SUPREME COURT ISSUES RARE MIDSUMMER OPINION

Of the three appellate courts I follow on this site, the Fourth Circuit hands down opinions (most unpublished) every day, and the Court of Appeals of Virginia announces its rulings (again, most of which are unpublished) every Tuesday. Only the Supreme Court of Virginia has a sharply limited number of opinion days; there are six each year, always the last day of each session week.

On Friday, August 11, the court hands down a rare opinion during one of the interstices of its session calendar. The opinion is a follow-up to the March 2006 decision in Taboada v. Daly Seven, Inc., the case in which the court applied to a hotel the premises liability standard it had applied previously to common carriers.

That ruling didn’t sit well with the attorney who had represented the hotel; evidently he had fully expected to win the case on appeal, given the way he perceived the briefing and argument had gone. Like many another unsuccessful attorney, he petitioned the court to rehear the case, pursuant to Rule 5:39.

In most instances, this would be an unremarkable development. While petitions for rehearing face long odds—only one in twenty is granted at the petition stage, and the prospects are even more daunting after a ruling on the merits—they are still filed with some degree of regularity. It was the contents of this petition, not the mere fact of its filing, that made this petition remarkable.

Euphemistically phrased, this petition was inadvisable. It criticizes the ruling, its reasoning, and arguably the court itself, in very strong language. It recites Machiavelli’s advice that when one strikes at the king, it should be a mortal blow – and does so in a way that invites the reader to substitute the word court for king. Intemperate adjectives and adverbs are sprinkled liberally throughout the brief.

The Supreme Court gets to read plenty of bad briefs every month, but it found this one offensive. Shortly after the brief was filed, the court, sua sponte, issued a rule directed to the attorney who filed it, directing him to show cause why he should not be sanctioned for violating Code (1950) §8.01-271.1.

In case you’re wondering, the answer is no; in all my years of following the court, I have never heard of a sua sponte rule to show cause quite like this. On the other hand, I have never read a brief quite like this.

When he received the rule, the attorney wisely hired himself a lawyer. She counseled a penitent approach, and the resulting brief in response was, in my view, admirable. She made no excuses for his actions. She readily acknowledged his error in filing such a brief, and conveyed his remorse for his actions.

I didn’t attend the oral argument on the rule in June, but I understand that it was, from the standpoint of an appellate advocate, chilling: With the exception of questions from one justice, the court greeted the argument with stony silence. This, despite the responsible approach demonstrated in the second brief, was a very serious transgression.

Friday’s opinion recounts several of the most troublesome aspects of the initial brief; it also cites the attorney’s previously immaculate disciplinary record, and the evident sincerity of his apology. But it concludes that the statute, the state counterpart of Fed.R.Civ.P. 11, had indeed been violated. The court sanctions the attorney by requiring him (not his client and not his law firm) to pay $1,000. More significantly, it suspends his privilege to practice before the Supreme Court for one year.

That is not, in my view, the most serious sanction imposed by the court. The most serious sanction is that the opinion is published, and will never go away.

* * *

In medieval Ireland, each man was assigned by his community what was called an honor price. This was a measure of his standing in the community, of his real worth, irrespective of his net worth. No man was permitted to enter into a contract for an amount of money that was greater than his honor price, presumably because he could not be trusted when a greater amount was at stake. Similarly, no man was permitted to testify in any legal proceeding in which an amount greater than his own honor price was being litigated. The honor price was a reflection of the trust each man had earned among his peers.

For today’s lawyers, at lease one vestige of the concept of honor price remains. A lawyer’s reputation with the Supreme Court, or any other court in which he or she practices, imposes a practical limitation on that lawyer’s effectiveness. I have discussed a parallel concept, the importance of each lawyer’s ethos (personal credibility) as the key to persuasiveness.

This decision illustrates the enormous importance to an attorney of preserving his or her own ethos. A good reputation with a court is like a Waterford crystal vase – very valuable, but painstakingly difficulty to craft. Like the vase, it is also quite fragile. Once it is broken, it is possible to reconstruct it, but the effort will be profoundly difficult, and will take a great many years.

I recall reading the petition for rehearing that started all this; my reaction was astonishment at the tone and language, and dread for the likely consequences. I read the lawyer’s response to the show cause order with admiration and respect for his approach, in which he accepted responsibility for his actions without making excuses. Friday’s opinion, in contrast, leads the reader only toward introspection – a quick calculation of one’s own honor price and personal credibility, and a reflection of the long-term cost of damaging it.

* * *

The denouement of this story is still unwritten. The court determines not to punish the hotel for its attorney’s transgressions, and permits it to withdraw the petition for rehearing and file another. The opinion omits the due date for such a new petition; this will presumably be specified in the Clerk’s order. On a practical level, the opinion also provides a glimpse into the court’s views of at least one aspect of the sanctions statute, dealing with what constitutes an “improper purpose” for a pleading.

 

REHEARING IN TABOADA V. DALY SEVEN

[Posted November 17, 2006] The Supreme Court of Virginia has granted rehearing in the case of Taboada v. Daly Seven, the case that has already generated two published opinions this year. The original decision, 271 Va. 313, unanimously applied the analysis typical of common carriers to impose potential liability on hotel operators for criminal assaults that occur on hotel property. The second, 272 Va. 211, imposed sanctions upon Daly Seven’s attorney for the fiery words and tone of his original petition for rehearing. As a part of the sanction opinion, the court specifically declined to punish the hotel for the sins of its lawyer, and permitted the filing of a supplemental rehearing petition. The current grant is based on that supplemental petition.

Ironically, this action by the court is something of a vindication of the sanctioned attorney, as the court takes the very action he (too vehemently) urged in his inflammatory pleading last spring. The case will be placed on the privileged hearing docket, and will be reargued to the full court in the January session, with a decision likely coming in early March.