Virginia Appellate News & Analysis © 2006

SUSPENDED ATTORNEY COSTS LITIGANT HER APPEAL

 

[Posted October 26, 2006]

Last year, the Supreme Court ruled in Nerri v. Adu-Gyamfi that an appeal filed by a suspended attorney was a nullity.  That ruling produced a harsh but inescapable result for the appellees, as the appellate court struck their case, most likely after the expiration of the statute of limitations.  On Tuesday, October 24, the Court of Appeals follows suit, dismissing a domestic relations appeal for want of jurisdiction, because the appellantís attorney was suspended at the time he filed the (jurisdictional) notice of appeal.  The case is Jones v. Jones.

The factual difference between the two cases lies only in the timing of the suspension.  In Nerri, the attorney was suspended at the time he filed the suit in circuit court; in Jones, the problem arose at the time the attorney invoked appellate jurisdiction.  But the analysis, and the courtsí rulings, are the same.

If the analysis is so similar, then why is the case published?  I donít have any inside information here, but my sense is that both courts recognize that this type of outcome punishes innocent litigants for the sins of guilty lawyers, a circumstance pointed out by Justice Koontz in a plaintive dissent in Nerri.  I believe that both courts are emphasizing the inevitability of this outcome, in the absence of curative legislation that would give the courts jurisdiction, however tentative, over such cases, pending the substitution of counsel in good standing.  That suspicion comes from the knowledge that jurists in both courts genuinely dislike procedural dismissals, and try to avoid them where they can.  Personally, I would like to see such legislation, for reasons of fundamental fairness as well as to avoid further damage to the publicís view of our profession.

By the way, in an intervening case in the Supreme Court, Kone v. Wilson, no one expressed such a regret.  Thatís because the unlicensed filer in that case wasnít an attorney at all; it was an ostensible party who misjudged his own right to file pro se pleadings, when the cause of action actually belonged to others.  In that instance, the ďpartyĒ brought the problem down on his own head.

_________

The Court of Appeals also significantly announces the granting of en banc review in Glenn v. Commonwealth, the very interesting unreasonable search case handed down in August.  The panel decision featured an interesting debate by two of the courtís most prolific writers, Judges Humphreys and Kelsey.  Now the full court will get to take a crack at this question.


 

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