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.