Barrett v. Virginia State Bar

PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Compton, S.J.

TIMOTHY MARTIN BARRETT
OPINION BY
v. Record No. 042336 JUSTICE G. STEVEN AGEE
April 22, 2005
VIRGINIA STATE BAR

FROM THE VIRGINIA STATE BAR DISCIPLINARY BOARD

This case presents an appeal of right from a ruling of the

Virginia State Bar Disciplinary Board ("the Board"). Timothy M.

Barrett challenges the Board's order of August 5, 2004,

suspending his license to practice law in the Commonwealth for a

period of three years based upon findings that Barrett violated

Rules 3.1, 3.4(i), 3.4(j), 3.5(e), 4.3(b), and 8.4(b) of the

Virginia Rules of Professional Conduct. 1

In reviewing the Board's decision in a
disciplinary proceeding, we conduct an independent
examination of the entire record. We consider the
evidence and all reasonable inferences that may be
drawn from the evidence in the light most favorable to
the Bar, the prevailing party in the Board proceeding.
We give the Board's factual findings substantial
weight and view them as prima facie correct. While we
do not give the Board's conclusions the weight of a
jury verdict, we will sustain those conclusions unless
it appears they are not justified by a reasonable view
of the evidence or are contrary to law.

Williams v. Virginia State Bar, 261 Va. 258, 264, 542 S.E.2d

385, 389 (2001) (citations omitted). A violation of

disciplinary rules must be established by clear proof. See,

1
The Board dismissed charges that Barrett violated Rules
4.2 and 4.4.

1
e.g., Blue v. Seventh Dist. Comm., 220 Va. 1056, 1062, 265

S.E.2d 753, 757. We separately review each of the alleged Rule

violations below.

I. Rule 4.3(b)

Timothy M. Barrett and Valerie Jill Rhudy were married in

1990. Barrett was admitted to practice law in the Commonwealth

of Virginia in 1996 and operates as a sole practitioner in the

City of Virginia Beach. Rhudy served as his secretary during

their marriage.

In the summer of 2001, Barrett and Rhudy separated. She

took the couple's six children and moved from the marital home

in Virginia Beach to her parents’ home in Grayson County.

Rule 4.3(b) provides as follows:

A lawyer shall not give advice to a person who is not
represented by a lawyer, other than the advice to
secure counsel, if the interests of such person are or
have a reasonable possibility of being in conflict
with the interest of the client.

The Board found that Barrett violated this rule because it

concluded certain statements in two electronic mail (“e-mail”)

communications he wrote to Rhudy after the separation, but

before she retained counsel, constituted legal advice. On July

25, 2001, Barrett sent an e-mail to Rhudy containing the

following:

Venue will not be had in Grayson County. Virginia law
is clear that venue is in Virginia Beach.

2
 . . . .

Under the doctrine of imputed income, the Court will
have to look at your skills and experience and
determine their value in the marketplace. . . . You
can easily get a job . . . [making] $2,165.00 per
month. . . .

In light of the fact that you are living with your
parents and have no expenses . . . this income will be
more than sufficient to meet your needs. I . . . just
make enough to pay my own bills . . . Thus, it is
unlikely that you will . . . obtain spousal support
from me.

I . . . will file for . . . spousal support to have
you help me pay you [sic] fair share of our $200,000+
indebtedness. Since I am barely making it on my
income and you have income to spare, you might end up
paying me spousal support. . . .

In light of the fact that . . . I . . . am staying in
the maritial [sic] home . . . I believe that I will
obtain the children. . . . [Y]ou will have to get a
job to pay me my spousal support. . . . The Court will
prefer the children staying with a [parent], . . .
there is no question that I can set up a home away
from home and even continue to home school our kids.
Therefore, it is likely that you will lose this fight.
And of course, if I have the kids you will be paying
me child support. . . .

I am prepared for the fight.

(“July e-mail”).

Barrett sent Rhudy another e-mail on September 12, 2001, in
2
which he included the following:

I will avail myself of every substantive law and
procedural and evidentiary rule in the books for which
a good faith claim exists. This means that you, the

2
On July 30, 2001, Rhudy retained attorney Karen Loftin of
Galax, Virginia to represent her, but Loftin notified Barrett
that she had withdrawn from representation on August 10, 2001.

3
 kids and your attorney will be in Court in Virginia
Beach weekly. . . [Y]ou are looking at attorney's
expenses that will greatly exceed $10,000. . . . I
will also appeal . . . every negative ruling . . .
causing your costs to likely exceed $30,000.00. . . .

You have no case against me for adultery . . . . [The
facts] show[] that you deserted me. . . . [Y]our e-
mails . . . show . . . that you were cruel to me.
This means that I will obtain a divorce from you on
fault grounds, which means you can say goodbye to
spousal support. . . .

I remain in the marrital [sic] home . . . I have all
the kids [sic] toys and property, that your parents’
home is grossly insufficient for the children, that I
can home school the older kids while watching the
younger whereas you will have to put the younger in
day care to fulfill your duty to financially support
the kids, I believe that I will get the kids no
problem. . . .

[T]he family debt . . . is subject to equitable
distribution, which means you could be socked with
half my lawschool [sic] debt, half the credit care
[sic] debt, have [sic] my firm debt, etc.

(“September e-mail”).

The foregoing e-mail passages were interwoven with many

requests from Barrett to Rhudy to return home, professing his

love for her and the children and exhorting Rhudy for reasons of

faith to reunite the family because it was God’s will. For

example, the September e-mail included the following:

You know that it is God’s will that we be reconciled
. . . . I am begging you again to forgive me as God
forgives you, to give me that 1000th chance He gave
you today, to start over with me with a clean slate,
to come home.

4
 In finding that Barrett gave unauthorized legal advice to

an unrepresented person in violation of Rule 4.3(b), the Board

opined that “Barrett cannot send those two e-mails stating what

he did.” Barrett contends that Rule 4.3(b) was not meant to bar

communications between a husband and wife, and that construing

it as such interferes with the sanctity of marriage. He further

contends the e-mails only stated his opinions and were not

advice to Rhudy.

Prior decisions of the Board reveal that conduct usually

found to be in violation of Rule 4:3(b) is much more egregious

than Barrett's conduct in this case. In October 1990, the Board

entered an order suspending the license of Grant Paul Jones. In

re Jones, VSB Docket No. 87-070-1177 (Oct. 17, 1990). 3 The Board

found that Jones had provided family counseling to the

complainant’s family through his church. Complainant’s ex-

husband was charged with incest and Jones agreed to represent

him on the criminal charge. Jones paid an unannounced visit to

the complainant and her daughter, and without disclosing that he

represented the father in the criminal proceedings, he held a

"counseling" session with them, designed to elicit incriminating

testimony. While this conduct unquestionably violated the

3
This order became the subject of a District of Columbia
Court of Appeals case in which that Court reviewed the Board’s
decision to determine if reciprocal sanctions were warranted
against Jones in the District of Columbia. See In re Jones, 599
A.2d 1145, 1147-48 (D.C. 1991).

5
Rules, the Board particularly found Jones in violation of former

DR 7-103(A)(2), the predecessor of Rule 4.3(b), when he returned

to the unrepresented complainant to advise her as to how she

should respond to inquiries that might be directed at her

concerning the "counseling" session.

While Jones did not appeal the Board’s decision to this

Court, we note that his conduct in that case was the type Rule

4.3(b) is intended to prohibit. Comment [1] to Rule 4.3 of the

Virginia Rules of Professional Conduct cautions that “[a]n

unrepresented person, particularly one not experienced in

dealing with legal matters, might assume that a lawyer is

disinterested in loyalties or is a disinterested authority on

the law.”

Jones, without disclosing his representation of the

husband, gave specific legal advice to an adverse party. The

complainant had no reason to believe that Jones, who had also

been her counselor, represented interests adverse to hers. In

the case at bar, however, Barrett expressed only his opinion

that he held a superior legal position on certain issues in

controversy between himself and Rhudy. His statements may have

been intimidating, but he did not purport to give legal advice.

Rhudy knew that Barrett was a lawyer and that he had interests

opposed to hers. We find that the concern articulated by the

Comment to Rule 4.3 is not borne out in this case.

6
 While the Bar argues that there is no “marital” exception

to Rule 4.3(b), neither does it ask us to set out a per se rule

that all communication by a lawyer, to his or her unrepresented

spouse in a divorce proceeding discussing legal issues pertinent

to the divorce, is prohibited under Rule 4.3(b). We do not find

there is such a per se rule, but it is otherwise unnecessary for

us to address that point because upon our independent review of

the entire record, we find that there was not sufficient

evidence to support the Board’s finding that Barrett’s e-mail

statements to Rhudy were legal advice rather than statements of

his opinion of their legal situation. Therefore, we will set

aside the Board’s finding that Barrett violated Rule 4.3(b).

II. Rule 3.4(j)

Rule 3.4(j) provides that a lawyer may not

[a]ssert a position, conduct a defense, delay a trial,
or take other action on behalf of the client when the
lawyer knows or when it is obvious that such action
would serve merely to harass or maliciously injure
another.

The Board found Barrett in violation of Rule 3.4(j) based on his

correspondence with Rhudy’s attorney and his filing of motions

without prior notice to the court, contrary to a prior court

order. We will affirm the Board’s disposition that Barrett

violated Rule 3.4(j) by his harassing statements to Rhudy’s

attorney, but we do not find sufficient evidence to support the

Board’s finding that Barrett acted in violation of the Rule by

7
violating a trial court order requiring notification before

filing motions.

In the fall of 2001, Rhudy retained Lanis L. Karnes to

represent her in the divorce proceedings in Virginia Beach

Circuit Court. For several months thereafter in numerous

letters, Barrett wrote to Karnes but referred to her by her

former married name of "Price." Barrett testified that he did

not believe Karnes had the right to change her name based upon

his religious beliefs. According to Barrett, referring to

Karnes by her former husband's name was a way to honor Karnes'

former husband. Barrett indicated to the Board’s investigator

that it was a means for him to protest Karnes' role as Rhudy's

counsel. Additionally, Barrett's letters to Karnes contained

the following comments:

Words cannot express the disappointment I feel towards
you, one who ostensibly claims Christ as her savior,
in that you would represent one Christian in their
suit against another, let alone a wife verses [sic] a
husband, in violation of the Word of God . . . causing
that Word to be defamed. . . . Shame on you.

Please pass on to your client the fact that it has not
escaped my notice the irony that my wife, who just
weeks ago was feigning contempt for the feminism of
her friends, has retained one of the worst examples of
"Christian" feminism ever to pollute the campus of
Regent University. You two will make a lovely pair.

I look forward to hearing from you shortly as to the
matters raised in this letter and seeing you this
Friday for the beginning of what will be a series of
hearings that will not conclude until the Virginia

8
 Supreme Court has passed on the matter of Barrett v.
Barrett.

[Y]ou are inept. . . . I beg you to start zealously
representing your client with competence and stop
wasting her money and my time.

According to the commentary accompanying Rule 3.4(j), the

Bar is concerned with “conduct that could harass or maliciously

injure another” such that it “bring[s] the administration of

justice into disrepute.” Comment [6], Rule 3.4. Additional

comments describe the conduct the Rule was designed to prohibit:

The duty of [a] lawyer to represent a client with zeal
does not militate against his concurrent obligation to
treat, with consideration, all persons involved in the
legal process and to avoid the infliction of needless
harm. . . .

In adversary proceedings, clients are litigants and
though ill feeling may exist between the clients, such
ill feeling should not influence a lawyer's conduct,
attitude or demeanor towards opposing counsel. A
lawyer should not make unfair or derogatory personal
reference to opposing counsel. Haranguing and
offensive tactics by lawyers interfere with the
orderly administration of justice and have no proper
place in our legal system.

Comments [7]-[8], Rule 3.4.

Barrett’s foregoing statements to Karnes did not address

the legal issues in the divorce action, but personally attacked

opposing counsel. Karnes testified that she found these

comments to be “offensive and derogatory.” By his own

admission, Barrett referred to Karnes by her former married name

“as a way of protest.”

9
 Barrett argues that Rule 3.4(j) does not apply to

communications between lawyers, but merely addresses actions

taken, not words used, in the litigation context. We disagree.

A preponderance of authorities interpreting the model rule upon

which former DR 7-102(A)(1) was based, and from which Rule

3.4(j) was derived, have found that harassing ad hominem attacks

on opposing counsel are prohibited under the Rule. See, e.g.,

Thomas v. Tenneco Packaging Co., 293 F.3d 1306, 1323 (11th Cir.

2002); In re Vollintine, 673 P.2d 755, 758-59 (Alaska 1983).

We agree with the Supreme Court of Kansas that

[a]ttorneys are required to act with common courtesy
and civility at all times in their dealings with those
concerned with the legal process. . . . An attorney
who exhibits the lack of civility, good manners and
common courtesy . . . tarnishes the entire image of
what the bar stands for.

In re Gershater, 17 P.3d 929, 935-936 (Kan. 2001) (citations

omitted). There is sufficient evidence in the record to support

the Board’s finding that Barrett’s comments to Karnes were

“other action” under Rule 3.4(j) meant to harass her in her

capacity as Rhudy’s attorney.

However, we find that the Board erred in determining a

violation of Rule 3.4(j) on the basis of motions alleged to have

been filed without first notifying the trial court, in violation

of a prior order. On January 24, 2002, Judge H. Thomas Padrick,

Jr., of the Virginia Beach Circuit Court, entered an order

10
requiring Barrett and Karnes to “arrange a conference call with

the Court to discuss any relevant issue,” and that this was to

be done “prior to filing a motion.” The Board found that

despite this order, Barrett “attempted to file numerous motions

in a hearing before Judge Shockley of the Circuit Court of the

City of Virginia Beach without any prior conference call with

the court.”

There are no motions in the record dated after Judge

Padrick’s January 24, 2002, order. The only evidence to

substantiate the Board’s finding is Karnes’ testimony that

Barrett “tried to circumvent that order and began filing things

with Judge Shockley.” There is nothing in the record to show

what “things” Barrett is alleged to have filed or how the

“things” violated Judge Padrick’s order. The record contains no

evidence that any alleged action by Barrett in violation of the

order was ever brought to the attention of the trial court.

Without actual proof of the motions filed in violation of

the order, we cannot agree that the Board’s finding that Barrett

violated Rule 3.4(j) on this ground is “justified by a

reasonable view of the evidence.” Williams, 261 Va. at 264, 542

S.E.2d at 389. Because we find that there was sufficient

evidence that Barrett intended to harass Karnes, we will approve

the Board’s determination of misconduct under Rule 3.4(j) on

that ground, but will set aside that portion of the Board’s

11
Order under that Rule which was based on violating Judge

Padrick’s order of January 24, 2002.

III. Rule 3.4(i)

The Board found Barrett violated Rule 3.4(i), which

prohibits lawyers from “present[ing] or threaten[ing] to present

criminal or disciplinary charges solely to obtain an advantage

in a civil matter.” In the course of his correspondence with

Karnes, Barrett threatened her with a disciplinary complaint or

sanctions four times.

I also ask that you stop attempting to deceive the
court in your pleadings . . . . [T]his conduct
violates Rule 3.3 of the Rules of Professional
Conduct. If you insist on continuing this unethical
conduct, I will seek to have you disbarred.

Should you continue to present motions that lack a firm
foundation in the law and display an utter lack of
proofreading, I will continue to file for sanctions
pursuant to Section 8.01-271.1 of the Code of Virginia.

[S]hould you not immediately begin to proofread your
letters/pleadings to insure [sic] both textual accuracy
and legal faithfulness, I will report you the Virginia
State Bar for your violation of Rule 1.1 of the Rules of
Professional Conduct. [sic]

Please send me a letter informing me as to how you can
ethically justify charging your client for the time you
will be traveling across the states of Virginia and
Tennessee instead of advising her to retain local
counsel? [sic] I ask since your conduct appears to be
in violation of Rule 1.5 of the Rules of Professional
Conduct as to the reasonableness of fees.

Barrett testified that he believed “typographical errors are

a basis for a Bar complaint.” While he did not file a complaint

12
against Karnes, he did make a motion for sanctions based on

typographical errors, which was denied. Barrett argues, however,

that these “threats” were not made “solely to obtain an advantage

in a civil matter.” We disagree.

We find that the succession of threats without a good faith

basis supports the Board’s conclusion that Barrett made these

statements “solely to obtain an advantage” in his divorce

proceeding. It is clear from Barrett’s letters that his

motivation in threatening Karnes with sanctions and disciplinary

complaints was to force her to withdraw from representing Rhudy.

Barrett admits as much in letters to Karnes:

I did indirectly threaten you with a malpractice action
over the incompetent way you have handled this matter
thus far. I did this to encourage [Rhudy] that she can
retrieve from you the money she has wasted on your
services to date and to save me from her appeal on the
basis of inadequacy of counsel.

I ask that you either familiarize yourself with this
area of the law and present pleading [sic] that are in
conformity with the law or comply with your duties under
Rule 1.1 and withdraw as counsel in this matter.

Please advise [Rhudy] not to call me again unless she
has terminated you.

Indeed, Barrett testified that he “was terribly upset that

Ms. Barrett had gotten Ms. Karnes involved in [the] case” because

he “knew that Ms. Karnes had it in for [him].” Thus, we find the

evidence sufficient to support the Board’s finding that Barrett

threatened Karnes with disciplinary complaints in order to obtain

13
an advantage in the divorce and custody proceedings in violation

of Rule 3.4(i).

IV. Rule 3.1

Rule 3.1 provides that “[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.” On October

19, 2001, Barrett filed a motion to strike the pleadings asserting

that he did not know and was not married to the plaintiff, Valerie

Jill Rhudy Barrett. Barrett asked that the pleadings be stricken,

that the case be dismissed and that he be awarded costs. The

motion was denied. Barrett testified before the Board that he

filed the motion because “Valerie Jill Barrett is Jill’s legal

name, not Valerie Jill Rudy [sic] Barrett.”

Barrett argues that the Board’s Order of Suspension does not

state a basis for determining that the motion was frivolous and

that the filing of the motion was never specifically connected to

the Board’s conclusion that he violated Rule 3.1. Although the

Board’s Order does not directly tie the Rule 3.1 violation to the

motion to strike the pleadings, we find that the record clearly

supports a finding that Barrett violated the Rule.

Barrett’s motion to strike the pleadings is the only pleading

which the Bar argues proves its contention that he violated Rule

3.1. The Bar argued that Barrett clearly knew Rhudy’s maiden

name, and that Barrett himself used multiple versions of Rhudy’s

14
name in his own motions. This obviates Barrett’s claim that he

was concerned with consistency in the pleadings. Thus we find

that the record supports the Board’s finding that Barrett violated

Rule 3.1.

V. Rule 3.5(e)

Rule 3.5(e) prohibits ex parte contact by lawyers with the

court:

In an adversary proceeding, a lawyer shall not
communicate . . . as to the merits of the cause with a
judge . . . except: . . . (2) in writing if the lawyer
promptly delivers a copy of the writing to opposing
counsel.

On April 2, 2002, Barrett sent a letter to Judge Padrick

arguing that Rhudy was unfit to have custody of the children and

that he should be awarded custody. The letter indicates that

copies were sent to the children’s court-appointed psychologist

and the guardian ad litem. There is no indication that the letter

was sent to Karnes. Karnes testified that she first became aware

of the letter after a telephone call from the court.

Barrett’s counsel admitted to the Board that he could not

“say categorically that [Barrett] sent [the] letter to [Karnes].”

On appeal, Barrett declined to ask this Court to set aside the

Board’s finding as to his violation of Rule 3.5(e). Thus, we will

affirm the Board’s finding that Barrett violated Rule 3.5(e) for

an ex parte communication with the trial court.

VI. Rule 8.4(b)

15
 In November 2001, Judge Shockley entered an order in the

Virginia Beach Circuit Court requiring Barrett to pay $1704 per

month in child support. In February 2002, Judge Padrick entered

another order requiring Barrett to pay Rhudy $1000 per month in

spousal support. Between November 2001 and July 2004, Barrett

missed ten payments and made six payments in amounts less than the

monthly amount due. When Barrett did make payments, he often paid

in excess of the monthly amount due in order to make up

arrearages. Barrett testified that he “paid when [he] had the

ability” and that he never had “a willful desire to [disregard the

child support order].”

On August 14, 2002, Judge Padrick found Barrett in contempt

of court for failure to timely pay his support obligations. On

March 24, 2003, Judge Tompkins of the Grayson County Juvenile and

Domestic Relations District Court also held Barrett in contempt

for failure to pay child support. Both contempt orders sentenced

Barrett to confinement in jail, but were suspended upon condition

he pay the arrearages. On the basis of these two contempt

charges, the Board found Barrett in violation of Rule 8.4(b). 4 In

so finding, the Board cited Barrett’s ability to make $900 monthly

4
On argument before this Court, the Bar conceded that it did
not seek a rule that contempt of court for failure to pay child
support is per se a violation of Rule 8.4(b). We do not find
there is such a per se rule, but it is unnecessary to further
address that point because we resolve the issue of violating Rule
8.4(b) on other grounds.

16
payments on a new Corvette sports car from October 2001 through

April 2004 and his representation that he would lose $1400 per day

if he had “to travel from Virginia Beach to Grayson County for

court proceedings.”

Rule 8.4(b) states that “[i]t is professional misconduct for

a lawyer to: . . . commit a criminal or deliberately wrongful act

that reflects adversely on the lawyer’s honesty, trustworthiness

or fitness to practice law.” Barrett maintains that a finding of

contempt for failure to meet his support obligations does not

constitute a criminal act in this case, was not a deliberately

wrongful act and does not necessarily reflect adversely on his

honesty, trustworthiness or fitness to practice law.

In response, the Bar cites Code § 63.2-1937, which includes

lawyers in the class of state-licensed professionals who can lose

their licenses for failing to pay child support. Thus, the Bar

argues that consistency with the statutory obligations requires a

finding that Barrett’s failure to meet his support obligations in

conjunction with his ownership of the Corvette was a deliberate,

wrongful act reflecting adversely on his trustworthiness and

fitness to practice law.

There is nothing in the record to show Barrett was guilty of

criminal contempt as opposed to civil contempt. Thus, we must

examine the record to determine whether, in this case, the Bar

proved that Barrett’s contempt convictions were the result of a

17
“deliberately wrongful act,” i.e. disregarding his obligation to

pay child support, which reflects adversely on his honesty,

trustworthiness and fitness to practice law. We find that

connection lacking on this record.

Barrett testified that he purchased the Corvette in October

of 2001, a month before his support obligations began, and then

unsuccessfully attempted to sell the car. He also missed several

car payments, and maintains that he never missed a support payment

so he could make a car payment.

Barrett also argues that his representation that he would

lose $1400 per day if he were compelled to attend court

proceedings in Grayson County, was not based on actual earnings,

but on his billable rate of $175.00 per hour over an eight hour

day, although he primarily operates on a contingent fee basis.

The Bar presented no evidence that Barrett earned $1400 daily, or

what law practice expenses would be paid from such earnings.

Barrett provided the only evidence as to his financial situation.

Thus, we find that there is no basis for the Board’s reliance on

the supposition that Barrett had the ability to pay his support

obligations because he earned $1400 per day.

The Bar presented no evidence that Barrett’s failure to pay

child and spousal support was willful or intentional. Barrett

showed that he made payments when he settled cases and received

his contingency fee, which is the nature of his law practice. He

18
also maintained that he never made payments on the promissory note

he obtained to purchase the Corvette when he could not make his

support payments. Barrett also testified he tried to sell the

Corvette but “could not liquidate it for whatever [he] owed on

it.” To make his support payments, Barrett had to borrow money

from his grandmother. Eventually, Barrett filed for bankruptcy.

The Bar presents no evidence to the contrary. Thus, we do not

find sufficient evidence in the record to support a finding by the

Board of a “deliberately wrongful act” within the meaning of Rule

8.4(b).

Further, the Bar did not establish a nexus between the

failure to pay child support and Barrett’s fitness to practice

law. Instead the Bar relied upon conclusory statements:

[I]n terms of relating [the contempt charge] to Mr.
Barrett as an attorney, the contempt finding is a
finding . . . that he could have . . . abided by a court
order and failed to do so. Surely that reflects on his
fitness to practice, if not his trustworthiness.

The required nexus between the contempt convictions and Barrett’s

honesty, trustworthiness and fitness to practice law has not been

established by these conclusory statements. We will therefore set

aside the finding of the Board that Barrett violated Rule 8.4(b).

VII. Conclusion

The Board’s suspension order of Barrett's license to practice

law for three years was based on Barrett's violations of Rule 3.1,

Rule 3.4(i), Rule 3.4(j), Rule 3.5(e), Rule 4.3(b), and Rule

19
8.4(b). For the reasons set forth above, we will set aside the

Board’s determination that Barrett violated Rule 4.3(b), Rule

8.4(b), and Rule 3.4(j), in part. We will affirm that portion of

the Board’s Order that Barrett violated Rule 3.1, Rule 3.4(i),

Rule 3.5(e), and Rule 3.4(j), in part.

Accordingly, the Order of the Board, dated August 5, 2004,

will be affirmed in part, reversed in part, and the case will be

remanded for reconsideration of any sanction for Barrett's

violations of Rule 3.1, Rule 3.4(i), Rule 3.5(e), and Rule 3.4(j),

in part.

Affirmed in part,
reversed in part,
and remanded.

JUSTICE KEENAN, with whom CHIEF JUSTICE HASSELL and SENIOR
JUSTICE COMPTON join, concurring in part and dissenting in part.

I respectfully dissent from the majority’s holding that

Barrett did not violate Rule 4.3(b). In my opinion, the

majority’s holding effectively creates a “spousal exception” to

the Rule and permits a lawyer to engage in otherwise prohibited

conduct dispensing legal advice as long as the lawyer’s spouse,

rather than an unrelated person, is the affected pro se party.

I also dissent from the majority’s holding that Barrett did not

violate Rule 8.4(b) which, among other things, recognizes as

professional misconduct any deliberately wrongful act that

reflects on a lawyer’s trustworthiness. I would hold that

20
Barrett violated this Rule by twice being held in contempt of

court for nonpayment of court-ordered support. I concur in the

balance of the majority’s opinion.

In reaching its conclusion that Barrett did not violate

Rule 4.3(b), the majority states that Barrett “did not purport

to give [his wife] legal advice.” A brief review, however, of

the statements considered by the majority leads me to the

opposite conclusion.

In his statements to his estranged wife, Barrett advised

her that under Virginia law, all court proceedings would be held

in Virginia Beach. With regard to the issue of spousal support,

Barrett explained that the court would employ the legal doctrine

of imputed income to determine the value of her skills and

experience “in the marketplace.”

Barrett further stated that “spousal support is based on

the maxim [of] . . . the needs of the one versus the other’s

ability to pay.” Citing facts relating to the parties’

situation, Barrett then offered his judgment that it was

“unlikely” that his wife would be able to obtain court-ordered

support. With regard to the issue of child custody, Barrett

told his wife that the “court will prefer the children staying

with a [parent],” rather than with a substitute caregiver during

working hours.

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 I would hold that these explanations constituted legal

advice intended to influence the conduct of a party who had

conflicting legal interests and who was not represented by

counsel. Without question, Barrett’s conduct would have been a

violation of Rule 4.3(b) had he communicated this advice to a

pro se litigant whose spouse Barrett was representing. Thus,

the majority’s conclusion necessarily implies that there is a

“spousal exception” to Rule 4.3(b), under which an attorney may

attempt to influence his or her spouse’s conduct by imparting

legal advice in a harassing manner regarding the parties’

conflicting legal interests.

Such a conclusion, however, is contrary to the plain

language of Rule 4.3(b), which provides no “spousal exception.”

Moreover, Barrett’s use of legal advice as a “sword” in his

marital conflict is clearly a type of conduct that Rule 4.3(b)

is designed to discourage. It is hard to imagine a situation in

which an attorney would be in a stronger position to improperly

influence another’s conduct by giving legal advice.

With regard to Barrett’s alleged violation of Rule 8.4(b),

the majority states that the Bar “presented no evidence that

Barrett’s failure to pay child and spousal support was willful

or intentional.” The majority fails to explain why findings by

two judges, holding Barrett in contempt of court and imposing

suspended jail sentences for his failure to comply with court

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orders, is not evidence of deliberately wrongful conduct

reflecting adversely on Barrett’s trustworthiness.

Contempt findings manifest more than a mere arrearage in

court-ordered support payments, which can result even when a

person is doing everything possible to comply with a court

order. The contempt findings and suspended jail sentences

imposed in Barrett’s case necessarily reflect the judges’

conclusions Barrett was not diligently attempting to meet his

support obligations, and that his explanations for failing to do

so were incredible or otherwise unacceptable. I would hold that

these repeated contempt findings are sufficient evidence to

support the Board’s conclusion that Barrett violated Rule

8.4(b).

Therefore, I would conclude that the Bar’s findings that

Barrett violated Rules 4.3(b) and 8.4(b) are supported by a

reasonable view of the evidence and are in accordance with the

law. See Williams v. Virginia State Bar, 261 Va. 258, 264, 542

S.E.2d 385, 389 (2001); Myers v. Virginia State Bar, 226 Va.

630, 632, 312 S.E.2d 286, 287 (1984).

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