On the eve of the Thanksgiving holiday, Timothy Powers, a well-known conservative political strategist, Washington lobbyist, and Lovettsville resident, FedEx'ed a package to the Virginia State Bar. It contained a 17-page formal complaint, requesting that the Bar, an agency of the Virginia State Supreme Court, investigate a series of charges against Loudoun County Commonwealth's Attorney James Plowman and, almost as an afterthought, against King George County Commonwealth's Attorney, Matthew Britton. Writing on behalf of a group of concerned citizens, Powers asserts in his November 20, 2007, letter that Plowman "knowingly and willfully committed numerous violations" of the State's "Rules for Professional Conduct" and "engaged in general malfeasance and/or misfeasance in the conduct of his official duties as Commonwealth's Attorney . . . . " Citing "violations" which "include but are not limited to" some seven broad categories of misconduct, Powers further requested the Bar to " . . . employ its own expertise and resources to include other possible violations unknown to us, or that might exceed our ability to determine." An "Addendum" to the complaint against Plowman noted that the group also had "reason to believe there exists a pattern and possible conspiracy of selective and malicious prosecution by Commonwealth's Attorney Matthew Britton in concert with others, of which Mr. Plowman is but one example."

Laymen AND Lawyers?

Powers, and apparently those joining in his November 20 complaint, are not lawyers. "As laymen," he wrote, "we beg the patience of the Bar regarding citations and interpretations of law . . . . " Their "complaint," however, was supported by an indexed three-ring binder of documents, and called on the Bar itself to "take any and all appropriate actions to refer these violations to the proper law enforcement officers." Nor did the complainants mince words, accusing Plowman "in possible concert with other officers of the court" of engaging in "a pattern of egregious, illegal and unethical behavior resulting in not only the unequal application of justice, but the misuse of his office as a means of promoting the political agendas of one citizen or local official over another." At press time, at least two other complaints are said to have been filed against Plowman, both by active members of the Virginia State Bar.

Specific Complaints Against Plowman

Citing news stories, emails, and other sources, the Powers group focused heavily on Plowman's role in an alleged conspiracy on behalf of the Jill Holtzman Vogel campaign to indict and discredit her opponent for the Republican nomination for the 27th District Seat in the Virginia State Senate, Mark Tate; the later-reversed ousting of another political opponent, Susan Van Wagoner from the Route 50 Traffic Calming Task Force; and a series of allegations of misdemeanor, misconduct, or neglect by Plowman related to charges of corruption among County officials now under investigation by the FBI.

Specifically Powers asked the Bar to investigate Plowman for what he termed:

1. "Selective and/or malicious investigations and/or prosecutions" either for his own benefit or those of his political allies (in one case with the specific purpose of manipulating the public's participation in local primary elections)

2. "Application of different and unequal standards of recusals in investigations and prosecutions."

3. "Application of different and unequal standards of procedures and of the law in the execution of his official duties."

4. "Violations of the rules regarding the conduct and responsibilities of Mr. Plowman and his office before the Grand Jury and corruption of same (including the illegal leaking of Grand Jury evidence and deliberations to reporters.)

5. "Violation of the civil rights of citizens of the Commonwealth and their right to fair and open elections as provided under the Virginia State Constitution."

6. Violation of "his duties as an officer of the Court and member of the Bar"

7. Conspiracy "with others to engage and/or abet improper, unethical and/or illegal activities, including, but not limited to, the destruction of communications and documents related to previous and/or pending cases.

The Bar at Work

Initial Confidential Review

The fate of the Powers complaint now rests in the hands of the Bar's disciplinary system, headed by Bar Counsel George Chabalewski. Chabalewski is familiar with both prosecutors and Loudoun County. Earlier in his career, he served in the Virginia Attorney General's office as a litigator and was part of the team that prosecuted followers of then Loudoun-resident Lyndon LaRouche. At press time Chabalewski was honor bound not to discuss, or even formally acknowledge the existence of Powers' 17-page complaint and its supporting documentation. He did, however, describe what would happen to such a complaint if and when it was received. Upon arrival, he said, Powers complaint would be assigned for confidential review to one member of a three-lawyer panel. If, after review, the complaint is found to be without merit, the Bar's inquiry will simply be closed, and Tim Powers notified of the decision. Powers may then appeal the ruling. The appeal/rejection process may then be repeated as many as three times, with Chabalewski himself as the third and final arbiter.

Preliminary Investigation

If, on the other hand, one of the disciplinary review panel lawyers or Chabalewski himself decides that Powers' complaint has merit, the Bar will open a formal "complaint file." According to Chabalewski roughly a quarter of the complaints received by his office make it to this stage.

The opening of a "complaint file" would trigger a deeper investigation and Plowman's case would be assigned to an Assistant Bar Counsel, most likely someone working out of the Bar's Alexandria, 7th District, offices. At this point Commonwealth's Attorney Plowman would be formally required to respond to whatever charges in Powers' complaint the Bar had decided were appropriate. That process alone, according to Chabalewski, could take 21 days or so. Once Plowman responds, the Assistant Bar Counsel assigned to the case would review it again. If, after hearing from Plowman, Counsel determined that no rules had been violated, the complaint file would be closed, and both Powers and Plowman notified. Powers would then have ten days to respond and, possibly, have the case against Plowman reopened.

More Investigation

If Plowman's response fails to satisfy the Bar, however, Powers' complaint would move forward. Chabalewski's Office would then assumes a role similar to a prosecutor working with a grand jury . . . in this case a District Committee comprising both lawyers and non-lawyers from around the state. Investigators with full subpoena power, and reporting directly to Chabelewski would be assigned to the case. Statements would be taken from all relevant witnesses; documents, tape-recordings, emails, and other relevant evidence would be subpoenaed. Once the investigation is completed, Chabalewski and his team would decide whether to file "charges of misconduct" against Plowman (described as roughly the equivalent of a misdemeanor charge) or to ask for "certification" of the case (described as roughly the equivalent of a felony, indictment) The District Committee, acting as a sort of grand jury, could then either dismiss the case and order the complaint file closed, or move forward with either a "misconduct" hearing or "certification." A finding of misconduct could result in as little as a reprimand.

"Certification" and Public "Trial"

"Certification," on the other hand, would result in the moral equivalent of a public trial and, depending upon the charges levied, sanctions up to and including disbarment. Acting as a prosecutor, Chabalewski would "try" the case for "certification" against Plowman before a special body known as the "Disciplinary Board" or, at the defendant's option, before a special 3-judge panel. Appointed by the Chief Justice of the State of Virginia, the Disciplinary Board is made up of 16 lawyers and 4 lay people, drawn from across the state. Four lawyers and one lay person from that board would sit in judgment over the Plowman case. At this stage, hearings would be public and handled much like a public trial. Charges would be formally levied with Chabalewski acting in a role roughly the equivalent of a DA; statements would be made for the prosecution and defense; evidence presented; witnesses examined and cross examined. Should Plowman be found "guilty" of the charges against him he could then appeal to the Virginia Supreme Court. In the interim, the Disciplinary Board could also decide to resolve the case, though at this stage only with some form of public sanction.

The Timeline

The process for resolving Powers and other complaints against James Plowman and Britton could, by all accounts, drag on for years. The Virginia State Bar may not even formally acknowledge that a complaint has been received until such time as a case file has been opened, and even then, only if the existence of complaint has become public knowledge. With the publication of stories about Powers complaint in both the Middleburg Eccentric and Leesburg Today, Chabalewski may acknowledge the opening of an investigatory "file" on the case, but may not make further comment. The full story of the complaints against James Plowman and Matthew Britton may thus have to wait until either their cases are dismissed, possibly in secret . . . or public hearings begin.