Virginians for Safe Communities

6269 Leesburg Pike Drive, B7

Falls Church, VA 22044
January 19, 2023

Virginia State Bar

Intake Office
1111 East Main Street, Suite 700
Richmond, Virginia 23219-0026

Re: Ethics Complaint Against Fairfax County Commonwealth’s Attorney Steve T. Descano

To the Virginia State Bar:

On behalf of concerned citizens of the Commonwealth of Virginia, I write to the members
of the Virginia State Bar (VSB) Council and Executive Committee to request a formal inquiry into
the misconduct of Fairfax County Commonwealth’s Attorney Steve T. Descano.
Mr. Descano, as the leader of the office of the Fairfax County Commonwealth’s Attorney,
has engaged in serious matters of professional misconduct that constitute a violation of the VSB’s
Professional Guidelines. We ask the Bar to investigate these violations of ethical codes of conduct
and take the necessary disciplinary action as soon as possible. As Mr. Descano’s position as the
county’s chief prosecutor holds a position of public trust that affords him great power to represent
the Commonwealth and its citizens in criminal matters, it is critical as a matter of public integrity
that the VSB investigate and impose appropriate sanctions accordingly.
Specifically, Fairfax Commonwealth's Attorney Steve Descano actively contravened the
Virginia Freedom of Information Act [§ 2.2-3704] by intentionally destroying public records [i.e.,
electronic communications]. By engaging in "deceit" in a "deliberately wrongful act," Mr. Descano
violated the Virginia State Bar's Rules of Professional Conduct under Rule 8.4.
WJLA-TV (“7News”) reported on January 17, 2023 that Mr. Descano and his senior staff
utilize an encrypted messaging service [“Signal”] to conduct official business, at Mr. Descano
direction. That phone application allows users to delete or “disappear” communications, keeping
no official record of the correspondence. i The next day, Mr. Descano confirmed that he and his
employees use the service and that the messages are no longer available and cannot be produced
to fulfill a FOIA request. ii
Despite Mr. Descano’s statement that “my team takes care to comply with FOIA across
channels,” the communications privately archived by a participant in the Signal chats and later
obtained by the media demonstrate that his office is not in compliance with public records law.
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The Virginia Freedom of Information Act, with limited exceptions, states that:
“[A]ll public records shall be open to citizens of the Commonwealth, representatives of
newspapers and magazines with circulation in the Commonwealth, and representatives of radio
and television stations broadcasting in or into the Commonwealth…” iii
Virginia’s governing FOIA statute defines these to include “electronic communications”:
"Public records" means all writings and recordings that consist of letters, words, or numbers, or
their equivalent, set down by handwriting, typewriting, printing, photostatting, photography,
magnetic impulse, optical or magneto-optical form, mechanical or electronic recording, or other
form of data compilation, however stored, and regardless of physical form or characteristics,
prepared or owned by, or in the possession of a public body or its officers, employees, or agents
in the transaction of public business. iv
Mr. Descano’s decision to produce for the intent of destroying such records is a clear
violation of both the spirit and the letter of the law. Furthermore, multiple individuals confirm that
Mr. Descano described his intent, in using self-deleting communications, was to circumvent the
FOIA statute. This evinces that Mr. Descano’s actions were not inadvertent or borne out of
ignorance of the law.
By creating public records with the express intent to destroy them, Mr. Descano engaged
in “deceit” and “dishonesty” in furtherance of a “deliberately wrongful act” – which is clear
misconduct according to the Virginia State Bar’s Rules of Professional Conduct. Such violations
require your body to conduct a thorough and prompt investigation and enforce necessary
disciplinary action, up to and including potential disbarment. v
The evidence shows a clear attempt by the Fairfax County Commonwealth Attorney Steve
T. Descano to violate government transparency rules and obscure the official communications of
his office. Thus, as Citizens of the Commonwealth of Virginia we ask that the Virginia State Bar
investigate the conduct of Fairfax County Commonwealth Attorney Steve T. Descano and his
office.

Sincerely,

Sean Kennedy
President, Virginians for Safe Communities
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i
https://wjla.com/news/local/steve-descano-fairfax-county-virginia-code-va-commonwealth-attorney-signal-app-
text-deletes-messages-foia-screenshots-attorney-general-jason-miyares-glenn-youngkin
ii
https://wjla.com/news/local/steve-descano-fairfax-county-lawyers-commonwealths-attorney-freedom-of-
information-act-virginia-code-foia-laws-deleting-messages-signal-app-text-message-virginia-crime-jason-miyares-
jim-beglis-whitbeck-bennett
iii
https://law.lis.virginia.gov/vacodepopularnames/virginia-freedom-of-information-act/
iv
https://law.lis.virginia.gov/vacodepopularnames/virginia-freedom-of-information-act/
v
https://www.vsb.org/pro-guidelines/index.php/rules/maintaining-the-integrity-of-the-profession/rule8-4/