Friday, December 8, 2006
Posted by Alan Childress
Harrowing story today in the ABA Journal's online report about a Virginia appellate court's decision to find "no appeal" by a client because the lawyer who filed the notice for her was not technically a lawyer. He was suspended. For thirty days. Based on reciprocal discipline from DC, pending a hearing. But no one had yet told him--nor of course the client. The effect on appeal was that the client was not allowed to pursue alimony, and other decisions against her below including sanctions became unchallengeable.
I agree with the quoted sentiment of ethics prof Rory Little from Hastings that this is "formalism" run amok: in his word, "outrageous" to terminate the client's appeal right. I understand that the lawyer as agent can bind the client by his or her actions, but this? Effectively it creates a duty on clients to check the status of their attorney before trusting that filed papers are valid and timely. I am guessing that clients think the bar or court does that before accepting them! It is not just formalism or pedantic application of agency principles. It is abdication of the courts' implicit promise to supervise the bar before it. Clients would not know the difference between a bar discipline board and the court's clerks office which accepts filings, nor should they assume anything is amiss and somehow protect themselves.
The article understandably makes much of the fact that the lawyer himself did not know he was suspended. I don't care if he did. It's the reasonable expectation and perception of the client that should matter--perceiving reasonably that the lawyer's filing counts and the lawyer is licensed, and expecting reasonably that the courts and bar would tell her otherwise if she is wrong, or give her the chance to re-file with an attorney they find acceptable.