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Sometimes, A Bright Line Rule Just Isn’t Fair

by Carolyn Elefant on December 9, 2006 · 0 comments

in Ethics & Malpractice Issues, Ethics Issues

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This week’s ABA e-report (12/8/06) includes this article Bright Line Blunder, about a Virginia Court of Appeals decision to dismiss a litigant’s notice of appeal filed by her attorney during a period of time when his license was suspended and he didn’t even know about it.

From the article, these are the relevant facts, which arose out of a contested divorce proceeding:

On June 7, 2005, the trial court held a hearing, and on July 11, 2005, it entered a final decree [against the wife]. The wife’s trial lawyer was granted leave to withdraw on July 1, 2005, and her new lawyer filed a notice of appeal on Aug. 9, 2005. The husband then moved to dismiss the appeal as improperly perfected. (Neither of Patricia Jones’ lawyers is named in the appellate ruling.)

At the time he filed a notice of appeal, the second attorney’s license had been suspended by the Virginia State Bar Disciplinary Board. The suspension was in response to an order entered by the District of Columbia Court of Appeals that had suspended the lawyer’s license for failing to cooperate with the District of Columbia Office of Bar Counsel. Ultimately, the Virginia State Bar suspended the lawyer’s license for 30 days, beginning July 26, 2005, and ending Aug. 25, 2005.

The court dismissed the notice of appeal, finding that it was a nullity since it was filed by an attorney without authority to practice in Virginia.  The court cited precedent that an appeal filed by a foreign attorney who’d not been admitted to practice in Virginia was a nullity and that the case of a suspended attorney was not different.  Because it applied a bright line rule, the court found it irrelevant that the attorney was unaware of the suspension.

Stupid result, in my view.  Where an attorney knowingly files an appeal
and isn’t licensed to practice, he deserves blame for the result.  But
where an attorney doesn’t know, why should the client be penalized?  In
this case, the events all took place over a short period, with the
former attorney withdrawing at the beginning of July 2005, the new
attorney filing notice of appeal August 9, 2005 and the suspension
ending on August 25, 2005.  Had the client’s new attorney realized that
he was suspended through the end of August 2005, he could have asked
the client’s former attorney to lodge the appeal (or the client could
have filed pro se) and stepped in to the case when his suspension
concluded.  The court’s approach rejected this sensible outcome and
penalizes the client for an easily avoidable situation.

Obviously, courts ought to enforce their rules.  But when a court’s decision penalize
slitigants’ for their lawyers’ misdeeds, courts ought to balance the
necessity for strict enforcement against the potential harm to the
litigant.  As for lawyers, there’s a lesson here as well:  we must always remember that when we violate rules, even inadvertently, we may hurt those who more important than ourselves:  our clients.

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