CAV FINDS LAWYER IN CONTEMPT[Posted June 3, 2009] Alas, we have been down this road before.
The Court of Appeals yesterday entered a published order punishing an attorney for missing deadlines. In In re Davey, the court finds the attorney in contempt for missing not one, but two oral arguments in criminal appeals, both scheduled for the same date in early April. The court fines the lawyer a total of $500 and disbars him from practicing before that court (not all courts, so he can still earn a living for now) for two years. In addition, a familiar “invisible sanction” is that the order is published, and will appear in Virginia Appeals Reports permanently. Since procedural defaults like this are reported to the State Bar, it is foreseeable that this is not the end of the lawyer’s troubles.
Does this seem like a heavy-handed sanction to impose on a lawyer for missing a single day in court? If that were the full extent of the error, it would indeed be excessive. But the order notes that this lawyer has frequent-flier miles with the disciplinary system, for just this kind of transgression; he has been disciplined no fewer than three times in the past five years for “misconduct involving his failure to act with reasonable diligence and promptness in representing a client.” The most recent of those, handed down just 11 months before the lawyer missed this court date, required him to set up an effective docket control system.
The court gave the lawyer the opportunity to explain himself, but he admittedly could not show cause why he should not be found in contempt. He told a panel of the court in May that he had received notices of the hearing date, but had simply failed to mark his calendar.
Does any of this sound familiar? It should. The court sanctioned another lawyer for even more egregious conduct (that time, the lawyer failed to answer summonses from the court itself, a blatant example of occupational self-immolation) back in February. At that time, I posted a Jacob Marley essay about the dangers of over-scheduling yourself. I got a gratifying number of notes from lawyers who told me that that essay had caused them to engage in some career introspection, and to consider utilizing the most empowering word in the English language – “No” – a bit more frequently.
I will repeat one admonition from the previous essay here. If you think I’m not writing to you, that only other lawyers would ever have this problem, think again. If you find yourself getting overly busy more and more often, or remembering a key date just in the nick of time, please, please understand that you are starting down the same path. You may never venture as far as either of these two lawyers did, . . . but then again, you might. If you see even a glint of your own practice in this, do something now to stop yourself. As noted above, “published” is published forever.