order finding a violation of this Rule was in error. 

III. CONCLUSION 

For these reasons, we will affirm the portion of the 

Disciplinary Board's order finding that Livingston violated Rule 

1.1 and reverse the part of the order finding that he violated 

Rules 3.1 and 3.8(a). Because the sanction imposed by the 
20 

Disciplinary Board was a single sanction for violation of all 

three Rules, we will vacate the sanction and remand for further 

consideration of an appropriate sanction for Livingston's 

violation of Rule 1.1. See Barrett, 272 Va. at 273, 634 S.E.2d 

at 348. 

Affirmed in part, 

reversed in part, 

and remanded.