Shea v. Virginia State Bar

• Decision Date: 18 November 1988
• Docket Number: No. 880089,880089
• Citation: 236 Va. 442,374 S.E.2d 63
• Court: Virginia Supreme Court
• Parties: Kevin P. SHEA v. VIRGINIA STATE BAR. Record

Page 63

374 S.E.2d 63

236 Va. 442

Kevin P. SHEA v. VIRGINIA STATE BAR.

Record No. 880089.

Supreme Court of Virginia.

Nov. 18, 1988.

Henry P. Bouffard (Jett, Berkley, Furr & Bouffard, Norfolk, on brief), for appellant.

Caroline Lowdon Lockerby, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Gail Starling Marshall, Deputy Atty. Gen., William H. Hauser, Sr. Asst. Atty. Gen., on brief), for appellee.

Present: CARRICO, C.J., POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ., and GORDON, Retired Justice.

THOMAS, Justice.

This is an appeal of right from an Order of the Virginia State Bar Disciplinary Board in which the Board found that Kevin P. Shea violated DR 5-103(B). That disciplinary rule provides in pertinent part that "[w]hile representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to his client."

In 1984, a seaman came to Shea complaining of personal injuries sustained while working on a barge. The seaman retained Shea on a contingent fee basis. Shea filed suit in federal court. During the pendency of the suit, the client faced eviction notices from his landlord and shut-off notices from the power company. He also had difficulty making automobile payments and meeting other household expenses. Shea came to his client's aid by advancing more than $6,000 in Shea's personal funds to pay his client's creditors. This was a clear violation of DR 5-103(B). Shea conceded as much.

There is no dispute in this appeal concerning the finding of a rule violation. Shea's main contention is that his punishment was too harsh. He argues that instead of a ninety-day suspension, he should have received a public reprimand.

Shea's argument runs as follows: (1) There was a widespread and long-standing practice within the plaintiff's bar in maritime cases to advance living expenses to clients. (2) What Shea did is what many lawyers were doing yet he was singled out for punishment. (3) Shea did not know he was violating the disciplinary rules. (4) The Board wanted to impose nothing more than a public reprimand but imposed a ninety-day suspension, because it was of the mistaken legal view that it was compelled to do so by two recent opinions from this Court. (5) This Court should reverse and remand for reconsideration of his sentence. Shea's contentions are without merit.

Every lawyer in Virginia is expected to be fully aware of each and every disciplinary rule. The rules are public and are disseminated to the bar in the Virginia State Bar Professional Handbook. No lawyer can escape a finding of a violation or the imposition of an appropriate sanction by saying, "I did not know I was violating the rules." Such an argument is nothing more than a recitation of the often made and always rejected excuse of ignorance of the law.

Nor is it a viable excuse for a lawyer to contend, in effect, that "everybody was doing it." Each lawyer has an individual duty to abide by the disciplinary rules. Each lawyer must take pains to "keep his own house in order." Lawyers are trained and encouraged to be independent thinkers deciding for themselves, based on the law, what conduct is appropriate and what is not. Any lawyer who violates the disciplinary rules must stand ready to bear the individual consequences of that violation regardless of what others were doing.

There is an unmistakable undercurrent in Shea's argument to the effect that DR 5-103(B) is not really that important. The suggestion is that it prevents attorneys from being helpful and compassionate to clients who find themselves in dire financial straits during the course of litigation. The question which lurks below the surface of Shea's arguments is this: Why can't a lawyer help a client who needs financial help so long as the client pays the money back from the proceeds of the litigation? The short answer to that question is that the disciplinary rule says that such conduct is improper.

The broader answer is that the rule in question is intended and designed to maintain the independent judgment of counsel in the representation of clients. If a client owes his attorney money, the attorney may have his own pocketbook in mind as he handles the litigation. That attorney might settle for an amount sufficient to cover the loan to his client, while foregoing the risk of a trial where his client could recover a larger amount or lose everything. The policy embodied in DR 5-103(B) is that a lawyer simply should not face this risk to independent judgment. This Court rejects any suggestion that DR 5-103(B) is unimportant.

We turn now to the specific question of the appropriateness of Shea's sanction. We held in Tucker v. Virginia State Bar, 233 Va. 526, 534, 357 S.E.2d 525, 530 (1987), that when this Court reviews a sanction imposed by the Board in a disciplinary proceeding, that sanction "will be viewed on appeal as prima facie correct and will not be disturbed unless, upon our independent examination of the whole record, it appears unjustified by a reasonable view of the evidence or is contrary to law."

As pointed out above, Shea argues that the Board really wanted to limit his punishment to a public reprimand. He...