Virginia Family Law Appeals

Modest-income mom of 5 must pay ex's costs for her dishonest appeal; current actual earnings averaged to get presumptive support income

The Court of Appeals rejected an appeal as totally baseless and thus awarded the Appellee father his fees and costs in the appeal in Ranghelli v. Ranghelli (5/7/19). The mother’s commission-based earnings varied greatly, and she had been unemployed or on unpaid leave for parts of the past two years. The trial court used a monthly average of her earnings during her current period of continuous employment, based on her pay stubs, as her income for support purposes. The mother argued on appeal that the trial court had averaged her earnings while working over the past three years, not counting periods when she was not working, and that it thus imputed income to her, which deviated from the “presumptive amount” without making the required written findings to justify that. But the numbers showed that “the court did precisely what is required under the case law and based its presumptive child support” on her “most recent actual income.” And because she based her appeal on alternative facts of the case and “failed to address what the trial court actually did, her arguments are not fairly debatable” and the husband is entitled to his fees and costs for the appeal.

Litigant must have lawyer representing her directly, not just representing her “authorized representative.”

Virginia’s Court of Appeals dismissed an appeal filed in the name of a party to the trial court case, but filed and signed by a lawyer who said he represented not the party, but a rehab facility that was not named as a party in the case. Lynch v. Bedford Co. DSS (6/11/19, unpublished). Rule 1:4(c) and Virginia Code §8.01-271.13 require all pleadings to be signed by the litigant’s lawyer, or the litigant herself if she does not have a lawyer. The party had named the facility as her “authorized representative” in contesting a denial of Medicaid coverage. Although federal regulations allow that, this “does not supplant or erode the requirement that there must be an attorney-client relationship between the litigant … and counsel appearing and signing pleadings on her behalf,” who must have an ethical duty to the litigant.

Pro-se lawyer comes to court in shorts, judge makes him go change, keeps on with his trial while he's gone

Barrett v. Minor (Va. Ct. App. unpublished 10/23/18) is a routine affirmation of a fee award in an earlier appeal in extraordinarily typically miserable family law litigation, against a lawyer who was disbarred for things he did in that litigation. The Court says he was extremely litigious and turned even small, routine steps in the process into huge controversies with voluminous briefs. Probably the only remarkable thing about this is that he came to the hearing about attorney's fees in the earlier appeal in shorts and a polo shirt. The judge sent him home to change clothes, and while he was gone, ruled against him on all pretrial motions and heard the other side's opening statement. This too is heartily affirmed.

'The trial court found on the record that father “is or was a lawyer . . . is highly trained . . . and very intelligent and this [appearing at court inappropriately dressed] is just another ploy ...'"

Late license justifies annulment of marriage AND of marital financial agreement, other fallout

The case of MacDougall v. Levick and Levick v. MacDougall (2/23/16) is a big mess for everyone but provides superbly-written and useful guidance on many issues at a time of change in family law.

The couple's wedding was in 2002. They apparently -- rather incredibly, but no one seems to have ever questioned their honesty on this -- had not realized they needed a marriage license. Their rabbi was completely unfamiliar with Virginia, and prudently went to the Fairfax Circuit Court beforehand to register as clergy so he could perform the wedding. The day of wedding,  he asked the couple for the license, and they said there wasn't one. He thought that was odd and unprecedented, but then again many things about Virginia seem odd to people from Montgomery Co., Md. Everyone decided to "deal with it later" and the wedding proceeded. Two weeks later, the couple got a marriage license, but instead of then having a brief additional ceremony with the rabbi or a civil magistrate, they mailed it to the rabbi in Maryland, and he signed it, certifying the marriage as occurring on the day he signed it.

The couple lived together, assuming they were married. In 2009 they entered a Va. Code § 20-155 "Marital Agreement", which is like a prenup but after the wedding, and in fact they are often done when a marriage seems to be breaking down.  Indeed, many complete separation/property settlement agreements claim to be Marital Agreements, citing 20-155. It gave the wife $150,000 a year in alimony -- not too much more than the average income and cost of living in the Northern Virginia suburbs -- and it said  it “shall form the foundation of a divorce or separation agreement, should either come to pass”.

And it came to pass that the wife filed for divorce in 2011, asked the court to incorporate the agreement and grant pendente lite alimony based on it, and received a pendente lite award of about two-thirds what the agreement said.

You Gotta Getta License

Virginia has required some form of licensing by church or state BEFORE marriage since 1628, the Court points out. Licensing first, then "solemnization". The wife had argued that the rabbi's signing of the certificate was a solemnization, or alternatively that the whole process of the wedding, the licensing and the signing was one single comprehensive event of the formalizing of the marriage. No, the Court says, because license always means something you get BEFORE you can do something -- hunting driving, practicing law -- and "To “solemnize” means “[t]o enter into (a marriage, contract, etc.) by a formal act, usu[ally] before witnesses.” Black’s Law Dictionary." Or "“to perform with pomp or ceremony or according to legal forms; esp : to unite a couple in (marriage) with religious ceremony : celebrate (a marriage) with religious rites”). " (Webster's) 

Mailing a license via express mail for a signature when the parties are not even present does not constitute “solemnization” under any reasonable definition of the term. FN 3: We reached a similar conclusion in Davidson v. Davidson, No. 2356-08-3, 2009 Va. App. LEXIS 313, at *4-5 (Va. Ct. App. July 14, 2009) (“The marriage license presupposes a ‘marriage ceremony’ solemnizing the union. And whatever formalities the ceremony requires, at the very least it requires the attendance of both the prospective bride and groom . . . .” (quoting Code § 32.1-267(C)))

... Offield, 100 Va. at 251, 40 S.E. at 910, ... observ[ed] that Virginians, “from the passage of our earliest statutes on the subject of marriage,” had regarded the statutory formalities as mandatory rather than directory. Id. at 260, 40 S.E. at 913. The Court acknowledged that this holding “‘may result in hardship in some cases’” but took the view that “‘the lesser injury will come from an adherence to the statutory requisite than otherwise.’” Id. at 261, 40 S.E. at 914 (quoting In re Estate of McLaughlin, 30 P. 651, 659 (Wash. 1892)). The Court observed that “‘[o]ur marital laws are plain and simple, not difficult to understand by the humblest citizen.’” Id. at 262-63, 40 S.E. at 914 (quoting Eldred, 97 Va. at 629, 34 S.E. at 485). 

Rules of Equity Don't Apply?

What I find disturbing in this case is this:

We generally reject the application of equitable doctrines in modern divorce suits because this body of law is now chiefly statutory in character. See Bajgain v. Bajgain, 64 Va. App. 439, - 15 - 457-58, 769 S.E.2d 267, 276 (2015).

I learned the maxims of equity in law school, starting with cases governed by the Uniform Commercial Code, and have dealt with them in many divorce cases in my 20 years of practice. I had never heard that they were not supposed to apply in divorce, or in other areas of law dominated by statutes instead of pure common law. Indeed, all family law cases  in Circuit Court were administered on the "Chancery" side of the courts until the structure of Chancery, but not the substance of equity, was abolished around 2006. Judges and lawyers in family law cases frequently invoke equitable doctrines, especially estoppel (which usually means a rule that a part can't claim in court the opposite of what he claimed before, in or out of court). Estoppel is often a key issue in cases about the validity of a marriage or recognition of a foreign divorce. 

But the Court notes that annulment is a creature of "the inherent power of equity, inherited by it from the ecclesiastical courts of England", whereas divorce is created purely by statutes. Pretlow v. Pretlow, 177 Va. 524, 548-49, 14 S.E.2d 381, 387 (1941).  There are statutes about annulments but they codify and set procedures and rules for a remedy that was already available. (Citing Heflinger, 136 Va. at 296, 118 S.E. at 318).

And so, assuming only for the sake of argument that equity defenses to the attack on the marriage are available, it rejects them. Laches does not apply because it is the unexplained failure to pursue a known claim, and here, the person challenging the marriage acted fast once someone told him that the marriage might not be valid. Also, a case chiding a wife for a late challenge to her divorce decree, after the husband and new wife relied on that divorce and got married, does not apply to someone challenging his own existing marriage.

Also, the wife cannot claim that the husband should have known about the problem earlier, when she herself knew all the same facts at the same time. There can be no estoppel when both parties had the same knowledge of the operative facts and the same ability to investigate them. (Citing Fitzgerald v. Fitzgerald, 194 Va. 925, 930, 76 S.E.2d 204, 207 (1953) (quoting Lindsay v. James, 188 Va. 646, 659, 51 S.E.2d 326, 332 (1949)).

Void or Voidable?

The Court finds the marriage merely voidable (by an annulment sought by a qualifying party to the marriage), not absolutely void (regardless of what anyone wants). 

Curative Statute

Va. Code § 20-31 validates good-faith marriages despite any technical problems with the license or the celebrant. But it does not apply to this couple, the Court said, because of the phrase in its first line, "solemnized under a license":

No marriage solemnized under a license issued in this Commonwealth by any person professing to be authorized to solemnize the same shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected on account of any want of authority in such person, or any defect, omission or imperfection in such license, if the marriage be in all other respects lawful, and be consummated with a full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.

Ratification of Marriage

This certainly could have been a decisive issue, but "The parties have not raised the question of whether they could and did ratify the marriage. Cf. Toler, 173 Va. at 432, 4 S.E.2d at 367. Accordingly, we do not address the question of whether a marriage such as this one may be ratified."

This ground for annulment is not among the grounds which Va. Code. § 20-89.1 says cannot "be decreed if it appears that the party applying for such annulment has cohabited with the other after knowledge of the facts giving rise to what otherwise would have been grounds for annulment; and, in no event shall any such decree be entered if the parties had been married for a period of two years prior to the institution of such suit for annulment."

Interpretation and Construction of Wording

In analyzing a statute, we give each word “‘its ordinary meaning, given the context in which it is used.’” Sansom v. Bd. of Supervisors, 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999) (quoting Dep’t of Taxation v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 658, 261 S.E.2d 532, 533-34 (1980)). 

On appeal, Circuit Court can't act on non-appealed counterclaim, nor sanction for "protracted litigation" nor incomplete evidence

An appeal from district to circuit court can only address the specific "case" that was appealed, and not a counterclaim that had been filed but not appealed separately, the Virginia Supreme Court rules in a case originally from General District Court, The Robert & Bertha Robinson Family LLC v. Allen (3/1/18). The district court had dismissed the plaintiff's filing, which was a warrant in debt, and the counterclaim. The plaintiff filed a notice of appeal, but the defendant did not file one, nor any pleadings in circuit court, except for a sanctions motion. The plaintiff later withdrew the appeal, and the circuit court sanctioned the plaintiff for $10,000 in attorney's fees and awarded the defendant the return of the security deposit, which the original counterclaim had asked for, without hearing any evidence about it.

Counterclaim and De Novo Appeal

... Tenants argue that their unsuccessful counterclaim was appealed, though unwittingly, by the landlord when it filed its own notice of appeal. The tenants claim that this “piggyback” approach to GDC appeals is the customary view among some circuit courts. See Appellees' Br. at 13-15 (quoting Boyce v. Athey, 4 Va. Cir. 19, 19-21 (1980)) The landlord disagrees and adds that, regardless of accepted custom, the “piggyback” approach is wrong as a matter of law. See 1 Kent Sinclair, Virginia Practice and Procedure 40 (2010) (concluding that “where a counterclaim has been filed there must be a specific appeal of the counterclaim from the General District Court” and that an appeal by a plaintiff “does not automatically bring the counterclaim before the circuit court”).

A leading scholar of Virginia procedural law, Judge J.R. Zepkin, observed years ago that, in GDC cases involving consolidated claims by several parties, “[t]here is no clear guidance on what happens ․ if one of multiple losing parties wishes to appeal.” J.R. Zepkin, The Rules of Court for the General District Courts of Virginia, 23 U. Rich. L. Rev. 809, 829 n.43 (1989). 

Common law provided no right, custom or practice of "appeal" in any now-recognizeable form, the Court explains, but only appeals from law to equity, and writs of error. Therefore,

... “In case after case” involving appeals from courts not of record, “we have in clear, unequivocal, and emphatic language repeatedly said that ‘[t]he right of appeal is statutory and the statutory procedural prerequisites must be observed.’ ” Covington Virginian, Inc., 182 Va. at 543, 29 S.E.2d at 409 (citation omitted). “The right of appeal is statutory,” Brooks v. Epperson, 164 Va. 37, 40, 178 S.E. 787, 788 (1935), because it is “a process of civil law origin,” Tyson, 116 Va. at 252, 81 S.E. at 61 (citation omitted).

... Absent a statutory authorization or a constitutional mandate, no party has a right to a de novo appeal of the GDC's judgment in the circuit court. Customary practices, by themselves, cannot create this right. The tenants do not assert a constitutional basis for their “piggyback” theory of appeal. Consequently, without a clear statutory basis for it, the GDC's adverse judgment on their counterclaim was not properly before the circuit court.

And the statutory language contemplates de novo appeals of specific actions of a court, by specific parties, not a general appeal of the whole situation:

Code § 16.1-106 addresses appeals and grants “an appeal of right” to a litigant from “any order entered or judgment rendered in a court not of record in a civil case” when the “matter in controversy” exceeds $20. Code § 16.1-107 states that no appeal “shall be allowed unless and until the party applying for the same” provides an appropriate bond “sufficient to satisfy the judgment of the court in which it was rendered.” Code § 16.1-107 also requires the “party applying for appeal” to pay a writ tax to the circuit court.

The tenants argue that these statutes imply that a notice of appeal filed by one litigant appeals the entire case on behalf of all other litigants in the GDC case, even the claims of those litigants against whom the appealing party prevailed. In other words, an appeal by one party converts all other parties into de facto appellants on every adverse ruling of the GDC. We do not see any textual basis for this statutory inference.

Code § 16.1-106 does not require the appealing party to appeal every adverse ruling of the GDC but, rather, provides an “appeal of right” for “any order entered or judgment rendered.” Under the tenants' contrary view, a party cannot appeal a loss on one claim without forfeiting his wins on other claims against other parties. So, if a plaintiff asserts claims against two defendants, prevailing against one defendant and losing to the other, he cannot appeal the adverse judgment without sacrificing the favorable judgment. Similarly, if we assume that the losing defendant in the GDC files a notice of appeal but neither the plaintiff nor the winning defendant do, under the tenants' view of the appellate process, the winning defendant loses his victory even though the losing plaintiff never appealed that loss.

This actually makes practical sense when we remember what counterclaims are, in the first place. They are not necessary defenses, they are potentially separate cases which the courts consider within the same litigation for the sake of judicial economy:

 The law encourages counterclaims “in an effort to avoid a multiplicity of lawsuits and the danger of inconsistent judgments,” W. Hamilton Bryson, Bryson on Virginia Civil Procedure § 6.04[1], at 6-85 (5th ed. 2017), but they nevertheless may be asserted in an “independent action,” Sinclair & Middleditch, supra, § 9.10[A], at 748.

And that language about "the party applying" filing a bond also provides a practical and moral reason not to allow the non-appealed counterclaim: Why should only one party have to pay an appeal bond, if his appeal is also his opponent's appeal? 

If his notice of appeal implicitly appeals his opponent's unfavorable rulings as well as his own, must he post an appeal bond on his opponent's behalf for the implicit appeal? Surely not. It would be equally odd to allow a non-appealing party to get the benefit of the appeal — a reprieve from the enforcement of the GDC judgment — with no duty to post an appeal bond at all.

Sanctions

On sanctions, the Circuit Court said that "filing of a lawsuit without all evidence in hand" violates the sanctions statute, Code § 8.01-271.1, and the “duty to have all evidence upon which it planned to rely on before ever filing suit.” This was wrong and the sanctions were an abuse of discretion, the Supreme Court says.

The statute does not, as the circuit court ruled, place a “duty” on a claimant “to have all evidence upon which it planned to rely on before ever filing suit.” J.A. at 275 (emphasis added). Nor is it “a per se violation” of the statute to file “a lawsuit without all evidence in hand.” Id. at 275-76 (emphasis added). When filed, a claim must be “well grounded in fact,” Code § 8.01-271.1, not exhaustively supported with every conceivable fact that the party may plan to use at trial.

. . . Unless an expected defense is so irrefutable as to render a claimant's theory of relief frivolous, “claims which are recognized under Virginia law, and as to which the essential elements were pled, are not sanctionable even if they do not prevail on the merits.” Kent Sinclair & Leigh B. Middleditch, Jr., Virginia Civil Procedure § 11.8, at 900 (6th ed. 2014).

The tenants also cited “the protracted history of the litigation" as a reason for the sanctions. The Court first points out that the Circuit Court never said that, but:

We recognize that an “appellee is free to defend its judgment on any ground” supported by the record, “whether or not that ground was relied upon, rejected, or even considered by the [circuit] court” so long as additional factual findings are unnecessary. Perry v. Commonwealth, 280 Va. 572, 581, 701 S.E.2d 431, 437 (2010) (alteration and citation omitted).

 But it rejects that argument on its merits:

Protracted litigation is a regrettable reality in the modern adversarial process. Assuming that the present dispute became protracted because the landlord exercised its right to a nonsuit and to a de novo appeal of the GDC's judgment, these circumstances, whether considered alone or together, are not intrinsic badges of bad faith. To be sure, it is conceivable that a litigant could initiate litigation, nonsuit and refile the claim, and then fight to the bitter end, all for the singular purpose of harassing an opponent and depleting his resources. If that were the case, it would not matter that the litigant's “pleadings were ‘well grounded in fact’ and ‘warranted by existing law’ ” because even facially legitimate pleadings cannot be filed for “an improper purpose.” Kambis, 290 Va. at 467, 778 S.E.2d at 121 (quoting Code § 8.01-271.1). The record in this case, however, does not warrant the inference that the landlord acted with an improper purpose.

 

A pleading is a nullity when signed only by client, when attorney is counsel of record

A pleading signed only by a party, when he has counsel of record, is not sufficient to preserve issues for appeal. McGinnis v. Commonwealth, 12/12/2017. 

Code § 8.01-271.1 states: [E]very pleading, written motion, and other paper of a party represented by an attorney shall be signed by at least one attorney of record ...

The statute allows for later corrections of pleadings that are "not signed", but not those that are signed, but improperly, by the wrong person, the Court says. So it refuses to let the appellant's attorney cure the defect by signing the pleading months later.

"The statute does not contemplate a hybrid form of representation where a defendant is simultaneously represented by counsel and also acts pro se."

Final order could not schedule separate sanctions motion hearing more than 21 days out; jurisdiction expired, order void

The trial court granted a demurrer and dismissed, with prejudice, a case challenging certain child custody orders. The final order that did this also noted that a defendant had filed a motion for sanctions, and scheduled it for argument on a date almost two months later. No other order was entered within 21 days after the final order. The trial court granted the sanctions motion, almost four months after the date it had set it for, and five and a half months after the final order. 

Under Rule 1:1, there was no jurisdiction to hear or decide the sanctions motion more than 21 days after the original final order, so the sanctions order "is a nullity and void ab initio," the Supreme Court says in Barrett v. Minor, unpublished, 2/8/18.

The opinion does not discuss whether there was any particular language in the Final Order reserving jurisdiction to hear the motion, or making exceptions to its finality. So it neither indicates that such language would have made a difference, nor that it wouldn't have. 

Don't make a federal case out of your kids' custody, or jealously try to control ex's choice of lawyer - Barrett v. Minor

Those crank cases where someone with a family law or small-claims dispute sues everyone involved, including the judge, usually don't get publicized. This one, from the U.S. District Court for the Western District of Virginia, appeared in Virginia Lawyers Weekly, probably because in disposing of the case, the court ruled on a couple legal issues that it thought not everyone might be clear on.

 Plaintiff lost a custody case with his ex-wife and claimed that that result, and various Virginia laws on child custody, and things that various Virginia judges had done, were unconstitutional. He also sued on behalf of his two children as co-plaintiffs, making a habeas corpus claim that they were being held in the mother's custody due to an unconstitutional decision. He then conceded that the federal law does not allow habeas relief in this situation, but he asks to amend his complaint to pursue a habeas claim under state law, and to have the federal court exercise "supplemental jurisdiction" over the state law claim since it was already hearing his federal case. The court declined to exercise such jurisdiction over the state law claims. It granted a motion "to dismiss or abstain" for lack of subject matter jurisdiction, but did so without prejudice.

The plaintiff also claimed that the mother's new husband should not be allowed to serve as her lawyer in the federal case. The court denied his motion. It said that on the question of whether the husband could be both a lawyer and a witness, it did not have to decide that issue because there was not going to be a trial. Barrett v. Minor (USDC W.D.Va. 8-31-15). 

Conflict of interest kept managers from suing, but didn't “equitably toll” statute of limitations

A conflict of interest that allegedly prevented a lawsuit from being brought does not “equitably toll” a statute of limitations, Virginia’s Supreme Court says in Birchwood-Manassas Associates LLC v. Birchwood at Oak Knoll Farm, LLC (6/4/15). The plaintiff argued that the conflict was an “extraordinary circumstance”, which the Supreme Court has said can justify equitable tolling. (Brunswick Land Corp. v. Perkinson, 153 Va. 603, 608, 151 S.E. 138, 140 (1930)). Earlier cases of equitable tolling were suits that had been prevented from timely filing by fraud, or by some affirmative act of the Defendant. But neither of those was alleged in this case. And “Affiliated entities having overlapping management and the occurrence of transactions between such entities are not extraordinary occurrences.” Also, there were other parties available who could have sued on the claims before the statute expired, and one of them did in fact sue on a similar claim. There was no legal disability which “as a matter of law” kept a suit from being filed, and no “extraordinary circumstance which could not have been avoided by the exercise of due diligence.” So the clear rule seems to be that a conflict of interest does not toll the statute, but the additional circumstances the Court cites might lead to a different result in a case where they are different.

Rule 4.2, ending conversations with unrepresented adversary party, "immediately does not mean simultaneously" - Va.S.Ct.

LEGAL ETHICS – RULE 4.2, CONTACT WITH REPRESENTED ADVERSARY – 60-SECOND CALL – VICTORY FOR COURTESY AND COMMON SENSE. Maybe this is the kind of thing our society gets…Strike that. Obviously this is precisely what our society, and our profession, get from praising, applauding, and glorying in the much-celebrated “zero-tolerance” policies which encourage the wooden, dictatorial absoluteness, and encourage those in even the lowest positions of power to oppress their fellow humans with a self-righteous and ruthless missionary zeal. The same mind-set is obvious in school teachers and administrators decreeing the ultimate sanctions in their arsenals upon little boys pointing their fingers at others in a supposedly gun-like manner, doing the same with little sausages or half-eaten sandwiches, or bringing a two-inch plastic battle axe from a Crackerjack box to school. As we all know, Disciplinary Rule 4.2 prohibits contact with an unrepresented adversary party, and as careful lawyers know, it has a Comment 3 which adds that that this applies even when the party contacts you, and that when that happens you must terminate the conversation “immediately.” And by now we all know about the nice young lawyer who had to take a call for her partner in his absence, and once she realized who the caller was, referred her to her own lawyer and ended the conversation politely but firmly after about 60 seconds — and was punished for not doing it by hanging up immediately without saying anything. Though it was sustained by the three-judge court, our Virginia Supreme Court reversed that holding on February 28 in Zaug v. VSB , ____Va.____, ____S.E. 2d_____, Record Number 121656. The opinion is very instructive, for in holding that “immediately” does not necessarily mean simultaneously, the Supreme Court patiently and perceptively analyzes the issue, giving good guidance for future cases. The ethics rules and the oath a lawyer takes upon joining the Bar require professionalism and courtesy, and to force a lawyer to suppress even a tiny showing of concern for human misery, and punish her for even the most minimal use of courtesy in refusing to talk to the opponent would require her to violate the Rules, her oath, and the Bar’s recently-adopted “principles of professionalism”. (Never heard of them? Well of course, you have to go to the VSB web site for that.) The facts were partly in dispute at the disciplinary hearing, and the Supreme Court explains that it re-examines all the facts in these cases and the State has the burden of proving the violation by clear and convincing evidence. The Supreme Court after its “independent examination of the entire record” gives the trial court’s conclusions less than the weight of a jury verdict, but will sustain them unless they are “not justified by a reasonable view of the evidence or are contrary to law.” The interpretation of the Rules of Professional Conduct is a question of law, reviewed de novo. Now Comment 3 says the lawyer must immediately terminate the communication initiated by an adverse party when the lawyer learns that she is speaking with that prohibited person. The only exception Comment 3 allows to this is when the represented party is seeking a second opinion or replacement counsel. (Though one does wonder how that would work if this seeker of second opinions, etc., is contacting her present opposing counsel.) The three-judge panel “resolved” the factual dispute by a summary affirmance, without any factual findings and without an opinion. So everything remained for the Supreme Court to resolve. Ms. Zaug admitted that as soon as the call came in she could deduce that it concerned the deposition in this case, which her partner had already left to attend. But the disputed and ambiguous record, the Supreme Court says, “does not disclose when she became aware that the caller was a represented person.” She testified that she did not know that it was Yanira Copcutt, one of the plaintiffs in this medical malpractice case, until the caller started describing the emotional toll the litigation was having on her family. (The lawyer described a sort of cascade of feelings as “an emotional outburst.”) The caller later said in a disqualification hearing that it was obvious from the beginning that the lawyer knew who she was, that the lawyer asked her what was wrong with the deposition she was objecting to, and heard Yanira say she wanted to dismiss the lawsuit. Another lawyer in the office came along in time to hear Zaug’s side of the conversation, only for about the last 30 seconds of the call, and he corroborated Zaug’s version. Actually, the Supreme Court observes, the Bar’s district committee made no findings resolving the factual dispute. The Supreme Court patiently explains, there are three separate facts the Bar must establish for a violation of Rule 4.2: first, that the attorney knew she was communicating with a person represented by counsel; second, that the communication was about the subject of the representation; and third, that the lawyer was not “otherwise authorized by law to engage in the communication”. Since the record does not disclose when Ms. Zaug became aware of who the caller was, a crucial element was not established. Now the district committee’s only fact-finding on the crucial point was that the lawyer “was aware she was speaking with Copcutt either at the time she took the telephone call or concomitantly therewith.” The Supreme Court says only, “We are unable to decipher the meaning of this finding.” It recites Webster’s dictionary definition of concomitant, but to no particularly useful purpose. Anyway, that finding “does not determine whether  Zaug knew both (a) the identity of the party with whom she was communicating and (b) the subject of the communication.” And further, “at oral argument, the State Bar conceded that there was no evidence of how much time had elapsed between the instant Zaug knew both pieces of information and the end of the call.” The lawyer testified that she said only “I’m sorry. I can’t help you. You need to try to reach [your attorney]. I’ll try to contact [her colleague] and they’ll have to sort this out,” and hung up. As for the meaning of “immediately” in Comment 3, the State Bar argued that she should have hung up instantly upon realizing who the caller was. Zaug argued “that such conduct would violate the principles of professionalism which infuse and imbue the proper practice of law.” She further argued that “immediately” does not mean “instantaneously,” and that the rule “does not obligate an attorney to hang up on a represented person without regard to courtesy.” The Supreme Court responds simply, “We agree with Zaug.” Being admitted to the Virginia Supreme Court bar, the Court noted, attorneys swear that they will “faithfully, honestly, professionally, and courteously” demean themselves in the practice of law. And the State Bar “principles of professionalism” begin with “from Thomas Jefferson to Oliver Hill, Virginia lawyers have epitomized our profession’s highest ideals. Without losing sight of what lawyers do for their clients… All Virginia lawyers pledge to demean themselves ‘professionally and courteously.’” Those principles of professionalism include a lawyer’s recitation that “I should treat everyone as I want to be treated – with respect and courtesy.” As for the Rules of Professional Conduct, the Supreme Court says, “they exist to further, not to obstruct, the professionalism of Virginia attorneys. Professionalism embraces common courtesy and good manners, and it informs the Rules and defines their scope. Accordingly, we will not construe the Rule to penalize an attorney for an act that is simultaneously non-malicious and polite.” Now the State Bar argued that to permit this young lady’s conduct would create a “distraught caller exception” or a “60-second call exception” to Rule 4.2, “obscuring an otherwise bright-line rule of ethical conduct.” And while the Supreme Court admits that the Rule “categorically and unambiguously … requires an attorney to disengage from such communications when they are initiated by others,” it declares that “the rule does not require attorneys to be discourteous or impolite when they do so.” Supplying some valuable guidance for various future cases that might arise, the Supreme Court noted that this case includes no evidence that the lawyer “intended to gain advantage from it,” and no evidence that she “deliberately or affirmatively prolonged it.” It concludes: “On these specific and narrow facts, in construing Rule 4.2 to advance behavior that is both professional and ethical, we conclude that no violation occurred in this case.”