Thursday, November 20, 2003

Virginia Court of Appeals upholds sanctions in divorce case under 8.01-271.1

In Vinson v. Vinson, the Virginia Court of Appeals in an opinion by Judge Frank, joined by Judge McClanahan and Senior Judge Coleman, upheld the award of sanctions in the amount of more than $20,000 under Va. Code 8.01-271.1 in a divorce case against the wife's lawyer, who failed to withdraw as soon as he should have where he had a conflict of interest as to the validity of a property settlement agreement he had written as to both the husband and the wife.

This is a very interesting opinion. First of all, it recognizes that the lawyer could take an interlocutory appeal on the award of sanctions against him, that since he had withdrawn and was no longer in any way a part of the case, the order was final and he could bring the appeal now rather than at the end of the divorce case. (There was some ambiguous discussion about whether the sanctions motion was or was not part of the divorce case at all, and what was the proper style of the appeal.)

Second, the Court upheld the merits of the sanction ruling. This is probably correct, but I wish it had been made plainer exactly what the lawyer did and when that was wrong. It seems almost like a malpractice claim disguised as a motion for sanctions. Apparently, after the husband file a motion for the lawyer to withdraw, everything that the lawyer did or said other than withdrawing was construed to violate section 8.01-271.1. I don't think that's quite right, but one key difference between the Virginia statute and the federal Rule 11 is that the Virginia law extends to oral as well as written representations (and the federal Rule 11 does not).

Finally, and perhaps most extraordinary, is the Court's affirmance of the amount of sanctions. The lawyer argued that the Court should not award more than the amount of the other side's actual attorneys' fees as a sanction. The appeals court said there was no such limit. If that's true, then I suspect the statute is possibly unconstitutional - in the manner of the contempt fines against the UMWA by the Circuit Court of Russell County, Virginia, that were thrown out by the U.S. Supreme Court in the famous case of International Union, UMWA v. Bagwell, 512 U.S. 821 (1991). (Probably the lawyer has waived this constitutional issue, since it was not discussed in the Court of Appeals' opinion, but maybe not - maybe he ought to petition the Virginia Supreme Court.) Usually, in sanctions litigation, the attorneys' fees alone are so high that making someone pay them is punishment enough, I would think.

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