SUPREME COURT ORDERS TARGET TWO ATTORNEYS[Posted July 21, 2010] Last week, the Supreme Court handed down two unpublished orders relating to lawyers. In one, the court decided an appeal argued in June, Brown v. Virginia State Bar, affirming the ruling of a three-judge panel that suspended a lawyer’s license for two concurrent twelve-month terms. The court found that the Bar proved misconduct involving dishonesty by the lawyer during the course of a circuit-court trial. It also concluded that the panel properly imposed the suspensions, both as a punishment and as a deterrent.
The other order came sua sponte in the course of an appeal of a sexually-violent-predator decision. In Smith v. Commonwealth, Smith’s lawyer filed a transcript (as was appropriate under the rules) in the Winchester trial court, and that transcript was duly forwarded to the Clerk’s Office in Richmond. Unfortunately for the lawyer, the transcript contained a colloquy that he probably wished he’d redacted. Describing a prior appeal in the case, the lawyer advised the judge that the Supreme Court had declined to consider one appellate issue, adding, “They didn’t have the guts to handle it.”
Ouch. When someone at Ninth and Franklin stumbled upon that bon mot, a show cause issued, directing the lawyer to come to Richmond during the next session to explain himself.
I don’t represent that lawyer, and I don’t give out legal advice on this website (other than tongue-in-cheek advice, such as telling arrestees, “You have the right to remain silent. Use it!”). If I did represent him, or if I did give out legal advice here, I think I might suggest the following:
1. Hire a lawyer. The order permits him to have counsel, and that would be a very good idea.
2. Be prepared to deal with a predecessor case, Taboada v. Daly Seven, which is the worst case of contempt-of-Supreme-Court in recent memory. Note that where the lawyer in Taboada filed a written (and presumably edited) brief containing his contumacious comments, this statement came during an oral argument to the court and was presumably unrehearsed. I can’t say for sure, but I suspect the court will recognize that the degree of culpability for a spur-of-the-moment comment, however foolish, isn’t quite as great as it was for a document that was filed after time for reflection.
3. Be proactively penitent and don’t make excuses.
As both of these orders are unpublished, you won’t find them on the court’s website; contact me if you want to see a copy.