ANALYSIS OF MAY 4, 2023 SUPREME COURT OPINIONS

(Posted May 4, 2023) Popular culture will focus today on the lighthearted Star Wars Day (May the Fourth be with you). I, too, mark this day, but for a very different reason. I ponder the seething fury in Neil Young’s mind as he penned these stirring words of accusation:

Gotta get down to it;
Soldiers are gunning us down.
Should have been done long ago.
What if you knew her and found her dead on the ground?
How can you run when you know?

RIP Allison Krause, Jeff Miller, Sandy Scheuer, and Bill Schroeder, the tragic Four Dead in Ohio.

Real property

Dirt lawyers will appreciate the important holding today in Oreze Healthcare LLC v. Eastern Shore CSB, from the Portsmouth Circuit Court. It’s a claim by a former landlord for water damages to leased property, asserted against the tenant.

Oreze owned the property and leased it to a local community services board to provide care for people with behavioral health issues. The property sustained damage when pipes froze in the cold winter of 2017-18. Shortly after the end of the tenancy, the owner sued the board to recover those damages.

While the case was pending, the owner sold the property, conveying title by general warranty deed. The tenant learned of the sale and moved for summary judgment, arguing that the broad language of the deed meant that the landlord had conveyed its damages claim and no longer had standing. The circuit court agreed and dismissed the case.

The Supreme Court today unanimously reverses that ruling and sends the case back for trial. Justice Chafin’s opinion notes that this isn’t a case of merger by deed, because those apply to claims between the parties to the deed. The tenant wasn’t a party to the conveyance. The court reaches back to English common law to conclude that the damages claim was a chose in action, not a part of the real estate, so it did not convey with the land unless the deed expressly so provided.

Attorney discipline

I’ve noted before that appeals in disciplinary proceedings against lawyers generate some of the most painful opinions for me to read. Today’s decision in Brown v. Virginia State Bar is no exception.

A client engaged the lawyer here to represent her in several matters arising from her marital difficulties. The client was particularly vulnerable, in that she was a substance and alcohol abuser. Her husband accused her of adultery, and today’s opinion from Justice Mann will lead you to conclude that she engaged in multiple adulterous relationships.

Early in the engagement, the lawyer appears to have provided some solid advice and representation; as I see it, he handled the early phase of the case capably. But the attorney-client relationship turned flirtatious and then salacious, as a string of text messages amply demonstrated. Things culminated with a lawyer-client meeting at a hotel – the lawyer declined to convene at his office because “I don’t want to be rushed” – that appears to have fulfilled their fantasies.

Alas, an employee at the hotel knew the client’s husband and alerted him. The husband quickly contacted a private investigator, and the PI obtained solid evidence of the tryst. The husband later confronted the lawyer with what he had and threatened a Bar complaint; the lawyer quickly withdrew from the representation, and the client proceeded through the divorce case, up to and including the final decree, pro se.

This disciplinary proceeding ensued, and the Bar certified charges of violations of Rule 1.7 (conflict of interest) and 2.1 (advisor’s independent professional judgment). A three-judge panel ruled in the lawyer’s favor on the second charge, but upheld the first one, imposing a public reprimand with terms.

The lawyer appealed and the Bar cross-appealed the finding on Rule 2.1. The Supreme Court today affirms the judgment, finding that the record amply supports a finding that the lawyer had a conflict of interest when he developed a sexual relationship with the client. In this context, the liaison exposed the client to a possible legal detriment, because it was adulterous. This would hurt her in her divorce proceeding, and (believe it or not) it’s still a crime in Virginia, albeit one for which prosecutions are quite rare. The court shrugs off the lawyer’s suggestion that the wife would have defenses in the divorce case, holding that it’s enough that he created a legal detriment.

On the Bar’s cross-appeal, the justices take an unusual approach. The Bar had asked the Supreme Court to impose a finding that the lawyer had violated Rule 2.1, but didn’t ask for any added sanction beyond the existing public reprimand. Justice Mann writes that this puts the court in a bind, because the absence of a different sanction means that nothing would change if it reversed the panel’s decision. The court thus declines to address the Bar’s cross-error. This is a good object lesson in shaping appellate briefs: Be careful what you ask for, and that you actually ask for something.

At the beginning of my legal career, I promised myself three things: I would never get romantically involved with a client, never get romantically involved with a coworker, and never drink while I was working. A dose of that policy might have helped the lawyer here; surely there had to be a point at which a voice in the back of his mind whispered, “You know, this might not be such a brilliant idea …” But he wasn’t listening.

That being said, I’ve long recognized the wisdom in a saying that my late father-in-law, Bob Gelb, was fond of: You can’t put your head on someone else’s shoulders. I accordingly will not pile on any condemnation here. Because the opinion is published, the lawyer’s temporary folly is something that he’ll have to live with, and that should be enough for anyone.

One final note: I saw that the lawyer was represented on appeal by my appellate pal Chris Holinger. From what I can see, Chris did a commendable and professional job here without a great deal of material to work with.