The Supreme Court of Virginia Thursday overturned the public admonition of an Eastern Shore lawyer who stayed in a divorce case even after the opposing party revealed confidences to the lawyer’s partner.
The case turned on whether the lawyer knew that his partner was ethically barred from staying in the case, which would have disqualified the entire firm.
Thomas L. Northam of Accomac was hired to represent the divorcing husband in 2010. The divorcing wife later tried to hire Northam’s partner, Lynwood W. Lewis Jr. When Lewis learned Northam was already on the case, he sent the wife away, telling her to seek counsel elsewhere.
Northam continued to represent the father and, as litigation wore on, the wife filed a bar complaint and sought to have Northam disqualified from the case.
A VSB district committee imposed a public admonition with terms. On appeal to the VSB disciplinary board, the board trimmed some of the misconduct findings and imposed a public admonition, without terms.
The Supreme Court said the record left out “the crucial connection” between Northam’s knowledge of a meeting between Lewis and the wife and the inference that Northam “knew” of Lewis’s disqualification.
A six-member court majority reversed the disciplinary board and dismissed the misconduct charge against Northam. The majority opinion was written by Justice LeRoy F. Millette Jr.
Justice Cleo E. Powell dissented, complaining the board was shifting its standard of review away from the posture of favoring the prevailing party below.
Northam’s attorney, Bernard J. DiMuro of Alexandria, said the opinion shows that lawyers are entitled to know the specific facts on which a charge of misconduct is based and that imputed disqualification carries a knowledge requirement, unlike other rules. The bar’s argument would make it a matter of “strict liability,” he said.