ANALYSIS OF JULY 30, 2020 SUPREME COURT OPINION

(Posted July 30, 2020) Today’s lone published opinion from the Supreme Court of Virginia comes straight out of the Crying Shame Department. Baumann v. Virginia State Bar presents what I view as an entirely avoidable outcome.

The appellant here is a 40+ year veteran of law practice here in Virginia. He’s a general practitioner, a dying breed in an era of specialization.

In 2015, a widow consulted the GP for guidance. She and her late husband had created a family trust. Upon his death, her stepchildren consulted a lawyer who wrote to the widow, asking for a copy of the trust agreement, an accounting, and some items of personalty that their father had promised them. The widow didn’t want to give up the document, regarding it as private, but was apparently okay with giving up the personalty.

The GP proposed a $7,500 nonrefundable fee for handling the matter. He added that if the matter went to litigation, he’d require another $15,000 as a retainer, against which he’d bill $325 an hour for his work. The widow agreed and gave him a check for $7,500.

According to today’s opinion, the lawyer stated that he performed 10-12 hours of legal research over the ensuing weekend, though he didn’t keep time records or make any notes. The next week, he called the stepchildren’s lawyer, and faxed her a copy of the trust agreement. The two lawyers coordinated a date and time for the stepchildren to pick up the items they wanted.

Nothing more happened for a year. In 2016, the widow e-mailed the GP, telling him that the heirs had picked up their items. She terminated the representation and asked the lawyer for an itemized statement of his fees and costs advanced. Two weeks later, the GP sent her a statement asserting that “he had: (1) read a 179-page trust document, performed legal research, and advised Wright ‘concerning the same,’ (2) contacted various parties ‘as needed’; (3) guaranteed his availability to Wright instead of the opposing party, (4) prepared the matter for litigation, and (5) closed Wright’s file. The statement claimed that Baumann earned the entire $7,500 fee.”

Sound reasonable to you? Before you answer, let’s consider a few small details. First, the trust agreement was only 38 pages, not 179. Do you think the widow would have known that? Second, while the lawyer facilitated a stress-free swap of personalty, he never resolved – indeed, never even addressed – the biggest item in the case, the demand for an accounting. And third, while not directly related to the quantum of fees, the GP gave away a document that the widow had wanted to keep private.

Around this time, the stepchildren’s lawyer wrote to the GP and asked, “Now, how about that accounting?” The GP, regarding that he had been terminated, simply forwarded that to the widow. Up to this point, she didn’t know that that issue hadn’t been addressed.

The widow then did what she should have done the first time: She consulted a specialist in trusts and estates law. That lawyer looked at the trust agreement and told the widow that she didn’t have to give up the document to her stepchildren; indeed, she could end any claim that they had by unilaterally terminating the trust. She had that authority, spelled out right in the document. The lawyer picked up the phone, spoke with the stepchildren’s lawyer. And resolved the accounting issue on the spot.

The T&E lawyer then wrote to the GP and asked for a copy of his file. The GP replied with the opening lines of The Adventures of Tom Sawyer (“Tom!” No answer.). A second request produced copies of e-mails and “four pages of sparse, handwritten notes.”

The T&E lawyer asked the GP to refund part of the $7,500 fee. That generated a refusal. And that, in turn, generated a Bar complaint, filed by the widow.

Now you know why this is a crying shame. For maybe three or four thousand dollars, the GP could have bought himself peace and quiet, and a lot of good nights of sleep. Instead, he fought the complaint, even when the Bar offered him private discipline.

The district committee found that the GP had violated the Rules of Professional Conduct by not finishing the job he was hired for, not communicating with the widow, and charging an excess fee. It imposed a public admonition with terms, including refunding $5,000 to the widow. The GP appealed on to the State Bar’s Disciplinary Board, which affirmed.

Today, the justices affirm, too. They turn aside challenges to the Board’s standard of review, the constitutionality of the private-discipline setup, and the sufficiency of the evidence. Justice Chafin’s exploration of these issues is thorough and the result is thoroughly predictable. Now the GP is out $5,000, and his name will be in Virginia Reports for all time, in a way that none of us wants to achieve that lasting fame.