ANALYSIS OF NOVEMBER 6, 2007 CAV OPINIONS

[Posted November 6, 2007] Today, the Court of Appeals hands down two published opinions, one in a criminal case and one involving unemployment compensation. The latter case offers an issue of first impression in Virginia courts.

Unemployment compensation

When an employee leaves a job and seeks unemployment comp benefits, his employer might well attempt to resist the claim by contending that the employee left work voluntarily. In that event, the Act denies the employee benefits, since those are designed for persons who are involuntarily unemployed. But Virginia courts have yet to address the question of seasonal employees in this context. What happens when an employee signs on to work for a designated time, and that time expires? Is the subsequent unemployment voluntary, or not? We get an answer to this question today in Chauncey F. Hutter, Inc. v. VEC .

The employer is a tax preparation service, so you can readily discern its busy season: January 1 to April 15 of each year. One Charmine Key hired on in January 2005, to work as a receptionist for that tax season. At the end of the term, she was let go, right on schedule. But when she filed a claim for unemployment comp benefits, the employer contended that she had left voluntarily, in effect before she even started, by consciously signing up for a limited duration.

If you’re like me, you probably have reached this point in the recitation and have concluded with a smile, “Gee, that’s a good question.” The court supplies the answer today, and the employee gets her benefits. The court points to the liberal construction that must be applied to the Act, and notes that two specific classes of employees (teachers and athletes) are statutorily excluded from benefits in this manner. Since those two classes are specifically set out as exceptions, that must mean that the general rule is that other seasonal employees are covered. The court concludes, “we hold that when an individual leaves work solely because that individual entered into a contract of employment for a defined term, that individual does not leave work ‘voluntarily,’ as that word is used” in the Act. In a very nice turn of phrase, the court reasons that “claimant did not leave work; rather, work left claimant.”

I infer that the result of this case would be different if, at the end of tax season, the employer had decided that Key was such a sparkling receptionist, that they offered her continued employment, and she declined. In that event, I suspect the employee would be out of luck, and out of benefits.

One last point: In a short coda to today’s ruling, the court specifically declines to address the parties’ rather interesting public policy arguments, holding that such analysis is left to the discretion of the legislature. The court cites compelling authority for this conclusion. So why do so many judicial opinions cite public policy? It’s because, in this context, the court is interpreting matters that have been addressed – indeed, created – by statute. Where the legislature speaks, the job of the courts is to interpret the statute, not to decide what outcome furthers public policy. In those cases in which public policy discussions are case determinative, you’ll almost certainly find that the parties are litigating common law rights.

Criminal law

The court takes up the intersection between the Sixth Amendment’s right to counsel and the Rules of Professional Conduct in Johnson v. Commonwealth , involving a prosecution for aggravated malicious wounding and firearms charges.

Johnson got into a fistfight with a guy named Green. Unfortunately for Johnson, Green pretty much beat the stuffin’ out of him. Another fellow named Coleman was among a group of onlookers. Soon thereafter, Johnson approached Green on the street, pulled out a gun, and plugged Green three times. Green fortunately survived, and identified Johnson as the guy who shot him. The Commonwealth indicted Johnson for the shooting.

Johnson sensibly hired a lawyer. Meanwhile, Coleman, the witness to the fistfight, got picked up on “unrelated drug charges.” He, too, heeded Ben Franklin’s celebrated advice, and hired a lawyer of his own. Trouble started brewing when the two defendants figured out that they had the same lawyer. This could present obvious problems at trial; in order to defend Johnson, the lawyer might well have to attack Coleman’s credibility. The opinion doesn’t cite RPC 1.7, but I sure will:

1.7 Conflict of Interest: General Rule.

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client . . .

Now, I don’t know about you, but in my view, if this isn’t a concurrent conflict of interest, then the Bar might as well shut down its district committees. The trial judge saw it as a conflict, despite the lawyer’s production of a written conflicts waiver, signed by both Johnson and Coleman (that’s the exception in paragraph (b) referred to in the rule); he felt that it would be impossible for the lawyer to function in Johnson’s trial when one key witness for the prosecution was the lawyer’s “other” client. The judge ordered the lawyer off Johnson’s case, and appointed a substitute. As you might imagine, Johnson got convicted, despite the substitute’s best efforts. He appealed, and asserted that he had a Sixth Amendment right to counsel of his choosing, and the trial court abridged that right by kicking his chosen lawyer off the case.

In ruling on this question, the court notes prior caselaw that has identified the dilemma facing trial courts in this context. Citing a 1988 US Supreme Court holding, it observes that trial judges can be “whipsawed” by claims of error no matter what they rule, particularly since convicted defendants are not well known for being understanding of the plight of trial judges. If the lawyer is disqualified, then the defendant claims his right to counsel of his choosing has been violated. If the judge lets the lawyer stay in the case, then the inmate claims in a habeas petition that he has been denied effective assistance of counsel. What’s a poor judge to do?

Easy: He exercises his discretion, and the appellate court will almost always back him. Not on every discretionary call, of course; but particularly in situations like this, the appellate courts are loath to second-guess a trial judge. And that’s what happens today, as the Court of Appeals affirms. It even turns aside the claim of intelligent waiver, since as the US Supremes recently held, the Sixth Amendment does not “demand that a court honor his waiver of conflict-free representation.” There is also a vital interest in maintaining public confidence in the judicial system, and that will occasionally mean that a client can’t use an obviously conflicted lawyer.