Candor Requires Full Disclosure in Guardianship Petitions: Agreed “Good Faith” Orders Do Not Shield Attorneys from Discipline

Introduction

This commentary analyzes the Supreme Court of Virginia’s decision in Pollack v. Virginia State Bar, Record No. 250150 (Oct. 16, 2025), authored by Justice Stephen R. McCullough. The case arises from a three-judge disciplinary panel’s revocation of attorney Bradley Glenn Pollack’s law license for violations of Rules 3.3(a)(1) (candor to the tribunal), 4.1(a) (truthfulness in statements to others), and 8.4(b) and (c) (misconduct) of the Virginia Rules of Professional Conduct. The Supreme Court affirmed the findings of misconduct and the sanction of revocation.

The opinion addresses several core issues:

• Whether an attorney’s omission of material facts (revocation of a power of attorney and a no-trespass notice) in a guardianship petition constitutes dishonesty and lack of candor.
• Whether an agreed order in the underlying civil litigation stating the petition was filed “in good faith” binds or precludes the disciplinary tribunal (it does not).
• The distinction between filing a non-frivolous claim (Rule 3.1) and committing dishonest conduct in pleadings (Rules 3.3 and 8.4).
• Procedural default for inadequate appellate briefing under Rules 5:27 and 5:25 of the Rules of the Supreme Court of Virginia.
• The appropriateness of revocation given Pollack’s disciplinary record and his failure to appreciate the gravity of his misconduct; and that client harm is not a prerequisite for imposing serious discipline.

Summary of the Opinion

The Court affirmed the three-judge panel’s findings that Pollack violated:

• Rule 3.3(a)(1) by making false statements of fact to the tribunal, including identifying himself as Kearney’s “attorney in fact” and omitting material facts—the revocation of the power of attorney and a no-trespass notice.
• Rule 8.4(b) and (c) by engaging in dishonest conduct that reflects adversely on his fitness to practice.

The Court held that Pollack’s challenge to the panel’s Rule 4.1(a) finding (for tendering a check bearing “ATTY AT LAW” while suspended) was waived due to inadequate briefing in his opening brief, with additional authority appearing for the first time in the reply brief (contrary to Rule 5:27), and an unpreserved “practice of law” argument (barred by Rule 5:25).

Finally, the Court upheld the sanction of revocation, citing Pollack’s extensive disciplinary history, his failure to recognize the seriousness of his conduct, and the principle that proof of client harm is not required to impose discipline.

Analysis

Factual Background and Procedural Posture

In early July 2023, client Kathleen Kearney granted Pollack a durable power of attorney. Within a week, after concerns including missing documents and expressed fear of Pollack, Kearney revoked that power of attorney (July 12) and issued a written no-trespass notice (received by Pollack July 13). On July 21, Pollack filed a guardianship and conservatorship petition seeking his own appointment, attaching the July 6 POA but omitting any mention of the July 12 revocation and the no-trespass notice, and identifying himself as Kearney’s “attorney in fact.” A guardian ad litem concluded Kearney was not incapacitated; when the GAL propounded discovery on Pollack about his factual basis, Pollack nonsuited. Pollack later drafted an agreed order awarding GAL fees that included a recital that the petition had been filed “in good faith and for the benefit of” Kearney.

A bar complaint followed. A three-judge panel found violations of Rules 3.3(a)(1), 4.1(a), and 8.4(b),(c) (but not Rule 3.1) and revoked Pollack’s license. Pollack appealed. The Supreme Court affirmed both the findings and revocation.

Precedents and Authorities Cited

• Weatherbee v. Virginia State Bar, 279 Va. 303 (2010): Reiterates that the Bar bears the burden of proving a violation by clear and convincing evidence.
• Pilli v. Virginia State Bar, 269 Va. 391 (2005): Sets out the appellate posture in attorney discipline—independent review of the record; evidence viewed in the light most favorable to the Bar; panel’s factual findings accorded substantial weight and sustained unless not justified by a reasonable view or contrary to law.
• Blue v. Seventh Dist. Comm. of the VSB, 220 Va. 1056 (1980): When evidence conflicts, facts are stated in accordance with the panel’s findings.
• Parrish v. Fannie Mae, 292 Va. 44 (2016): The appellant bears the burden to show reversible error.
• Coward v. Wellmont Health Sys., 295 Va. 351 (2018) and Andrews v. Commonwealth, 280 Va. 231 (2010): Lack of adequate argument and authority in an opening brief waives the issue.
• Jeter v. Commonwealth, 44 Va. App. 733 (2005): Arguments raised for the first time in a reply brief come too late.
• Rules of the Supreme Court of Virginia:
  • Rule 5:27: Requires opening briefs to contain principles of law and authorities supporting each assignment of error.
  • Rule 5:25: Default rule—arguments not presented below are not considered on appeal.
• Pollack v. Virginia State Bar, Record No. 220698, 2023 Va. Unpub. LEXIS 2 (June 1, 2023): The Court’s prior decision recounting Pollack’s extensive disciplinary history and client harm.

Legal Reasoning

1) Duty of Candor and Material Omissions in Pleadings

The Court affirmed that Rule 3.3(a)(1)’s prohibition on false statements to a tribunal encompasses both affirmative misstatements and misleading half-truths created by the omission of material facts necessary to avoid deception. Pollack’s petition identified him as Kearney’s “attorney in fact” while omitting the crucial facts that:

• Kearney had revoked the power of attorney before the petition was filed; and
• She had issued a no-trespass notice barring him from contacting her or entering her property.

Those omissions, coupled with the affirmative “attorney in fact” statement, were found to be dishonest. The Court expressly rejected the notion that sprinkling the word “purported” in a paragraph of the petition fairly alerted the court to the revocation or cured the misimpression. The first paragraph unqualifiedly claimed “attorney in fact” status, and nothing in the petition disclosed the revocation or the no-trespass notice—salient facts that any court would want to know in evaluating a petition for the filer’s appointment as guardian and conservator.

2) Distinguishing Non-Frivolous Claims (Rule 3.1) from Dishonest Conduct (Rules 3.3, 8.4)

The panel did not find a violation of Rule 3.1 (frivolous claims), and the Supreme Court saw no inconsistency in sustaining the Rule 3.3 and 8.4 violations. Rule 3.1 addresses the objective merit of claims and contentions; by contrast, Rules 3.3 and 8.4 target a lawyer’s honesty. The Court reasoned that, even if mixed evidence about capacity could allow some attorney to file a guardianship petition, Pollack’s dishonesty about his authority and his omission of critical adverse facts violated the candor and misconduct rules. This clarification is significant: a claim’s non-frivolous nature does not insulate an attorney from discipline for dishonest pleadings.

3) Agreed “Good Faith” Orders Are Not Dispositive in Disciplinary Proceedings

Pollack argued that an agreed order in the underlying case (which he drafted) reciting that the guardianship petition was filed “in good faith and for the benefit of” Kearney conclusively barred a contrary disciplinary finding. The Court rejected this for multiple reasons:

• The order was drafted by Pollack and was self-serving in context.
• No evidentiary hearing underpinned the “good faith” recital.
• The other attorneys testified they did not believe Pollack acted in good faith.
• Agreed orders are not typically subject to searching judicial scrutiny.
• The disciplinary panel had a more complete factual record.

The takeaway: litigants cannot insulate themselves from bar discipline with agreed, non-adjudicated “good faith” recitations.

4) Procedural Default: Inadequate Briefing Waives Appellate Review (Rule 4.1(a) Issue)

Pollack’s challenge to the Rule 4.1(a) finding—based on a check bearing “ATTY AT LAW” presented while he was suspended—was waived because his opening brief contained only cursory assertions and no supporting legal authority. Attempts to bolster the argument in a reply brief came too late. Additionally, his “writing a check is not the practice of law” contention was not raised below and was defaulted under Rule 5:25. The Court therefore declined to reach the merits of the Rule 4.1(a) assignment.

5) Standard of Review and Factual Deference

Relying on Pilli and Blue, the Court emphasized deference to the panel’s factual findings and the practice of stating facts consistent with those findings where the evidence conflicts. Pollack’s assignments of error centered on his version of events (e.g., that Kearney did not fear him; that she needed a guardian; that he acted selflessly), but the panel reasonably found otherwise. Viewing the evidence in the light most favorable to the Bar, ample support existed for the misconduct findings.

6) Sanction: Revocation Was Appropriate

The Court affirmed revocation based on:

• Pollack’s “failure to understand and appreciate his misconduct and the gravity of his misconduct.”
• His extensive disciplinary history since 1999, including prior serious violations and suspensions summarized in the 2023 Pollack opinion.
• The principle that proof of client harm is not a prerequisite to discipline.

The decision underscores that protecting the public, the courts, and the integrity of the profession can warrant revocation, particularly when a lawyer shows persistent misconduct and lack of insight.

Impact

A. Duty of Candor in Protective Proceedings

• Attorneys seeking guardianship/conservatorship—especially for individuals with whom they have had a fiduciary role—must disclose adverse, material facts such as revocation of a power of attorney, restraining/no-trespass directives, or other facts undermining authority or consent.
• Using hedging language (e.g., “purported” agent) does not cure the failure to disclose facts that fundamentally alter the court’s understanding of the filer’s authority and relationship to the respondent.
• Self-appointment requests are inherently sensitive; undisclosed conflicts or revocations magnify the duty to be scrupulously candid.

B. Disciplinary Law and Practice

• Non-frivolous pleadings can still be sanctionable if they contain misrepresentations or omissions. Rule 3.1 is not a safe harbor against Rules 3.3 and 8.4.
• Agreed orders lacking adjudicated findings—particularly when drafted by the respondent—do not bind the Bar or the disciplinary tribunal on issues like “good faith.”
• Repeated misconduct and lack of remorse can justify the ultimate sanction of revocation, even absent a showing of client harm.

C. Appellate Practice

• Assignments of error must be supported by developed legal argument and citations in the opening brief. Cursory assertions or reliance on reply briefs will forfeit appellate review.
• Arguments not raised below are barred under Rule 5:25.

D. Practice While Suspended

• Labeling yourself “Attorney at Law” while suspended—on checks, letterhead, or other communications—can implicate Rule 4.1(a). Even though the Court did not reach the merits here due to default, the panel’s finding stands and signals caution for suspended or inactive attorneys.

Complex Concepts Simplified

• Durable Power of Attorney (POA): A document authorizing an agent to act for a principal, remaining effective even after the principal’s incapacity. It can be revoked by the principal if competent at the time of revocation.
• Guardianship/Conservatorship Petition: A court request to appoint a person to manage another’s personal and/or financial affairs due to incapacity. These petitions are intrusive and demand full candor about the petitioner’s relationship to the respondent.
• No-Trespass Notice: A written directive barring a person from entering property or contacting an individual; highly material in assessing the nature of the relationship between the petitioner and respondent.
• Nonsuit (Virginia practice): A plaintiff’s voluntary dismissal, typically without prejudice. It does not erase the implications of misleading filings made before dismissal.
• Rule 3.3(a)(1) — Candor to Tribunal: Prohibits knowingly making false statements of fact or law to a court; in practice, this extends to avoiding misleading half-truths when key facts are omitted.
• Rule 4.1(a) — Truthfulness in Statements to Others: Prohibits knowingly making false statements of fact or law in the course of representing a client.
• Rule 8.4(b),(c) — Misconduct: Forbids criminal or deliberately wrongful acts reflecting adversely on honesty/fitness, and conduct involving dishonesty, fraud, deceit, or misrepresentation.
• Clear and Convincing Evidence: A high evidentiary standard requiring firm belief or conviction in the truth of the allegations—higher than preponderance, lower than beyond a reasonable doubt.
• Appellate Default:
  • Rule 5:27: Requires developed argument and authorities in the opening brief; failure waives the assignment.
  • Rule 5:25: Arguments not preserved in the trial tribunal are not considered on appeal.

Conclusion

Pollack v. Virginia State Bar crystallizes several important disciplinary principles in Virginia. Most notably, it clarifies that an attorney’s duty of candor to the tribunal demands full disclosure of adverse, material facts—such as revocation of a power of attorney and a no-trespass notice—when seeking protective relief that relies on the attorney’s authority and relationship to the respondent. Cosmetic qualifiers like “purported” do not neutralize misleading omissions. Nor can an agreed “good faith” order in the underlying matter, particularly one drafted by the respondent and entered without an evidentiary hearing, immunize a lawyer from disciplinary scrutiny.

The Court also reinforced that honesty-based rules (Rules 3.3 and 8.4) operate independently of Rule 3.1; a non-frivolous pleading can still be sanctionable if it is dishonest. The opinion further underscores rigorous appellate practice requirements: inadequate briefing and unpreserved arguments will be deemed waived. Finally, revocation is an appropriate sanction where a lawyer’s persistent misconduct and failure to appreciate its gravity demonstrate unfitness to practice, irrespective of whether specific client harm is proven.

In practical terms, Pollack warns Virginia attorneys that guardianship and conservatorship filings—especially when intertwined with prior fiduciary roles—require scrupulous candor. It also signals that disciplinary authorities and the courts will look beyond formal recitals and assess the substance of an attorney’s conduct against the profession’s core values of honesty and integrity.