Probe Into Addition On Lawsuit Raises Questions Of Conflict

State Delegate Terry Kilgore’s membership on a Virginia State Bar committee and loose disciplinary guidelines raise questions about who will determine whether he and a close associate violated the bar’s rules.

An investigation into Terry Kilgore and Frank Kilgore is ongoing, the Herald Courier has learned, but bar complaints are confidential and officials would speak only in general terms about the disciplinary process.

The process allows complaints to languish indefinitely – for years in some cases – until they result in either public sanctions, or are deep-sixed by a panel of two lawyers and one layperson. Panels are drawn from 10-member committees based on geographic regions, and it is the composition of these committees that presents potential conflicts of interest when one member is the subject of a complaint.

Terry Kilgore, a senior state delegate, has served since 2004 on Section II of the 10th District Committee – which handles complaints from the 28th, 29th and 30th judicial circuits. When a complaint is lodged against a committee member, the VSB’s guidelines require that member to recuse, or remove, himself from participating in the investigation.

But it is left to the discretion of other committee members whether to recuse themselves from hearing a complaint against a fellow member.

“If it remains in the original district, other members of the committee might not feel comfortable passing judgment on one of their colleagues,” said Jim McCauley, ethics counsel for the bar.

In McCauley’s experience, such cases commonly are transferred to a different district committee. “Now admittedly, it isn’t required by the rules,” he said.

A committee whose membership is drawn largely from Southwest Virginia attorneys is fraught with potential conflicts of interest.

Scott Mullins, an attorney based in Coeburn and a committee member, was briefly law partners with Frank Kilgore in the 1980s. Elsey Harris, an attorney in Norton who chairs the committee, knows Frank Kilgore and his wife, a circuit court judge in Tazewell.

Harris would not say whether his acquaintance with Frank Kilgore (no relation to Terry Kilgore) would prevent him from hearing a complaint against him.

“You have to understand, it’s a small area, we pretty much all know each other,” he said by phone.

Bar complaints wind up in the hands of a district subcommittee if an assistant bar counsel decides to open an investigation. Complaints without merit – such as alleging “rudeness,” which does not violate the bar’s code of conduct – are dismissed at intake, or within 72 hours, according to outgoing Bar Counsel George Chabalewski, who steps down next month.

“If there ain’t nothing there, it is certainly going to be handled quickly,” Chabalewski said. On the other extreme – a case that poses immediate harm to clients – “we deal with those as quickly as humanly possible,” he said.

There is no statute of limitations on a bar complaint.

In general, a bar counsel has opened an investigation if a complaint is older than 60 days – the rough time frame for completing a preliminary investigation.

The complaint against Frank Kilgore and Terry Kilgore was filed in April 2007.

The three-person panel drawn from the district committee can dispose of a complaint in several ways: by dismissing it, sending it to the full committee to impose public or private sanctions, or, for the most serious violations, certifying a charge on to the Disciplinary Board. That body has the authority to suspend and revoke attorney licenses.

The complaint against the Kilgores appears to be in the investigative stage, according to two sources with first-hand knowledge of the complaint.

It is unclear, though, which bar counsel is heading the investigation. The counsel formerly assigned to the 10th District Committee, J. Scott Kulp, left the VSB on April 4 to take a job at the James River Financial Corp.

Before joining the bar in 2005, Kulp worked at the Richmond law firm Williams Mullen, where he would have overlapped with Jerry Kilgore – Terry Kilgore’s twin brother, who is now back at the firm after serving as Virginia’s attorney general.

“I never worked directly with [Jerry Kilgore], or recall ever speaking with him,” Kulp said when contacted. He would not comment on whether he was involved with investigating the complaint against Terry Kilgore and Frank Kilgore.

Chabalewski also has a connection to Jerry Kilgore. Before coming to the VSB in 2006, he was senior assistant attorney general to Kilgore, and spent 19 years working in that office.

“I knew Mr. Kilgore as ‘Mr. Kilgore the attorney general,’ ” he said. “He may not even remember me.”

If one of his assistants had such a tie to the brother of the subject of a bar investigation, Chabalewski said, “I don’t view that as a conflict.”

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