Bright-Line Blunder
Client loses after suspended lawyer files notice of appeal

By Geri L. Dreiling

If an attorney with a suspended license files a notice of appeal, the client will pay a price, even if neither the lawyer nor the client knew of the suspension, the Virginia Court of Appeals has ruled.

"When an attorney’s license to practice law in the commonwealth has been suspended, any pleading filed during that time is a nullity," wrote Judge Robert J. Humphreys in Jones v. Jones, No. 2426-05-4 (Oct. 24). As a result, the appeal must be dismissed.

"This opinion gives new meaning to the word formalistic," says Rory Little, a legal ethics professor at the University of California-Hastings College of the Law in San Francisco.

Little, a former member of the ABA’s Standing Committee on Legal Ethics, argues, "To say that a suspension which only lasts 30 days which the lawyer doesn’t even know about is sufficient to terminate the rights of plaintiff is just outrageous."

However, Sheila Reynolds, a professor at Washburn University School of Law in Topeka, Kan., says she understands the court’s position even though "I think it is natural to feel sympathy for the client terminated through no fault of her own."

"The attorney-client relationship is based on an agency relationship," notes Reynolds, who teaches professional responsibility and legal malpractice and is the former chair of the Kansas Bar Association Professional Ethics Advisory Committee. "Even though the client is innocent, she is bound by what the agent does because she authorized the agent."

The case began when Stephen Jones filed for divorce in Fairfax County Circuit Court on April 21, 2004. While the case was pending, according to the appellate court opinion, his wife, Patricia Jones, violated several discovery orders. The trial court ordered sanctions and barred her from pursuing spousal support and maintenance, and from admitting any documents into evidence that were not produced by the discovery deadline of April 29, 2005.

On June 7, 2005, the trial court held a hearing, and on July 11, 2005, it entered a final decree. The wife’s trial lawyer was granted leave to withdraw on July 1, 2005, and her new lawyer filed a notice of appeal on Aug. 9, 2005. The husband then moved to dismiss the appeal as improperly perfected. (Neither of Patricia Jones’ lawyers is named in the appellate ruling.)

At the time he filed a notice of appeal, the second attorney’s license had been suspended by the Virginia State Bar Disciplinary Board. The suspension was in response to an order entered by the District of Columbia Court of Appeals that had suspended the lawyer’s license for failing to cooperate with the District of Columbia Office of Bar Counsel. Ultimately, the Virginia State Bar suspended the lawyer's license for 30 days, beginning July 26, 2005, and ending Aug. 25, 2005.

In addressing the question of the effect that the suspended license had on the notice of appeal, the three-judge panel in the case quoted the Virginia Supreme Court decision Nerri v. Adu-Gyamfi, 613 S.E.2d 429 (2005), which addressed the question of whether a pleading filed by a foreign attorney not authorized to practice law in Virginia had any legal effect.

In the Nerri case, the Virginia Supreme Court stated, "The status of an attorney during the time his or her license is administratively suspended is no different from that of an individual or an attorney who has never been licensed in Virginia—neither is authorized to practice law in this commonwealth, and both are subject to prosecution for practicing law without a license."

In Jones, the wife argued that because her lawyer didn’t know his license was suspended at the time he filed a notice of appeal, Nerri should not apply, and lack of actual notice ought to be a defense. But the court disagreed, referring to the holding in Nerri as a "bright-line rule."

Humphreys wrote, "The Virginia Supreme Court did not rest its holding on the fact that counsel admitted he knew his license was suspended, nor does Nerri explicitly carve out an exception to the rule for those attorneys who assert they did not ‘know’ their license has been suspended."

Heather A. Cooper, the Fairfax, Va., attorney who represented the husband, says, "I wasn’t surprised. There is a bright-line rule and this court was right on point with earlier decisions of the Virginia Supreme Court."

David E. Fox, the Washington, D.C., lawyer for the wife, did not return calls seeking comment. However, a motion requesting a rehearing is pending.

Dianna Gould-Saltman, a Los Angeles family lawyer and chair of the Ethics, Professionalism and Grievance Committee of the ABA’s Section of Family Law, was troubled by the court’s response to the argument that the attorney didn’t know of the suspension. If that’s true, Gould-Saltman says, "I don’t know what more the client could have done."

Reynolds is also bothered by the fact that the appellate court didn’t delve into the question of actual notice. "It does seem to me that the disciplinary office has some sort of obligation to give the lawyer some advance warning so he can act properly."

The question might also factor into any potential malpractice claim. Reynolds notes malpractice policies typically don’t cover intentional torts, so the lawyer’s claim he had no actual notice could factor into coverage issues. In addition, Reynolds says that to have a malpractice claim, the client will have to prove "not only breach of duty and negligence, but that she was damaged."

©2006 ABA Journal

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