Virginia Family Law Appeals

Scialdone: CONTEMPT – DIRECT OR INDIRECT – PROCEDURAL AND CONSTITUTIONAL RIGHTS – DUE PROCESS – ATTORNEY MISCONDUCT.

 Unsurprisingly to many people, the convictions of Mr. Scialdone, the overreaching Virginia Beach criminal defense lawyer, were reversed by the Virginia Supreme Court.  Of course you can’t change the Rules in the middle of the game and shift gears from indirect to direct contempt, and then justify the one kind of contempt conviction by the legal principles that apply to the other, the Supreme Court explains to the intermediate court majority.  Thus the summary contempt convictions and jail times for two lawyers and their law clerk are at last overturned.  The judge, facing what she considered a scandalous libel of herself, held these lawyers in contempt for perpetrating a fraud with forged evidence produced on their own computers in their office to get a criminal defendant off and for sort of, in a roundabout way, calling her a Nazi.  With this conduct, the Supreme Court unanimously finds that the misbehavior certainly didn’t take place in the presence of the court.  This judge had run her own investigation of the matter, bringing the three defendants and their secretary into the courtroom under oath to testify about it, and had ordered a deputy to go to the law office and rummage for incriminating documents.  This is not the kind of “misconduct under the eye of the court” that can allow the defendant to be convicted totally without constitutional due process.  This, you will remember, is the case in which the Court of Appeals panel reversed the convictions as unconstitutional, and that was reversed by the en banc Court of Appeals.  In a long and tangled opinion the en banc court held that these defendants had failed to preserve their crucial argument as to constitutional due process.  That was error, the Supreme Court holds, as was the trial judge’s refusal to give these defendants a full due process hearing.  Scialdone v. Commonwealth, ___ Va. ___, ___ S.E.2d ___, 24 VLW 1050 (2/25/10).

Barrett v. Bar: LEGAL ETHICS – ATTORNEY AS LITIGANT.

Ah, those busy, busy appellate courts: they make your head spin sometimes.  And with no better excuse than that, it appears that we missed the third visit of the irrepressible Mr. Barrett’s ever-entertaining disciplinary case (not to mention the several visits of his divorce case) to the Virginia Supreme Court.  But hey!  Ya gotta love a guy with all the moxie, mojo, creative effrontery, testosterone, and just plain cojones, to keep it going all this time.  When the Virginia Supreme Court reviewed the case of an obstreperous lawyer-litigant this time, it held in Barrett v. Virginia State Bar, 277 Va. 412, 675 S.E.2d 827 (2009), that the lawyer was subject to the disciplinary rules even in his capacity as a husband representing himself in post-divorce litigation, and that the three-judge court below indeed had jurisdiction to apply those Rules to him even though his license to practice had already been suspended when he committed the particular violations in question. It further held that applying the disciplinary rules to a lawyer litigating in such family law matters did not violate his constitutional right to equal protection, and (once again) that he violated the Virginia Model Rules of Professional Responsibility by challenging his child support obligation with a claim that was frivolous.