VIRGINIA:
In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond on Friday, the 17th day of April,
2009.
Timothy M. Barrett, Appellant,
against Record No. 081935
Circuit Court No. CL08-1511
Virginia State Bar, ex rel.
Second District Committee, Appellee.
Upon an appeal of right from a judgment
rendered by the Circuit Court of York County.
Upon consideration of the record, the briefs, the argument of
the appellant in proper person, and the argument of counsel for the
Virginia State Bar, ex rel. Second District Committee, the Court is
of opinion there is no error in the judgment appealed from.
On December 19, 2007, the Second District Subcommittee of the
Virginia State Bar certified two charges of misconduct against
Timothy M. Barrett involving violations of Rules 3.1 and 3.4 of the
Rules of Professional Conduct and served him with a copy of the
certification. He requested that the case be heard by a three-judge
court pursuant to Code § 54.1-3935. The Virginia State Bar then
filed a complaint against Barrett in the Circuit Court of York
County, pursuant to Part VI, § IV, Para. 13.I.1.a(1)(b) of the Rules
of the Supreme Court. A three-judge panel (the Panel), consisting
of Judge Cleo E. Powell, Judge Robert G. O’Hara, and Judge Arthur B.
Vieregg, was designated to hear the case, with Judge Powell
presiding.
The matter was heard by the Panel on July 31, 2008. At the
conclusion of the hearing, the Panel held that the State Bar had
failed to prove a violation of Rule 3.4 and dismissed that charge.
However, the Panel found that Barrett had violated Rule 3.1, which
provides in pertinent part as follows:
A lawyer shall not bring or defend a proceeding, or assert
or controvert an issue therein, unless there is a basis
for doing so that is not frivolous, which includes a good
faith argument for an extension, modification or reversal
of existing law.
For the violation of this Rule, the Panel imposed a sanction
of "[r]evocation of [Barrett’s] license to practice law in the
Commonwealth of Virginia, effective immediately."
STANDARD OF REVIEW
In our review of the Panel’s decision, we conduct an
independent examination of the record, considering the evidence and
the inferences fairly deducible therefrom in the light most
favorable to the State Bar, the prevailing party below, and we give
the Panel’s factual findings substantial weight and consider them
as prima facie correct. Anthony v. Virginia State Bar, 270 Va.
601, 608-09, 621 S.E.2d 121, 125 (2005). While not given the
weight of a jury verdict, the Panel’s conclusions will be sustained
unless they are not justified by the evidence or are contrary to
law. Id. at 609, 621 S.E.2d at 125.
BACKGROUND
At the time of the hearing before the Panel, Barrett was
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serving the second of two suspensions of his license to practice
law, totaling fifty-one months, for previous violations of the
Rules of Professional Conduct (the Rules). The violations occurred
in the course of prolonged litigation between Barrett and his
former wife, Jill Barrett, in which Barrett represented himself.
The litigation commenced with the filing of a divorce case in the
Circuit Court of the City of Virginia Beach after the parties
separated in 2001 and continued in the Circuit Court of Grayson
County during many hearings when Jill Barrett and the couple’s six
children later moved to her parents’ home in that county. Along
the way, the couple appeared before the Court of Appeals of
Virginia several times, as reflected in unpublished opinions, and
Barrett visited this Court several times, including appearances in
Barrett v. Virginia State Bar, 269 Va. 583, 611 S.E.2d 375 (2005)
(Barrett I), and Barrett v. Virginia State Bar, 272 Va. 260, 634
S.E.2d 341 (2006) (Barrett II).
MOTION TO DISMISS
Barrett also appeared pro se in the hearing before the Panel
in the present case. At the commencement of the hearing, he made a
motion to dismiss based upon two grounds, (1) because Barrett’s
license to practice law was suspended, he was a non-lawyer and
therefore the "Court lack[ed] jurisdiction to try a non-lawyer
under the rules of professional conduct," and (2) because the
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application of the "rules of professional conduct to a lawyer who
represents himself would violate the protection laws of the 14th
Amendment to the U.S. Constitution." The Panel denied the motion
to dismiss.
Jurisdiction
Barrett should be quite familiar with this Court’s treatment
of the interaction of the Rules and lawyers representing
themselves. In Barrett II, this Court upheld the finding of a
three-judge court that Barrett violated Rule 3.1 for "engaging in a
frivolous act" in asserting that opposing counsel and Barrett’s
wife were involved in a romantic relationship. 272 Va. at 270-71,
634 S.E.2d at 347. Representing himself, Barrett argued that the
Rules "apply only when a lawyer is representing a client, not when
a lawyer represents himself in a proceeding." Id. at 267, 634
S.E.2d at 345. This Court responded as follows:
Rules of statutory construction provide that language
should not be given a literal interpretation if doing so would
result in a manifest absurdity. Applying these Rules in the
manner Barrett suggests would result in such an absurdity.
The Rules of Professional Conduct are designed to insure the
integrity and fairness of the legal process. It would be a
manifest absurdity and a distortion of these Rules if a lawyer
representing himself commits an act that violates the Rules
but is able to escape accountability for such violation solely
because the lawyer is representing himself.
Id. at 267-68, 634 S.E.2d at 345. (Citations omitted.) It would
also be a manifest absurdity and a distortion of the Rules if they
are applied in the manner Barrett suggests here: A lawyer would be
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able to escape accountability for a violation of the Rules by using
a license suspension as a permit to offend even more.
We hold that a lawyer whose license is suspended is still an
active member of the bar and, although not in good standing, is
subject to the Rules. We are not alone in this view.
In the case of In re Morrissey, 305 F.3d 211 (4th Cir. 2002),
Morrissey, a lawyer licensed to practice in Virginia, was disbarred
by the United States District Court for the Eastern District of
Virginia for violations of the Virginia Code of Professional
Responsibility occurring while his license was suspended. Like
Barrett here, Morrissey argued that "the three judge . . . panel
had no jurisdiction over [him] to inquire into conduct which
occurred while [he] was suspended from the practice of law before
the district court." Id. at 215. The Fourth Circuit affirmed
Morrissey’s disbarment and stated as follows:
While none of the federal courts of appeals seem to have
considered this matter, and the opinion of no district court
on the subject has come to our attention, we note that all of
the States which have considered the question have come to the
same conclusion, which is that an attorney may be disbarred
for conduct which occurred during the time his license to
practice law is suspended.
Id. at 216. The decisions of ten states were cited, including
State ex rel Nebraska State Bar Ass’n v. Butterfield, 111 N.W.2d
543 (Neb. 1961). The Fourth Circuit then stated as follows:
The distinction between disbarment and suspension made in the
Butterfield case is apt, and we adopt it: "Disbarment is the
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severance of the status and privileges of an attorney, whereas
suspension is the temporary forced withdrawal from the
exercise of office, powers, prerogatives, and privileges of a
member of the bar."
Id. (quoting Butterfield, 111 N.W.2d at 546). We also consider the
Butterfield distinction apt, and we adopt it and hold that the
Panel had jurisdiction to apply the Rules to Barrett in his
suspended status.
Equal Protection
Barrett argues that "applying the Rules of Professional
Conduct to [him] while exercising his fundamental and inalienable
right to represent himself burdens him with additional strictures
that do not bind any other litigant under the exact same
circumstances, a burden that is forbidden by the Equal Protection
Clause of the 14th Amendment to the U.S. Constitution." Barrett
argues further that "while the Equal Protection Clause does not
forbid government classifications, it does keep government decision
makers from treating differently persons who are in all relevant
respects alike."
However, as the Panel noted in its order disbarring Barrett,
"an attorney representing himself is not alike in all aspects to a
pro se non-lawyer litigant by virtue of the fact that the lawyer is
a lawyer and is so by choice." Lawyers whose licenses to practice
have been suspended are of a class unto themselves and they are
subject to the Rules of Professional Conduct while non-lawyers who
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represent themselves are of an entirely different class and not
subject to the Rules.
The important consideration is whether a lawyer whose license
to practice has been suspended is treated like other lawyers whose
licenses have been suspended. This Court noted in a previous case
involving a claim that an act of the General Assembly violated the
Equal Protection Clause that "[a]n act is not invalid if within the
sphere of its operation all persons subject to it are 'treated
alike, under like circumstances and conditions, both in the
privileges conferred and in the liabilities imposed.' " Bryce v.
Gillespie, 160 Va. 137, 146, 168 S.E. 653, 656 (1933) (quoting
Hayes v. Missouri, 120 U.S. 68, 71-72 (1887)); see also Truax v.
Corrigan, 257 U.S. 312, 333 (1921)).
Barrett makes no claim that he is being treated unlike other
lawyers whose licenses to practice have been suspended.
Accordingly, we reject his argument that applying the Rules to him
violates the Equal Protection Clause.
RULE 3.1
Barrett is also familiar with the Rule 3.1 prohibition against
frivolous assertions not only from his visit here in Barrett II but
also from Barrett I, where this Court upheld his violation of the
Rule for asserting during his divorce case that he did not know and
was not married to Jill Barrett. In the present case, the issue
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Barrett is charged with frivolously asserting arose from an order
entered March 9, 2006, by the Circuit Court of Grayson County
involving the Barretts’ children. The order provided that "Jill
Barrett have sole legal and physical custody of the children and
that Timothy Barrett have visitation with the children once every
six weeks either on a Saturday or a Sunday from 8:00 a.m. to 6:00
p.m." ∗
Following entry of the March 9, 2006 order, Barrett repeatedly
asserted in the Circuit Court of Grayson County and in the Court of
Appeals of Virginia that, because the mother of the children was
awarded their "sole legal and physical custody," he is no longer
responsible for the payment of any support for them. He makes the
same assertion here. Barrett states that "[i]n the case of child
support, the whole issue has been subsumed by statute," and
"[t]hus, the merits or frivolity of [my] argument rises or falls on
the statute, not the Common Law."
Barrett cites Code § 20-124.1, which is entitled "Definitions"
and defines the term "[j]oint custody" as meaning "joint legal
custody where both parents retain joint responsibility for the care
and control of the child and joint authority to make decisions
concerning the child." The section defines the term "[s]ole
∗
On October 12, 2005, the custody of one of the six children
was placed with the Grayson County Department of Social Services so
only the five remaining children were affected by the March 9, 2006
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custody" as meaning that "one person retains responsibility for the
care and control of a child and has primary authority to make
decisions concerning the child."
Barrett also cites Code § 20-108.2 which is entitled
"Guidelines for determination of child support" and which in
subsection (B) contains extensive schedules for determining the
amount of child support which defines the term "Number of children"
as meaning "the number of children for whom the parents share joint
responsibility and for whom support is being sought." Barrett then
argues that "joint legal responsibility" is equated with "joint
legal custody" and that, since the March 9, 2006 order vested sole
legal custody of the children in his ex-wife, "he had no legal
custody and thus, no shared legal responsibility to support any of
his children under Section 20-108.2 of the Code of Virginia."
We disagree with Barrett that subsection (B) of Code § 20-108.2
relieves him of responsibility for supporting his children. In our
opinion, subsection (B) applies to parents who have joint custody of
their children and thus have joint responsibility for their support,
with the amount of support being determined from the extensive
tables of "MONTHLY BASIC CHILD SUPPORT OBLIGATIONS," which use
combined monthly income of the parents and the number of children
involved as defined by the language, " 'Number of children' means
the number of children for whom the parents share joint legal
responsibility and for whom support is being sought."
order. 9
On the other hand, when, as here, sole custody is involved,
subsection (G) of Code § 20-108.2 applies. Indeed, subsection (B)
expressly recognizes that "subdivision G 1" applies to child support
obligation in sole custody cases. Subsection (G)(1), entitled "Sole
custody support," provides as follows:
The sole custody total monthly child support obligation shall
be established by adding (i) the basic monthly child support
obligation, as determined from the schedule contained in
subsection B, (ii) costs for health care coverage to the extent
allowable by subsection E, and (iii) work-related child-care
costs and taking into consideration all the factors set forth
in subsection B of § 20-108.1. The total monthly child support
obligation shall be divided between the parents in the same
proportion as their monthly gross incomes bear to their monthly
combined gross income. The monthly obligation of each parent
shall be computed by multiplying each parent’s percentage of
the parents’ monthly combined gross income by the total monthly
child support obligation.
However, the monthly obligation of the noncustodial parent
shall be reduced by the cost for health care coverage to the
extent allowable by subsection E when paid directly by the
noncustodial parent. Unreimbursed medical and dental expenses
shall be calculated and allocated in accordance with subsection
D.
(Emphasis added.)
Further indication that subsection (B) of Code § 20-108.2 is
intended to apply to joint custody cases is provided by the presence
in the Code section of subsection (G)(2), which applies to "Split
custody support," and subsection (G)(3), which applies to "Shared
custody support," with each providing a different means of
determining the amount of support. Thus, the General Assembly has
run the full gamut of types of custody, with each treated
differently.
Barrett would have us treat him as a stranger to his children
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and as one whose parental rights have been terminated. But Barrett
is not a stranger to his children; the March 9, 2006 order entered
by the Circuit Court of Grayson County explicitly granted him the
important privilege of visitation with his children. And parental
rights may be terminated only by adoption or by following the
procedures for terminating such rights outlined in Code §§ 16.1-
278.3 and 16.1-283. Neither course has been pursued here.
CONCLUSION
We hold that for Barrett to assert persistently and repeatedly
in the Circuit Court of Grayson County and in the Court of Appeals
of Virginia that he is no longer required to support his children is
completely frivolous, in light of the facts and the law of this
case. Accordingly, we will affirm the Panel’s order revoking
Barrett’s license to practice law in this Commonwealth. The
appellant shall pay to the appellee thirty dollars damages.
This order shall be published in the Virginia Reports and shall
be certified to the said circuit court.
A Copy,
Teste:
Patricia L. Harrington, Clerk
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