CAV ISSUES CHILLING CONTEMPT ORDER

 

[Posted February 3, 2009]  Several years ago, I read The Hot Zone, a book by Richard Preston about the Ebola virus.  One of the snippet reviews on the back cover caught my eye – it said that the first chapter of this book was the most terrifying thing the reviewer had ever read.  The reviewer was Stephen King.

 

Now, if Stephen King says something is scary, then it’s scary.  I suspect he’d give the same brief review to today’s order in In re Lynch out of the Court of Appeals of Virginia.  It certainly had me gasping in a couple of places, and I sat in stunned silence, holding my face in my hands, when I got to the end.

 

This case originates in a criminal appeal.  As so often happens, the client’s earnest desire to appeal was not accompanied by a suitable factual or legal basis for such an appeal.  So his lawyer concluded, anyway.  She filed an Anders brief, including the usual companion motion for leave to withdraw.

 

The CAV looked at the pleading and noticed that the attorney hadn’t certified that she had searched the record diligently for any potentially meritorious basis for the appeal.  The court accordingly denied the motion to withdraw, and gave the attorney 15 days to file an amended petition for appeal.

 

So far, there’s nothing scary about this scenario.  No one was in trouble (well, except the presumably incarcerated defendant, of course) at this point.  But when the lawyer let the 15-day deadline pass without doing anything, things started to get unpleasant.  The court issued another order, essentially telling the lawyer, “Hey, we meant it the last time,” and directing her to file the amended pleading.  She let this one go, too.

 

Four months after the second order, the court had had enough.  It entered a third order, removing her as the defendant’s counsel and directing her to show cause within 15 days why she should not be held in contempt.  Now, that’s the kind of order that’s destined to get a lawyer’s attention.  But inexplicably, it didn’t register with this lawyer; she did nothing in response to it.  Two and a half months later, the chief deputy clerk of the CAV, who is a very pleasant man, called the lawyer to find out what was going on.  She responded that she would get an answer to the show cause out that day.  Her faxed answer stated simply that she had been negligent, and she apologized to the court.

 

That was at least a step in the right direction, but it wasn’t remotely good enough.  The court entered a fourth order, directing her to appear in open court in Richmond two months later to explain herself further.  Okay, fair warning to my queasy readers:  This is where our story moves from scary to terrifying.  If you’re weak in the knees, you probably shouldn’t read the next sentence of this essay.

 

The lawyer didn’t show up in court as ordered.  Given what has gone on thus far, that probably isn’t entirely unexpected, but it’s a horrifying prospect nevertheless.  This produced a fifth order, directing the lawyer to appear in the court’s Chesapeake courtroom six days later.  In order to ensure that the court had her attention, a State Trooper served the order on her.  (It was personal service, in case you were wondering, and must have produced a bit of a stir in the law offices that day.)

 

This time, the lawyer showed up (which is a good thing, or else her next court appearance would likely have been “escorted”).  She apologized for a lack of professionalism, and blamed her failures to respond on an overly-heavy workload.

 

Today, the court finds the lawyer to be in contempt, and fines her $1,000.  In addition, the court disbars her from practicing in the CAV “indefinitely,” although she may apply for reinstatement after three years on certain terms.  The ultimate sanction imposed by the court, though, is contained in the final five words of the order:

 

“This order shall be published.”

 

Two and a half years ago, the Supreme Court imposed a sanction on similar terms upon a lawyer who filed a grossly intemperate pleading, in the case of Taboada v. Daly Seven, 272 Va. 211 (2006).  That lawyer got the same $1,000 fine, and his privilege to practice in that court was suspended for a year.  But at that time, I expressed this opinion on this site:  “The most serious sanction is that the opinion is published, and will never go away.”

 

Like the lawyer in Taboada, this attorney’s name will go down in the published annals of Virginia law as an example of how not to handle your law practice, and indeed your life.  That’s a harsh, unforgiving treatment, particularly since our society generally affords people who make mistakes the opportunity to atone for them somehow.  This attorney will have the opportunity, perhaps as early as 2012, to return to this court and practice law there.  (Today’s order doesn’t prevent her from plying her trade in the trial courts, so she’s not out of a career.  If any clients want to appeal, she has to send them to another attorney for that purpose.)  But she can never erase these words from the pages of Virginia Appeals Reports.

 

I’ll hasten to add that I do not criticize the court in the slightest for this sanction.  This lawyer sowed the seeds of her own terrible harvest, and over time she watered and tended this crop until it matured today.  I don’t perceive that the court could reasonably have done less than what it did.  On behalf of the lawyer who made a series of bad choices, I regret that the last part of the sanction is so permanent, but I don’t fault the court for doing what it had to do to ensure compliance with its orders.  We all owe the courts that much, at a minimum.

 

I could offer a blindingly obvious bit of advice here, along the lines of “Don’t miss deadlines,” or “Don’t ignore court orders when you get them.”  But my advice here relates not just to being sensible at an elementary level like that.  I earnestly believe that the most valuable tool a lawyer can have is his or her personal credibility with the court.  I believe, and have preached, that a lawyer’s reputation imposes a ceiling on his or her effectiveness in any courtroom.  The more the court trusts you, the more effective an advocate you are.  If the court doesn’t trust you, you will always be hamstrung, in every litigation context.

 

In that vein, loading up on more and more cases, presumably in an effort to chase more and more dollars to make overhead and a bit of profit, can be a self-defeating pursuit for a lawyer if it costs you credibility like this.  This lawyer’s personal ethos is shot for the foreseeable future, and not just in the Court of Appeals.  (What; you think judges don’t talk to one another?)  Accordingly, my advice is this:  The next time you find yourself telling a friend or a colleague that business is so frantic you just can’t keep up; that you’re underwater, or swamped with work; that you don’t have time to take care of the cases you already have; you need to recognize this warning sign.  Turn down a few cases, or refer a few of your current ones out.  Get your caseload down to a manageable size, so you can devote appropriate time to every one of them.  Remember, each of those clients deserves a lawyer who isn’t overwhelmed by the size of his file cabinet.  And you deserve a life, and the eventual peaceful anonymity that comes with a clean State Bar record.