PRESENT: All the Justices 

NEIL KUCHINSKY 

 OPINION BY 

v. Record No. 131656 JUSTICE ELIZABETH A. McCLANAHAN 

 April 17, 2014 

VIRGINIA STATE BAR, EX REL. 

THIRD DISTRICT COMMITTEE 

FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS 

 Charles E. Poston, Chief Judge Designate, Ann Hunter Simpson 

and Walter W. Stout III, Judges Designate 

 In this appeal of right from an attorney disciplinary 

proceeding before a three-judge panel appointed pursuant to Code 

§ 54.1-3935, we consider whether an attorney violated Rules 

1.8(a), 3.4(d), and 8.4(a) of the Virginia Rules of Professional 

Conduct. 

I. Facts and Proceedings 

A. Background and Prior Private Admonition 

 Neil Kuchinsky is an attorney licensed to practice law in 

the Commonwealth. In March 2008, Dillwyn T. Person (“Person” or 

“Dillwyn”) hired Kuchinsky to represent him in connection with 

Dillwyn’s claim for a portion of his father’s estate.1

 Person 

and Kuchinsky entered into a contingency fee agreement providing 

that Kuchinsky would receive one-third of the first $50,000 

recovered, or its fair market value, and one-fourth of anything 

recovered in excess of that amount, or its fair market value. 

 

1

 Person’s father, Thomas McCoy Person, died intestate. At the 

time of his passing, Thomas Person owned several parcels of land 

in the City of Emporia and Greensville County, Virginia. 
2

Kuchinsky then filed a partition suit on behalf of Person 

against Person’s siblings in the Greensville County Circuit 

Court. After filing the partition suit, Kuchinsky drafted a 

quitclaim deed, which was executed by Person. The quitclaim 

deed granted Kuchinsky a 25% interest in any “right, title, and 

interest” Person may possess in the six parcels of land that 

were the subject matter of the partition suit against Person’s 

siblings “as well as 25% of any other real estate interest 

[Person] may have that may appear of record.” The quitclaim 

deed was recorded in the Greensville County Circuit Court.2

 In December 2008, the Virginia State Bar (“VSB”) received a 

complaint submitted by Dillwyn’s brother, Clinton Person. The 

complaint alleged that Kuchinsky’s acquisition of a 25% 

quitclaim interest in the subject matter of the underlying 

partition suit was a “clear conflict of interest.” In an 

agreed-upon disposition, a subcommittee of the Third District 

Committee, Section I, of the VSB, found that Kuchinsky violated 

Rule 1.8(j) of the Virginia Rules of Professional Conduct by 

 

2

 Sometime after the quitclaim deed was recorded, Person 

dismissed Kuchinsky as his counsel. However, later that year, 

Person re-employed Kuchinsky and executed a second fee agreement 

which stated that Person would pay Kuchinsky’s attorney’s fees 

for any unproven bar complaints lodged against Kuchinsky, 

reaffirmed that Kuchinsky had earned “all prior fees” (including 

the 25% quitclaim interest), and waived potential conflicts of 

interest in the renewed representation. 
3

acquiring “a proprietary interest in the cause of action or 

subject matter of litigation.”3 As a result, Kuchinsky was 

issued a private admonition without terms on February 18, 2010. 

B. Events Occurring After the Private Admonition 

 On March 24, 2010, an Order was entered in the partition 

suit between Person and his siblings appointing a Special 

Commissioner for the purpose of conveying the property that was 

subject to the suit. The Special Commissioner then executed a 

deed conveying to Kuchinsky a 25% interest and to Person a 75% 

interest in two specific parcels of real estate, 211 Wadlow 

Street and 640 Clay Street in Emporia, Virginia. After the deed 

was issued, Kuchinsky wrote to the Special Commissioner and 

asked him to “[p]lease file ‘our’ deed as soon as possible.”4

 

The Special Commissioner’s Deed was then recorded in the 

Greensville County Circuit Court. 

 After the Special Commissioner’s deed was recorded, 

Kuchinsky proceeded to file two actions against Person. First, 

 

3

 The subcommittee’s determination was based on Kuchinsky’s 

acquisition of the quitclaim deed from Person, as well as his 

acquisition of a similar interest from another client. 

4

 Initially, Kuchinsky had objected to the Special Commissioner’s 

deed, stating that he intended his 25% quitclaim interest to be 

a “springing attorney’s lien for legal work, not as a 

proprietary interest.” Therefore, Kuchinsky argued, 

“conveyances and debts set forth by the Commissioner as 

transferable or payable to Neil Kuchinsky should be permitted to 

be converted to a deed of trust and note” between himself and 

Person. 
4

Kuchinsky filed a Warrant in Debt against Person in the 

Greensville County General District Court. The court entered a 

default judgment against Person for $2,896 in principal, $6,756 

in attorney’s fees, and $53 in court costs. The same day, 

Kuchinsky recorded the default judgment as a lien against the 

jointly owned properties. Secondly, Kuchinsky filed a suit 

against Person in the Greensville County Circuit Court to 

partition the jointly owned properties. 

 Before serving Person in the partition suit, Kuchinsky 

sought to negotiate an agreement by which Person would pay 

Kuchinsky for his interest in the properties. Prior to the 

completion of that transaction, however, Person filed a 

complaint with the VSB in September 2010 alleging that Kuchinsky 

“took total advantage of my faith and ignorance in him for his 

self-interest.” Subsequently, during the pendency of the VSB’s 

investigation into Person’s complaint, Kuchinsky served Person 

with notice of the partition suit. The case was referred to the 

Commissioner in Chancery for Greensville County, who conducted a 

hearing.5

 

5

 Kuchinsky and Person eventually reached an agreement whereby 

Person signed a promissory note for fees and costs owed to 

Kuchinsky, secured by a deed of trust. Finally, in November 

2011, Kuchinsky executed and recorded a deed conveying his 25% 

interest in the jointly owned properties back to Person. 

Subsequently, pursuant to Kuchinsky’s request, the Greensville 

County Circuit Court issued an order of nonsuit in Kuchinsky’s 

partition suit against Person. 
5

 In June 2012, the VSB filed a Charge of Misconduct against 

Kuchinsky pursuant to the Rules of the Virginia Supreme Court, 

Part 6, § IV, ¶ 13-16(A). Specifically, the VSB alleged that 

Kuchinsky violated Rules 1.8(a), 3.4(d), and 8.4(a)6 through his 

conduct towards Person after the issuance of the prior 

 

6

 In relevant part, the rules Kuchinsky was charged with 

violating, all of which appear in Part 6, § II of the Rules of 

Court, read as follows: 

Rule 1.8 – Conflict of Interest: Prohibited 

Transactions 

(a) A lawyer shall not enter into a business 

transaction with a client or knowingly acquire an 

ownership, possessory, security, or other pecuniary 

interest adverse to a client unless: 

(1) the transaction and terms on which the lawyer 

acquires the interest are fair and reasonable to 

the client and are fully disclosed and 

transmitted in writing to the client in a manner 

which can be reasonably understood by the client; 

(2) the client is given a reasonable opportunity 

to seek the advice of independent counsel in the 

transaction; and 

(3) the client consents in writing thereto. 

Rule 3.4 – Fairness to Opposing Party and Counsel 

A lawyer shall not: 

. . . . 

(d) Knowingly disobey or advise a client to disregard 

a standing rule or a ruling of a tribunal made in the 

course of a proceeding, but the lawyer may take steps, 

in good faith, to test the validity of such rule or 

ruling. 

Rule 8.4 – Misconduct 

It is professional misconduct for a lawyer to: 

(a) violate or attempt to violate the Rules of 

Professional Conduct, knowingly assist or induce 

another to do so, or do so through the acts of 

another. 
6

admonition. After referral to the Third District Committee, 

which conducted a hearing, the Committee found, by clear and 

convincing evidence, that Kuchinsky had violated Rules 1.8(a), 

3.4(d), and 8.4(a) of the Rules of Professional Conduct and 

issued Kuchinsky a public reprimand without terms. The District 

Committee then issued a Written Determination explaining its 

decision. In its Determination, the District Committee made 

several findings of fact. Then, in a section titled “Nature of 

Misconduct,” the District Committee listed the rules that it 

found Kuchinsky had violated. Under each rule, the District 

Committee stated that “[r]espondent’s actions that violated this 

rule include, but are not limited to, the following” and 

provided a non-exhaustive list of Kuchinsky’s actions it found 

to be in violation of each rule.7

 Kuchinsky filed a notice of appeal and demand for review of 

the District Committee’s determination by a three-judge panel, 

pursuant to Code § 54.1-3935.8

 After each party submitted 

 

7

 The Written Determination also noted that one member of the 

Committee dissented from the District Committee’s finding that 

Kuchinsky violated Rule 3.4(d) by disregarding the VSB’s prior 

admonition on the basis that the Committee member “did not 

believe that the Committee is a ‘tribunal’ within the 

contemplation of the rule.” 

8

 On the same day, Kuchinsky also filed a Motion to Reconsider 

the District Committee’s determination on the basis that one of 

the Committee members should have recused himself from the 

proceedings. The District Committee denied Kuchinsky’s Motion 
7

briefs, the panel heard argument and issued an Order holding 

that there was substantial evidence in the record to support the 

District Committee’s decision. Subsequently, the panel issued a 

Memorandum Order incorporating the District Committee’s findings 

of fact in full and affirming its decision. 

 Kuchinsky appeals. 

II. Analysis 

A. Standard of Review 

 To prove that an attorney violated the Rules of 

Professional Conduct, the VSB must present clear and convincing 

evidence of the violation. Livingston v. Virginia State Bar, 

286 Va. 1, 10, 744 S.E.2d 220, 224 (2013). When reviewing a 

disciplinary decision by a three-judge panel: 

“[W]e will make an independent examination of the 

whole record, giving the factual findings . . . 

substantial weight and viewing them as prima facie 

correct. While not given the weight of a jury 

verdict, those conclusions will be sustained unless it 

appears they are not justified by a reasonable view of 

the evidence or are contrary to law.” 

Green v. Virginia State Bar ex rel. Seventh Dist. Comm., 274 Va. 

775, 783, 652 S.E.2d 118, 121 (2007) (quoting El-Amin v. 

Virginia State Bar, 257 Va. 608, 612, 514 S.E.2d 163, 165 

(1999)). Furthermore, “[c]onsistent with well-established 

 

to Reconsider, and the issue raised therein is not before this 

Court on appeal. 
8

appellate principles, we view the evidence and all reasonable 

inferences that may be drawn therefrom in the light most 

favorable to the Bar, the prevailing party below.” Id. 

B. Kuchinsky’s “Right to a Meaningful Appeal” 

 In his first assignment of error, Kuchinsky argues that he 

was deprived of his right to a meaningful appeal because the 

District Committee’s Determination stated under each finding of 

a Rule violation: “Respondent’s actions that violated this rule 

include, but are not limited to, the following.” (Emphasis 

added.) Because the listings of facts which followed were not 

exhaustive, Kuchinsky asserts that the three-judge panel could 

not properly determine which facts the District Committee 

considered in making its decision. 

 An attorney subject to disciplinary proceedings is entitled 

to notice and the opportunity to be heard. Pappas v. Virginia 

State Bar, 271 Va. 580, 587, 628 S.E.2d 534, 538 (2006). In 

construing this right, we have held that “it is only necessary 

that the attorney be informed of the nature of the charge 

preferred against him and be given an opportunity to answer.” 

Moseley v. Virginia State Bar, 280 Va. 1, 3, 694 S.E.2d 586, 589 

(2010) (internal quotation marks omitted). Although we have not 

previously considered the extent of an attorney’s due process 

rights in the context of an appeal, we have held that “[t]he 

procedures outlined in Part Six [of the Rules of the Supreme 
9

Court of Virginia] ensure the integrity of the disciplinary 

process and protect the rights of the attorney.” Pappas, 271 

Va. at 587, 628 S.E.2d at 538. 

 Part 6, § IV, ¶ 13-16(Y) of the Rules of Court establishes 

what a District Committee must include in its written 

determination. Specifically, the Rule states: 

If a District Committee finds that the evidence shows 

the Respondent engaged in Misconduct by clear and 

convincing evidence, then the Chair shall issue the 

District Committee’s Determination, in writing, 

setting forth the following: 

1. Brief findings of the facts established by the 

evidence; 

2. The nature of the Misconduct shown by the facts so 

established, including the Disciplinary Rules violated 

by the Respondent; and 

3. The sanctions imposed, if any, by the District 

Committee. 

In the case at bar, the District Committee’s Determination 

satisfied each of the three requirements. It included findings 

of fact, explained the nature of Kuchinsky’s misconduct that was 

established by those facts, and stated what sanction was to be 

imposed. Part 6, § IV, ¶ 13-16(Y) does not require that a 

District Committee list the specific facts relied upon in 

finding individual rule violations. Therefore, the District 

Committee did not err by failing to include an exhaustive list 

for each violation. 
10

 Furthermore, Kuchinsky’s argument that the three-judge 

panel could not ascertain what facts the District Committee 

considered in making its decision lacks merit. A three-judge 

panel appointed pursuant to Code § 54.1-3935 reviews a District 

Committee determination to determine “whether there is 

substantial evidence in the record upon which the District 

Committee could reasonably have found as it did.” Va. Sup. Ct. 

R., Part 6, § IV, ¶ 13-19(E) (emphasis added). Thus, in 

addition to the District Committee’s findings of fact, a threejudge panel has the benefit of considering the entire record in 

reviewing a District Committee’s Determination. Accordingly, we 

hold that Kuchinsky was not deprived of his right to a 

meaningful appeal in this case. 

C. Rule 1.8(a) 

 Rule 1.8(a) of the Rules of Professional Conduct states 

that: 

(a) A lawyer shall not enter into a business 

transaction with a client or knowingly acquire an 

ownership, possessory, security or other pecuniary 

interest adverse to a client unless: 

(1) the transaction and terms on which the lawyer 

acquires the interest are fair and reasonable to 

the client and are fully disclosed and 

transmitted in writing to the client in a manner 

which can be reasonably understood by the client; 

(2) the client is given a reasonable opportunity 

to seek the advice of independent counsel in the 

transaction; and 
11

(3) the client consents in writing thereto. 

 The District Committee found that Kuchinsky violated Rule 

1.8(a) through his “continued ownership interest in [Person’s] 

property and his pursuit of a partition of the property pursuant 

to his interest as set forth in the deed” and through his 

“failure to formally terminate his representation prior to 

filing suit against Person in district court and circuit court.” 

1. Kuchinsky Acquired a 25% Interest in Two Specific Properties 

Through the Special Commissioner’s Deed 

 Kuchinsky argues that his continued interest in Person’s 

property was not an acquisition of an interest in the property. 

To violate Rule 1.8(a), an attorney must “knowingly acquire an 

ownership, possessory, security or other pecuniary interest 

adverse to a client.” (Emphasis added.) 

While the quitclaim deed gave Kuchinsky a 25% interest in 

Person’s undivided ownership interests in the six properties at 

issue in the underlying partition suit against Person’s 

siblings, the Special Commissioner partitioned, at Kuchinsky’s 

request as counsel for Person, the various interests in those 

properties. The Special Commissioner’s Deed then conveyed to 

Kuchinsky a 25% interest and to Person a 75% interest in two of 

the six properties - to the exclusion of Kuchinsky's other cotenants’ interests implicated by the execution of the quitclaim 

deed, and to the exclusion of Kuchinsky’s interests in the other 
12

four properties. Accordingly, Kuchinsky and Person thereafter 

exclusively owned the two properties as tenants in common. 

Thus, only Kuchinsky and Person had the "right to possess, use 

and enjoy [these two] common propert[ies],” City of Richmond v. 

Suntrust Bank, 283 Va. 439, 443, 722 S.E.2d 268, 271 (2012) 

(quoting Graham v. Pierce, 60 Va. (19 Gratt.) 28, 38 (1869)). 

Moreover, although Kuchinsky initially objected to the Special 

Commissioner’s Deed, he later wrote a letter to the Special 

Commissioner encouraging him to record it; and Kuchinsky did not 

disclaim the deed after it was recorded. Through these actions, 

Kuchinsky “knowingly acquire[d]” an interest in Person’s 

property for purposes of Rule 1.8(a). 

2. The Common Law Exceptions to the Rules of Champerty and 

Maintenance do not apply to Rule 1.8(a) 

 Alternatively, Kuchinsky contends that his actions are 

protected by the common law exception to the doctrine of 

champerty and maintenance for aiding the indigent. See 3B 

Michie’s Jurisprudence, Champerty and Maintenance, § 2 (“Aiding 

the indigent is one of the generally recognized exceptions to 

the law of maintenance.”). Because Person could not afford to 

pay an attorney in advance, Kuchinsky argues that his fee 

arrangement with Person falls within the exception. We 

disagree. 
13

 In relevant part, Comment 16 to Rule 1.8 explains that 

“Paragraph (j) states the traditional general rule that lawyers 

are prohibited from acquiring a proprietary interest in 

litigation. This general rule, which has its basis in common law 

champerty and maintenance, is subject to specific exceptions 

developed in decisional law and continued in these Rules.” 

(Emphasis added.) However, unlike the earlier disciplinary 

proceeding against Kuchinsky, the case at bar does not involve a 

Rule 1.8(j) violation. There is no common law doctrine which 

permits an attorney to “knowingly acquire an ownership, 

possessory, security or other pecuniary interest adverse to a 

client” in violation of Rule 1.8(a) simply because the client is 

indigent. 

3. Person was Still Kuchinsky’s Client at the Time the Offending 

Conduct Occurred 

 Finally, Kuchinsky asserts that Person was no longer his 

client at the time the offending conduct took place because 

“nothing remained to be done in Person’s case” and because 

Person allegedly informed Kuchinsky that he did not intend to 

pay Kuchinsky for his services. We reject this argument. 

 During the hearing before the District Committee, Kuchinsky 

testified that by the time he filed the partition suit against 

Person on May 18, 2010 “[t]here may have been some rents that 

remained to be divided, cash assets” from the underlying 
14

partition suit between Person and his siblings. Additionally, 

Kuchinsky acknowledges on brief that no final order had been 

entered in the underlying partition suit when he acquired the 

Special Commissioner’s deed and filed his partition suit against 

Person. Finally, Kuchinsky took no steps to formally withdraw 

from his representation of Person in accordance with Rule 

1.16(b) before engaging in the violative conduct.9

 Therefore, Person was still Kuchinsky’s client at the time 

he knowingly acquired an interest in Person’s property, and we 

hold that the three-judge panel did not err in affirming the 

District Committee’s finding that Kuchinsky violated Rule 1.8(a) 

of the Rules of Professional Conduct. 

D. Rule 8.4(a) 

 Rule 8.4(a) of the Rules of Professional Conduct 

establishes that “[i]t is professional misconduct for a lawyer 

to . . . violate or attempt to violate the Rules of Professional 

Conduct, knowingly assist or induce another to do so, or do so 

through the acts of another.” 

 As we explained in Part II.C., supra, Kuchinsky violated 

Rule 1.8(a) by acquiring an interest in Person’s property 

 

9

 In relevant part, Comment 8 to Rule 1.16 states that “[a] 

lawyer may withdraw if the client refuses to abide by the terms 

of an agreement relating to the representation, such as an 

agreement concerning fees or court costs.” Thus, although 

Person allegedly informed Kuchinsky that he would not honor 

their fee agreement, the representation continued absent 

Kuchinsky’s withdrawal. 
15

through the Special Commissioner’s Deed, by asking that the 

Special Commissioner record the deed, and by pursuing a 

partition of Person’s property once the deed had been recorded. 

Therefore, he also committed professional misconduct under Rule 

8.4(a) by violating the Rules of Professional Conduct, both 

through his own acts and through the acts of the Special 

Commissioner. 

 However, Kuchinsky argues that we should reverse the threejudge panel’s finding that he violated Rule 8.4(a) because “a 

redundancy of charges in disciplinary proceedings is 

disfavored.” In support, Kuchinsky cites Morrissey v. Virginia 

State Bar, 248 Va. 334, 448 S.E.2d 615 (1994). In Morrissey, a 

three-judge panel found that Respondent violated DR 1-102(A)(4) 

of the former Virginia Rules of Professional Responsibility, 

which stated that “[a] lawyer shall not . . . [e]ngage in 

conduct involving dishonesty, fraud, deceit, or 

misrepresentation which reflects adversely on a lawyer's fitness 

to practice law.”10 Id. at 336, 448 S.E.2d at 616. On appeal, 

the VSB assigned as cross-error the panel’s failure to also find 

that Respondent had violated former DR 1-102(A)(3), which 

 

10 The panel also found that Respondent violated former DR 8-101, 

which prohibited a lawyer serving in public office from 

“[a]ccept[ing] anything of value” when the lawyer “knows or it 

is obvious that the offer is for the purpose of influencing his 

action as a public official.” However, that portion of the 

opinion is not relevant to the issue presented by the case at 

bar. 
16

established that “[a] lawyer shall not . . . . [c]ommit a crime 

or other deliberately wrongful act that reflects adversely on 

the lawyer’s fitness to practice law.” Id. at 334, 448 S.E.2d 

at 621. We rejected the VSB’s argument and affirmed the panel’s 

decision, holding that “[a]lthough Morrissey's concealments were 

deliberate and wrongful, we do not think that the language of DR 

1-102(A)(3) indicates a clear intent to provide multiple 

punishment for such acts under the circumstances of this case.” 

Id. (citing Fitzgerald v. Commonwealth, 223 Va. 615, 635, 292 

S.E.2d 798, 810 (1982)). 

 In contrast to the rules at issue in Morrissey, Rule 8.4(a) 

clearly supports a finding that an attorney has committed 

professional misconduct under Rule 8.4(a) in addition to a 

finding that the attorney violated another underlying Rule of 

Professional Conduct. Rule 8.4(a) states that a violation or 

attempted violation of another rule is professional misconduct. 

This misconduct provision would be rendered meaningless if it 

did not provide for the imposition of a separate and additional 

violation. It is a “well established rule of construction that 

a statute ought to be interpreted in such manner that it may 

have effect, and not be found vain and elusive.” McFadden v. 

McNorton, 193 Va. 455, 461, 69 S.E.2d 445, 449 (1952). We 

believe that the same principle applies to our interpretation of 

the Rules of Professional Conduct. Accordingly, we hold that 
17

the three-judge panel did not err in affirming the District 

Committee’s finding that Kuchinsky violated Rule 8.4(a) of the 

Rules of Professional Conduct. 

E. Rule 3.4(d) 

 In relevant part, Rule 3.4(d) of the Rules of Professional 

Conduct states that “[a] lawyer shall not . . . [k]nowingly 

disobey . . . a standing rule or a ruling of a tribunal made in 

the course of a proceeding, but the lawyer may take steps, in 

good faith, to test the validity of such rule or ruling.” 

 The District Committee found that Kuchinsky violated Rule 

3.4(d) by “continu[ing] to pursue his ownership interest in 

Person’s property” after receiving the prior admonition from the 

VSB and by failing to “divest himself of his ownership interest 

[in Person’s property] until one year after he received Person’s 

[bar] complaint.” However, the admonition issued to Kuchinsky 

was a private admonition without terms. The admonition did not 

require that Kuchinsky divest himself of his interest in 

Person’s property, nor did it indicate that he must refrain from 

taking additional steps to secure his interest. Rather, it 

merely stated that Kuchinsky violated Rule 1.8(j) by acquiring

the original quitclaim deed from Person. Because the private 

admonition issued to Kuchinsky did not include terms requiring 

that Kuchinsky either take or refrain from taking any action, he 

could not “knowingly disobey” the admonition. Accordingly, we 
18

hold that the three-judge panel erred in affirming the District 

Committee’s finding that Kuchinsky violated Rule 3.4(d) of the 

Rules of Professional Conduct.11

III. Conclusion 

We affirm the three-judge panel’s decision with regard to 

Rules 1.8(a) and 8.4(a), reverse its decision with regard to 

Rule 3.4(d), and remand the case for reconsideration of the 

sanction to be imposed. 

Affirmed in part, 

reversed in part, 

 and remanded. 

 

11 The related issue of whether a disciplinary arm of the VSB 

constitutes a “tribunal” for purposes of Rule 3.4(d) is not 

before this Court on appeal.