Present: All the Justices
TIMOTHY MARTIN BARRETT
v. Record No. 060248 OPINION BY JUSTICE ELIZABETH B. LACY
September 15, 2006
VIRGINIA STATE BAR, EX REL.
SECOND DISTRICT COMMITTEE
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
William N. Alexander, II, William H. Ledbetter, and
H. Selwyn Smith, Judges Designate
Timothy Martin Barrett appeals the imposition of a 30-
month suspension of his license to practice law.
A Subcommittee of the Second District, Section II, of the
Virginia State Bar certified three charges of misconduct to
the State Bar Disciplinary Board. Barrett requested a three-
judge court and the Virginia State Bar (the Bar) filed a
Complaint with that court pursuant to Part 6, § IV,
¶ 13.I.1.a.(1)(b) of the Rules of the Supreme Court
consolidating the certifications. The three-judge court
considered the three certified charges in a one-day ore tenus
hearing.
All three certifications were based on actions Barrett
took during litigation in which he was a named party and in
which he represented himself. The first certification
involved Barrett's divorce proceeding against his wife, Jill
Barrett. In that litigation, Barrett procured a witness
subpoena for his former employer, Hayden I. DuBay, alleging
DuBay had information regarding his wife's earning capacity.
Barrett sent two letters to DuBay's attorney reciting the
expense and inconvenience that DuBay would incur if he had to
appear and testify and then offered to release DuBay from the
subpoena if DuBay would withdraw a claim for an attorney's
lien DuBay had filed against Barrett. The three-judge court
found that these actions violated Rules 4.4. and 8.4(b) of the
Rules of Professional Conduct.1
The second certification also related to the divorce
proceeding. At that trial, Barrett called opposing counsel,
Martin L. Davis, as an adverse witness because Barrett "ha[d]
reason to believe that Mr. Davis and Ms. Barrett have a
romantic relationship." When Davis denied the allegations,
Barrett abandoned his request to call Davis as a witness. The
three-judge court found that Barrett violated Rules 3.1 and
3.4(j) by these actions.2
The final certification related to an action a former
client, Debra Eller, brought against Barrett and his law firm,
1
Rule 4.4 requires an attorney to respect rights of third
parties when representing a client and not "use means that
have no purpose other than to embarrass, delay, or burden a
third person, or use methods of obtaining evidence that
violate the legal rights of such a person," and Rule 8.4(b),
states that an attorney is guilty of professional misconduct
when he or she "commit[s] a criminal or deliberately wrongful
act that reflects adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer."
2
Rule 3.1 mandates a lawyer assert only non-frivolous
claims, and Rule 3.4(j) precludes a lawyer from asserting a
position on behalf of a client that "would serve merely to
harass or maliciously injure another."
2
The Injury Law Institute of Virginia, PLC, in which Eller
alleged negligence and malpractice based on Barrett's failure
to file her personal injury lawsuit prior to the expiration of
the statute of limitations. Barrett filed a special plea of
immunity claiming that he was immune from liability because he
practiced as a professional limited company. Eller's counsel
filed a response citing the statutory provisions that
specifically affirm the personal liability of attorneys who
are members of professional limited companies. Barrett
declined to withdraw his plea until the trial court convened
to hear the motion. The three-judge court held that these
actions constituted a violation of Rules 1.1 and 3.1 of the
Rules of Professional Conduct.3
The three-judge court issued an opinion and final order
imposing a 30-month suspension of Barrett's license to
practice law based on these violations. Barrett assigns
seventeen errors to the rulings of the three-judge court.
DEMURRER
First, Barrett claims that the three-judge court erred in
dismissing the demurrer he filed in response to the Bar's
Complaint. The three-judge court dismissed Barrett's demurrer
holding that the Rules governing these proceedings contained
3
Rule 1.1 requires a lawyer to "provide competent
representation to a client [including] legal knowledge, skill,
thoroughness and preparation."
3
no provision for a demurrer and, in any event, the demurrer
failed on the merits because the complaint and accompanying
certifications sufficiently informed Barrett of the charges
against him. The three-judge court was correct in concluding
that the Rules applicable to these proceedings do not
authorize a reviewing body to dismiss a complaint against a
lawyer on demurrer. See Va. Sup. Ct. R., Part 6, § IV,
¶ 13(I)(1). Barrett does not directly dispute this conclusion
but argues that the failure to allow such a challenge left him
"unable to mount a proper defense in violation of his rights
to due process of law." The record does not support Barrett's
position.
The certification listed the specific acts that were the
basis for the alleged Rule violations. Furthermore, as
required by the Rules, Barrett received a copy of the
investigative report considered by the Subcommittee when it
referred the case to the three-judge panel. Va. Sup. Ct. R.,
Part 6, § IV, ¶ 13(D)(1)(b). This information was sufficient
to put Barrett on notice of the claims against him.
SUBCOMMITTEE CONFLICT OF INTEREST
Next Barrett claims that the three-judge panel erred in
denying his motion to dismiss all charges against him because
a member of the subcommittee that certified the charges, Bobby
W. Davis, was not impartial. Barrett claims Davis was biased
4
because a former client of Davis' retained Barrett and Barrett
forced Davis to complete some work for the client without
remuneration. Barrett raised this issue for the first time
before the three-judge court. That court correctly held that
Barrett waived this issue because he did not raise it before
the subcommittee, although he was aware of the alleged
conflict at that time.
ATTORNEY AS CLIENT
Barrett claims that the three-judge court erred in
finding him in violation of Rules 1.1, 3.1, 3.4(j), and 4.4
because these Rules apply only when a lawyer is
representing a client, not when a lawyer represents himself
in a proceeding. Barrett argues that the language of Rules
1.1, 3.4(j) and 4.4 specifically limit their application to
actions an attorney takes while representing clients.
Those Rules state in pertinent part:
Rule 1:1
A lawyer shall provide competent
representation to a client.
Rule 3.4(j)
A lawyer shall not: . . . assert a position
. . . or take other action on behalf of a client
when the lawyer knows or when it is obvious that
such action would serve merely to harass or
maliciously injure another.
Rule 4.4
5
In representing a client, a lawyer shall not
use means that have no purpose other than to
embarrass, delay, or burden a third person
. . . .
Barrett also maintains that Rule 3.1, although not explicitly
referring to representation of a client, was intended to apply
only in the course of such representation based on the
commentary to that Rule.
Rules of statutory construction provide that language
should not be given a literal interpretation if doing so would
result in a manifest absurdity. Crawford v. Haddock, 270 Va.
524, 528, 621 S.E.2d 127, 129 (2005). 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. Attorney
Grievance Commission v. Alison, 565 A.2d 660, 668 (Md. Ct.
App. 1989) (intent and purpose of Maryland's version of Rule
4.4 served only by applying construction that lawyer is
representing client when he represents self); Montgomery
County Bar Ass'n v. Hecht, 317 A.2d 597, 601-02 (Pa. 1974)
(anomalous to condemn lawyer's knowing participation in
6
introduction of perjured testimony by client and condone
giving such testimony by lawyer himself).
Furthermore, an attorney who represents himself in a
proceeding acts as both lawyer and client. He takes some
actions as an attorney, such as filing pleadings, making
motions, and examining witnesses, and undertakes others as a
client, such as providing testimonial or documentary evidence.
See In re Glass, 784 P.2d 1094, 1097 (Ore. 1990)(lawyer
appearing in proceeding pro se is own client); In re Morton
Allan Segall, 509 N.E.2d 988, 990 (Ill. 1987) ("attorney who
is himself a party to the litigation represents himself when
he contacts an opposing party"); Pinsky v. Statewide Grievance
Committee, 578 A.2d 1075, 1079 (Conn. 1990) (restriction on
attorneys contacting represented parties limited to instances
where attorney is representing client, not where attorney
represents himself).
The three Rules at issue here address acts Barrett took
while functioning as an attorney and thus the three-judge
panel correctly held that such acts are subject to
disciplinary action.
SUFFICIENCY OF THE EVIDENCE
We turn now to Barrett's contention that the Bar did not
establish by clear and convincing evidence that he violated
7
the relevant Rules in any of the circumstances charged.4 In
reviewing the decision of the three-judge court, we conduct an
independent examination of the record, considering the
evidence and all reasonable inferences therefrom in the light
most favorable to the prevailing party below, and we give the
factual findings of the three-judge court substantial weight,
viewing them as prima facie correct. Anthony v. Virginia
State Bar, 270 Va. 601, 608-09, 621 S.E.2d 121, 125 (2005).
The factual conclusions, while not carrying the weight of a
jury verdict, 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.
1. Witness subpoena for DuBay
Barrett argues that because DuBay had employed Barrett's
former wife, Jill, DuBay had information regarding her earning
capacity, and he alleged that DuBay would not provide certain
employment records. Therefore, Barrett asserts he issued a
lawful subpoena to a material witness and did not engage in
actions that had "no purpose other than to embarrass, delay,
or burden a third person," Rule 4.4, or reflected "adversely
4
Part 6, Section IV, Paragraph 13, Section (I)(2)(e)(2)
of the Rules provides that at a disciplinary hearing before
the Bar Disciplinary Board, Bar Counsel must present clear and
convincing evidence to prove a violation of the Rules. Code
§ 54.1-3935(B) makes this same evidentiary standard applicable
to proceedings before a three-judge court.
8
on the lawyer's honesty, trustworthiness or fitness as a
lawyer," Rule 8.4(b).
The record shows that Jill worked for DuBay for a total
of approximately 30 hours and was paid $10 an hour. DuBay had
provided Jill's attorney with Jill's employment records. He
never received a subpoena or written request for those records
from Barrett, although he testified he believed that Barrett
sought the records from Jill's attorney.
Even though DuBay's information may have been relevant in
Barrett's divorce action, Barrett's two letters containing
offers to release DuBay from the witness subpoena if DuBay
would waive the attorney's lien claim were not designed to
secure DuBay's testimony regarding Jill's employment. The
clear intent of Barrett's letters was to harass DuBay and
compel him to waive the lien. This record provides clear and
convincing evidence that Barrett violated both Rules 4.4 and
8.4(b), and the three-judge court did not err in finding such
violations.5
5
We also reject Barrett's claim that the three-judge
court erred in admitting testimony and letters regarding
Barrett's interaction with his former client, Wade Bell. Part
6, Section IV, Paragraph 13(E)(3) adopted in three-judge court
proceedings pursuant to 54.1-3935(B) sets the evidentiary
standard: "evidentiary rulings shall be made favoring receipt
into evidence of all reasonably probative evidence to satisfy
the ends of justice. The weight given such evidence received
shall be commensurate with its evidentiary foundation and
likely reliability." Barrett's treatment of Bell bore on the
question whether Barrett had committed "a deliberately
9
2. Calling Opposing Counsel as a Witness
Barrett argues that the Bar did not establish by clear
and convincing evidence that he violated Rules 3.1 and 3.4(j)
when he called opposing counsel, Martin Davis, as a witness in
the divorce proceeding. These two Rules prohibit an attorney
from asserting a position that is frivolous and from taking
action designed "merely to harass or maliciously injure
another," respectively.
Barrett maintains that he called Davis as a witness
because he had a reasonable belief that Davis had a romantic
relationship with Jill, Barrett's former wife, and therefore
Davis' testimony regarding child rearing would be relevant to
the custody issues in the proceeding.
Prior to the hearing, Barrett sent a letter to Davis
describing Barrett's perception of a romantic relationship.
Davis did not respond to the letter. At trial, Barrett called
Davis as a witness stating that he believed Davis had
"knowledge as to this matter that is outside of his attorney-
client relationship." In response, Davis objected referring
to rules that state an attorney cannot continue representation
of a client if he is going to be a witness in an adversarial
proceeding and claiming that he had no knowledge of matters at
wrongful act that reflects adversely on the lawyer's honesty"
in violation of Rule 8.4(b). DuBay had personal knowledge of
10
issue other than those acquired in the course of his
representation of Jill, which were protected by the attorney-
client privilege. Barrett then revealed his suspicion of a
romantic relationship and stated that if Davis would state on
the record that there was no romantic relationship, "I have no
reason to talk to him." Davis denied the existence of such a
relationship, and Barrett ended his attempt to call Davis as a
witness.
The record shows that Barrett's "reasonable belief" of a
romantic relationship was based on statements made by his
current wife who was his girlfriend at the time of the divorce
proceeding. She testified that she considered the interaction
between Jill and Davis, which she observed during the divorce
proceedings, as "romantic flirtation." Barrett stated that he
had concluded "the same thing." Davis testified at the
disciplinary proceeding that he and Jill had eaten dinner
together once during the divorce proceeding. The tenuous
nature of Barrett's suspicions is reflected in Barrett's
agreement to drop his request upon Davis' statement denying
such a relationship. Barrett made no attempt to challenge
Davis' statement nor to disclose to any information that would
contradict the denial. The lack of any investigation into the
relationship at issue prior to or further inquiry at trial
these dealings; thus, the three-judge court properly admitted
11
reinforces the notion that Barrett had no purpose other than
engaging in a frivolous act or harassing Davis. Furthermore,
Davis' dinner with Jill was not proof of a "romantic
relationship," nor was it shown to have been a factor upon
which Barrett relied when he called Davis as a witness.6
At trial, the Bar emphasized the extraordinary and
disruptive measure of calling an adverse counsel to testify in
the middle of a hearing. Under such circumstances counsel
generally must cease representation of the client and the
client must secure new counsel. See Rule 3:7. Furthermore,
the basis of Barrett's actions in this case – an alleged
romantic relationship between Davis and his client - impugned
the personal and professional reputation of the attorney.
Rule 1.7, Comment 11 ("A lawyer's romantic or other intimate
personal relationship can also adversely affect representation
of a client."). Calling Davis as a witness under these
circumstances qualified as action taken to harass or injure
another. Accordingly, we conclude that the three-judge court
did not err in finding that these actions violated Rules 3.1
and 3.4(j).
3. Pleadings in the Malpractice Litigation
this evidence.
6
Barrett also claimed that his belief was based on
statements from his children that their mother had dinner with
Davis but these statements were not submitted or admitted as
evidence in the proceeding.
12
The three-judge court concluded that Barrett violated
Rule 1.1 and Rule 3.1 by the following acts which occurred in
conjunction with the Barrett's representation of Eller and her
legal malpractice action against him: failing to file or
settle a lawsuit within the two year statute of limitations
period, filing a special plea of immunity that "was not
warranted by existing law or the good faith argument for the
extension, modification, or reversal of existing law," and
failing to read the motion to strike the plea and memorandum
in support thereof until the day of the hearing on the motion
at which time he withdrew the plea. Barrett argues that
these facts are insufficient to establish by clear and
convincing evidence that he violated either Rule. We agree.
Rule 1.1 requires that a lawyer provide "competent
representation" to a client, which requires "legal knowledge,
skill, thoroughness and preparation reasonably necessary for
the representation." Disciplining an attorney on the basis of
incompetent representation under Rule 1.1, as reflected in the
commentary, involves attorney performance that extends
significantly beyond mere attorney error. See Motley v.
Virginia State Bar, 260 Va. 251, 262-64, 536 S.E.2d 101, 106-
07 (2002) (imposing discipline under former DR 6-101 for
incompetence when attorney allowed client to sign promissory
note to complete a real estate transaction which did not
13
reflect parties' agreement and the consequences of which
attorney did not understand).
Whether an attorney is subject to discipline for failing
to provide competent representation is a matter decided on a
case by case basis. In this case, Barrett admitted that his
failure to file or settle the personal injury lawsuit within
the limitations period was negligent; nevertheless, such
negligence without more is not clear and convincing evidence
of incompetence under Rule 1.1. Similarly, discipline of
Barrett under Rule 1.1 is not justified based on research that
results in the wrong legal conclusion because incorrect legal
research alone, although attorney error, is not clear and
convincing evidence of incompetence for purposes of that Rule.
Finally, Barrett's failure to read responsive pleadings
in a more timely manner and his delay in withdrawing the
special plea, while not the preferred way of practicing law,
do not support a finding of incompetent representation in this
case. Barrett filed his special plea on January 30, 2003;
opposing counsel filed the motion to strike and supporting
memorandum on February 18; and Barrett withdrew the plea on
March 18, the date of the hearing on various motions in the
case including the special plea and motion to deny the special
plea. The delay itself was less than a month, and Barrett
withdrew the plea before the court was required to consider
14
it. Accordingly, we conclude that this delay does not provide
clear and convincing evidence that Barrett violated Rule 1.1.
We next turn to violations of Rule 3.1. That rule
prohibits a lawyer from advancing a position that is
frivolous.7 The failure to timely file a lawsuit does not
implicate this rule. Thus, violation of this rule had to be
based on the three-judge court's finding that Barrett asserted
an erroneous legal position that was not a good faith argument
for extension of the law, and that he failed to timely read
opposing pleadings and withdraw his special plea.
An erroneous position is not necessarily a frivolous
position. In this case, Barrett produced evidence, accepted by
the three-judge court, that his position, although erroneous,
was based on principles he learned in his law school classes,
on legal research he had conducted on the issue, and on a
"misunderstanding of the law." This evidence does not support
a finding that filing the special plea was a frivolous act in
violation of Rule 3.1. Compare Barrett v. Virginia State Bar,
269 Va. 583, 596, 611 S.E.2d 375, 382 (2005) (imposing
discipline for filing frivolous pleading where attorney moved
to strike wife's divorce pleadings solely because of minor
7
Compare Code § 8.01-271.1 allowing sanctions against an
attorney who signs a pleading that is not "grounded in fact,"
"warranted by existing law or a good faith argument" for a
change in the law, or filed for an "improper purpose" such as
delay, harassment, or increasing the cost of litigation.
15
mistake in wife's legal name, and attorney clearly knew
correct name and had himself used multiple versions of it in
own motion).
Similarly Barrett's delay in reading opposing counsel's
memorandum and refusal to withdraw his special plea at an
earlier time do not constitute asserting a position that is
frivolous.
In summary, we find that the record does not present
clear and convincing evidence that Barrett violated Rules 1.1
and 3.1 when he failed to file or settle a lawsuit within the
limitations period, filed a special plea asserting an
erroneous legal position, or delayed in reading responsive
pleadings and withdrawing the special plea.8
CONCLUSION
For the reasons stated, we will affirm that part of the
judgment of the three-judge court finding that Barrett's
actions in conjunction with his divorce proceeding violated
Rules 4.4, 8.4(b), 3.1 and 3.4. We will reverse that part of
the judgment of the three-judge court holding that Barrett's
actions in conjunction with his representation of Eller and in
the legal malpractice action violated Rules 1.1 and 1.3.
Consequently, because the 30-month suspension of Barrett's
8
In light of this holding, we need not address Barrett's
other challenges to evidence admitted in conjunction with
these charges.
16
license to practice law was a single sanction imposed for all
violations found by the three-judge court, we will vacate that
sanction and remand the case for further consideration of an
appropriate sanction for the remaining violations.9
Affirmed in part,
reversed in part,
and remanded.
9
Because the case will be remanded for consideration of
an appropriate sanction, we need not address Barrett's
remaining challenges regarding the sanction previously
imposed.
17