Northam v. Va. State Bar

• Decision Date: 28 February 2013
• Docket Number: Record No. 121623.
• Citation: 737 S.E.2d 905
• Parties: Thomas Long NORTHAM v. VIRGINIA STATE BAR.
• Court: Virginia Supreme Court

737 S.E.2d 905

Thomas Long NORTHAM

v.VIRGINIA STATE BAR.

Record No. 121623.

Supreme Court of Virginia.

Feb. 28, 2013.

Bernard J. DiMuro, Alexandria (Michael S. Lieberman, Alexandria; Reeves W. Mahoney, Virginia Beach; DiMuroGinsberg; Poole Mahoney, on briefs), for appellant.

Mike F. Melis, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Wesley G. Russell, Jr., Deputy Attorney General; Peter R. Messitt, Senior Assistant Attorney General, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice LEROY F. MILLETTE, JR.

In this appeal of right from an order entered by the Virginia State Bar Disciplinary Board (Board), we consider whether an attorney violated Rule 1.10(a) of the Virginia Rules of Professional Conduct.

I. Background

Thomas Long Northam is an attorney licensed to practice law in Virginia. During the relevant time period, Northam was a partner in Poulson, Northam & Lewis, PLC (the Firm) in Accomac, Virginia. On April 7, 2010, Laura Ashley Adams (Ms. Adams) visited the Firm with the intention of employing Lynwood W. Lewis, Jr., (Lewis) as her attorney to represent her regarding matters of custody, support, separation, and divorce from her husband, Thomas James Adams (Mr. Adams). The Firm's receptionist arranged for an initial meeting between Ms. Adams and Lewis to be held on April 13, 2010.

On April 9, 2010, Northam, Lewis's partner, received a phone call from Mr. Adams. Mr. Adams indicated that he was seeking representation for a “domestic situation,” which he described in some detail. Northam told Mr. Adams to “tell [him] when he got served and [they] would go from there.”

When Ms. Adams returned to the Firm on April 13, 2010, she met with Lewis, recounted the events leading up to the separation, and informed him of her goals in the divorce proceedings. Lewis took approximately one page of notes during this initial interview before asking if Ms. Adams knew if Mr. Adams had retained an attorney. Ms. Adams answered that he had, and his name was “Northam something.” Lewis stopped taking notes and terminated the interview.

The following day, Lewis spoke with Northam to inquire about Northam's alleged representation of Mr. Adams and to inform Northam that he had met with Ms. Adams. Following this conversation, the Firm's receptionist notified Ms. Adams that Lewis would not be able to represent her in her dispute with Mr. Adams. The receptionist told Ms. Adams that Lewis could not serve as her attorney because Lewis's partner, Northam, had already agreed to represent Mr. Adams in the matter. Ms. Adams sought alternative legal representation. Northam continued to represent Mr. Adams.

Ms. Adams filed a complaint with the Virginia State Bar (Bar). After receiving the complaint and conducting an initial investigation, the Second District Committee of the Bar (District Committee) charged Northam with violations of Rules 1.7(a)(2) (Conflict of Interest), 1.10(a) (Imputed Disqualification), and 1.16(a)(1) (Declining or Terminating Representation) of the Rules of Professional Conduct. At the conclusion of a hearing before the District Committee, Northam was held to have violated Rules 1.7(a)(2), 1.10(a), and 1.16(a)(1), and the District Committee ordered a public admonition, with terms.

Northam appealed the decision to the Board. The Board reversed and dismissed the District Committee's determination that Northam had violated Rules 1.7(a)(2) and 1.16(a)(1), and affirmed the determination that Northam had violated Rule 1.10(a). The Board ordered an admonition, without terms.

Northam made a timely appeal to this Court, assigning three errors to the decision of the Board:

1) The Disciplinary Board erred when it failed to find that the District Committee misinterpreted and misapplied Rule 1.10 because Rule 1.10 is not a strict liability rule of professional conduct and instead requires that Respondent have knowledge that his partner could not ethically represent Appellant's client before imputing the partner's knowledge to [the] Appellant.

2) The Disciplinary Board erred because there was no finding of fact by the District Committee that Appellant knew that his partner had a conflict of interest and was prohibited from representing Appellant's client.

3) The Disciplinary Board improperly upheld the District Committee's error as a matter of law in limiting Appellant's right to examine Ms. Adams' attorney after Ms. Adams had already testified as to her version of communications with her attorney on the same subject.^*

II. Discussion

A. Standard of Review

In reviewing the Board's decision in a disciplinary proceeding, the factual conclusions reached by the Board will be given “substantial weight and [we] view those findings as prima facie correct.” Pilli v. Virginia State Bar, 269 Va. 391, 396, 611 S.E.2d 389, 391 (2005). These conclusions, “[w]hile not given the weight of a jury verdict, ... will be sustained unless they are not justified by the evidence or are contrary to law.” Barrett v. Virginia State Bar, 277 Va. 412, 413, 675 S.E.2d 827, 828 (2009). In conducting this review, we will conduct “an independent examination of the entire record[, viewing] all reasonable inferences that may be drawn from th[e] evidence” in the light most favorable to the prevailing party. Green v. Virginia State Bar, 278 Va. 162, 171, 677 S.E.2d 227, 231 (2009).

B. Whether Northam Had Knowledge of Lewis's Disqualification

Under Rule 1.10(a), “[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.6, 1.7, 1.9, or 2.10(e).” (Emphasis added.)

Northam does not dispute that Lewis, his partner, was prohibited from representing Mr. Adams under Rules 1.6(a) and 1.7(a)(2). Rule 1.6(a) prohibits a lawyer from revealing “information protected by the attorney-client privilege under applicable law or other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” Rule 1.7(a)(2) prohibits a lawyer from representing “a client if the representation involves a concurrent conflict of interest[, which] exists if ... there is significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to ... a third person.” Lewis's disqualification under Rules 1.6(a) and 1.7(a)(2) from representing Mr. Adams was established by clear and convincing evidence and is not questioned by Northam on appeal.

Rather, Northam argues that the Board erred when it imputed Lewis's disqualification to him under Rule 1.10(a) without any evidence to support the conclusion Northam knew that the Rules of Professional Conduct prohibited Lewis from representing Mr. Adams. Northam contends that, because no evidence was presented to establish his knowledge of Lewis's disqualification under either Rule 1.6(a) or 1.7(a)(2), the Bar's determination that he violated Rule 1.10(a) could only be based on an application of strict liability to the Rule's requirements.

Additionally, Northam argues, because Rule 1.10(a) is not a strict liability rule, the Rule's requirement that the conduct be executed “knowingly” is essential to sustaining a violation. This requires a finding of fact establishing Northam's actual knowledge that Lewis was disqualified from representing Mr. Adams, thus imputing Lewis's disqualification to Northam.

The Bar responds that the Board did not apply strict liability when it determined that Northam violated Rule 1.10(a). According to the Bar, the conflict in representing Mr. Adams because of Lewis's receipt of confidential information from Ms. Adams was imputed to all of Lewis's law partners, including Northam. The Bar relies upon Comment [2] to Rule 1.10 that “a firm of lawyers is essentially one lawyer for purposes of the rules governing loyalty to the client.” Thus, by imputing Lewis's knowledge that he had a conflict under Rules 1.6(a) and 1.7(a)(2) to Northam, Northam “knowingly” represented a client, Mr. Adams, who Lewis was prohibited from representing.

The Bar further contends that the Board based its conclusion on facts that allowed the Board to infer, based on the circumstances, that Northam knew Lewis was prohibited from representing Mr. Adams. The Bar argues that it did not err in imputing Lewis's disqualification to Northam because the only reasonable inference to draw from the Board's finding that Lewis “met” with Ms. Adams is that the meeting was for the purpose of representing her in legal proceedings involving her domestic dispute with Mr. Adams. Thus, the Bar contends that the factual finding that Lewis and Ms. Adams met was sufficient to impute Lewis's knowledge of his disqualification to Northam.

Rule 1.10(a) is not a rule of strict liability. The use of “knowingly” in Rule 1.10(a) is not without purpose, but is a separate and distinct element of the Rule that must be proven before a violation can be imposed. Northammust have had knowledge at the time he represented Mr. Adams that Lewis, his partner, was prohibited from doing so.

“Knowingly” is defined in Part 6 of the Rules of Court, Section II, Preamble, as “actual knowledge of the fact in question” and as encompassing knowledge that “may be inferred from the circumstances.” Based on this definition, we agree with the Bar that the Board may in appropriate circumstances infer knowledge of a partner's disqualification from the circumstances of a particular case. We do not agree, however, that the findings of fact made upon the Board's review of the entire record, including the District Committee's findings of fact, support the Bar's argument that Northam had actual knowledge of Lewis's disqualification.

We have previously refused to affirm findings that an attorney violated the Rules of Professional Conduct “because the Board's ‘Findings...