## Facts

- Timothy Martin Barrett was a Virginia lawyer admitted to practice in 1996.
- Barrett and his wife, Valerie Jill Rhudy, separated after a marriage that produced children, and divorce litigation was imminent.
- Before Rhudy retained counsel, Barrett sent her numerous emails. Many were personal (stating he loved her and asking her to return home), but two emails discussed expected outcomes of the divorce.
- In one email, Barrett wrote that “under Virginia law” he would not have to pay spousal support, that he would obtain custody of the children, and that Rhudy would have to pay spousal support.
- In another email, Barrett stated Rhudy “had no case” against him, that he would obtain a fault-based divorce, and that Rhudy’s legal fees would likely exceed $30,000.
- Separate from the emails, the disciplinary record also addressed Barrett’s conduct while handling aspects of the domestic-relations litigation on his own behalf, including actions involving compulsory process and litigation filings directed at third parties and opposing counsel.
- The Virginia State Bar Disciplinary Board found that Barrett committed professional misconduct, including a violation of Rule 4.3(b) (communications with an unrepresented person with potentially conflicting interests), and found additional violations under other Rules of Professional Conduct arising from his conduct in connection with the divorce litigation.
- The Board imposed a three-year suspension (order dated August 5, 2004).
- Barrett appealed to the Supreme Court of Virginia as a matter of right.

## Issues

1. Whether Rule 4.3(b) was violated by Barrett’s emails to his unrepresented estranged spouse discussing divorce-related legal consequences before she retained counsel.
2. Whether the evidence provided clear proof of the additional rule violations found by the Disciplinary Board based on Barrett’s conduct in connection with the divorce litigation.
3. Whether the three-year suspension could stand where the Supreme Court affirmed some findings and reversed others.

## Decision

- The Supreme Court of Virginia affirmed the Disciplinary Board’s decision in part and reversed it in part.
- The Court reversed the Board’s finding that Barrett violated Rule 4.3(b) based on the emails to Rhudy.
- The Court affirmed certain other misconduct findings arising from Barrett’s litigation-related conduct (including misuse of process and filings found to be improper under the governing professional rules), concluding those violations were supported by clear proof.
- Because the Board imposed a single three-year suspension based on the full set of findings, and the Supreme Court did not sustain all of them, the Court vacated the suspension and remanded for the Board to determine an appropriate sanction consistent with the violations that remained.

## Legal Principles

- In Virginia attorney-discipline appeals, the Supreme Court makes an independent review of the record while giving substantial weight to the Disciplinary Board’s factual findings; charges must be proven by clear proof.
- Rule 4.3(b) restricts a lawyer’s giving of legal advice to an unrepresented person (other than advising the person to get counsel) when the person’s interests are reasonably likely to conflict with the interests of the lawyer’s client; the Court required a careful application of the rule to the elements proven in the record.
- A lawyer does not avoid professional regulation merely because the lawyer is acting in a personal matter or appearing on the lawyer’s own behalf; professional duties still govern litigation conduct, including use of compulsory process and dealings with witnesses and opposing counsel.
- Use of litigation tools for purposes not tied to legitimate aims of the proceeding, and filings lacking adequate factual or legal support, can constitute misconduct under rules governing meritorious contentions and fairness to third persons and the tribunal.

## Conclusion

The Supreme Court of Virginia reviewed the disciplinary record and held that the Board could not sustain a Rule 4.3(b) violation based on Barrett’s emails to his unrepresented estranged wife, though it upheld other misconduct findings tied to Barrett’s conduct in the divorce litigation; because the Board’s three-year suspension rested on both sustained and unsustained violations, the Court vacated the suspension and remanded for reconsideration of the sanction.


Barrett v. Virginia State Bar, 611 S.E.2d 375 (2005)