Virginia Family Law Appeals

Welfare agency must turn over child interview tape; prosecutor must seek, evaluate exculpatory evidence - Va.Ct.

CRIMINAL ISSUES – CHILD SEX ABUSE – DSS WITHHOLDING OF EXCULPATORY STATEMENTS – PROSECUTOR’S BRADY RESPONSIBILITY – EXPERT TESTIMONY.  A criminal case from Dinwiddie County, Tuma v. Commonwealth, 60 Va. App. 273, 726 S.E.2d 365 (6/12/12), holds some valuable information for the family lawyers who, sometimes unavoidably, get into these kinds of litigation.  Even for those who don’t, it contains some welcome recognition of constitutional limitations on the power of social service agencies to conduct interviews and then deny access to the tapes of them, and an explicit declaration about the inability of prosecutors to avoid their civic and professional duties to safeguard and respect defendants’ constitutional rights.  When a man was arrested for interfering with his 5-year-old stepdaughter, the child was interviewed by the county social worker and a Sheriff’s Department investigator, and the 30-40 minute interview was taped.  At trial, it came out that the social worker still had the tape in her possession and the defense counsel, as a matter of discovery, asked to have it played.  Investigators, of course, were ready to testify to the hearsay statements of the child.  That was denied, and after the investigators and the “counselor qualified as an expert on adolescent trauma” testified, counsel moved to strike on the ground that the audiotape was the best evidence and that it had never come out.  When the judge asked the Commonwealth’s Attorney whether he knew if the tape was exculpatory or not, the answer was no, because the social service agency had stood on their privilege to deny him access to it.  When the judge asked the prosecutor if he was willing to “stand on” his statement about what was not on the tape he had not heard, he said yes.  The judge said that if the prosecutor did not know, he would be violating the Brady rule. But after the judge asked the Commonwealth’s Attorney again whether he knew what was on the tape and the answer was no, the judge still denied access, held that the proof was adequate, and let the case go to the jury.  The Supreme Court, citing such authorities as English case law from 1243 as to the public role and responsibility of public prosecutors, and The Public Records of the Colony Of Connecticut from August 1689 to May 1706, did not find the ruling of the judge valid, nor the performance of the local authorities in Dinwiddie County adequate to satisfy constitutional standards.  In a lengthy opinion with many citations, the majority held that it is the prosecutor, and not the county DSS, that must decide whether evidence in their possession is exculpatory and constitutionally required to be made available to the defense under Brady v. Maryland, 373 U.S. 83 (1963), and that no prosecutor can dodge this responsibility on the alleged grounds that it is privileged “as a product of a social services investigation.”  It specifies that the Commonwealth’s Attorney had a duty to listen personally to the audio recording of this victim interview to determine for himself whether it contained exculpatory material, and he could not simply rely on the investigator’s notes about the recording to stand up and represent to the trial court that it contained nothing exculpatory as grounds for refusal to disclose it to the defense.  The Court went on to hold that the jury is not required to accept the testimony of a qualified expert witness as to the meaning and adequacy of a victim’s statements, non-statements and silent physical actions — which in this case were not wanting to talk about the incident, pacing in the expert’s office, avoiding eye contact, avoiding the subject, and leaving the expert’s office — as proof.  There were dissents by Judge Kelsey and an even longer one by Judge Beales.  These were lengthy and scholarly dissents, though space considerations preclude summary of them here.

Mixing business, personal affairs makes adultery an attorney-client privilege - Va. Ct.

ADULTERY – PROOF – ATTORNEY-CLIENT RELATIONSHIP (AS A DEFENSE AND AS A PRIVILEGE CLAIM). In an unusual (we would hope) recent case a lawyer wife was able to defend herself against her husband’s adultery complaint by invoking her attorney-client relationship with the alleged paramour both as a substantive defense and as one of her privilege claims. Oh yes, and by taking the Fifth Amendment. Having invoked her right against self-incrimination, her defense was that all her conduct could be explained as pursuit of her attorney-client relationship with her business client, and then when asked to explain her conduct, she invoked the attorney-client privilege because it would divulge business-related information belonging to the alleged boy friend’s business, which she represented. Perhaps the trial court should not have granted the wife’s motion to strike these complaints when it decided to grant a no-fault divorce instead, but since (the court held) she had plausible explanations for her suspicious conduct, it would have been harmless error anyway. On appeal it was the husband’s burden to demonstrate how the ruling on the motion prejudiced his right to a fair trial, and the evidence that the husband did proffer was legally insufficient to compel an adultery finding. Moreover, the Court of Appeals found in this unpublished case, Jordan v. Jordan, 27 VLW 160 (6/26/12), that there was nothing in the record showing any adverse ruling by the trial judge when the wife’s assertion of her Fifth Amendment and attorney-client privileges were challenged. Because there was nothing to show the nature of the husband’s objections to his wife’s assertion of the privileges, his arguments could not even be considered on appeal. Fee awards were denied to both parties.

Discovery sanctions preventing cross-examination went too far - Va.S.Ct.

PROCEDURE – DISCOVERY COMPULSION – SANCTIONS – CONSTITUTIONAL RIGHTS.  The law of “sanctions,” which some lawyers and some judges find irresistible, includes a very interesting combination of the purely punitive punishments, such as fines, and what you might call the “crippling sanctions,” which punish not only guilty lawyers and guilty parties, but also whatever innocent parties may be represented by ill-behaved lawyers.  These punishments, which might be likened to an execution by fragmentation grenade, are not found in the “sanctions statute,” Code §8.01-271.1, but they are included in discovery Rule 4:12(b).  That was the focus of a recent contract case from the Virginia Supreme Court, Nolte v. MT Technology Enterprises, LLC, in which repeated refusal to respond fully to discovery and comply with the trial court’s orders was finally punished under Rule 4:12(b).  The Supreme Court held that the trial court could bar the defendants from introducing evidence, but it could not prohibit them from cross-examining the witnesses against them, nor from introducing evidence on the issue of the amount of the plaintiffs’ damages.  The majority holds that the trial judge correctly found that a lesser sanction than default judgment was warranted, but it reverses the denial of the right to cross-examine and introduce counter damages evidence because “the sanction was too harsh.”  And the majority reversed the judgment and remanded for further proceedings on the damages question only.  Justice Powell, concurring in part and dissenting in part, pointed out that if these defendants were so bad, the trial court could lawfully grant a default judgment, but she emphatically asserts that the denial of the right to cross-examine was more than just “too harsh.”  She emphasizes that the right to cross-examine is a vital feature of our system of law, quotes Wigmore to the effect that “no safeguard for testing the value of human statements is comparable to that furnished by cross-examination,” and no statement should be admitted into evidence until probed by that test.  More importantly, she quotes Goldberg v. Kelly, 397 U.S. 254, 263 (1970), to that effect, and Basham v. Terry, 199 Va. 817, 824, 102 S.E.2d 285, 290 (1958), stating that the right to cross-examine is not discretionary, but is absolute. She cites Friend on Evidence in Virginia, 112 (2003 edition), and Food Lion, Inc. v. Cox, 257 Va. 449, 450, 512 S.E.2d 860, 901 (1999), emphasizing that only reversal and remand for new trial can follow the denial of this absolute right.

Lawyer disciplined & sanctioned for half-truths, speculative allegations in brief

LEGAL ETHICS – FRAUD ON COURT – SEVERITY OF SANCTION – MITIGATION AND AGGRAVATION.  The U.S. 4^th Circuit’s treatment of a lawyer’s various acts of misrepresenting the facts and making specious arguments to the court, especially in the matter of not-so-clever half-truths and less-than-half truths, is instructive.  The 4^th Circuit began by reciting the offending lawyer’s indicia of elevated standing, including his Martindale Hubbell AV rating and 33 years of experience.  The lawyer had been the court appointed attorney, successfully appealing a wire-fraud and identity theft sentence received by his client.  However, the 4^th Circuit was not at all happy about the facts that later came out about the appeal that was presented to them, and one of the more outrageous and unsupported arguments that was made.  This respondent lawyer filed a brief and an affidavit admitting the substance of the charges, claiming mistakes and poor judgment, denying intentional misconduct and expressing regret.  The burden of his counsel’s argument was that everything the man had done failed to justify any disciplinary sanctions at all.  It was argued that after all, many lawyers make mistakes all the time without being punished.  Counsel said he should get a “caution letter,” as apparently sometimes happens in the State of New York.  Mitigating factors were argued, which the 4^th Circuit thinks are actually more like aggravating factors, and prosecuting counsel argued that offenses like these have to get some public punishment.  Well just what did this highly experienced lawyer do?  The Court says that he combined two separate parts of his client’s trial transcript, making it look like the give and take of a single conversation. Nor is it mitigating that a clever reader could look up the original document and see what had actually been said.  The lawyer also misrepresented the position that the government had taken when debating how long the trial could be, and it’s obvious that the lawyer well knew this, so this was itself a misrepresentation by him to the court.  In a reply brief, the lawyer falsely stated that two of the agents who had investigated this matter had been fired for misconduct.  That statement had been supposedly based on what an informant and the represented client said, and the fact that the two agents no longer worked for the Secret Service.  However, FOIA-procured documents revealed nothing about any disciplinary action against these guys.  The lawyer should have known there was no way he could support the scandalous assertions he made.  Then there was the “internet chat” his client had supposedly had with an informant.  While this was supposed to support the allegations the lawyer was submitting in his brief, he hadn’t bothered to inform the 4^th Circuit that his client had admitted that he had faked this whole “chat.”  It was certainly up to the respondent lawyer to let the Court of Appeals know about these facts.  Most serious, as you might guess, was the fact that the lawyer had made a false accusation that the district judge had suppressed an informant’s letter.  This was a misrepresentation of the record and an unsupported attack on the trial judge’s character.  It violated the rules and requires a public sanction.  The 4^th Circuit responded with one of the least damaging weapons in its arsenal, but it was still a “public admonition.”  In Re Liotti, a published Order, at 26 VLW 781 (12/2/11).

Switzer v. Fridley: Father's 11-year battle against non-parents' custody

CUSTODY – THIRD-PARTY CUSTODY – NATURAL-PARENT VISITATION –APPEALS – SPECIFICITY OF PLEADING – WAIVER OF ARGUMENTS – PERSISTENT PRO-SE LITIGANTS – SANCTIONS. The unfortunate Mr. Switzer, who had his child taken away to be placed with a (then) unmarried cohabiting couple, has managed to infuriate the trial and appellate judges again with his tenacious – some might say masochistic – persistence. The Court of Appeals, in Switzer v. Fridley, unpublished, 26 VLW 504 (9/27/11), with a level of wrath as well as frustration which must be fairly high by now, gives what appears to be a patient and orderly consideration to a great many of the legal issues that this pro se appellant determinedly continues to raise. (This father has been fighting the various custody, visitation and record-access decisions for the past 11 years. On May 29, 2010 the Augusta County Circuit Court issued an Order “ending all cases” and remanding everything to the juvenile court, and the current appeal challenges all aspects of that decision, as well as past decisions, most of which the appellate courts have already ruled upon.) The decision to allow the third parties to seek and obtain custody of his child was upheld against this father’s constitutional and statutory arguments, and that matter is res judicata. The same is true of Switzer’s appeal of the denial of his modification motions. The emergency protective order against release of the child’s academic or health records to the father was also upheld on a previous appeal by summary affirmance since Switzer had no transcript or statement of facts to provide a written record, and that is also res judicata. As for the appellant’s arguments that all of this constitutes a refusal to rule on valid constitutional questions, that too has been determined before. The trial court had turned down the father’s modification motions and petitions, inter alia, for failure to show a change of circumstances. Though he now argues on appeal that the trial court erred by using an improper date to determine what was new evidence and what was old evidence to show change of circumstances, the way the appellate argument came up (the last time he appealed this) the father was not arguing that the date was wrong, but rather, that it was unnecessary for him to prove a change of circumstances at all (citing a 1962 U.S. Supreme Court case, which the trial court and the appellate court held does not apply here.) This time, though, the Court of Appeals does go through the original facts of this custody decision against Mr. Switzer, showing the rather dubious factual picture which originally persuaded the trial court to make those orders and then deny the father anything but extremely limited visitation. These decisions were, however, within the discretion of the trial judges, and a closer look at the original (and evolving) facts does show the father being his own worst enemy in this unseemly drama. The trial court’s denial of his motions to change custody and visitation, after hearings in June and August of 2010, did not exceed the judge’s discretion. Mr. Switzer also argued that it was error and an abuse of discretion for the trial court to consider the amount of time his son had lived with the new custodians as a bar to his ever regaining custody. He elaborated on this by saying there were no expert opinions stating that the son would be harmed by a change of custody back to him. The trial court had found the father to be unfit, and nothing that the father cited showed that the trial court indeed had relied on the length of time involved. As to the lack of expert opinions, there had been no assignment of error, as such, about that. (Visitation supervision and grandparent visitation were really non-issues.) The trial court had declared in its opinion letter that it imposed a sanction in order to “limit his ability to continue to pursue this case” on matters already decided. It made a finding that he had abused the judicial system by asserting meritless claims and wasted valuable and limited resources in frivolous litigation, and harassing the other parties by dragging them into court. The sanction imposed was to order Switzer not to file anything without obtaining court permission for the filing. He argued on appeal that the previous Switzer ruling from the Supreme Court, Switzer v. Switzer, 273 Va. 326, 641 S.E.2d 80 (2007), forbids any trial court or Court of Appeals action that might compromise his rights of appeal, and that the court does not have jurisdiction to impose that kind of sanction. Quoting the statute, §8.01-271.1, the Court of Appeals explained that there really is no limit on what kind of “appropriate sanction” a judge is authorized to impose in order to accomplish the purposes stated in the statute. Sanction decisions are reversible only if judicial discretion in imposing the sanctions, or in the choice of sanction, was exceeded. The Supreme Court Switzer case held, not that the Court of Appeals lacked the authority to dismiss the appeal as a sanction, but only that dismissal under the circumstances was an unduly severe sanction, not properly tailored to correct the problem involved. In fact, when the Supreme Court reversed the Court of Appeals on this particular point as to Switzer, it specifically said that a trial court does not have to use “the ultimate sanction of dismissal” when the same might be accomplished by a lesser sanction such as pre-filing permission requirements. The Court of Appeals said this lesser sanction was justified given Switzer’s history of filing numerous documents for over a decade, most of which were frivolous or harassing.

Malpractice's statute of limitations can run out before it's discovered

MALPRACTICE – STATUTE OF LIMITATIONS – LATER-INCURRED DAMAGES – TOLLING OF STATUTE.  The Virginia Supreme Court quotes a time-honored statutory rule to dispose of a malpractice claim against a divorce lawyer in a case that many practitioners might breathe a sigh of relief at and consider a near-run thing.  In Van Dam v. Gay, ___ Va. ___, 699 S.E.2d 480 (9/16/10), the Stafford County Circuit Court dismissed the complaint and the Supreme Court affirmed, holding that the five-year statute of limitations began to run when the final decree was entered in the divorce case, even though the great portion of the damages occurred only much later when the ex-husband died and the ex-wife discovered that she would get no survivor benefits from his federal pension plans.  The feds denied benefits because the 1986 separation agreement was insufficient under federal law to entitle her to them.  When wife sued for malpractice in 2009, she was out of luck.  First, the Supreme Court notes, Code §8.1-230 provides that the limitation period “shall begin to run from the date … when the breach of contract occurs … and not when the resulting damage is discovered … .”  It also observes that the statutory term “right of action” is not synonymous with “cause of action,” although sometimes they arise simultaneously.  Wrestling with these abstruse abstractions, the Court explains all this. Wife argued that while her right of action for malpractice did not await discovery of the malpractice, a cause of action could not have accrued, and thus her right of action could not accrue, until she had suffered the damage which came with her ex-husband’s death.  If injury is an essential element of any cause of action, including malpractice, and all her damages occurred in 2006 when ex-husband died, her right of action for malpractice arose only then.  After all, there would have been no right whatever if he had not predeceased her.  But, the Supreme Court points out, that issue was already decided in MacLellan v. Throckmorton, 235 Va. 341, 367 S.E.2d 720 (1988).  As many practitioners know, that case also concerned a malpractice claim against a divorce attorney.  Plaintiff said that lawyer negotiated an agreement that the plaintiff signed because it was represented to him that a court could later modify the alimony provisions he had signed on to.  As here, the Supreme Court held there that “the cause of action accrued upon the termination of the particular undertaking in which the attorney was engaged,” that being the entry of the final decree.  “We reached that result,” the Court explains, “despite the fact that the plaintiff did not become aware of the malpractice until after the limitation had run, and even if he had been aware of it in time, he would have been unable to quantify his damages with precision.”  His injury, the Court explains, arose from the malpractice that occurred the moment the trial court entered a final divorce decree incorporating the faulty agreement.  The Court goes on to distinguish other cases, and finally explains that “some injury or damage, however slight, is essential to a cause of action, but it is immaterial that all of the damages … do not occur at the time of the injury.”  The Court is particularly instructive by going on to explain that “this time-honored rule may produce inequities by triggering a statute of limitations when the injury or damage is unknown, or difficult, or even incapable of discovery, but we have long concluded that it is the role of the General Assembly, not the courts, to change a rule of law that has been relied on by the bench and bar for many years.”

Herrel ruling: You can't use sanctions statute to punish inaction

SANCTIONS – OPPOSING COUNSEL.  Just in case there was any doubt about it, the Court of Appeals affirms that no, a party cannot get an award of sanctions against her spouse’s lawyer for inaction.  And that is still true even if what she really asks for as “sanctions” is her costs, including the money it took her to remedy the situation using other counsel and a CPA.  This counsel for husband was ordered by the trial court in 1997 to prepare the QDRO which would have given wife a share of her husband’s pension from a private employer, but completed and filed it only in 2009, and that failure cost wife money she would have had.  In the meantime, the wife had hired her own lawyer to find out what happened to the QDRO and prepare a new one.  But obviously this malpractice-like relief isn’t any more available from an opposing counsel under the wording of the Virginia sanctions statute, §8.01-271.1, than it is by malpractice litigation.  Herrel v. Herrel, 24 VLW 1311 (unpublished, 5/11/10).

Ct. bans reading of amicus brief about free speech case

In recent years a disturbing number of judges have punished or restrained speech that criticizes the administration of justice in particular cases. Now the U.S. Supreme Court will consider whether to review one such case. A federal appeals court (the 10th Circuit) has banned any sharing of an amicus brief filed by the Institute of Justice in an ACLU free speech case which in turn involves prosecution of an activist who criticized prosecutors' handling of a drug case, the New York Times reports.

Weatherbee v. Bar: Single offense of frivolous filing isn't also violation of diilgence & competence

LEGAL ETHICS – DISCIPLINE – SIGNIFICANCE OF FILING FRIVOLOUS LAWSUIT.  An attorney disciplinary case appealed from a three-judge court is of some interest in that it has some very precise reasoning as to the kind of misconduct that filing a totally frivolous lawsuit constitutes and does not.  An attorney who filed a medical malpractice suit included among the defendants a doctor who never treated the attorney’s client. The disciplinary board convicted Mr. Weatherbee of violating Rule 1.3, concerning diligence, and Rule 3.1 that governs the filing of meritorious claims, but it went on to hold that the same act made the lawyer guilty of providing incompetent representation.  When the three-judge court got the case it found a Rule 3.1 violation (filing a frivolous lawsuit).  It dismissed the charges under Rules 1.1 and 1.3.  The Virginia State Bar appealed the dismissal of the Rule 1.1 charge of providing incompetent legal services.  The Supreme Court, with some very instructive explanation, alludes to the definition of frivolous and of the term of art “competent representation,” and reasons that an attorney does not have to be incompetent to file a frivolous lawsuit, and we should not make a habit of parlaying one offense and one punishment automatically into another.  It considered Mr. Weatherbee to be adequately punished for committing the offense that he did commit.  Incidentally, trying to flip 180 degrees the very judicial reasoning that saved him and argue that because he didn’t violate Rule 1.1 he couldn’t have filed a frivolous lawsuit did the attorney no good whatever.  Weatherbee v. VSB, ___ Va. ___, 689 S.E.2d 753 (2/25/10).

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).