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PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Compton, S.J.
TIMOTHY MARTIN BARRETT
OPINION BY
v. Record No. 042336 JUSTICE G. STEVEN AGEE
April 22, 2005
VIRGINIA STATE BAR
FROM THE VIRGINIA STATE BAR DISCIPLINARY BOARD
This case presents an appeal of right from a ruling of the
Virginia State Bar Disciplinary Board ("the Board"). Timothy M.
Barrett challenges the Board's order of August 5, 2004,
suspending his license to practice law in the Commonwealth for a
period of three years based upon findings that Barrett violated
Rules 3.1, 3.4(i), 3.4(j), 3.5(e), 4.3(b), and 8.4(b) of the
Virginia Rules of Professional Conduct. 1
In reviewing the Board's decision in a
disciplinary proceeding, we conduct an independent
examination of the entire record. We consider the
evidence and all reasonable inferences that may be
drawn from the evidence in the light most favorable to
the Bar, the prevailing party in the Board proceeding.
We give the Board's factual findings substantial
weight and view them as prima facie correct. While we
do not give the Board's conclusions the weight of a
jury verdict, we will sustain those conclusions unless
it appears they are not justified by a reasonable view
of the evidence or are contrary to law.
Williams v. Virginia State Bar, 261 Va. 258, 264, 542 S.E.2d
385, 389 (2001) (citations omitted). A violation of
disciplinary rules must be established by clear proof. See,
1
The Board dismissed charges that Barrett violated Rules
4.2 and 4.4.
1
e.g., Blue v. Seventh Dist. Comm., 220 Va. 1056, 1062, 265
S.E.2d 753, 757. We separately review each of the alleged Rule
violations below.
I. Rule 4.3(b)
Timothy M. Barrett and Valerie Jill Rhudy were married in
1990. Barrett was admitted to practice law in the Commonwealth
of Virginia in 1996 and operates as a sole practitioner in the
City of Virginia Beach. Rhudy served as his secretary during
their marriage.
In the summer of 2001, Barrett and Rhudy separated. She
took the couple's six children and moved from the marital home
in Virginia Beach to her parents’ home in Grayson County.
Rule 4.3(b) provides as follows:
A lawyer shall not give advice to a person who is not
represented by a lawyer, other than the advice to
secure counsel, if the interests of such person are or
have a reasonable possibility of being in conflict
with the interest of the client.
The Board found that Barrett violated this rule because it
concluded certain statements in two electronic mail (“e-mail”)
communications he wrote to Rhudy after the separation, but
before she retained counsel, constituted legal advice. On July
25, 2001, Barrett sent an e-mail to Rhudy containing the
following:
Venue will not be had in Grayson County. Virginia law
is clear that venue is in Virginia Beach.
2
. . . .
Under the doctrine of imputed income, the Court will
have to look at your skills and experience and
determine their value in the marketplace. . . . You
can easily get a job . . . [making] $2,165.00 per
month. . . .
In light of the fact that you are living with your
parents and have no expenses . . . this income will be
more than sufficient to meet your needs. I . . . just
make enough to pay my own bills . . . Thus, it is
unlikely that you will . . . obtain spousal support
from me.
I . . . will file for . . . spousal support to have
you help me pay you [sic] fair share of our $200,000+
indebtedness. Since I am barely making it on my
income and you have income to spare, you might end up
paying me spousal support. . . .
In light of the fact that . . . I . . . am staying in
the maritial [sic] home . . . I believe that I will
obtain the children. . . . [Y]ou will have to get a
job to pay me my spousal support. . . . The Court will
prefer the children staying with a [parent], . . .
there is no question that I can set up a home away
from home and even continue to home school our kids.
Therefore, it is likely that you will lose this fight.
And of course, if I have the kids you will be paying
me child support. . . .
I am prepared for the fight.
(“July e-mail”).
Barrett sent Rhudy another e-mail on September 12, 2001, in
2
which he included the following:
I will avail myself of every substantive law and
procedural and evidentiary rule in the books for which
a good faith claim exists. This means that you, the
2
On July 30, 2001, Rhudy retained attorney Karen Loftin of
Galax, Virginia to represent her, but Loftin notified Barrett
that she had withdrawn from representation on August 10, 2001.
3
kids and your attorney will be in Court in Virginia
Beach weekly. . . [Y]ou are looking at attorney's
expenses that will greatly exceed $10,000. . . . I
will also appeal . . . every negative ruling . . .
causing your costs to likely exceed $30,000.00. . . .
You have no case against me for adultery . . . . [The
facts] show[] that you deserted me. . . . [Y]our e-
mails . . . show . . . that you were cruel to me.
This means that I will obtain a divorce from you on
fault grounds, which means you can say goodbye to
spousal support. . . .
I remain in the marrital [sic] home . . . I have all
the kids [sic] toys and property, that your parents’
home is grossly insufficient for the children, that I
can home school the older kids while watching the
younger whereas you will have to put the younger in
day care to fulfill your duty to financially support
the kids, I believe that I will get the kids no
problem. . . .
[T]he family debt . . . is subject to equitable
distribution, which means you could be socked with
half my lawschool [sic] debt, half the credit care
[sic] debt, have [sic] my firm debt, etc.
(“September e-mail”).
The foregoing e-mail passages were interwoven with many
requests from Barrett to Rhudy to return home, professing his
love for her and the children and exhorting Rhudy for reasons of
faith to reunite the family because it was God’s will. For
example, the September e-mail included the following:
You know that it is God’s will that we be reconciled
. . . . I am begging you again to forgive me as God
forgives you, to give me that 1000th chance He gave
you today, to start over with me with a clean slate,
to come home.
4
In finding that Barrett gave unauthorized legal advice to
an unrepresented person in violation of Rule 4.3(b), the Board
opined that “Barrett cannot send those two e-mails stating what
he did.” Barrett contends that Rule 4.3(b) was not meant to bar
communications between a husband and wife, and that construing
it as such interferes with the sanctity of marriage. He further
contends the e-mails only stated his opinions and were not
advice to Rhudy.
Prior decisions of the Board reveal that conduct usually
found to be in violation of Rule 4:3(b) is much more egregious
than Barrett's conduct in this case. In October 1990, the Board
entered an order suspending the license of Grant Paul Jones. In
re Jones, VSB Docket No. 87-070-1177 (Oct. 17, 1990). 3 The Board
found that Jones had provided family counseling to the
complainant’s family through his church. Complainant’s ex-
husband was charged with incest and Jones agreed to represent
him on the criminal charge. Jones paid an unannounced visit to
the complainant and her daughter, and without disclosing that he
represented the father in the criminal proceedings, he held a
"counseling" session with them, designed to elicit incriminating
testimony. While this conduct unquestionably violated the
3
This order became the subject of a District of Columbia
Court of Appeals case in which that Court reviewed the Board’s
decision to determine if reciprocal sanctions were warranted
against Jones in the District of Columbia. See In re Jones, 599
A.2d 1145, 1147-48 (D.C. 1991).
5
Rules, the Board particularly found Jones in violation of former
DR 7-103(A)(2), the predecessor of Rule 4.3(b), when he returned
to the unrepresented complainant to advise her as to how she
should respond to inquiries that might be directed at her
concerning the "counseling" session.
While Jones did not appeal the Board’s decision to this
Court, we note that his conduct in that case was the type Rule
4.3(b) is intended to prohibit. Comment [1] to Rule 4.3 of the
Virginia Rules of Professional Conduct cautions that “[a]n
unrepresented person, particularly one not experienced in
dealing with legal matters, might assume that a lawyer is
disinterested in loyalties or is a disinterested authority on
the law.”
Jones, without disclosing his representation of the
husband, gave specific legal advice to an adverse party. The
complainant had no reason to believe that Jones, who had also
been her counselor, represented interests adverse to hers. In
the case at bar, however, Barrett expressed only his opinion
that he held a superior legal position on certain issues in
controversy between himself and Rhudy. His statements may have
been intimidating, but he did not purport to give legal advice.
Rhudy knew that Barrett was a lawyer and that he had interests
opposed to hers. We find that the concern articulated by the
Comment to Rule 4.3 is not borne out in this case.
6
While the Bar argues that there is no “marital” exception
to Rule 4.3(b), neither does it ask us to set out a per se rule
that all communication by a lawyer, to his or her unrepresented
spouse in a divorce proceeding discussing legal issues pertinent
to the divorce, is prohibited under Rule 4.3(b). We do not find
there is such a per se rule, but it is otherwise unnecessary for
us to address that point because upon our independent review of
the entire record, we find that there was not sufficient
evidence to support the Board’s finding that Barrett’s e-mail
statements to Rhudy were legal advice rather than statements of
his opinion of their legal situation. Therefore, we will set
aside the Board’s finding that Barrett violated Rule 4.3(b).
II. Rule 3.4(j)
Rule 3.4(j) provides that a lawyer may not
[a]ssert a position, conduct a defense, delay a trial,
or take other action on behalf of the client when the
lawyer knows or when it is obvious that such action
would serve merely to harass or maliciously injure
another.
The Board found Barrett in violation of Rule 3.4(j) based on his
correspondence with Rhudy’s attorney and his filing of motions
without prior notice to the court, contrary to a prior court
order. We will affirm the Board’s disposition that Barrett
violated Rule 3.4(j) by his harassing statements to Rhudy’s
attorney, but we do not find sufficient evidence to support the
Board’s finding that Barrett acted in violation of the Rule by
7
violating a trial court order requiring notification before
filing motions.
In the fall of 2001, Rhudy retained Lanis L. Karnes to
represent her in the divorce proceedings in Virginia Beach
Circuit Court. For several months thereafter in numerous
letters, Barrett wrote to Karnes but referred to her by her
former married name of "Price." Barrett testified that he did
not believe Karnes had the right to change her name based upon
his religious beliefs. According to Barrett, referring to
Karnes by her former husband's name was a way to honor Karnes'
former husband. Barrett indicated to the Board’s investigator
that it was a means for him to protest Karnes' role as Rhudy's
counsel. Additionally, Barrett's letters to Karnes contained
the following comments:
Words cannot express the disappointment I feel towards
you, one who ostensibly claims Christ as her savior,
in that you would represent one Christian in their
suit against another, let alone a wife verses [sic] a
husband, in violation of the Word of God . . . causing
that Word to be defamed. . . . Shame on you.
Please pass on to your client the fact that it has not
escaped my notice the irony that my wife, who just
weeks ago was feigning contempt for the feminism of
her friends, has retained one of the worst examples of
"Christian" feminism ever to pollute the campus of
Regent University. You two will make a lovely pair.
I look forward to hearing from you shortly as to the
matters raised in this letter and seeing you this
Friday for the beginning of what will be a series of
hearings that will not conclude until the Virginia
8
Supreme Court has passed on the matter of Barrett v.
Barrett.
[Y]ou are inept. . . . I beg you to start zealously
representing your client with competence and stop
wasting her money and my time.
According to the commentary accompanying Rule 3.4(j), the
Bar is concerned with “conduct that could harass or maliciously
injure another” such that it “bring[s] the administration of
justice into disrepute.” Comment [6], Rule 3.4. Additional
comments describe the conduct the Rule was designed to prohibit:
The duty of [a] lawyer to represent a client with zeal
does not militate against his concurrent obligation to
treat, with consideration, all persons involved in the
legal process and to avoid the infliction of needless
harm. . . .
In adversary proceedings, clients are litigants and
though ill feeling may exist between the clients, such
ill feeling should not influence a lawyer's conduct,
attitude or demeanor towards opposing counsel. A
lawyer should not make unfair or derogatory personal
reference to opposing counsel. Haranguing and
offensive tactics by lawyers interfere with the
orderly administration of justice and have no proper
place in our legal system.
Comments [7]-[8], Rule 3.4.
Barrett’s foregoing statements to Karnes did not address
the legal issues in the divorce action, but personally attacked
opposing counsel. Karnes testified that she found these
comments to be “offensive and derogatory.” By his own
admission, Barrett referred to Karnes by her former married name
“as a way of protest.”
9
Barrett argues that Rule 3.4(j) does not apply to
communications between lawyers, but merely addresses actions
taken, not words used, in the litigation context. We disagree.
A preponderance of authorities interpreting the model rule upon
which former DR 7-102(A)(1) was based, and from which Rule
3.4(j) was derived, have found that harassing ad hominem attacks
on opposing counsel are prohibited under the Rule. See, e.g.,
Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1323 (11th Cir.
2002); In re Vollintine, 673 P.2d 755, 758-59 (Alaska 1983).
We agree with the Supreme Court of Kansas that
[a]ttorneys are required to act with common courtesy
and civility at all times in their dealings with those
concerned with the legal process. . . . An attorney
who exhibits the lack of civility, good manners and
common courtesy . . . tarnishes the entire image of
what the bar stands for.
In re Gershater, 17 P.3d 929, 935-936 (Kan. 2001) (citations
omitted). There is sufficient evidence in the record to support
the Board’s finding that Barrett’s comments to Karnes were
“other action” under Rule 3.4(j) meant to harass her in her
capacity as Rhudy’s attorney.
However, we find that the Board erred in determining a
violation of Rule 3.4(j) on the basis of motions alleged to have
been filed without first notifying the trial court, in violation
of a prior order. On January 24, 2002, Judge H. Thomas Padrick,
Jr., of the Virginia Beach Circuit Court, entered an order
10
requiring Barrett and Karnes to “arrange a conference call with
the Court to discuss any relevant issue,” and that this was to
be done “prior to filing a motion.” The Board found that
despite this order, Barrett “attempted to file numerous motions
in a hearing before Judge Shockley of the Circuit Court of the
City of Virginia Beach without any prior conference call with
the court.”
There are no motions in the record dated after Judge
Padrick’s January 24, 2002, order. The only evidence to
substantiate the Board’s finding is Karnes’ testimony that
Barrett “tried to circumvent that order and began filing things
with Judge Shockley.” There is nothing in the record to show
what “things” Barrett is alleged to have filed or how the
“things” violated Judge Padrick’s order. The record contains no
evidence that any alleged action by Barrett in violation of the
order was ever brought to the attention of the trial court.
Without actual proof of the motions filed in violation of
the order, we cannot agree that the Board’s finding that Barrett
violated Rule 3.4(j) on this ground is “justified by a
reasonable view of the evidence.” Williams, 261 Va. at 264, 542
S.E.2d at 389. Because we find that there was sufficient
evidence that Barrett intended to harass Karnes, we will approve
the Board’s determination of misconduct under Rule 3.4(j) on
that ground, but will set aside that portion of the Board’s
11
Order under that Rule which was based on violating Judge
Padrick’s order of January 24, 2002.
III. Rule 3.4(i)
The Board found Barrett violated Rule 3.4(i), which
prohibits lawyers from “present[ing] or threaten[ing] to present
criminal or disciplinary charges solely to obtain an advantage
in a civil matter.” In the course of his correspondence with
Karnes, Barrett threatened her with a disciplinary complaint or
sanctions four times.
I also ask that you stop attempting to deceive the
court in your pleadings . . . . [T]his conduct
violates Rule 3.3 of the Rules of Professional
Conduct. If you insist on continuing this unethical
conduct, I will seek to have you disbarred.
Should you continue to present motions that lack a firm
foundation in the law and display an utter lack of
proofreading, I will continue to file for sanctions
pursuant to Section 8.01-271.1 of the Code of Virginia.
[S]hould you not immediately begin to proofread your
letters/pleadings to insure [sic] both textual accuracy
and legal faithfulness, I will report you the Virginia
State Bar for your violation of Rule 1.1 of the Rules of
Professional Conduct. [sic]
Please send me a letter informing me as to how you can
ethically justify charging your client for the time you
will be traveling across the states of Virginia and
Tennessee instead of advising her to retain local
counsel? [sic] I ask since your conduct appears to be
in violation of Rule 1.5 of the Rules of Professional
Conduct as to the reasonableness of fees.
Barrett testified that he believed “typographical errors are
a basis for a Bar complaint.” While he did not file a complaint
12
against Karnes, he did make a motion for sanctions based on
typographical errors, which was denied. Barrett argues, however,
that these “threats” were not made “solely to obtain an advantage
in a civil matter.” We disagree.
We find that the succession of threats without a good faith
basis supports the Board’s conclusion that Barrett made these
statements “solely to obtain an advantage” in his divorce
proceeding. It is clear from Barrett’s letters that his
motivation in threatening Karnes with sanctions and disciplinary
complaints was to force her to withdraw from representing Rhudy.
Barrett admits as much in letters to Karnes:
I did indirectly threaten you with a malpractice action
over the incompetent way you have handled this matter
thus far. I did this to encourage [Rhudy] that she can
retrieve from you the money she has wasted on your
services to date and to save me from her appeal on the
basis of inadequacy of counsel.
I ask that you either familiarize yourself with this
area of the law and present pleading [sic] that are in
conformity with the law or comply with your duties under
Rule 1.1 and withdraw as counsel in this matter.
Please advise [Rhudy] not to call me again unless she
has terminated you.
Indeed, Barrett testified that he “was terribly upset that
Ms. Barrett had gotten Ms. Karnes involved in [the] case” because
he “knew that Ms. Karnes had it in for [him].” Thus, we find the
evidence sufficient to support the Board’s finding that Barrett
threatened Karnes with disciplinary complaints in order to obtain
13
an advantage in the divorce and custody proceedings in violation
of Rule 3.4(i).
IV. Rule 3.1
Rule 3.1 provides that “[a] lawyer shall not bring or defend
a proceeding, or assert or controvert an issue therein, unless
there is a basis for doing so that is not frivolous.” On October
19, 2001, Barrett filed a motion to strike the pleadings asserting
that he did not know and was not married to the plaintiff, Valerie
Jill Rhudy Barrett. Barrett asked that the pleadings be stricken,
that the case be dismissed and that he be awarded costs. The
motion was denied. Barrett testified before the Board that he
filed the motion because “Valerie Jill Barrett is Jill’s legal
name, not Valerie Jill Rudy [sic] Barrett.”
Barrett argues that the Board’s Order of Suspension does not
state a basis for determining that the motion was frivolous and
that the filing of the motion was never specifically connected to
the Board’s conclusion that he violated Rule 3.1. Although the
Board’s Order does not directly tie the Rule 3.1 violation to the
motion to strike the pleadings, we find that the record clearly
supports a finding that Barrett violated the Rule.
Barrett’s motion to strike the pleadings is the only pleading
which the Bar argues proves its contention that he violated Rule
3.1. The Bar argued that Barrett clearly knew Rhudy’s maiden
name, and that Barrett himself used multiple versions of Rhudy’s
14
name in his own motions. This obviates Barrett’s claim that he
was concerned with consistency in the pleadings. Thus we find
that the record supports the Board’s finding that Barrett violated
Rule 3.1.
V. Rule 3.5(e)
Rule 3.5(e) prohibits ex parte contact by lawyers with the
court:
In an adversary proceeding, a lawyer shall not
communicate . . . as to the merits of the cause with a
judge . . . except: . . . (2) in writing if the lawyer
promptly delivers a copy of the writing to opposing
counsel.
On April 2, 2002, Barrett sent a letter to Judge Padrick
arguing that Rhudy was unfit to have custody of the children and
that he should be awarded custody. The letter indicates that
copies were sent to the children’s court-appointed psychologist
and the guardian ad litem. There is no indication that the letter
was sent to Karnes. Karnes testified that she first became aware
of the letter after a telephone call from the court.
Barrett’s counsel admitted to the Board that he could not
“say categorically that [Barrett] sent [the] letter to [Karnes].”
On appeal, Barrett declined to ask this Court to set aside the
Board’s finding as to his violation of Rule 3.5(e). Thus, we will
affirm the Board’s finding that Barrett violated Rule 3.5(e) for
an ex parte communication with the trial court.
VI. Rule 8.4(b)
15
In November 2001, Judge Shockley entered an order in the
Virginia Beach Circuit Court requiring Barrett to pay $1704 per
month in child support. In February 2002, Judge Padrick entered
another order requiring Barrett to pay Rhudy $1000 per month in
spousal support. Between November 2001 and July 2004, Barrett
missed ten payments and made six payments in amounts less than the
monthly amount due. When Barrett did make payments, he often paid
in excess of the monthly amount due in order to make up
arrearages. Barrett testified that he “paid when [he] had the
ability” and that he never had “a willful desire to [disregard the
child support order].”
On August 14, 2002, Judge Padrick found Barrett in contempt
of court for failure to timely pay his support obligations. On
March 24, 2003, Judge Tompkins of the Grayson County Juvenile and
Domestic Relations District Court also held Barrett in contempt
for failure to pay child support. Both contempt orders sentenced
Barrett to confinement in jail, but were suspended upon condition
he pay the arrearages. On the basis of these two contempt
charges, the Board found Barrett in violation of Rule 8.4(b). 4 In
so finding, the Board cited Barrett’s ability to make $900 monthly
4
On argument before this Court, the Bar conceded that it did
not seek a rule that contempt of court for failure to pay child
support is per se a violation of Rule 8.4(b). We do not find
there is such a per se rule, but it is unnecessary to further
address that point because we resolve the issue of violating Rule
8.4(b) on other grounds.
16
payments on a new Corvette sports car from October 2001 through
April 2004 and his representation that he would lose $1400 per day
if he had “to travel from Virginia Beach to Grayson County for
court proceedings.”
Rule 8.4(b) states that “[i]t is professional misconduct for
a lawyer to: . . . commit a criminal or deliberately wrongful act
that reflects adversely on the lawyer’s honesty, trustworthiness
or fitness to practice law.” Barrett maintains that a finding of
contempt for failure to meet his support obligations does not
constitute a criminal act in this case, was not a deliberately
wrongful act and does not necessarily reflect adversely on his
honesty, trustworthiness or fitness to practice law.
In response, the Bar cites Code § 63.2-1937, which includes
lawyers in the class of state-licensed professionals who can lose
their licenses for failing to pay child support. Thus, the Bar
argues that consistency with the statutory obligations requires a
finding that Barrett’s failure to meet his support obligations in
conjunction with his ownership of the Corvette was a deliberate,
wrongful act reflecting adversely on his trustworthiness and
fitness to practice law.
There is nothing in the record to show Barrett was guilty of
criminal contempt as opposed to civil contempt. Thus, we must
examine the record to determine whether, in this case, the Bar
proved that Barrett’s contempt convictions were the result of a
17
“deliberately wrongful act,” i.e. disregarding his obligation to
pay child support, which reflects adversely on his honesty,
trustworthiness and fitness to practice law. We find that
connection lacking on this record.
Barrett testified that he purchased the Corvette in October
of 2001, a month before his support obligations began, and then
unsuccessfully attempted to sell the car. He also missed several
car payments, and maintains that he never missed a support payment
so he could make a car payment.
Barrett also argues that his representation that he would
lose $1400 per day if he were compelled to attend court
proceedings in Grayson County, was not based on actual earnings,
but on his billable rate of $175.00 per hour over an eight hour
day, although he primarily operates on a contingent fee basis.
The Bar presented no evidence that Barrett earned $1400 daily, or
what law practice expenses would be paid from such earnings.
Barrett provided the only evidence as to his financial situation.
Thus, we find that there is no basis for the Board’s reliance on
the supposition that Barrett had the ability to pay his support
obligations because he earned $1400 per day.
The Bar presented no evidence that Barrett’s failure to pay
child and spousal support was willful or intentional. Barrett
showed that he made payments when he settled cases and received
his contingency fee, which is the nature of his law practice. He
18
also maintained that he never made payments on the promissory note
he obtained to purchase the Corvette when he could not make his
support payments. Barrett also testified he tried to sell the
Corvette but “could not liquidate it for whatever [he] owed on
it.” To make his support payments, Barrett had to borrow money
from his grandmother. Eventually, Barrett filed for bankruptcy.
The Bar presents no evidence to the contrary. Thus, we do not
find sufficient evidence in the record to support a finding by the
Board of a “deliberately wrongful act” within the meaning of Rule
8.4(b).
Further, the Bar did not establish a nexus between the
failure to pay child support and Barrett’s fitness to practice
law. Instead the Bar relied upon conclusory statements:
[I]n terms of relating [the contempt charge] to Mr.
Barrett as an attorney, the contempt finding is a
finding . . . that he could have . . . abided by a court
order and failed to do so. Surely that reflects on his
fitness to practice, if not his trustworthiness.
The required nexus between the contempt convictions and Barrett’s
honesty, trustworthiness and fitness to practice law has not been
established by these conclusory statements. We will therefore set
aside the finding of the Board that Barrett violated Rule 8.4(b).
VII. Conclusion
The Board’s suspension order of Barrett's license to practice
law for three years was based on Barrett's violations of Rule 3.1,
Rule 3.4(i), Rule 3.4(j), Rule 3.5(e), Rule 4.3(b), and Rule
19
8.4(b). For the reasons set forth above, we will set aside the
Board’s determination that Barrett violated Rule 4.3(b), Rule
8.4(b), and Rule 3.4(j), in part. We will affirm that portion of
the Board’s Order that Barrett violated Rule 3.1, Rule 3.4(i),
Rule 3.5(e), and Rule 3.4(j), in part.
Accordingly, the Order of the Board, dated August 5, 2004,
will be affirmed in part, reversed in part, and the case will be
remanded for reconsideration of any sanction for Barrett's
violations of Rule 3.1, Rule 3.4(i), Rule 3.5(e), and Rule 3.4(j),
in part.
Affirmed in part,
reversed in part,
and remanded.
JUSTICE KEENAN, with whom CHIEF JUSTICE HASSELL and SENIOR
JUSTICE COMPTON join, concurring in part and dissenting in part.
I respectfully dissent from the majority’s holding that
Barrett did not violate Rule 4.3(b). In my opinion, the
majority’s holding effectively creates a “spousal exception” to
the Rule and permits a lawyer to engage in otherwise prohibited
conduct dispensing legal advice as long as the lawyer’s spouse,
rather than an unrelated person, is the affected pro se party.
I also dissent from the majority’s holding that Barrett did not
violate Rule 8.4(b) which, among other things, recognizes as
professional misconduct any deliberately wrongful act that
reflects on a lawyer’s trustworthiness. I would hold that
20
Barrett violated this Rule by twice being held in contempt of
court for nonpayment of court-ordered support. I concur in the
balance of the majority’s opinion.
In reaching its conclusion that Barrett did not violate
Rule 4.3(b), the majority states that Barrett “did not purport
to give [his wife] legal advice.” A brief review, however, of
the statements considered by the majority leads me to the
opposite conclusion.
In his statements to his estranged wife, Barrett advised
her that under Virginia law, all court proceedings would be held
in Virginia Beach. With regard to the issue of spousal support,
Barrett explained that the court would employ the legal doctrine
of imputed income to determine the value of her skills and
experience “in the marketplace.”
Barrett further stated that “spousal support is based on
the maxim [of] . . . the needs of the one versus the other’s
ability to pay.” Citing facts relating to the parties’
situation, Barrett then offered his judgment that it was
“unlikely” that his wife would be able to obtain court-ordered
support. With regard to the issue of child custody, Barrett
told his wife that the “court will prefer the children staying
with a [parent],” rather than with a substitute caregiver during
working hours.
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I would hold that these explanations constituted legal
advice intended to influence the conduct of a party who had
conflicting legal interests and who was not represented by
counsel. Without question, Barrett’s conduct would have been a
violation of Rule 4.3(b) had he communicated this advice to a
pro se litigant whose spouse Barrett was representing. Thus,
the majority’s conclusion necessarily implies that there is a
“spousal exception” to Rule 4.3(b), under which an attorney may
attempt to influence his or her spouse’s conduct by imparting
legal advice in a harassing manner regarding the parties’
conflicting legal interests.
Such a conclusion, however, is contrary to the plain
language of Rule 4.3(b), which provides no “spousal exception.”
Moreover, Barrett’s use of legal advice as a “sword” in his
marital conflict is clearly a type of conduct that Rule 4.3(b)
is designed to discourage. It is hard to imagine a situation in
which an attorney would be in a stronger position to improperly
influence another’s conduct by giving legal advice.
With regard to Barrett’s alleged violation of Rule 8.4(b),
the majority states that the Bar “presented no evidence that
Barrett’s failure to pay child and spousal support was willful
or intentional.” The majority fails to explain why findings by
two judges, holding Barrett in contempt of court and imposing
suspended jail sentences for his failure to comply with court
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orders, is not evidence of deliberately wrongful conduct
reflecting adversely on Barrett’s trustworthiness.
Contempt findings manifest more than a mere arrearage in
court-ordered support payments, which can result even when a
person is doing everything possible to comply with a court
order. The contempt findings and suspended jail sentences
imposed in Barrett’s case necessarily reflect the judges’
conclusions Barrett was not diligently attempting to meet his
support obligations, and that his explanations for failing to do
so were incredible or otherwise unacceptable. I would hold that
these repeated contempt findings are sufficient evidence to
support the Board’s conclusion that Barrett violated Rule
8.4(b).
Therefore, I would conclude that the Bar’s findings that
Barrett violated Rules 4.3(b) and 8.4(b) are supported by a
reasonable view of the evidence and are in accordance with the
law. See Williams v. Virginia State Bar, 261 Va. 258, 264, 542
S.E.2d 385, 389 (2001); Myers v. Virginia State Bar, 226 Va.
630, 632, 312 S.E.2d 286, 287 (1984).
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