Virginia LawyerVOL. 60/NO. 3 • OCTOBER 2011 The Official Publication of the Virginia State Bar
featurefeature articlesarticles byby Virginia Association of Law Libraries
www.vsb.org Not all childhood memories are good...
This year, the National Center for Children in For 2010 the Virginia Department of Juvenile Poverty reported that nearly 15 million Justice reported that upon admission to children in the United States—21% of all correctional facilities, 54% of juveniles had a children—live in families with incomes below mental disorder (other than a DSM-IV diagno- . sis of ADHD, CD, ODD, or Substance That’s $22,050 a year for a family of four. Abuse/Dependence Disorder).
(National Center for Children in Poverty. (2011) “Child Poverty”) (The Virginia Department of Juvenile Justice. (2010). Data Resource Guide: Fiscal Year 2010. p.154) Legal advocacy on behalf of poor children with disabilities is a unique privilege. Ƥ Ǥ
As lawyers, providing pro-bono services in this area of the law renews our energy and reminds us of why we Ƥ . If you are a new lawyer, get involved in direct pro-bono advocacy. Experienced attorneys have much to share through direct representation, collaboration and mentoring. When we work with other lawyers and with the dedicated groups and programs that advocate for children change happens.
ƥ Ǥ Ƭ ͚͘͘͜ǡ͚͚͚Ȉ ǡ͚͚͛͘͘ ǣȋ͛͘͟Ȍ͛͝͡Ǧ͘͘͞͞ȈǤǤ Virginia Lawyer The Official Publication of the Virginia State Bar October 2011 Volume 60/ Number 3
Features
VIRGINIA ASSOCIATION OF LAW LIBRARIES
41 Law Librarians Respond to Wide Range of Research Needs
42 Free Websites for Virginia Legal Research by Paul Hellyer
46 Copyright and Research in Google Book Search by Benjamin J. Keele
50 The Law Givers: Heroes of Virginia Statutory History by Kent C. Olson
56 Creating a Valuable Research Metric for the Private Law Firm by Alyssa Altshuler and Sharen C. Leonard
Noteworthy
VSB NEWS PEOPLE 28 Diversity Conference Commended 30 In Memoriam 29 The investiture of the Honorable 32 Local and Specialty Bar Elections Elizabeth A. McClanahan 29 Steven D. Benjamin is the new pres- ET AL ident-elect of the National 33 Justice Powell to Keynote Diversity Association of Criminal Defense Conference Forum at the University Lawyers of Virginia 29 Emily F. Hedrick Joins VSB Staff by Clarence M. Dunnaville Jr. 29 Kara McGehee Joins VSB Staff as Assistant Bar Counsel
Cover: Near Appomattox. Photo by Bill Dickinson of Sky Noir Photography. See more of his work at http://www.skynoirphotography.com. Columns
24 President’s Message 62 Law Libraries 26 Executive Director’s Message 64 Risk Management 58 Conference of Local Bar Associations 59 Senior Lawyers Conference 60 Young Lawyers Conference
Departments
8 Forum Access to Legal Services 21 CLE Calendar 34 Clients Need More Than Advocates, They Need 22 Virginia CLE Calendar Our Help by Margaret A. Nelson 65 Professional Notices 38 Communicating with a Deaf Client — It’s the Law 67 Classified Ads by Colleen Miller 69 Crossword Puzzle 70 Reflections
VSB.org: A Member Benefit Corrections VSB.org — the Virginia State Bar’s website — helps you with In the June/July 2011 issue of Virginia Lawyer, the names of your membership obligations and your practice. Lisa M. Ochsenhirt and Jon A. Mueller, co-authors of “Restoration of the Chesapeake Bay: the Chesapeake Bay There you’ll find the Member Login, where you can: Total Maximum Daily Load and the Virginia Watershed • download your dues statement and pay your dues, Implementation Plan,” were misspelled in the article’s byline • certify Mandatory Continuing Legal Education, and Ochsenhirt’s photo caption. • conduct research on Fastcase, and • update your contact information with the bar. The author’s bio for another of the co-authors should have read as follows: At VSB.org, you also can link to: • Latest News on VSB regulation, programs, and practice Margaret L “Peggy” Sanner is Virginia senior attorney for information; the Chesapeake Bay Foundation in Richmond. She advises • the Professional Guidelines that contain the Rules of and litigates for the foundation on environmental issues and Professional Conduct; represents it before the General Assembly. She has practiced • Rule Changes, proposed and approved; in environmental and other law for more than twenty-five • the Ethics Hotline; years. Most recently, she was counsel with Reed Smith LLP in • Meetings and Events; and Richmond. • Search Resources for locating Virginia attorneys and checking their status with the state bar. The date of the 74th Annual Meeting is June 13–17, 2012. VSB.org will keep you current and connected. Check it out.
4 VIRGINIA LAWYER | October 2011 | Vol. 60 Virginia State Bar Virginia Lawyer The Official Publication of the Virginia State Bar 2011–12 OFFICERS 17th Circuit George Warren Shanks, Luray, President Raymond B. Benzinger, Arlington W. David Harless, Richmond, President-elect Mark D. Cummings, Arlington http://www.vsb.org Irving M. Blank, Richmond, Immediate Adam D. Elfenbein, Arlington Past President Gregory T. Hunter, Arlington Editor: Karen A. Gould, Executive Director David A. Oblon, Arlington Rodney A.Coggin and Chief Operating Officer 18th Circuit ([email protected]) EXECUTIVE COMMITTEE Alan S. Anderson, Alexandria George Warren Shanks, Luray, President Carolyn M. Grimes, Alexandria Assistant Editor: W. David Harless, Richmond, President-elect Jean K. Niebauer, Alexandria Gordon Hickey Irving M. Blank, Richmond, Immediate 19th Circuit ([email protected]) Past President Andrea L. Bridgeman, McLean Brian L. Buniva, Richmond Susan M. Butler, Fairfax Advertising: Tracy A. Giles, Roanoke Elizabeth S. Finberg, Vienna Nancy Brizendine Ray W. King, Norfolk Peter D. Greenspun, Fairfax ([email protected]) Kevin E. Martingayle, Virginia Beach Paul W. Hammack Jr., Fairfax Sharon D. Nelson, Fairfax Joyce M. Henry-Schargorodski, Fairfax Graphic Design and Production: Jean K. Niebauer, Alexandria Sean P. Kelly, McLean Caryn B.Persinger Daniel B. Krisky, Fairfax Robert L. Calhoun, Alexandria, SLC Chair ([email protected]) Christy E. Kiely, Richmond, YLC President Sharon D. Nelson, Fairfax Edward L. Weiner, Fairfax, CLBA Chair Susan M. Pesner, McLean Catherine M. Reese, Fairfax COUNCIL Michael W. Robinson, Vienna VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473) 1st Circuit William L. Schmidt, Fairfax is published ten times a year in alternating Edward L. Weiner, Fairfax Nancy G. Parr, Chesapeake formats by the Virginia State Bar, Eighth & Main 20th Circuit 2nd Circuit Building, 707 East Main Street, Suite 1500, Richmond, Peter C. Burnett, Leesburg William Drinkwater, Virginia Beach T. Huntley Thorpe III, Warrenton Virginia 23219-2800; Telephone (804) 775-0500. Kevin E. Martingayle, Virginia Beach Judith L. Rosenblatt, Virginia Beach 21st Circuit Subscription Rates: $18.00 per year for non-members. Philip G. Gardner, Martinsville This material is presented with the understanding that 3rd Circuit George M. Willson, Portsmouth 22nd Circuit the publisher and the authors do not render any legal, Mark B. Holland, Danville accounting, or other professional service. It is intended 4th Circuit I. Lionel Hancock III, Norfolk 23rd Circuit for use by attorneys licensed to practice law in Virginia. Ray W. King, Norfolk Mark K. Cathey, Roanoke Because of the rapidly changing nature of the law, infor- Tracy A. Giles, Roanoke David W. Lannetti, Norfolk mation contained in this publication may become out- 24th Circuit 5th Circuit dated. As a result, an attorney using this material must William H. Riddick III, Smithfield Theodore L. Craddock, Lynchburg always research original sources of authority and update 25th Circuit 6th Circuit information to ensure accuracy when dealing with a Peter D. Eliades, Hopewell Roscoe B. Stephenson III, Covington specific client’s legal matters. In no event will the 26th Circuit 7th Circuit authors, the reviewers, or the publisher be liable for any Leonard C. Heath Jr., Newport News W. Andrew Harding, Harrisonburg 27th Circuit direct, indirect, or consequential damages resulting from 8th Circuit Richard L. Chidester, Pearisburg the use of this material. The views expressed herein are Patrick B. McDermott, Hampton 28th Circuit not necessarily those of the Virginia State Bar. The inclu- 9th Circuit Roy F. Evans Jr., Marion sion of an advertisement herein does not include an John Tarley Jr., Williamsburg 29th Circuit endorsement by the Virginia State Bar of the goods or 10th Circuit C. Eugene Compton, Lebanon Robert E. Hawthorne, Kenbridge services of the advertiser, unless explicitly stated other- 30th Circuit wise. Periodical postage paid at Richmond, Virginia, and 11th Circuit Joseph E. Wolfe, Norton Ray P. Lupold III, Petersburg other offices. 31st Circuit 12th Circuit Gifford R. Hampshire, Manassas W. Richard Hairfield, Richmond MEMBERS AT LARGE POSTMASTER: 13th Circuit D. Sue Baker Cox, Wise Hugh T. Antrim, Richmond Michael HuYoung, Richmond Send address changes to Brian L. Buniva, Richmond W. Revell Lewis III, Accomac Virginia State Bar Membership Department Doris Henderson Causey, Richmond Darrel Tillar Mason, Manakin Sabot Eighth & Main Building Guy C. Crowgey, Richmond Margaret A. Nelson, Lynchburg George W. Marget III, Richmond Todd A. Pilot, Alexandria 707 East Main Street, Suite 1500 Eric M. Page, Richmond Savalle C. Sims, Washington, DC Richmond, Virginia 23219-2800 O. Randolph Rollins, Richmond Edna R. Vincent, Fairfax Kimberly S. White, Halifax 14th Circuit Roger T. Creager, Richmond Senior Lawyers Conference Chair Thomas A. Edmonds, Richmond Robert L. Calhoun, Alexandria William J. Viverette, Richmond Young Lawyers Conference President 15th Circuit Christy E. Kiely, Richmond Grayson S. Johnson, Rockville Conference of Local Bar Associations Chair Virginia State Bar Staff Directory Edward L. Weiner, Fairfax 16th Circuit Frequently requested bar contact Bruce T. Clark, Culpeper Diversity Conference Chair Ronald R. Tweel, Charlottesville Michael HuYoung, Richmond information is available online at www.vsb.org/site/about/bar-staff.
Vol. 60 | October 2011 | VIRGINIA LAWYER 5 9/56QHW Over 12,000 times each year, we connect lawyers with clients from the general public, businesses, and legal professionals seeking lawyer to lawyer referrals. We can do it for you. Visit VLRS.net and nd out how. The Virginia Lawyer Referral Service. Connecting the public with lawyers for more than thirty years. C o v e r a g e T h a t ’s Right For Yo u Through its staff and hundreds of volunteers, the Virginia State Bar works to serve its members and the public by • regulating the legal profession • advancing the availability and quality of legal services • improving the legal profession and the judicial system www.vsb.org www.pearlinsurance.com/lpl | 800.322.2488 Do Parents Always Know What’s Best? Show Them. Spare the Child—a video on family dissolution for attorneys and families. Free from the Virginia State Bar Family Law Section through a generous grant from the Virginia Law Foundation. Available on DVD and Online. Visit www.vsb.org/site/publications/video/. Forum Jefferson and Slavery were fathered by Jefferson. Jefferson’s than others; and for many reasons do not In response to the letter in the June/July daughter, and his grandchildren, who share in the same bounty. 2011 Virginia Lawyer from Clarence M. were constant at Monticello, denied any As I stated in my views on the article, Dunnaville Jr., I commend his long time such relationship. The DNA tests which Monticello represents slavery, our unfortu- in the trenches of the civil rights move- were so widely trumpeted in the media nate past, to me, and perhaps many others. ment. But perhaps the time has come for matched only Hemings’s youngest son With respect to my views regarding him to declare victory and stop beating with the Jefferson male line, yet the aca- Jefferson, Monticello, and Jefferson’s slaves, up the Founding Fathers over the issue demics claim that Jefferson fathered all it was certainly not my intent to beat up of slavery. Whatever the injustice to their of the Hemings children. The genealogi- on Jefferson, or any founding fathers, or to ancestors, African Americans today cal research that determined Hemings’ s engage in a dialogue regarding the geneal- enjoy the greatest opportunity and free- descendants for the purpose of the DNA ogy of Jefferson’s slaves. These are matters dom in the world. tests has not been revealed. The match for history, and I am looking to the future It is true that Jefferson did not free with the Jefferson line could include and not bemoaning the past. his slaves, but his financial condition more than eight Jeffersons with access to prevented that option. The depression of Monticello. Clarence M. Dunnaville Jr. 1819, which devastated real estate values The “study” that Monticello con- Richmond in all of Virginia made Jefferson’s hold- ducted when the DNA tests were ings virtually worthless. The slaves, as released, and which is now available on chattel property, were collateral for its website, was prepared by an in-house When City Lawyers Come Jefferson’s debts and could not be freed committee selected from the Monticello to Town without approval of his creditors. A fur- staff. The only study by independent I write in response to Dawn Chase’s ther barrier was the requirement under historians was sponsored by the excellent article in the June/July 2011 Virginia law that the freed slave was the Thomas Jefferson Heritage Society Virginia Lawyer, “VSB President Shanks responsibility of its prior owner for a (TJHeritage.org). This Scholars Urges Experienced Lawyers to Guide period of one year, an obligation which Commission Report found “that the Those Who Follow.” I appreciate the dri- Jefferson could not meet. allegation is by no means proven; and ves toward collegiality and professional- Mr. Dunnaville’s allegation that the we find it regrettable that public confu- ism that have gained traction in many five slaves freed by Jefferson’s codicil sion about the 1998 DNA testing and places in our bar. were his “own children” is typical of the other evidence has misled many people As a big city lawyer, I would like to overreaching in the Jefferson paternity into believing that the issue is closed.” add a possible focus for improvement of debate. Only two of the slaves named in The report, published by Carolina professionalism. I note that many the codicil were the children of Sally Academic Press, is due for release in lawyers from small communities are Hemings, Jefferson’s reputed “concubine.” September 2011. extremely proud of the professionalism Lawyers should be particularly within their bars. However, I have found interested in what the slave-studies acad- Richard E. Dixon that big city lawyers are at times treated emics have co-opted as a historical ques- Clifton with substandard professionalism when tion. They have pushed circumstantial we litigate in small towns. Of course, this evidence beyond probability to a “what is not always the case, and in fact most if” standard. Only a few documentary Mr. Dunnaville’s Response small town bars have been welcoming to references exist for Sally Hemings. Her I sincerely thank Mr. Dixon for taking the me. However, home cooking is a prob- activities, personality, and interaction time to comment on my thoughts relating lem that in some places and at some with others are unknown. No one claims to the Jefferson article. I must disagree, times is alive and well. to have witnessed any physical contact however with his statement that “African I had an experience some time back between Hemings and Jefferson during Americans today enjoy the greatest oppor- that really drove this home for me. I had the approximate thirty-five years she tunity and freedom in the world.” It is my a case in a small town. The town’s pre- lived at Monticello after her return from belief that all Americans, regardless of eth- miere court reporter was related to the France. Of all those at Monticello, which nicity enjoy perhaps the greatest opportu- attorney against whom I was litigating. was daily occupied by family, visitors nity and freedom in the world, but that When the depositions went badly for his and slaves, there are no contemporary some Americans of all ethnic backgrounds, claims that any of Hemings’s children including people of color, are less fortunate continued on page 10 8 VIRGINIA LAWYER | October 2011 | Vol. 60 VIRGINIA STATE BAR MEMBERS’ INSURANCE CENTER An affiliate of Dominion Benefits and endorsed by the Virginia State Bar Life Insurance The Virginia State Bar Term Life Insurance Plan provides important protection to Bar members, their spouses, and staffs. We’ve repeatedly lowered the rates, and delivered premium “holidays.” Contact us to learn more. Disability Income Insurance Life Insurance Health Insurance For more information please contact Robert H. Spicknall, CEBS President [email protected] Page Gordon Client Manager [email protected] Toll Free 877-214-5239 vsbmic.com Forum case, I could not get the reporter to make transcripts for many weeks. I only obtained the transcripts through threat Letters Virginia State Bar of court intervention. I do not believe Harry L. Carrico that experience would happen in a big Send your letter to the editor to: Professionalism Course city, and I do not believe it would hap- [email protected]; pen between members of the same small See dates and registration town bar. Instead, I believe I was the vic- fax: (804) 775-0582; information at tim of home cooking as a result of my or mail to: http://www.vsb.org. defending my client in a small town many miles from my home. Virginia State Bar, My point is not to criticize or Virginia Lawyer Magazine undermine the efforts of small town 707 E. Main Street, Suite 1500, lawyers to export their view of collegial- Richmond, VA 23219-2800 ity. I am in full support. I only ask that Lawyers Helping Lawyers lawyers in small towns take a moment during this season of increased profes- Letters published in Virginia Lawyer Confidential help for substance abuse problems and mental health issues. sionalism and consider treating out- may be edited for length and clarity and siders with the same idyllic For more information, call our are subject to guidelines available at toll free number: professionalism described amongst http://www.vsb.org/site members of their own bar. (877) LHL-INVA /publications/valawyer/. or visit http://www.valhl.org. Andrew Fitzgerald Winston-Salem, North Carolina FORTY-SECOND ANNUAL Criminal Law 2011Seminar FEBRUARY 3, 2012 Williamsburg Marriott, Williamsburg FEBRUARY 10, 2011 DoubleTree Hotel, Charlottesville Video Replays in Several Locations MCLE Credits (including ethics credit) Pending VIRGINIA STATE BAR AND VIRGINIA CLE 10 VIRGINIA LAWYER | October 2011 | Vol. 60 www.vsb.org I made a rapid and profitable transition from litigation into estate planning. My secret?se ecret? I joined Your Problem OurO Solution WealthCounsel. What drafting tools do I need to WealthDocx Create sophisticated documents in less time! build a profitable practice? Practice-Building Resources How do I generate clients? Grow your client base more quickly! Where do I acquire the legal Drafting-Based Education technical knowledge? Gain relevant legal technical knowledge! I’m a solo practitioner. Who can I Collaborative Community Experience camaraderie with other members! collaborate or co-counsel with? Free Customer Support Where do I turn for support? Enjoy unlimited technical support services! Create value in yourr practice.pra View our online demo. Or call 1-888-659-4069, Ext. 819 for membership info. www.wealthcounsel.comwww.wealthcounsel.com Powered byy WealthDocx ® Forum Response to Criticism of The Uniform Environmental Covenants Act by Kurt A Strasser, William M. Breetz, Carlyle C. Ring Jr., and Thomas A. Edmonds This is a response to an article critical of In 2010, at the request of the and expensive, and may not be feasible the Uniform Environmental Covenants DuPont Corporation, UECA was again for some time given the resources and Act (UECA) published in the June/July introduced as Senate Bill 686. Changes technology available and the sheer num- 2011 Virginia Lawyer. UECA, promul- were made to the introduced bill to ber of properties in question. Practically gated by the National Conference of address concerns expressed by DEQ, in speaking, not only are resources for Commissioners on Uniform State Laws particular striking the provision creating cleanups finite, but so are the enforce- in 2003, has been enacted by twenty- a registry to be maintained by DEQ, and ment resources needed to accomplish three states so far and by the District of requiring only a filing of the covenant in them; and most cleanups are prompted Columbia and U.S. Virgin Islands. the land records. The amended bill was by and take place under the shadow of Additional introductions are expected in supported by the Virginia Bar potential legal enforcement action. Until state legislatures meeting next year. Association, Virginia Chamber of cleanup, these properties are likely to lie The UECA was first introduced in Commerce, DuPont, Virginia Attorney fallow, presenting an undetermined and the Virginia General Assembly in 2006 as General’s Office, the U.S. Environmental unregulated level of environmental risks House Bill 814, with the intention that it Protection Agency, and the Virginia and often leading to blighted properties carry over to the 2007 General Assembly Commissioners on Uniform State Laws. and communities.5 Session as a means of affording inter- The only expression of opposition at Regulators are using risk-based ested stakeholders time to review and hearings was from the author of the crit- cleanups now, typically negotiating them comment on the bill. House Bill 814 was ical article to which this is a response. with property owners or other liable referred to the House Committee on UECA was passed by the Senate on a parties. Two kinds of restrictions are typ- Agriculture, Chesapeake and Natural vote of 40–0 and by the House on a vote ically required. First, it is often necessary Resources, which in turn referred it to of 88–10. to restrict the use of the property. For the House Committee for Courts of The recent article in this publica- example, a factory might be permitted, Justice, where it ultimately remained that tion argued that the UECA1 is a solu- but a day care center or a public park year. In 2007 the UECA was introduced tion in search of a problem.2 Here we prohibited and excavation below a depth as House Bill 2384, after consideration will briefly review the problems that the of ten feet might be restricted along with by the Virginia Bar Association (VBA) in act solves.3 a prohibition on the use of well water. both its Real Estate and Environmental Second, a risk-based cleanup often Law Sections. The Real Estate Section of The Problem addressed by UECA requires affirmative measures, such as the Virginia State Bar also reviewed the With environmental cleanups of real maintenance of containment structures UECA, but made no recommendation as property, it is sometimes impossible to and that groundwater continue to be is its practice as a part of a mandatory completely eliminate contaminants, but monitored. The difficulty lies in how to state bar. The Real Estate Section of the possible by institutional restrictions and make both kinds of restrictions perma- VBA recommended to the VBA Board of engineering safeguards to stabilize the nent and realistically enforceable in a Governors that the VBA endorse the act contamination and safeguard against property law system that is not generally and support its enactment by the legisla- residual risk to human health or the hospitable to them. This is the principal ture. The board accepted the recommen- environment. The act creates a state law problem that the act solves. dation and endorsed and supported its mechanism for enshrining and enforcing enactment. The Virginia Department of agreed upon property use restrictions Problem: Common law deficiencies Environmental Quality (DEQ) expressed and monitoring or other requirements. UECA creates a new legal interest, some concerns, primarily with the cost With these in place and enforceable, the grounded in both real property and con- of administering the registry, and property can be reused while protecting tract law, which attaches use restrictions although there was unanimous approval against risk to human health and safety and monitoring and other requirements in the House Natural Resources or the environment. to the land and requires performance of Subcommittee, it was tabled by the full The EPA estimates there are 450,000 them by the land owner. At first blush, Agriculture, Chesapeake and Natural brownfields in the United States.4 Resources Committee. Complete cleanups are time-consuming continued on page 14 12 VIRGINIA LAWYER | October 2011 | Vol. 60 www.vsb.org You Have Done Everything Your Client Expected. Why is he suing you? $WWRUQH\VUHSRUWLQJDPDOSUDFWLFHFODLPURXWLQHO\FRPPHQWWKDW ODZ\HUDQGWKHFOLHQW WKH\NQHZWKH\VKRXOGKDYHQHYHUDJUHHGWRUHSUHVHQWWKDWSDUWLFX $W0LQQHVRWD/DZ\HUV0XWXDOZHGRQ¶WMXVWVHOO\RXDSROLF\ ODUFOLHQW :HZRUNKDUGWRJLYH\RXWKHWRROVDQGNQRZOHGJHQHFHVVDU\WR $EUHDNGRZQLQFOLHQWUHODWLRQVDFFRXQWVIRURIDOOHJHG UHGXFH\RXUULVNRIDPDOSUDFWLFHFODLP:HLQYLWH\RXWRJLYHXVD HUURUV OHDGLQJWRPDOSUDFWLFHFODLPV$VLPSOHPHWKRGWRDYRLG FDOODWRUJRRQOLQHDWZZZPOPLQVFRPDQG¿QGRXW FOLHQWUHODWLRQHUURUVLVWRPDNHFHUWDLQ\RXUUHWDLQHUOHWWHUFOHDUO\ IRU\RXUVHOIZKDWZHPHDQZKHQZHVD\³3URWHFWLQJ\RXUSUDFWLFH LGHQWL¿HVWKHFOLHQWWKHVFRSHRI\RXUUHSUHVHQWDWLRQKRZWKH LVRXUSROLF\´ H[SHQVHVDQGIHHVZLOOEHKDQGOHGDQGZKDWLVH[SHFWHGRIERWKWKH $PHULFDQ%DU$VVRFLDWLRQ6WDQGLQJ&RPPLWWHHRQ/DZ\HUV¶3URIHVVLRQDO/LDELOLW\ 3UR¿OHRI/HJDO0DOSUDFWLFH&ODLPV&KLFDJR,/ +DVNLQV3DXODQG(ZLQV.DWKOHHQ0DULH 800.422.1370 5 www.mlmins.com Protecting Your Practice is Our Policy. Appeals When it comes time to appeal or to resist an appeal, call Steve Emmert at (757) 965-5021. L. STEVEN EMMERT Rated AV www.virginia-appeals.com by Martindale Hubbell [email protected] SYKES, BOURDON, AHERN & LEVY VIRGINIA BEACH Forum this appears simple, and may give rise to Problem: Identification of a holder Problem: Validity and enforcement a question: Wouldn’t a classic servitude The third requirement for creating a An environmental covenant exists within under common law do the trick? In covenant is that it identify a holder.11 the broader context of the state’s existing short, not well enough. There are a The concept of a holder is borrowed body of real property (and other related) number of questions about their cre- from the Uniform Conservation law that could threaten its validity or ation and long term viability in the face Easements Act. While the idea of identi- permanence. Specifically, the covenant of common law that is hostile to perma- fying a party to hold the covenant inter- must contend with a group of traditional nent land restrictions, questions about est fits comfortably with traditional common law rules that are hostile to how such a covenant or servitude could property law, its use here is more func- long term or permanent restrictions on be modified, and serious concerns about tional. A holder can be given supervisory real property, as well as with modern law achieving the level of legal enforceability responsibilities for the enforcement of on tax liens, eminent domain, and exist- and real practical enforcement required the covenant, and can even be given ing interests that predate the covenant. to protect the public health and the envi- operating responsibilities for monitoring UECA seeks to remedy these problems ronment. This uncertainty makes it and maintenance. UECA specifies that so that environmental covenants can be harder for commercial parties to make any person agreed to by the parties may valid and permanent enough to protect deals, and harder for lenders to supply be a holder.12 As our experience with the public health and environment and financing to redevelop the property. brownfields cleanups grows, some pre- reassure the parties to the transaction. Without legal certainty, financing for dict that commercial entities may The common law generally has a cleanups and redevelopment of contami- emerge that wish to specialize in per- number of doctrines that favor free nated properties will be less likely to take forming cleanups and the ongoing alienability of property and disfavor long place. The act answers these questions enforcement, and these could be agreed term restrictions on land; these doctrines and provides that needed certainty. to as holders. However, UECA preserves would undercut covenants. The act a great deal of flexibility by providing responds in two ways. First, it provides Problem: Notice of covenant that the owner or the agency may serve that a covenant runs with the land and is restrictions as a holder (assuming other state law intended to last until terminated under The first core requirement under UECA allows that result) and this should pro- the provisions of UECA or by the is that the covenants provide notice that vide parties needed flexibility to meet covenant’s own terms.15 Second, the act states all restrictions placed on the prop- the requirements of UECA without specifies that a covenant is valid and erty, including those on allowable use, mandating a third party holder if that enforceable even if it runs afoul of any of monitoring, and any other obligations of result is not desired. nine enumerated common law doctrines the owner and others.6 Of course, this UECA also contains several formal that might otherwise apply.16 Under requirement would not mean much if requirements for creating a covenant.13 UECA, for example, the covenant is not the covenant were not discoverable by Beyond these, it suggests a number of invalid even if it is not appurtenant to an interested parties, and the act addresses specific provisions that could be interest in real property, if it is of a char- this by requiring that the covenant be included in a covenant.14 For example, acter not recognized traditionally at recorded in the land records of the the covenant might have specific notice common law, if it imposes a negative state.7 This gives legal notice of the provisions prior to transfer of the prop- burden, or if its benefit or burden does covenant and makes it realistically avail- erty or a change in its use, it might not touch and concern real property. able to all parties with the knowledge require periodic reporting on compli- Many of us may not recall these com- and skills to search the land records.8 ance, it might give a narrative descrip- mon law rules in precise detail, and tion of the contamination and the indeed that is the point. These are older Problem: Assurance that covenant cleanup remedy, or it could contain spe- doctrines, and their contemporary appli- protects against the risks cific limits on amendment or termina- cation is often uncertain in specific juris- The second core requirement for creating tion beyond those specified in UECA. dictions. In addition, whatever their a covenant is that it must be agreed to by Taken together, these requirements contemporary policy merits in other cir- the agency supervising the cleanup, and for creating an environmental covenant cumstances, they should not invalidate by the property owner.9 The agency’s are straightforward and their specificity environmental covenants. Statutorily agreement is required to be sure that the should provide certainty that all parties trumping these doctrines in this context covenant will in fact protect the public will need. After the covenant is created, by the act removes any potential uncer- health and environment. The act allows the second task for the act is to make tainty they could present. This is also either a state or a federal agency to that covenant valid and enforceable in true of adverse possession, which is oth- approve a covenant if that agency is han- the face of other existing law. erwise of more contemporary relevance; dling the underlying cleanup.10 the act provides that it may not invali- date a covenant.17 14 VIRGINIA LAWYER | October 2011 | Vol. 60 www.vsb.org Forum In addition to overriding these people using the property may be Problem: Method of enforcement traditional common law doctrines, exposed to the contamination also UECA provides for enforcement of a UECA also provides that a covenant change, as might the risk posed by the covenant by a civil action for injunctive will not be limited or extinguished by a contamination. In this situation, the or other equitable relief, and authorizes tax foreclosure or sale.18 This reflects property may require more cleanup a number of parties to bring an the policy decision to give priority to before the new use can be allowed, and enforcement action.25 It authorizes an the environmental protection mission the agency will insist on this cleanup as a enforcement action by the agency that of the covenant. Tax liens and foreclo- condition of agreeing to the change in approved the covenant and also by the sures are common with contaminated the covenant.21 For this reason, UECA state regulatory agency if it was not the properties because they are often specifies requirements for amending or approving agency.26 underperforming economically and terminating a covenant. UECA gives all parties to the may be of little or no value as current However, as a preliminary point, covenant the right to bring an enforce- income producers. For the covenant to note that amending the covenant is not ment action, partially overlapping with provide real protection, as well as real the only way to change the regulatory this provision. This will include the assurance to commercial parties making requirements on the property. There is a owner of the property at the time the the cleanup and planning reuse of the substantial body of both state and fed- covenant was created, as well as the property, it must not be vulnerable to a eral law regulating cleanup of contami- holder if this is a different party, but it tax sale. Without this protection, the nated property, and that law has will also reach others. For instance, a commercial realities of contaminated requirements that extend beyond the party which was responsible for the properties would make many covenants covenant. Specifically, when the covenant cleanup costs, even if it was not the uncertain and unable to protect against is part of a regulatory determination of owner, would likely have been a party to environmental risk. the extent and scope of cleanup the covenant. This could be an industrial Beyond common law doctrines and required, that regulatory law continues company that is liable for the cleanup tax liens, UECA also deals with the ques- to apply to the property. That law typi- because it leased and operated the prop- tion of existing mortgages and other cally provides that the regulatory agency erty at the time the contamination was prior interests in the real property. Its approving the cleanup has the power to disposed of. As discussed above, such a basic provision is that the covenant does reopen the remedy determined if protec- potentially responsible party in the con- not override these interests, so the hold- tion of the public health or the environ- ventional regulatory jargon, has a strong ers of mortgages and other interests ment so requires.22 The act does not interest in ensuring that the covenant is must agree to subordinate them if they strip that power from state environmen- enforced because the regulatory liability are to be subject to the covenant.19 This tal regulatory agencies and, of course, for the cleanup often continues after the is consistent with the traditional prop- could not determine the power of fed- cleanup, and it may have potential toxic erty law rule that interests that are first eral agencies.23 While such regulatory tort liability as well.27 Enforcement in time are also first in right.20 reopeners of a concluded cleanup deter- power for this party will be crucial to mination are in fact rare,24 they are pos- getting it to enter the covenant in the Problem: Modifications sible where protection from first place. In addition, citizen’s groups The use restrictions and monitoring environmental risk requires them. or environmental groups could have obligations in any particular covenant The act seeks to provide a reason- been parties to the covenant, and if they are site-and use-specific; they are the able and workable method for changing were, they will have enforcement power restrictions determined to be necessary covenants, but one which also protects to protect their interest in seeing that the to protect the public and the environ- the important interests of all the parties. covenant is obeyed and the community ment from the risks posed by the resid- Finding the best balance between these thus protected. These groups are often ual contamination at the site. These risks objectives is difficult. The act’s require- well positioned to learn of violations, can change, either because the use of the ments do a good job of protecting those and likely to be motivated to address property changes, the nature of the cont- interests, and thus encouraging forma- them.28 This is also true of the local amination changes, or the science on tion of the covenants in the first place. municipal government, which is given which our understanding of the risk is However, providing that protection authority to sue for enforcement as well. based changes. For example, it may be comes at some cost, for in keeping with that the covenant’s terms were sufficient the important objectives served by Responses to other criticism to protect against the risks posed by the imposition of the covenant in the first Mr. Martin argues, first, that the act is particular residual contaminant if the instance, changes should not be made not needed because Virginia’s Voluntary property is used for industrial manufac- lightly and the act’s requirements for Remediation Program (VRP) takes care turing. If that use changes to residential changing or terminating a covenant are condominiums, then the ways in which demanding. continued on page 16 Vol. 60 | October 2011 | VIRGINIA LAWYER 15 Forum of the problem.29 As he notes, use of on institutional controls issued in nation and enforcement. Mr. Martin’s 35 UECA is not mandatory and it does not November 2010. comments aside, most of the other criti- invalidate any other kind of remediation UECA first became available in EPA cism of UECA has been for not doing 36 program.30 Leaving to one side his con- Region 3 states in 2005, with enactment more, rather than for what it does. On cern that this language may not mean of it in Delaware, Maryland, and West balance, UECA offers thorough and what it says, we do need to comment on Virginia. The District of Columbia then workable solutions to the problems it his assertions that agencies will insist enacted the act in 2006, and Pennsylvania addresses. on using the act. He argues that DEQ followed suit late in 2007. According to UECA is important because it pro- personnel will do so to collect fees under informal inquiries made with EPA, it vides a mechanism to protect the public it, and that EPA personnel are likely to appears that since those first enactments, and the environment from a continuing require it since it is Virginia law. (Of EPA is the lead agency on only nine total risk while providing legal certainty course, the alternative legal mechanisms UECA covenants throughout Region 3, needed to promote cleanup and reuse of would also be Virginia law.) If parties with roughly six more potentially in contaminated properties. Of course, it is find that other legal mechanisms really drafting as of publication, which con- not perfect, and there are two continuing do take care of the problems we have trasts sharply with broader use at the concerns related to whether UECA will discussed above, and meet their needs state level in many UECA jurisdictions. in fact do its job. for commercial certainty and protection Of the completed nine, one has been First, will it provide certainty and from environmental risk, one wonders implemented in Virginia, five in risk protection over the long term? why they would not use those pro- Pennsylvania, and three in West Virginia. Covenants impose restrictions that may grams.31 Our concern is that prior law EPA has not refused to sign any of these be needed for a long time. Will institu- does not adequately take care of all these covenants and has been a willing partic- tional memory and the existing enforce- problems and this is why, on reflection, ipant in the limited capacity in which it ment mechanisms be adequate to insure sophisticated parties and their counsel has availed itself of the laws in these implementation of the restrictions over will choose to use UECA just as the states. It does not appear that the EPA the long term? UECA has mechanisms, Virginia legislature and those of twenty- will be uncooperative. While their use but they are only as good as the memo- four other jurisdictions have chosen to of UECA covenants may increase in the ries and energy of the humans who must adopt it. However, if this concern is mis- future, given their supportive posture implement them. While 25, 50, and even placed for Virginia, then by its own and the very discrete use of UECA they 100 years or longer is not a long time for terms it need not be used. have engaged in throughout Region 3, environmental risk to remain, they are The second concern is with the Mr. Martin’s concerns appear even long periods of time for fallible humans EPA’s potential role under UECA when it more remote. and imperfect institutions to remember is supervising the cleanup. Will the EPA Further, covenants under the act that land use on a particular piece of be willing to sign covenants under the exist within a larger regulatory context. property is restricted for an important Act, and will it agree to modifications or The covenant is part of implementing a reason. Recording the covenant in the termination if those are needed?32 Of larger cleanup remedy that either the land records will help focus and preserve course, no state law can write rules com- state or the EPA is involved with. When attention on it. pelling action by the EPA. Given the that remedy includes restrictions that Second, do we have the technical EPA’s support for the act, however, these depend on using UECA, surely those and scientific knowledge to accurately concerns appear overblown. The EPA agencies will want to use and implement determine the level of risk posed by participated as advisors in drafting the it effectively. An obstuctionist EPA (or, residual contamination, both when the act and continues to express support for for that matter, Virginia DEQ) doesn’t covenant is formed and over time? As a it publicly and on many levels. EPA seem a likely possibility in this situation. society we have been serious about the included a letter of record in the legisla- business of cleaning up contaminated tive history referenced above, noting that Conclusion property for roughly thirty years and in EPA Region 3 (which includes UECA offers the legal infrastructure have learned a great deal about what is Delaware, the District of Columbia, needed to implement risk-based needed and how to go about it. We think Maryland, Pennsylvania, Virginia, and cleanups of property in which some we know enough, but we will surely con- West Virginia33), Virginia was the only contamination is left in the ground and tinue to learn more and we must state that had not yet enacted UECA. In the risks are managed through land use remember to revise and incorporate new its web page on Land Use & Institutional controls and other arrangements. A sub- knowledge as we gain it. Controls the EPA makes specific refer- stantial amount of infrastructure is ence to the Act and includes a link to needed to take care of the problems of it.34 Further, the EPA makes specific ref- creating the covenant, making it durable, erence to the act in its extensive guidance and providing for modification, termi- 16 VIRGINIA LAWYER | October 2011 | Vol. 60 Forum Endnotes: 9 UECA § 4(a)(5). The covenant is also expanded under the act.” p.52. The pol- 1 Virginia’s law is at V. Code §§ 10.1-1238 required to identify the administrative icy of the act is that reliable enforce- et. seq. The Uniform Act was promul- record for the cleanup project (environ- ment is most important, and parties gated by the National Conference of mental response project) and its loca- with an interest in it are more likely to Commissioners on Uniform State Laws tion. § 4(a)(6). This will allow parties enforce. in August, 2003. As of this writing, the to learn more about the underlying 26 UECA § 11(a)(2). act has been adopted by a total of cleanup decision of which the covenant 27 See discussion above in text at footnotes twenty-six jurisdictions, twenty-four is a part. 33–36. states plus the Virgin Islands and the 10 UECA § 2(2) defining agency. Martin, 28 The covenant itself can grant enforce- District of Columbia. supra n. 5 is concerned about the EPA’s ment authority to any specific party. 2 Channing J. Martin, “Virginia’s Uniform role here; discussed below. UECA § 11(a)(3). Simply being given Environmental Covenants Act: A 11 UECA § 4(a)(5). Martin, supra n. 5 at enforcement power in the covenant Solution in Search of a Problem,” 60 p. 52, argues that the act’s provisions for does not give rise to liability for the Virginia Lawyer 49 (2011). removing a holder amounts to an cleanup. § 11(c). 3 This paper is based on two longer treat- unconstitutional taking of property. 29 “Virginia’s existing procedures for ments: American Bar Association, This argument is difficult to understand recording and enforcing restrictive “Implementing Institutional Controls at because the property right the holder covenants appear to work just fine, [so] Brownfields and Other Contaminated was originally given was subject to this one might ask ‘If it ain’t broke, why fix Sites,” Chapter 3, Strasser and Breetz, qualification, so implementing it is not a it?’” Martin, supra n. 5, at 49. The Benefits of a Uniform State Law for taking at all. 30 UECA § 5(d). “This act does not invali- Institutional Controls (2003); and Kurt 12 UECA § 3(a). date or render unenforceable any inter- A. Strasser, “The Uniform 13 UECA § 4(a)(1) and (2). It must state est, whether designated as an Environmental Covenants Act: Why, that it is an environmental covenant and environmental covenant or other inter- How and Whether,” 34 B.C Env. Aff. L. have a legally sufficient description of est, that is otherwise enforceable under Rev., 533 (2007). the property. the law of this state.” 4 http://www.epa.gov.brownfields/ 14 UECA § 4(b)(1) through (6) and com- 31 Martin, supra n.5, at 49 asserts that about.htm. (Last visited Mar. 25, 2007.) ments 9 through 12 there are no cases challenging the valid- 5 Professor Engel correctly points out that 15 UECA §§ 5(a) and 9(a). ity or enforceability of restrictive this may be a more complex question. 16 UECA § 5(b). covenants in Virginia, but beyond this See Kirsten Engel, “Brownfield 17 UECA § 9(c) he does not discuss the merits of pre- Initiatives and Environmental Justice: 18 UECA § 9(c) Act Virginia law. Second-Class Cleanups or Market-Based 19 UECA § 3(d). The act does specify that 32 Martin, supra n. 5, at 50, 51 and 52. He Equity,” 13 J. Nat. Res. & Envtl. L. 317, at an agreement to subordinate does not also expresses concern that the EPA may 359 (a998). The current and previous create any other obligation on the sub- require overly demanding notice of the industrial uses of brownfield properties ordinating party. § 3(d)(4). covenant, although no reason for their may have exposed nearby residents to a 20 Restatement (3d) of Property: doing so is offered. higher degree of environmental risk, Mortgages § 7.1. 33 http://www.epa.gov/aboutepa/region3 and those nearby residents are more 21 An amendment might also be needed if .html visited August 23, 2011. likely to be members of minority groups it turns out that the contamination was 34 http://epa.gov/brownfields/tools/tti_ and poor people. A full environmental worse than originally thought, or not as lucs.htm visited July 25, 2011. justice evaluation must consider the bad, of it better scientific knowledge 35 EPA, Institutional Controls: A Guide to environmental risks posed to the com- shows that the risks posed by a pre- Planning, Implementing, Maintaining munity by returning the property to the dicted exposure level are greater or less and Enforcing Institutional Controls at stream of commerce as well as the eco- than originally thought. Contaminated Sites, EPA-540-R-09-001, nomic gains to the community in doing 22 See UECA § 10, comment 7. November 2010, Interim Final. The act so. A perfectly functioning regulatory 23 UECA § 11(b). is referred to, for example, at pp. 3 system will always control the risks of 24 Daniel P. Selmi & Kenneth Manaster, and 28. the new operation, but in our real world State Environmental Law § 9.57 (2006) 36 For a review and discussion, see gener- one has had trouble with exactly this discusses the various mechanisms states ally Strasser, supra n. 6 at 549-557. An issue in environmental justice situations. use to assure parties that reopeners will additional criticism voices the funda- 6 UECA § 4(a)(3). not be used often. See Environmental mental objection of critics who prefer 7 UECA § 8 Law Practice Guide: State and Federal restrictions be based on state police 8 The act also has an optional section that Law § 32.10[2] (Matthew Bender, 2006). power rather than state property law. provides for creation of an electronic, 25 UECA § 11(a). Martin, supra n. 5, searchable registry of environmental appears to agree: “ In short, the number covenants. UECA § 12 and 12(c)(7). of persons who can sue to enforce envi- continued on page 18 Virginia did not adopt this provision. ronmental covenants has been greatly Vol. 60 | October 2011 | VIRGINIA LAWYER 17 Forum Kurt A. Strasser is the Phillip I. Blumberg Thomas A. Edmonds is a commissioner of Professor at the University of Connecticut NCCUSL He was dean of the University of Law School and reporter, Uniform Richmond School of Law from 1977 to1987 Environmental Covenants Act. He is a mem- and dean of the University of Mississippi Got an Ethics ber of the Connecticut and Tennessee bars. School of Law from1987 to1989. He was executive director of the Virginia State Bar Question? William M Breetz is the former executive from 1989 to 2008. director of the Connecticut Urban Legal Initiative Inc., University of Connecticut Law The VSB Ethics Hotline is a confi- School. He was chair of the drafting commit- dential consultation service for tee, Uniform Environmental Covenants Act, members of the Virginia State Bar. and commissioner of the National SAVE THE DATE Conference of Commissioners on Uniform Nonlawyers may submit only State Laws. He is a member of the unauthorized practice of law ques- Connecticut bar. Virginia State Bar tions. Questions can be submitted Carlyle C. Ring Jr. has been commissioner of to the hotline by calling (804) 775- the National Conference of Commissioners 74th 0564 or by clicking on the blue on Uniform State Laws (NCCUSL) since 1970 and was president of NCCUSL from Annual “E-mail Your Ethics Question” 1983 to1985. He was general counsel of box on the Ethics Questions and Atlantic Research Corporation from 1985 to Meeting 1999 and was responsible for several projects Opinions web page at under the Virginia Voluntary Remediation http://www.vsb.org/site Program, and other projects of the EPA and June 13–17, 2012 /regulation/ethics/. state cleanups in New York, California, and Virginia Beach, VA Arkansas. Ring is a member of the Virginia State Bar. 18 VIRGINIA LAWYER | October 2011 | Vol. 60 www.vsb.org Forum Another View of Virginia’s History of Potential Uranium Mining by Whittington W. Clement Editor’s Note: The following is a response in Virginia is located at Coles Hill in the next session. By that time, however, to “How Will Virginia regulate Uranium Pittsylvania County.1 the company seeking to mine at Coles Mining?,” by Robert G. “Bob” Burnley, The Burnley article also mischarac- Hill had lost interest and nothing further which appeared in the June/July 2011 terizes the actions taken by the Virginia was done. Virginia Lawyer. http://www.vsb.org General Assembly in the 1980s on the Because no regulatory program was /docs/valawyermagazine/vl0711 uranium issue. The article states on page established by statute, the moratorium -uranium.pdf 41, “[I]n 1981, the Virginia General remains in place today by default. It is Assembly asked the Virginia Coal and false to state that the legislature did not The largest known untapped deposit of Energy Commission to evaluate the ban uranium mining after full consider- uranium in the United States — and the impacts of uranium production. In ation of the issues. To the contrary, the seventh-largest in the world — is located 1982, following that assessment, the purpose of the moratorium was simply in Pittsylvania County, Virginia. Virginia General Assembly established a to afford time for consideration of the Uranium has been an important source moratorium on uranium mining that issues and development of appropriate of energy for more than half a century, remains in effect today.” 2 Burnley incor- regulatory programs if the studies sup- serving as the fuel for nuclear power rectly characterizes the purpose of the ported such a course, which they did. plants. As Virginia and the United States 1982 moratorium and the subsequent Further, the article states “that there strive toward greater energy indepen- actions taken by the General Assembly. are no environmental programs to regu- dence, nuclear power remains one of the The General Assembly imposed the late uranium mining, milling, or ura- best sources of efficient generation. moratorium in order to allow time for a nium tailings waste disposal in Virginia.” Nuclear fuel produces no greenhouse gas thorough study of uranium mining and This statement underscores another emissions or other significant air pollu- establishment of a permitting program if point mining opponents enjoy making: tants. In addition to the environmental warranted. Studies were continued and, that if the so-called moratorium is lifted, and energy benefits uranium offers, the in 1983, the General Assembly estab- uranium operations will pop up all over fact that this large deposit is located in lished the Uranium Administrative the commonwealth with no regulatory Virginia offers tremendous economic Group for further scientific evaluation of oversight. To the contrary, the statute opportunities to the commonwealth. uranium mining in the commonwealth.3 enacted in the 1980s expressly prohibits The June/July 2011 edition of After extensive studies, hearings, any mining activity until a regulatory Virginia Lawyer included an article by expert testimony, and travels to ura- program is in place.5 Indeed, any legisla- Robert Burnley entitled “How Will nium sites — work not concluded until tion that would be sought by uranium Virginia Regulate Uranium Mining?” 1984 — the Virginia Coal and Energy mining proponents would be to establish While the article presented one point of Commission adopted the report of its a thorough set of regulations that would view on whether uranium should be uranium subcommittee, which, with the ensure protection of public health and mined in Virginia, it contained a num- Uranium Administrative Group, recom- our environment. ber of factual inaccuracies. This article mended the following by a 16–2 vote: Mr. Burnley expresses concern, at corrects those inaccuracies and offers a page 43, about whether the Virginia counterpoint to Mr. Burnley’s opinion. Based on all these efforts, we now Department of Environmental Quality The Burnley article, at page 41, conclude that the moratorium on will receive adequate funding to imple- states: “[D]uring the late 1970s and early uranium development can be lifted ment a regulatory program for uranium 1980s, uranium deposits potentially if essential specific recommenda- mining. Mr. Burnley’s concern is prema- worth billions of dollars were discovered tions derived from the work of the ture. If the General Assembly decides to in Pittsylvania County, extending into the task force are enacted into law.4 enact legislation creating a regulatory Piedmont region of Virginia.” (emphasis program to govern uranium mining in added) In fact, no other deposits have At the direction of the Coal and Virginia, it is also fully capable of deter- been found elsewhere in Virginia. The Energy Commission, legislation to estab- mining the funding necessary and the only known economically viable deposit lish a permitting program for uranium mining was prepared for introduction at continued on page 20 www.vsb.org Vol. 60 | October 2011 | VIRGINIA LAWYER 19 Forum sources of those funds, to support that result of his undisclosed affiliation with the map do not necessarily indicate ura- program. the Southern Environmental Law Center nium as the map captures information In addition to any new regulatory and other environmental groups about potassium and thorium as well, program authorized by the General opposed to uranium mining. and certainly do not indicate economi- Assembly, a uranium mining operation The issue of whether the cally viable uranium deposits. This fact is even evidenced by the map’s dis- would also be required to obtain permits Commonwealth of Virginia should enter claimer, which states: “Not all areas and approvals from various state and the regulatory field of uranium mining shown contain uranium in high enough federal agencies, including the U.S. is an important issue and should be concentrations to mine economically.” Nuclear Regulatory Commission; the decided on the basis of complete and 2 See Virginia Code, 1950, as amended U.S. Environmental Protection Agency; accurate information. If it can be shown (“Virginia Code”), § 45.1-283. the Virginia Department of Mines, that uranium mining can be done safely 3 See Senate Bill No. 155, 1983, now Minerals and Energy; the Virginia in Virginia, the deposit at Coles Hill in Virginia Code § 45.1-285.1. Department of Environmental Quality; Pittsylvania County could bring hun- 4 See Appendix B, Report of the Virginia and the U.S. Army Corps of Engineers. dreds of jobs to an economically dis- Coal and Energy Commission to the And if a company in Virginia were to tressed area of Virginia, provide new Governor and the General Assembly of obtain all the required regulatory per- revenue for the region and the state, Virginia, Senate Document No. 15, 1985. mits, which could take five to seven enhance our nation’s ability to be less 5 See Virginia Code § 45.1-283, supra. years, other agencies would be involved dependent on foreign energy sources, to ensure worker safety. These would and produce an abundant source for Whittington W. Clement is a partner at include the U.S. Occupational Safety and clean energy through nuclear power. Hunton & Williams LLP and head of its Health Administration, the U.S. Mine Endnotes: government relations practice. Virginia Safety and Health Administration), and 1 A map titled “Potential Uranium in Uranium, Inc., is a client of the firm. the Virginia Department of Health. Virginia,” prepared by the Piedmont Clement is a former president of the These existing programs are already fully Environmental Council, depicts natural Virginia Bar Association and current chair funded and staffed. gross gamma radiation emitting from of the Virginia Chamber of Commerce. A the surface in Virginia and several other Any meaningful debate about the former member of the Virginia House of southeastern states. Interestingly, the merits of uranium mining must be Delegates representing the Danville- map does not even show Coles Hill as Pittsylvania County area, he also served as based on accurate information. Mr. an elevated surface radiometric secretary of transportation for Governor Burnley’s article was clearly biased as a response. The locations identified on Mark R. Warner. 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NOON–2 PM Marriage Lemon Law, Breach of Video — Charlottesville, Warranty, and Fraudulent December 13 Fredericksburg, Richmond, Vehicle Sellers Ethics Safari: Surviving the Roanoke, Tysons Corner, Telephone Legal Practice Jungle Virginia Beach, Warrenton 3–5 PM Video —Alexandria, 9 AM–4:15 PM Charlottesville, Richmond, Conducting Background Tysons Corner, Virginia November 15 Investigations: Using Free Beach 30th Annual Trusts and and Low-Cost Internet 9 AM–12:15 PM Estates Seminar Resources Video —Alexandria, Telephone December 14 Charlottesville, NOON–1 PM Effective Use of Fredericksburg, Leesburg, Interrogatories, Document Richmond, Roanoke, December 6 Requests, and Requests for Virginia Beach, Warrenton Recent Developments in the Admission 9 AM–4:10 PM Law: News from the Courts Webcast and General Assembly NOON–2 PM November 16 Video —Alexandria, Conducting Background Charlottesville, Richmond, Firearms Law in Virginia Investigations: Using Free Tysons Corner Video —Alexandria, and Low-Cost Internet 9 AM–4:55 PM Charlottesville, Richmond, Resources Roanoke, Tysons Corner, Webinar Virginia Beach NOON–1 PM 9 AM–4:15 PM www.vsb.org Vol. 60 | October 2011 | VIRGINIA LAWYER 23 President’s Message by George Warren Shanks Speaking of Mentoring, Let’s Mentor Ourselves I HAVE BEEN GRATIFIED BY the ini- sage I am speaking to as many local and, once elected, to stay elected. tial responses I have received from my and specialty bars as I can during my Political life has become so time-con- proposal to take a hard look at creating tenure as president. If I haven’t spoken suming that it is difficult to manage the a uniform, statewide blueprint for to yours yet, please get in touch with demands of a practice and the compet- mentoring our youngest and newest me to schedule a visit. I am absolutely ing needs of constituents and political lawyers. I am impressed by the enthusi- serious about this: we must not parties, and in this age of instant com- asm expressed by students I met as I assume the public, whether as the gen- munications, many lawyers are con- addressed the incoming classes at eral electorate or in its representative cerned about their image as decent, George Mason Law School in incarnation, feels as we do about our ethical practitioners. They are disin- Arlington and at Appalachian School professional organization. clined to become “public figures” and of Law in Grundy. And I have been Which is one aspect of mentoring lose what little protection any of us has equally impressed by the receptiveness ourselves. from libel or slander. of the law school deans and professors There is another aspect of mentor- All this, then, becomes a self-ful- I have encountered concerning the cre- ing ourselves that I feel compelled to filling prophecy of a sort. In 1835, ation of post-graduation programs address and it is not susceptible of a Alexis de Tocqueville published which could provide collegial support flashy slogan or a quick fix. Over the Democracy in America.1 This keen to young lawyers. Likewise, the local last forty years or so, there has been a observer of our young, energetic, and specialty bar associations I have steady decline in the number of lawyers brash, growing country recognized that visited to date have agreed that we given to public service in elective office. the essence and the genius of the need to be more involved and consis- As I prepared this article, I reviewed American system of self-governance tent in our collective efforts to make the statistics and the corresponding was its lawyers. His view was that young lawyers “good” lawyers. blogs on this subject and I was not sur- America’s lawyers, and its judges drawn In speaking to the bar’s mandatory prised at the number of disaffected from their ranks, formed the intellec- professionalism courses, I have encour- souls who applauded this decline. As I tual bulwark within the system — at aged the new admittees to join at least have mentioned, lawyers as a profes- every level of government from the one, and preferably more, local and sion have a public relations problem. tiniest village to the Congress — to specialty bars to acquire knowledge, But this is not new. What is new is the withstand the passions of the public exposure, confidence and collegiality. increasing unwillingness of members expressed in every imaginable form of Being a member in good standing of of our profession to step forward as corrective (or coercive) legislation as the Virginia State Bar is simply not community leaders and apply to the they bent to do the public’s will. He felt enough to be a well-informed, well- processes of self-governance the skills that our training and respect for the centered lawyer. And our many vol- of critical thinking and cogent public rule of law, its traditions, its forms and untary bars — there are over 100 — speaking that lawyers possess by apti- precedents, and the reasons for its tra- provide the Virginia State Bar with an tude, education, and training. ditions, forms and precedents, would instant network of local knowledge, There are a number of reasons insure that such an otherwise wild and energy, and assistance. We relearned why this has occurred and they have unwieldy notion as representative this lesson last year and its message is very little to do with the public’s atti- democracy would flourish and endure. too important to forget: we cannot tude toward the legal profession. expect others outside our profession Mostly, they have to do with us. In a He was right. And now, if he were to recognize the virtues of our inde- day when the law is viewed by so many to return to write Democracy in pendence as the state’s only fully practitioners as a business, rather than America – The Sequel, I believe he self-regulated, totally self-funded pro- as a calling, the question can be asked: would suggest that many of our cur- fession if we do not appreciate that why go to the trouble? It is extraordi- fact ourselves. To reinforce this mes- narily expensive to run for election President’s Message continued on page 27 24 VIRGINIA LAWYER | October 2011 | Vol. 60 Learn the basics fromthe best … Experiencedjudges and lawyerswill provide attendeeswith practice tips and First Day real-life essentials. in Practice Tuesday, November 1, 2011 Greater Richmond Convention Center Seminar: 8:15AM – 4:00 PM Choice of break-out sessions – 8:45 AM – 12:00 PM ¾ Criminal Law or Wills, Trusts and Estates ¾ Family Law or Personal Injury ¾ Real Property or Technology & Your Practice ¾ Employment Law or Bankruptcy Law Tuition includes lunch, a disc with many General Session – 1:15-4:15 PM substantive outlines, as well as a free ¾ “How to Avoid the Disciplinary System” one-year membership in the General ¾ Appellate Advocacy Practice Section. ¾ Charging & Getting Your Fees ¾ Discovery 101 The faculty includes some of Virginia’s ¾ Civility and Courtroom Etiquette: A Panel Discussion most distinguished lawyers and judges. ***A LINK TO MATERIALS WILL BE SENT OUT VIA EMAIL PRIOR TO THE PROGRAM*** ONLY CD’S WILL BE HANDED OUT ON SITE 6 MCLE HOURS PENDING (2 ethics) • Box Lunch Provided Sponsored by the General Practice Section and the Young Lawyers Conference of the Virginia State Bar FIRST DAY IN PRACTICE REGISTRATION FORM Enclosed is my registration fee of $85.00 to attend the seminar on November 1, 2011. Name ______VSB ID ______Address ______City, State Zip ______Phone ______Fax ______Email address ______(Email address needed for sending out information regarding materials.) Break-Out Sessions (Break-out sessions will be assigned on a first-come, first-served basis.) 8:45-9:30 AM ___Criminal Law OR ___Wills, Trusts and Estates 9:35-10:15 AM ___Family Law OR ___Personal Injury 10:30-11:15 AM ___Real Property Law OR ___Technology & Your Practice 11:20-12:00 PM ___Employment Law OR ___Bankruptcy Law 12:45-4:00 PM General Session Please make your check payable to the Virginia State Bar and mail to Bar Services, Virginia State Bar, 707 E. Main Street, Suite 1500, Richmond, VA 23219. Registrations will accepted on a first-come, first-served basis. SPACE LIMITED. Curriculum subject to change. Vol. 60 | October 2011 | VIRGINIA LAWYER 25 Executive Director’s Message by Karen A. Gould Problem, Procedures, Proposals and Pondering ALPS Announces Southern Major Revisions to Advertising The proposed amendments to Title Problems Rules Proposed Rule 7.3 would both broaden and nar- ALPS (Attorneys Liability Protection Council will meet next on October 21, row the scope of the prohibition Society) notified the Virginia State Bar 2011, in Winchester. Scheduled for vote against in-person solicitation. The on September 15, 2011, that Southern on the action agenda will be amend- amendments would broaden the scope Title, a title insurance agency head- ments to Rules of Professional Conduct of the prohibition by applying the rule quartered in Richmond, would no 7.1, 7.3, and 7.5, which regulate lawyer to cover all types of matters, not only longer be issuing new title policies. A advertising and solicitation. Advertising personal injury and wrongful death press release issued by Southern Title Rules 7.2 and 7.4 will be eliminated cases. As the last sentence in proposed on September 15, 2011, indicated that under the proposal submitted by the Comment [1] explains, “A person in the suspension of operations was nec- Standing Committee on Legal Ethics, if need of legal services for a divorce, essary as a result of a “substantial approved by Council. All proposed rule bankruptcy, or criminal defense may be recent agent defalcation,” as well as changes will be submitted to the just as overwhelmed and vulnerable to higher than normal claims arising from Supreme Court of Virginia for final suggestion as a person in need of legal policies issued by now-cancelled agents approval before becoming effective. services in cases involving personal in the years 2005 through 2008. ALPS Overall, the committee’s proposed injury or wrongful death.” In response Corporation purchased Southern Title amendments make the advertising to the comments regarding this rule, in July 2009. To see Southern Title’s rules more general in their application the committee’s revised proposal press release, go to: http://www by removing the specific examples of would narrow the scope of the prohibi- .southerntitle.com/media/134856 lawyer advertising statements or claims tion against in-person solicitation by /southern%20title%20suspends%20 from the body of the rules to the com- requiring harassment, coercion, duress, issuance%20of%20new%20policies.pdf. ment section. Specifically, the proposed compulsion, intimidation, threats, or ALPS RRG (Attorneys Liability amendments to Rule 7.1 would delete unwarranted promises of benefits, tak- Protection Society, Inc., A Risk the terms “fraudulent” and “deceptive.” ing into consideration the prospective Retention Group) is the VSB’s If a lawyer’s advertising is “fraudulent” client’s sophistication and other cir- endorsed professional liability insur- or “deceptive,” it would therefore be cumstances. ance carrier. ALPS Corporation is the “false” or “misleading.” The committee Rule 7.3 maintains the require- holding company for both ALPS RRG believes that statements in lawyer ment that advertisements targeted to a and Southern Title. advertising that are “false” or “mislead- potential client known to be in need of The VSB’s Lawyer Malpractice ing” violate Rule 7.1 regardless of any particular legal services be labeled Insurance Committee (LMIC) met for intent by the lawyer to deceive the pub- “ADVERTISING MATERIAL,” but its regularly scheduled meeting on lic or defraud a consumer. clarifies and expands the exceptions to September 28, 2011, and discussed this The committee’s new proposal to that requirement. The rule includes a issue with ALPS Executive Vice President delete Rule 7.2 is based on the conclu- new subsection which provides that a Chris Newbold. ALPS has assured the sion that the rule is largely a repetition communication from a lawyer to a VSB that ALPS’s reserves are separate of Rules 7.1 and 7.3. Relevant parts of recipient who had prior contact with from Southern Title’s reserves and are Rule 7.2 regarding lawyer advertising the lawyer is exempt from the labeling not at risk as a result of Southern are incorporated within Rule 7.1, as requirement. Title’s problems. The LMIC will con- “Communications” covers all lawyer The committee’s proposal to delete tinue to monitor the situation. advertising; relevant parts of Rule 7.2 Rule 7.4 in its entirety is based on the As of June 30, 2011, 2,247 regarding paying others to recommend committee’s conclusion that any claim Virginia lawyers were insured by ALPS a lawyer have been incorporated within or statement of specialization should in 1,063 firms. Rule 7.3. Director’s Message continued on page 27 26 VIRGINIA LAWYER | October 2011 | Vol. 60 President’s Message continued from page 24 rent political divisions are aggravated aging young lawyers to become providing these skills are not being by a lack of clear thinking, brought on involved in the political process early replenished. I think they need to be. by a dearth of lawyers in important and to make themselves available “to legislative positions. In this respect, we labor in the vineyards.” have ourselves to blame. And only we I am not endorsing any particular 1 Tocqueville, Democracy in can do something about it: by encour- person, political party, ideology, or America, Book I, Chapter XVI, aging our colleagues to stand for public platform. And I am not in any way CAUSES WHICH MITIGATE THE office and by supporting them when impugning the efforts of our current TYRANNY OF THE MAJORITY they do; by encouraging our senior elected officials, lawyers or laymen. But IN THE UNITED STATES attorneys who want to “slow down” in they need our skills, at every level of their practices to run for local office as government, and the ranks of those a way of giving back; and by encour- Director’s Message continued from page 26 be measured by the “false” or “mislead- 1A:1 and Rule 1A:2 (patent attorneys broaden CLE approval for law practice ing” standard used in Rule 7.1 and that admitted prior to July 1, 2000). There management courses. Types of courses a specific rule for a particular type of are 2,405 members of the Virginia that may be approved for CLE credit statement or claim is both unnecessary State Bar currently admitted to practice subject to compliance with CLE and redundant. If a lawyer communi- under the reciprocity rules. approval requirements include: case cates a specialty certification, the There seems to be a misconcep- management, tickler and docket con- lawyer’s communication will be evalu- tion about the proposed rule change trol systems, conflict checking systems, ated under Rule 7.1’s requirement that that was circulated for comment in the law firm technology/software pro- any advertising regarding a lawyer’s August 2011 Virginia Lawyer Register. grams, legal research, client screening specialty certification cannot be mis- The Supreme Court of Virginia has and intake practices, retainer agree- leading and must be truthful. The required that lawyers admitted by reci- ments, withdrawal from representa- committee makes this point in Rule procity continue to practice full time tion, handling client files, handling 7.1, new Comment [4]. while maintaining an office in Virginia trust accounts, supervision of subordi- The proposed amendments to and, if they did not, would proceed to nate attorneys and non-attorneys, Rule 7.5 would add a new Comment revoke their licensure status. communications with clients and oth- [3] clarifying that lawyers should prac- The VSB’s Rule 1A:3 Study ers, time management for attorneys, tice using the official name under Committee has provided the comment proper use of computer technology in which the lawyer is licensed or seek an letters to the Supreme Court. Many of a manner consistent with the Rules of appropriate and legal change of name the concerns raised by the comment Professional Conduct including profes- from the Supreme Court of Virginia. letters address admission issues. sional competence and confidentiality, The proposed amended rules can Admission of members to the bar is a closing a law practice and law office be found at http://www.vsb.org/docs matter reserved to the Supreme Court disaster planning. To review the text of /Proposed_7_1–7_5.pdf. and in some limited circumstances to the full opinion, go to http://www.vsb The current rules are located at the legislature, and is not within the .org/docs/MCLE-prop-opinion17 http://www.vsb.org/pro-guidelines purview of the Virginia State Bar. -072211.pdf. /index.php/rules/information-about Therefore, the study committee has -legal-services/. communicated with the Court that it ABA Commission on Ethics did not feel it was within its jurisdic- 20/20 Seeks Comments on Revocation Procedures for tion to address these issues without Initial Proposals Reciprocity Admittees up for Revision further direction from the Court. The Ethics 20/20 Commission, of The Supreme Court of Virginia has which Virginia Justice Elizabeth B. Lacy asked the VSB to propose revisions to MCLE Board Proposes Broadening is a member, has released initial pro- Va. Sup. Ct. Rule 1A:3, to change the CLE Approval for Law Practice posals for comments. In these propos- current procedure for revoking certifi- Management Courses als, the commission recommended, cates issued to those admitted to prac- The MCLE Board has sought comment tice under the reciprocity rule, Rule on amended Opinion 17, which would Director’s Message continued on page 31 www.vsb.org Vol. 60 | October 2011 | VIRGINIA LAWYER 27 Noteworthy > VSB NEWS Diversity Conference Commended Virginia Senator Emmett W. Hanger Jr. holds a resolution he sponsored that commends the Virginia State Bar Diversity Conference, which just com- pleted its first year. With him are (left–right) conference Chair Michael HuYoung; Immediate Past Chair Manuel A. “Manny” Capsalis, who made creation of the conference the capstone of his VSB presidency; and conference mem- bers Rupen R. Shah (with his son, Adarsh R. Shah) and Peter C. Burnett. The resolution describes the confer- ence’s mission: “to foster and encourage diversity in the admission to the bar and The full text of the resolution can The senator presented the resolution advancement in the legal profession and be read at http://lis.virginia.gov/ in June at the VSB Annual Meeting in the judiciary; to serve as a catalyst for cgi-bin/legp604.exe?111+ful+SR31ER. Virginia Beach. creating leadership and bar service Under the conditions of its establish- opportunities in the legal profession in ment by the VSB Council, the Diversity Virginia; and to work to ensure that the Conference is not supported by bar dues. legal system is response to the legal needs of the people of Virginia.” The VSB E-News Notice to Members: MCLE Compliance Deadline Is Oct. 31 Have you been receiving the Virginia State Bar E-News? The E- Your compliance deadline for mandatory continuing legal education is October News is a brief monthly summary 31, 2011. Go to https://member.vsb.org/vsbportal/ and log in to review your of deadlines, programs, rule MCLE record and certify your course attendance. changes, and news about your The MCLE End of Year Report (Form 1) will be mailed in early November. regulatory bar. The E-News is e- Please review the report and, if incomplete, amend as instructed. Amended mailed to all VSB members except reports must be received by the bar no later than 4:45 PM on December 15, 2011. those who opt out. If your Virginia State Bar E-News is being NEW for 2012 MCLE Compliance Year blocked by your spam filter, con- Beginning November 1, 2011, a new limitation on prerecorded MCLE pro- tact your e-mail administrator grams will require that at least 4.0 credit hours be earned from live interactive and ask to have the VSB.org programs. See FAQs about the new requirement and other MCLE compliance domain added to your permis- information at http://www.vsb.org/site/members/mcle-courses/. sions list. 28 VIRGINIA LAWYER | October 2011 | Vol. 60 PEOPLE < Noteworthy The investiture of the Honorable Elizabeth A. McClanahan as Justice of the Supreme Court of Virginia was held September 1, 2011. Shown (left–right ) are: Husband Byrum L. Geisler, daughter Eleanor Katharine McClanahan Geisler, son William McClanahan Alexander Geisler, and Justice McClanahan. Photo credit: Bob Brown/Richmond Times- Dispatch. Steven D. Benjamin is the new president-elect of the Emily F. Hedrick Joins VSB Staff National Association of Criminal Defense Lawyers. He will serve as president of the association next year. Benjamin has Emily F. Hedrick a criminal defense practice based in Richmond. He also is has joined the special counsel to the Virginia Senate’s Courts of Justice Virginia State Committee and to the Virginia State Crime Commission Bar as assistant and a member of the Virginia Board of Forensic Science ethics council. and the Virginia Indigent Defense Commission. Her primary responsibilities Photo credit: Bob Brown/Richmond Times-Dispatch. are staffing the ethics hotline where she gives informal legal advice to Kara McGehee Joins VSB Staff as Assistant Bar Counsel Virginia lawyers and researching and drafting legal ethics opinions and other Kara McGehee has joined the Virginia State Bar as an assistant materials for the Standing Committee bar counsel. She will prosecute professional disciplinary cases in the third district, which includes parts of Richmond, on Legal Ethics. Petersburg, Chesterfield County, and Sussex. Hedrick was a staff attorney for the She most recently was a partner with Davis & O’Brien PC VSB professional regulation department in Virginia Beach where she was in a litigation intensive prac- from October 2010 until February, when tice. She handled criminal defense, guardian ad litem work, she was appointed to her current posi- divorce, prenuptial and antenuptial agreements, child support, tion. She is a native of Chatham and child custody, and other types of cases. She also has extensive holds a bachelor’s degree in philosophy experience with juvenile and adult criminal cases. and a law degree from the University of She was an assistant commonwealth’s attorney from 2005 until 2007 in Virginia. She has been a law clerk fellow Chesapeake and practiced with Fraim & Fiorella PC in Norfolk from 2003 until 2005, for the Supreme Court of Virginia, focusing on insurance defense litigation. Office of the Chief Staff Attorney, an McGehee has a bachelor’s degree from James Madison University where she majored in philosophy and media arts and design, and a law degree from the College admissions file reader and legal research of William and Mary. assistant at the University of Virginia She serves as president of Tidewater Arts Outreach, headquartered in Norfolk, School of Law, and a law clerk for Judge and was a volunteer for Concerned Lawyers Advocating Spousal Safety. She has prior Edward Hogshire at the Charlottesville experience serving the bar as a member of the Second District Committee from 2008 Circuit Court. to 2011. A native of Tidewater, McGehee relocated to Richmond after falling in love with the city during her summer internship with the Supreme Court of Virginia in 2002. Vol. 60 | October 2011 | VIRGINIA LAWYER 29 Noteworthy > PEOPLE In Memoriam William D. Anderson Robert K. Coats Ivy Ann Johnson Towson, Maryland Richmond Washington, D.C. July 1939–February 2011 December 1923–August 2011 March 1972–November 2010 Minerva W. Andrews T. Carter Coates Robert Carlton Jones Charlottesville Richmond Washington, D.C. February 1925–September 2011 February 1933–November 2010 December 1951–February 2011 Patrick Kane Arey Charles Arthur Dalebout L. Alex Jordan Jr. Baltimore, Maryland Winchester Martinsville July 1947–July 2011 December 1963–March 2011 July 1925–July 2011 John H. Ariail Jr. Thomas Charles Dawson Jr. Alan S. Kalkin Arlington Virginia Beach Burbank, California October 1942–January 2011 April 1961–July 2011 September 1933–June 2010 Willard Todd Bensen Francis T. Eck Karen Jennifer Kysilka Kincaid Warrenton Henrico Vienna April 1953–August 2011 June 1944–August 2011 November 1972–June 2011 George P. Blackburn Jr. William B. Ely T.C. Lea Jr. San Antonio, Texas Norfolk Orange October 1920–March 2006 August 1921–September 2011 May 1937–August 2011 Robert N. Bloxom Elizabeth Bartlett Fitzwater Robert Edward Lee Accomac Portsmouth Richmond January 1922–February 2011 August 1969–September 2011 November 1942–April 2011 Hon. James Andrew Bowen William Joseph Flanagan Morgan N. Logan Juneau, Alaska Alexandria Boydton May 1951–April 2010 August 1952–October 2010 May 1933–September 2009 Marvin C. Bowling Jr. Hon. Dixon L. Foster Mark Stephen Mann Richmond Irvington Alexandria September 1927–April 2011 March 1923–August 2011 October 1951–March 2011 Daniel E. Bray Jr. Kenneth Vincent Geroe Hon. Leslie L. Mason Jr. Williamsburg Virginia Beach Powhatan April 1929–July 2011 August 1954–July 2011 December 1926–September 2011 Sylvia Moss Brown John Francis Gonzales Hon. Arthur L. McGratty San Diego, California Alexandria Waynesboro September 1949–August 2011 May 1946–June 2011 July 1940–April 2011 Kennon Walford Bryan Gary Lee Holmes Forrest Reid Mooy McLean Los Angeles, California Falls Church June 1943–April 2011 May 1954–January 2011 June 1978–November 2010 Raymond M. Carlson Steven Bennett Jervey Lt. Col. William J. Nelson, USA Naples, Florida Altamonte Springs, Florida Stafford November 1922–October 2010 December 1947–May 2011 February 1970–February 2011 30 VIRGINIA LAWYER | October 2011 | Vol. 60 PEOPLE < Noteworthy In Memoriam Director’s Message continued from page 27 Simon M. Osnos W. Carrington Thompson Falls Church Chatham amendments to the ABA Model November 1955–August 2011 November 1915–June 2011 Rule for Admission by Motion reducing the number of years of Elizabeth Fawn Pignatello Haynie S. Trotter practice from 5 to 3; the addition of Alexandria McLean Model Rule 5.5(d)(d) and language October 1971–August 2011 February 1931–June 2011 clarifying “systematic and continu- ous presence,” the addition of black John J. Quill Carl William Ulrich letter rule in Model Rule 1.6 autho- Alexandria Richmond rizing limited disclosures to facili- May 1926–February 2011 September 1944–December 2010 tate conflicts checking; and John Leslie White amendments to Model Rule 1.7 Ira Joel Schultz Arlington regarding choice of law provisions Alexandria November 1925–May 2011 in lawyer-client agreements. To February 1950–July ll2011 review the proposals, go to the Jo Smith Widener commission’s website at Hon. James Benedict Shea Jr. Bristol www.abanet.org/ethics2020. Raleigh, North Carolina December 1945–June 2011 Justice Lacy will be presenting September 1924–February 2011 the Ethics 20/20 proposals to Ralph C. Wiegandt Council as an information item at Edmund P. Shevlin Fincastle its February 2012 meeting. Warsaw March 1940–July 2011 November 1930–September 2010 Payee Notification Task Berry D. Willis Jr. Force Formed Gary Lance Smith Norfolk The Supreme Court of Virginia has Winchester July 1917–July 2011 asked that the subject of payee noti- March 1961–August 2011 fication again be studied by the J. Martin Willis Virginia State Bar in conjunction Dana Elizabeth Stern Norfolk with the other interested statewide Arlington November 1921–April 2011 bar groups. The Payee Notification July 1970–May 2011 Task Force consists of the following Joseph M. Winston Jr. members: Jon D. Huddleston, chair; Charles W. Sutter Danville VADA representative Dennis J. Fairfax January 1916–April 2011 Quinn; VBA representative Hugh August 1948–May 2011 M. Fain III; VTLA representatives Jams Thomas Youngblood Edward Allen and Jack L. Harris; Richard P. Taylor Springfield VWAA representative Darrell Washington, District of Columbia January 1929–November 2010 Tillar-Mason; Phillip V. Anderson; September 1926–October 2010 Irving M. Blank; Edward L. Chambers; Mary L.C. Daniel; Thomas A. Edmonds; Kevin E. Martingayle; Sandra M. Rohrstaff; George W. Shanks; Michael W. Smith; Kimberley Slayton White; and William T. Wilson. The first meeting of the task force is sched- uled for December 1, 2011. Vol. 60 | October 2011 | VIRGINIA LAWYER 31 Noteworthy > PEOPLE Local and Specialty Bar Elections Fairfax Bar Association Loudoun Chapter, VWAA Roanoke Chapter, VWAA William Patrick Daly Jr., President Betsy Sue Scott, President Robyn Smith Ellis, President Jay Barry Myerson, President-elect Edward Laurence Weiner, Vice President Martinsville-Henry County South Hampton Roads Bar Association Douglas Robert Kay, Secretary Bar Association Stephen Eugene Anthony, President David Lyndon Marks, Treasurer George Albert Hanna Lyle, President Pamela Gail Boston, President-elect Janine Marie Jacob, Vice President Charlene Aleatha Morring, Secretary Fredericksburg Chapter, VWAA Christina Leventis Slate, William T. Mason Jr., Treasurer Carolyn Suzanne Strozier Seklii, Secretary-Treasurer President Virginia Academy of Elder New River Valley Chapter, VWAA Law Attorneys Greater Richmond Intellectual Lara V. Finch, President Christopher Michael Houst McCarthy, Property Law Association Margaret Elizabeth Stone, Secretary President Cheryl Lynn Black, President Brenda Cheryl Moses, Treasurer Evan Harris Farr, President-elect Douglas Brian Smith, Karen L. Fortier, Vice President Vice President-Treasurer Newport News Bar Association Elizabeth Ellen Bircher, Secretary Janet Won Cho, George Bernard Pearson, President Elizabeth Louise Wildhack, Treasurer Corresponding Secretary Mark Andrew Short, President-elect Bernard G. Pike, Recording Secretary Henry D. Garnett Jr., Secretary Virginia Women Attorneys Association Robert Paul Stenzhorn, Treasurer Catherine Mary Reese, President Hampton Roads Chapter, VWAA Mary Grace Anne O’Malley, Mary Teresa Morgan, President Northern Virginia Chapter, VWAA President-elect Miss Kathryn Leigh Taylor, President Jennifer Dillow Royer, Secretary Hispanic Bar Association of the Cynthia Kaplan Revesman, Treasurer Commonwealth of Virginia Prince William Chapter, VWAA Ofelia Lee Calderon, President Maryse Celine Allen, President Jose Antonio Garcia Martelino Jr., Vice President Richmond Chapter, VWAA Gilberto Sanchez, Secretary Joan McKenna, President Lauren Ebersole Hutcheson, Secretary Darrel Tillar Mason, Treasurer S AVETHE D ATE Bar Leaders Institute March 5, 2012 University of Richmond School of Law The Bar Leaders Institute (BLI) is a one-day program sponsored by the Conference of Local Bar Associations to train and provide resources to current and prospective local and statewide bar leaders. Details will be available on the Conference of Local Bar Associations website at http://www.vsb.org/site/conferences/clba/ under Conference Meetings and Events. 32 VIRGINIA LAWYER | October 2011 | Vol. 60 www.vsb.org ET AL. < Noteworthy Justice Powell to Keynote Diversity Conference Forum at the University of Virginia by Clarence M. Dunnaville Jr. Newly appointed Justice Cleo E. Powell, Board of Bar Examiners; Professor Dan HuYoung of Barnes and Diehl; Dana T. an alumnus of the University of Virginia R. Ortiz, immediate past chair of the Weekes of Patton and Boggs; Richard C. School of Law and member of the Law School Admission Council; and “Rip” Sullivan Jr. of Reed Smith; Diversity Conference of the Virginia Peter Pashley, psychometrician of the Jacquelyn E. Stone of McGuire Woods; State Bar, will return to her alma mater Law School Admission Council. Tyree R. Jones Jr. of Reed Smith, on Thursday, November 10, 2011, as Kim M. Keenan, general counsel Manuel A. Capsalis, former president of the keynote speaker at a three-day con- of the National Association for the the Virginia State Bar; and Kenneth Imo ference on diversity within the legal Advancement of Colored People will of Wilmer and Hale. profession. The conference is spon- be the keynote dinner speaker on This program will cover a wide sored by the Law School’s Center for Friday evening. range of issues and improvements the Study of Race and Law, the The Saturday program will open desired to make the legal profession rep- Diversity Conference of the Virginia with a panel on the benefits of expand- resentative of the diverse society in State Bar, the Asian Pacific American ing the pipeline for a diverse profession which we live. Law Students Association, and the and will be followed by a panel on the The conference is being coordinated Black Law Students Association. road to firm partnership. Supreme Court by Professor Alex M. Johnson of the On Friday the program will open Justice S. Bernard Goodwyn will be the University of Virginia School of Law. with a welcome by law school dean Paul keynote luncheon speaker on Saturday. All members of the bar and law G. Mahoney, followed by a discussion An open forum on best diversity prac- students are invited to this important led by Shawn J. Chen of Cleary Gottlieb tices developed by law firms, followed by conference. on the Value Added by Diversity. Other informed discussion and cocktails will participants on the Friday program will conclude the program. Clarence M. Dunnaville Jr. is a Richmond include Erica Moeser, president of the Participants on the Saturday pro- attorney and a member of the Virginia National Conference of Bar Examiners; gram include G. Michael Pace of Gentry State Bar Diversity Conference. W. Scott Street III, chair of the Virginia Locke, Rakes and Moore; Michael “Not in Good Standing” Search Available at VSB.org Have You Moved? Keep in Touch with the VSB The Virginia State Bar has added a new feature to its Attorney Records Search To check or change your address at http://www.vsb.org/attorney/attSearch.asp: the ability to search active of record with the Virginia State Virginia lawyers’ names to see if they are not eligible to practice because their Bar, take the following steps: licenses are suspended or revoked. Go to the VSB Member Login at https://member.vsb.org The “Attorneys Not in Good Standing” search function was designed in /vsbportal/. Go to “Membership conjunction with the VSB’s new permanent bar cards. Information,” where your current address of record is listed. To Lawyers are put on not-in-good-standing (NGS) status for administrative change, go to “Edit Official reasons — such as not paying dues or fulfilling continuing legal education Address of Record,” click the appropriate box, then click requirements — and when their licenses are suspended or revoked for violat- “next.” You can type your new ing professional rules. address, phone numbers, and e- The NGS search can be used by the public with other attorney records mail address on the form. Contact the VSB Membership searches —“Disciplined Attorneys” and “Attorneys without Malpractice Department (membership@vsb. Insurance”— to check on the status and disciplinary history of a lawyer. org or (804) 775-0530) with questions. www.vsb.org Vol. 60 | October 2011 | VIRGINIA LAWYER 33 Access to Legal Services Clients Need More Than Advocates, They Need Our Help by Margaret A. Nelson Bryan Stevenson sat with his client who, charged with society’s most heinous for nonviolent crimes in the 109th within hours, would be put to death for crimes.” Perhaps it was because Congress of 2005 and 2006. It found of his capital offense. In that final conversa- Stevenson was so engaging. He received the thirty-six new crimes created, a tion the condemned revealed his awe at high marks for his materials, lecture and quarter had no mens rea requirement how kind and considerate the people overall presentation in the evaluations and nearly 40 percent more had only a around him were on his last day of life. from the 850 attendees in all three view- “weak” one.8 In July, 2011 the Wall Street “In the last fourteen hours of his life ing locations. Journal noted that federal statutes are more people had asked him what he Stevenson asserted that there is a proliferating and end up snaring needed than at all times combined in “duty and privilege of all lawyers to raise unknowing first offenders, such as a nineteen years when what he needed was the profile”4 of the discussion in the best father and son who went looking for help from molestation, hunger, home- interest of our legal justice system by arrowheads and wandered onto pro- lessness, addiction, and mental illness.” 1 asking hard questions and putting the tected property and were found guilty Stevenson’s message resonated with issues on the table for frank analysis and despite the fact that they neither found an audience of seasoned lawyers that discussion. For Virginia attorneys, nor kept artifacts and lacked criminal included former federal and state prose- Stevenson’s message replicates the chal- intent.9 Unknowing first offenders are cutors, former or current public defend- lenge of Virginia’s Preamble to the Rules becoming criminals. ers, certified capital defenders, and of Professional Conduct that a Virginia private counsel. Each of them was quali- lawyer is an “officer of the legal system As federal criminal statutes have fied to provide court-appointed legal and a public citizen having a special ballooned, it has become increas- services to indigent clients. responsibility for the quality of justice.”5 ingly easy for Americans to end up “There is an appalling silence in our on the wrong side of the law. Many culture about critical issues which are Incarceration Rates of the new federal laws also set a changing our country from within.” It is Stevenson noted that the United States lower bar for conviction than in the “the duty of every lawyer, and not just has the “highest incarceration rate in the past. Prosecutors don’t necessarily criminal defense attorneys, to step up world with one in thirty-two people need to show that the defendant into the discussion.”2 Stevenson jailed or imprisoned.” 6 “In 1972, there had criminal intent. There are also addressed more than ten legal topics and were 300,000 people incarcerated in jails thousands of regulations that carry received a standing ovation in the and prisons whereas today there are 2.1 criminal penalties. Some laws are so Richmond Convention Center on April million incarcerated people.” 7 Is some- complex; scholars debate whether 29, 2011. It was the first standing ovation thing seriously wrong with our justice they represent one offense, or scores for a lecture segment in the conference’s system, rehabilitation and reentry pro- of offenses. The ABA’s report said seven year history at the “Indigent grams or are our people so morally “the amount of individual citizen Criminal Defense: Advanced Skills for bankrupt that they must be incarcerated behavior now potentially subject to the Experienced Practitioner” seminar.3 at the highest rate in the world? federal criminal control has We do not know whether the standing increased in astonishing propor- ovation was because the attorneys knew Explosion of Non Violent Crime tions in the last few decades.” A jus- the issues Stevenson presented or Legislation tice spokeswoman said there was no because they heard the issues presented Meanwhile, nonviolent crimes are being quantifiable number. Criminal so clearly and frankly, or because he ral- promulgated at an increasing rate. A statutes are sprinkled throughout lied the spirits of those whose oaths study in 2010 by the Heritage Foundation some 27,000 pages of the federal demand high standards of advocacy as and the National Association of code.10 they “stand up for those who are disfa- Criminal Defense Lawyers analyzed vored and marginalized and who may be scores of proposed and enacted new laws 34 VIRGINIA LAWYER | October 2011 | Vol. 60 www.vsb.org Access to Legal Services By the turn of the 20th century, the cases include forensic evidence and comprehensive review released in 2008, number of federal criminal statutes many states have expanded post-convic- stated: numbered in the dozens. Today, there are tion procedural requirements to allow an estimated 4,500 crimes in federal other findings besides forensic evidence. Among all of the policy areas affect- statutes, according to a 2008 study by In a resolution passed by the American ing vulnerable children and families, retired Louisiana State University law Bar Association’s House of Delegates in juvenile justice has probably suf- professor John Baker.11 August 2011, “the group called on state fered the most glaring gaps between and federal governments to adopt a best practice and common practice, Collateral Consequences stricter standard for so-called exculpa- between what we know and what Equally challenging are the collateral tory evidence,” for “stricter rules for we most often do. Perhaps because consequences for adult convictions and prosecutors to disclose evidence that it serves an unpopular and power- some juvenile adjudications. Stevenson could help the defense.”19 “Advocates less segment of our society—behav- warned of an emerging “caste society”12 hope to eliminate the uncertainty that iorally troubled, primarily poor, in the United States mostly because surrounds current case law, which is mostly minority teenagers—juvenile criminal convictions result in collateral subject to varying interpretation by justice policy has been too long consequences, the loss of public benefits judges in different jurisdictions. ‘In order shaped by misinformation, hyper- and also advancement opportunities, to give real meaning to the 6th bole, and political prejudices. such as private, military or civil service Amendment right to counsel, you have The consequences have been both employment, otherwise available. This is to make sure the counsel has the build- disturbing and costly: Our juvenile an emerging society with “women and ing blocks to build a defense,’ ” said justice systems have become littered children affected the most, no matter William Shepherd, former statewide with poorly conceived strategies that what race or ethnicity, because an entire prosecutor for Florida who supports the often increase crime, endanger family feels the effects of the one who resolution.”20 Likewise, by the mandate young people and damage their becomes disenfranchised due to some of Bar Council for the Virginia State Bar future prospects, waste billions of criminal convictions.”13 in 2004, its Indigent Defense Task Force taxpayer dollars, and violate our- Recognizing the landslide of collat- has worked for almost two years to give deepest held principles about equal eral consequences in all fifty states, the a recommendation for reform of justice under the law.22 American Bar Association is cataloging Virginia’s Criminal Discovery Rule The report cited a leading mental every state statute that creates a bar to 3A:11. 21 health expert who said, “During the some type of public benefit.14 As of 1990s, state after state experienced the September 7, 2011, Virginia had 137 Strategic Advancements collapse of public mental health services statutes in this newly created database.15 Albert Einstein said, “The significant for children and adolescents.” “The juve- Ultimately, “attorneys, policy makers problems we face cannot be solved at the nile justice system soon became the pri- and the public” across the country will same level of thinking we were at when mary referral for youths with mental have access to the database to view the we created them.” The Annie E. Casey health disorders.” 23 collateral consequences attaching to Foundation, a private charitable founda- One strategy for reform, the convictions.16 The effort will be a tion dedicated to helping build better Juvenile Detention Alternatives Initiative resource for attorneys, but it does not futures for disadvantaged children in the (JDAI), has been the Casey Foundation’s solve the problem of legislation that United States since 1948, would likely flagship juvenile justice reform initiative denies access to public benefits and echo this sentiment. Stevenson’s 19-year for fifteen years. Today, JDAI is being employment for those people who are old capital murder client spoke of devas- implemented in half the states and the attempting to re-enter society and who tating circumstances in his own life. District of Columbia, in almost 100 local usually have few resources. From his vantage, there could have been jurisdictions, including selected localities a different course of action and set of in Virginia, making it the most widely Limited Criminal Discovery experiences that may have changed the replicated juvenile justice reform initia- Innocent people are found guilty of tragic outcome in his life and that of his tive in decades. Many JDAI sites have crimes they did not commit.17 18 Across victim(s). In a report released by the dramatically reduced the average daily the nation, some of the wrongly con- Annie E. Casey Foundation, “A Road population in secure detention, in some victed are being exonerated through Map for Juvenile Justice Reform,” its cases by as much as two-thirds.24 advancing forensic examination. Not all www.vsb.org Vol. 60 | October 2011 | VIRGINIA LAWYER 35 Access to Legal Services A September 2011 report, gaining momentum in the public forum • For almost a decade, Virginia State Sen. “Resolution, Reinvestment, and on all sides of the political spectrum. A. Donald McEachin (D) has champi- Realignment: Three Strategies for oned a bill to give Virginians access to a Changing Juvenile Justice,” identifies • In 2008, as part of a bipartisan effort, listing of all collateral consequences of three basic reform strategies: resolution U. S. Sen. Jim Webb (D-VA) proposed a the laws promulgated in the common- (driven by managers); reinvestment National Criminal Justice Commission wealth so that attorneys and the general (financial incentives for reform); and Act to create a blue-ribbon, biparti- public may have the resources for deci- realignment (organizational and struc- san commission of experts charged sion-making. tural modifications to alter system with undertaking an 18-month review behavior) presents solutions.25 of the nation’s criminal justice system • Virginia Gov. Robert F. McDonnell (R) Additionally, “Reclaiming and offering concrete recommenda- signed Executive Order 11 establishing Futures,”26 a six-step model that pro- tions for reform. Over the past three the Virginia Prisoner and Juvenile motes new standards of care and oppor- years, Webb’s office has engaged in a Offender Re-Entry Council and said, tunities in juvenile justice to help young dialogue about the National Criminal people in trouble with drugs, alcohol Justice Commission with more than Preparing prisoners for successful and crime is gaining respect across the 100 organizations from every political re-entry into communities is not nation. The “Reclaiming Futures” model and philosophical perspective. In soft on crime; it is sound public unites juvenile courts, probation, adoles- February 2011, Webb said, “National safety policy. It creates an opportu- cent substance abuse treatment, and the organizations from across the philo- nity to reduce recidivism, and community to reclaim youth. They work sophical spectrum agree that now is reflects the idea that America is a to improve drug and alcohol treatment the time to launch this comprehensive nation which believes in second and connect teens to positive activities review of our criminal justice chances. 33 and caring adults.27 system.”29 A more recent report from the For Virginia’s juvenile population, Annie E. Casey Foundation compares • In April 2009, bipartisan Congressional “public safety, successful youth, and the Missouri Division of Youth Services leaders, including Rep. Frank R. Wolf reduced recidivism are the outcomes recidivism rates, educational progress, (R-VA) asked the Council of State expected by the Virginia Department of safety tactics, and staff costs to other Governments and the Pew Center on Juvenile Justice through implementation states and encourages use of the the States to convene state and federal of this Re-Entry Strategic Plan.”34 Missouri Model when states consider leaders for a “National Summit on Warnings are coming from states youth reentry reform. Justice Reinvestment and Public Safety: that have penal system reform already Addressing Recidivism, Crime, and under way with oversight data coming Missouri’s successful outcomes out- Corrections Spending” to pool the lat- in. A report from Louisiana, “A Failing pace other states’ outcomes. The est knowledge about reducing recidi- System Reminiscent of Tallulah,” outlines percentage of youth sentenced to vism and applying the justice key areas in which the state of Louisiana adult prison within three years of reinvestment approach to manage the has failed in its plan to implement release from juvenile detention is at growth in corrections populations planned juvenile justice reform. The 8.5 percent in Missouri, far lower nationwide.30 On February 8, 2011, “lack of real family involvement; lack than other states like Arizona, Wolf praised the report, saying, “We of high caliber staff involvement; lack Indiana, and Maryland (states that need to see more states tailor the kind of productive youth interaction, place- all tally the same kind of recidivism of smart strategies that the jurisdictions ment, and services; lack of therapeutic, data). Additionally, 90 percent of profiled in this report have imple- safe and consistent settings; and, lack youth earn high school credits while mented.”31 The Wall Street Journal of transparency” are emerging prob- residing in Division of Youth praised the findings and noted “four lems with the overhaul of the old Services facilities.28 common ways states have successfully penal model.35 revamped their systems, including Stevenson reminds the attorneys of In Virginia, political leaders on both identifying high-risk offenders, our state to be vigilant in their examina- sides of the political aisle at the state and strengthening community supervision tion, inquiry, and advocacy for the bet- federal levels are engaged. Being “smart and concentrating services in the places terment of the criminal justice system in on crime” rather than “tough on crime” is where most ex-offenders live.”32 the commonwealth. Doesn’t the budget 36 VIRGINIA LAWYER | October 2011 | Vol. 60 www.vsb.org Access to Legal Services crisis bring on a renewed call for crimi- Endnotes: button, a page will display a list of the nal justice policy based on rehabilitation 1 Bryan Stevenson, “Eliminating consequences the project has collected pragmatism and penal impact analysis Discrimination in Jury Selection,” for that state. From there, the statute can Indigent Criminal Defense: Advanced be selected and read it in its entirety. and the efficacy of intermediate sanc- Skills for the Experienced Practitioner, 17 In the United States, since 1989 there tions? Isn’t it good human and fiscal April 29, 2011. http:www.vsb.org/docs have been 273 post conviction exonera- resource management to turn our focus /valawyermagazine/vl0711–access.pdf, tions by DNA evidence. Since 1989, on crime prevention coupled with re- p34 there have been tens of thousands of entry and rehabilitation strategies rather 2 Id. cases where prime suspects were identi- than expensive incarceration policy? The 3 The series of annual seminars is a con- fied and pursued — until DNA testing tinuing legacy of the late Chief Justice (prior to conviction) proved that they lives of Bryan Stevenson’s executed client Leroy R. Hassell Sr. “who believed that were wrongly accused. The Innocence and his murder victim(s) might have fundamental fairness and equal protec- Project website, September 2011. been different with different resource tion of the law required the state to pro- 18 In the United States since 1973, 138 allocations. It is time for each of us, as vide the poor among us no less quality death row inmates have been exonerated citizens and as attorneys, to demand suc- of representation than those who could of the capital crimes for which they cessful, reasoned strategies in the crimi- afford the best representation possible.” were convicted. The Death Penalty Seventh Indigent Defense Seminar Information Center, September, 2011. nal justice system that demonstrate Manual, April 29, 2011. 19 “Legal Group Reignites Debate Over progress and to lend our advocacy skills 4 Bryan Stevenson, Lecture, April 29, 2011. Disclosure,” Thompson Reuters News wherever possible. Our professional 5 Preamble to Virginia Rules of and Insights, August 15, 2011. responsibility implores us that as a “pub- Professional Conduct. 20 Id. lic citizen, a lawyer should seek improve- 6 Bryan Stevenson, Lecture, April 29, 2011. 21 The Indigent Defense Task Force, of the ment of the law, the administration of 7 Id. Virginia State Bar is finalizing its recom- 8 “As Criminal Laws Proliferate, More Are mendation as it enters its third year, an justice, cultivate knowledge of the law Ensnared,” Wall Street Journal, July 23, effort which began as a multilateral beyond its use for clients, employ that 2011. effort to propose changes to Virginia knowledge in reform of the law, and 9 Id. Rule 3A:11. should be mindful of deficiencies in the 10 Id. 22 “A Road Map for Juvenile Justice administration of justice.36 11 “As Criminal Laws Proliferate, More Are Reform”, Annie E. Casey Foundation, Ensnared,” Wall Street Journal, July 23, 2008. 2011 23 Grisso, T., 2004, Double Jeopardy: 12 Bryan Stevenson, Lecture, April 29, 2011 Adolescent Offenders With Mental 13 Id. Disorders, University of Chicago Press, 14 Funded by grant of the National Id. Institute of Justice to catalog every col- 24 “A Road Map for Juvenile Justice lateral consequence of criminal convic- Reform”, Annie E. Casey Foundation, tions and then create a database 2008. allowing users to determine exactly 25 Jeffrey A. Butts and Douglas Evans, John what consequences follow from particu- Jay College of Criminal Justice’s lar criminal offenses. Eventually, this Research and Evaluation Center, project will become a free online September 2011. resource for attorneys, policymakers, 26 The project began in 2001 with $21 mil- Margaret A. Nelson’s legal experience includes and the public to input specific criminal lion from the Robert Wood Johnson almost thirteen years as assistant common- offenses and view the collateral conse- Foundation for 10 pilot sites to create a wealth’s attorney or senior assistant public quences attaching to convictions. Adult six-step model that promotes new stan- defender and more than ten years in private Criminal Consequences Viewing Site, dards of care and opportunities in juve- practice on Court Street in Lynchburg where American Bar Association Criminal nile justice. Review and oversight to the she is a certified capital defender and guardian ad litem. She is immediate past president and Justice Section webpage. programs revealed successes in the ten- nine-year director for the Lynchburg City’s 15 Adult Criminal Consequences Viewing year time period. Report by the Council Youth and Prevention Services Board, immedi- Site, American Bar Association Criminal of State Governments Justice Center for ate past chair of the Special Committee on Justice Section Webpage, September 7, the Bureau of Justice Assistance, U.S. Access to Legal Services for the Virginia State 2011. The site will be available upon Department of Justice, 2011. Bar, member of the Virginia Bar Association’s completion of the project. 27 The project has almost thirty sites and Criminal Law Section Council, member of the 16 It will be possible to find and read the North Carolina announced on Virginia State Bar’s Indigent Defense Task statutes and administrative rules that September 14, 2011 that it will use the Force, and member of the American Bar the project has collected. After selecting “Reclaiming Futures” model. Association’s pilot phase sub-committee for a state and pressing the “Get Statutes” implementation of the ABA’s Collateral Consequences Project. Indigent Defense continued on page 39 www.vsb.org Vol. 60 | October 2011 | VIRGINIA LAWYER 37 Access to Legal Services Communicating with a Deaf Client — It’s the Law by Colleen Miller As I age, I wear my glasses to hear. It’s an Virginia Department for the Deaf and when someone is reading your lips. odd phenomenon that many of us expe- Hard of Hearing, at 1-800-552-7917, or Many of us feel very self-conscious when rience. As my hearing fades, I compen- at www.vddhh.org, may be able to assist we know someone is reading our lips. It sate with lip reading. you with a referral to an interpreter. is a very human reaction to turn away or Each person with any level of hear- You can also locate one, in many areas, put your hand over your mouth — but ing loss uses different techniques to through the phone directory. do resist. compensate. These tools can range from Interpreters charge an hourly rate and Determining how to provide effec- hearing aids to written notes to sign lan- most will charge a two hour minimum tive communication requires negotiation guage interpreters. My hearing loss is for an appointment, regardless of the between the attorney and the potential different than my coworkers; in fact, no length of the communication. Some client. The attorney can choose the two people have the same level of loss or interpreters charge for travel time, as means of communication, so long as it is rely on the exact same tools to commu- well, although that may be negotiable. It effective. But it is the client who deter- nicate at all times. is a generally accepted industry practice mines whether it is effective or not. Communication works in two that if the meeting lasts more than two The kind of assistance to make a directions: sending and receiving. For hours, you need to have two interpreters, communication effective will vary legal practitioners, this is fundamental. It because of the fatigue that interpreters depending on what is being communi- is not enough to send critical informa- can experience with the constant motion cated. Passing notes may work well, if all tion. It must be received and understood of signing. that is being communicated is dates and to be of value. This is especially true A sign language interpreter can be times. If you are trying to gather compli- when communicating with someone expensive. If you are representing a cated information from your client, or who has any level of hearing loss. deaf client, make the most effective use trying to explain complex legal ques- Under the Americans with of your time and your client’s time tions, passing notes will rarely suffice. Disabilities Act, 42 U.S.C. 12101, an when using an interpreter. Where You could also use a service known attorney’s office, no matter what size, is a appropriate, plan your meeting to as Computer Assisted Real-time “place of public accommodation,” and is cover as much information as you can Transcription or CART. With CART, the prohibited from discriminating against in two hours or less. communication assistance is done by people with disabilities. In the case of a Someone who has experienced someone much like a court reporter, client or potential client who is deaf, it is hearing loss late in life usually has not who transcribes the discussion as it hap- illegal to fail to provide effective com- learned sign language. Other kinds of pens. Your client can read the communi- munication. Any law office that is open tools will be necessary to communicate cation, live, on a computer screen. CART to the public, from solo practitioners to in that situation. Writing may be effec- reporters charge hourly rates, as well, but large firms, must provide effective com- tive, but is often cumbersome for any- do not require two interpreters when the munication to a client or potential client thing but simple communications. Your meeting lasts longer than two hours. So, with hearing loss. Attorneys must ensure client may choose to read your lips. This CART can be more cost effective for that individuals who are deaf are not is usually not an effective means of com- longer sessions, like hearings or media- treated any differently than other clients municating. The best lip readers fail to tion. CART is less effective with some- due to the absence of the auxiliary aids understand 25 percent or more of the one whose primary language is sign and services that would provide effective communication. A skilled lip reader will language, as the syntax and sentence communication. In short, it is our legal not be able to tell the difference between construction in sign language is different obligation, as lawyers, under the ADA, to the word “when” and “where,” for exam- than it is in English. be certain that our deaf and hard of ple, without some additional context in Virginia Relay is a free telephone hearing clients understand us. That’s no the communication. If this is the way service. Contact your client by dialing small task. your client chooses to communicate, you 7-1-1. You’ll be connected to an operator You can learn to effectively com- will need to state difficult concepts in who will translate your conversation municate with a person who is deaf. If many ways to be certain that your client using a telecommunication device for your client relies primarily on sign lan- understands you. And this should go the deaf, video camera or whatever kind guage for communication, obtain a sign without saying, but unfortunately needs of telecommunication device your client language interpreter in your area. The to be said — don’t cover your mouth uses. If it is a local call, the service is free. 38 VIRGINIA LAWYER | October 2011 | Vol. 60 www.vsb.org Access to Legal Services If it is long distance, the service will bill Sign language interpreters, CART through your long distance carrier. If reporters, and relay operators are bound you are using the Relay for the first time, by their profession to keep all commu- be sure to tell your operator. He or she nications confidential. Because of the will explain how to use the service. importance of having a confidential The requirement to provide effec- conversation with your client, you tive communication to clients with hear- should never ask one of your client’s ing loss seems especially daunting if you family members to interpret for you. are in a small or struggling practice. Not only does that give your client a However, an attorney is not required to lesser level of service, the presence of a Colleen Miller is executive director for the provide an auxiliary aid or service if it is family member can be a waiver of the Virginia Office for Protection and Advocacy, an significantly difficult or expensive. You attorney-client privilege. independent state agency that seeks to protect the civil rights of Virginians with disabilities. are then required to provide an alternate Providing access to legal services to Prior to coming to Virginia in 2002, she was the means of communicating where possi- all who need us is a noble charge for the legal director of the New Mexico Protection ble. Under the ADA, whether something legal profession. There are challenges, of and Advocacy System, and before that, a senior is a significant expense requires more course, when providing access to legal trial attorney with the U. S. Department of analysis than looking at the pure costs of services to those with special needs, but Justice’s Civil Rights Division in Washington, DC. She is a graduate of the University of the service. Whether it is a significant that makes the task for the legal profes- Pittsburgh School of Law. expense depends on the resources avail- sion even more important. able to the practice as a whole, and not simply the proceeds you might realize from this one matter. Indigent Defense continued from page 37 28 “The Missouri Model: Reinventing Safety: Addressing Recidivism, Crime, The Practice of Rehabilitating and Corrections Spending,” 2011. Youthful Offenders,” Annie E. Casey 32 Wall Street Journal, February 8, 2011 Tenth Annual Celebration Foundation, published online, Additionally, “The Ten-Step Guide to of Women and Minorities December 2010. Transforming Probation 29 The bill, which was first introduced Departments to Reduce Recidivism,” in the Legal Profession March 26, 2009, was approved by the prepared by the Council of State Bench-Bar Dinner Senate Judiciary Committee on Governments Justice Center, was January 21, 2010, with thirty-nine released in August 2011. bipartisan cosponsors. On July 28, 33 “Improving Public Safety Through 2010, it passed the U.S. House of Prisoner Re-Entry Programs,” November 15, 2011 Representatives, with the support of Governor Robert F. McDonnell, The Rep. William D. Delahunt (D) and Ripon Forum, Volume 45, Number 2, Bull and Bear Club Rep. Lamar S. Smith( R), chairman of Spring 2011 Richmond the House Judiciary Committee. 34 Virginia Department of Juvenile Despite strong bipartisan support, the Justice Re-Entry Initiative, Four-Year bill was blocked in the Senate in Strategic Plan, Executive Summary, Justice Cleo E. Powell will be the 2010. November 2010. keynote speaker for the Tenth 30 First national summit on justice rein- 35 Gina Womack, executive director, Annual Celebration of Women and vestment was held in January, 2010, a Families and Friends of Louisiana’s Minorities in the Legal Profession partnership of the Council of State Incarcerated Children, September 7, Bench-Bar Dinner sponsored by Government Justice Center in part- 2011. nership with the Pew Center on the 36 Preamble to the Rules of Professional the VSB Young Lawyers States, the Bureau of Justice Conduct Conference. Assistance, and the Public Welfare Foundation. Find information about tickets at 31 Report from the “National Summit http://www.vayounglawyers.org/ on Justice Reinvestment and Public www.vsb.org Vol. 60 | October 2011 | VIRGINIA LAWYER 39 CALL FOR NOMINATIONS 2012 LEWIS F. POWELL JR. PRO BONO AWARD The Lewis F. Powell Jr. Pro Bono Award was established by the Special Committee on Access to Legal Services of the Virginia State Bar to honor those attorneys and attorney groups that have made outstanding pro bono contributions. The award will be presented at a ceremony in 2012. The deadline for receipt of nominations by the bar is 5:00 PM, Friday, January 20, 2012. For more information visit http://www.vsb.org/site/pro_bono/resources-for-attorneys/ and scroll to Awards & Honors. CALL FOR NOMINATIONS 2012 Oliver White Hill Law Student Pro Bono Award The Oliver White Hill Law Student Pro Bono Award was established by the bar’s Special Committee on Access to Legal Services to honor extraordinary law student achievement in the areas of pro bono publico and under-compensated public service work in Virginia. The deadline for receipt of nominations by the bar is 5:00 PM, Friday, January 20, 2012. For more information visit http://www.vsb.org/site/pro_bono/resources-for-attorneys/ and scroll to Awards & Honors. 40 VIRGINIA LAWYER | October 2011 | Vol. 60 Law Librarians Respond to Wide Range of Research Needs People frequently ask law librarians, “What is a typical Six Virginia librarians provide a range of articles day for you?” Gail Zwirner, this issue’s guest co-editor for this issue, including firm knowledge manage- said, “If I were to take as an example the last ten min- ment systems, social networking policies, copyright utes of my reference shift, I had requests for copies issues with Google Books, recommended free web- from microfiche of 1844 Massachusetts session laws, sites for Virginia sources, and a history of the devel- referrals to Virginia forms books, retrieving the previ- opment of the Virginia Codes. The law Libraries ous day’s debate on judicial selection in the column features tips on molding a new associate Congressional Record, and directions to the Virginia into a productive researcher. Circuit Court Opinions.” These examples illustrate the breadth and depth of researchers’ needs as well as the challenges academic librarians encounter when instructing law students about legal research resources and strategies. Guest co-editor and law firm librarian Lyn Warmath said that her day might typically include queries about access to practice-oriented materials such as deposition videos, court pleadings, company and industry information as well as continuing legal education materials. Virginia Supreme Court librarian Gail Warren, and her staff, however, answer questions from the judiciary about historical information in response to legislative initiatives. Researchers ask, for Lyn Warmath is Gail Zwirner is the example, about histories of district and circuit courts director of informa- head of access ser- tion resources at vices at the University in Virginia, analyses of the number of judges and Hirschler Fleischer in of Richmond Law court clerks over the years, as well as routine questions Richmond. She School Library and received her under- she teaches the legal about access to old court records and briefs and the graduate degree from research course in the Boston University and first year law skills history and development of court rules and statutes. her graduate degree program. Before join- Members of the Virginia Association of Law from Catholic ing the library faculty, University School of she worked in law Libraries (VALL) have earned reputations not only for Library and firms in Washington, providing answers or referring researchers to useful Information Science. Philadelphia, and She has written arti- Richmond. She is a research sources, but have also garnered reputations cles and book chap- contributing author for creating information as well. VALL spearheaded a ters on law library and co-editor of management or A Guide to Legal project to create the Virginia Administrative Code, and research and served Research in Virginia. on a number of Zwirner is a former another project to encourage major online vendors to Virginia and president of the provide comprehensive coverage of state case law. Now American Law Virginia Association Library Association of Law Libraries. She Virginia’s law librarians are working on efforts to digi- committees. She may welcomes suggestions tize key Virginia sources, such as Virginia’s Supreme be reached at for article topics for lwarmath@ future issues at Court records and briefs. hf-law.com. gzwirner@ richmond.edu. LAW LIBRARIANS | Vol. 60 | October 2011 | VIRGINIA LAWYER 41 Free Websites for Virginia Legal Research by Paul Hellyer It’s no secret that free websites give first in search results, so make sure you’re using the new Web address above. away content sold by high-cost subscrip- Available on this site are: tion databases, but you might not know how useful free sites are. If you think • Bills. The full text and a procedural history are available for each bill from 1994, and the data- there’s always a trade-off between cost base is updated daily when the legislature is in Paul Hellyer is a refer- and quality, think again. Some free session. You won’t find better coverage or cur- ence librarian at William and Mary Law School. He resources for Virginia legal research are rency on Lexis or Westlaw. You won’t find better received his undergradu- search tools, either. The full-text search engine ate and law degrees from as good as — or better than — subscrip- allows phrase searching, Boolean searching, and the University of tion sites. And some free resources aren’t proximity connectors, and a subject index is California at Los Angeles available for individual sessions or across multi- and his library degree quite as good as what you can buy, but ple sessions. “Lobbyist-in-a-Box” tracks and from San Jose State are an option. University. He has pub- receives email updates for up to five bills for lished several articles free; a subscription version of the same feature related to law librarian- Free websites cannot meet all research needs. allows tracking of hundreds of bills. Before ship and is co-author of Free sites are best for researching legislative and purchasing, consider the free tracking tools the forthcoming administrative sources, and less useful for case law available on the Richmond Sunlight site Librarian’s Copyright or secondary sources. To save money on case law Companion, Second http://www.richmondsunlight.com/. Edition. research, Fastcase is low-cost database that the Virginia State Bar provides to members at no • Virginia Administrative Code.2 No private pub- charge (https://member.vsb.org/vsbportal/). It’s lisher offers an annotated version of the Virginia not as good as Lexis or Westlaw, but it’s better Administrative Code (VAC),3 so you’re not miss- than any of the free sites for case law research. For ing anything when you use the free version. secondary sources, you can easily find explana- Worried about how current the information is? tions of the law on free websites, but the quality is If so, don’t use Lexis or Westlaw. At the time this usually far below the standards set by traditional article was written, the VAC on Lexis and legal treatises and encyclopedias. The main excep- Westlaw had not been updated for more than six tions are law review articles, which increasingly months. This free site is updated daily. How is are available for free. daily updating possible when the Virginia To help you get the most out of free websites, Register of Regulations is published only every here’s an annotated list of the best free sites for other week? New or revised regulations pub- 1 Virginia legal research. lished in the Register don’t appear in the online VAC until their effective dates, which means that Virginia’s Legislative Information System the VAC is updated more frequently than the http://lis.virginia.gov/ Register. You can access the VAC by browsing the Deciding which site to list first is easy. If you’re table of contents or by using the full-text search looking for bills or the administrative code, don’t engine. waste money on Lexis or Westlaw. This free gov- ernment site has everything. This site is also a • Virginia Code. This unannotated version of the viable option when you need to use the Virginia code is updated annually. As with the VAC, both Code. The site recently underwent an overhaul browsing and full-text searching are available. that makes it more attractive and easier to navi- The website also provides a popular name table, gate, but the old version is still available. As of a feature not available on Fastcase or Lexis. The July 2011, Google is still listing the old version absence of annotations isn’t necessarily a prob- 42 VIRGINIA LAWYER | October 2011 | Vol. 60 | LAW LIBRARIANS www.vsb.org FREE WEBSITES FOR VIRGINIA LEGAL RESEARCH lem, but the infrequent updating schedule might • Opinions Database. Opinions from the Supreme be a concern. To be current, use Lexis or Court of Virginia and Virginia Court of Appeals Westlaw. Is that worth the cost? Consider that are available here and might be useful if you’re the General Assembly is in regular session for looking for a new opinion not yet available in only a few months in the first half of the year.4 subscription databases. Except for that limited Nonemergency statutes enacted in a regular ses- purpose, Virginia lawyers have little reason to sion don’t take effect until July 1,5 and the free use this site (or any other free site) for case law online code is updated then. So the updating research. Fastcase is your best choice when you schedule works well for most code amendments. want to avoid the expense of Lexis or Westlaw. The catch is that emergency legislation goes into For nonmembers of the Virginia bar who don’t effect immediately. This year the General have subscriptions to Fastcase, Google Scholar is Assembly passed more than forty chapters con- a free online option for case law research. taining emergency legislation, many of which affected multiple code sections. If you’re using Google Scholar the free online code in the first half of the year, http://scholar.google.com/ after the legislature has started enacting legisla- Although this site isn’t specific to Virginia, it’s the tion but prior to the July 1 update, you can see if best free way of finding law review articles on a code section has been affected by emergency Virginia law. It’s also the best free website for legislation by searching the enrolled bills data- Virginia case law research. The main search screen base for references to the code section. You can offers two search options: “articles” or “legal opin- also use the subject index or keyword search to ions and journals.” These options are misleading. find relevant bills. This will be less convenient “Legal opinions and journals” is not always the than Lexis or Westlaw, but it gets the job done. right option for legal research. To find law review It’s also more effective than Fastcase, which isn’t articles, use the “articles” option. Use “legal opin- more current than the official site and doesn’t ions and journals” to locate court opinions. allow a bills search. For articles on Virginia law, add the term Virginia to search terms. This will sometimes Virginia’s Judicial System deliver articles that focus on Virginia law, but the http://www.courts.state.va.us/ results will vary. The results page will show you Here are some of the key features of the official each article’s citation information (title, author, website for Virginia state courts: and journal citation), plus a snippet of relevant language. Because of copyright restrictions, • Case Status and Information. This feature allows Google won’t display the full text of the articles, you to view basic information about most cases but Google likely will provide a link to the full in the state court system: names of parties, text if it’s available elsewhere on the Web. Many docket number, filing date, hearing and trial law journal websites now offer the full text of dates, and disposition. To research a case in a recent articles for free. If an article is not free, try circuit or district court, use the city or county retrieving it by citation in Lexis or Westlaw. If where the case was filed, as statewide searches you’re paying transactional prices, this method is are not possible. Juvenile and domestic relations a lot less expensive than running a search in a district courts and some circuit courts are not Lexis or Westlaw journal database. included in the database. A separate subscription Use this site to search Virginia Supreme service allows you to view the full text of docu- Court and Virginia Court of Appeals opinions ments from circuit court cases. from 1950. If you click on “Advanced Scholar Search,” a search option limits results to Virginia • Court Rules. The state court rules offered on this opinions only. Because this material is in the pub- site are complete and current, with amendments lic domain, Google will display the full text of posted as they become effective. The rules are opinions. Results will also include citations to the displayed in PDF format, easily saved to a laptop official reports and the Southeastern Reporter, or iPad and therefore available offline. The site including pinpoint citations. But if you’re a mem- also includes a list of recent amendments, a use- ber of the Virginia Bar, use Fastcase, which ful feature not available on Lexis or Westlaw. searches from 1925. • Forms. Official forms for all state courts are pro- vided, and some can be completed online. LAW LIBRARIANS | Vol. 60 | October 2011 | VIRGINIA LAWYER 43 FREE WEBSITES FOR VIRGINIA LEGAL RESEARCH Official Website of the Commonwealth ing tool, which requires a paid subscription if you of Virginia want to track more than five bills. http://www.virginia.gov/ This site is a gateway to state agency and local Virginia Register of Regulations government websites. To access the directories for http://register.dls.virginia.gov/ these sites, go to the “Government” tab at the top The online Virginia Administrative Code satisfies of the screen, and select “Agencies” or “Cities and most regulatory research needs. Use this official Counties.” Google reaches the listed sites directly, site to view final regulations that haven’t yet gone but the directories are helpful, too, to search by into effect, as well as emergency regulations keyword or browse an alphabetical list. Cities and (which are not included in the VAC), proposed counties are grouped by region. regulations, and the governor’s executive orders. Individual agency and local government The Virginia Register of Regulations is not avail- sites are essential to attorneys because they con- able on Westlaw and the version on Lexis is not as tain primary authority and other information current as the official site. that’s usually not available from subscription databases. On agency websites, you’ll find vari- Virginia Regulatory Town Hall ous forms, guides, reports, manuals, opinions, http://townhall.virginia.gov/index.cfm and announcements that may not be obtainable For lawyers, the most useful resource available elsewhere. Local government sites usually link to here is a free email notification service that will local codes. alert you to regulatory actions or meetings for the agencies or regulations you select. Track new Division of Legislative Services Legislative developments in Virginia regulatory law here and Reference Center save the expense of setting up comparable alerts http://dls.virginia.gov/lrc.htm on Lexis or Westlaw. This government site offers a research guide for Virginia legislative history. It includes instructions Virginia Attorney General on ordering videotapes of proceedings on the http://www.oag.state.va.us/ floor of the House or Senate. Before placing an This site offers attorney general opinions from order, check the Richmond Sunlight site to see if 1996, including a Google search engine. To access the video you want is online. the opinions, select “Legal & Legislative Reference” on the left side of the screen, then click Richmond Sunlight on “official opinions.” Although Lexis and http://www.richmondsunlight.com/ Westlaw offer better historical coverage, the offi- This nongovernmental site tracks activity in the cial site will have the newest opinions before they Virginia legislature and includes features not appear elsewhere. available from the official Legislative Information System described above. If you’ve ever had to Virginia State Bar research Virginia legislative history, you probably http://www.vsb.org/ know how difficult it is to find anything about Use http://www.vsb.org/pro-guidelines/index.php legislative intent other than statutory text. to access the Virginia Rules of Professional Although videos of the House and Senate have Conduct and other Virginia Supreme Court rules been available for many years now, they’re gener- that govern the state bar and the unauthorized ally difficult to obtain, share, and cite. Richmond practice of law. The bar updates the rules as soon Sunlight is starting to fill this information gap by as it receives approved changes from the Court. posting these videos on the Web and indexing To check the status of proposed rule amend- them by bill number. If you want to cite or share ments, see http://www.vsb.org/pro- a video clip, create a link to a specific Web page guidelines/index.php/rule_changes/. on this site. So far, videos are available for only 2008, 2009, and 2011, but Richmond Sunlight Virginia Legal Ethics Opinions might increase its video collection. Another useful http://www.vacle.org/links_leos.htm feature on this site is the ability to track bills This site from Virginia CLE offers opinions from through a Really Simple Syndication (RSS) feed. the Virginia State Bar Legal Ethics Committee This is a good alternative to the official Legislative dating from 1980. Access opinions by browsing or Information System’s “Lobbyist-in-a-Box” track- full-text searching. Legal Research continued on page 63 44 VIRGINIA LAWYER | October 2011 | Vol. 60 | LAW LIBRARIANS www.vsb.org Virginia State Bar Publications The Virginia State Bar publishes pamphlets and handbooks on law-related issues for Virginia’s lawyers and Virginia’s citizens. Please note that some are available in bulk quantities, and others only in single copies. All publications can also be found on the VSB website at http://www.vsb.org. You may email single copy orders to [email protected]. 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Main Street, Suite 1500 OUT OF Richmond, VA 23219-2800 STOCK____ Virginia Lawyer Referral Service (FREE) Phone (804) 775-0512 • Fax (804) 775-0582 ____ Selecting and Working with a Lawyer (Single copy FREE or 100 for $10) Name: ______2009 Edition of Senior Citizens Handbook ($4.00 per copy, $50 for a box of 53 copies) Firm: ______OUT OF STOCK____ Spare the Child (Brochure for use in conjunction with Address: ______the Spare the Child video. Single copy FREE or 100 for $10) City: ______State: ____ Spare the Child Video (DVD—$6 shipping each) ____ Wills in Virginia (Single copy FREE or 100 for $10) Zip: Phone: ( ) all publications are available on our website at http://www.vsb.org 9/21/11 LAW LIBRARIANS | Vol. 60 | October 2011 | VIRGINIA LAWYER 45 Copyright and Research in Google Book Search by Benjamin J. Keele Many researchers — even trained professionals — often use the Google search engine to begin searches for information. Google’s many products enable researchers to search public websites, scholarly articles, and even patents. One vast area of information not yet thoroughly indexed by Google is print books. Google Book Search (also at times referred to as Google Books, Google Print and Google Library Project) is the com- Benjamin Keele is a ref- pany’s effort to digitize and index the world’s print literature. erence librarian at the William and Mary Law Library, where he pro- vides research assistance and teaches legal Google’s digital corpus is remarkable and valu- that would provide free access to the digital research. He earned his able, but due to copyright law Google cannot books, although there would be a fee for printing law degree from the simply give or sell access to all these books. This from the database. Libraries could also purchase Indiana University Maurer School of Law article will briefly review the history of Google subscriptions to provide access beyond the dedi- and his master of library Books, including the litigation and proposed set- cated terminals. Revenue would be shared science degree from the tlement. Then the article will discuss how copy- between Google and a new Books Rights Registry. Indiana University School right affects the scope and functionality of The registry would be a royalties-collecting non- of Library and Google Books. profit organization charged with distributing roy- Information Science. He and is co-author of the alties to publishers and authors and seeking out forthcoming Librarian’s Google Books Litigation the rights holders of orphan works — books for Copyright Companion, In December 2004, Google announced plans to which the rights holders are unknown. Second Edition. His scan and index the text of millions of print books. Google would also be permitted to make fur- research interests are Books were borrowed from major research ther uses of the digital books, in addition to sell- copyright, privacy law, and scholarly communi- libraries and scanned. Publishers could also make ing digital copies and online subscriptions. As it cations. agreements with Google to include digital copies does for indexed web content and email in its of their books. The full text was made available of Gmail service, Google would display relevant ads books in the public domain due to expired copy- next to the book content. The digital corpus rights. Only snippets — a few sentences relevant would also let Google further refine its search to the search terms — were made available from algorithms, making it more competitive in the books that possibly were still under copyright search market. Finally, Google would provide a protection. A publisher can consent to Google copy of the digital corpus to two universities that providing greater access to its books.1 would provide computational access to nonprofit In September and October 2005, authors and researchers. This text-mining research would be publishers of books digitized by Google sued the valuable to, among others, linguists, historians, company for infringement of their copyright and computer scientists.4 privileges. Google asserted that digitizing books Rights holders who do not want their books to make them searchable, show snippets, and dis- to appear in Google Book Search could direct play relevant ads was not infringement because it Google to remove them. The system is opt-out. was fair use.2 After years of negotiating, in Unless Google hears otherwise, it would be able October 2008 the parties announced a proposed to digitize books, include them in the digital col- settlement of the class-action lawsuit.3 lection and display 20 percent of each book’s con- Under the first proposed settlement, Google tents. This default rule is especially important would have a license to digitize and display up to because it gives Google access to orphan works 20 percent of virtually every book in the world. for which it would be difficult to locate every Full text of books would be accessible through rights holder and negotiate for permission. individual purchase or institutional access. The sweeping proposed settlement drew a Libraries would receive public access terminals number of objections, most notably from the 46 VIRGINIA LAWYER | October 2011 | Vol. 60 | LAW LIBRARIANS www.vsb.org COPYRIGHT AND RESEARCH IN GOOGLE BOOK SEARCH Department of Justice, which expressed concerns own copyrights but have no knowledge of them. about antitrust. Since the settlement would give For some books, the trail has gone so cold there Google retroactive cover for digitizing millions of may be no way to definitively say who holds the books, possible competitors would have to mimic copyrights. Even if after a diligent search a rela- Google by scanning books and hoping to get a tively small percentage of books are truly similar settlement — a significant liability risk. orphans, in a universe of millions of books a frac- Google is the only company that is digitizing tion is still a large number. The settlement would books on such a large scale. Microsoft scanned have let Google commercialize these orphan books for a time, but later bowed out. Having the books without identifying and negotiating with settlement apply only to Google would present a rights holders. The Book Rights Registry, funded major barrier to any possible competitors. through revenues shared by Google, would han- After the Department of Justice recom- dle that chore. mended against approval of the first settlement, The publisher and author parties likewise the parties produced an amended settlement to would rather avoid the expense of tracking down address some of the concerns. While the original rights holders, and including the orphan works settlement would have included books from any would increase the value of the institutional data- country, the amended settlement includes books bases from which they would derive some rev- from only the United States, Canada, Australia, enue. Money earned from the unclaimed works and the United Kingdom. A fiduciary to represent would be entrusted to an unclaimed works fidu- the interests of rights holders for unclaimed ciary that would hold the funds in escrow for ten books would also be added, and the pricing mod- years, after which the money could be donated to els under which Google could monetize the digi- charities.6 If the works were claimed in that time, tal books were further defined. then the money can be paid to the rights holders. These amendments did not comfort the If a new settlement were opt-in, then Department of Justice and class members, who unclaimed works would not be available for objected. Objectors claimed that the settlement Google to index or provide through institutional gave Google an end run around copyright law by subscriptions. The first amended settlement had permitting it to reproduce books and distribute already excluded most foreign works, so further copies without express permission of the rights limiting the database to books in the public holders — especially those who owned the rights domain or permitted by their rights holders to orphan works. The settlement provisions would make the database much less valuable than addressing orphan works would impose a solu- it would have been under the original settlement tion where Congress would normally act, but had agreement. thus far failed to. There was concern that Google The parties will now have to decide whether would still gain a market position so dominant such a settlement is worthwhile. Other options that competition would be impossible and that are dropping the litigation or proceeding to trial. libraries and researchers would become depen- Either way, without orphan works legislation dent on Google for access to digital book from Congress, it appears that a monolithic col- content.5 Due to the objections, in March 2011, lection of digital books is unlikely to be available Judge Denny Chin of the U.S. Court of Appeals soon. In the meantime, Google has proceeded for the Second Circuit rejected the amended set- with scanning books and offering snippet views, tlement. Chin suggested that an opt-in system, as it has from the beginning. rather than an opt-out one, would be more acceptable. Research in Google Books Chin’s decision places the parties in a difficult Even though copyright law has placed limits on position, because the opt-out system made the what Google can do with its digital copies of settlement attractive to both sides. Google would books, Google Books is still a valuable research incur significant transaction costs analyzing each tool. Google has two groups of sources for its dig- book to determine if it is still under copyright ital books: libraries and publishers. Books from protection and who holds the copyright. For libraries are scanned, while books from publishers books that may be more than seventy years old, might be scanned or supplied as digital files. The this can be a challenge. Paperwork has been lost, full text of each digitized book is indexed and publishers have dissolved or merged with others, searchable, but for some books Google only has and authors have died. There are probably many bibliographic information, such as title, author, successor companies and heirs that technically and publisher. Searching in Google Books is simi- LAW LIBRARIANS | Vol. 60 | October 2011 | VIRGINIA LAWYER 47 COPYRIGHT AND RESEARCH IN GOOGLE BOOK SEARCH lar to searching in Google’s standard Web search the orphan works problem is legislatively engine. Researchers type in search terms and see addressed, it will be difficult for Google to expand what Google’s algorithms find, or use Boolean its full-text coverage of books from this period. operators to further limit the search. An advanced Another limit on Google Books is its spotty book search interface lets researchers search for quality control. Partly due to the large scale of its books by title, author, publisher, or even operations, some scans are fuzzy or skewed, and International Standard Book Number. One can major metadata issues have been found. Some browse books by subject, although the subjects books have been marked with incorrect publica- are general enough that using them alone would tion dates or subject headings, for example.7 be unwieldy. For example, the subject “law” has Google automatically runs optical character about forty-five million results. Using that subject recognition software to make the scans search- heading and adding the search terms “copyright” able, but the software makes mistakes and and “fair use” reduces results to seventeen thou- humans do not review the transcriptions for sand hits, of which at least the first few dozen are errors. Google Books generally works well, but relevant books. For researchers already familiar researchers should not assume that its contents with using Google to search the Web, searching in are thoroughly edited and they should be pre- Google Books will require relatively little practice. pared to do more research if an anomalous Once one finds relevant books, there are result is found. three levels of view. For books that are not pro- Google Books is an ambitious project to tected by copyright or for which Google has make print books accessible online. Copyright rights holder permission, the full text is accessible. concerns have slowed the project’s progress. Public domain books can be downloaded as Depending on how one views copyright, the law PDFs. Rights holders can also opt for a limited has prevented universal access to much of the view, in which certain pages or chapters, but not world’s printed literature, or preserved authors’ the entire book, are viewable for free. For books and publishers’ proper rights to control and bene- that are copyrighted and for which Google has no fit from their creative works. Either way, Google permissions, a snippet view shows a few sentences has given researchers, authors, publishers, and that contain the search terms. One cannot print Congress reason to reconsider how copyright can pages from the Google Books interface. fulfill its constitutional purpose to “promote the For most books, Google links to book ven- progress of science and the useful arts.”viii In the dors from which paper copies can be purchased meantime, Google Books is a relatively intuitive and a link to the book’s WorldCat record so a and familiar way to search and access books. Its copy in a library can be located. Public domain contents are not perfect, but researchers should and rights-holder-authorized books can also be think of Google Books when looking for books added to a Google eBooks library. Through this on legal and nonlegal topics. service one can purchase ebooks that are stored on Google’s servers and accessible through a com- For Further Information puter and other ebook reader devices. • Official Google Book Search website: Google maintains that its scanning and http://www.google.com/googlebooks/about.html indexing efforts are fair use, but it does not con- tend that it may make the full text of a copy- • Official Google Book Settlement website: righted book freely available without rights http://www.googlebooksettlement.com/ holder permission. Google Books provides full- text access to books that are very old (and thus • American Library Association website on have expired copyrights) or relatively new (and Google Books: http://wo.ala.org/gbs/ have active rights holders to grant permission). This makes Google Books a great source for old • The Public Index, a project at New York Law books that may be difficult to borrow from a School to monitor the Google Book Settlement: library. Books published between 1923 (the year http://thepublicindex.org/ before which virtually all copyrights have expired) and the last few decades are less likely to have more than snippet view. For those volumes Google Books will be mostly useful as a tool to find bibliographic information and links to libraries and booksellers with a paper copy. Until 48 VIRGINIA LAWYER | October 2011 | Vol. 60 | LAW LIBRARIANS www.vsb.org COPYRIGHT AND RESEARCH IN GOOGLE BOOK SEARCH Endnotes: 5 More detailed reviews of objections to the settlement can be 1 Kate M. Manuel, The Google Library Project: Is Digitization for found in Jonathan Band, Guide for the Perplexed Part IV: The Purposes of Online Indexing Fair Use Under Copyright Law?, CRS Rejection of the Google Books Settlement, Rep. R40194, at 1 (2009). http://www.arl.org/bm~doc/guideiv-final-1.pdf (Apr. 1, 2011), 2 For analyses of the merits of Google’s fair use claim, see Hannibal and Pamela Samuelson, Academic Author Objections to the Google Travis, Google Book Search and Fair Use: iTunes for Authors, or Book Search Settlement, 8 J. ON TELECOMM. & HIGH TECH. L. 491 Napster for Books?, 61 U. MIAMI L. REV. 601 (2006), and Melanie (2010). Costantino, Fairly Used: Why Google’s Book Project Should Prevail 6 Pamela Samuelson, The Google Book Settlement as Copyright under the Fair Use Defense, 17 FORDHAM INTELL. PROP. MEDIA & Reform, 2011 WIS. L. REV. 480, 524. ENT. L.J. 235 (2006). 7 Geoffrey Nunberg, Google’s Book Search: A Disaster for Scholars, 3 Much of this description of the settlement agreements is drawn CHRON. HIGHER EDUC., Aug. 31, 2009, available at http://chroni- from Pamela Samuelson, Google Book Search and the Future of cle.com/article/Googles-Book-Search-A/48245/; Norman Oder, Books in Cyberspace, 94 MINN. L. REV. 1308 (2010). Google, ‘The Last Library,’; and Millions of Metadata Mistakes, LIB. 4 Google has already launched its Books Ngram Viewer, which lets J., Sep. 3, 2009, available at http://www.libraryjournal.com/arti- one search a set of digital books for the occurrence of words and cle/CA6687562.html. phrases over time. More information can be found at 8 U.S. CONST. art. I, sec. 8, cl. 8. http://ngrams.googlelabs.com/info and in Jean-Baptiste Michel, et al., Quantitative Analysis of Culture Using Millions of Digitized Books, 331 SCIENCE 176 (2011). The Virginia State Bar publishes pamphlets Join a VSB Section and handbooks on law-related issues for Section membership is open to all members in good Virginia’s lawyers and Virginia’s citizens. All standing of the Virginia State Bar. Many sections also have publications and an order form can be found law student and associate memberships. The sections are on the VSB website at http://www.vsb.org. supported by dues which range from $10 to $35. Administrative Law The Bankruptcy Process (English and Spanish) Antitrust, Franchise & Trade Regulation Checklist for Opening Your First Law Office Bankruptcy Law Children & Divorce (English and Spanish) Business Law Divorce in Virginia Construction Law & Public Contracts Corporate Counsel Fee Dispute Resolution Program Criminal Law Financial Issues in Divorce Education of Lawyers Health Care Decision Making: What You Need to Know Environmental Law Marriage in Virginia Family Law General Practice Minors, Alcohol and Virginia Law Health Law Planning Ahead: Protecting Your Client’s Interests in the Intellectual Property Law Event of Your Disability or Death International Practice Protecting Your Intellectual Property: Patents, Litigation Trademarks & Copyrights Local Government Law Selecting and Working with a Lawyer Military Law Virginia Lawyer Referral Service Brochure & Real Property Membership Application Taxation VSB Speakers Bureau Pamphlet & Application Trusts and Estates 2009 Edition of Senior Citizens Handbook Find more information online at Wills in Virginia http://www.vsb.org/site/members/sections/. LAW LIBRARIANS | Vol. 60 | October 2011 | VIRGINIA LAWYER 49 The Law Givers Heroes of Virginia Statutory History by Kent C. Olson The coming year will mark the four (1767–1828), took up the cause a decade later. Like Jefferson, Hening had an extensive collec- hundredth anniversary of Virginia’s first tion of printed and manuscript laws. From the publication of its laws — an eighty-nine- two sets and further searches in clerks’ and page collection of martial laws put into magistrates’ offices, he assembled a nearly com- plete collection of Virginia laws enacted from force in 1610–11 and published in 1619 to 1792. Kent C. Olson is the London in 1612. Within a decade, the Hening requested that the General Assembly director of reference, research, and instruction first elected legislature in the American certify the authority of the laws he was planning to publish, and an act was accordingly passed in at the University of colonies would meet in Jamestown. Virginia Law Library. He February 1808.2 The first four volumes of The is the author of several Virginia statutes have come a long way Statutes at Large; Being a Collection of All the Laws books including Legal of Virginia from the First Session of the Legislature Research in a Nutshell from these beginnings to the seventy- in the Year 1619 were published between 1809 and (with Morris L. Cohen) seven titles now published in more than (West, 10th ed. 2010) and 1814, followed by nine more volumes between the concise hornbook, two dozen volumes and available on the 1819 and 1823. Principles of Legal General Assembly’s website. Hening was a painstaking editor. In compar- Research (West, 2009). ing published Colonial revisions with original This article pays tribute to some of the indi- manuscripts, he noted “that not only entire sen- viduals who played key roles in the development tences, but whole acts are omitted; besides innu- of Virginia statutory publication. Each made merable typographical errors, which totally vary other significant contributions to the common- the sense.” Once an error appeared in print, it was wealth that in most instances eclipsed their statu- tory work. One became a United States senator, another a governor, and a third a federal judge. One was the most prolific legal author of his day but is best known for his collection of statutes. Hening the Compiler In a 1796 letter to George Wythe, Thomas Jefferson recognized the need to preserve the leg- islation of early Virginia and proposed that the laws be collected and printed. “Very early in the course of my researches into the laws of Virginia,” he wrote, “I observed that many of them were already lost, and many more on the point of being lost, as existing only in single copies in the hands of careful or curious individuals, on whose death they would probably be used for waste paper.” Jefferson had personally assembled an extensive collection of manuscripts, some of which were “so rotten, that in turning over a leaf Portrait of a man, believed to be William Waller Hening, artist it sometimes falls into powder.”1 unknown, from an oil painting in the Virginia Historical Society Little came of Jefferson’s proposal, however, collection. The donor was Hening’s great-great-grandson, the Honorable Edmund W. Hening Jr. (1914–2000), who obtained the until an acquaintance of his from the portrait from another descendant whose mother believed it Charlottesville bar, William Waller Hening depicted William Waller Hening. 50 VIRGINIA LAWYER | October 2011 | Vol. 60 | LAW LIBRARIANS www.vsb.org THE LAW GIVERS: HEROES OF VIRGINIA STATUTORY HISTORY generally carried over into later revisions. His col- lection restored many of these laws to the versions that were originally enacted. On reviewing the first volume, Jefferson wrote that “the compilation appears to be correctly & judiciously made, and gives us exactly what I had so long considered as a desideratum for our country.”3 Hening was born in Culpeper County, read law in Fredericksburg, and was admitted to the Virginia bar in 1789. He moved to Charlottesville in 1793. His first major work, published in Richmond in 1795, was The New Virginia Justice, a handbook for justices of the peace. Before Hening’s work, the only Virginia legal texts were works by George Webb (1736) and Richard Starke (1774), both published in Williamsburg and titled The Office and Authority of a Justice of the Peace. Hening’s New Virginia Justice went through four editions and for over thirty years was the princi- Benjamin Watkins Leigh, from a watercolor painting (1835) by 4 ple reference work for magistrates and lawyers. James Barton Longacre in the Virginia Historical Society collection. Hening was elected to the House of Delegates in 1804 and later became a privy councillor and clerk of the court of chancery. With William and Mary. He began practicing law in Petersburg Munford (1775–1825), a fellow legislator and in 1802, but moved to Richmond after serving in later clerk of the House of Delegates, he also pub- the House of Delegates from 1811 to 1813. By the lished four volumes of reports of the Supreme time of the 1819 code he was one of the most Court of Appeals of Virginia covering 1806 to respected lawyers in the city. 1809. Hening and Munford published the court’s In commissioning the Code of 1819, the cases in a manner far more timely than earlier General Assembly listed more than two hundred reporters; cases from the period from 1803 to acts it wanted codified, designated Leigh as the 1806 were not even published until 1833. superintendent of the work, and specified that it In the preface to his first volume of the would be “his duty to prescribe the order, in Statutes at Large, Hening noted: “Whether I shall which the several laws shall be published in the render an acceptable service to my native state in code, carefully classing them according to their furnishing the only authentic materials for its subject matter, without reference to the time of early history,… I am at a loss to conjecture.” Over their passage.”6 a century later, a Virginia Law Register article Leigh was aided in the classification project noted that Hening’s volumes “are prized by the by two “very competent assistants” already men- historian and worshiped by the genealogist,” even tioned in this article, William Waller Hening and though “to the practical and unsentimental lawyer William Munford. The code they produced had they are an encumbrance, a worthless antique.”5 twenty-three subject titles and 262 chapters. Leigh sought in his preface to allay concerns about the Leigh the Codifier “novel order of publication” that “rendered it A collection of laws in force in Virginia was pub- impossible to designate the year of the lished in 1794, with updated editions published in Commonwealth, at the top of the page, as in all 1803 and 1814. In each of these collections, how- the other publications of our laws since the revo- ever, the acts were simply printed in chronological lution,” by noting that the dates were indeed order by date of enactment rather than organized included in the side margins. The work did more by topic. The Revised Code of the Laws of Virginia, than classify current law, with numerous foot- published in 1819, was the first effort to classify notes providing historical surveys of Virginia law the law in a coherent subject arrangement. from 1619. The editor responsible for the codification The codification interfered with Leigh’s legal was Benjamin Watkins Leigh (1781–1849). He practice, as he explained in a letter to the gover- was born in Chesterfield County and studied nor: “The work cost me five months’ continual under St. George Tucker at the College of William application, three of which were the busiest judi- LAW LIBRARIANS | Vol. 60 | October 2011 | VIRGINIA LAWYER 51 THE LAW GIVERS: HEROES OF VIRGINIA STATUTORY HISTORY cial and professional months in the year. I was Revised Statutes of the United States. The Code of withdrawn almost entirely from my profession, to 1887 included notations of relevant court deci- my very great loss and incalculable inconve- sions, but these were limited to citations in the nience.”7 As he wrote in the code’s preface, how- margins such as “3 Rand., 291” with no explana- ever, “I thought myself hardly at liberty to decline tory text. Attorneys needed to include handwrit- this public service, however laborious and incom- ten notes in their copies of the code if they patible with my other avocations.” wanted more information on relevant decisions. In the 1820s and 1830s, Leigh became one of This practice would become obsolete, thanks to a the leading conservatives in Virginia politics, young and ambitious Richmond attorney named defending property qualifications for voting and John Garland Pollard. opposing proportional representation and moves towards popular democracy. In 1834 he was Pollard (1871–1937) was born in King and appointed to the U.S. Senate, but served for only Queen County, grew up in Richmond, and two years before resigning after a conflict with the received his law degree from Columbian Jacksonian-controlled state legislature. University (now George Washington University). Leigh also served as reporter for the Supreme He began practicing law in Richmond at the age Court of Appeals from 1829 to 1841, compiling of twenty-one. Two years later he published a vol- twelve volumes of reports. According to Conway ume of acts since 1887, including a collection of Robinson (1805–1884), Leigh’s son-in-law and amendments designed to be pasted over relevant successor as reporter, the reports of Leigh’s prede- sections in the code volume. Five years later, he cessors “had not been of so high an order as was published a more comprehensive supplement to to be desired. It was an object of some impor- the 1887 code. tance to raise the standard of the Virginia reports. Pollard was one of the youngest delegates to And the judges now sought the services of one in the Virginia constitutional convention in 1901– the first rank of the profession, who was deemed 02. He was a deeply religious Baptist and strongly by them better fitted than any other to attain the believed in the separation of church and state. At object in view.”8 Robinson would himself become the convention he argued unsuccessfully that the a major figure in Virginia statutory history, as co- word “Christian” should be struck from a provi- editor of the Code of 1849. sion that “it is the mutual duty of all to practice Christian forbearance, love and charity towards Pollard the Annotator each other,” because he felt the constitution In an 1887 recodification, the Code of Virginia should speak “to all people — non-Christian as adopted a single series of section numbers similar well as Christian.”i9 to the system used the previous decade in the After the constitutional convention, Pollard turned his attention back to Virginia statutes and produced his two-volume Code of Virginia as Amended to Adjournment of General Assembly 1904 … Annotated. His aim was not only to col- lect and classify the statutes in force but to “give the construction placed upon such statutes by the courts, and to refer to the comments in text- books and legal periodicals concerning the same.” The annotations covered Virginia and federal courts, with references to the Virginia Law Journal, Virginia Law Register, and several major treatises, including Minor’s Institutes. In his pref- ace, Pollard thanked several assistants and the Washington and Lee University Law Library, where he worked during his stay in Lexington in the summer of 1903. For the first time, Virginia lawyers had a code with notes that summarized court interpretations of the statutory provisions. Pollard’s work was John Garland Pollard, from an illustration in Men of Mark in hailed as “the best edition of the code ever pub- Virginia (1908). lished in the history of the state.”10 One reviewer 52 VIRGINIA LAWYER | October 2011 | Vol. 60 | LAW LIBRARIANS www.vsb.org THE LAW GIVERS: HEROES OF VIRGINIA STATUTORY HISTORY noted that “[a]mple margins are afforded for future statute and case-annotation,” 11 but this proved unnecessary because the Pollard code was the first in Virginia history to be regularly updated. A new Pollard’s Code Biennial volume appeared after each General Assembly session for more than twenty years. Pollard’s publications were considered “well nigh indispensable . . . a necessity to every Virginia lawyer, and executed with such fidelity and care as to make it a luxury to use.”12 Pollard served as Virginia’s attorney general from 1913 until 1917. He ran for governor in 1915 but lost; taught at the College of William and Mary for several years, including six years as dean of the Marshall–Wythe School of Government and Citizenship; and in 1929 was Thomas J. Michie, from the Russell “Rip” Payne Collection at the elected governor to succeed Harry F. Byrd Sr. It Albemarle Charlottesville Historical Society. was a difficult period of depression and drought, during which he maintained a balanced budget by cutting state expenses by $7.5 million and approved the 1933 repeal of Prohibition. codes and its annotated codes for other states. Pollard’s final position until his death was as Michie also succeeded his father as reporter of the chair of the U.S. Board of Veterans Appeals in Supreme Court of Appeals of Virginia, serving Washington, D.C. from 1937 until 1952. Beirne Stedman (1889–1972), a native of Michie the Modernizer Patrick County and a law graduate of Washington In the 1940s, Virginia was one of the last states to and Lee, worked for the Michie Company for have an annotated code in just one volume, a sixty years. His first published work was a 1917 Virginia Law Register article, “Right of Husband massive 3,160-page tome published every six 16 years by the Charlottesville-based Michie to Chastise Wife.” Stedman was the final editor Company and based on the official Code of 1919. (1926–28) of the Register, compiler of the well- The General Assembly in 1946 empowered a received Stedman on Patents (1939), and co-editor Commission on Code Recodification, which ini- of numerous state codes. tially thought the revised code would be four vol- Hewson Michie’s older brother, Thomas J. umes —“one for the administrative code, a Michie (1896–1973), was “not regularly con- second for the civil code, a third for the criminal nected with The Michie Company, … but code and a fourth for the index.”13 The commis- through special arrangement made by the Company he undertook to do a very considerable sion turned to the Michie Company to do the 17 editorial work, which “was directed and for the part of this work.” Michie graduated from the most part actually done by A. Hewson Michie, University of Virginia School of Law a year before Beirne Stedman, and Thomas J. Michie.”14 his brother, in 1921, practiced law in Two of these three men were career employ- Charlottesville, was a corporate lawyer in ees of the Michie Company. A. Hewson Michie Pittsburgh, and served in the armed services dur- (1897–1957), the younger son of one of the com- ing both world wars. After World War II, he was pany’s founders, Thomas J. Michie III in general practice in Charlottesville when he (1867–1938), was born in New York but moved joined the recodification effort. with his family to Charlottesville in 1905. He In the 1950s Thomas Michie was a member fought in World War I in the St. Mihiel and of the Charlottesville City Council, and he Meuse-Argonne offensives and “was slightly became mayor in 1958 as the city was deliberating gassed, but he was much too robust to suc- the fate of its segregated school systems. He said cumb.”15 Hewson Michie joined the firm imme- that the city council and school board might “be diately after receiving his law degree from the compelled to take action which will be distaste- University of Virginia in 1922. By 1930 he had ful” to them, but that officials would be guided by editorial responsibility for the company’s Virginia “a respect for our courts and their orders.” He LAW LIBRARIANS | Vol. 60 | October 2011 | VIRGINIA LAWYER 53 THE LAW GIVERS: HEROES OF VIRGINIA STATUTORY HISTORY warned that “violence and mob action will not be 6 Act of March 12, 1819, ch. 35, 1819 Va. Acts 50, 63. tolerated here. Anyone who sets out to make trou- 7 B. W. Leigh to the Governor, Oct. 29, 1819, 10 ble will get it for himself, without fear or favor Calendar of Virginia State Papers and Other and without regard to his color, his position or his Manuscripts 489, 490 (H. W. Flournoy ed., 1892), social standing.”18 cited in Bruce E. Steiner, The Prelude to Conservatism, 1781–1822: An Account of the Early In 1961 President John F. Kennedy appointed Life, First Ventures into Politics, and Legal Career of Michie to the U.S. District Court for the Western Benjamin Watkins Leigh 155 (unpublished M.A. District of Virginia. There he presided over sev- thesis, University of Virginia, 1959). eral major school desegregation and civil rights 8 Preface, 40 Va. vii, viii (1843). cases. In 1962 he ordered the admission of the 9 Christopher B. Garnett, John Garland Pollard, 48 first African American students to public schools Proc. Va. St. B. 246, 247 (1937). in Lynchburg, Winchester, and Roanoke, and in 10 John Garland Pollard, 4 Men of Mark in Virginia 1965 he ordered the reinstatement of African 330, 334 (Lyon G. Tyler ed., 1908). American teachers fired by the Giles County 11 George Bryan, Book Review, 10 Va. L. Reg. 757, school system after the county consolidated its 758 (1904). separate schools. Judge Michie had served just six 12 R. T. W. Duke, Jr., Book Review, 16 Va. L. Reg. 719, 719 (1911). years when a stroke forced his retirement. 13 Contract Signed for Recodification of All State The Code of Virginia 1950 created by the Laws, Wash. Post, Aug. 30, 1946, at 7. Michie editors was a nine-volume set with pocket 14 Report of the Committee on Code Recodification parts and volumes that could be replaced as nec- 5, House Doc. No. 18 (1948). essary, and sixty-five titles that could be individu- 15 Bernard P. Chamberlain, Addinell Hewson Michie, ally revised. And this, under the terms of Va. Code 68 Proc. Va. St. B. 191, 192 (1958). §30–152, is the course that the Code 16 3 Va. L. Reg. n.s. 241 (1917). Commission has followed for more than sixty 17 Report of the Committee on Code Recodification, years.19 supra note 14, at 5. 18 Alan Bruns, Mayor’s Job No Longer Very Peaceful, Endnotes: Charlottesville Daily Progress, Sept. 3, 1960; 1 Thomas Jefferson to George Wythe, Jan. 16, 1796, Charlottesville Mayor Urges Calmness on School 9 The Writings of Thomas Jefferson 319 (Abert Issue, Wash. Post, Sept. 3, 1958, at A8. Ellery Bergh ed., 1907). 19 Lengthier biographical sketches of Hening, Leigh, 2 Ch. 17, 1808 Va. Acts 24. Pollard, and Thomas J. Michie can be found in 3 Thomas Jefferson to William W. Hening, Dec. 1, two standard works edited by W. Hamilton 1809, 2 The Papers of Thomas Jefferson: Retirement Bryson. Hening and Leigh are covered in The Series 50 (J. Jefferson Looney ed., 2005). Virginia Law Reporters Before 1880 (1977), and 4 Wm. H. Martin, Hening and the Statutes at Large, Pollard and Michie in Legal Education in Virginia, 13 Va. L. Reg. n.s. 25, 25 (1927). 1779–1979: A Biographical Approach (1982). 5 Id. at 29–30. There are 45,000 lawyers in Virginia. Only one magazine reaches them all. Virginia Lawyer The Official Publication of the Virginia State Bar For advertising opportunities, contact Nancy Brizendine at (804) 775-0594 or [email protected]. 54 VIRGINIA LAWYER | October 2011 | Vol. 60 | LAW LIBRARIANS www.vsb.org CALL FOR NOMINATIONS HARRY L. CARRICO PROFESSIONALISM AWARD VSB Section on Criminal Law The Harry L. Carrico Professionalism Award was established in Criteria 1991 by the Section on Criminal Law of the Virginia State Bar to recognize an individual (judge, defense attorney, prosecutor, clerk, The award will recognize an individual who meets the following or other citizen) who has made a singular and unique contribu- criteria: tion to the improvement of the criminal justice system in the ◆ Demonstrates a deep commitment and dedication to the highest Commonwealth of Virginia. ideals of professionalism in the practice of law and the administra- The award is made in honor of the Honorable Harry L. tion of justice in the Commonwealth of Virginia; Carrico, a former Chief Justice of the Supreme Court of Virginia, ◆ Has made a singular and unique contribution to the improvement who exemplifies the highest ideals and aspirations of professional- of the criminal justice system in Virginia, emphasizing professional- ism in the administration of justice in Virginia. Chief Justice ism as the basic tenet in the administration of justice; Carrico was the first recipient of the award, which was instituted at the 22nd Annual Criminal Law Seminar in February 1992. ◆ Represents dedication to excellence in the profession and “per- forms with competence and ability and conducts himself/herself Although the award will only be made from time to time at the with unquestionable integrity, with consummate fairness and cour- discretion of the Board of Governors of the Criminal Law Section, tesy, and with an abiding sense of responsibility.” (Remarks of Chief the Board will invite nominations annually. Nominations will be Justice Carrico, December 1990, Course on Professionalism.) reviewed by a selection committee consisting of former chairs of the section and Chief Justice Carrico. Submission of Nomination Prior Recipients Please submit your nomination on the form below, describing specif- ically the manner in which your nominee meets the criteria established The Honorable Harry L. Carrico 1992 Craig S. Cooley, Esquire 2002 for the award. If you prefer, nominations may be made by letter. James C. Roberts, Esquire 1993 Prof. Robert E. Shepherd 2003 Nominations should be addressed to Casey R. Stevens, Chair, Oliver W. Hill, Esquire 1995 Richard Brydges, Esquire 2004 Criminal Law Section, and mailed to the Virginia State Bar Office: The Honorable Robert F. Horan 1996 Overton P. Pollard, Esquire 2005 Eighth and Main Building, Suite 1500, 707 East Main Street, Reno S. Harp III, Esquire 1997 The Honorable Paul B. Ebert 2006 Richmond, VA 23219. Nominations must be received no later than December 2, 2011. Please be sure to include your name and The Honorable Richard H. Poff 1998 Rodney G. Leffler 2007 the full name, address, and phone number of the nominee. The Honorable Dennis W.Dohnal 1999 Prof. Ronald J. Bacigal 2008 If you have questions about the nomination process, please call The Honorable Paul F. Sheridan 2000 The Honorable Jere M.H. Willis Jr. 2010 Elizabeth L. Keller, Assistant Executive Director for Bar Services, The Honorable Donald H. Kent 2001 Virginia State Bar, at (804) 775-0516. HARRY L. CARRICO PROFESSIONALISM AWARD NOMINATION FORM Please complete this form and return it to the Virginia State Bar, Eighth and Main Building, Suite 1500, 707 East Main Street, Richmond, VA 23219. Nominations must be received no later than December 2, 2011. Name of Nominee: ______Profession: ______Employer/Firm/Affiliation: ______Address of Nominee: ______City ______State ______Zip ______ Name of person making nomination ______Telephone ______(Please print) E-mail ______Signature ______ (Please attach an additional sheet explaining how the nominee meets the criteria for the Harry L. Carrico Professionalism Award.) Creating a Valuable Research Metric for the Private Law Firm by Alyssa Altshuler and Sharen C. Leonard In the modern law firm, still reeling from the economic downturn of 2008, documenting the contribution of the library department is crucial. Increasingly, law firm administrative departments are expected to demonstrate their worth to upper management. We hope that by sharing our law firm library’s journey Alyssa Altshuler is the from using a paper-based method for tabulating library services to a sophisti- manager of research ser- vices for Ropes & Gray cated interactive SharePoint database — a “library services request database”— LLP and works in the Washington, D.C. office. will inspire other law firm libraries to do the same, so their future can be She is a member of the Virginia Association of secured with solid and trustworthy data. Law Libraries and the American Association of Law Libraries Ropes & Gray LLP is headquartered in extracted monthly, quarterly, or yearly and exam- Boston and has six domestic and four interna- ined for upward or downward trends in various tional offices. Providing library services for more categories. than 1,100 attorneys requires the work of many The paper tick sheet method had shortcom- librarians, technical services staff, and library ings. Putting a tick into a specific category each assistants. Capturing the breadth, scope, and sub- time a library staff member accomplished a task stance of these services is challenging. did not capture the qualitative nature of the activ- Sharen Leonard is the When Sharen C. Leonard joined Ropes & ity, for which the activity was performed or the senior manager of library Gray in 2007, she noted that its libraries were not activity’s cost. It did not tell how long it took to services for Ropes & Gray capturing meaningful statistics about library do the work. The statistical validity of the tick LLP and works in the Boston office. She is a operations, so she worked with the firm’s District sheets was prone to another problem as well — member of the American of Columbia library branch manager to develop a library staff differed in their interpretations of Association of Law monthly paper tick sheet method to record which activities merited a tick, resulting in incon- Libraries. library staff activities firm-wide. sistency in reporting of tasks. The paper tick sheet method provided statis- For projects of greater duration than a ref- tics for the following categories — some of which erence or research project, a project portfolio were added as new services became part of the spreadsheet was developed, with universal access library’s repertoire: research, ready reference, user by all librarians and staff. Personnel could enter training and support, technical assistance, mar- the hours they worked on particular projects, keting alerts, company profiles, client monitoring, such as a new integrated library system, the circulation, document orders, interlibrary bor- library portion of an office move, firm-wide rowing and lending, desk copy requests, print educational classes, rollout of various software purchase requests, password requests, and num- packages, client portal development, and com- ber of in-person visits to the library. Each library petitive intelligence. Like the paper tick sheets, branch manager could tally the statistics at the the data derived from the project portfolio end of the month and enter the numbers into an spreadsheet were one-dimensional, especially Excel spreadsheet on the firm’s document man- because no qualitative narrative accompanied agement system. The spreadsheet provided pro- the information. ductivity information for specific office locations During the same time we were contemplat- and the entire library department. Data could be ing a new way to capture reference statistics, 56 VIRGINIA LAWYER | October 2011 | Vol. 60 | LAW LIBRARIANS www.vsb.org CREATING A VALUABLE RESEARCH METRIC FOR THE PRIVATE LAW FIRM Ropes & Gray’s manager of library services was ation. By the time the plane landed, Leonard had busy implementing a new integrated library sys- finalized the concept for a new database. tem at the firm. The new system provided an We realized we needed to involve library enormous amount of data regarding technical personnel in the initial creation phase — an services, such as cataloging, circulation, acquisi- opportunity not available when buying an off- tions, and budgeting, so its companion reference the-shelf commercial software product, even tracking software was an attractive option. with vendor-supplied customizations. In collab- A focus group of research librarians investi- oration with library staff across all of Ropes & gated the reference tracking software and beta- Gray’s domestic offices, we put into place a tested its functionality, data points, and ease of library services request database. use by both the user and library staff, while The data generated by the database illustrates Leonard evaluated its cost benefits. This commer- the broad scope of work performed by library cial reference tracking software is well developed staff. Segments of the technical services work also and logical. We received substantive training on are measured by the integrated library system, so the product. However, the focus group did not the combination of the two databases provides an resoundingly endorse it. The group was con- all-encompassing picture. Information derived cerned that the software’s programming language, from the database can be synthesized, analyzed, which was different from the company’s inte- and presented in multiple permutations, includ- grated library system, would ultimately be incom- ing monthly, quarterly, or yearly; by office loca- patible with our internal systems. There was a tion, department, or practice group; and by type consensus that the interface was too cumbersome of request. This is especially helpful when briefing and time-consuming. Also, this package and a few officers and directors who are making staffing and other commercial products we investigated were budget determinations. too expensive. The library services request database is an Migration to an entirely new system of statis- affordable and easy solution to the problem of tical documentation for the library department documenting everything the library contributes was serendipitous. A senior Web content coordi- to the overall success of a law firm. As library ser- nator — part of the firm’s info net team — was vices evolve, a quick edit of the template updates temporarily assigned a workstation located in the documentation of any new offering. It is indeed library. Leonard stopped by the Web coordinator’s gratifying at the one-year anniversary of the cubicle and discussed her ideas about a library development of the library services request data- services tracking system. Her colleague quickly base to look at all the data gathered during the determined that the library’s information data past twelve months and see the quantity and problem could be solved readily with the develop- quality of work performed on behalf of attorneys ment of a Microsoft SharePoint list which she and staff across the firm. used to track projects for her info net team. The in-house product Ropes & Gray developed for info net purposes could be the answer to the library services database needs. While still pondering her initial discussion The data generated by the database illustrates the with the Web coordinator, Leonard traveled to the American Association of Law Libraries conference broad scope of work performed by library staff. in the summer of 2010 and happened to sit on a plane next to a former colleague. Years before, they had worked on a reference database at another firm and were familiar with each other’s thoughts on the importance of this type of inter- active database. In discussing what an ideal library services database would comprise and how users would interact with it, Leonard and her seatmate deter- mined all of the desired elements for this cre- LAW LIBRARIANS | Vol. 60 | October 2011 | VIRGINIA LAWYER 57 Conference of Local Bar Associations by Edward L. Weiner, Chair Bar Membership Means Bar Participation There is no difficulty in cultivating even a passion for this study; The CLBA will present a Bar and though a lawyer should be, in some degree, acquainted with Leaders Institute at the University of Richmond School of Law on March 5, the whole circle of human science, so that he may be as occasion 2012, and a series of Solo & Small- may require, a philosopher to detect, a logician to reason, a poet Firm Practitioner Forums. Each of the to describe, and an orator to persuade, yet, believe me, that Solo & Small-Firm Practitioner excellence in a single scientifick profession, is all that our Forums will be immediately followed by a Town Hall Meeting presided over reasonable expectations should embrace. by a Justice of the Supreme Court of Virginia. Dates and locations for the — David Hoffman, founder, solo programs are: University of Maryland School of Law, 1836. • November 17, 2011 — Stratford Hall, Stratford; featuring Justice William C. Mims JUST AS THE STUDY OF LAW will challenge to bar leaders is to make cultivate passion, so too, does involve- members feel that their bar involve- • April 4, 2012 — Longwood ment in your local or specialty bar. ment furthers their goals. University, Farmville; featuring With few exceptions, local and The paramount issue for every bar Justice Donald W. Lemons specialty bars are entirely voluntary. association, regardless of size, is to That means that members want to be a know its members expectations and to • April 27, 2012 — Mountain part of a team. While reasons for mem- fulfill them. In order to ensure Empire Community College, bership vary, (ranging from wanting to increased member involvement, a bar Big Stone Gap; featuring Chief expand knowledge, to networking and must strive to surpass member expec- Justice Cynthia D. Kinser camaraderie), the voluntary nature of tations. our associations ensures a core com- Bar membership should mean bar Registration information and mon bond. Whether a bar association participation. Bar membership is not other details will be posted on the is a local geographic bar, or a specialty- meant to be a spectator sport; getting CLBA website at http://www.vsb.org practice bar, not only “is there no diffi- out on the field and playing is much /site/conferences/clba/. Watch for your culty in cultivating a passion” for more fun. In that sense, a bar leader monthly e-news, which is sent to VSB membership, but it’s easy. The same may sometimes need to rotate the flock members with email addresses on file. holds true whether a small local bar of or act as a coach of a team by seeing As chair of the Virginia State Bar thirteen members where the bar office that everybody gets to play. Conference of Local Bar Associations, consists of a couple of file boxes trans- The CLBA continually seeks to it is my honor and privilege to extend ferred from president to president, or a improve its efforts to better serve the to every attorney in Virginia an invita- bar of 2,500 members. needs of Virginia’s local and specialty tion to attend these programs, as well Only those lawyers who are inter- bar associations, to identify best prac- as to contact us at the CLBA with any ested in advancing the practice of law, tices and inform bar leaders of devel- thoughts or questions regarding how as well as their personal professional opments and trends on issues of the VSB can be of assistance and development, choose to participate in importance to association leadership. resource to your bar association. voluntary bars. Therefore, the big 58 VIRGINIA LAWYER | October 2011 | Vol. 60 www.vsb.org Senior Lawyers Conference by Robert L. Calhoun, Chair Senior Lawyers Conference — Ten Years and Counting IN JUNE 2001, the Virginia State Bar city firms, retired judges, and former seniors support center, Senior Citizens Council authorized establishment of members of the General Assembly of Alexandria. the Senior Lawyers Conference (SLC), (including our immediate past presi- Our publications complement our successor to the Senior Lawyers Section dent John Tate). Most of us still prac- programs. These are listed on and can that was established in 1987. As stated tice full or part time. be downloaded from our website, in the Council’s bylaws, the mission of www. vsb.org/site/conferences/slc. the SLC was: Many of the specific activities of Conference member Frank O. Brown the SLC are spelled out in the missions Jr. serves as the editor of the conference To uphold the honor of the profes- and goals portion of our bylaws. These website as well as serving as an author sion of law, to apply the knowledge and include the planning and presentation and editor of our newsletter. Our most experience of the profession to the pro- of programs and activities and produce popular publication is the Senior motion of the public good, to encourage publications of interest to senior Citizens Handbook. Although designed public discourse and interaction among lawyers. Our programs included a con- to inform seniors, their families and the members of the Virginia State Bar, tinuing legal education program at the caregivers, I am pleasantly surprised and to serve the particular interests of VSB Annual Meeting. This year’s CLE, that many attorneys also use it as a senior lawyers and to promote the wel- co-sponsored with the General Practice resource. Brown is also a much in fare of seniors generally. Section, had two parts, “the Devil Wore demand speaker for his program Green: the Basics of Attorney Trust “Protecting Your Client’s Interest in A more recent revision of the Accounts” and “Making Sense of the the Event of Disability, Death or bylaws added a longer and more Numbers in Accounting and Finance: Other Disaster.” detailed exposition of the conference’s An Accounting and Finance Primer for Although this is my first column, I mission, now called “Mission and Attorneys.” Also, at the Annual have been a member of the Virginia Goals,” but did not change our basic Meeting, we sponsored a luncheon State Bar Council for most of the con- purpose. The term “public discourse” where we awarded certificates of recog- ference’s first decade. I owe thanks to was changed to “cordial discourse,” per- nition to members of the bar who have many people for making it an interest- haps reflecting the renewed emphasis practiced fifty years. ing and enjoyable experience. John Tate of former Chief Justice (and honorary Under the leadership of William has inspired the members with his member of the conference) Harry L. T. “Bill” Wilson, we supported and innovative program to plant over 1,000 Carrico, on improving civility in the encouraged Senior Law Day programs trees throughout Virginia. I also want practice of law. around the state, held most recently to thank VSB staff liaison Stephanie The SLC is open to all Virginia in Charlottesville, Leesburg, Blanton who provides valuable and State Bar members over the age of Harrisonburg, the Northern Neck, much appreciated support to the con- fifty-five — now more than 14,000 the Alleghany Highlands, and Smyth ference and its work. members. As the baby boomers age, County. We plan to continue the our numbers will increase. We are a program this fall in Alexandria with diverse group of men and women — a program jointly sponsored by the sole practitioners, members of firms in Alexandria Bar Association and a smaller cities and towns and large big- www.vsb.org Vol. 60 | October 2011 | VIRGINIA LAWYER 59 Young Lawyers Conference by Christy E. Kiely, President Conference National Awards, Goals Announced IN THIS, my first president’s column, I ally in Northern Virginia, Southwest Martha E. Hulley, Laurie L. Proctor, have the honor of announcing that the Virginia, and Tidewater. Past program Patricia C. Amberly, and Patricia M. Young Lawyers Conference has received chairs Brian T. Wesley, Sherita D. McCay. Even now, months later, partic- an unprecedented number of first and Simpson, Heather R. Willis, and Erin ipants tell me it was the best CLE ever. second place awards from the W. Hapgood made us proud. Sarah W. New Chair Nicole Pszczolkowski is American Bar Association’s annual Bell and Leonard C. Tengco can build planning a follow-up for next year. Awards of Achievement program. The off their success with additional confer- program evaluates young lawyer pro- ences this fall. And, of course, let us not forget gramming in comprehensive, newslet- three other people who made these ter, service to the bar, service to the Students Day at the Capitol— 2nd programs possible. First and foremost public, and minority categories. In Place (Service to the Public)— is Carson H. Sullivan, the immediate Division 1A, which is for affiliates with Students Day has special significance past- president of the YLC, who over- more than 8,000 young lawyers, the to me, since I started my YLC career as saw this myriad of projects. Also, presi- YLC placed in every category. These chair of the program in 2002. (You dent-elect Brian R. Charville, who as accomplishments deserve to be her- never know where that first project secretary last year penned our awards alded, and the people who made them will take you.) Students Day at the applications to the ABA. And, of possible merit special recognition. Capitol brings middle school students course, Maureen D. Stengel, our intre- to Richmond to tour the Capitol and pid VSB liaison, kept us on task, on Docket Call —1st Place (Newsletter) the Supreme Court of Virginia to bet- time, and under-budget. Our award in — Our Docket Call newsletter contin- ter understand how laws are made, the comprehensive category is a tribute ues to be a stand-out. It is published interpreted, and applied. Melissa Y. to them and their hard work. and distributed to 11,000 members, York and Amanda A. Reid chaired the As I reflect back on these successes, four times a year, with additional “E- program, with assistance from Latoya I am both impressed and slightly blasts.” It has legal articles, practical C. Asia and Farnaz Farkish. Four intimidated. This is a lot to live up to advice, and a new a “Day in the Life” hundred students from six schools in 2011-2012. But we will not rest on lawyer profile feature. The editor last participated. our laurels. The YLC will continue year, Joanna L. Faust, did a tremen- these and its other programs, and look dous job, and this year’s editor, Martha “Judiciary Squares” CLE—Tie, 2nd for ways to improve and expand them. E. Hulley, is already working on her Place (Service to the Bar)— Those of We also announce an exciting ini- second issue. A “Views from the you who attended the VSB Annual tiative: the YLC Fellows Program. The Bench” column, penned by Virginia Meeting in June already know about Fellows Program will operate as an judges, may be the next creative addi- this program. This interactive, game- alumni network for lawyers who have tion to Docket Call. show format continuing legal educa- “aged off” the YLC, and enable them tion program explored evidentiary to maintain their professional and Minority Pre-Law Conferences — 1st issues with ten of Virginia’s preeminent personal ties within the conference. Place (Minority Program)—These judges. Nine judges and justices, Both the YLC board and the VSB conferences advise college students — including Chief Justice of the Supreme executive committee unanimously especially minority students — on how Court of Virginia, Cynthia D. Kinser, approved the idea, which was pro- to become a lawyer. The conferences served as “squares” in the Hollywood posed by former YLC president Tracy feature programs on law school admis- Squares-style game. The Honorable A. Giles. Read more about the Fellows sions test preparatory courses, mock Stanley P. Klein, retired from the Program in later issues of Virginia law school classes, mock trials, and Fairfax Circuit, moderated. Thank are Lawyer. I hope it and the YLC flour- panel discussions with practitioners due to Chair Jennifer A. Haberlin, and ish, and that I have many more suc- and judges. Conferences are held annu- committee members Joanna L. Faust, cesses to report soon. 60 VIRGINIA LAWYER | October 2011 | Vol. 60 www.vsb.org Volunteer Opportunities Where will you make your mark? • Will it be on the mind of a child who decides to pursue law after attending the Oliver Hill/Samuel Tucker Law Institute? • Will it be on the heart of a family who gains some peace of mind from Wills for Heroes? • Will it be on the comfort of a cancer survivor facing legal difficulties? Through the Young Lawyers Conference, you have the opportunity to make a difference in your profession and commu- nity, but chances are, the difference you will feel will be within yourself. Young lawyers are making a difference. It’s rewarding; it’s a great way to get to know people; and it’s fun. Join your fellow young lawyers today and make your mark. HELP WANTED: We need your help! The Virginia State Bar Young Lawyers Conference (YLC) needs Circuit Representatives, Program and Commission Chairs, and committee members and volunteers for many of its programs in the 2011–2011 bar year. Becoming a Circuit Representative, Program or Commission Chair, or committee member / volunteer is an excellent way to get involved in the YLC and to serve the profession and the public. If you are interested in any of the leadership posi- tions or volunteer opportunities listed below, please contact Nathan Olson at (703) 934-1480 or [email protected] or Christy Kiely at (804) 788-8677 or [email protected]. More information about each of these opportunities may be found on the YLC’s website at http://www.vayounglawyers.org/. The YLC seeks Circuit Representatives for the following circuits: THIRD CIRCUIT — City: Portsmouth FIFTH CIRCUIT — Cities: Franklin and Suffolk; Counties: Isle of Wight and Southhampton SIXTH CIRCUIT — Cities: Emporia and Hopewell; Counties: Prince George, Surry, Sussex, Greenville, and Brunswick SEVENTH CIRCUIT — City: Newport News TENTH CIRCUIT — Counties: Appomattox, Buckingham, Charlotte, Cumberland, Halifax, Lunenburg, Mecklenburg, and Prince Edward FOURTEENTH CIRCUIT — County: Henrico FIFTEENTH CIRCUIT — City: Fredericksburg; Counties: King George, Stafford, Spotsylvania, Caroline, Hanover, Westmoreland, Richmond, Essex, Lancaster and Northumberland SIXTEENTH CIRCUIT — City: Charlottesville; Counties: Madison, Greene, Albemarle, Fluvanna, Goochland, Louisa, Orange, and Culpeper TWENTY-NINTH CIRCUIT — Counties: Giles, Bland, Tazewell, Buchanan, Russell, Dickenson THIRTY-FIRST CIRCUIT — Cities: Manassas & Manassas Park; County: Prince William The YLC seeks Chairs for the following program and commissions: Immigrant Outreach Committee Mental Health Law Committee Tidewater Minority Pre-Law Conference Chair The YLC seeks Regional Chairs for the No Bills Night program in the following areas: Abingdon Charlottesville Fredericksburg Lexington / Staunton Lynchburg Tidewater The YLC seeks committee members and volunteers for all of its programs and commissions. A complete list of programs and commissions, and their respective chairs, is at http://www.vsb.org/site/conferences/ylc/view/programs/. Find out more: View committee descriptions http://www.vsb.org/docs/conferences/young-lawyers/Cmte_Descriptions.pdf Get involved now: Mail-in volunteer form (PDF) http://www.vsb.org/docs/conferences/young-lawyers/VolunteerForm.pdf www.vsb.org Vol. 60 | October 2011 | VIRGINIA LAWYER 61 Law Libraries • Practice Tips Landing at a Run: Tips for Molding Effective and Productive New Associates by Amy Wharton You’re about to give the firm’s brand- the sole research advisor, here are three paths and build the vocabulary she new associate her first research project. tips: needs to construct effective searches. If She’s bright and energetic, but she’ll you don’t have a favorite treatise to rec- need mentoring to ease the transition • Cost. Make sure your associate knows ommend, she can find one through the from law school to practice. In a large what resources she can use for your library catalog or a free Web guide.5 firm, her mentoring team might include project. If she’ll be using Lexis or Remind her to verify that all of her pri- a senior associate, a technology trainer, Westlaw, be sure that she’s been trained mary sources are still good law. and a librarian. In a small firm, the team in cost-effective research techniques may be just you. Ideally, your associate and that she knows how to develop a • Keeping track of sources. Advise your will leave your office with all the infor- search strategy before she logs on.i associate to keep a detailed log of mation she needs to prepare a research When not using Lexis and Westlaw, resources consulted and where they plan that reflects your expectations for new researchers will tend to turn to were found, full citations, key passages the project. Preparing a checklist before another familiar resource, Google. with page citations, and descriptions the meeting can save time and disap- While Google has its place in legal of how the issues are treated. Like pointment. research, your associate may not be every researcher, she’ll develop her aware of its limitations. You want to own organizational system over time, Include these elements in your list: steer her toward more authoritative but sharing your own techniques may The final product. Specify the type sources that don’t accrue costs for use. be beneficial. Even if you never choose of document you need (brief, memo, In addition to materials from law to examine her research log, she’ll be report), your preferred delivery method library print collections, direct her to better prepared to describe her (paper, email, or through the firm’s doc- your firm’s in-house brief bank, if one research if she documents her process ument management system), and the exists, and to any relevant specialized well. A log will also help her avoid final due date. If possible, provide your databases to which your firm sub- associate with a sample document from scribes. Advise her to learn about what an earlier project. these resources contain and the power Timeline and level of supervision searching techniques they support. (for longer assignments). How much When she does go to the free Web, oversight do you want to provide? rather than keyword-searching Google, Establish a timeline for interim stages in suggest that she search for topical legal the process and what should be reported research guides prepared by law librari- at the end of each interval. ans. Many of the resources described in Facts, issues, and scope of the these guides are free. The George research. Beyond explaining the facts Mason University,ii William and Mary,iii and issues to be researched, define the and University of Richmond4 law parameters. Should your associate libraries maintain a number of guides Amy A. Wharton is research and emerg- restrict her research to direct authority, on their websites. You’ll find an excel- ing technologies librarian at the Arthur J. or would persuasive authority from lent guide to Virginia legal resources in Morris Law Library at the University of other jurisdictions and commentary Paul Hellyer’s article on page 42. Virginia School of Law where she co- from secondary sources also be helpful? teaches advanced legal research. Previously, she was a law firm librarian in Resources. What resources should • Content. Though her impulse may be Washington, D.C. She received her law your associate use, and equally impor- to dive directly into codes and cases, degree from George Mason University tantly, avoid? She should base her encourage your associate to consult and her master of library and information choices not just on content, but also on treatises and legal encyclopedias early studies degree from the University of ease of use and cost. Encourage her to in the research process. Point out that Oklahoma. She is secretary for the seek the advice of your firm’s librarians doing some background research will Virginia Association of Law Libraries and and the library’s intranet pages. If you’re help her to identify optimal research manages the VALL Wiki (vall.pbworks.com). 62 VIRGINIA LAWYER | October 2011 | Vol. 60 www.vsb.org Law Libraries • Practice Tips retracing her steps through sources she’s already consulted. Legal Research continued from page 44 This checklist is not fixed in stone Endnotes: 3 Westlaw provides some research ref- and you’ll want to adapt it as you use it. erences related to the VAC, but noth- With some personalization to reflect 1 I selected only sites that are appropri- ing comparable to annotated your practice area and preferences, it ate for lawyers and excluded sites statutory codes. should be an increasingly useful tool for aimed primarily at academic or pro 4 Va. Const. art. IV, § 6. molding effective and productive new se audiences. 5 Id., art. IV, § 13. Laws enacted during associates. 2 Attorneys can thank Virginia’s law special sessions take effect later, but librarians for the state’s administra- only a very small proportion of code Endnotes: tive code. Prior to 1995 the state did amendments occur this way and the 1 Both LexisNexis and Westlaw offer not publish an administrative code. free online code is sometimes training and just-in-time search sup- The Virginia Association of Law updated after July 1 to include the port. For LexisNexis, visit Libraries spearheaded the project to special session laws. http://www.lexisnexis.com/support/; for publish one with the collaboration of Westlaw, visit the Virginia Code Commission. http://west.thomson.com/support/resear ch-support/. 2 http://www.law.gmu.edu/library /guides/research. 3 http://law.wm.edu/library/research /researchguides/topical/index.php. 4 http://law.richmond.edu/library /research/index.html 5 See, e.g., “Legal Treatises by Subject,” http://libguides.law.virginia.edu/treatises Keeping your contact information up to date with the Virginia State Bar is the best way to How will keep ahead of important deadlines, new rule changes, and VSB events. YOU Email is a cost-efcost-efficientficient way to distribute time sensitive information. get the message? Please take the time to update your email address by going to the member login link att https://member.vsb.org/vsbportalhttps://memberr.vsb.org/vsbportal.vsb.o.vsb.org/vsbportal and electing to receive the monthly E-News announcements. E-NeE-Newsws – a monthlymonthly VSB member serservicevice to kkeepeep yee youou inforinformed!med! www.vsb.org Vol. 60 | October 2011 | VIRGINIA LAWYER 63 Risk Management A Form of Substance: Using Intake Forms by Wendy Inge Recently a lawyer asked me if intake ing a client on a new matter, use a fresh amount of information you are collect- forms are useful. As is often the case, intake form. ing from a prospective client. Virginia the answer to that is “it depends.” An intake form documents the Rule of Professional Conduct 1.18 cre- A basic intake form that is general information provided by the client. ates certain duties of confidentiality, and in content may do little to improve Whether the client fills out the intake a conflict may be created by the infor- your intake process. But an intake form form or the lawyer does, it is important mation received even if you decide not focused on a particular practice area to review the information with the client to represent the prospective client. can streamline and gather useful infor- and have him or her sign a statement mation from the client. Develop a unique intake form for each practice area. For example, if you The intake form can be used to gather important information, practice in wills and trusts, business formation, and family law, these areas improve efficiency, allow the client to confirm the accuracy of each require different information. A the information, and market additional services. wills and trusts matter requires an accu- rate list of assets owned by the client, evaluations, and tax implication infor- mation; in domestic matters it is that the information is accurate. important to know how long the parties Clients often do not disclose assets rele- have been married, number of children, vant to an estate plan, or they misspell work information, Social Security names, or provide other incorrect infor- information; and in a business forma- mation. Thus, signing or initialing tion you should know the nature of the intake information protects the lawyer business, staff responsibilities, the terms where incorrect information was pro- of any agreement between the parties, vided by the client. and proprietary property. Having a Always check the intake information well-developed intake form allows you against other sources to catch errors. to focus on information needed for There are times when an error has been your representation. The form should created by the client. be revised regularly. Finally, regarding intake forms on An effective intake form helps you the firm’s website, I encourage lawyers to identify other legal services the client limit the amount of information that a may need. For example, intellectual prospective client can provide by website property or trademark issues may arise or otherwise. Until an engagement when beginning a business. If your firm agreement is executed, avoid taking can provide these services presently or actions that could cause the client to Wendy Inge is the Virginia risk manager for at a later date, good; otherwise, the believe that you are representing him. Liability ALPS, the Virginia State Bar-endorsed client may appreciate an explanation of While disclaimers on a website can help legal liability insurer. She is available to answer risk management questions at no charge for all the additional legal needs and a referral control this (click-throughs are best), it members of the VSB. She can be reached at to another lawyer. If you are represent- is still wise to be careful about the (800) 367-2577. 64 VIRGINIA LAWYER | October 2011 | Vol. 60 www.vsb.org Professional Notices Hunton & Williams LLP has promoted ber of the task force. He is a member of Syed S. Ahmad of McLean to counsel. the LSC board, a partner with Hunton & Hillary D. Isleib has joined the His practice focuses on insurance cover- Williams, and a former president of the Blacksburg firm The Shaheen Firm PC age and reinsurance matters. American Bar Association. as an associate. Her practice focuses on litigation, criminal law, education law, Susan Smith Blakely of Great Falls has James F. Davis has opened the Law family law, and real estate issues. The published a book, Best Friends at the Bar: Office of James F. Davis PC, a general firm is an independent affiliate of What Women Need to Know about a law practice that emphasizes criminal Shaheen & Shaheen PC. Career in the Law, a guidebook to help law, civil litigation, personal injury, and young women stay in the profession. business law. Davis was previously a John F. Faber Jr., Kyle D. Korte, and Blakely is principal of LegalPerspectives partner at Greenspun, Shapiro, Davis John F. Sawyer have become partners of LLC and an associate member of the and Leary PC in Fairfax. 10513 Judicial Wolcott Rivers Gates in Virginia Virginia State Bar. Details: Drive, Suite 301, Fairfax, VA 22030; Beach. Faber concentrates his practice in www.bestfriendsatthebar.com (703) 383-3110; www.jfdavislaw.com commercial real estate and banking. Korte represents commercial landowners James W.C. Canup has joined the taxa- Philip R. “Duke” de Haas has joined the in development, sales, and leasing. tion section of Kaufman & Canoles PC, financial institutions practice group of Sawyer has experience in environmental in its Richmond office. He represents Troutman Sanders LLP in Richmond. He compliance regulation and litigation, clients in business and taxation matters. previously worked in the office of gen- creditors’ rights, and corporate dispute Before joining Kaufman, he was with eral counsel for the Virginia State resolution. Danielle M. Kruer has joined Virginia Estate Plans PLC and 529 Corporation Commission. Wolcott Rivers with a practice in credi- Counsel PLC. tors’ rights, contracts and general litiga- William M. Dupray has joined the tion, and Douglas E. Kahle has joined Daniel A. Carrell has been elected mod- Alexandria firm of Wade, Friedman & with a practice in corporate law, taxa- erator of the Thirty-ninth General Sutter PC, and the firm name has been tion, and commercial transactions. Assembly of the Presbyterian Church in changed to Wade, Friedman, Sutter & America, which took place in June in Dupray PC. He will continue his prac- Shelly R. James has opened the Law Virginia Beach. Carrell practices with tice as a litigator in the areas of personal Office of Shelly R. James PLLC at 57 Carrell Blanton Garrett & Van Horn PLC injury, contracts, Social Security disabil- South Main Street, Suite 410, in Richmond. ity, and veterans disability. Harrisonburg, VA 22801; phone (540) 421-1183. Her practice includes domes- Several Virginia attorneys have been Alan D. Eisler, principal of Meyers Eisler tic relations and criminal law, the named to the Legal Services LLC in Rockville, Maryland, is 2011-12 Workers’ Compensation Act, and general Corporation’s Pro Bono Task Force, president of the Bankruptcy Bar appellate work. which will help develop additional Association for the District of Maryland. resources to assist low-income He also recently was appointed to the Daniel J. Jenkins has joined Sandia Americans who face foreclosure, domes- planning committee of the Maryland National Laboratories in Albuquerque, tic violence, and other civil legal pro- State Bar Association, for which he New Mexico, as manager of the intellec- grams. The Virginians are Dana J. serves on the board of governors. tual property, energy, nonproliferation Cornett of Harrisonburg, president of and high consequences security division. the Blue Ridge Legal Services board of Michael J. Elston is chief counsel for He previously was counsel to the IP directors and pro bono team leader for appellate and complex commercial liti- group at the law firm McNees Wallace & the Harrisonburg-Rockingham Bar gation for the U.S. Postal Service in Nurick, in Harrisburg, Pennsylvania. Association; George H. Hettrick, chair Washington, D.C. Before joining the of the pro bono leadership committee at Postal Service, he was a partner with Laura S. Jones has opened Securities Hunton & Williams LLP and managing McGuireWoods LLP. Claims Management LLC in partner of the firm’s pro bono offices in Charlottesville. This securities arbitra- Richmond and Charlottesville; and John Janice W. Housey has joined Symbus tion firm represents individual investors E. Whitfield, executive director of Blue Law Group LLC as a member in Tysons in claims against the securities industry. Ridge Legal Services. Robert J. Grey Jr. Corner. Her practice includes trademark, www.SecuritiesClaimsMgmt.com of Richmond will be an ex officio mem- domain name and copyright issues. www.vsb.org Vol. 60 | October 2011 | VIRGINIA LAWYER 65 Professional Notices Samuel J. Kaufman, a partner with guardianships and conservatorships, and Andrew F. Palmieri has joined Saul Owen & Owens PLC in Midlothian, has special needs planning, with the firm Ewing LLP as a partner in the project been elected to a one-year term as presi- White & McCarthy in Midlothian. and resource development department dent of the University of Richmond and a member of the real estate practice Alumni Association. He previously Craig T. Merritt has received the 2011 group. He will practice in the firm’s served as cochair of the university’s George Mason Award for outstanding Washington, D.C., office. He previously annual fund. contributions to Virginia journalism was a partner in the Alexandria and from the Society of Professional Washington offices of Vorys, Sater, The following attorneys with Oblon, Journalists Virginia Pro Chapter. The Seymour and Pease LLP. Spivak, McClelland, Maier & Neustadt award recognized his service to journal- LLP reported professional news: Stephen ists and news media organizations with Mark C. Popovich has been appointed G. Kunin of Fairfax, who practices in the freedom-of-information matters and sit- county attorney for Isle of Wight firm’s patent reexamination and reissue uations of unwarranted newsroom County. He served as the county’s assis- practice group, is vice chair of the intrusion by law enforcement. Merritt tant county attorney since September American Intellectual Property Law has a commercial litigation practice at 2004. Prior to working for the county, Association’s patent cooperation treaty Christian & Barton LLP in Richmond. his professional experience consisted of committee. Jonathan Hudis will repre- private sector legal experience and ser- sent and speak on behalf of the Laurie Forbes Neff is the new director of vice on Capitol Hill as a legislative assis- American Bar Association’s Intellectual the Clinic for Legal Assistance to tant for Congressman Jay Kim and as a Property Law Section at the U.S. Patent Servicemembers and Veterans at George legislative intern for Senator John and Trademark Offices Tenth Annual Mason University School of Law in Warner. Trademark Trilateral Cooperation Arlington. The clinic provides pro bono Meeting in December 2011. Hudis, of civil legal assistance. Neff previously was Robert H. Sandwich Jr. has begun a Bethesda, Maryland, is a partner in assistant senior director of career ser- criminal law and general civil litigation Oblon Spivak’s trademark and copyright vices at the university. in the Suffolk office of Stallings & practice group. Christopher A. Bullard Bischoff PC. of Alexandria has been elected to the Steven R. Okun has joined KKR as council that governs the ABA Intellectual director of Asia Pacific public affairs. Property Law Section. He is a senior Based in Singapore, he oversees public Professional Notices associate with the firm. affairs, corporate citizenship, and exter- nal communications and assists the Email your news to [email protected] Brian V. Lee of Lee Legal PLLC, a bank- company’s portfolio companies in the for publication in Virginia Lawyer. ruptcy and foreclosure prevention firm, region. He also is chair of the Asia- All professional notices are free to has opened a new office at 1800 Pacific Council of the American VSB members and may be edited Diagonal Road, Sixth Floor, Alexandria, Chambers of Commerce. Okun is an for length and clarity. VA 22314; (703) 879-2870; associate member of the VSB. www.lee-legal.com. Matthew C. Osborne has joined Patrick L. Maurer has joined Clarke, Troutman Sanders LLP as an associate in Crossword answers. Dolph, Rapaport, Hull, Brunick & its intellectual property practice group in Garriott PLC in Norfolk. He is a former Richmond. His practice includes intel- senior assistant commonwealth’s attor- lectual property work, including patents, ney for Virginia Beach. His practice trademarks, copyrights, licenses, and focuses on family law and representation trade secrets. of artists and musicians. More informa- tion: http://clarkedolph.com/maurer.asp. Sandra Y. Palmer has joined Chung & Press PC in McLean as counsel to the Christopher M. McCarthy is president firm. Her practice focuses on real estate of the Virginia Academy of Elder Law and business law. Attorneys. He has a practice in elder law, long-term planning, veteran’s benefits, 66 VIRGINIA LAWYER | October 2011 | Vol. 60 www.vsb.org Classified Ads CONSULTANTS & EXAMINERS face amount, insured age 65 or older, policy in force for at least 2 years. Contact Steve AIRCRAFT APPRAISER/EXPERT WITNESS: Watson at VSPI, [email protected] or Determine the true value of Factory Built, For confidential (804) 740-3900. www.vspi.com. Antique, Homebuilt, Rotorcraft or toll-free consultation Commercial aircraft from Sopwith Camel MED-MAL ATTORNEYS: Deciding whether to available to all Virginia attorneys to Boeing 767. Valuations for divorces; take a case OR what strategy is best once on questions related to legal records, maintenance, appraisal reviews for you have taken it? 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Published five times a year, Virginia For more information see http://www.vsb.org/site/news/item/dc-vacancies Lawyer is distributed to all members of the Virginia State Bar, judges, law libraries, other state bar associations, the media, and general subscribers. More information and complete media kits are available online at http://www VSB Staff Directory .vsb.org/site/publications/valawyer, or Frequently requested bar contact information is available online at you can contact Nancy Brizendine at www.vsb.org/site/about/bar-staff. (804) 775-0594 or [email protected]. 68 VIRGINIA LAWYER | October 2011 | Vol. 60 www.vsb.org Word Games by Brett A. Spain Across 1. Related 5. Arise (from) 9. Avoid traffic 14. Yugoslavian dictator 15. Continental currency 16. Brother of Prometheus 17. Become “COMPLIANT”? 20. “Radio Free Europe” group Crossword answers on page 66 21. Lodge brothers 22. Under the weather 23. UCC remedy option Down 33. Impress 25. “Be prepared” gp. 1. Packers great Bart 34. Indulge 26. Pistole’s org. 2. Singer Mann 35. Obey 29. Put more “FIBER” in your 3. Things 40. .38 Special feature argument? 4. “The Godfather” character 43. Appeal that does not need to 33. Organization ripe to be pierced 5. Altitude reference be granted 36. Tolkien creatures 6. One of the Merry Men 47. Harvard rival 37. Alps sound 7. Cupid’s counterpart 48. Forecaster, of a sort 38. Bass brass? 8. Goldie to Kate 52. Definitely not here 39. Exam for college srs. 9. Outback marsupial 53. Song inspired by George 41. Informal goodbye 10. Commonly abbreviated parties Harrison’s wife 42. Protein acid 11. The Greatest 54. Ford flop 44. Oscar-winning role for Julia 12. Pianist Cliburn 55. Formerly 45. Many 13. N.Y. hours 56. Tango part 46. Change your “STRUT”? 18. Editorial direction 57. Some BOA drive-thrus 49. Tender lead-in 19. Tuscany city 59. Subject of the recent NFL lockout 50. Computer spec 24. Fashion bigshot 60. Bathroom option 51. Japanese, e.g. 25. Rouse 61. _____ Poetica 55. Castrol specialty 26. Wave variety 62. “Take on Me” band 56. All together 27. Address 63. Clear, in a way 58. Consumed 28. “Pathetique” sonata key 59. Come up with a “NEAT STORY” 30. Clothes measurement with new counsel? 31. Activate 64. Beech relative 32. Spin 65. Haws partner 66. Perry’s creator 67. Balance sheet item This legal crossword was created by Brett A. Spain, a partner in the commercial litigation section of 68. Church recess Willcox & Savage PC in Norfolk. He can be reached at (757) 628-5500 or at [email protected]. 69. Shade of blue www.vsb.org Vol. 60 | October 2011 | VIRGINIA LAWYER 69 Reflections The Language of Law by Paul E. Fletcher III Tortfeasor. I never had heard that word do in law school is just read a lot words. Ultimately, we decided we don’t write in until September 1982, when it cropped Thousands upon thousands of them, Cockney and therefore he was right. up in my first-semester Torts class. often in cases written by people who use And several people have squealed The guy who commits a civil wrong too many. when we’ve tripped on “more than/over” isn’t a wrongdoer, or a miscreant, or Once I was out of school and prac- and “less/fewer,” things we really should even a bad guy. He is a tortfeasor, a term ticing law in Southwest Virginia, I ran have looked up in the AP Stylebook. that sounds shameful, possibly heinous. into a similar problem. Howard As an aside, proofing galleys of the A guy to be avoided at all costs, unless McElroy, with whom I worked in newspaper can be an adventure, too, as perhaps you are accepting his settlement Abingdon, said it best. Why, he asked, do any number of language gaffes have died check for your client. lawyers insist on writing like this: “The in a puddle of red ink. Just be aware that I went to law school at Washington vehicle was proceeding in a northerly there is a thin line between “inducted” & Lee after a brief career as a high school direction.” and “indicted.” The same is true for English teacher. Part of that job was It’s so much simpler to say, “The “Hanover” and “hangover.” helping high school juniors gear up for car was headed north,” he said. I won’t say I’ve always liked hearing the verbal portion of the Scholastic The reason is, frankly, it’s more we’ve made a mistake, but I’ve always Aptitude Test. Each week my colleague work. It’s harder to write a short and welcomed corrections, when they’re war- and I would review the books we were direct paragraph than to dash off a ranted. We want to get it right and use teaching and pull out twenty to thirty meandering half-page, throwing in all less — strike that — fewer words when- vocabulary words. Then we’d go over the information you have. When I’ve ever possible. those words, give definitions and discuss schooled writers at Virginia Lawyers synonyms and antonyms. We’d cover Weekly, that’s one of the first things word families, origins and patterns. they hear. © 2010 Paul Fletcher So I went to W&L with a well-devel- And the courts in Virginia cough up This essay is part of Reflections, a collection by oped ear, and I wasn’t disappointed. The thousands of words every week, in new and about Virginia lawyers that was solicited first year law student hears an array of decisions, and they don’t always follow by former Virginia State Bar president Jon D. strange new words and phrases, some in the rule that less-is-more. Finding a way Huddleston as part of his Virginia Is for Good Lawyers initiative. http://www.vsb.org Latin. Tortfeasor. Res judicata. Metes and to make sense of all that verbiage is what /site/about/va-good-lawyers/#reflections bounds. Quash. Caveat. Sua Sponte. has made our newspaper successful: we Mens Rea. turn them into an accessible package of I developed a group of friends who case digests, so lawyers in the common- also were having fun with all the new wealth know what happened and how, language, one of whom went to the local quickly and easily. office shop and got a sign made up, Lawyers can be a tough audience. “Mens Rea.” He posted it on the door of Periodically we hear from the word- the “Mens Room” at Lewis Hall. The sign smiths in the bar who keep us on our stayed there our entire first year. toes. Despite our excitement over all There once was a Henrico lawyer Paul Fletcher is publisher and editor-in- these great new linguistic discoveries, at who railed when we wrote the phrase, chief of Virginia Lawyers Weekly. some point during the second semester, “an Henrico judge,” on several occasions. the reality hit us that most of what you 70 VIRGINIA LAWYER | October 2011 | Vol. 60 www.vsb.org INCREASINGCNI ERC AASS GNIS DDIVERSITYIVERSITY INNI THELEGAL ELEHT EGGAAL PROFESSIONRP SSEFOR NOIS EliminatinganimliE aatt ni g ImpedimentsImmpp emide nntts ffoforor LLawyersaaww ersyers andd LLers Lawaaww StudenStudents ofo f ColorloC or Featuring:Featuring: KIMIK KEENANNANEEKM (NA(NAACP),A CP), JUSTICESCITSUJ EC CLEOELCS E. POWELLEWOPO LL and S..S BERNARDRANREB GOODWYNWYNDOOGD WYN (Supr(Supremeeme Court of VVirginia)ginia)irginia) FRIDAYDIRF DAAYY ANDNA SD SATURDAYAATT RUT DDAAAYY NOV.ONOVV.. 11 1211 11111 21 SponsoredrnsooSp r d bybe y the Center ferentC ffoforo thr the StudyyStude off RacRacee and LLaw,aand ww,, the UniversityersityvniU oersity off VirVirginiaginia Schooll ofooScho o Law,aLfl ww,, and the VirginiaginiaVirthe Statginia State Bare Bar ConferenceoC nffererenc oneenc on DiversityersityvDi ersity FULL SCHEDULE / REGISTRATIONREGISTRAATIONTITION www.law.virginia.edu/racewwwww.. e.ainigriv.wla ecar/ude Scared of Legal Research? Subscribe to CaseFinder! For only $529 a year, you can subscribe to CaseFinder on the web. Afraid that you'll miss a case? CaseFinder contains the full text of over 124,000 Virginia and Federal cases, the official text of the Virginia Code, and more. Scared of missing the very latest decisions? CaseFinder is updated every day. Freaked out by a slow internet connection? 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