Present: Hassell, C.J., Koontz, Kinser, Goodwyn, Millette,
and Mims, JJ., and Russell, S.J.
HARRY SHIPE
OPINION BY
v. Record No. 091738 SENIOR JUSTICE CHARLES S. RUSSELL
September 16, 2010
MICHAEL J. HUNTER
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge
In Aguilera v. Christian, 280 Va. 486, 699 S.E.2d 517
(this day decided), we considered the question whether a pro
se litigant may validly authorize a person not licensed to
practice law in Virginia to sign a pleading on the pro se
litigant’s behalf. In this appeal, we consider the closely
related question whether a Virginia lawyer may validly
authorize a lawyer licensed elsewhere, but not in Virginia, to
sign the Virginia lawyer’s name to a pleading.
Facts and Proceedings
On May 16, 2008, a complaint was filed in the circuit
court on behalf of Harry Shipe (the plaintiff) against Michael
J. Hunter to recover damages arising out of an automobile
collision that occurred on May 28, 2004. 1 The complaint bore
the typed signature “Harry Shipe By Counsel.” That entry was
followed by the written signature “Leo R. Andrews, Jr.”
1
A previous action had been brought by Shipe against
Hunter on the same cause of action on May 24, 2006 and was
nonsuited on November 30, 2007.
followed by the initials “JW” in parentheses. Mr. Andrews was
named as “Counsel for Plaintiff.” Below that signature
appears the name of Jay S. Weiss, named as “Co-Counsel for
Plaintiff.” That signature line contains only Mr. Weiss’
initials.
It is undisputed that Mr. Andrews is an active member of
the Virginia State Bar in good standing, licensed to practice
law in Virginia and that Mr. Weiss is a member of the Bar of
the District of Columbia in good standing, but is not licensed
to practice law in Virginia. Defense counsel filed a motion
for summary judgment on the ground that only Mr. Weiss had
actually signed the complaint and that it thus lacked the
signature of either a pro se plaintiff or an attorney
representing him who was licensed to practice law in Virginia,
as required by Code § 8.01-271.1 and Rule 1A:4. At a hearing
on the motion, Mr. Andrews represented to the court that he
had not personally signed the complaint but that he had
requested and authorized Mr. Weiss to sign his, Mr. Andrews’,
name. The circuit court held that the complaint was a
nullity, granted the motion for summary judgment and dismissed
the case with prejudice. We awarded the plaintiff an appeal.
Analysis
Code § 8.01-271.1 provides, with two exceptions not
relevant here, that “every pleading, written motion, and other
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paper of a party represented by an attorney shall be signed by
at least one attorney of record in his individual name” and
that a party not represented by an attorney and proceeding pro
se “shall sign his pleading, motion, or other paper and state
his address.” Rule 1:4(c) provides: “Counsel or an
unrepresented party who files a pleading shall sign it and
state his address.” Rule 1A:4(2) provides that no out-of-
state lawyer may appear pro hac vice in any Virginia tribunal
except in association with an active member of the Virginia
State Bar in good standing. Rule 1A:4(2) further provides:
“Any pleading . . . shall be invalid unless it is signed by
local counsel.”
We have repeatedly held that a pleading, signed only by a
person acting in a representative capacity who is not licensed
to practice law in Virginia, is a nullity. Aguilera v.
Christian, 280 Va. at 488, 699 S.E.2d at 519; Kone v. Wilson,
272 Va. 59, 62-63, 630 S.E.2d 744, 745-46 (2006); Nerri v.
Adu-Gyamfi, 270 Va. 28, 31, 613 S.E.2d 429, 430 (2005);
Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 283,
568 S.E.2d 671, 673 (2002). The plaintiff argues, however,
that a person may make another his agent for the purpose of
signing a pleading and that the signature of the agent, if
properly authorized by the principal, would be as effective as
if the principal had personally signed the pleading.
3
The plaintiff relies on authorities, including the
Restatement (Second) of the Law of Contracts and appellate
decisions concerning the sufficiency of signatures to satisfy
the Statute of Frauds, for the proposition that a signature
may be any symbol made or adopted with the intention to
authenticate the writing as that of the signer, including
initials, thumbprints, or arbitrary code signs. The plaintiff
contends that such signatures may be affixed by rubber stamp,
typing, photographic process, or by electronic or mechanical
printing. There are also a number of statutory provisions
relating to signatures that apply to specified documents, such
as wills. See, e.g., Code § 64.1-49.
Assuming, without deciding, that the plaintiff's
arguments may correctly express the law applicable to writings
other than pleadings filed in Virginia tribunals, we do not
consider them applicable to the present case. For the
protection of the public from harassment by frivolous,
oppressive, fraudulent or purely malicious litigation, the
General Assembly has chosen to hold attorneys and pro se
litigants to a high degree of accountability for the
assertions they make in judicial proceedings. To that end,
Code § 8.01-271.1 contains the following language:
The signature of an attorney or party
constitutes a certificate by him that (i) he has
read the pleading, motion, or other paper, (ii) to
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the best of his knowledge, information and belief,
formed after reasonable inquiry, it is well grounded
in fact and is warranted by existing law or a good
faith argument for the extension, modification, or
reversal of existing law, and (iii) it is not
interposed for any improper purpose, such as to
harass or to cause unnecessary delay or needless
increase in the cost of litigation. If a pleading,
written motion, or other paper is not signed, it
shall be stricken unless it is signed promptly after
the omission is called to the attention of the
pleader or movant.
To similar effect, Rule 1:4(a) provides: “Counsel tendering a
pleading gives his assurance as an officer of the court that
it is filed in good faith and not for delay.” The Virginia
Rules of Professional Conduct also prohibit the assertion of
frivolous claims or defenses by lawyers. See e.g., Rule 3.1
(addressing "Meritorious Claims And Contentions"). Because of
the strong public policy considerations underlying those
statutory provisions and rules, we construe them to require
that a lawyer who files a pleading in a Virginia tribunal must
append his personal, handwritten signature to the pleading. 2
The statute and rules discussed above have prescribed that
requirement to ensure that a lawyer filing a pleading may be
2
Rule 1:5 clearly implies that a member or associate of a
law firm signing a pleading must do so in handwriting, by
providing that those signatures to (1) briefs and (2)
petitions for rehearing (and only those papers) may be printed
or typed and “need not be in handwriting.” Rules 1:17(b)(6)
and 1:17(d)(3) provide for explicit exceptions to this
requirement in cases filed electronically. Those exceptions
are inapplicable here.
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held fully accountable for any violation of those public
policy considerations the pleading may cause.
The plaintiff also contends that the circuit court erred
in failing to permit him to remedy the omission of Mr.
Andrews' signature on the complaint by adding it “promptly
after the omission is called to the attention of the pleader”
pursuant to the final sentence of the portion of Code § 8.01-
271.1 quoted above. The same question was presented in Kone.
In that case a complaint was signed by a person who was
neither a pro se plaintiff nor a licensed Virginia lawyer.
There, as here, the statute of limitations would have barred
the cause of action unless the addition of a proper signature
could be held to “relate back” to the date of the initial
pleading.
We held in Kone that Code §§ 8.01-6 through –6.2 govern
the “relation back” of amendments to pleadings and that those
sections authorize such amendments to relate back to the
filing of the initial pleading in only three situations: (1)
correction of a misnomer, (2) adding a party, or (3) adding a
claim or defense. Because supplying a missing signature was
not an amendment provided for by those sections, the trial
court did not err in refusing to permit the amendment. We
further observed that because the initial pleading was
invalid, there were no valid proceedings pending before the
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circuit court that could have been amended. Kone, 272 Va. at
63, 630 S.E.2d at 746. Those holdings govern the present
case.
Conclusion
Because neither a pro se plaintiff nor an attorney
licensed to practice law in Virginia signed the complaint, and
because that defect could not be cured by amendment, the
circuit court did not err in dismissing the complaint.
Accordingly, we will affirm the judgment.
Affirmed.
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