Northam v. Virginia State Bar ( 2013 )

PRESENT: All the Justices
THOMAS LONG NORTHAM
OPINION BY
v. Record No. 121623 JUSTICE LEROY F. MILLETTE, JR.
FEBRUARY 28, 2013
VIRGINIA STATE BAR
FROM THE VIRGINIA STATE BAR DISCIPLINARY BOARD
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
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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
3
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
*
We note that the language of the three assignments of
error recited above and presented in the appellant's opening
brief varies slightly from that appearing in the five
assignments of error presented in the notice of appeal
originally filed with the Disciplinary Board on August 31,
2012. It is well established that the Court will not consider
assignments of error as modified by an appellant's opening
brief, but only as granted by the Court. White v.
Commonwealth, 267 Va. 96, 102-03, 591 S.E.2d 662, 665-66
(2004). Even so, we have previously held that "[w]hile it is
improper for an appellant to alter the wording of a [granted]
assignment of error . . . non-substantive changes to an
assignment of error . . . do not default the issue raised."
Dowdy v. Commonwealth, 278 Va. 577, 590 n.14, 686 S.E.2d 710,
717 n.14 (2009) (citing Allstate Ins. Co. v. Gauthier, 273 Va.
416, 418, 641 S.E.2d 101 n.* (2007)). Because the changes
involved here are non-substantive (substituting "Appellant's"
for "Respondent's" and "Appellant" for "Respondent" in a few
locations), and do not permit the appellant to argue a
different issue on appeal, we may properly consider the
modified assignments of error. Id.; see also Hudson v. Pillow,
261 Va. 296, 301-02, 541 S.E.2d 556, 560 (2001) (same). In
addition, while the two assignments of error filed but not
appearing in this brief under the heading "Assignments of
Error" are waived, Dowdy, 278 Va. at 590 n.14, 686 S.E.2d at
717 n.14 (citing Rules 5:27 and 5:17(c)), we can nevertheless
"reach the underlying issues raised in omitted assignments of
error because [another] assignment of error encompasses the
same issues and because [the appellant] briefed those issues."
See id. Thus, to the extent that issues pertaining to
appellant's omitted assignments of error are encompassed by the
presented assignments of error and are sufficiently briefed, we
may properly consider them.
4
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
5
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
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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
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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. Northam must 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 of Fact' d[id] not prove the ethical
misconduct charged by clear and convincing evidence." Pappas
8
v. Virginia State Bar, 271 Va. 580, 587, 628 S.E.2d 534, 538
(2006); see also Rice v. Virginia State Bar, 267 Va. 299, 300-
01, 592 S.E.2d 643, 644-45 (2004).
The findings of fact included in the Board's disposition
in the present matter state:
2. There is substantial evidence to sustain a
violation of Rule 1.10 (Imputed
Disqualification). The confidential
information Ms. Adams provided to
Respondent's partner, Lewis, was imputed to
Respondent. Respondent learned of his
partner's meeting with Ms. Adams wherein she
intended to engage his partner to represent
her in a divorce, child custody and support
matter, and her disclosure to Lewis of
relevant confidential information was imputed
to him. Based on the confidential
information Ms. Adams provided to Lewis,
Lewis could not have represented Mr. Adams
had Mr. Adams later sought his representation
in the divorce. Lewis's meeting with Ms.
Adams without first determining whether there
was any conflict that would bar his
representation of Ms. Adams had the effect of
disqualifying Respondent from likewise
representing Mr. Adams because of what Lewis
had learned from Ms. Adams was imputed to
Respondent. Respondent continued to
represent Mr. Adams without requesting and
obtaining an informed consent from Ms. Adams
permitting his continued representation of
her husband.
(Emphasis added.)
The finding that "Respondent learned of his partner's
meeting with Ms. Adams" does not in itself support the
conclusion that Northam knew that Lewis was disqualified from
representing Mr. Adams in that Ms. Adams revealed information
9
to Lewis that falls under the protection of Rule 1.6(a), or
that Lewis's ability to represent Mr. Adams would have been
"materially limited by [Lewis's] responsibilities" to Ms. Adams
under Rule 1.7(a)(2). The Board's findings of fact leave out
the crucial connection between Northam's knowledge of a meeting
between Lewis and Ms. Adams and the inference that Northam
"knew" of Lewis's disqualification.
The Bar argues that a review of the record in its entirety
supports the inference that Northam knew Lewis declined to
represent Ms. Adams because he was disqualified from
representing either party. During the hearing before the
District Committee, which the Board reviewed in its entirety,
Lewis testified that he told Northam of his meeting with Ms.
Adams and, after learning that Northam was representing Mr.
Adams, stated "I think we have a problem and I'm getting out."
Northam, however, testified before the District Committee as
follows:
Q. Did he ever tell you that . . . he had a
meeting with Ms. Adams?
A. [I w]as contacted, I recalled. So, obviously,
I knew [Lewis] had been contacted somehow by [Ms.
Adams] because he wouldn't have asked the
question unless there had been contact, but he
didn't go into the details.
Q. But he didn't tell you that he had
[previously] had a meeting, in-office
consultation with her?
A. No.
10
. . . .
Q. You heard your partner's testimony about that
discussion he had with you following this meeting
with Ms. Adams, and he said
. . . something to the effect of either I've got
a problem or we've got a problem and I've got to
get out. Do you recall whether he said I or we?
A. The conversation concluded with my indicating
that I was representing Mr. Adams. If he had
indicated that we had a problem, I would have
asked more questions, but that was not done.
That would have given me some indication that I
have to follow up on something and ask something
else, but when I indicated that I was
representing Mr. Adams, that concluded the very
brief encounter and he left my office.
The District Committee could have resolved the factual
inconsistency between the testimony of Lewis and that of
Northam, or found that the context of the meetings or some
other basis resulted in the inference that Northam knew about
Lewis's disqualification, but it did not do so in its findings
of fact. The District Committee's findings include:
4. On April 13, 2010, Ms. Adams returned to
Respondent's firm and met with Mr. Lewis with
the intention of hiring him to represent her
in divorce, child custody and support
matters. Ms. Adams provided Mr. Lewis with
confidential information related to her
marriage to Mr. Adams and the events leading
to their separation, including Mr. Adams'
alleged anger management issues and adultery.
Ms. Adams shared with Mr. Lewis information
not known to Mr. Adams, specifically, that
Ms. Adams had proof of Mr. Adams' alleged
adultery.
11
. . . .
6. On April 14, 2010, Respondent told Mr. Lewis
that he was representing Mr. Adams and Mr.
Lewis told Respondent that he had met with
Respondent the day prior.
(Emphasis added.)
The District Committee's findings establish only that
Lewis and Ms. Adams met, that Ms. Adams disclosed confidential
information to Lewis during their meeting, and that Lewis
subsequently communicated to Northam that he met with Ms.
Adams. While the Board could have concluded in its findings of
fact that Northam had actual knowledge of Lewis's
disqualification, or that such actual knowledge was inferred
from the circumstances, that finding was not made. Because of
the different possible conclusions that could be derived from
the evidence, we decline to draw a conclusion or inference that
the Board did not.
This analysis is wholly consistent with our holdings in
Pappas and Rice. Although in both Pappas and Rice we
ultimately found the evidence insufficient to support the
Board's finding by clear and convincing evidence, these
holdings must be viewed in the context of the basis for the
results.
In Pappas, we concluded that only one of the Board's
findings of fact could have been the basis for sustaining a
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violation of Rule 8.4(c). 271 Va. at 588, 628 S.E.2d at 539.
That finding considered conflicts in testimony between the
respondent attorney and other witnesses considered by the
Board. We held that "this one finding is not sufficient to
support the Board's determination that Pappas" violated Rule
8.4(c) because he "engaged 'in conduct involving dishonesty,
fraud, deceit, or misrepresentation which reflects adversely on
[Pappas'] fitness to practice law' by clear and convincing
evidence." Id. at 588, 628 S.E.2d at 538-39.
The facts in Rice involved an alleged violation of Rule
8.1(c), which provides that an attorney "shall not fail to
respond to a lawful demand for information from [a]
disciplinary authority." 267 Va. at 300, 592 S.E.2d at 644.
We recognized that, "[w]hile Rule 8.1(c) may be violated by
failure to appear at a hearing before a disciplinary committee
or Board, in this case, the Disciplinary Board's findings of
fact do not support its conclusion that Rice violated the
rule." Id. We explained that a summons to appear at a hearing
may be considered a demand for information under Rule 8.1(c) if
the Board finds that the hearing was for the purpose of
gathering sworn testimony from the respondent, but because the
Board failed to include a finding that the "committee was
unable to gather information from Rice as a result of Rice's
failure to appear," its determination was "by clear and
13
convincing evidence unsubstantiated." Id. at 301, 592 S.E.2d
at 644-45.
Neither Pappas nor Rice contains any discussion of the
record beyond the explication of the Board's insufficient
findings of fact. Both cases involved findings of fact that
provided insufficient bases for the Board's conclusions that
the respective rules were violated by clear and convincing
evidence. The Board is delegated with the responsibility to
resolve often complex and detailed disputed fact situations
that may or may not constitute violations of professional
responsibility. See Va. Sup. Ct. R., Part 6, § IV, ¶13-19(E).
An attorney charged with a violation of professional
responsibility is entitled to findings of fact that contain a
clear statement of how the Board resolved disputed issues.
In the present case, the issue in dispute was whether
Northam continued representing Mr. Adams when he "knew" that
Lewis, his partner, was disqualified. Nothing in the Board's
findings of fact resolves this issue. The Board was not
required to establish that Northam knew why Lewis was
disqualified, but the Board was required by the language of the
Rule to establish by clear and convincing evidence that
Northam's continued representation of Mr. Adams was with the
knowledge that Lewis was disqualified from said representation.
Had the Board made this determination, we would have reviewed
14
the entire record for reasonable inferences in support of its
determination, and viewed conflicts in the evidence in the
light most favorable to the Bar as the prevailing party. But
lacking any factual determination by the Board as to Northam's
knowledge of disqualification, we will not inspect the record
to determine facts required to establish a violation of the
rule.
We therefore hold, based on the Board's findings of fact,
that under the specific circumstances of this case we cannot
affirm the Board's conclusion that Northam knew that Lewis was
disqualified from representing Mr. Adams. Without this element
of knowledge, a material element of Rule 1.10(a), we will not
impute Lewis's disqualification to Northam and the order of the
Board will be reversed.
C. Waiver of Attorney-Client Privilege
Northam also argues that the Board erred in upholding the
District Committee's decision that permitted Ms. Adams'
attorney to limit his testimony before the District Committee
by exercising attorney-client privilege. We will not reach
this Assignment of Error because our disposition as to
Assignments of Error One and Two is dispositive.
III. Conclusion
The Board's findings of fact do not support its conclusion
by clear and convincing evidence that Northam knowingly
15
represented Mr. Adams when Lewis, his partner, was prohibited
from doing so under the Virginia Rules of Professional Conduct.
Therefore, Lewis's disqualification could not be imputed to
Northam under Rule 1.10(a). We will reverse the order of the
Board and dismiss the charge of misconduct.
Reversed, vacated, and dismissed.
JUSTICE POWELL, dissenting.
The majority holds that there is not enough evidence in
the record for us to conclude that Northam knew that Lewis was
disqualified from representing Mr. Adams. I respectfully
disagree with the majority’s conclusion that the factual
findings of the Board were insufficient. Because the majority
holds that the evidence is insufficient, it does not reach the
issue of whether the trial court improperly excluded portions
of Dix’s testimony. I would further hold that any error in
excluding the testimony of Ms. Adams’ counsel, Thomas B. Dix,
Jr., was harmless. Therefore, I would affirm the decision of
the Virginia State Bar Disciplinary Committee.
A. Violation of Rule 1.10
The review of the entirety of the record shows that Ms.
Adams met with Lewis to retain him to represent her in a
divorce proceeding. While meeting with Lewis, she told him
about evidence that she had that could be detrimental to Mr.
16
Adams. After she told Lewis that evidence, he asked who was
representing Mr. Adams. Ms. Adams responded “I believe it was
a Northam something. . . . I don’t know offhand.” Lewis asked
her “[i]s it a Tommy Northam?” and Ms. Adams stated “that
sounds about right.” At that point, Lewis informed her that he
could not talk with her any longer until he “check[ed] notes
and [saw] if [Mr. Adams] had spoken with Mr. Northam.” Lewis
immediately exited his meeting with Ms. Adams and asked
Northam’s secretary whether Northam had spoken with Mr. Adams.
When the secretary indicated that Northam had, Lewis knew that
he could not represent Ms. Adams. The next day, Lewis told
Northam that he had interviewed Ms. Adams and Northam indicated
that he was representing Mr. Adams. Lewis told Northam “I
think we have or I have or I think we have a problem and I’m
getting out.” Lewis did not reveal anything that Ms. Adams
told him to Northam or anyone. Northam told the Bar
investigator that he did not withdraw because he did not
believe that there was a conflict as he did not know any
details about Lewis’s meeting with Ms. Adams and because he
felt that he had a duty to his client and the court to not
withdraw.
The Virginia Rules of Professional Conduct prohibit an
attorney from representing a client if that representation
involves a concurrent conflict of interest. Rule 1.7(a). The
17
Rule further states that a concurrent conflict of interest
exists where “the representation of one client will be directly
adverse to another client” or “there is significant risk that
the representation of one or more clients will be materially
limited by the lawyer's responsibilities to another client, a
former client or a third person or by a personal interest of
the lawyer.” Rule 1.7(b) This conflict may be waived by the
written consent of all involved clients, if certain conditions
are met. Id. “While 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” Rule
1.7, among others. Rule 1.10(a).
Here, it is clear that no attorney-client relationship had
formed between Ms. Adams and Lewis, but I believe that the
expectation of privacy did because Lewis did not provide a
disclaimer about confidentiality and Ms. Adams shared
information that she believed would be detrimental to her in
the divorce proceeding were Mr. Adams to know that she
possessed such information.
The majority concludes that because the Disciplinary Board
did not make a specific factual finding as to whether Lewis
communicated to Northam that he had a conflict or whether he
only stated that he met with Ms. Adams, the evidence is
insufficient to conclude that Northam knew that a conflict
18
prevented Lewis from representing Mr. Adams. This narrow view,
however, results in a reinterpretation of the law. Under this
perspective, the majority is either saying 1) that this Court
relies only on the specific factual findings made by the
District Committee and no longer reviews the entire record for
reasonable inferences, or 2) this Court continues to review the
entire record but resolves conflicts in the evidence in favor
of the losing party rather than the party that prevailed below.
We have previously held that
we conduct an independent examination of the
record, considering the evidence and all
reasonable inferences therefrom in the light
most favorable to the prevailing party below,
and we give the factual findings . . .
substantial weight, viewing them as prima facie
correct.
Barrett v. Virginia State Bar, 272 Va. 260, 268-69, 634 S.E.2d
341, 345-46 (2006)(emphasis added). Our review of the record
is not only to determine whether the inferences support each
specific factual finding made by the Board, but is conducted to
determine whether the evidence in the record and all the
reasonable inferences drawn from that evidence support the
result. Thus, either interpretation of the majority’s position
is a radical departure from the law.
In support of their position, the majority relies upon,
Pappas v. Virginia State Bar, 271 Va. 580, 628 S.E.2d 534(2006), and Rice v. Virginia State Bar, 267 Va. 299, 592 S.E.2d
19643 (2004), two cases in which the record simply did not
contain the evidence to support the findings or reasonable
inferences therefrom. See Pappas , 271 Va. at 588-89, 628
S.E.2d at 539 ("the evidence was insufficient to find by clear
and convincing evidence that [the attorney] violated [the]
Rule"); Rice, 267 Va. at 301, 592 S.E.2d at 644-45 ("the
Disciplinary Board's determination that the Bar proved a
violation of Rule 8.1(c) by clear and convincing evidence is
unsubstantiated"). By contrast, upon reviewing the entire
record in the present case, I believe that there is sufficient
evidence from which the District Committee and Disciplinary
Board could have concluded that Northam knew that a conflict
prevented Lewis from representing either Laura or Thomas Adams.
Therefore, the facts of this case are clearly distinguishable.
Here, the testimony of Lewis, Northam, and Ms. Adams is
sufficient to establish that she told Lewis confidential
information about what she knew about Mr. Adams’ alleged
affair, Lewis told Northam that he (Lewis) had met with Ms.
Adams and believed that either he (Lewis) or both of them had a
problem. Thus, based on what he learned, Lewis would have a
concurrent conflict and could not represent Mr. Adams. Because
Lewis and Northam were members of the same firm at that time,
this conflict was imputed to Northam even though Northam was
already representing Mr. Adams. See Rule 1.10. In light of
20
the clear inferences to be drawn from the record, the fact that
the Bar did not make this specific factual finding is too thin
a reed upon which to decide this case. Therefore, I would
affirm the Bar’s admonition without terms.
B. Admissibility of Testimony from Wife’s Attorney
Because I believe that the evidence was sufficient and
would affirm the Bar as to Northam’s first four assignments of
error, I would also reach his fifth assignment of error: “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.”
During direct examination, Northam asked Dix, who
represented Ms. Adams in the divorce proceedings and in
proceedings related to Northam’s representation of Mr. Adams,
whether he had any discussions with Ms. Adams leading up to the
mediation about Northam representing Mr. Adams. Dix declined
to answer on the grounds that the information was subject to
attorney-client privilege. Northam argued that Dix cannot now
assert the privilege because Ms. Adams testified about her
complaint against Northam and made representations about what
Dix did or did not tell her, thus putting those matters in
issue, and that it was up to Ms. Adams to assert the privilege.
21
Northam argued that Ms. Adams “opened the door” because her
testimony materially relied on conversations between herself
and Dix. He maintained that this was the classic “sword and
shield” situation, contending that permitting Dix to rely on
the privilege as a basis to refuse to testify was "using the
privilege as a shield" and was "not fair" given Ms. Adams'
prior use of the privilege as a "sword" in her effort to
establish a violation of the Rules. When Ms. Adams was asked
if she would waive the privilege to allow Dix to testify, she
stated that if he did not want to answer it, she was not going
to waive the privilege. The committee ruled that Dix did not
have to answer. Dix then testified that before the mediation,
he did not tell any third parties that Ms. Adams did not want
Northam to represent Mr. Adams.
“Under the doctrine of harmless error, we will affirm the
circuit court’s judgment when we can conclude that the error at
issue could not have affected the court’s result.” Forbes v.
Rapp, 269 Va. 374, 382, 611 S.E.2d 592, 597 (2005). While the
District Committee ruled that Dix did not have to testify, he
testified with regard to every point covered with Ms. Adams on
cross-examination. Therefore, all of the evidence that related
to statements made by Ms. Adams was covered in cross-
examination of Dix. Thus, the Committee’s ruling did not
affect the result.
22
Northam also sought to elicit testimony about Ms. Adams’
purpose for speaking with Lewis. Ms. Adams, however, did not
testify as to why she sought to retain Lewis as her attorney.
Therefore, she did not waive the attorney-client privilege as
to this topic and I would hold that the Bar did not err in not
allowing Dix to testify on this subject.
Thus, I believe there is sufficient evidence in the record
to show that Northam violated Rule 1.10. I would further hold
that the Bar did not err in not allowing Dix to testify about
why Ms. Adams sought to retain Lewis, and to the extent the Bar
erred in not admitting testimony from Dix, that error was
harmless. Therefore, I would affirm Northam’s admonition
without terms for violating Rule 1.10.
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