Virginia Family Law Appeals

ETHICS — ATTORNEY-CLIENT RELATIONSHIP — LIMITED REPRESENTATION/”UNBUNDLING”: Jeffers v. Inova Mt. Vernon Hospital.

A lawyer who signed a pleading with a name of another law firm and explained in court that she drafted a Title VII complaint only as a favor to a lawyer in that firm, cannot say now that she did not represent the plaintiff, and it doesn’t matter what she says the Virginia State Bar Ethics Hotline told her, the U.S. District Court for the Eastern District of Virginia at Alexandria says. 

LEGAL ETHICS – DISCIPLINE – LAWYER’S PRO SE CONDUCT OF OWN DIVORCE CASE — WITNESS EXTORTION – CALLING OPPONENT AS WITNESS – COMPETENCY – WRONG LEGAL CONCLUSIONS AND DELAY IN READING AND REACTING TO PLEADINGS – MISSING STATUTE OF LIMITATION

The lawyer who may have been wise to take his case to the three-judge circuit court still had three of the disciplinary charges upheld, and thus he appealed to the Virginia Supreme Court in Barrett v. VSB, 634 S.E.2d 341, 212 VLW 472 (9/15/06). The first certified charge concerned the lawyer’s own divorce suit against his wife, and a subpoena he issued to her former employer because her earning capacity was an issue.  He sent two letters to the employer concerning the inconvenience and expense that appearing in court would mean, and offered to drop the subpoena if the employer would withdraw a claim for an attorney’s lien that somehow this employer had against him.  The holding that this violated Rules 4.4 and 8.4(b) was affirmed.  The second charge was that the lawyer called the wife’s counsel as a witness because the lawyer, Barrett, was charging that wife’s counsel had a romantic relationship with her.  Apparently, as soon as opposing counsel denied this, Mr. Barrett abandoned his attempt to call his opponent as a witness.  The decision that this violated Rules 3.1 and 3.4(j) was affirmed.  The lawyer’s argument that a lawyer who is representing himself cannot be held to legal ethics standards of conduct was rejected, with the explanation that when a lawyer represents himself he is still acting as a lawyer and the disciplinary rules still apply.  The third and most difficult issue concerned charges of incompetent representation that the Bar chose to prosecute notwithstanding that it had already been the subject of malpractice litigation.  Barrett first claimed that he was immune from liability because he practiced as a PLLC.  The PLLC statute, however, specifically declares PLLC-member attorneys personally liable. The Rule 1.1 charge of providing incompetent representation was not found to be that simple.  The lawyer admitted that his failure to file his client’s personal injury suit within the statute of limitations was negligent.  But, the Supreme Court points out, that is not per se a Rule 1.1 disciplinary violation.  Nor is legal research that results in a wrong conclusion enough, in itself, to violate Rule 1.1.  No attorney error, standing alone, is per se clear and convincing evidence of incompetent representation.  Also charged was the lawyer’s failure to read responsive pleadings timely enough and his delay in withdrawing his special plea of immunity, but the Supreme Court finds that those do not support the finding of incompetent representation here.  Nor was the statute of limitations error a Rule 3.1 violation.  It is not the same thing as taking a frivolous position.

Kilby v. Commonwealth: PARENTS’ CRIMINAL RESPONSIBILITY FOR CHILDREN’S INCEST – CONTRIBUTING TO DELINQUENCY -- LEGAL ETHICS -- INEFFECTIVE ASSISTANCE --REPRESENTING CO-DEFENDANTS.

How much discretion do parents have to see to their own children’s discipline, reform and protection when something embarrassing and inappropriate happens within the home?  Apparently absolutely zero, according to two Court of Appeals criminal cases – unpublished but with dissents – involving a mother and father who got the book thrown at them for not immediately inviting the social workers, etc., into their home when two boys sexually abused their younger sister. 

Briggman v. Commonwealth: DCSE LAY-EMPLOYEE PETITIONS – UNAUTHORIZED LAW PRACTICE?

CHILD SUPPORT ENFORCEMENT — CIVIL RIGHTS ACT SUITS – DCSE LAY-EMPLOYEE PETITIONS – UNAUTHORIZED LAW PRACTICE – ABSTENTION  – STATE GOVERNMENT IMMUNITY.  The federal Civil Rights Act Suit claiming that it was unconstitutional for the Virginia Department of Child Support Enforcement to file contempt motions, signed by non-lawyer employees rather than attorneys, against alleged deadbeat parents, was thrown out by the Western District in Briggman v. Commonwealth, 22 VLW 949 (12/21/07). 

PROPERTY DIVISION — SOURCE OF FUNDS — MARITAL-TO-SEPARATE CONTRIBUTION — PROOF — “ADDITION TO VALUE” REQUIREMENT — SANCTIONS — PUNITIVE FEE AWARD.

Sure the source-of-funds provisions of §20-107.3 allow credit for marital contributions to separate property.  But as many lawyers know and the Court of Appeals recently explained, it is not that easy.  In Burstein v. Morriss, unpublished, 22 VLW 323 (8/14/07), the wife had owned a North Carolina house with her father since way before the marriage, and she lived in it with her husband from 1996 to 1998, with mortgage payments coming from a joint checking account.  But that’s not all that the husband had to prove, and the trial court properly denied him any interest in the $100,000 she got for it.

SANCTIONS — CONFLICT OF INTEREST — DUAL REPRESENTATION — UNCONCIONABLE AGREEMENTS — ATTEMPTED FRIVOLOUS DEFENSES TO SET-ASIDE — SANCTION AMOUNTS AND COST AWARD AMOUNTS.

  Vinson v. Vinson, 18 VLW 618 (11/18/03).
In an opinion that merges elements of legal ethics and professional responsibility law, as well as separation-agreement-set-aside law, into the growing case law on §8.01-271.1 sanctions, the Court of Appeals says some useful things about the last.  A lawyer said right in his "retainer" agreement  that he was representing both husband and wife. He then drafted, without ever speaking to Husband, a Separation Agreement (which Husband apparently signed), giving Wife 75% of their most valuable asset, the house.

SANCTIONS -- ARBITRATION -- MALPRACTICE TRAP.

In Bandas v. Bandas,  430 S.E.2d 706 (1993), the Court of Appeals upheld an award of frivolous-filing sanctions against a husband for not knowing the new rule that it adopted in the instant appeal.  The Court of Appeals admitted that this was a case of first impression, in which it had to look to the rulings of other states, but the appellant got it wrong, so he must be penalized.  The new rule was that when an arbitration award is challenged in a domestic relations case the standard of review is neither "substantive fairness and equity" (what the husband argued), nor "gross miscarriage of justice" (which the trial judge thought) but "against public policy or unconscionable or other grounds to set aside a contract in equity." 

LEGAL MALPRACTICE -- SETTLEMENTS -- CLIENT'S WITHDRAWAL OF SETTLEMENT AUTHORITY.

A client's malpractice claim against her lawyers for settling her malpractice suit is thrown out by the Virginia Supreme Court, which holds that the trial court properly held that the lawyers at trial had authority to have her malpractice action dismissed with prejudice.  The appellate court finds overwhelming credible evidence that the client went along with the mediated settlement in every way until after the compromise was reached, everyone had ceased trial preparations, plaintiff's lawyers discussed the arrived-at settlement with her, both counsel met with the trial judge on the morning scheduled for trial, and the judge entered an order dismissing with prejudice. Then she refused to sign a written agreement embodying the settlement later that day and informed her lawyers that she had retained new counsel.  Her indications that she had told her counsel she was not pleased with the settlement terms, or thought no settlement had been reached, are regarded as less than credible.  When parties fully agree upon a settlement, intending to be bound thereby, the Court says, the mere fact that it has not yet been reduced to writing does not matter. Snyder-Falkinham v. Stockburger, _____Va._____,457 SE2d 369, 9 VLW 1315 (4/21/95). 

LEGAL ETHICS – LAWYER’S DIVORCE – CONTACT WITH OWN WIFE.

The tricky subject of applying the legal ethics code to lawyers’ behavior in their own divorce cases and toward their own spouses received close attention from the Virginia Supreme Court in Barrett v. Virginia State Bar, ___ Va. ___, 611 S.E.2d 375, 19 VLW 1240 (4/22/05).  Though the lawyer in question was proved, to the Disciplinary Board’s satisfaction, to have acted in an overbearing, obnoxious and generally idiotic manner toward wife at the outset of their divorce case, a majority of the Supreme Court refused to start policing marital conduct by means of the Model Rules of Professional Responsibility.

JUVENILE COURTS -- APPEAL: Jones v. DCSE

The Department of Child Support Enforcement can appeal from a juvenile judge's decision to overturn their administrative support order.  However, a party or an attorney for the party -- not a non-lawyer DCSE bureaucrat -- must sign the appeal.  9 VLW 630 (11/8/94).