Virginia: Attorney claims that because he was a suspended lawyer, the rules of professional conduct do not apply to him, and that his equal protection

Link for Opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/

In Barrett v. Virginia State Bar, 277 Va. 412, 675 S.E.2d 827 (2009), violations occurred in the course of prolonged litigation between an attorney, Barrett, and his former wife, in which the attorney represented himself. Barrett repeatedly asserted that, because his ex-wife was awarded sole legal and physical custody of the children, he was no longer responsible for the payment of any support for them under Va. Code § 20-108.2. The state supreme court held that the panel had jurisdiction to apply the rules professional conduct to the attorney in his suspended status. Barrett made no claim that he was being treated unlike other lawyers whose licenses to practice had been suspended. Accordingly, his argument that applying the Rules to him violated the Equal Protection Clause was rejected. Because the attorney's argument that he was no longer required to support his children was completely frivolous, he was properly disbarred for violating Rule 3.1.
Barrett argued that "applying the Rules of Professional Conduct to him while exercising his fundamental and inalienable right to represent himself burdens him with additional strictures that do not bind any other litigant under the exact same circumstances, a burden that is forbidden by the Equal Protection Clause of the 14th Amendment to the U.S. Constitution." Barrett argued further that "while the Equal Protection Clause does not forbid government classifications, it does keep government decision makers from treating differently persons who are in all relevant respects alike."

However, as the Panel noted in its order disbarring Barrett, an attorney representing himself is not alike in all aspects to a pro se non-lawyer litigant by virtue of the fact that the lawyer is a lawyer and is so by choice." Lawyers whose licenses to practice have been suspended are of a class unto themselves and they are subject to the Rules of Professional Conduct while non-lawyers who represent themselves are of an entirely different class and not subject to the Rules.

The important consideration was whether a lawyer whose license to practice had been suspended is treated like other lawyers whose licenses have been suspended. This Court noted in a previous case involving a claim that an act of the General Assembly violated the Equal Protection Clause that "an act is not invalid if within the sphere of its operation all persons subject to it are 'treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.'" Bryce v. Gillespie, 160 Va. 137, 146, 168 S.E. 653, 656 (1933).

Barrett made no claim that he was being treated unlike other lawyers whose licenses to practice have been suspended. Accordingly, the court rejected his argument that applying the Rules to him violated the Equal Protection Clause.

The court held that for Barrett to assert persistently and repeatedly in the Circuit Court of Grayson County and in the Court of Appeals of Virginia that he was no longer required to support his children is completely frivolous, in light of the facts and the law of this case. Accordingly, the court affirmed the Panel's order revoking Barrett's license to practice law in his Commonwealth.