Williams & Connolly v. People

PRESENT: All the Justices

WILLIAMS & CONNOLLY, LLP, ET AL.

v. Record Nos. 052376
and 061195 OPINION BY JUSTICE BARBARA MILANO KEENAN
April 20, 2007

PEOPLE FOR THE ETHICAL TREATMENT OF
ANIMALS, INC.

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge

In this appeal, we consider whether the circuit court

abused its discretion in imposing sanctions under Code § 8.01-

271.1 against six attorneys and their respective law firms based

on motions they filed in pending litigation. Additionally, we

consider whether the circuit court erred in revoking the pro hac

vice admission of one of those attorneys.

In May 2002, People for the Ethical Treatment of Animals,

Inc. (PETA) filed a motion for judgment against Kenneth Feld,

Richard Froemming, Joel Kaplan, Charles Smith, and John Does 1,

2, and 3, alleging a violation of the Virginia Trade Secrets Act

and common law and statutory conspiracy (PETA I). Feld was

dismissed from that action by nonsuit, but the litigation in

PETA I remained pending with respect to the other defendants.

In January 2004, PETA filed a second motion for judgment against

Feld and John Does 1, 2, and 3, which contained allegations

similar to those in PETA I (PETA II).

1
 Feld made a motion to consolidate PETA I and PETA II, and

in December 2004, Judge David T. Stitt conducted a hearing in

the Circuit Court of Fairfax County (circuit court) on Feld’s

motion (the December hearing). At the December hearing, Judge

Stitt advised the attorneys that if they needed to contact his

law clerk by telephone, they should make certain that attorneys

representing both parties participated in the telephone

conference call. The circuit court also advised the parties

that the “general” rules applicable to all cases would govern

the present litigation.

The circuit court granted Feld’s motion to consolidate the

trials of PETA I and PETA II, but denied his motion to

consolidate discovery in the two cases. After his motion to

consolidate was denied, Feld made a motion requesting access to

the discovery in PETA I, which the circuit court also denied.

As part of the discovery in PETA I, PETA sought to depose

Steven P. Kendall in Alexandria, Virginia on February 11, 2005.

PETA did not notify Feld of the deposition because the

deposition related only to discovery in PETA I, in which Feld

was no longer a party. Apparently aware of PETA’s intent to

depose Kendall on that date, Feld issued a subpoena for Kendall

to appear in Fairfax on the same date. PETA made a motion to

quash Feld’s subpoena, which the circuit court granted, holding

that Feld’s subpoena was an attempt to circumvent the court’s

2
prior ruling refusing to consolidate discovery in the two

actions.

On February 18, 2005, PETA filed in the Clerk’s Office of

the Circuit Court of Fairfax County a petition for rule to show

cause (the petition), requesting that William B. Porter and

Joseph G. Petrosinelli, the attorneys who had issued the

subpoena for Kendall on behalf of Feld, be held in contempt of

court for violating the circuit court’s several orders refusing

to consolidate discovery in the two cases. PETA did not notify

Feld or his attorneys that PETA had filed the petition.

On March 14, 2005, the circuit court issued a rule to show

cause based on PETA’s petition (the March rule to show cause).

The March rule to show cause directed Porter and Petrosinelli to

demonstrate why they should not be held in contempt of court for

violating the court’s orders declining to consolidate discovery

in PETA I and PETA II.

The March rule to show cause was issued on Monday, March

14, 2005. On Friday, March 11, 2005, one “business” day before

the rule issued, following a hearing on a matter in PETA I (the

March hearing), PETA’s counsel engaged in an unrecorded bench

conference with Judge Stitt. Feld’s counsel were not present at

the hearing in question because they no longer were involved in

PETA I. As a result, Feld’s counsel did not know what, if

anything, PETA’s counsel discussed with Judge Stitt.

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 On April 8, 2005, Porter, Petrosinelli, and four other

attorneys representing Feld (collectively, the Feld Attorneys)

filed a motion to recuse and a motion to vacate, each with

accompanying memoranda (the Feld Attorneys’ motions). The Feld

Attorneys argued in their motion to recuse that Judge Stitt had

violated his ethical duties by considering PETA’s ex parte

petition and issuing the March rule to show cause. The Feld

Attorneys also alleged in that motion that Judge Stitt had

engaged in unethical conduct because he “kept the [p]etition

secret for nearly a month.”

The Feld Attorneys alleged that, in addition to Judge

Stitt’s “inexcusable” consideration of PETA’s ex parte petition,

Judge Stitt had engaged in other impermissible ex parte

communications that required his recusal, including a telephone

call PETA placed to Judge Stitt’s chambers and two statements

PETA allegedly made at the unrecorded bench conference during

the March hearing in PETA I. The Feld Attorneys also alleged

that PETA’s counsel made a statement at the March hearing in

PETA I that he planned to contact Judge Stitt by telephone to

set a date for the consolidated trials of PETA I and PETA II.1

The Feld Attorneys conceded in the motion to recuse that they

1
The motion to recuse quoted a portion of the hearing in
which Judge Stitt responded to PETA’s request to set a trial
date, stating, “Get everyone on a conference call on Monday
morning . . . if you want to make that motion. . . .”

4
were not present at the March hearing in PETA I, and that they

did not know what transpired at the bench conference. The Feld

Attorneys further conceded that they did not know if PETA, in

fact, had placed any telephone calls to Judge Stitt after the

March hearing.

The Feld Attorneys asserted in the motion to recuse that

Judge Stitt’s actions demonstrated his “actual bias” in favor of

PETA because his consideration of PETA’s petition was “wholly

untenable under fundamental concepts of contempt law” and

“show[ed] at least an appearance of favoritism toward PETA

because he had previously warned both sides to refrain from

engaging in ex parte contacts with the [c]ourt.” In the motion

to recuse, the Feld Attorneys accused Judge Stitt of “ignoring

the basic tenets of contempt law,” “ignor[ing] the law in order

to give a strategic advantage to PETA,” and “endors[ing] the

[March rule to show cause] merely because PETA requested that he

do so.” The Feld Attorneys further asserted that Judge Stitt’s

“finding of [an] apparent violation [of the court’s discovery

order] is itself preposterous given the most basic law on

contempt.” In the memorandum in support of the motion to

recuse, the Feld Attorneys asserted that “only a judge with bias

or predisposition against a party could have issued [the March

rule to show cause].”

5
 In the motion to vacate, the Feld Attorneys argued that the

March rule to show cause should be dismissed because

Petrosinelli and Porter did not violate any discovery order of

the circuit court. The Feld Attorneys additionally argued in

the motion to vacate that the March rule to show cause should be

“discharged because of the improper ex parte procedures by which

it was sought and entered,” and incorporated by reference the

arguments set forth in the motion to recuse.

PETA filed a motion for sanctions and an amended

supplemental motion for sanctions (collectively, motions for

sanctions), requesting that the circuit court impose sanctions

on the Feld Attorneys and their law firms, Williams & Connolly

LLP and Blankingship & Keith, PC, based on the Feld Attorneys’

motions. PETA argued that sanctions under Code § 8.01-271.1

were appropriate because the Feld Attorneys’ motions were not

grounded in fact and were not warranted by law, and because

pleadings and motions filed with an improper purpose are subject

to sanctions under clause (iii) of the second paragraph of Code

§ 8.01-271.1. PETA further asserted that the Feld Attorneys’

motions were filed “in order to insult” the circuit court and

constituted “a frontal attack” on the court.

The Feld Attorneys filed a motion in opposition to PETA’s

motions for sanctions, arguing that they did not make fraudulent

assertions in the motion to recuse because they did not allege

6
that the ex parte communications between PETA and Judge Stitt

“actually” occurred, but only that the communications

“apparently” occurred. The Feld Attorneys further asserted that

they were “forced to speculate” about the contents of the

communications because they were no longer participants in the

proceedings in PETA I.

The circuit court conducted a hearing in April 2005 on the

March rule to show cause (the April hearing). Feld argued at

the April hearing that the circuit court should consider the

motion to vacate and the motion to recuse, which were filed the

day before the April hearing, prior to ruling on the March rule

to show cause. Judge Stitt agreed, and deferred ruling on the

March rule to show cause until the circuit court had an

opportunity to consider the motion to recuse and the motion to

vacate, and PETA had been provided an opportunity to file briefs

in response. Although the April hearing did not concern the

merits of the motion to recuse or the motion to vacate, Judge

Stitt explained at that hearing that rules to show cause are

routinely issued in the Circuit Court of Fairfax County based on

ex parte petitions that are filed without notice to the opposing

party.

In May 2005, the circuit court conducted a hearing on the

Feld Attorneys’ motions (the May hearing). Judge Stitt

concluded that the Feld Attorneys’ motions were filed “without

7
reasonable legal and factual inquiry.” Judge Stitt also noted

at the May hearing, “I’ve never seen anything like [the language

in the Feld Attorneys’ motions] outside of something filed by

pro se [litigants] . . . . And the tone of that motion to recuse

. . . it’s unacceptable, it’s contemptuous . . . it’s full of

distortions of different things, twisting the meanings of

things.”

The circuit court indicated that based on the Feld

Attorneys’ motions, the court planned to impose sanctions

against the Feld Attorneys but delayed ruling on the amount of

the award. The circuit court additionally took under advisement

the possibility of imposing criminal contempt penalties.

Following the May hearing, the circuit court denied both the

motion to recuse and the motion to vacate.

In July 2005, the circuit court, acting sua sponte, issued

a rule to show cause (the July rule to show cause) on the issue

whether criminal contempt penalties were warranted based on the

Feld Attorneys’ motions and Feld’s opposition to PETA’s motions

for sanctions. The July rule to show cause also directed the

Feld Attorneys to show cause why the pro hac vice admission of

four of the Feld Attorneys, including Barry S. Simon, should not

be revoked.

The circuit court conducted a hearing on PETA’s motions for

sanctions in August 2005 (the August hearing). At the hearing,

8
PETA’s counsel explained the numerous sources PETA had consulted

prior to filing the petition without notifying Feld, including

placing a telephone call to a deputy clerk of the circuit court

to determine the customary practice for filing petitions for

rules to show cause.

At the August hearing, the circuit court stated that it

planned to impose sanctions under Code § 8.01-271.1 based on its

findings that the Feld Attorneys’ motions were not grounded in

fact, were not warranted by law, and contained “contemptuous”

language. The circuit court dismissed the July rule to show

cause, stating that the court was declining to impose criminal

contempt penalties under Code § 18.2-456. The circuit court

also revoked Simon’s pro hac vice admission based on Simon’s

shared responsibility for the content of the Feld Attorneys’

motions.

After the August hearing, the circuit court granted PETA’s

motions for sanctions and entered an order revoking Simon’s pro

hac vice admission and imposing sanctions against the Feld

Attorneys and their law firms in the amount of $40,000. On the

same day, the circuit court issued an order holding Petrosinelli

in contempt of court based on the March rule to show cause and

9
dismissing the March rule with respect to Porter.2 The Feld

Attorneys appeal the circuit court’s imposition of sanctions and

revocation of Simon’s pro hac vice admission to the bar of this

Commonwealth.

Analysis

We review the circuit court’s imposition of sanctions under

Code § 8.01-271.1 pursuant to an abuse of discretion standard.

Ford Motor Co. v. Benitez, 273 Va. 242, 249, 639 S.E.2d 203, 206

(2007); Flora v. Shulmister, 262 Va. 215, 220, 546 S.E.2d 427,

429 (2001); Flippo v. CSC Assocs. III, L.L.C., 262 Va. 48, 65,

547 S.E.2d 216, 227 (2001). The second paragraph of Code

§ 8.01-271.1 sets forth the three certifications made by an

attorney upon signing a pleading:

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 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.

A court’s authority to award sanctions under Code § 8.01-271.1

is explicitly stated in the statute:

2
The circuit court’s contempt finding against Petrosinelli
is challenged in a separate appeal, Petrosinelli v. People for
the Ethical Treatment of Animals, 273 Va. ___, ___ S.E.2d ___
(2007).

10
 If a pleading, motion, or other paper is signed or
made in violation of this rule, the court, upon motion or
upon its own initiative, shall impose upon the person who
signed the paper or made the motion, a represented party,
or both, an appropriate sanction, which may include an
order to pay to the other party or parties the amount of
the reasonable expenses incurred because of the filing of
the pleading, motion, or other paper or making of the
motion, including a reasonable attorney’s fee.

The three enumerated certifications contained in the second

paragraph of Code § 8.01-271.1 are stated in the conjunctive.

Thus, under the terms of the statute, an attorney makes all

three representations when signing the described documents.

Code § 8.01-271.1; Benitez, 273 Va. at 251, 639 S.E.2d at 207.

With regard to acts of attorneys, the manifest purpose of the

statute is to hold attorneys, who are officers of the court,

responsible for specified failures involving the integrity of

the documents that they have signed.

Because an attorney certifies compliance with all three

enumerated clauses of the second paragraph of Code § 8.01-271.1

when signing a motion, pleading, or paper, the attorney’s

failure to comply with any one of these statutory requirements

invokes the sanctions provisions of the statute. Benitez, 273

Va. at 251, 639 S.E.2d at 207. Under the plain language of the

statute, a court “shall impose . . . an appropriate sanction”

when the record shows that a pleading, motion, or other paper is

“signed or made in violation of this rule.” Code § 8.01-271.1;

see Benitez, 273 Va. at 249, 639 S.E.2d at 206; Flora, 262 Va.

11
at 220, 546 S.E.2d at 429; Oxenham v. Johnson, 241 Va. 281, 287,

402 S.E.2d 1, 4 (1991). Therefore, in reviewing the circuit

court’s imposition of sanctions in the present case, we consider

whether the record supports a conclusion that the Feld

Attorneys’ motions (the motions) violated any one of the three

statutory requirements found in the second paragraph of the

statute.

Clause (i) of the second paragraph, which states that an

attorney’s signature certifies that he has read a motion,

pleading, or paper before signing the document, is not at issue

in this appeal. Thus, we focus our attention on clauses (ii)

and (iii) of the second paragraph of Code § 8.01-271.1. We

employ an “objective standard of reasonableness” in evaluating

the written representations the Feld Attorneys made in the

motions. Benitez, 273 Va. at 253, 639 S.E.2d at 208; Flippo,

262 Va. at 65-66, 547 S.E.2d at 227. Pursuant to that standard,

we consider whether “after reasonable inquiry, [counsel] could

have formed a reasonable belief that the pleading[s] [were] well

grounded in fact, warranted by existing law or a good faith

argument for the extension, modification, or reversal of

existing law, and not interposed for an improper purpose.”

Flippo, 262 Va. at 65-66, 547 S.E.2d at 227; accord, Gilmore v.

Finn, 259 Va. 448, 466, 527 S.E.2d 426, 435-36 (2000).

12
 Clause (ii) — Factual Basis

The Feld Attorneys argue that their motions were well

grounded in fact within the meaning of clause (ii) of the second

paragraph of Code § 8.01-271.1. Although the motion to recuse

contains numerous allegations, the Feld Attorneys in their brief

filed in this Court rely on five essential alleged facts that

they state “provided the impetus for the [m]otion to [r]ecuse.”3

The Feld Attorneys contend that the motions were well grounded

in fact because they were supported by the following alleged

facts: 1) PETA submitted ex parte and without notice the

petition for a rule to show cause making serious charges against

two of the Feld Attorneys; 2) PETA allegedly did not file the

petition with the Clerk of the circuit court but submitted the

petition directly to Judge Stitt; 3) Judge Stitt allegedly held

the petition for three weeks without notifying the Feld

Attorneys of the petition; 4) Judge Stitt considered the ex

parte petition for a rule to show cause after having admonished

all attorneys to refrain from ex parte contacts in the case; and

5) Judge Stitt issued the rule to show cause one “business” day

after allegedly conducting an ex parte bench conference with

PETA’s counsel in a trial in which the Feld Attorneys were not

involved. The Feld Attorneys assert that these alleged facts

3
As set forth above, the additional factual bases the Feld
Attorneys allege in support of their motions were actions taken
by PETA, not by Judge Stitt.

13
provided an objectively reasonable factual basis for their

recusal request. We disagree with this conclusion.

Initially, we are compelled to observe that the Feld

Attorneys’ brief filed with this Court contains a striking

omission. The Feld Attorneys do not mention the fact that in

the motions, they used language that directly accused Judge

Stitt of unethical conduct. These allegations of unethical

conduct were stark and sweeping, stating that Judge Stitt

“[v]iolated [h]is [e]thical [o]bligations,” “ignored his ethical

responsibilities,” and “acted directly counter to [those ethical

responsibilities].” We therefore must consider the Feld

Attorneys’ arguments in the additional context of those written

statements contained in the motions.

Upon review of these allegations, we conclude that the

record does not support the Feld Attorneys’ argument that there

was an adequate factual basis for the motions. At least three

of the alleged facts on which the Feld Attorneys rely are

inaccurate. Other facts that the Feld Attorneys cite involve

conduct attributable only to PETA, not to Judge Stitt. In

addition, the Feld Attorneys’ argument relies on speculation

and, thus, is self-refuting of a conclusion that the motions

were well grounded in fact.

The first alleged fact on which the Feld Attorneys rely is

that PETA filed the petition for a rule to show cause ex parte

14
and without notice. This filing, however, was an action taken

by PETA, not by Judge Stitt. Thus, that action was not relevant

to the issues whether Judge Stitt had engaged in unethical

conduct or had shown actual bias in favor of PETA and provided

no factual support for the Feld Attorneys’ assertion that Judge

Stitt had acted in such a manner.4

The second alleged fact on which the Feld Attorneys rely is

their assertion that counsel for PETA did not file the petition

for a rule to show cause in the Clerk’s Office and instead

submitted the petition directly to Judge Stitt. Although

counsel for PETA indicated in a “cover” letter to the petition

dated February 18, 2005, that he intended to deliver the

petition to Judge Stitt, the record before us shows that the

petition actually was filed in the Clerk’s Office on February

18, 2005. This filing in the Clerk’s Office is shown by the

Clerk’s date stamp, which appears on the face of the petition in

the right-hand corner of the pleading. The “cover” letter also

was filed in the Clerk’s Office on February 18, 2005, as shown

by the Clerk’s date stamp appearing in the right-hand corner of

4
The Feld Attorneys assert in their brief to this Court
that they merely alleged in the motion to recuse that Judge
Stitt’s actions created an “appearance” of bias. In fact, the
motion to recuse alleged on at least five separate occasions
that Judge Stitt’s consideration of the petition suggested or
indicated his “actual bias.” In addition, the Feld Attorneys
argued that various actions undertaken by Judge Stitt were an
“indication of Judge Stitt’s lack of impartiality,” and that
Judge Stitt showed “favoritism toward PETA.”

15
that document. Thus, the record before us refutes the Feld

Attorneys’ contention that the petition was not filed in the

Clerk’s Office but was “filed” privately with Judge Stitt. We

also observe that because the filing of the petition was an

action taken by PETA, not by Judge Stitt, that act of filing

could not have provided a factual basis for arguing that Judge

Stitt acted unethically or had shown actual or apparent bias in

favor of PETA.

Nevertheless, the Feld Attorneys advance as a third alleged

fact supporting the motion to recuse their contention that Judge

Stitt “held” the petition for a rule to show cause in his

chambers for three weeks. They specifically alleged in their

motion to recuse that Judge Stitt “kept the petition secret for

nearly a month.” The record does not support these assertions.

There is no evidence in the record that Judge Stitt

actually received the petition the day it was filed. The record

likewise does not show the date on which Judge Stitt received

the petition for review. Moreover, the record shows that no one

“held” the petition “in secret” for several weeks. Instead, as

stated above, the record shows that the petition was filed in

the Clerk’s Office on February 18, 2005, the same day that the

petition was delivered to the courthouse. Thus, the Feld

Attorneys had no basis in fact for alleging on April 8, 2005,

16
the date of the motions, that Judge Stitt improperly “held” the

petition “in secret” for any period of time.

The fourth alleged fact cited by the Feld Attorneys as

supporting the motions is that PETA’s counsel and Judge Stitt

participated in an unrecorded bench conference on the Friday

before the Monday date when Judge Stitt entered the rule to show

cause. This unrecorded conference occurred during a hearing in

PETA I in which the Feld Attorneys were not involved, and they

concede that at the time they filed the motions, they did not

know the substance of the unrecorded bench conversation. Thus,

at the time they filed the motions, the Feld Attorneys merely

speculated, without any basis in fact, that the timing of the

bench conference provided a factual basis in support of the

motions.

The fifth alleged fact on which the Feld Attorneys rely is

their contention that Judge Stitt issued the rule to show cause

after admonishing “the parties against any ex parte contacts,

including even ministerial contacts with his law clerk.” In his

directive of December 9, 2004, Judge Stitt stated:

[I]f you need to contact my law clerk, . . . just get
somebody from the other side on the line. The way this
case is going, we’re going to be real careful with things
like that. There’s been an awful lot of correspondence to
the court and things, and we’re just going to have to
formalize it a little bit. . . . The general rules
regarding filings of motions, long briefings, and
scheduling motions and so on, they apply to this case just

17
 like they apply to everything else. They need to be abided
by. (Emphasis added.)

This admonition plainly was intended to prohibit ex parte

telephone communications with Judge Stitt’s law clerk. Judge

Stitt’s further comments demonstrate that he did not intend to

alter in any other manner the routine practices of the Circuit

Court of Fairfax County. Thus, Judge Stitt’s issuance of the

March rule to show cause after placing restrictions on the

parties’ telephone access to his law clerk did not provide a

factual basis for the Feld Attorneys’ assertions in the motions

that Judge Stitt had acted unethically and with actual bias in

issuing the March rule.

We hold that these five bases advanced by the Feld

Attorneys fail to establish a well grounded factual foundation

for the motions. The Feld Attorneys’ failure to comply with

this requirement of clause (ii) of the second paragraph of Code

§ 8.01-271.1, of itself, supports the circuit court’s imposition

of sanctions. Benitez, 273 Va. at 250-51, 639 S.E.2d at 207.

Although this holding ordinarily would end further

consideration of the arguments raised in this appeal, we

nevertheless address the Feld Attorneys’ remaining arguments

concerning the other provisions of Code § 8.01-271.1. In view

of the serious allegations the Feld Attorneys made against Judge

Stitt in the motions, we conclude that it is appropriate to have

18
a complete record addressing all the matters raised in this

appeal.

Clause (ii) — Basis in Law

The Feld Attorneys argue that the motions also complied

with the “law” component of clause (ii), because the motions

were warranted by existing law or by a good faith argument for

the extension, modification, or reversal of existing law. See

Code § 8.01-271.1. Further narrowing the focus of this

provision, the Feld Attorneys contend that the motions were

warranted by existing law.

In support of their argument, the Feld Attorneys rely

primarily on two Rules of this Court, Rule 1:12 and Rule 4:15,

and on Canon 3(B)(7) of the Canons of Judicial Conduct. The

Feld Attorneys contend that the two cited Rules of Court

provided an objectively reasonable basis for the motions because

those Rules collectively require that counsel of record in a

case be given notice and provided copies of all pleadings,

motions, and other papers filed in a pending case. The Feld

Attorneys also assert that Canon 3(B)(7) of the Canons of

Judicial Conduct, which severely restricts a judge’s

consideration of ex parte communications, provided an

objectively reasonable basis in law supporting the motions. We

disagree with these arguments.

19
 Initially, we observe that Rule 1:12 requires that an

attorney serve other counsel of record with copies of all

pleadings, motions, and other papers “not required to be served

otherwise.” Id. This Rule imposes a duty on counsel, not on

the circuit court judge hearing a case. Thus, while the Feld

Attorneys may have had a legal basis under Rule 1:12 for arguing

that Judge Stitt committed error in considering the petition for

a rule to show cause when PETA had not served a copy of the

petition on the Feld Attorneys, Rule 1:12 did not provide an

objectively reasonable basis on which to argue that Judge Stitt

had violated his ethical duties and had shown actual bias in

considering the petition.

The provisions of Rule 4:15 likewise did not provide an

objectively reasonable basis supporting the Feld Attorneys’

assertion that Judge Stitt violated his ethical obligations and

had shown actual bias in considering the petition for a rule to

show cause. Like Rule 1:12, the provisions of Rule 4:15 cited

by the Feld Attorneys assign duties to counsel of record, not to

a circuit court judge hearing a case. Thus, in providing that

“[r]easonable notice of the presentation of a motion shall be

served on all counsel of record,” Rule 4:15(b) imposes on

counsel filing a written motion the duty to notify opposing

counsel of the intent to argue a matter before the circuit

court.

20
 Because the cited provisions in Rules 1:12 and 4:15 do not

impose any duties on a circuit court judge, those provisions did

not provide an objectively reasonable basis on which to argue

that Judge Stitt had violated his ethical responsibilities and

had shown actual bias. Therefore, we consider the remaining

authority cited by the Feld Attorneys, Canon 3(B)(7) of the

Canons of Judicial Conduct, which provides in material part:

A judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made to
the judge outside the presence of the parties concerning a
pending or impending proceeding except that:

(a) Where circumstances require, ex parte
communications for scheduling, administrative purposes
or emergencies that do not deal with substantive
matters or issues on the merits are authorized;
provided:
(i)The judge reasonably believes that no
party will gain a procedural or tactical
advantage as a result of the ex parte
communication, and (ii) the judge makes
provision promptly to notify all other
parties of the substance of the ex parte
communication and allows an opportunity to
respond.

Although the Canons of Judicial Conduct are not a source of

law, we nevertheless consider the cited provision from the

Canons because they are “instructive” on a central issue before

us, namely, whether the Feld Attorneys had an objectively

reasonable basis in law for contending that Judge Stitt violated

his ethical duties in considering the ex parte petition and in

issuing the rule to show cause. See Wilson v. Commonwealth, 272

21
Va. 19, 28, 630 S.E.2d 326, 331 (2006). Thus, we review Canon

3(B)(7) to determine whether it provided an objectively

reasonable basis for the Feld Attorneys’ motions.

We first observe that Canon 3(B)(7) addresses “ex parte

communications.” This provision plainly is intended to restrict

private oral and written communications with a judge and does

not encompass pleadings that have been filed as a matter of

public record with the clerk of a circuit court.5 In contrast to

private communications prohibited under Canon 3(B)(7), a rule to

show cause is a procedural mechanism, employed as part of the

public record in a case, that serves to place matters at issue

before a court. A court’s entry of such a rule affords all

parties in a case an opportunity to be heard on the merits of

the allegations prior to the court making any substantive

findings of fact or any conclusions of law. See James v. James,

263 Va. 474, 478-79, 562 S.E.2d 133, 135-36 (2002).

The question remains, however, whether after reasonable

inquiry by the Feld Attorneys, this provision in Canon 3(B)(7)

provided an objectively reasonable basis for their argument that

Judge Stitt’s consideration of the petition and issuance of the

rule to show cause was a violation of his ethical duties. See

5
The “commentary” to Cannon 3(B)(7) does not discuss or
refer to pleadings as a “communication.”

22
Code § 8.01-271.1. We conclude that the Feld Attorneys’

argument based on Canon 3(B)(7) was not objectively reasonable.

Reasonable inquiry by the Feld Attorneys would have shown

that the routine practice of the Circuit Court of Fairfax County

is to consider ex parte petitions for a rule to show cause and

to issue rules to show cause upon the filing of a sufficient

affidavit by the petitioning party. At the time the Feld

Attorneys made the motions, there was a long-standing published

order entered in the Circuit Court of Fairfax County stating:

“It is the practice of this Court to issue summons on a rule to

show cause upon affidavit or ex parte evidence without notice.

The [r]ule simply puts the matter at issue . . . . Notice to the

opposing party always is given thereafter by service of process

and opportunity to be heard.” Fairfax County v. Alward, 33 Va.

Cir. 28, 28 (Va. Cir. Ct. 1993).

The published order in Alward, available upon simple legal

research, would have informed the Feld attorneys that Judge

Stitt merely followed the routine practice of the Circuit Court

of Fairfax County when he considered the petition and issued the

rule to show cause. In addition, the record shows that counsel

for PETA obtained this same information concerning this routine

practice of the Circuit Court of Fairfax County by placing a

telephone call to a deputy clerk of the circuit court.

23
 We are not persuaded by the Feld Attorneys’ argument

distinguishing the holding in Alward on the basis that it

involved a chancery suit, rather than an action at law.6 The

holding in Alward was not based on such a distinction.

Moreover, even if this distinction provided the Feld Attorneys a

basis for arguing that Judge Stitt committed error in

considering and issuing the rule to show cause in an action at

law, that distinction did not provide an objectively reasonable

basis for arguing that Judge Stitt acted unethically in doing

so.

We emphasize that the legal issue the Feld Attorneys were

required to consider, in drafting the motions alleging unethical

conduct against Judge Stitt, was whether there was a reasonable

basis in law for arguing that Judge Stitt had engaged in

unethical conduct, not whether there was a reasonable basis for

arguing that the routine practice of the Circuit Court of

Fairfax County was erroneous because that practice was in

conflict with other legal authority. In their argument before

this Court, the Feld Attorneys confuse these two separate

issues.

Although the Feld Attorneys correctly observe that local

practice cannot alter substantive rights of parties provided by

6
As of January 1, 2006, Virginia abolished the procedural
distinctions between actions at law and suits in chancery.

24
statute, Rules of Court, and case law of this Court, see Lee v.

Mulford, 269 Va. 562, 566-67, 611 S.E.2d 349, 351 (2005), the

Feld Attorneys did not argue in their motions that the local

practice of the Circuit Court of Fairfax County conflicted with

such legal authority. Instead, the Feld Attorneys argued that

Judge Stitt acted unethically, when reasonable inquiry on their

part would have shown that there was no basis for such a charge.

Thus, even if the Feld Attorneys were warranted by law in

advocating for the reversal of the routine practice of the

Circuit Court of Fairfax County, their allegations were not

objectively reasonable in accusing Judge Stitt of unethical

conduct simply because he followed that routine practice.

Accordingly, we hold that the record supports the circuit

court’s award of sanctions on this separate basis that the Feld

Attorneys’ motions were not warranted by existing law or a good

faith argument for the extension, modification, or reversal of

existing law, as required by clause (ii) of the second paragraph

of Code § 8.01-271.1.

Clause (iii) – Improper Purpose

We next consider whether the provisions of clause (iii) of

the second paragraph of Code § 8.01-271.1 provided an

independent basis for the circuit court’s award of sanctions

against the Feld Attorneys. The Feld Attorneys argue that Judge

Stitt did not find that the motions were filed for an “improper

25
purpose.” The Feld Attorneys note that while Judge Stitt

referenced language in clause (ii) of the second paragraph of

Code § 8.01-271.1 when imposing sanctions, he did not make a

parallel reference to language in clause (iii). Alternatively,

the Feld Attorneys assert that the motions were not filed for an

improper purpose but were filed “for the manifest and valid

purpose of seeking the Trial Judge’s recusal.” We disagree with

the Feld Attorneys’ arguments.

Judge Stitt stated that he was imposing sanctions under

Code § 8.01-271.1 and, although he did not make specific

reference to the language of clause (iii) when stating his

decision, the record is replete with references in which he

described the “unacceptable” and “contemptuous” character of the

Feld Attorneys’ motions. In addition, in rendering his

decision, Judge Stitt stated that he was granting PETA’s motion

for sanctions, which was based on both clauses (ii) and (iii) of

the second paragraph of Code § 8.01-271.1. We therefore

consider whether the record supports a conclusion that the Feld

Attorneys violated Code § 8.01-271.1 on the ground that the

motions were filed for an improper purpose.

The fact that the Feld Attorneys were seeking the recusal

of the trial judge did not permit them to use language that was

derisive in character. Yet they liberally employed such

language. As stated above, the Feld Attorneys alleged in the

26
motion to recuse that Judge Stitt “ignor[ed] the basic tenets of

contempt law,” “create[d] an appearance, at the very least, that

[he] will ignore the law in order to give a strategic advantage

to PETA,” and “ignored his ethical responsibilities [and] acted

directly counter to them.”

The circuit court made several observations concerning the

language used by the Feld Attorneys. The circuit court noted,

“[T]here is some very contemptuous language in those filings.

It’s unacceptable.” The circuit court further observed, “I’ve

never seen anything like [the language in the Feld Attorneys’

motions] outside of something filed by pro se [litigants]

. . . .”

Additionally, the court found that the pleadings were not

helpful to determining the issues in the case. The circuit

court stated, “[N]ot only do I not find there’s a legal basis

for [the motion to recuse], but the things that are in this

motion, some of them didn’t even happen, and the rest of them

were either twisted or distorted in a manner that I found to be

highly inappropriate.”

The circuit court declined to hold the Feld Attorneys in

criminal contempt under Code § 18.2-456(3) for their use of

contemptuous language. Explaining its decision, the circuit

court stated that “contempt findings do have some very serious

ramifications for attorneys’ careers,” and “[the] contempt power

27
absolutely is to be used sparingly, and I think I can accomplish

what I need to in this situation without it.” Thus, the record

shows that the circuit court elected to use the sanctions

provisions of Code § 8.01-271.1 in lieu of the stronger contempt

power.

We hold that the record before us demonstrates that the

Feld Attorneys’ motions were filed for an improper purpose and,

thus, violated clause (iii) of the second paragraph of Code

§ 8.01-271.1. Contemptuous language and distorted

representations in a pleading never serve a proper purpose and

inherently render that pleading as one “interposed for [an]

improper purpose,” within the meaning of clause (iii) of the

second paragraph of Code § 8.01-271.1. Such language and

representations are wholly gratuitous and serve only to deride

the court in an apparent effort to provoke a desired response.

As we held in Taboada v. Daly Seven, Inc., 272 Va. 211,

215-16, 636 S.E.2d 889, 891 (2006), clause (iii) of the second

paragraph of Code § 8.01-271.1 “is designed to ensure dignity

and decorum in the judicial process. This provision deters

abuse of the legal process and fosters and promotes public

confidence and respect for the rule of law.” Id. at 216, 636

S.E.2d at 891.

We observe that clause (iii) in the second paragraph of the

statute also is intended to prevent use of intemperate language

28
that serves no objective purpose other than to ridicule or

deride a court. Because the language found in the Feld

Attorneys’ motions clearly falls within this proscription, we

hold that the Feld Attorneys’ motions were filed with an

“improper purpose,” within the meaning of clause (iii).

The Feld Attorneys argue, nevertheless, that the circuit

court erred in its award of sanctions because that award was

based in part on the motion to vacate the rule to show cause

against Petrosinelli and Porter (motion to vacate). The Feld

Attorneys assert that the motion to vacate was objectively

reasonable because Petrosinelli and Porter did not violate any

order of the circuit court.

In deciding this issue, we recognize that the circuit court

dismissed the March rule to show cause against Porter. Also, we

have held in Petrosinelli v. People for the Ethical Treatment of

Animals, 273 Va. ___, ___, ___ S.E.2d ___, ___(2007) (this day

decided), that the circuit court abused its discretion in

holding Petrosinelli in contempt of court. These holdings

establish that the motion to vacate was “warranted by existing

law” to the extent that it argued that Petrosinelli and Porter

should not be held in contempt of court. However, the

determinative consideration before us is that the motion to

vacate additionally incorporated by reference the motion to

recuse, which we have held was not warranted by existing law or

29
a good faith argument for the extension, modification, or

reversal of existing law, and was filed for an improper purpose.

Therefore, because the Feld Attorneys made the motion to recuse

part of their motion to vacate, the circuit court did not abuse

its discretion in basing its award of sanctions in part on the

motion to vacate.7

The Feld Attorneys also contend that the circuit court

“erred in sanctioning the Feld Attorneys for filing Feld’s

[o]pposition to PETA’s [a]mended and [s]upplemental [m]otion for

[s]anctions.” The record, however, fails to show that this

pleading was a basis for the circuit court’s award of sanctions.

As stated above, the circuit court granted PETA’s motion for

sanctions and PETA’s Amended and Supplemental motion for

sanctions. Neither of those motions for sanctions contained any

reference to the Feld Attorneys’ opposition to sanctions.

Therefore, we conclude that the Feld Attorneys’ argument on this

issue is without merit because it is not supported by the

record.8

7
The Feld Attorneys note that Judge Stitt found that the
motion to vacate “incorporated” the motion to recuse. The Feld
attorneys do not challenge this conclusion, but argue only that
the motion to recuse was objectively reasonable.
8
Although the July rule to show cause mentions the
opposition to sanctions as a pleading that the circuit court
considered at its May 25, 2005 hearing, the July rule to show
cause was ultimately dismissed. In addition, although the
circuit court stated at the hearing on the July rule to show
cause that the parties were in court on “five pleadings,”

30
 In summary, we conclude that the record demonstrates the

Feld Attorneys committed three separate violations of Code

§ 8.01-271.1, each of which independently supports the circuit

court’s impositions of sanctions. On these three separate

bases, we hold that the circuit court did not abuse its

discretion in imposing sanctions on the Feld Attorneys under

Code § 8.01-271.1.9

Revocation of Pro Hac Vice Admission

The Feld Attorneys also argue that the circuit court abused

its discretion in revoking Simon’s pro hac vice admission. The

Feld Attorneys contend that Simon did not engage in any

misconduct, because the content of the motions was objectively

reasonable. We disagree with the Feld Attorneys’ arguments.

This Court has not previously determined the standard of

review for a court’s revocation of an attorney’s pro hac vice

admission.10 In Virginia, the admission of attorneys on a pro

hac vice basis is governed by Rule 1A:4, which authorizes courts

in this Commonwealth to permit counsel who are not licensed or

including the opposition to sanctions, the circuit court
ultimately granted PETA’s motion for sanctions consisting of two
separate documents, neither of which mentioned the opposition to
sanctions.
9
We do not address the amount of the sanctions award
because the Feld Attorneys have not assigned error regarding the
amount of the award.
10
We observe that certain amendments to Rule 1A:4 will
become effective July 1, 2007. Rule 1A:4, as amended, will
provide that the “grant or denial” by a court of a motion to
proceed pro hac vice is discretionary.

31
admitted to practice law in this jurisdiction, but are licensed

to practice law in another state or in the District of Columbia,

to appear as counsel in a particular case.

An attorney who is not licensed or admitted to practice law

in this Commonwealth does not have a right to appear as counsel

but may request permission to do so on a limited and temporary

basis related to the conduct of a particular case. See Rule

1A:4. Such a pro hac vice admission is a privilege that is

solely permissive in nature. See id. (referring to permission

to appear as a “privilege”); Ortiz v. Barrett, 222 Va. 118, 127,

278 S.E.2d 833, 837 (1981) (referring to attorney licensed in

another jurisdiction as having “privilege” to file pleading in

Virginia court); Horne v. Bridwell, 193 Va. 381, 385, 68 S.E.2d

535, 538 (1952) (explaining that attorney licensed in foreign

jurisdiction must prove existence of that license before

obtaining “privilege” of appearing as counsel in Virginia); see

also Thomas v. Cassidy, 249 F.2d 91, 92 (4th Cir. 1957) (holding

that pro hac vice appearances are not a “right but a mere

privilege”).

We hold that Virginia courts have broad discretion in

determining whether to revoke an attorney’s pro hac vice

admission. A court may revoke the pro hac vice admission of

counsel at any stage of court proceedings when it appears that

counsel’s conduct adversely impacts the administration of

32
justice. See United States v. Gonzalez-Lopez, 399 F.3d 924, 929

(8th Cir. 2005), aff’d, ___ U.S. ___, 126 S.Ct. 2557 (2006);

United States v. Ries, 100 F.3d 1469, 1471 (9th Cir. 1996);

State Industries, Inc. v. Jernigan, 751 So.2d 680, 682 (Fla.

Dist. Ct. App. 2000).

In deciding to revoke Simon’s pro hac vice admission, the

circuit court explained:

[T]he conduct of the defense in this case generally to date
has reflected a very inadequate understanding of Virginia’s
ethical requirements, much less an understanding of the
level of professionalism that our [C]hief [J]ustices, the
current one and the previous one, as well as many others in
the [S]tate have worked so hard to instill. Admission pro
hac [vice] is not a right, it’s a courtesy and a privilege,
and considering everything that’s happened in this case,
particularly these filings, Mr. Simon’s pro hac vice
[admission] is revoked.

The circuit court’s conclusion that the Feld Attorneys’

pleadings did not reflect the level of professionalism expected

of attorneys in Virginia demonstrates that the circuit court

carefully considered the issue before revoking Simon’s pro hac

vice admission. All the Feld Attorneys were equally responsible

for the pleadings they filed. Therefore, we conclude that when,

as here, a circuit court acts within its discretion in imposing

sanctions on attorneys for pleadings they have filed in

violation of Code § 8.01-271.1, the circuit court does not abuse

its discretion in revoking the pro hac vice admission of one of

the attorneys who filed those pleadings. Accordingly, we hold

33
that the circuit court did not abuse its discretion in revoking

Simon’s pro hac vice admission in this case.

For these reasons, we will affirm the circuit court’s

judgment.

Affirmed.

JUSTICE AGEE, with whom JUSTICE KINSER joins, concurring in part
and dissenting in part.

I concur with the majority opinion’s analysis of the motion

to recuse as it relates to the award of sanctions by the circuit

court under Code § 8.01-271.1. The record would support a

finding by the circuit court that portions of the motion to

recuse were not well grounded in fact or warranted by existing

law and were interposed for an improper purpose within the

meaning of clauses (ii) and (iii) of the second paragraph of

Code § 8.01-271.1. However, the award of sanctions by the

circuit court was not based solely on the motion to recuse, but

on “the language in the referenced pleadings.” The referenced

pleadings included not only the motion to recuse but also the

motion to vacate the rule to show cause (motion to vacate) and

the amended reply in support of the motion to vacate the rule to

show cause (amended reply).

I do not find that the record supports an award of

sanctions either for the motion to vacate or the amended reply

(collectively the “vacation pleadings”). Therefore, in my view,

34
the circuit court abused its discretion in the order of August

26, 2005, by imposing sanctions on the Feld Attorneys based on

the vacation pleadings. For similar reasons, I would also find

that the circuit court abused its discretion in that order by

revoking the pro hac vice admission of Barry S. Simon.

Accordingly, I respectfully dissent from those portions of the

majority opinion and would reverse the judgment of the circuit

court and remand for further proceedings.

I. CODE § 8.01-271.1 SANCTIONS

PETA’s supplemental motion for sanctions specifically

requested sanctions under Code § 8.01-271.1 with regard to the

motion to vacate. At the August 18, 2005 hearing on that motion

and the July 1, 2005 rule to show cause, the circuit court was

very specific as to the pleadings under consideration:

I don’t think there’s any question that we’re only

proceeding on civil sanctions at this point.

Also, on the documents that were listed in the rule to

show cause we are proceeding [1] on Feld’s motion to recuse

and for evidentiary hearing, [2] on Feld’s reply in support

of motion to recuse and for evidentiary hearing, [3] on

Feld’s opposition to PETA’s amended and supplemental motion

for sanctions, [4] on Feld’s motion to vacate the rule to

show cause or in the alternative response to the rule, and

35
[5] on Feld’s amended reply in support of the motion to

vacate the rule to show cause. (Emphasis added.)

If that was not sufficiently clear, the court then

reiterated what was to be considered at the hearing: “What

we’re going to have now are argument on the sanctions for filing

those five pleadings,” which included the vacation pleadings.

Throughout the August 18, 2005 hearing, the circuit court

consistently referred in the plural to all the pleadings that it

had specifically listed as it considered the application of Code

§ 8.01-271.1 sanctions against the Feld Attorneys for “those

pleadings.”

At the conclusion of presentations from counsel at the

hearing, the circuit court reiterated its consideration was of

the “referenced pleadings,” including the motion to recuse and

the vacation pleadings. Further, the August 26, 2005 order

grants PETA’s supplemental motion for sanctions, and that

supplemental motion for sanctions specifically referenced the

motion to vacate. Thus, it is clear from the record that the

award of sanctions in the order of August 26, 2005, was based,

in part, on the vacation pleadings.

The majority opinion does not contend the vacation

pleadings, by their actual language, violate any of the

provisions of Code § 8.01-271.1. Indeed, the arguments in the

36
vacation pleadings go solely to the validity of the circuit

court’s contempt judgment against Joseph G. Petrosinelli, which

is the subject of the companion case, Petrosinelli v. People for

the Ethical Treatment of Animals, 273 Va. ___, ____ S.E.2d ___

(2007), which is also decided this day. In that case, we agree

with the arguments made in the motion to vacate, determine that

the circuit court’s finding of contempt was in error and reverse

the judgment of the circuit court. 273 Va. at ___, ___ S.E.2d

at ___. There is simply no contention, either by PETA or the

majority, that language used in the vacation pleadings is

violative of Code § 8.01-271.1.

Nonetheless, the majority opinion assumes a legally

sufficient nexus between the motion to recuse and the motion to

vacate which warrants the consideration of the vacation

pleadings as being part of the motion to recuse for sanctions

purposes. The majority opinion recites that “because the Feld

attorneys made the motion to recuse part of their motion to

vacate, the circuit court did not abuse its discretion in basing

its award of sanctions in part on the motion to vacate.”

A reading of the actual language used in the vacation

pleadings does not support this conclusion. The motion to

recuse was neither incorporated nor made part of the motion to

37
vacate. The only reference in the motion to vacate11 to the

motion to recuse is as follows:

It is undisputed that PETA submitted its Petition and

supporting 42-paragraph affidavit to the Court ex parte. It is

also undisputed that the Court considered the ex parte

communication and relied on it to issue the Rule. See Rule at 1

(“And the Court having reviewed the petition and finding there

is adequate cause to issue a Rule to Show Cause, and that an

order of this Court was apparently violated . . . .”) (emphasis

added).

PETA’s submission of this ex parte communication, and the

Court’s consideration of it, violated the Rules of the Supreme

Court of Virginia. See generally Motion to Recuse (April 8,

2005).

The motion to vacate says what it says. It only references

the motion to recuse with the term “[s]ee generally” and neither

incorporates nor adopts any part of the motion to recuse into

the motion to vacate. The signal “see generally” means that the

“[c]ited authority presents helpful background material related

to the proposition.” The Bluebook: A Uniform System of Citation

47 (Columbia Law Review Ass’n et al. eds., 18th ed. 2005). It

is not the equivalent of “incorporated.” There is simply no

11
There is no reference to the motion to recuse of any nature
whatsoever to be found in the amended reply.

38
nexus within the actual text of the pleadings at issue to

substantiate that the motion to recuse is subsumed within the

motion to vacate so as to vitiate the independent validity of

the motion to vacate in the consideration of the propriety of

the circuit court’s award of sanctions.

In my view, the circuit court’s judgment awarding sanctions

under Code § 8.01-271.1 must be reviewed based upon the actual

language of the vacation pleadings, which does not invoke the

assertions of the motion to recuse. So viewed, there is simply

no ground upon which the circuit court could award Code § 8.01-

271.1 sanctions based on the vacation pleadings. This Court has

recognized in earlier decisions that where there are multiple

aspects of a party’s pleadings, some of which are sanctionable

and others of which are not, the portion of the sanctions

awarded in respect of non-sanctionable filings cannot stand.

See Nedrich v. Jones, 245 Va. 465, 474-76, 429 S.E.2d 201, 206-

07 (1993). Where an award of sanctions is based “in whole or in

part” on a portion of the filings that is not sanctionable, the

circuit court has erred. See Oxenham v. Johnson, 241 Va. 281,

289-90, 402 S.E.2d 1, 5-6 (1991) (abuse of discretion not to

distinguish between sanctionable and non-sanctionable conduct in

fixing the amount of a fee sanction award). However, in the

present context there is no basis upon which the judgment

granting sanctions against the Feld Attorneys can be severed or

39
apportioned on appeal between the motion to vacate and the

motion to recuse.12 See, e.g., Green v. Virginia State Bar, 272

Va. 612, 618, 636 S.E.2d 412, 416 (2006) (vacating sanction

imposed by the Virginia State Bar Disciplinary Board and

remanding for further proceedings to determine a more

appropriate sanction); Barrett v. Virginia State Bar, 272 Va.

260, 273, 634 S.E.2d 341, 348 (2006) (vacating sanction and

remanding for further proceedings because not all behavior was

sanctionable).

Accordingly, the judgment of August 26, 2005, imposing

sanctions on the Feld Attorneys should be reversed and the case

remanded to the circuit court for a determination, exclusive of

the vacation pleadings, as to whether sanctions against the Feld

Attorneys are warranted and, if so, in what amount.

II. REVOCATION OF PRO HAC VICE ADMISSION

For similar reasons, I would reverse the circuit court’s

judgment revoking the pro hac vice status of one of the Feld

Attorneys, Barry S. Simon. As with the sanctions determination

under Code § 8.01-271.1, the circuit court based its decision to

12
At the May 25, 2005 hearing, PETA requested sanctions in the
amount of $40,000 “to enforce the sanctions, to draw up these
briefs, these oversized briefs that we had to deal with, the
emergency nature of it.” The circuit court considered PETA’s
request at the August 18, 2005 hearing and awarded sanctions in
the amount of $40,000 “to compensate [PETA] to some extent for
what they’ve had to expend on this issue.” Both the request by
PETA and the award by the circuit court included the vacation
pleadings as part of the consideration.

40
revoke the pro hac vice status of this attorney because “Mr.

Simon was in charge [with respect to] the referenced filings.”

The circuit court further stated that “considering everything

that has happened in this case, particularly these filings, Mr.

Simon’s admission pro hac vice is revoked.” “[T]he referenced

filings” and “these filings” refer to the same pleadings under

consideration for Code § 8.01-271.1 sanctions, which included

the motion to vacate and the amended reply. The circuit court,

therefore, based its revocation of Simon’s pro hac vice

admission in part upon the vacation pleadings, in which neither

Simon nor any of the other Feld attorneys committed any type of

infraction.

Thus, in my view, the circuit court abused its discretion

in revoking Simon’s pro hac vice status by considering the

vacation pleadings as a basis for revocation. Thus, I would

reverse the judgment of the circuit court and remand the case

for further consideration, exclusive of the vacation pleadings,

as to whether Simon’s pro hac vice status should be revoked.

Accordingly, I respectfully dissent from the majority

opinion to the extent set forth above.

41