BARRETT v. VIRGINIA STATE BAR 611 S.E.2d 375 (2005) CASE BRIEF

BARRETT v. VIRGINIA STATE BAR

611 S.E.2d 375 (2005)

NATURE OF THE CASE: Barrett (D), attorney, appealed from a ruling of the Virginia State Bar Disciplinary Board finding that he violated Va. Sup. Ct. R. pt. 6, II, R. 3.1, 3.4(i), 3.5(e), 4.3(b), and 8.4(b).

FACTS: D and Rhudy were married in 1990. D was admitted to practice 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, D 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 D violated this rule because statements in two electronic mail ('e-mail') communications he wrote to Rhudy after the separation, but before she retained counsel, constituted legal advice. D sent an e-mail to Rhudy about venue in Virginia Beach, the doctrine of imputed income, that it was unlikely she will obtain spousal support and would have to help page her fair share of our $200,000+ indebtedness. D stated he would be staying in the marital home and that he would get custody of the kids and she would have to pay spousal support. In the second email he talked about running up the bills for her attorney and that expenses that will greatly exceed $10,000. . . . She would have no case against D for adultery . . . .[and her emails show she was cruel to him and he would obtain a divorce from you on fault grounds, which means you can say goodbye to spousal support. . . .her 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, and the family debt . . . is subject to equitable distribution, which means you could be socked with half my law school debt, half the credit card debt, half the firm debt, etc. Rhudy retained attorney Karen Loftin of Galax. Loftin notified D that she had withdrawn from representation on August 10, 2001. D sent many emails professing his love and for Rhudy to return home professing his love for her and the children and to reunite the family because it was God's will. The Board found that D gave unauthorized legal advice to an unrepresented person in violation of Rule 4.3(b). D claimed a bar in evidence to the use of communications between a husband and wife, and that construing it as such interferes with the sanctity of marriage. D's letters to opposing counsel 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 Supreme Court has passed on the matter of Barrett v. Barrett. You are inept. . . . I beg you to start zealously representing your client with competence and stop wasting her money and my time. The Board found a violation of Rule 3.4(j). In the course of his correspondence with Karnes, D threatened her with a disciplinary complaint or sanctions four times. The Board found D in violation of Rule 8.4(b) for a failure to pay child support.

ISSUE:

RULE OF LAW:

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LEGAL ANALYSIS:

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