Lawyer jailed for contempt seeks appellate redemption

A Northern Virginia divorce lawyer who was locked up overnight after crossing swords with a Loudoun County judge is hoping the Court of Appeals will reverse her contempt conviction.

Sterling attorney Rachel L. Virk claims she was hauled out of the courtroom, strip searched, imprisoned and fined after Circuit Judge James P. Fisher found her in contempt for repeatedly requesting clarification of a property order in a Jan. 31 divorce hearing.

Virk is a family law attorney who has been in practice without prior sanction from a court or from the Virginia State Bar since 1990, her petition for appeal said.

Virk contends Fisher’s penalty not only violated her due process rights but also intimidates other lawyers from vigorously asserting their positions before the judge. In addition to her request for a criminal appeal, Virk has filed a complaint against Fisher with the state Judicial Inquiry and Review Commission, according to information provided by a source not involved in either proceeding.

Courtroom clash

The divorce action raised questions about management of the husband’s business interests, according to Virk’s petition. Representing the husband, Virk had argued the judge did not have jurisdiction to impose restrictions on a foreign company in which the parties had been equal shareholders.

At the hearing, Fisher said he accepted the position of the wife’s lawyer and would order the business controls the wife requested, according to the appellate pleadings.

Virk sought clarification. “Are you saying that before he spends any money at his business, he needs the permission of the plaintiff, and Your Honor feels you have the authority to order that?” Virk asked.

“I’ll say it one more time, make it really clear,” Fisher responded. “The court accepts the argument of plaintiff’s counsel … and orders the requested relief … as drafted.”

Virk continued to ask for explanation and justification. Fisher said she was being disrespectful.

“You’ve heard the court’s ruling. We’re going to move on,” the judge said.

“I need the justification for the record,” Virk said.

“I’ve given you justification for the record,” Fisher responded. “If you keep arguing with me, you’re going to be held in contempt. Is that clear?”

Virk tried again.  “As clarification, does he need permission to use business assets?” she asked.

“Let’s go to letter D,” Fisher said, referring to the next item in a pleading.

“I don’t know Your Honor’s ruling,” Virk protested.

Fisher then banged his gavel.

“You’re held in contempt, ma’am. Take custody of Mrs. Virk. Step her back. I impose a penalty of $250 and one night in the county jail. This matter is adjourned,” Fisher said.

‘Assertive’

Represented by lawyers with the Westlake Legal Group in Potomac Falls, Virk contends the judge overreacted.

“Ill-chosen words and ill-considered conduct in the heat of courtroom debate are sometimes the unfortunate byproduct of zealous advocacy,” her counsel acknowledged in her petition for appeal.

“Although there is no record of Ms. Virk engaging in impertinent, injudicious, or disrespectful action, it is also clear that even if she persisted in attempting to obtain clarification of the trial court’s ruling, such action could not be the basis for a summary contempt finding,” the petition read.

Summary contempt requires an “actual obstruction of justice,” the pleading said. The record supports only a conclusion that Virk was “assertive in seeking a ruling,” the petition said.

Procedural issues

Virk’s lawyers also argued the judge ignored procedural protections required for a summary finding of criminal contempt.

The sanction came without notice, Virk argued.

“It was only when Ms. Virk was unconditionally sentenced to a night in jail and was fined, was she apprised that she was being held in criminal contempt. The lack of notice alone constitutes reversible error,” the petition said.

The order came without written explanation, Virk continued.

“Without such a written order, the trial court gives the appearance of a personal attack, or of taking action merely to quell the zealous advocacy of Ms. Vick, and the desire to deter such advocacy by other attorneys in the future who may become aware of their colleague’s incarceration and fine for challenging the court,” wrote attorney Jessica E. McCollum in the petition.

Virk’s lawyers also argued a clerk misstated the conviction by describing a “civil contempt sanction” on the form used to commit Virk to the custody of jailers.

“In fact, no written order was executed by the trial court finding Ms. Virk in criminal contempt,” Virk said.

The commonwealth agreed. In its brief in opposition to the petition for appeal, the commonwealth asked the Court of Appeals to remand the case back to Fisher’s court for entry of a final order.

“Because there is no final order in this case, this Court does not have subject matter jurisdiction and cannot rule on the merits of this appeal,” wrote Loudoun County Assistant Commonwealth’s Attorney Brittany Dunn-Pirio.

Dunn-Pirio indicated the contempt conviction might be vulnerable to challenge in a second appeal, since Virk had no chance to defend her conduct.

“In this case, Virk was denied an opportunity to object to the sufficiency of the evidence of her conviction of contempt of court. When the trial court held Virk in contempt of court, the transcript immediately ended and she was incarcerated for one night,” Dunn-Pirio wrote.

“Once the Circuit Court enters a final order and this Court has subject matter jurisdiction, this issue will be properly before this Court,” the commonwealth’s brief said.

Fast track appointment

Fisher was not available for comment as of press time.

Fisher took office as a judge on July 1, 2019, after election to the bench by the General Assembly that January on a narrow party-line vote. At the time, he was the elected Fauquier County commonwealth’s attorney.

He was fast tracked at the General Assembly with an interview well ahead of the usual schedule for new judicial candidates. He had not sought evaluation by local bar associations that were considering the merits of other candidates.