President’s Page ...... Evans B. Brasfield 2

Diversity Jurisdiction: An Idea Whose Time Has Not Gone ...... James A. Eichner 4

Guidelines for Contracting With HMOs and PPOs ...... Howard Feller 7

Virginia’s Equitable Distribution Statute: What DoesIt Really Mean and Where Do I Start? ...... Reilly Marchant 10

Judges’ Views on Medical Malpractice Review William H. Daughtrey, Jr. and Charles H. Smith 14

21 THE VIRGINIA BAR ASSOCIATION OFFICERS AND EXECUTIVE COMMITTEE

President Past President Evans B. Brasfield George G. Grattan, IV P.O. Box 1535 P.O. Box 9015 Richmond, Virginia 23212 Charlottesville, Virginia 22906

President-Elect Secretary- Treasurer Edmund L. Walton, Jr. Daniel J. Meador 1301 Vincent Place School of Law McLean, Virginia 22101 University of Virginia Charlottesville, Virginia 22901

Chairman, Young Lawyers Section Chairman-Elect, Young Lawyers Section William G. Hancock Charles M. Lellar P.O. Box 1122 1800 Sovran Center Richmond, Virginia 23208 Norfolk, Virginia 23510

Executive Committee

1~ Gordon Smith, Chairman John M. Ryan Thomas T. Lawson 1400 Ross Building 500 World Trade Center P.O. Box 720 Richmond, Virginia 23219 Norfolk, Virginia 23510 Roanoke, Virginia 24004

R. Reid Young, Jr. Frank L. Summers, Jr. J. Robert McAllister, III P.O. Box 72 P.O. Box 1287 P.O. Box 549 Martinsville, Virginia 24112 Staunton, Virginia 24~01,. Arlington, .Virginia 22216

James R. McKenry Andrew P. Miller 1072 Laskin Road 2101 L Street, N.W. Eighth Floor Virginia Beach, Virginia 23451 Washington, D.C. 20037

Executive Director Director, Committee Activities Joan S. Mahan Emerson G. Spies Suite 708, 7th & Franklin Building School of Law 701 E. Franklin Street University of Virginia Richmond, Virginia 23219 Charlottesville, Virginia 22901 W inia B ar. ls so eiatio our al

Volume XI Spring 1985 Number 2

EDITORIAL BOARD CONTENTS

President’s Page ...... 2- Appointed Members Evans B, Brasfield David W. Parrish, Jr. Chairman Diversity Jurisdiction: An Idea Whose Charlottesville Time Has Not Gone ...... ° 4 Vernon M. Geddy, Jr. James A. Eichner Williamsburg - Guidelines for Contracting With HMOs and PPOs.,. 7 Edward S. Graves ¯ Lynchburg Howard Feller

John F. Kay, Jr. Virginia’s Equitable Distribution Statute: Richmond What Does It Really Mean and Where Do I Start? ...... ° ..... :.. 10 Ex-Officio Members Reilly Marchant Evans B. Brasfield Judges’ Views on Medical Malpractice President Richmond Review Panels ...... 14 William H. Daughtrey, Jr. and Edmund L. Walton, Jr. President-Elect Charles H. Smith McLean Bar Association Prodeedings Joan S. Mahan Executive Director The Winter Meeting ...... 24 Richmond Announcements ...... 26 YLS Chairman’s Report ...... William G. Hancock 28 Chairman, Young 1985 Patrons ...... 32 Lawyers Section Committee Reports ...... 34 Richmond Memorial~ ...... 41

Editorial Staff

Charles E. Friend Editor The Virginia Bar Association Journal is published quarterly by The Virginia Bar Association as a service to the profession. Contributions are welcome, but the Bess Castle Wendell right is reserved to select material to be published. Publication of any article or Associate Editor statement is not to be deemed an endorsement of the views expressed therein by the Association. The office of publication is located at 3849 W. Weyburn Road, Rich- Vernon M. Geddy, III mond, Virginia 23235. Editor, Young Membership dues include the cost of one subscription to each member of the Lawyers Contributions Association. Subscription price to others, $10.00 per year; single copies $3.00. Second-class postage paid at Richmond, Virginia 23232.

@1985 The Virginia Bar Association (ISSN 0360-3857) (USPS 093-110) EVANS B. BRASFIELD

The Association was incorporated and shall exist for the purpose of cultivating and advancing the science of jurisprudence, pro- moting reform in the law and in judicial procedure, facilitating the administration of justice in this state, and upholding and ele- vating the standard of honor, integrity, and courtesy in the legal profession. (Constitu- tion of The Virginia Bar Association, Article II, Objectives).

IN my four years on your Association’s Executive Committee I have observed great progress in meeting Evans B. Brasfield graduated from the Uni- the objectives of the Association. During this period, versity of Virginia in 1954 and from its School under the leadership of Hugh Patterson, Jack Kay, of Law in 1959. He is a partner in the Richmond Jay Walker and George Grattan, the Association has firm of Hunton & Williams and is General vigorously rededicated itself to the goals of law Counsel of Virginia Electric and Power Com- reform and public service, and those goals have been pany and its parent corporation, Dominion the principal focus of Association activity. In these Resources, Inc. Mr. Brasfield has been a member of the Asso- efforts it was guided by the report and recommenda- ciation’s Executive Committee since 1981 and tions of the Long Range Planning Committee, chaired was its Chairman in 1983. He previously served by Bill Spong. That Committee not only urged ex- as Chairman of its Administrative Law Com- panded efforts in law reform and public service, but it mittee. He has been a member of the Council of also suggested that these goals would be more effec- the American Bar Association’s Section of Pub- tively promoted if the Association were to establish lic Utility Law, and he is a Fellow of the Ameri- permanent offices in Richmond, with a full-time can Bar Foundation. Executive Director. As you know, this new organiza- tion is in place and working very well. With it the Association moved quickly to modernize its legisla- tive policies and procedures so as to make its law may wonder what are my plans to sustain this reform efforts more comprehensive and more effec- progress. tive, it established a Public Service Committee to con- Activity in 1985 sider how it might appropriately expand its service to the public, and it embarked on a number of worth- First, we will continue at full speed with the law while new public service projects. reform and public service projects that have already The leadership of the Association has been abso- been started. Many of the substantive law commit- lutely first-rate during these years, not only through tees--particularly the Business Law Committee, the the Presidents mentioned above but also through all Civil Litigation Committee, the Criminal Law Com- of the able and creative members of the Executive mittee, the Committee on Legal Problems of the Committee, with the result that remarkable progress Elderly, the Mental Health Committee and the Com- has been made. It is indeed a great honor and privi- mittee on Wills, Trusts & Estates--have matters lege and, more importantly, a great challenge, to suc- before the 1985 General Assembly, and our emphasis ceed to the presidency under such circumstances. You on such legislative activity will continue. The recom-

2 mendations of the Public Service Committee that the State Bar, a law school dean, a justice of the Supreme Association prepare for public distribution a number Court of Virginia, and two distinguished practition- of law-related pamphlets--a Handbook for Virginia ers. Hugh Patterson will serve as Chairman. The Jurors, a Senior Citizens’ Handbook, a Handbook for other present mSrh~oers are Bill Spong, Tom Gordon Administrators of Decedents’ Estates, and others-- and Waller Horsley. It would, I believe, be impossible will be pursued, and the numerous public service proj- to improve on this initial membership for a committee ects of the Young Lawyers Section will go forward to promote lawyer professionalism, and we are very and be expanded. We have momentum in achieving fortunate that they have all.agreed to participate. the law reform and public service objectives in the I see the subject of lawyer professionalism as a Constitution, and that momentum will continue this major focus of our attention in 1985 and.beyond, and year. through the initiatives taken last year, together with But the Constitution states another objective, that the work of the Special Committee and any new proj- of "upholding and elevating the standard of honor, ects that grow out of that work, we should be able to integrity and courtesy in the legal profession." It make a substantial contribution. seems to me that now, perhaps more than ever, this is a subject deserving of greater attention. All of us have Summer Fun encountered newspaper and magazine articles expres- It would be out of keeping with this Association’s sing views hostile to our profession and commenting distinguished history if 1985 were to be all work and on the rise of commercialism and the decline of profes- no play. One of our finest traditions is that of having sionalism in the practice of law. We are aware of a good time with good people, and our serious pur- Chief Justice Burger’s speech to the American Bar poses need not stand in the way of preserving that Association last year severely criticizing the profes- tradition. I believe we can promise you that our sion for this trend (despite the fact that de.cisions of summer meeting will be great fun for everyone, and I his Court are thought by many to be a major contrib- suggest you mark your calendars now and plan to be uting factor to it). Even our own Chief Justice Car- at the Greenbrier on August 15-18. We have shifted rico, in his speech to the annual meeting of the Vir- from our customary July dates to avoid conflicting ginia State Bar last summer, expressed great concern with the Washington and London meetings of the over the rise of commercialism in our profession, American Bar Association. especially in relation to advertising by lawyers. Many We anticipate having a particularly interesting believe that Chief Justice Burger overstated his case, program at the summer meeting, and we are planning but the mere existence of severe criticism in high pla- a musical libel show in lieu of a banquet speaker. We ces, whether we agree with all of it or not, is cause for will have more details for you later, but you should serious concern. start planning now to attend. During 1984 the Association initiated several proj- Passing the Torch ects in an attempt to respond to some of these criti- cisms: a special committee chaired by Judge Jere M. I have already alluded to the quality of the leader- H. Willis, Jr. will consider what might be done to ship that the Association has had during my years on make the judicial process speedier and less costly; the the Executive Committee, but I must comment specif- Civil Litigation Committee is considering sanctions ically on the service given by those who are now step- to discourage frivolous lawsuits, frivolous pleadings ping down. George Grattan, of course, will be with us and delaying tactics; the Professional Responsibility for another year as Immediate Past President, and I Committee is considering guidelines for lawyer adver- will rely heavily on his experience and wisdom. tising; and a new committee of the Young Lawyers George has been an outstanding President, and it has Section will explore alternate dispute resolution. been a privilege to serve as his President-Elect. These projects are important, but I believe that the Jay Walker, the Immediate Past President in Association can and should consider more broadly George Grattan’s term, will retire from the Executive the state of our professional independence. To that Committee after six years of dedicated service. He too end, I have established a Special Committee on Law- has been a great leader, and we will miss him. Calvin yer Professionalism to consider the matter. The Fowler and Jim Jones, both of whom have enriched membership of that Committee is not, as this article the work of the Executive Committee during the last goes to press, complete, but it is off to an excellent three years will also be’ missed. The same is t~ue of start with the four members who have agreed to Paul Fraim, who retired as Chairman of the Young serve. They include three former presidents of this Lawyers Section after a year of great accomplishment. Association, one former president of the Virginia (continued on page 6)

3 JAMES A. EICHNER

Diversity Jurisdiction: An Idea Whose Time Has Not Gone

CHIEF Justice Burger said in the 1983 year-end admissible in federal court and inadmissible in state Report on the Judiciary that: court. Was it a bad thing for the workman’s widow "Diversity of citizenship cases now consti- and her lawyer to choose the federal court in order to tute more than 20% of the non-criminal fed- have the benefit of a rule which the United States eral caseload... Federal courts are too busy Supreme Court and both houses of Congress felt to be burdened any longer with cases brought desirable? Was it bad for Congress to give her this solely out of an historically based fear, choice? having some validity in 1789, that local bias Maybe in this Republic there are districts whose against citizens of another state might pre- federal judges struggle mightily but unsuccessfully clude a fair t.rial in a state court. Today arguments favoring retention of diversity with crowded dockets unrelievable by visiting senior jurisdiction largely are anachronistic." or active district judges transferred under 18 U.S.C. §1441 and surrounded by underworked state trial Few modern, forward-looking active trial practi- judges. Maybe there are districts where the reverse is tioners who have studied the question seem to agree. true. In some parts of Virginia, a trial date is obtaina- Many years ago, before Virginia adopted the fed- ble much quicker in federal than in state court. And eral discovery system in Part Four of our Rules of the appellate process moves much faster in the federal Court, a universally respected federal judge spoke courts. If one concedes the validity of the view that about real forum shopping: it was not terribly un- justice delayed is justice denied, is not this fact alone common, he told a convention of lawyers, for twin reason enough to retain the forum shopping option suits to be filed, one in a Virginia federal court, to take invented by the contemporaries of our founding advantage of the then vastly more liberal federal fathers? rules of discovery, the other in a state court. Upon One Virginia lawyer’s most recent experience on completing discovery, the plaintiff would discontinue comparative speed in final resolution of state law con- the federal action and proceed on to trial (or its door- troversies was this: step) in the state court. A gross abuse of Article III of (1) Suit filed in state court January, 1981. the Constitution? Not so, said this judge. Discoverers Final order in trial court entered December, of the truth were welcome in the courts of the United 1981. Writ of error granted December, 1982. States, whether or not they wished to stay on for trial. Oral argument on appeal heard January, Now our state courts have the federal rules of dis- 1985. Appeal decided March, 1985, more covery, but hot the federal rules of evidence. Many than four years after commencement of consider this feature of federal jurisdiction, which the action. Chief Justice surely does not call anachronistic, to be (2) Diversity suit filed in federal court No- a good one. Example: an engineer employed by the vember, 1982. Final judgment in trial court worker’s compensation carrier had written a detailed entered April, 1983. Oral argument on appeal report, with sketches and computation, explaining heard December, 1983. Appeal decided May, how, why, and because of whose negligence a railroad 1984, about 17 months after commencment of action. car had overturned. This opinion, and much else, was Of course the new Virginia Court of Appeals should speed up the appellate process for cases both within The Winter, 1985 issue of the Journal featured and without its jurisdiction. the article by M. Caldwell Butler and John D. One thoughtful student of the controversy recently Eure entitled "Diversity in the Court System: suggested yet another reason why, in Virginia at Let’s Abolish It." The following article by James A. Eichner presents a different view. least, diversity jurisdiction should continue. Until the state system permits appeal of right (with, of course, a

4 federal-type summary procedure for disposition of frivolous or other clearly non-meritorious appeals1), dozens of important questions of state law will not be authoritatively resolved because the Virginia Supreme Court so often denies appeals. In 1983, a total of 683 petitions for appeal in civil cases were filed in the Supreme Court of Virginia, and the Court that year granted 191 civil appeals, indicating a rate of about 26%’~. Where a federal forum is available, on the other hand, answers to novel questions of state law are readily available. The chance of having a point of state law authori- tatively determined appears about three to four times as great in the federal system. The argument that federal decisions "do not for- mally constitute precedent within the state system" is irrelevant. Such a decision is precedential even within the federal system solely because no solid state prece- dent holds formal sway. Thus it is of value to the state trial or appellate judge, who will give it the weight it is worth, just as he will refuse to apply state supreme court decisions distinguishable from the case at hand. This is part of what Caldwell Butler and John Eure call "cross-pollenization." Like them, I have trouble James A. Eichner is a member of Beale, Eichner, Wright, Denton & Balfour, P.C., in with the metaphor, but it is something that works Richmond. He is a graduate of Cornell Univer- awfully well. For example, the rule of Barnes v. Sears, sity and of the T. C. Williams School of Law of Roebuck & Co., 406 F. 2d 589 (4th Cir. 1969), and Sides the University of Richmond, where he formerly v. Richard Machine Works, Inc., 406 F. 2d 445 (4th taught federal jurisdiction and procedure. He is Cir. 1969), was expressly followed in Caudill v. Wise certified as a specialist in civil trial advocacy by the National Board of Trial Advocacy, and a Rambler, 210 Va. 11, 168 S.E. 2d 257 (1969), and Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E. 2d 900 member of the Association’s Committee on Civil Litigation. (1981), while the federal pollen emitted in Travelers Indemnity Co. v. Wells, 316 F. 2d 770 (4th Cir. 1969), was not allowed to fertilize our law in Bryant v. State Farm Mutual Automobile Ins. Co., 205 Va. 897, 140 S.E. 2d 817 (1965)¯ And the rule of Haynes v. Carr, 427 can be found the slightest suggestion that the new F. 2d 700 (4th Cir. 1970), was abandoned in Ajax judicial federalism required barring state-law litiga- Realty Corp. v. J. F. Zook, Inc., 493 F. 2d 818 (4th Cir. tion from the federal courthouse. 1972), as a result of the intervening state decision in On one thing we agree: it is (in the words of Messrs. John D. Kolbe Co. v. Chromodern Chair Co., 211 Va. Eure and Butler) "facially absurd" to suggest that 736, 180 S.E. 2d 664 (1971). state courts are "somehow incompetent to adjudicate This is not just cross-pollenization. It is federal obe- automobile accident cases or commercial disputes dience to state law, and it is practiced daily in every federal judicial circuit. Nor are they incapable of deciding such cases when Thus it is of little importance that federal "rulings an employee of the United States is a driver. State law cannot be directly reviewed by the state supreme applies under the Federal Tort Claims Act.5 court."3 Would it not be desirable to give jurisdiction over Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), such cases concurrently to the presumably more stands for several things, but not one attributed to it expert and less fully occupied state judiciary? Surely by Messrs. Butler and Eure" "State law questions if bias affects our state judicial system as little as should be decided by state tribunals." Nowhere in the Messrs. Butler and Eure contend, the United States opinion of Mr. Justice Brandeis or the concurring has nothing to fear from having claims against it opinions of Mr. Justice Reed and Mr. Justice Butler submitted to state judges who pay federal taxes.

5 And if the Attorney General of the United States occupational, and racial prejudice will motivate some shares the desire of the Chief Justice to shift routine Americans a lot of the time, even when they are under litigation from federal to state courts, at least in dis- oath to act differently. tricts where the former are overworked and the latter As stated only a few years after Erie: underworked, he could instruct all or selected United "When the rights of a litigant are dependent on the States Attorneys to file some civil cases in which the law of a particular state, the court of the forum must government was plaintiff in non-federal forums.6 do its best (not its worst) to determine what that law ~.The theoretical intricacies of threshhold federal is. It must use its judicial brains, not a pair of scissors jurisdiction issues raised by Strawbridge v. Curtis, 7 and a paste pot... U.S. (3 Cranch) 267 (1806), and its progeny, over "If the federal judges use the customary judicial which too many hours are spent in law school, are in process in determining and applying state law with fact practically not so difficult, as this loser in close respect to the litigating parties before them, it is quite diversity, federal question and ancillary jurisdiction possible that conflict may exist between a federal cases can attest. Do Strawbridge issues provide "a decision and a state decision .... We may not like goldmine" for litigators? Contingent fee lawyers, at such conflict; but it is an inevitable part of our judicial least, have not found the lode. process, or of any other. It is by such variation as this The wish to keep the federal deficit down despite that the evolutionary growth of law is possible. Each the 1984 act creating new federal judgeships is com- litigant, whether in the federal or the state courts, has mendable. Meanwhile, back at the statehouse, even a right that his case shall be a part of this evolution-- some federalism zealots bemoan the cost of increas- a live cell in the tree of justice...,,s ing the number of lehs handsomely compensated

state judges. FOOTNOTES Diversity proponents do not, as the Roanokers say, 1. See FRAP 34, Local Rule 7 of the Fourth Circuit, and Rule "predict disastrous consequences from shifting" diver- 5A:27 of the Rules of the Virginia Court of Appeals. sity cases. We simply say a tax dollar is a tax dollar, 2. 1983 State of the Judiciary Report at 48. 3. This situation is remediable, should this state desire it, by whether or not it is thrown across the Potomac. The enacting certification legislation like, say, that of Maryland and proposal to throw the baby out with the bath water West Virginia. Md. Code Ann., Court Article, §12-307; West Vir- will be disastrous only to a relatively few citizens ginia Code, §51-1A-3, applied, e.g., in Flannery v. United States, who, for technical reasons, suffer injustice because 297 S.E. 2d 433 (W.Va. 1982), 718 F.2d 108 (4th Cir. 1983). See Larry M~ Roth, "Certified Questions from the Federal Courts, 34 the forum-shopping which was their birthright has U. Miami L. Rev. 1 (1979). been withdrawn. 4. It is about as absurd to argue, as they do, that adding new Probably some of the arguments for and against judges to the federal bench is "bound to depreciate the quality of diversity jurisdiction have changed in the last 200 the federal judiciary." years, although an author cited by Messrs. Butler and 5, 28 U.$.C. §2674. 6. See, e.g., 28 U.S.C. §1345, 1339, 1348. Eure says arguments for and against diversity appear 7. Thomas D. Rowe, Jr., "Abolishing Diversity Jurisdic- to have "a repetitiveness that Professor David Currie tion," 92 Harv. L. Rev. 963, 964 (1979), quoting from David P: has likened to ’an Orwellian broken record.’’’~ Currie, The Federal Courts and The American Law Institute, 36 Probably Butler and Eure are right in their view U. Chi. L. Rev. 1, 5 (1968). Professor Rowe wonders "whether the unavailability of general diversity jurisdiction would entail that "bias is less a factor today than it has been in our unacceptable costs." 92 Harv. L. Rev. at 982. history." But even so--probably, at least through the 8. Arthur L. Corbin, The Laws of the Several States, 50 Yale lives of our children’s children--regional, religious, L.J. 762, 775-76 (1941).

Presidents Page Association well on the Executive Committee, and (continued from page 3) they will bring distinction to their new positions. We are fortunate, however, to have superbly quali- Billy Hancock has moved up to Chairman of the fied lawyers to take the place of those who are leav- Young Lawyers Section, and he is succeeded as ing. Andrew Miller, Tom Lawson and Bob McAllister Chairman-Elect by Chuck Lollar. There is no doubt will bring to the Executive Committee a wealth of that the Section will continue its prize-winning ways ability and interest, and I am pleased to welcome under their leadership. them. Ed Walton has been elected as President-Elect Your Association is well-situated to continue its and Gordon Smith has been chosen to be Chairman tradition of accomplishment. I will keep you posted on of the Executive Committee. Bot~-l~ve served the its progress. HOWARD FELLER

Guidelines for Contracting with HMOs and PPOs

IN recent years, the health care field has been char- ments, and past performance in controlling costs and acterized by spiraling costs, attempts to contain the making payments to providers. Providers also should cost increases, changes in the methods of delivering obtain additional information on (a) the number and services and increased competition between providers identity of other physicians and hospitals who will for patients. The recent growth of alternative health participate in the plan; (b) the standards for selecting care delivery plans, such as health maintenance and approving participating physicians and hospi- organizations ("HMOs") and preferred provider or- tals; (c) the degree of involvement and input partici- ganizations ("PPOs"), has been a direct response to pating providers will have in the planning and the public demand for more efficient and less costly administration of the program; (d) the medical serv- health care services. Alternative health care plans are ices that will and will not be provided to enrollees in designed to control health care costs by increasing the plan; (e) the nature of the quality assurance plan, price competition between providers and encouraging utilization review program and user grievance proce- providers to reduce utilization. At the same "time, they dure; (f) the details of the payment and risk sharing are intended to preserve or expand the provider’s arrangements; (g) how the plan will be marketed to patient base. In order to keep pace in this dynamic insurers, employers, employees and third-party pay- environment, physicians and hospitals have been ors; (h) the number and identity of the plan’s enrol- under substantial pressure to participate in HMO and lees; (i) the economic incentives that will be given to PPO plans. The, purpose of this article is to assist plan enrollees to make cost-effective choices, such as attorneys who advise physicians and hospitals by the use of co-payments and/or deductibles; (j) the offering guidelines for evaluating HMO and PPO financial stability of the sponsoring entity including contracts. its level of capitalization and financial projections; (k) The rights, responsibilities, obligations and liabili- the plan’s long range goals regarding enrollment, ties of providers participating in HMOs and PPOs are financial performance and expansion; and (1) the contained in a contract, which typically is drafted by nature and amount of the plan’s insurance coverage. the entity sponsoring the plan. Since the participat- Furthermore, the physicians and hospitals should ing provider agreement controls all aspects of the request the HMO or PPO to furnish them with copies relationship between the provider and the plan, phy- of its Articles of Incorporation and Bylaws, balance sicians and hospitals should not enter into such a sheets and profit and loss statements for the past 3-5 relationship until they have carefully reviewed and years, any contracts with health care sponsors or evaluated all of the terms and conditions of the payors, the individual evidence of coverage issued to agreement. The following discussion sets forth some enrollees, and any group contract issued to employ- general considerations for providers contemplating ers, unions or other organizations. membership in an HMO or PPO and a number of questions or comments on the specific provisions con- B. Specific Contract Issues tained in participating provider agreements. If the providers are satisfied with the management and operation of the HMO or PPO, the next step is to A. General Considerations examine thoroughly the various terms and conditions The preliminary step in analyzing the wisdom of of the proposed provider contract. As a general mat- participating in an HMO or PPO is to examine the ter, the key terms of participating provider agree- structure and function of the plan as a whole. Before ments are the services which are to be provided, the considering the terms of a proposed provider agree- fees which may be charged for the services, the pro- ment, providers should evaluate the entity sponsoring vider’s involvement in the quality and utilization the plan, including its background, reputation and review procedures, the resolution of disputes concern- experience, organizational structure and management, ing medical services and charges, and the basis and operations, compliance with state licensing require- .procedures for ~erminating the agreement. The fol-

7 c. Can providers collect directly from the patient?

4. If the payment to the provider is subject to a percentage withhold, can the percentage be changed unilaterally without the prior consent of the provider? 5. Are any fees or payments required as contribu- tions to the plan’s operating costs? a. Do providers have any other financial obliga- tions to the plan?

6. Who pays for the HMO’s or PPO’s administra- tive procedures such as concurrent review of prior authorization for elective hospital admissions?

7. Are patients responsible for any c~payments and/or deductibles?

8. What is the term of the contract? The initial term of the agreement should be short so that the providers can withdraw at an early date if dissatisfied.

9. What are the conditions and time limitations for termination? a. How long is the notice period? b. What are the provider’s obligations to the plan Howard Feller was awarded his B.A. degree and patients after termination? from the University of Virginia in 1975 and c. How is the provider paid for work done after received his J. D. degree from Georgetown Uni- termination? versity Law Center in 1978. He is an attorney A short termination period, such as 30 or 60 days, is with McGuire, Woods & Battle in Richmond, recommended because it allows providers an impor- Virginia. tant "out" if the plan proves unsatisfactory, either professionally or economically. lowing list expands upon these critical factors and 10. Does the contract request an exclusive arrange- suggests specific questions that should be asked ment which prevents the providers from participating before entering into the participating provider con- in other HMOs or PPOs? tract. However, this article does not attempt to state a. If so, what guarantees do providers have regard- the "correct" answers to all of these questions because ing the plan’s contracting with other competing providers must analyze the proposed contracts within providers? Contracts which do not require exclusivity are pref- the context of their own practice. Therefore, the pur- erable because they lessen the downside risk if the pose of the list is merely to identify the important plan does not meet the provider’s expectations. Of issues and factors that must be considered. course, the ability of providers to enter into additional 1. What services do providers have to provide to the arrangements will depend on their work load under HMO or PPO? the plans they have contracted with, as well as possi- a. Can providers furnish these services directly or ble exclusive membership requirements of other plans. are subcontracts necessary? 11. What are the procedures for referrals to non- 2. What physicians, hospitals and ancillary serv- contracting physicians, hospitals and ancillary serv- ices are available for the care of patients enrolled in ices? the plan? a. Are there any limitations on referrals? a. What is the total scope of services offered to the b. Are referrals limited to contracting laboratory plan enrollees? and x-ray facilities? 3. What are the terms of payment? 12. Are there any limitations on the physician’s a. How is the provider’s fee schedule or reimburse- coverage arrangements? ment level determined? b. What is the procedure f0~ filing claims and 13. Are there any limitations on or requirements receiving payment? for patient hospitalization?

8 14. Does the contract limit the provider’s judgment a. Who establishes the procedures? ~ind decisions regarding the involvement of a consult- b. What role do providers play in this process? ing or assisting physician? c. Who will conduct the review process? 15. Does anyone other than the participating phy- d. Can the procedures be changed without the con- sician make quality of care determinations? sent of the providers? 16. What obligations do providers assume if their 23. How are disputes resolved? patients are seen by other providers covering for a. What rights do providers have to participate in them? the dispute resolution procedures? 17. Do providers have to accept all referral patients? 24. What types of information will be collected a. Can providers terminate services to a plan about the participating providers? enrollee? a. How will the reports be used by the plan to con- trol costs? 18. What are the medical policies of the HMO or PPO? 25. What will the HMO or PPO do to increase the a. Who establishes them? provider’s patient load? b. Do providers have any input in establishing the 26. What are the requirements for the malpractice medical policies? or professional liability insurance carried by pro- c. Can the medical policies be changed without viders? prior notice to and the consent of the providers? a. Are the providers required to indemnify and hold 19." Does the contract contain any definitions of the plan harmless? "medical necessity" or similar standards? Indemnification and hold harmless provisions are a. Who establishes the standards? not advisable because most professional liability in- b. Can they be changed without the l~rovider’s surance pblicies do not cover such contractually consent? assumed liability. 20. Does the contract change or amend the provid- 27. Does the contract permit on-site ~eview to be er’s existing standard of care? performed in physicians’ offices? a. What are the applicable procedures? 21. What are the details of the utilization review procedures? 28. What are the provisions for access to the pro- a. Do they include prior authorization for certain vider’s medical records? services, concurrent review and/or retrospective 29. Does the contract require maximum or min- review or denials? imum caseloads for the providers? b. How are the procedures established? 30. Are participating physicians required to be c. Who will review and monitor compliance with available 24 hours a day? the procedures? d. What is the procedure for obtaining prior authori- 31. Does the contract permit the provider’s name to zation? be used in marketing and advertising activities? e. Can the utilization procedures be changed with- In conclusion, when considering participation in an out the consent of the providers? HMO or PPO, physicians and hospitals .should f. Do providers have any input in establishing and closely scrutinize the organization and functions of monitoring the utilization review procedures? the sponsoring entity as well as the specific terms and g. Are there any procedures for appealing utiliza- conditions of the proposed agreements. By asking the tion review decisions and refusals of medical treat- questions set forth in this article, providers will ment authorization? obtain the information they need to make an edu- 22. What are the procedures for peer review and cated decision whether to participate in an HMO or user grievance? PPO. REILLY MARCHANT

Virginia’s Equitable Distribution Statute: What Does It Really Mean and Where Do I Start?

ALTHOUGH Virginia’s new Equitable Distribution purpose of the Equitable Distribution Statute’s mone- tary award, as understanding the purpose of such an Statute is only two and one half years old, it has award and actually obtaining it are two very distant already been discussed and written about at length.1 cousins. The remainder of this article will address However the primary~:focus of previous .discussion only the more distant of the two, obtaining the award. seems to have been the statute’s legislative history, The statute provides, "upon motion of either party the needs it addressed, its overall purpose, and even to the Court shall determine the legal title as between some extent what it can and cannot do. While all of the parties and the ownership and the value of all real those issues are necessary and vital to a complete and personal property of the parties and shall con- understanding of the statute, this article will not sider which such property is separate and which is attempt to cover the same ground. Rather, this article marital property." Consequently it is going to be will attempt to address the concerns of the general necessary for one of the parties to file a separate practitioner in translating this new statute, and its motion with the Court requesting that such determi- lofty goals, into practical usage and application, i.e., nation be made as well as requesting the Court to what does it really mean and where do I start. determine the amount and method of payment of any The Equitable Distribution Statute, 20-107.3, creates monetary award warranted under 20-107.3(e). A num- a new avenue for monetary relief for the dependent ber of Courts around the state are also requesting a spouse.2 Not only can the dependent spouse now look sketch of a decree of reference with the motion so that for an award of spousal and/or child support, but also the matter can be heard first by a commissioner. This an additional monetary award based upon the in- appears to be the general practice in Roanoke and equitable ownership of something called marital Norfolk’, and to some degree in Richmond, while property.3 Because Virginia is a common law state in Alexandria appears to be hearing the majority of its approach to property ownership, the spouse who such cases in Court without the use of commissioners. buys the property usually owns the property. Conse- In any event, counsel should simply check on the quently the spouse who produces-~ll or most of the procedure then being used by the applicable Court. income will also own all or most of the property. In preparation for such a hearing, information can Because this can and often does lead to a vast differ- be gathered from the client and opposing counsel as ence in property ownership, the Equitable Distribu- to all tangible and intangible personalty and all real tion Statute came to the dependant spouse’s rescue in property owned either jointly or individually by both July 1982. This statute allows the Court to make a spouses. The origin of each spouse’s ownership should monetary award to the dependent spouse as an offset also be obtained in order that the property can later against the inequitable ownership of marital property be classified as separate or marital as the statute by the other spouse. Instead of actually dividing the defines those terms. If counsel cannot agree to pro- non-jointly titled marital property between the spouses vide each other with property lists detailing such. as in community property states, our statute limits properties and their origins, then discovery can ac- such property division to a monetary award. The complish the same objective. In either event it is Court thereby has the ability to do indirectly by necessary for the Court and/or commissioner to know monetary award what it cannot do directly, i.e., dis- which spouse owns which properties and of that tribute the non-jointly titled marital property itself. property which is separate and which is marital. In Rather, the Court is to use the marital property as a addition, values must be placed on all the property so basis for making a monetary await on equitable con- totals for each spouse’s separate and marital property siderations.4 Enough said towards understanding the

10 can be calculated. This nuts and bolts sort of listing and calculating is vital to obtaining a monetary award for without numerical totals for each spouse’s marital property the Court will lack a solid basis upon which it might equitably allocate by monetary award. While discovery techniques are certainly available to accumulate this information regarding property ownership, its origin and its value, cooperation between counsel certainly makes this job a lot easier. The most practical approach is simply to begin by having counsel agree to have much of the property valued by expert appraisers. As to personalty, this can be accomplished by a simple walk through of the marital home and/or other place or places where per- sonal property is located. The detailed list which will be produced can then be used not only for establish- ing values but also as having accomplished that painstaking chore of putting together such a list in the first place. The cost of such appraisals, as well as real estate appraisals, shouldn’t be more than two to four hundred dollars, a cost that shouldn’t be prohibi- tive with both parties paying an equal share. Values of stocks, insurance, individual retirement accounts, Keogh’s, etc. are even more readily apparent and Reilly Marchant received his B.S. degree in counsel should be able to agree on values without the Business Administration from Georgetown Uni- costs of formal appraisals.~ After having the apprai- versity and his J.D. degree from the T. C. Wil- sals done, much of the tedious and difficult listing is liams School of Law of the University of Rich- done and counsel only need add to the lists other mond. He clerked for Circuit Court judges for properties not formally appraised. the City of Alexandria and is now a partner in Having compiled these lists, a determination must the Richmond law firm of Francis, Hubard, Tice & Marchant. Mr. Marchant teaches Domestic be made as to which spouse owns which property and Relations at the University College of the Uni- of that property which is marital and which is separ- versity of Richmond in the Legal Assistant ate. With diligence, and the threat of unending hours Program. of terminally boring testimony before the Court and/or commissioner, counsel should be able to agree on the majority of the properties’ ownership and clas- include complex and confusing tracing problems sification and thereby draft four separate lists of which may unravel the patience and tempers of not spousal property for presentation to the Court and/or only counsel and clients, but also the Court and/or commissioner by way of stipulation. These lists would commissioner. With the use of stipulated property be (1) Husband’s marital property list with corre- lists, the Court can easily see which spouse has the sponding values and liens, if any, assigned to each greater marital property estate in terms of total dollar item; (2) Wife’s marital property list with corre- value and the Court will then be free to begin hearing sponding values and liens, if any, assigned to each evidence and considering the remaining factors of 20- item; (3) Husband’s separate property list with values 107.3(e). If the Court and/or commissioner and coun- and liens, if any, assigned to each item; and (4) Wife’s sel spend the majority of their time, effort and separate property list with values and liens, if any, patience simply deciding who owns what, its value assigned to each item. These lists can simply be and its classification, the remaining factors and con- moved into evidence at the beginning of the hearing siderations listed in 2(~107.3(e) may well get side- and the Court and/or commissioner should be a lot tracked or even overlooked. Keep in mind that once easier to work with from that point forward. As to ownership, classification and values have been estab- those items that cannot be agreed upon as to either lished, the Court or commissioner must still hear evi- their ownership, classification or value, evidence will dence and consider the six or seven remaining factors have to be produced. However, keep in mind the type listed in the statute, including the circumstances lead- of evidence that is necessary here will probably ing to the dissolution of the marriage and the

11 "homemaker" considerations (20-107.3(e)(1-4)). Con- tainly such a finding provides a strong case for an sequently it seems clear that as much use as possible even or near even split of the difference in the parties’ should be made of the stipulated property lists. marital estates. This is not to say that the remaining In deciding how to equitably allocate the marital factors of the statute are not to be considered, for the property by monetary award, the obvious temptation statute says that the award "shall" be determined for counsel and the Court is to make a monetary after consideration of the "following factors." This award to the dependent spouse in an amount which clearly implies, if not directs, that the Court must at would simply split the difference between the two least consider all of the factors listed in section (E) of marital property estates. For example, if the hus- the statute. The most notable among those remaining band’s marital property totaled $200,000.00 and the is factor number five, "the circumstances and factors Wife’s marital property totaled $100,000.00 the easiest which contributed to the dissolution of the marriage, -resolution would be to simply award the wife a mone- specifically including any ground for divorce." Note tary award of $50,000.00 (one half of the difference in that this factor is not limited to evidence which would marital property). However, what must be kept in provide grounds for divorce, but instead allows evi- mind is that the statute calls for an "equitable" dis- dence of a much broader nature including any and all tribution and not necessarily an equal or even distri- "circumstances contributing to the dissolution of the bution. Therefore in order to decide how equitable any marriage" regardless of whether such circumstances such distribution should be the Court need look at the would be of sufficient magnitude to provide, grounds remaining factors listed in the statute. Although the for divorce. Obviously this part of the statute opens statute appears to require the Court to examine all the door for countless charges and counter-charges by eleven factors, the weight to be attached to each fac- the parties and exactly what weight this evidence will tor is largely discretionary.6 In deciding which of the carry is uncertain. However, because the monetary eleveh factors should be given the most attention, it award is, as the statute says, to be "based upon the must be kept in mind that the statute originated out of equities and rights and interests of each party in the the concern for the inadequate way Virginia’s com- marital property"’~ ~ (emphasis added) it appears that mon law approach to property ownership forced the this fault factor should not play a very significant dependent spouse to share in non-jointly held marital role in any equitable distribution.~ However, because assets only through a spousal support award. This the statute includes it, diligent counsel would proba- was the case irrespective of the contribution each bly be remiss in not pursuing any such evidence to the spouse may have made over the years to the well- fullest extent necessary to further his or her client’s being of the family and the acquisition and mainte- best interests. nance of the marital property.7 Because the statute At this point a word should also be said about fac- was enacted to allow the Court to recognize marriage tor number seven, "the debts and liabilities of each as a true partnership and thereby recognize the con- spouse." While clearly this factor need be a considera- tributions, both monetary and non-monetary, each tion, the ~tatute is not clear about how or where the spouse may have made over the years,8 the home- Court and/or commissioner should consider the par- maker provisions in the statute, (20-107.3(e)1-4) appear ty’s debts. For example if the husband’s marital es- to carry the greatest weight.9 In a divorce action tate surpasses the wife’s by $100,000.00 but the hus- recently heard by the Circuit Court for the City of band has debts of $40,000.00 over and above any liens Richmond, Division I, in which the Court utilized a on his marital property, and the wife has virtually no commissioner for the issues relevant to equitable dis- debts, should this $40,000:00 of the husband’s debt be tribution, the commissioner’s report noted: deducted from the amount his marital estate sur- passes the wife’s marital estate? Or should the full Whenever a couple voluntarily adopts a fam- amount that the husband’s marital estate surpasses ily life wherein the primary obligation of one is monetary and the primary obligation of the wife’s be considered for equitable distribution and the other is non-monetary and where this the $40,000.00 in debt simply be "a factor" to be con- lifestyle continues until the final breakdown sidered along with the other factors? The statute is of the personal or marital relationship your certainly not clear in this regard and the Virginia commissioner is of the opinion that each Supreme Court has not yet ruled on the subject.~3 deemed the contributions of the other satis- There is case law in community property states factory and generally equal in value.~° addressing the issue of whether or not marital debts This finding by the commissioner illustrates the cen- should be allocated among the parties as part of the tral role of the "homemaker provisions" in any con- overall property division. (See In Re Marriage of sideration of the equities between the parties, and cer- Johnson 299 N.W.2d 466 (1980); N.J.W.v.W.E.W. 584

12 S.W.2d 148 (1979)). But because Virginia’s statute the marital property," 20-107(e)11 allows considera- only allows non-jointly titled property division by tion of such other factors as the Court deems "neces- monetary award, these cases will provide only analo- sary or approp_n_’_ate" in order to arrive at a fair and gous reasoning at best. The issue is mentioned here equitable monetary award. Consequently, if the de- simply to alert counsel to this uncertainty and the pendent spouse with a smaller marital estate has a potential arguments regarding same. separate property estate which is much larger than Factor number eight of the statute allows consider- his or her spouse, an argument might be made that ation of the present value of pension or retirement this separate property should be considered by the benefits. Consequently it will be necessary to employ Court in determining m~netary award. However, an actuary or other qualified individual to calculate because the statute’s origin and purpose seem to this present value, taking into consideration not only address only the equitable ownership of marital prop- the specific data on the pension plan, but also the erty, any such argument regarding the extent of length of the marriage and the portion of the pension either party’s separate property would more likely be which has accrued during the marriage.14 Once this influential at a spousal and/or child ~upport hearing present value is determined, it can then be added to than with an equitable distribution award. Nonethe- that spouses’s marital property list as marital prop- less, the point is raised here for consideration until erty which can be distributed by monetary award. our Courts have given more guidance in the area. Note however, that any portion of the award which is Regarding the hazards of proving and claiming based upon this present valu.e of pension benefits ownership of too much marital property, keep in mind cannot begin to be received by the dependent spouse that while your client might initially be happy with until and as the party against whom such award is the artful and persuasive manner in which you con- made receives said benefits. For example,’if the Court vince the Court and/or commissioner that the major- awarded the dependent spouse a lump sum award of ity of the property belongs to your client, he or she $100,000.00, $25,000.00 of which was based on the might later decide that they don’t want to own so present value of pension benefits, the dependent much property when they see the tremendous gap it spouse could receive $75,000.00 of the $100,000.00 might create between their marital estate and that of award at the time of the award. However, the remain- their spouse. Remember that the marital property is ing $25,000.00 of the award could not be received by going to be equitably allocated by monetary award the dependent spouse until and as the pension bene- and the spouse whose marital property estate is the fits are actually paid. This remaining $25,000.00 largest is going to be the one from whom this equita- c~uld be paid to the dependent spouse by awarding ble allocation is most likely going to take place. one-half of each and every pension benefit payment Therefore, claiming and proving ownership now to the dependent spouse until $25,000.00 had been might well cause your client to pay for it later. paid. At that point, the dependent spouse would have In closing, it seems only appropriate to say that no more claim to pension benefits. Obtaining this while obtaining an equitable distribution award from present value of pension or retirement benefits and the Court will sometimes be an "only alternative, it is including same as marital property can form the hoped this article will instead help facilitate settle- basis for a major portion of an overall monetary ment. If counsel is better able to arrive at an under- award. This factor should not be.overlooked in any standing of each party’s marital estate, its value and equitable distribution analysis. thereby the difference that need be equitably allo- Two final points that should be mentioned are (a) cated, counsel should also be better able to arrive at the role of each party’s separate property in any their own equitable distribution settlement. The costs equitable distribution; and (b) the hazards of claiming in time and money in obtaining the award through ownership of too much marital property. In regard to the Court appear to be enormous and certainly the separate property, remember as discussed above that client and Court would be better served through dill- four separate lists of spousal property should be gent effort by counsel in attempts to settle. drawn up. Of these four the husband’s and wife’s marital prope~y lists can form the initial basis or FOOTNOTES starting point upon which an eventual equitable dis- 1. For an exhaustive and interesting article on the subject tribution can be made. However, counsel should not see: 17 University of Richmond Law Review 347 et seq. forget the parties’ separate property lists which might 2. The term "dependent spouse" will be used herein to refer to the spouse who is primarily non-income producing. also be used as a tool of ad~iocacy in the overall 3. Marital Property as defined in 20-107.3(A)(2) "(i) all prop- determination. While the statute bases its award on erty tiffed in the names of both parties, whether as joint tenants,

"the equities and rights and interests of each party in (continued on page 20)

13 WILLIAM H. DAUGHTREY, JR. CHARLES H. SMITH

Judges’ Views on Medical Malpractice Review Panels

Introduction The judge does not vote in selecting the Opinion WHEN an attorney wants a quick evaluation of his unless there is a tie vote among the other panelists.5 client’s allegations of medical malpractice, he thinks Nevertheless, he has various and important duties. of review panels. When he must defend a physician or As chairman, he designates a particular clerk’s office other health care provider against such allegations, in his circuit to which process is returnable;~ he exer- he remembers that panels are designed to encourage cises his discretion as to the taking of depositions of abandonments of frivolous claims and settlements of the parties and witnesses;7 he has the responsibility others. If a jury determines whether the conduct of a of ruling on the admissibility of all or any part of a provider fell below acceptable standards, the panel’s deposition offered as evidence at the panel hearing;8 opinion may be a part of the evidence that it consid- he advises the panel "relative to any legal question ers. The pahel route has been available in Virginia involved in the review proceeding;’’9 if the chairman since 1976.~ Many attorneys have participated in the finds that extraordinary circumstances exist, he will panel process either as advocates or panelists. Some extend for up to ninety days the duration of the panel attorneys and physicians believe that panels reduce treatment which ordinarily must not exceed six the number of medical malpractice suits filed, re- months;~° he sets the date for the hearing; and finally strain the costs of resolving disputes, and screen he prepares the Opinion for the signatures of the vot- claims in a way that is fair to both sides. Others dis- ing panelists.~ agree pointing out that panel consideration delays The panel system--when successful--alleviates access to a jury and adds to the cost of dispute resolu- some of the burden of trial courts by bringing about tion when litigation follows. pretrial settlements and abandonments of non-meritor- Our purpose is to present findings based upon sur- ious claims. To foster this goal the Opinion is admiss- vey responses from the judges who are most directly ible evider~ce in any action subsequently brought by involved in the administration of the panel system. the claimant in a court of.law.~2 While the Opinion is Circuit court judges, both sitting and retired, serve as "binding upon no one,’’~.~ its admissibility encourages panel chairmen. Prior to July 1, 1984, only sitting claimants and providers to prepare the evidence thor- judges could be panel chairmen, but now they share oughly for the panel hearing. It is theorized that such such duties with retired brethren. Presiding over pan- preparation at an early stage promotes abandon- els is obviously an unusual role for a Virginia judge ments of non-meritorious claims and compromise set- whose service is normally required only after suit has tlements. However, there is no available and collecti- been filed. ble data that will allow one to know how many malpractice claims end without filing suit. Nor can The Process one know how often a court determination is consist- A Medical Malpractice Review Panel can be re- ent with the panel Opinion that preceded it. quested by either the claimant, the health care pro- It is time to assess the merit of the Virginia panel vider, or both of them. Upon request, the Chief Justice system now that it has been in operation for over of the Supreme Court of Virginia will appoint seven eight years. Between July I, 1976 and June 30, 1983, panelists to consider the claim.2 Each panel is com- the Chief Justice appointed 696 panels that handled posed of three lawyers and three health care providers claims against over 1400 health care providers. For in addition to the judge-chairman.3 At the conclusion the panel year 1983-84, he appointed an additional of the panel’s deliberations, it renders a written opin- 178 panels.14 We project the appointment of approxi- ion (Opinion) as to the issues of malpractice and prox- mately 215 panels during the current year.15 The imate cause.4 benefits from these appointments are difficult to

14 determine in the absence of data allowing a statistical Summary of Judges’ Views analysis of the effect of panels on litigation.16 Under The responses have been collated and are reported these circumstances, the views of participants such as below in a four~pa~t summary: judges, practicing attorneys, and panelists are an Part 1: Specific features of panels in operation. important source of information from which to draw conclusions as to how well panels operate in practice. Part 2: Written form for the Opinion. We have surveyed one of these groups, judges, to Part 3: Use of the Opinion at trial. obtain information and views as to the operations Part 4: General assessment of the panel system. and effectiveness of the panel system in Virginia.17 Judges who serve as panel chairmen, more than Features any other group, can pro~,ide insight into whether In designing and operating the best possible panel benefits of operating panels outweigh the burdens of system, the legislature must allow enough time to maintaining the system. Chairmen observe how the prepare for the hearing and, at the same time, provide panel system operates. Their collective assessment against too much delay at the panel level. Obviously, deserves attention to determine whether or not panels balancing these competing factors is difficult for leg- have accomplished the goal of preventing costly and islators in designing panel statutes and for a chair- unnecessary litigation of medical malpractice claims. man in managing the progress of a malpractice claim Their experiences and views are important to an before a particular panel. overall evaluation of the system. Moreover, percep- One way to expedite the rendition of an Opinion is tions of an individual chairman as to the main pur- to avoid a hearing which requires the presence of the pose(s) of panels generally may mean the difference chairman, six other panelists, the attorneys for the in the success or failure of a particular panel. Success parties, and often also the claimant and the prospec- lies not only in the prevention of litigation, but also in tive defendant. In addition, the hearing must be set using the panel to bring about a prompt resolution of on a date convenient to expert witnesses, whose tes- the malpractice dispute by abandonment or settle- timony is common. In view of having to assemble a ment by the parties. Different attitudes as to the minimum of nine persons (usually more) for an ore attributes of speed in the panel process and contain- tenus hearing, two-thirds of the judges felt that pan- ment of the number of medical malpractice court suits els could often render opinions based on submitted will be reflected in a chairman’s rulings on some written information such as doctors’ notes, deposi- motions that will delay if granted the rendition of an’ tions, and written reports of expert witnesses-- Opinion by the panel, especially motions with regard without testimony of witnesses or oral presentations to discovery and requests for up to ninety days addi- by counsel. tional time between appointment of the full panel and However, an ore tenus hearing is often requested by the hearing.’~ The panel chairman is in a position to at least one of the parties whose request must be encourage the numerous panel participants to make honored under the law.2° Many of these hearings minor sacrifices to schedule the hearing on the earli- amount to mini-trials. Of the sixty chairmen-judges est practicable date. responding to our question about events at panel Judges’ views are important because of discretion hearings, almost three-fourths of them indicated that Chairmen exercise that speeds up or slows down the attorneys always present opening and closing state- panel process, and also because judges can evaluate ments. Thirty-five percent indicated that attorneys the system more objectively than either plaintiffs’ or always offered expert witnesses in the panels they defendants’ attorneys. These considerations led to our had chaired; an additional fifty-two percent indicated survey of the 117 iudges who sat on circuit courts in that expert witneses sometimes testified. Sixty-three Virginia on January 1, 1984.’9 percent of the respondents said attorneys had some- Sixty-four of the 117 judges responded, and sixty of times presented information from textbooks, journal these respondents had chaired malpractice panels. articles, and like materials. At least three-quarters of These sixty will be referred to hereinafter as "the the judges hadsometimes experienced the presence of judges" or "the chairmen." They had served on the a court reporter: A similar percentage had expe- bench an average of nine years, with their tenure rienced the taking of at least one deposition prior to ranging from just under one year to more than twenty the panel hearing. However, almost all of the chair- years. Over eighty percent of them had chaired from men who had experienced the use of depositions felt three to ten panels. Further, twelve of the judges had they were sometimes helpful to the panelists. presided over a total of twenty-five medical malprac- The judges agree that panelists understand their tice trials. function. One hundred percent of the chairmen re-

15 b. to assist provider panelists in understanding the applicable law: .. 62% c. to help insure that the Opinion is based on material, trustworthy evidence: ...... 63% d. to add balance to a panel that includes three health care providers: ...... 75%

Although the judges’ assessment indicates that pan- elists perform an important role in a commendable manner, thirty-five percent of the chairmen reported some difficulty in obtaining the cooperation of both attorney- and provider-panelists who had been desig- nated to serve. Most probably, the lack of cooperation is due to the often demanding schedules of most attorneys, physicians, surgeons, hospital administra- tors, and other prospective panelists. The problem appears to be one of difficulty in scheduling these people at one time in one place for the hearing. Other instances of reluctance to serve may arise from an individual’s disenchantment with the panel system in theory or in practice,or simply because he believes he has performed his fair share of pro bono work for the year.21 William H. Daughtrey, Jr. is Associate Pro- Our survey asked about procedures both before and fessor of Business Administration and Man- after the hearing. Seventy-seven percent of the judges agement, in the law area, at the School of Busi- ness, Virginia Commonwealth University. He do not hold an orientation meeting for panelists, and received his B.S. degree from Hampden-Sydney eighty-five percent have no written instructions or College and his J. D. from the University of information sheet for attorneys who will be represent- Richmond. He is a member of The Virginia ing clients before a panel. The few judges who do pro- State and American Bar Associations, and of vide orientation guidance report that their pre- Phi Beta Kappa. He is the Executive Director of hearing efforts expedite the proceedings significantly. the Mid-Atlantic Regional Business Law As- Subsequent to the hearing only eight percent of the sociation. judges informally discuss the reasons for the panel decision With the parties. Only eighteen percent of the judges felt that such discussion was appropriate, plied that lawyer-panelists understand their obliga- while seventy-two percent felt it was not. Apparently tions. A mere three percent of the judges had doubts those supporting post-discussion feel it is appropriate that provider-panelists understood their function. The to lessen the prospect that suit will be filed. judges responded to two questions as to the function The questionnaire also afforded judges an oppor- of panelists as follows: tunity to comment on whether any section of the panel statute was ambiguous or difficult to apply in a Would you describe the function of Health clear manner. Seventy-three percent reported no prob- Care Provider panelists as comparable to that of lems in this regard. Nine judges, or a significant fif- teen percent, did not respond to the inquiry giving no a. jurors? Yes: 70% No: 23% No response: 7% reason for their silence--perhaps indicating a re- b. expert witnesses? strained distaste for the screening process. Among Yes: 78% No: 15% No response: 7% the twelve percent who indicated a particular problem What do you feel is the function of the section, only Section 8.01-581.2 was mentioned as attorney panelists at the hearing and during many as three times. These three judges may be regis- deliberations? tering a mild protest against the whole process by [Yes] reference to Section 2 which requires the claimant to a. to determine both questions-of law notify in writing the provider before filing suit, pro- and fact: ...... 55% vides an opportunity for either the claimant or the

16 provider to request a panel, allows for timely rescis- sion of a panel request, and instructs the Chief Justice to notify both parties of his determination on a request for panel appointment.’~2 None of these proce- dures appear to require action by panel chairmen. Regardless of the reason for three judges’ concern over this Section, judges generally report no signifi- cant difficulties in applying any single provision of the statute in performing their duties as Chairmen.

Written Form We turn now from views of the judiciary reflecting panel operations generally to the writing that repre- sents the panel’s Opinion. No particular form for the Opinion is prescribed in the statute’~:~ or in the Medical Malpractice Rules of Practice promulgated by the Chief Justice?4 Our perusal of closed cases found great variation in the writings furnished by various Chairmen, ranging from a separate page for each panelist with each of the four opinions typed for sig- nature beside his choice, to a handwritten Opinion on a page from a legal pad with a statement of the Opin- ion and the signatures only of the panelists compris- ing the majority.2~ Charles H. Smith is Assistant Professor of Perhaps in the future the form should be prescribed Management Science in the School of Business, in the Malpractice Rules, if not in the statute itself. Virginia Commonwealth University. He holds a The writing is admissible evidence in any subse- Ph.D. in mathematics from the University of quently brought action.26 A form should be developed Maryland, an A.M. from the University of Mich- and used that will clearly indicate to a jury the igan, and an M.B.A. from the College of William strength of the Opinion, the professional affiliation of and Mary. Prior to his teaching, he was an each panelist who signed, and how each signatory Operations Research Analyst for the Depart- ment of the Army, Ft. Lee, Virginia. voted. Judges were asked to note what they required in the way of signatures on both unanimous and split Opin- ions. One question and a summary of the answers and cause, malpractice but not about signatures is set out below. We are not certain cause; or only factual issue; of the reason, but only eighty-three percent appear to and each panelist must sign ...... [68%] require signatures on a unanimous Opinion. Signa- d. None of the above ...... [ 7%] tures of panelists comprising the majority appear on In response to another question about the form of the all of the more than 800 Opinions we have read.27 The Opinion, the judges report that a dissenting panelist statute is clear that the Opinion shall be in writing is identified as either an attorney or a provider on and signed by all panelists who agree with it; a dis- slightly less than half of the split Opinions. senting panelist may (and usually does) note his dissent.~s Opinion as Evidence Please describe your policies regarding the The written Opinion is admissible evidence in any form of the panel finding by checking as action subsequently brought by the claimant. How- many of the following as apply: ever, it shall not be conclusive, and a party has the [Yes] right to call any non-judge panelist as a witness to a. Unanimous/All panelists must sign ...... [83%] appear and testify.29 b. Not unanimous/Only majority One test of the effectiveness of the panel system is panelists must sign ...... [15%] the degree of reliance that the trier of fact, usually a c. Not unanimous/All panelists jury, places on a unanimous or a split Opinion. Only must note choice of opinions; twelve judges could address this matter based upon (no malpractice, malpractice personal experience from presiding at medical mal-

17 practice trials. Four judges responded to questions real" difficulties for their staffs, and another twenty- concerning the use of panel evidence at trials to the five percent indicated that some difficulties had been court only. All four indicated that the panel findings created for their staffs. carried moderate or great weight with them. All four One of the goals of the panel system is to reduce the also reported that the attorneys attempted to discount. amount of litigation of malpractice claims. Fifty-three the panel finding by offering new evidence and new percent of the judges believed that panels led to more theories. pre-trial dispositions. Twenty-two percent disagree, Twenty cases were tried to a jury in trials presided with the remainder not responding to the question. over by these judges. With regard to twelve cases in Greater disagreement exists concerning whether the which the panel finding was unanimous, judges indi- system led to earlier pre-trial disposition. Only thirty- cated that in seven cases the panel findings seemed to eight percent of the judges felt the system led to ear- carry great weight with the jury. In another three lier pre-trial dispositions with twenty-eight percent cases the panel findings were classified as carrying taking the opposite view, and thirty-three percent moderate weight. In two cases the findings were apparently believing they were not in a position to believed to have had minimal effect on the juries. In express an opinion. eleven of these twelve unanimous-opinion cases at- The judges were asked to provide their assessment torneys attempted .to discount the panel findings by of whether the panel system overall brought suffi- offering new evidence and additional theories. Even cient benefits to outweigh the burdens that it creates. when the panel finding was not unanimous, the Opin- Based on the thirty-six judges responding to the ques- ion was perceived as carrying substantial weight tion, seventy-two percent expressed support for the with a jury. For the six cases reported for split panel system while twenty-eight percent felt the system was opinions, the judges felt the panel finding carried not helpful. The question on benefits vls-a-ws burdens moderate Weight in five trials (83%). In all six of these was asked only of those who had indicated that’pan- split-opinion cases attorneys also tried to discount the els result in more or earlier dispositions of medical panel findings. malpractice claims. Attitudes toward the system were independent of the number of panels the judge had General Assessment chaired. We have examined some operational features of the It was hypothesized that judges with the longest panel system and considered the effect of panel find- tenure would look less favorably upon the panel sys- ings as evidence at trial. We move now to the judges’ tem, but, in fact, there was no significant difference comments regarding the general assessment of han- based upon years on the bench. Although the samples dling medicdl malpractice claims via the Virginia were small when divided according to time in office, panel system. By a two-to-one margin the judges indi- judges who were first appointed between 1974 and cated that all panels they had chaired had been able I978 demonstrate by far the most favorable reaction to render an opinion within six months of appoint- to panel~ (16 to 2) as spurring pre-trial resolutions of ment. Among the grounds given as good reasons for malpractice disputes. Those appointed from 1979 to extending the six-month period were illness of a par- the present split evenly (7 to 7) as the group that ticipant and the need for extra time in order to find a viewed panels the least favorably. The pre-1974 mutual,ly agreeable hearing date for all panelists, appointees by a 9 to 4 tally supported the notion that witnesses, the parties and their counsel. Also men- panels foster pre-suit dispositions. tioned was the need for additional time for adequate The judges were also given the opportunity to share discovery and other preparation, including the find- their open-ended comments concerning the medical ing of expert witnesses.3° liability review panel process. Many chose to share The burden that panel operations place upon the their comments which we here summarize. The com- court calendar and staff is illuminated by the judges’ ments reveal that enthusiasm for the system is not as assessment of the system. Most judges (sixty-three strong as would be expected based upon the seventy- percent) felt the panel system had no impact upon the two percent favorable opinion reported above. For one court calendar in their circuit. Seventeen percent said reason or another many judges declined to answer the it had made the calendar worse. The opinion was question concerning their overall assessment of the more split concerning the difficulties created for the panel system. Many of these, however, made com- judicial support staffs. Fifty-two percent of the circuit ments elsewhere on the questionnaire that indicate a court judges indicated that the panels had created no negative view of the process. Many of those with neg- difficulties for their support st~$f: However, fifteen ative points-of-view felt the panel process represented percent indicated that the system had created very a preferential treatment of one profession. One sum-

18 marized panel mechanisms as a "cumbersome special tant negative comments were the perceived domi- interest piece of legislation." Other negative com- nance of the health care provider panelists and ments dealt with service of the judiciary in a non- scheduling problems--the administratively difficult judicial capacity, the burden of scheduling hearings, task of gath~ii~g the numerous panel participants and the perceived dominant influence of health care under one roof. The 1984 amendment provides that provider panelists. Another concern expressed was the full panel not be appointed until all parties have the "use of panels as a testing device" by some attor- filed certificates of readiness. Since the parties are neys who attempt to turn hearings into.discovery ses- now allowed an unspecified amount of time between sions; a few judges suggested that many of these request for the panel and the hearing, the burden on cases would have been dropped before or shortly after the Chairman of insuring a prompt disposition of the suit was filed prior to the institution of panels. Others claim at the panel level is increased. Judges who felt that containment of the number of suits filed was objected to the legislation on other than practical non-existent or too slight to make the system worth grounds viewed it as unjustified, special interest legis- the expense and time of the participants. Relatively lation treating doctors differently than others (e.g., few favorable comments claimed the system works engineers, architects, lawyers). and "enables the litigants to settle the cases in most Based on the data we have reviewed, it appears that instances." In the most elaborate favorable comment the following two suggestions would benefit the sys- one judge stated, "I have always been surprised when tem without creating a great deal of opposition. First, I hear a plaintifi~s or a defense lawyer say he does not the written form of the opinion should be standard- use panels. I advocated this solution long before the ized to better insure its proper use and interpretation statute was passed .... I hope no change will be made since it carries significant weight at trial. Second, in the future except possibly making l~anels tru’ly improved data reporting requirements should be mandatory except in some extremely unusual situa- imposed to permit a better evaluation of the worth of tions where the circuit judge could dispense with panels in promoting pretrial disposition. The judges panel consideration and proceed to trial." would have agreed more on the merits of the panel process if it could be demonstrated that the system Conclusion did reduce the number of malpractice suits filed. Until The participation of circuit court judges as medical a statistical analysis is possible, the reaction of the malpractice review panel chairmen obviously gives judiciary will remain mixed as to whether the benefits them a major role in affecting the success of the panel outweigh the burdens of medical malpractice review system. Therefore, the judges’ opinions are worthy of panels. attention. The major findings are summarized ac- cording to the four principal areas we discussed-- FOOTNOTES specific operational issues, form of the written opin- 1. VA. CODE §§8.01-581.1 to 8.01-581.20 (1977 & Supp. 1984) ion, use of the Opinion at trial, and the overall provides for panels through §581.12:2 with the remainder on civil immunity for certain providers, monetary limitations on assessment of panels. With regard to the specific recovery in certain malpractice actions and the appropriate operations of the panel system, judges have had little standard of care. trouble applying the panel statute. Many judges feel 2. VA. CODE §8.01-581.2A (1977 & Supp. 1984). that the panels could often function effectively based 3. VA. CODE §8.01-581.3 (1977 & Supp. 1984). upon written documentation alone. They do not 4. VA. CODE §8.01-581.7 (1977) mandates four choices for opinions: no malpractice, malpractice and proximate cause, approve of discussions of the cases with the parties malpractice but not cause or issue of fact for court or jury after the Opinion is rendered. determination. The principal findings in the second and third 5. VA. CODE §8.01-581.3 (1977 & Supp. 1984). 6. VA. CODE §8.01-581.4 (1977 & Supp. 1984) outlines the areas of investigation can b.e stated quite simply. The chairman’s duties and also provides for submission of evidence written form of panel findings is extremely variable, to panel, depositions and discovery, and access to material. and the Opinion is almost always a significant factor 7. Note, supra note 6. at trial. 8. Id. 9. Note, supra note 6. The judges’ overall assessment of the system is not 10. VA. CODE ~8.01-581.7:1 (1977 & Supp. 1984). so simple. The Virginia circuit court judges partici- 11. Note, supra note~. pating in this survey present a mixed reaction to the 12. VA. CODE ~8.01-581.8 (1977 & Supp. 1984). Medical Malpractice Review Panel system. While a 13. DiAntonio v. Northampton-Accomack Mere. Hosp., 628 F.2d 287, 2~2 (4th Cir. 1980). plurality expressed support of the current system, 14. In a separate and prior effort we analyzed data that were there were objections made by others on both practi- available in raw form through the office of the Executive Secre- cal and legalistic grounds. Among the most impor- tary of the Sup. Ct. of Va. Various participants in the panel

19 process provide data in complying with Medical Malpractice 21. VA. CODE §8.01-581.10 (1977 & Supp. 1984) provides that Rules of Practice promulgated by the Chief Justice; see RULES each non-judge panelist receive $50 per diem and reimburse- OF SUP. CT. OF VA., Vol. 11 VA. CODE .295-302 (Added Vol. ment for actual and necessary expenses--up from $25 and 1984); these data permitted us to determine median times panels expenses since July 1, 1984. were open, frequency of various defendant types, number of 22. VA. CODE §8.01-581.2 (1977 & Supp. 1984). unanimous opinions, annual growth rate in cases and certain 23. VA. CODE §8.01-581.4 (1977 & Supp. 1984) provides that aspects of panel operations. the chairman shall prepare the opinion of the panel; see also 15. Note, supra note 14; during the first few years the annual §8.01-581.7C which makes mandatory the signatures of all number of requests for panels varied e~ratically, e.g., 87 opened panelists comprising the majority and makes permissive the during the first year and only 43 during the s~cond. However, signatures of any panelists who dissent from the majority panels opened during each of the most recent five years show a opinion. compound growth rate of 20%, allowing for the projection of 215 24. RULES OF SUP. CT. OF VA., Vol. 11 VA. (~ODE 295-302 for the panel year 1984-85. (Added Vol. 1984). 16. VA. CODE §38.1-389.3 (1977) (Repealed by Acts 1982, c. 25. Note, supra note 23. 229) provided for the collection of raw data that could have been 26. VA. CODE §8.01-581.8 (1977 & Supp. 1984) provides also used to determine how many medical malpractice claims were that the opinion shall not be conclusive and that either party resolved outside of the panel process and how many claims shall have the right to call any non-judge panelist as a witness receiving panel treatment were followed by the institution of in any subsequently brought action. suit; however, repeal followed unpublished 1981 Data Study by 27. Note, supra note 14. the Va. Bureau of Ins finding inherent inadequacies of the data- 28. Note, supra note 23. base developed. Study later furnished Div of Legislative Servs 29. Note, supra note 26. by letter to it of July 27, 1984, from Bureau over the signature of 30. VA. CODE §8.01-581.7:1 (Supp. 1984) must be read with Rollins, R. recently amended §8.01-581.3 (1977 & Supp.. 1984) providing as 17. We conducted an independent mail survey during summer of July 1, 1984, the six mos. shall begin to run only upon certifi- 1984 of the 117 Va. circuit court judges sitting as of Jan. 1 of cation by the parties that discovery has been completed and all that year, inquiring as to certain aspects of panel operations. Of relevant documents and statements have been submitted. The the 64 who responded, 60 had chaired panels and 12 had pre- six mos. run only from the appointment of the full panel which sided at medical malpractice trials. We guaranteed confidential- used to occur soon after receipt of the request for a panel, but ity to all responding even if they identified themselves on the which is now delayed until receipt of the certificate of readiness. returned questionnaires. With the additional time allowance, judges probably will be 18. VA. CODE §§8.01-581.4, 581.7:1 (1977 & Supp. 1984). more reluctant to extend panel consideration beyond the six mo. 19. Note, supra note 17. period. 20. VA. CODE §8.01-581.5 (1977 & Supp. 1984).

Virginia’s Equitable Distribution Statute momentum. This concept awards the working spouse reimbur- sement for the costs expended’to enable the other party to (continued from page 13) obtain a graduate degree. See ABA Journal December 1984 at p. tenants by the entirety or otherwise, and (ii) all other property 85; also see Saint-Pierre v~ Saint-Pierre, South Dakota Supreme acquired by each party during the marriage which is not separ- Court, October 1984 No. 14271 and 14291; In Re Weinstein; Illi- ate property as defined above. All’property acquired by either nois Court of ~Appeals 1st District, October 1984. spouse during the marriage before the filing of the bill of com- 6. See 17 University of Richmond Law Review, 347 at 377. plaint stating a ~round for divorce is presumed to be marital 7. Report of the "Joint Subcommittee Studying Section 20- property in the absence of satisfactory evidence that it is separ~ 107 of the Code of Virginia to the Governor and General ate property. Assembly of Virginia," H. Doc. No. 21 at 4-5 (1982). Separate property as defined in 20-107.3(A)(1) is "(i) all prop- See 17 University of Richmond Law Review, 347 at 351 n.25. erty, real and personal, acquired by either party before the mar- 8. "Joint Subcommittee Report," supra, note 5 at 7, see 17, riage; (ii) all property acquired during the marriage by bequest, University of Richmond Law Review, 347 at 365, N.109. devise, descent, survivorship or gift from a source other than the 9. See footnote 7. other party; and (iii) all property acquired during the marriage 10. Report of commissioner Paul M. Shuford, In Chancery in exchange for or from the proceeds of sale of separate prop- No. G-8764-1, Circuit Court for the City of Richmond, Division I, erty, provided that such property acquired during the marriage Summer 1984. is maintained as separate property. Income received from, and 11. Section 20-107.3(D) Code of Virginia, as amended. the increase in value of, separate property during the marriage 12. 17 University of Richmond Law Review, 347 at 378-9 and is separate property." cases cited therein. 4. 20-107.3(e) lists eleven factors for the Court’s considera- 13. Petition for Appeal with the Virginia Supreme Court of tion in determining the amount of the award and the method of Chancery Number G-8764-1 out of the Circuit Court of the Cit~ payment. of Richmond was recently filed on precisely this issue, but the 5. Valuation problems associated with a professional prac- appeal has now been dismissed. tice are beyond the scope of this article. But for more detailed 14. See Todd v. Todd, Fairfax Circuit Court, Chancery treatment of those issues see 17 University of Richmond Law #79277; June 1983. Deering v. Deering 437 A2d 883 (1981); Kali. Review, 383, (1982). It should be noted here that the concept of noski v. Kalinsoki 9 F.L.R. (B.N.A.) 3033 (1983); in Re Marriage reimbursement or rehabilitative alimony appears to be gaining of Fairchild 442 N.E. 2d 557 (1982).

20 ~Bar.fissociatio~ ~Pcoceedings

The Winter Meeting ...... 24

Announcements ...... 26

YLS Chairman’s Report . .-... : ...... 28

1985 Patrons ...... 32

Committee Reports ...... 34

Memorials ...... 41

being entertained by the Association’s own barber shop quartet, "The Supreme Chords’.’ who were The Winter Meeting appropriately attired in black robes and white wigs. The group included Edward R. Slaughter, Jr., Lead, Lawrence H. Hoover, Jr., Baritone, Alex T. Mayo, Jr., Tenor and George G. Grattan, IV, Bass. The 95th Annual Meeting of The Virginia Bar Our speaker of the evening, The Honorable Griffin Association Was held at the Conference Center in B. Bell, former Attorney General of the United States, ¯ Colonial Williamsburg, Virginia, on January 11 and was warmly introduced by his former associate and 12, 1985. current member of the Association’s Executive Com- Meetings of the Association’s Committees and the mittee, professor Daniel J. Meador. Judge Bell is Young Lawyers Section Committees were held Friday chairman of the Atlanta law firm of King and morning followed by the Young Lawyers Section’s Spaulding and president-elect of the American Col- election of officers and Executive Committee. Chair- lege of Trial Lawyers. man Paul D. Fraim turned the gavel over to William His tol~ic was the state of the profession. He stated G. Hancock of Richmond. Charles M. Lollar of Nor- that lawyers are not held in the same esteem that folk was elected chairman-elect and Thomas F. Far- they once were and that it is probably because of rell, II of Alexandria, was elected Secretary-Treasurer. advertising. The Judge indicated that the Supreme In the afternoon, the program entitled "Financial Court decision that allowed lawyers to advertise, has Planning for Lawyers and Spouses" was moderated produced mixed results; some of the advertising has by C. L. Dimos, Esquire, a member of the Associa- been dignified and proper, but some has not. Judge tion’s Committee. on Wills, Trusts & Estates. Bell thinks the Supreme Court will have a chance to The first speaker on the panel was James W. Zil- do something about the problem as they have granted inski, Vice President and Director of Financial Serv- certiorari on another lawyers’ advertising case re- ices Marketing for New’ England Mutual Life Insur- cently. He is deeply concerned that lawyers today are ance Company. Mr. Zilinski presented an informativ, e running a business and not a profession. "We are try- slide presentation concerning the development of the ing to make money and not really thinking about a financial planning industry, the need for financial service," he said, "and while that is not altogether planning, the types of financial planners currently in true, when you read about these things in a news- the market, and suggestions for a team approach to paper, it sounds like we have maybe gone into some planning. sort of a business instead of being in a service labeled The second speaker was Gary P. Ryan, Esquire, professional." First Vice President and Director of Comprehensive "In addition to being lawyers," he continued, "we Financial Planning Services for Sovran Bank. Mr. have to spend sSme of our time trying to make the Ryan focused primarily on the various trust~ which professio~ better. We will have to revisit the question are availa.ble to provide income tax savings during an of the hourly rate .... Lawyers are not plumbers. individual’s lifetime, while allowing funds to be There is something more to practicing law than just available for college or other future needs. turning on the meter and running up hours and see- The final speaker was Robert C. Vaughn, Jr., ing how many lawyers you can put on something. We Esquire, President-elect of The North Carolina Bar will be revisiting the windfall fees.., do something Association. Mr. Vaughn, of Winston-Salem, address- about mass litigation,.., frivolous lawsuits, lawyers ed his remarks primarily to spouses. First, he went who take frivolous positions,.., de minirnus matters through the tax savings available by the use of wills getting into our courts." Judge Bell further observed and trusts. He concluded by reviewing the informa- that "things are not as bad as maybe sometimes we tion that every spouse should know about a family’s think they are. When you think about the litigation financial picture, including the location of important explosion, the law explosion generally, ... lawyers documents. deserve good marks for accommodating the law prob- This informative seminar assisted both lawyers lems to the law practice." and their spouses in planning and managing their Saturday’s program featured a lively panel discus- families’ future. The seminar provided an incentive to sion on the subject, "The Continuing Crisis in Correc- the audience to make certain that their wills are up to tions." The program’s moderator, former Attorney date. General Andrew P. Miller, introduced each panelist President George G. Grattan, -I-V-presided at the and led a discussion of how society should deal with Banquet Friday evening. The large crowd enjoyed its most dangerous and long-term criminals. Although

24 constrained by thefact that two of the panelists, that the study commission appointed to investigate Department of Corrections director Allyn R. Sielaff the recent disturbances at Mecklenberg recommended and ACLU National Prison Project head Alvin J. that the institution hire a full time chaplain. Bronstein, are currently inv(~lved in litigation over The Annual Business Meeting of the Association Virginia’s treatment of such inmates at its troubled was held Saturday afternoon. Retiring president Mecklenburg prison, the group showed a surprising George G. Grattan, IV, was presented a silver gavel degree of consensus on dealing with these "deep- by our new President Evans B. Brasfield following ender" inmates. the unanimous selection of Edmund L. Walton, Jr. of One of the program’s highlights was a presentation McLean as president-elect. Mr. Walton will take office by Professor Norval Morris, the well-known criminol- in January 1986. ogist from the University of Chicago Law School. He Three new members were elected to the Executive expressed skepticism that any attempt, such as the Committee: Thomas T. Lawson, of Roanoke; J. Robert one tried at Mecklenburg,. to concentrate all of a pri- McAllister, III, of Arlington; and Andrew P. Miller, of son system’s worst inmates into one institution would Alexandn_’a. ever succeed. "What we do know," he said, "is that Following the adjournment of the Annual Meeting, once you have the kind of trouble that Mecklenburg the Executive Committee elected Daniel J. Meador of has had, those problems do not go away overnight." Charlottesville, a member of the Executive Commit- The fourth panelist, Harry L. Greene, offered a tee, to the office of Secretary-Treasurer. somewhat different perspective as a former inmate The weekend concluded with a lively dance in the who is currently serving on Virginia’s State Board of Virginia Room honoring the Young Lawyers Section. Corrections. Mr. Greene stressed the importance of providing inmates with an opportunity to benefit --Joan Mahan, Scott Cairns and from religious and spiritual development. He noted James Pates

Announcements

ABA Meeting Conference on Crime Victims Planned The Virginia Bar Association is holding space on The Virginia Ndtwork for Victims and Witnesses is Pan American flights to and from the American Bar planning a three-day conference this spring which Association meeting in London July 14-21. will provide participants with a comprehensive view of the problems and issues involved in underhtanding Leave Washington, D.C. July 13 and meeting the needs of crime victims. ~ Return July 21, 30, 31 Scheduled for May 15-17 in Lynchburg, this will be Price: $599.00 the third annual conference sponsored by the Network. Space is also still available on a special tour of the Conference Program English Countryside July 21 to 30 and a French Canal barge trip July 21 to July 30. This year’s program features two general sessions For reservations, brochures, or additional informa- and 18 workshops. The opening session will fodus on tion call Cynthia Newman at Waters Travel Service: crime victims’ perspectives on their experiences. In- (202) 298-7100. cluded among the workshops will be one which exam- Space on flights and at London hotels is already ines the special needs of children who have been sex- extremely tight. If you are planning to attend the ually abused or otherwise victimized. Other workshops ABA Convention, we urge.you to make reservations will include: dealing with victims of sexual assault, as soon as possible ...... crime victims’ compensation, the role of prosecutors and law enforcement officers in assisting crime vic-

26 tims and witnesses, coordination of victim/witness Exhibitors Welcome services with existing social service providers and In an effort to provide participants with opportuni- starting a victim/witness program. ties to learn abouthe range of programs and. activi-

Participants ties in the field, the Network will arrange for exhibi- tion space to be made available at the conference for Participants in the workshops will represent the those interested in displaying literature, posters or full spectrum of agencies and services which have other material concerning services for crime victims impact on crime victims, from judges, legislators, and witnesses. commonwealth’s attorneys and law enforcement offi- Those interested in having exhibits should contact cers, to psychiatrists, counselors and social workers. Jane Renick, Roanol~e Victim/Witness Program, 315

Virginia Network Church Avenue, S.W., Roanoke, Virginia 24016, tele- phone 703/981-2626. The Virginia Network for Victims and Witnesses is a statewide organization whose members participate in or advocate providing services to crime victims and witnesses..The Network membership consists of peo- ple who are associated with programs which serve victims and witnesses, as well as private citizens and public officials interested in issues affecting victims American Bar Association and witnesses. and Virginia Bar Association Registration

Pre-registration will be accepted up to May 8, at a MEETING DATES cbst of $50.00 for members and $60.00 for non- members. After May 8, the registration fee will be July4-11, 1985 Washington, D.C. $60.00 for members and $70.00 for non-members. The ABA Annual Meeting fee pays for all conference materials, coffee breaks and the banquet on the night of the 16th. July 15-20, 1985 London, England Those not wishing to register for the full three days ABA London Session can register on a per-day basis at a cost of $20.00 for the 15th, $30.00 for the 16th and $20.00 for the 17th. August 15-18, 1985 White Sulphur Springs, The conference will be held at the Radisson Hotel in West Virginia Lynchburg. If you desire to stay at the Radisson VBA Summer Meeting while attending, please make your hotel reservation The Greenbrier by April 26. The hotel is offering the special rate of January 10-12, 1986 Williamsburg, Virginia $43.00 per night for a single or double. Free parking VBA Annual Meeting will be available. Colonial Williamsburg For additional information and a registration pack- age, contact Mandie Patterson or Brian Marks, July 17-20, 1986 Hot Springs, Virginia Department of Criminal Justice Services, 805 East VBA Summer Meeting Broad Street, Richmond, Virginia 23219, telephone The Homestead 804/786-4000; or Theresa Saunders, Portsmouth Vic- tim/Witness Program, Post Office Box 1417, Ports- mouth, Virginia 23705, telephone 804/393-8581.

27 AT its 28th Annual Meeting in Williamsburg, Vir- ginia, on January 11, 1985, the Young Lawyers Sec- tion elected the following officers and Executive Committee members for 1985: Chairman, William G. Hancock, Mays, Valentine, Davenport & Moore, Post Office Box 1122, Richmond, Virginia 23208 (804) 644-6011. Chairman-Elect, Charles M. Lollar, Willcox & Sav- age, P.C., 1800 Sovran Bank Building, Norfolk, Vir- ginia 23510 (804) 628-5541. Secretary-Treasurer, Thomas F. Farrell, II, Boothe, Prichard & Dudley, Post Office Box 1101, Alexandria, William G. Hancock is a partner in the firm of Mays, Valentine, Davenport & Moore. Mr. Virginia 22313 (703) 549-5900. Hancock received his B.A. in economics from Executive Committee the University of Virginia, and a J.D. from the Blue Ridge Division, Stephen D. Busch, McGuire, University of Richmond School of Law, where Woods & Battle, Post Office Box 1219, Charlottesville, he was Developments Editor of the Law Review. He currently serves as Counsel to and a Director Virginia 22902 (804) 977-2500. of Home Beneficial Corporation. Mr. Hancock Capitol Division, Robert M. Rolfe, Hunton & Wil- has participated as author and lecturer for sev- liams, Post Office Box 1535, Richmond, Virginia eral continuing legal education publications 23212 (804) 788-8466. and seminars. Potomac Division, E. Tazewell Ellett, Special Counsel to the Administrator, Federal Aviation Ad- ministration, 800 Independence Avenue, S.W., Wash- ington, D.C. 20591 (202)426-3111. At Large, David G. Shuford, Mays, Valentine, Southside Division, Killis T. Howard, Post Office Davenport & Moore, Post Office Box 1122, Richmond, Box 1328, Lynchburg, Virginia 24505 (804) 845-2393. Virginia 23208 (804) 644-6011. Southwest Division, Stephen D. Rosenthal, Jebo & At Large, Theodore L. Chandler, Jr., Williams, Rosenthal, Post Office Box 1089, Radford, Virginia Mullen & Christian, Post Office Box 1320, Richmond, 24141 (703) 639-3984. Virginia 23210 (804) 643-1991. Tidewater Division, Stephen C. St. John, Williams, Worrell, Kelly & Greer, P.C., Post Office Box 3416, Growth of Young Lawyers Section Norfolk, Virginia 23514 (804) 624-2600. The Young Lawyers Section was organized as a Valley Division, William P. Wallace, Jr., Woods, separate section of the Association in 1957, and held Rogers & Hazlegrove, Post Office Box 720, Roanoke, its first meeting on August 9 of that year at the Virginia 24004 (703) 982-4258. Greenbrier, White Sulpher Springs, West Virginia. In At Large, Thomas G. Bell, Jr., Timberlake, Smith, those early days, the group was referred to as the Thomas & Moses, Post Office Box 2566, Staunton, "Junior Bar Section" and consisted of only two com- Virginia 24401 (703) 885-1517. mittees. From these humble beginnings the Section At Large, Peggy O’Neal, Mezzullo, McCandlish & has developed into an energetic organization consist- Framme, 700 East Main Street, l~ichmond, Virginia ing of 34 separate committees, and has garnered 23219 (804) 782-9250. numerous ABA Awards of Achievement. Today the

28 Section comprises nearly half of the Association’s Boothe, Prichard & Dudley, works quietly and effec- membership and continues to expand its numerous tively in assisting the Institute in its many activities projects benefitting both the public at large and the state wide. profession. Under the leadership of Dan Siegel, the Law and the Disabled Committee has completed a pamphlet on Public Service Emphasis the rights of the disabled. This years committee, At a time when the public image of our profession is chaired by Bonnie France will deal with the distribu- declining rapidly, it becomes even more~mportant to tion of the pamphlet state wide as well as other stress and publicize the numerous public service proj- projects. ects of the Association. At least 12 of this year’s Perhaps the committee which entails more hours by Young Lawyers Section committees will devote their lawyers than any other is the Legal Services to the efforts solely to public service projects. Public Committee, chaired again this year by Grady I have asked David Shuford to chair a new commit- Carlson. This very hard-working committee has pre- tee entitled "Alternate Dispute Resolution." Follow- pared, and updates periodically, outlines of many ing Chief Justice Berger’s speech at the mid-winter areas of the law and presents seminars to the public ABA meetin, g last year, in which he severely criticized through the community college system in Virginia. the legal profession for the high cost, slow pace and These very s~iccessful "Law Everyone Should Know" undue complexity of litigation, the ABA and The Vir- lectures are given state wide in the fall of each year. ginia Bar Association made a commitment to study Another very hard working committee is the Model how .we might make the judicial process more effi- Judiciary Program, chaired once again by Peggy cient. An important part of this project is to consider O’Neal. This group organizes and conducts mock alternatives to the judicial process for the resolution trials by high school students all across the state. of disputes. There is much national interest in this This year a new committee entitled Pre-Law Coun- area and it is hoped that the Alternate Dispute Reso- seling will be chaired by Hobie Claiborne and plans lution Committee can devise a pilot program which to volunteer speakers at high schools and colleges would serve as a model for alternate dispute resolu- around the state in order to counsel students .about tion on a state wide basis. the realities of practicing law. One of our most visible projects benefitting the pub- Due to the many requests we get for speakers, a lic is the Community Law Week and Law Day activi- Speakers Bureau has been formed and will be chaired ties which will be organized this year by Grig Scifres by Joe Rapisarda. The Speakers Bureau hopes to pro- and Ken Fulp. In addition to conducting activities vide speakers on a wide range of topics to civic organ- designed to give the public a better understanding of izations, corporations and other groups. the legal profession, the committee will conduct its The Supreme Court Film Committee continues to be third annual "Ask-A-Lawyer" program which will be chaired by Martha White Medley, making the award televised state wide on WCVE-TV (Channel 23). This winning film on the Supreme Court of the United one hour telecast, in which the viewing audience may States available to numerous groups across the coun- call in questions to a panel of four lawyers, has been try. The work of this committee will be gradually - very successful in its first two attempts. phased into the office of Joan Mahan, Executive The Criminal Law and Corrections Committee, Director of the Association. chaired by John Fletcher, is in the process of finaliz- Another of our important public service committees ing a brochure designed to assist witnesses and vic- is the Town Hall Meeting Committee, chaired last tims in criminal cases. The brochure should be avail- year by Carolyn Leckerby. The committee sponsored able for distribution shortly. a very interesting and lively panel discussion on reli- The Disaster Legal Assistance Committee, which gion in the schools. This years committee, chaired by offers emergency legal advice to disaster victims at no Pat Gottschalk, hopes to conduct Town Hall Meetings cost, will be chaired this year by John Anderson of both in Richmond and in Roanoke, Virginia. Alexandria, Virginia. One of our most overlooked and yet most valuable committees in terms of public service is the Law and Service to the Profession Citizenship Studies Committee, which acts as liaison While the Section places its greatest emphasis on between the Virginia Institute for Law and Citizen- public service projects, it also provides numerous ship Studies and The Virginia Bar Association. The benefits to the practicing bar. The Bridge-The-Gap committee, chaired this year by John Burke of Committee, chaired again this year by John Eure, McGuire, Woods & Battle, and Jocelyn Brittin of conducts the now institutionalized "September Semin-

29 ars" providing ve~y valuable substantive and practi- nal organization and unity of the Section and the cal information to newer ldwyers. Tl~ese seminars are Association as a whole. These include the ABA Award held state wide and cover numerous areas of the law. of Achievement Committee chaired by Carol Hurt, Inspired by an outstanding publication on the the ABA Young Lawyers Division Liaison Committee courthouses in Massachusetts, Jack Molenkamp will chaired by Dan Siegel, the Directory Committee be looking into the feasibility of doing the same in chaired by Whit Whitham, the Entertainment Com- Virginia. We hope to be able to publish a hard-bound mittee chaired by Sammy Brown and Hobie Clai- volume containing photographs and descriptions of borne, the Executive Council Meetings Committee, the courthouses in Virginia. which organizes the five meetings of the Section each Steve Schwartz will chair a new committee entitled year, chaired by Bill VanBuren, the Local Bar Liai- Crossing the Bar which plans to conduct programs in son Committee chaired by Steve St. John, the News- which the active judiciary assists newer lawyers in letter Committee chaired by Marie Carter and John learning about the practical aspects of courtroom Epps, the Special Projects Committee chaired by procedure. It is hoped that a program can be devel- Steve Busch and the VBA Journal Committee chaired oped which can be used state wide and assist litiga- by Vernon Geddy. tors in acquiring practical information in a mock trial context. Membership French Slaughter will again chair the Law School The Membership Committee, under the leadership Liaison Committee which holds conferences designed ~of Ted Ellett and George Albright and with the valu- to educate law students about career alternatives in able assistance of Henry Stout of Norton, recently the legal profession at all five of the Virginia law staged a successful three city recruiting trip in schools. southwestern Virginia. This year’s committee, chaired Providing a very valuable service to the Region 4 by Kevin Huennekens and Bill Wallace, will focus on National Moot Court teams is the National Moot a membership campaign in the Roanoke area. Court Committee, chaired again this year by Bruce The Membership Brochure Committee, headed by Thomas and Dave Simonson. The committee is Jay Lassiter is in the process of finalizing revisions to responsible for holding the Region 4 Moot Court the existing Association brochure. It is hoped that Competition, which this year will be held at the Uni- this brochure will assist in ~ttracting new members to versity of Virginia in November. The committee has the Association as well as improving the public image in the past solicited nationally promingnt lawyers of the profession. and justices for judging the competition among teams from Virginia, West Virginia, North Carolina and 1984 Long Range Planning Report Kentucky. The Section is also responsible for updating The Special Credit should be given to the Long Range Virginia Lawyer and this committee will be chaired Planning Committee chaired by Bob Rolfe and David by John Walk. Ted Chandler will again chair the Vir- Shuford and also served by Tom Bell, Steve Busch, ginia Tax Manual Committee. Last year Ted’s com- Tom Farrell, Killis Howard, Stephen St. John and mittee produced The Virginia Tax Manual, a very Jay Wetsel. The committee produced a very thorough valuable research tool containing a digest of Virginia and thought provoking study of the strengths and cases in the sales and use tax area. weaknesses of the Section and certain aspects of the Congratulations are in order for Scott Cairns and Association as a whole. The 1984 Long Range Plan- the 1984 Meetings Committee for organizing out- ning Report is currently serving as the c~talyst for standing winter and summer meetings of the Associ- revamping many of the Young Lawyers Section ation. The Meetings Committee is responsible for committees and the organizational structure of the obtaining the exhibits, running the tournaments and Association. organizing the two panel discussions for each meet- Upcoming Plans ing. This year’s programs in Williamsburg on "Financial Planning For Lawyers and Spouses" and Organizational meetings of the committees were "Crisis in Corrections" were a huge success. Lex Eley held at the winter meeting in Williamsburg and the will chair the 1985 committee. Executive Committee and Executive Council (all committee chairs) met in Richmond on March 2, 1985. Internal Organization A meeting of the Executive Committee, Executive There are numerous other committees of the Young .Council, all committee members, spouses and dates Lawyers Section which deal primarily with the inter- will be held.on the weekend of May 18, 1985 in Virgin-

3O ia Beach. Pursuant to a recommendation in the 1984 Courthouses of Virginia, Jack A. Molenkamp, Hunton Long Range Planning Report, each Executive Com- & Williams, P.O. Box 1535, Richmond, Virginia 23212. mittee member has been given the responsibility of (804) 788-8655. following one or more of the committees. It is hoped Criminal Law-.-and Corrections, John R. Fletcher, Tavss & Fletcher, P.O. Box 3747, Norfolk, Virginia that this will assist the committees, decrease the 23514. (804) 625-1214. burden on the officers and allow the Executive Com- Crossing the Bar, Steven G. Schwartz, Scanelli & mittee members to have more input into the workings Shapiro, 1600 United Virginia Bank Bldg., Five Main of the various committees. Plaza East, Norfolk, Virginia 23510. (804) 625-1411. I have inherited a strong organization from Paul Directory, Wayne A. Whitham, Jr., Browder, Russell, Fraim and other former Chairmen. With ~he able Morris & Butcher, 1200 Ross Building, Richmond, Vir- ginia 23219. (804) 771-9326. assistance of Chairman-Elect Lollar, Secretary-Trea- Disaster Legal Assistance, John F. Anderson, Boothe, surer Farrell, the Executive Committee and the Exec- Prichard & Dudley, 4103 Chainbridge Road, Fairfax, utive Council, I hope that we can continue the tradi- Virginia 22030. (703) 273-4600. tion of excellence that the Young Lawyers Section Entertainment, Samuel H. Brown, II, Heilig, McKenry has enjoyed since 1957. Our focus this year will be to & Fraim, 1072 Laskin Road, Virginia Beach, Virginia improve and broaden our projects which benefit the 23450. (804) 425-5484; and Herbert A. Claiborne, III, McGuire, Woods & Battle, 1400 Ross Building, Rich- public at large and the legal profession. In this way it mond~ Virginia 23219. !804.) 644-4131. is hoped that we can improve the image of the legal Executive Council Meetings, William R. VanBuren, profession, both from the tangible benefits received III, Kaufman & Canoles, P.O. 3037, Norfolk, Virginia by the public through our many projects and through 23514-3037. (804) 622-3000. the efforts of the Public Relations Committee to be Family Law, Stephen D. Rosenthal, Jebo & Rosenthal, chaired by Bill Nexsen. P.O. Box 1089, Radford, Virginia 24141. (703) 639-3984. It is obvious from this report that ~ve exp~ect a very Law & Citizenship Studies, John W. Burke, III, busy year in 1985. The Young Lawyers Section can McGuire, Woods & Battle, 1400 Ross Building, Rich- mond, Virginia 23219. (804) 644-4131; and Jocelyn W. always use volunteers willing to become actively Brittin, Boothe, Prichard & Dudley, 4103 Chain Bridge involved. If you have a new idea that you would like Road, P.O. Box 338, Fairfax, Virginia 22030. (703) to see implemented or if you would like to become 273-46OO. involved in one of the existing committees, please Law and the Disabled, Bonnie M. France, McGuire, write to me at Post Office Box 1122, Richmond, Vir- Woods & Battle, 1400 Ross Building, Richmond, Vir- ginia 23219. (804) 644-4131. ginia 23208, and let me know of your interest. Listed Law School Liaison, D. French Slaughter, McGuire, below are the committees of the Young Lawyers Sec- Woods & Battle, P.O. Box 1219, Charlottesville, Virginia tion and the names and addresses of their chairs. You 22902. ~S04) 977-2500. may direct a particular inquiry to any of them. Legal Services to the Public, Grady K. Carlson, Hun- ton & Williams, 4011 Chain Bridge Road, Fairfax, Vir- ginia 22030. (703) 352-2200. Long Range Planning, Robert M. Rolfe, Hunton & Wil- liams, P.O. Box 1535, Richmond, Virginia 23212. (804) 1985 VBA/YLS Committee Chairmen 788-8466; and David G. Shuford, Mays, Valentine, ABA Award of Achievement, Carol B. Hu~t, McGuire, Davenport & Moore, P.O. Box 1122, Richmond, Virginia Woods & Battle, P.O. Box 1219, Charlottesville, Virginia 23208. (804) 644-6011. 22902. (804) 977-2500 Local Bar Liaison, Stephen C. St. John, Williams, ABA/Young Lawyers Division Liaison, Daniel M. Worrell, Kelly & Greer, P.C., 600 United Virginia Bank Siegel, Hirschler, Fleischer, Weinberg, Cox & Allen, 629 Bldg., Norfolk, Virginia 23514. (804) 624-2600. East Main Street, Richmond, Virginia 23219. (804) Meetings, Claud (Lex) yon S. Eley, McGuire, Woods & 771-9597. Battle, 1400 Ross Building, Richmond, Virginia 23219, Alternative Dispute Resolution, David G. Shuford, (804) 644-4131. Mays, Valentine, Davenport & Moore, P.O. Box 1122, Membership, Kevin R. Huennekens, Maloney, Yates & Richmond, Virginia 23208. (804) 644-6011. Barr, 600 Ross Building, 801 East Main Street, Rich- Bridge-the-Gap, John D. Eure, Johnson, Ayers & Mat- mond, Virginia 23219. (804) 644-031’3; and William P. thews, 305 West Campbell Avenu~e, Roanoke, Virginia Wallace, Jr., Woods, Rogers & Hazlegrove, P.O. Box 720, 24016, (703) 982-3666. Roanoke, Virginia 24004. (703) 982-4258. Community Law Week & Law Day, C. Grigsby Scifres, Membership Brochure, Joseph (Jay) R. Lassiter, Jr., Seawell, Dalton, Hughes & Timms, 900 Wainwright Hofheimer, Nusbaum, McPhaul & Brenner, P.O. Box Building, Norfolk, Virginia 23510. (804) 622-5341; and 3508, Norfolk, Virginia 23514. (804) 622-3366. Kenneth E. Fulp, Jr., Crenshaw,’Ware & Johnson, Suite 1640, 1800 Sovran Center, Norfolk, Virginia 23510. (804) 623-3000. (continued on page 33)

31 1985 Patrons

Philip J. Bagley, III ...... Richmond W. Gibson Harris ...... Richmond John W. Bates, III ...... Richmond John T. Hazel, Jr ...... Fairfax John S. Battle ...... Richmond Edward S. Hirschler ...... Richmond Marvin C. Bowling, Jr ...... Richmond Waller H. Horsley ...... Richmond Evans B. Brasfield ...... Richmond Joseph A. Howell, Jr ...... Richmond A. J. Brent ...... Richmond F. Claiborne Johnston, Jr ...... Richmond Thomas C. Brown, Jr ...... Alexandria James P.- Jones ...... Bristol Robert L. Burrus, Jr ...... Richmond John F. Kay, Jr ...... Richmond M. Caldwell Butler ...... Roanoke Tom T. Lawson ...... Roanoke Royal E. Cabell, Jr ...... Richmond William J. Lemon ...... Roanoke Archibald A. Campbell ...... Wytheville George B. Little...... Richmond Daniel A. Carrell ...... Richmond John H. Locke ...... Roanoke Joseph C. Carter, Jr ...... Richmond Robert Mann ...... Martinsville R. H. Catlett, Jr ...... Richmond Michael W. Maupin ...... Richmond R. Harvey Chappell, Jr ...... Richmond Daniel J. Meador ...... Charlottesville George M. Cochran ...... Staunton J. Robert McAllister, III ...... Arlington Michael McHale Collins ...... Covington Howard C. McElroy ...... Abingdon C. Lacey Compton, Jr ...... Woodbridge James R. McKenry ...... Virginia Beach Robert A. Cox, Jr ...... Richmond Henry H. McVey, III ...... Richmond James S. Cremins ...... Richmond Leigh B. Middleditch, Jr ..... Charlottesville Clifford A. Cutchins, IV ...... Richmond Andrew P. Miller ...... Washingtonl D,C. John No Dalton ...... Richmond S. D. Roberts Moore ...... Roanoke Arthur Beverly Davies, III ...... Lynchburg T. Justin Moore, Jr ...... Richmond Mark Stanley Dray ...... Richmond Thurston R. Moore ...... Richmond E. Waller Dudley ...... :. Alexandria G. Marshall Mundy ...... Roanoke Kathleen DuVal ...... Richmond Edwin P. ,Munson ...... Richmond A. C. Epps ...... Richmond Robert C. Nusbaum ...... Norfolk William W. Eskridge ...... Abingdon Rosewell Page, III ...... Richmond Bernard M. Fagelson ...... Alexandria Lawrence J. Pascal ...... Alexandria William A. Forrest, Jr ...... Richmond Hugh L. Patterson ...... Norfolk Calvin W. Fowler ...... Danville Robert H. Patterson, Jr ...... Richmond Harry Frazier, III ...... Richmond C. Cotesworth Pinckney ...... Richmond Richard D. Gary ...... : .... Richmond Don R. Pippin ...... Norton Vernon M. Geddy, Jr ...... Williamsburg Fred G. Pollard ...... Richmond Allen C. Goolsby, III ...... Richmond Robert N. Pollard, Jr ...... Richmond George G. Grattan, IV ...... Charlottesville Robert Dean Pope ...... Richmond Edward S. Graves ...... Lynchburg Richard C. Rakes ...... Roanoke Jack E. Greer ...... Norfolk William R. Rakes ...... Roanoke Kossen Gregory ...... Roanoke James C. Roberts ...... Richmond Virginia H. Hackney ...... Richmond Frank W. Rogers, Jr ...... Roanoke William Glenn Hancock ...... Richmond William L. Rosbe ...... Richmond James A. Harper, Jr ...... Richmond John M. Ryan ...... Norfolk

32 1985 Patrons

(continued)

Philip M. Sadler ...... Pulaski Anthony F. Troy ...... Richmond Wilson Edwin Sheridan ...... Richmond John L. Walker ...... Roanoke Michael L. Shortridge ...... Norton Martin D. Walsh ...... Arlington Thomas G. Slater, Jr ...... Richmond Edmund L. Walton, Jr ...... McLean Alexander Hoke Slaughter ...... Richmond Thomas R. Watkins ...... Newport News Norman F: Slenker ...... Arlington Jay M. Weinberg ...... Richmond Edward M. Smith ...... Arlington Hill B. Wellford, Jr ...... Richmond R. Gordon Smith ...... Richmond Hugh V. White, Jr ...... Richmond Turner T. Smith ...... Manassas Kenneth Spencer White ...... Lynchburg William B. Spong, Jr ...... Williamsburg Anne Marie Whittemore ...... Richmond Harold E. Starke, Jr ...... Richmond Henry T. Wickh6m ...... Richmond Gregory N. Stillman ...... Norfolk William T. Wilson ...... Covington Hiram A. Street ...... Grundy John Clinton Wood ...... Fairfax Robert E. Stroud ...... Charlottesville Thomas S. Word, Jr ...... Richmond George R. C. Stuart ...... Abingdon R. Reid Young, Jr ...... Martinsville Frank L. Summers, Jr ...... :. Staunton

Speakers Bureau, Joseph P. Rapisarda, Jr., Henrico 1985 VBA/YLS Committee Chairmen County Attorney, .P.O. Box 27032, Richmond, Virginia (continued from page 31) 23273. (804) 747-4342. Special Projects, Stephen D. Busch, McGuire, Woods & Battle, P.O. Box 1219, Charlottesville, Virginia 22902. Model Judiciary Program, Peggy O’Neal, Mezzullo, (804) 977-2500. McCandlish & Framme, 700 East Main Street, Rich- Supreme Court Film, Martha White Medley, Meade, mond, Virginia 23219. (804) 782-9250. Tate & Daniel, P.C., 116 South Ridge Street, P.O. Box National Moot Court, Bruce V. Thomas, Mays, Valen- 720, Danville, Virginia 24543. (804) 792-3911. tine, Davenport & Moore, P.O. Box 1122, Richmond, Vir- Town Hall Meeting, Patrick O. Gottschalk, Mays, Val- ginia 23208. (804) 644-6011; and David R. Simonsen, Jr., entine, Davenport & Moore, P.O. Box 1122, Richmond, McGuire, Woods & Battle, 1400 Ross Building, Rich- Virginia 23208. (804) 644-6011; and Richard S. Phillips, mond, Virginia 23219. (804) 644-4131. Gentry, Locke, Rakes & Moore, P.O. Box 1018, Roanoke, Newsletter, John D. Epps, McGuire, Woods & Battle, Virginia 24005. (703) 982-8000. 1400 Ross Building, Richmond, Virginia 23219. (804) 644- VBA Journal, Vernon M. Geddy, III, McGuire, Woods 4131; and Marie D. Carter, McGuire, Woods & Battle, & Battle, 1400 Ross Building, Richmond, Virginia 23219. 1400 Ross Building, Richmond, V’nginia 23219. (804) 6~.~. ~131. (804) 644-4131. Pre-Law Counseling, Herbert A. Claiborne, III, The Virginia Lawyer, John R. Walk, Hirschler, McGuire, Woods & Battle, 1400 Ross Building, Rich- Fleischer, Weinberg, Cox & Allen, Post Office Box 1Q, mond, Virginia 23219. (804) 644-4131. Richmond, Virginia 23202. (804) 771-9500. Public Relations, William W. Nexsen, Stackhouse~ Virginia Tax Manual, Th~eodore L. Chandler, Jr., Wil- Rowe & Smith, P.O. Box 3570, Norfolk, Virginia 23514. liams, Mullen & Christian, P.O. Box 1320, Richmond, (804) 623-3555, Virginia 23210. (804) 643-1991.

33 Committee Reports

Report of the Committee on In connection with the revision of the Christopher T. Picot Business Law Stock Corporation Act, the Code Commis- Robert H. Powell, III sion also undertook to revise the Non-Stock J. Waverly Pulley, III To The Virginia Bar Association: Corporation Act, so as to conform it where Ross C. Reeves The Business Law Committee operates, applicable to the Stock Act. An Ad Hoc Louis F. Ryan for the most part, through six subcommit- Committee of the Business Law Committee, William H. Sehwarzschild, III tees: Partnership, Securities, Financial Insti- headed by Dennis Laing, and including Donald E. Showalter tutions, Commercial, Bankruptcy and Credi- Messrs. Graham and Showalter from the William C. Stott, Jr. tors Rights, and Corporate Laws. Non-Stock Act Group of the Corporate Laws Raymond E. Vickery, Jr. During 1984, the Committee’s major under- subcommittee, undertook to revise this draft George P. Whitley taking was a joint effort with the Business within the very limited time available, and F. Claiborne Johnston, Jr., Law Section of the Virginia State Bar to made a number of suggestions which have Chairman review a first draft of a revised Stock Corpo- been incorporated into the Code Commis- ration Act, prepared in the fall of 1983 by a sion’s proposal. This bill is also expected to grohp at Hunton & Williams, headed by be presented for action by the 1985 General John W. Reily and Allen C. Goolsby, and to Assembly. assist in the development of a second draft The Partnership Subcommittee continued for consideration by the Virginia Code Com- during the year to work on a version of the misson. The Committee’s representatives on Revised Uniform Limited Partnership Act Report of the CQmmittee on the Joint VBA/VSB Title 13.1 Study Group for adoption in Virginia. This matter was Civil Litigation consisted of the Stock Act subgroup of the carried over by the 1984 General Assembly, To The Virginia Bar Association: Corporate Laws subcommittee, consisting of to permit development of a statutory scheme Messrs. Burrus, Larson, Cremins, Flippin and funding structure that would permit the As in recent past years, the principal work° and Johnston. Several members of the Com- integration of RULPA filings with the Office of the Civil Litigation Committee has been mittee, Messrs. Brown, Powell and Reeves, of the Clerk of the State Corporation Com- in connection with its sponsorship of the served on the Joint Study Group on behalf of mission. Tides Inn Conference. The sixth annual the Business Law Section of the State Bar. The Committee expects its 1985 efforts to Tides Inn Conference convened at the Boar’s The Joint Study Group met as a whole in focus on legislative passage of the above Head Inn Friday, November 30, 1984, at 2:00 Richmond on 7 occasions, and numerous proposals. p.m. Seventy Conference members registered subcommittee meetings were held in addi- and attended the two-day session. Confer- Respectfully submitted, tion. As a result of this effort, a second draft ence and Committee members present in- of a revised Stock Corporation Act was sub- Benjamin C. Ackerly cluded representatives from every part of the mitted to the Virginia Code Commission Thomas C. Brown, Jr. Commonwealth. Among the guests of the during the summer. The draft was based in Robert L. Burrus, Jr. Conference and the Committee were Judge large part on the Revised Model Business Richard H. Catlett, Jr. and Mrs. H. A. Pickford, Judge and Mrs. Corporation Act which was completed by W. Edward Clingman, Jr. Willard Walker, Judge and Mrs. Gerald The American Bar Association’s Committee Page D. Cranford Tremblay, Judge and Mrs. James H. Michael, on Corporate Laws in 1984. The draft also James S. Cremins Judge of the United States District Court for incorporated a large number of suggestions Robert L. Dolbeare the Western District of Virginia, William from the Joint Study Group. The Study E. Tazewell Ellett Ravenel, Assistant Attorney General of Group also submitted to the Code Commis- G. F. Flippin Florida, Delegate Frank Hall, General sion a separate "Commentary" on the second Alexander C. Graham, Jr. Assembly of the Commonwealth of Virginia, draft, containing a number of additional Leslie A. Grandis Professor Neill Alford of the University of suggested amendments. The Code Commis- David I. Greenberg Virginia Law School, formerly Dean of the sion met throughout the summer and fall of John P. Grove University of Georgia Law School, Professor 1984 to consider the material presented to it. Virginia H. Hackney Dan Meador, Professor of Law at the Uni- At its December 6, 1984 meeting the Com- Ray W. King versity of Virginia, Professor Willie Robin- mission approved the entire Act substan- Dennis O. Laing son, Visiting Professor of Law at the Uni- tially as presented, and including virtually Stephen 1~ Larson versity of Virginia, and Marva Jo Camp, all Joint Study Group recommendations. Charles H. Majors President of the Black Law Students Asso- This legislation is expected to be presented Richard A. Minardi, Jr. ciation of the University of Virginia Law to the 1985 General Assembly with a target Joseph R. Mayes School. effective date of January 1, 1986. William G. McClure, III On Friday evening, Conference and Com- At the October, 1984, meeting of the Asso- Jack A. Mollenkamp mittee members and guests enjoyed a cock- ciation’s Executive Committee, the Execu- Thurston R. Moore tail party and banquet. Professor Neill Alford tive Committee unanimously endorsed the David L. Norton of the University of Virginia introduced the Stock Act proposal on behalf of the As- Fred W. Palmore, III evening’s featured speaker, The Honorable sociation. David A. Pankey John Charles Thomas, Justice of the

34 Supreme Court of Virginia. Jtistice Thomas ing a Virginia environmental law case serv- Report of the Committee on spoke on the evolution of the important role ice. The Judiciary played by the judiciary in America. Environmental law overlaps to a great Working sessions convened on Friday degree with administrative law. Accordingly, To The Virginia Bar Association: afternoon and Saturday morning. Among the Committee on Environmental Law Spent .... _The Committee decided to take no action the many issues covered during this year’s considerable time in 1984 working with the in the forthcoming General Assembly re- Conference were: Committee on Administrative Law, provid- specting the Virginia Court of Appeals, judg- (1) importance of providing circuit court ing input to the Governor’s Regulatory Re- ing it better that the Court actually get into judges with law clerks and secretaries; form Commission. That Commission, which operation and develop something of a record (2) amendments or revisions to Title 8.01 is chaired by Delegate Axselle, deliberated at before questions about its organization func- relating to the statute of limitations to pro- length on changes to the Virginia Adminis- tion be reopened. vide for tolling in the event of a defendant’s trative Process Act, and proposed a bill with The implementation of the Court of Appeals active concealment; changes to the 1985 Session of the General and the difficult legislative struggle in select- (3) results of a study concerning procedu- Assembly. ing the judges therefor have possibly created ral merger of law and equity; Respectfully submitted, an opening with respect to another of the (4) whether the Wrongful Death Act should Committee’s long-held objectives: enactment be amended in a number of respects, includ- Brian L. Buniva of merit selection legislation. The Committee ing whether to permit recovery for pain and John Butcher has approved and obtained the endorsement suffering; John F. Cahill of the Executive Committee of draft legisla- (5) whether Virginia should adopt the Michael Campilongo tion which would establish a commission for Uniform Foreign Money Judgments Recog- S. Miles Dumville the nomination of candidates for future posi- nition Act; David E. Evans tions on the Virginia Supreme Court and the (6) whether Rule 1:1 should be amended to Renee R. Falzone Court of Appeals. The Committee is pres- require the clerk to notify counsel of the Lane Gabeler ently exploring the best means of presenting entry of a final unendorsed order; Manning Gasch, Jr. such legislation in a favorable way to the (7) whether Title 8.01 should be amended Timothy G. Hayes General Assembly. The Committee is also to give circuit courts explicit authority to Thomas T. Lawson coordinating with the Committee on Special punish and deter litigation brought in bad Richard D. Mattox, Jr. Issues with respect to educational programs faith or without basis; Patrick M. McSweeney which might be developed and presented on (8) whether Title 8.01 should be amended William L. Rosbe this subject. to clarify that in the event of a structured R. Leonard Vance, Ph.D. Respectfully submitted, settlement by one of many defendants, the Jeter M. Watson remaining defendants, if appropriate, would George B. Wickham Leo R. Andrews, Jr. receive credit only for the present value of James E. Ryan, Jr., Chairman Robert F. Boyd such a settlement. Thomas W. Blue Committee and Conference members pre- William G. Broaddus pared bills on these and other subjects for Stuart B. Campbell, Jr. introduction to the General Assembly. Next W. Randolph Carter year’s Conference is again scheduled for Howard Feller Charlottesville at the Radisson Hotel No- Reno S. Harp, III vember 15 and 16. Edward L. I-Iigshire Report of the Committee on Louis R. Lerner Respectfully submitted, Honoring Members and Judges F. Nelson Light T. S. Ellis, III, Chairman Daniel J. Meador To The Virginia Bar Association: Robert Terrence Ney The Committee on Hgnoring Members Robert C. Nusbaum and Judges reports that it has been in touch Michael L O’Reilly with Mr. Justice John Charles Thomas con- John R. Porter, III cerning his portrait. Justice Thomasis mak- Virginia W. Powell ing arrangements for an artist, and we Joseph P. Rapisarda, Jr. Report of the Committee on anticipate that the portrait will be ready for Conway H. Shield, III Environmental Law presentation at the Summer Meeting of the Julious P. Smith, Jr. Thomas R. Watkins To The Virginia Bar Association: Bar Association. Thomas T. Lawson, Chairman The Committee on Environmental Law Respectfully submitted, traveled to Alexandria for an all-day session Marshall T. Bohannon in May to hear from federal and industry Joseph C. Carter, Jr. trade association representatives on (i) the Donald C. Crounse employee’s emerging "right to know" about Arthur B. Davies, III the presence and danger of chemicals in the Gordon Lewis workplace, and (ii) the enforcement policies David A. Melesco Report of the Committee on of the U.S. Environmental Protection Agency Edward I~ Oast, Jr. Labor Relations and Employment Law in air pollution, water pollution, and hazard- Thomas B. Van Poole, Jr. To The Virginia Bar Association: ous waste matters. This information is being Mark C. Willis considered for inclusion in planned updates Stuart B. ~Campbell, Jr., Three meetings of the Committee on Labor of the Virginia Administrative Law and Chairman ¯ Relations and Employment Law were held Practice Handbook. in 1984. The first meeting was scheduled in In cooperation with the Board of Gover- conjunction with the Association’s mid- nors of the Virginia State Bar Environmen- winter meeting in Williamsburg. At this tal Law Section, the Committee is develop- meeting, the Committee’s activities during

35 the prior year were reviewed and Committee expected to be signed by the Governor and Young Lawyers Section. In response to this assignments were made. It was agreed that become effective on July 1. latter point a proposal was made to the the Committee would again sponsor an Additional ongoing projects of the Com- Executive Committee to amend the member- annual conference on labor relations and mittee include the completion of its legal ship application form and to reallocate re- employment law. A second meeting of the handbook to assist general practitioners in sponsibilities between the two membership Committee was scheduled for May 11, 1984 advising elderly clients and a study of committees. Under the proposal, the Young in Richmond. Atthe second meeting, mem- guardianship laws. Lawyers Section would assume sole respon- sibility for general recruiting, including the bers received a report from the Chairman Respectfully submitted, concerning plans for the annual conference recruiting of new admittees to the bar, con- to be held at the Omni Hotel in Norfolk, Vir- Eric E. Adamson ductirig regional campaigns and soliciting gini~a on October 1-2, 1984. Lecture topics Whittington W. Clement the involvement of lawyers in all segments and speakers were tentatively selected and James E. Cornwell, Jr. of the profession. The Committee of the conference assignments were delegated. Thomas C. Fox Senior Section would focus its attention on The final meeting of the Committee was Edward S. Graves the Patrons Program and efforts to obtain held at the Omni Hotel in Norfolk on Sep- John A. C. Keith 100% membership initially from a target tember 30, 1984 prior to the commencement David W. Patton group of law firms. Ultimately the group will of the annual labor conference. Final confer- Judge John Wingo Knowles be expanded to include all law firms in the ence preparations were concluded and pro- John E. Vihstadt Commonwealth. This proposal was endorsed posed activities for the Committee in 1985 B. Darrell Smelcer by the Senior and Young Lawyers Sections were discussed. William G: McClure, III and was approved by the Executive Com- Robert Dean Pope, Chairman The 1984 conference featured an address mittee. In response to these newly allocated by the United States Solicitor of Labor, the responsibilities, the Senior Committee de- Honorable Francis X. Lilly. Other topics dur- voted a significant amount of time and ing the two day conference included a review energy this year to developing an initial list of Supreme Court and Fourth Circuit equal of target firms. employment decisions, preventive measures In addition to these efforts to increase to minimize liability in wrongful discharge membership, the Committee sought and ob- cases, legal developments involving employee Report of the Committee on tained the approval of the Executive Com- benefit plans, dealing with the problem of Legislative Liaison mittee to modify the composition of the drugs in the workplace, and recent develop- Committee to make it more efficient and To The Virginia Bar Association: ments in litigation under § 301 of the Taft- manageable. Committee members now will Hartley Act. Registrants also witnessed a The Committee’s primary function is one be appointed on an ad hoc and regional mock investigation by the National Labor of liaison between the General Assembly of basis rather than by judicial circuit. Relations Board into illegal campaign con- Virginia and the various standing commit- For the period January 1, 1984 through. duct during a union organization drive. The tees of The Virginia Bar Association. During November 30, 1984, the membership of the Honorable Louis J. D’Amico, Regional Di- the 1984 Session, the members of the Legis- Association increased by 185. rector of the NLRB’s Fifth Region, con- lative Liaison Committee communicated with I wish to thank Warren Zirkle, Dennis cluded the presentation by commenting on the standing committees of the Bar in respect Belcher and Barbara Derry and the other recent legal precedents applicable to the to legislation in which those committees members of the Committee for their hard facts raised in the mock investigation. Ap- were interested. ~work’and support. As is its usual practice, the Committee will proximately 120 persons registered for the Respectfully submitted, 1984 conference. meet shortly after the convening of the 1985 General Assembly at which time it is hoped Patricia M. Sehwarzschild, Respectfully submitted, that each member of the Committee will be Chairman Hill B. Wellford, Jr., Chairman prepared to report as to possible legislation which will come before the 1985 Session. Respectfully submitted, Henry H. McVey, III, Chairman

Report of the Committee on Report of the Committee on Mental Health Legal Problems of the Elderly To The Virginia Bar Association: To The Virginia Bar Association: Although the Committee convened only The primary activity of the Committee on Report of the Committee on once during the year, much was accomp- Legal problems of the Elderly in the last 12 Membership and Admissions lished by its individual members. Del. months has been preparing for and partici- Stambaugh continued his efforts to secure To The Virginia.Bar Association: pating in consideration of legislation regu- enactment of two bills endorsed by the lating facilties providing "life care" for the The goal of the Membership and Admis- Committee--H.B. 4 (Civil Commitment re- elderly. In this connection, members of the sions Committee this year was to increase form) and H.B. 817 (Virginians with Disabil- Committee considered legislation introduced generally the membership of the Association ities Act). Philip Trompeter and other Com- but not voted on in 1984, participated in con- and to expand and enlarge the representa- mittee members have been actively involved siderations of a special group that drafted a tion and participation of all segments of the in these respective efforts. substitute bill, and drafted amendments to profession. In addition to these general goals, Mac McNulty has now been appointed to that substitute bill, which were accepted the Committee sought to streamline the the Department of Mental Health and Men- substantially in their entirety by a commit- procedures employed to gain admission to tal Retardation’s State Human Rights Com- tee of the Virginia Senate. Both the Senate- the Association and to reduce, if not elimi- mittee (chaired by Richard Bonnie). Willis and House have now passed the legislation nate, duplication of efforts by the Member- Spaulding is serving on a Task Force on in substantially similar form,*and it is ship Committees of the Senior Section and Public Guardianship, a service which will be

36 useful to the Committee as it looks into pos- rights actions, and administrative practice Respectfully submitted, before the Department of Corrections and sible legislative proposals in.this area. Indi- Joseph P. Bounds the Parole Board. Tentative plans are to vidual committee members consulted with Robert F. Brooks the Committee on Legal Problems of the hold the seminar in the fall of 1985. Frank E. Brown, Jr. The Committee has also made a major Elderly in connection with the development Donald H. Clark effort to improve inmates’ access to attor~.-- of its handbook. John P. Grove Finally, an area of interest to the Commit- neys and to the courts. Because the Commit- Peter G. Manson tee discovered instances where inmates were tee in the coming year is the impact of zon- Roderick B. Mathews unaware of the availability of court-appoint- ing and restrictive covenants on the location Henry W. McLaughlin, III ed counsel in many Virginia institutions, we of group homes for the mentally disabled. Henry H. McVey, III have tried to persuade the Department of Respectfully submitted, Leigh B. Middleditch, Jr. Corrections to issue regulations requiring Stephen A. Northup Honorable Bernard G. Barrow the posting of notices that inform inmates of Vernon B. Oakley, Jr. Susan L. Canby their right to see these attorneys. In addi- John W. Pearsall, III Charles S. McNulty, III tion, the Committee is working with the Paul E. Sutton, II Willis J. Spaulding Department to develop a system whereby James W. Jennings, Jr., Honorable Warren G: private attorneys can place direct long-dis- Chairman Stambaugh tance telephone calls to inmates. Philip Trompeter The Committee has a busy agenda for Richard J. Bonnie, 1985 and seeks to encourage any member of Chairman the Association with an interest in criminal law and corrections to volunteer to become a member of the Committee and to become active in its efforts to improve Virginia’s Report of the Committee on correctional system. Public Relations/Publicity Respectfully submitted, To The Virginia Bar Association: Nate L. Adams, III Report of the Committee on The Public Relations/Publicity Commit- Thomas B. Baird, Jr. Prisons and Corrections tee of The Virginia Bar Association has con- A. Hugo Blankingship, Jr. tinued to be an adjunct member of all com- To The Virginia Bar Association: Glen E. Conrad mittees of the VBA and has continued to Brian J. Donato 1984 has been a very active and productive play an active role in publicizing activities of Kevin P. Donovan year for the Committee. At its first meeting other substantive committees via newspaper James M. Pates, Chairman in February, the Committee decided to focus and radio announcements. It was this Com- its efforts over the next two years on educat- mittee’s decision to let other committees ing the Virginia bar and the public about the generate the news for us to disseminate. state’s prison system and about recent devel- Meanwhile, the Public Relations Committee opments in prison law. Specifically, three circulated 30-second spot audio cassettes to projects were launched: radio stations and audiovisual cassettes to (1) An educational program on corrections television stations on topics of public service. Report of the Committee on for the general membership of the Associa- The Committee established a network of tion at its 1985 mid-winter meeting in Wil- Professional Responsibility Virginia media contacts which can be util- liamsburg. As of the date of this report, final To The Virginia Bar Association: ized in years to come for publicizing VBA plans are being made for this panel discus- functions. It is a future goal of the Commit- The Committee on Professional Responsi- sion. The program is entitled "The Crisis at tee to have our services more uniformly Mecklenburg: What Do We Do With the bility has undertaken three major projects employed by other committees of the VBA during the year, two of which are ongoing. Worst Criminals?" and will deal with the for the purpose of serving as a clearing- First, the Committee on Professional Respon- broad issue of how society should deal with house and contact for all activities. its long-term and dangerous offenders. sibility submitted an analysis prepared by Respectfully submitted, (2) A physical inspection of Virginia’s the John Marshall Scholars to the Virginia adult prison system. In order to educate the State Bar for its use in evaluating the ethical John Anderson members of the Committee on the state’s issues associated with house counsel em- Douglas Guynn entire prison system, plans were made to ployed by insurance companies representing Martha W. Meadley conduct tours of at least ten of the state’s the employers’ insureds in civil actions. Michael L. Goodman, Chairman prisons. Efforts are being made to gather Second, the Committee has undertaken a extensive information about each facility, to study of excesses in lawyer advertising and interview Department personnel and in- the avenues available to The Virginia Bar mates, and to compare the Committee’s find- Association for dealing with these excesses. ings with national standards for corrections. Third, the Virginia State Bar has under- By December 31, 1984, the Committee will taken a review of its disciplinary procedures have completed tours of the penitentiary in and the Committee for Professional Respon- Report of the Committee on Richmond, Staunton Correctional Center, sibility of The Virginia Bar Association will Public Service and Mecklenburg Correctional Center. participate as appropriate in this review. A To The Virginia Bar Association: (3) A one-day legal workshop for attor- special study group of the Virginia State Bar neys and corrections personnel in prison is to submit its report to the Virginia State Unlike most other Associatio~ Commit- law. This workshop will be conducted and Bar at its 1985 meeting to be held at Virginia tees, the Public Service Committee has a rel- sponsored in conjunction with the Commit- Beach on June 17, 1985. A review of the atively short history; therefore, some back- tee on Continuing Legal Education of the report and the comments of The Bar Associa- ground on the Committee’s work to date may Virginia Law Foundation. The program will tion will be submitted to the State Bar at be useful. focus on habeas corpus, Section 1983 civil that meeting. The Public Service Committee was estab- 37 lished following a recommendation from the commendations with respect to thirteen dif- In conclusion, the Public Service Commit- Association’s Long Range Planning Com- ferent public service projects and the Execu- tee thanks the Executive Committee for the mittee that the Senior Association take a tive Committee considered those recom- diligence with which it has considered and more active and visible role in the public mendations at length at its July meeting at acted upon the Committee’s recommenda- service area. In January of this year, the the Homestead. tions. The Committee also notes its appreci- Phblic Service Committee was charged by The Committee recommended that the ation to the Association’s Executive Direc- the Executive Committee to be a "think Association publish a brochure to be distrib- tor, Joan Mahan, who met with the Com- tank" for the Association with primary uted to Virginia jurors. This publication mittee and was most helpful, during its emphasis on possible public service projects. would address such topics as the method of deliberations. Because the Young Lawyers Section was selecting jurors, excuses from jury service, Respectfully submitted, already involved in a number of public serv- the Court’s instructions, the procedure fol- ice projects, the Chairman-Elect of the Young lowed in civil and criminal cases, a juror’s William R. Alcott, Jr. Lawyers Section was asked to serve as an conduct and common juror questions. The J. Edwards Betts ex-officio member of the Committee. This Executive Committee referred this project to Clifford A. Cutchins, IV development has been very helpful in avoid- the Criminal Law and Civil Litigation Com- James A. L. Daniel ing possible duplication of effort and also in mittees. Barbara Tessin Derry discussing possible joint public service pro- The Committee was very impressed with Marcia Gelman jects between the Senior Association and the handbooks published by The North Caro- William G: Hancock Young Lawyers Section. The Committee has lina Bar Association and The State Bar of Hugh L. Patterson also identified certain public service activi- Georgia on laws and programs affecting the George H. Roberts, Jr. ties which it believes might be best under- elderly. The Committee was pleased to learn Robert C. Wood, III taken by the Young Lawyers Section and the that the Association’s Committee on Legal Thomas C. Brown, Jr., presence of the Chairman-Elect has been Problems for the Elderly has a similar proj- Chairman very valuable during those discussions. ect nearing completion. The Public Service Committee held its first The Committee reported favorably on the meeting in Richmond on April 4, 1984. There idea for a handbook for laymen on the was preliminary discussion concerning administration of estates. The handbook whether the Committee would function solely would not be a "do-it-yourself" guide but as a "think tank" or whether the Committee would provide very helpful general orienta- would also become involved with specific tion for laymen who suddenly find them- projects. As the Committee’s deliberations selves executors of estates. The Executive proceeded, a consensus grew that Committee Committee referred this project to the Com- involvement with specific projects may prove mittee on Wills, Trusts and Estates. Report of the Committee on to be a distraction from the Committee’s The Committee reviewed several public Real Estate primary mission. service programs relating to abused and neg- To The Virginia Bar Association: In order to gather additional facts and lected children. Since the Young Lawyers information for its recommendations, mem- Section is already active in this area, the During the past year, the Real Estate bers of the Committee reviewed voluminous Executive Committee made no specific re- Committee has focused primarily on legisla- materials from The American Bar Associa- commendations in this area. The Committee tion affecting the practice of real estate. tion regarding public service activities, the did find a positive response from Judges and Working closely with the Board of Gover- most recent Virginia Bar Association Com- juvenile agencies in Northern Virginia to the nors of the Real Property Section of The Vir- mittee reports, the most recent Young Law- idea of a manual for lawyers representing ginia State Bar during the 1984 s~ssion of yers Section Award of Achievement Appli- abused and neglected children. the General Assembly, we successfully op- cation, and the results of a recent member- The Committee reported favorably on the posed an amendment of the Wet Settlement ship survey. The Virginia State Bar was idea for a series of pamphlets for the’general Act which would have required settlement contacted to ascertain what public service public on such topics as marriage, child cus- attorneys to disburse settlement proceeds on activities it currently had in place or had tody, buying on time, buying a home, traffic certain uncleared checks. The Committee planned. Finally, the Committee contacted Court, landlords and tenants, and what to also monitored hearings on the proposed Bar Associations in North Carolina, West do in case of an automobile accident. The Model Title Insurance Act and successfully Virginia, the District of Columbia, Georgia Executive Committee reported this idea to opposed a bill that provided for setting of and Texas to learn what public ~ervice activ- the Young Lawyers Section for further con- title insurance risk rates. We supported the ities those Bars have found successful. sideration. It is possible that these pam- proposed Scrivener’s Bill to require the pre- The Committee met again on May 30, 1984 phlets may be developed jointly by substan- parers of legal documents conveying an to review and discuss the information indi- tive law committees working with the Young interest in real property to indicate on the vidual Committee members had gathered Lawyers Section. document the name and address of the gran- and to formulate specific recommendations The Committee recommended that the tee. This bill was carried over to the 1984 to the Executive Committee for its consider- Young Lawyers Section be asked to consider session. ation at the Summer Meeting in July. sponsoring on~ampus programs for pro- The Committee has alerted members to The Public Service Committee found that spective law students attending Virginia col- new microfilm standards proposed by the the great majority of public service projects leges. This recommendation was referred to Virginia Library Board for all documents to by other Bar Associations have been publi- the Young Lawyers Section. be recorded in the clerk’s office of the circuit cations (e.g. pamphlets, brochures and hand- The Public Service Committee also recom- courts. Of particular interest is the require- books) of interest to the general public. The mended that the association be active in the ment that all writings, including signatures, Committee also learned that the costs of area of alternative dispute resolutions and be in black ink, and that all documents be printing and distributing these publications victim/witness programs. printed only on one side of the paper. These have been paid for by Bar Foundations, The Committee also advised the Executive standards will affect deeds and deeds of financial institutions, private foundations, Committee of several other public service trust, under legislation adopted in 1983. Bar Association budgets and by per-cop~ .... projects which it is considering but which The Committee has continued to explore charges for the publications, need further study before a recommendation ways of educating the public as to the role of The Public Service Committee made re- can be made. lawyers in real estate transactions. 38 Respectfully submitted, the Committee members dated February 24, Report of the Committee on Taxation 1984. Thomas M. Ammons, III As a result of the April 9 meeting, we tar- To The Virginia Bar Association: Marshall Andrews geted November 9 as the dat~ on which we Philip J. Bagley, III The activities of the Committee on Taxa- would conduct a forum on judicial selection...-tion during 1984 continued to focus primar- John W. Bates, III issues. Panelists and speakers were con- ily on taxation at the state and local levels. Charles J. Brown, III tacted and requested to hold the date. Henry L. Carter Our committee enjoys a close working rela- Richard E. Carter The bill which the Association has en- tionship with the Section on Taxation of the dorsed will be presented in the 1985 sessibn, David S. Cohn Virginia State Bar and undertakes many C. Lacey Compton, Jr. but the approval of the proposed legislation projects on a joint basis with that group. did not permit the Committee to go forward Branch H. Daniels The Joint Legislative Review Subcommit- with its plans for November 9, which were Thomas B. Davidson, Jr. tee reviewed each tax bill introduced at the John E. Donaldson cancelled. The Committee continues to be 1984 session of the General Assembly, focus- Romayne L. Frank interested in conducting an educational pro- ing primarily on drafting and other non- Norman Earl Griggs gram on the issue of judicial tenure, selection substantive issues. In-depth comments were Edward S. Hirschler and compensation. This project will carry submitted to the patrons of more than thirty Leighton S. Houck into 1985, subject to developments with the different pieces of legislation. Every member Shirley Bowman Jameson Association’s bill. of the Committee on Taxation participated Richard B. Kaufman The project to provide clerks for local in this effort which was chaired by Bob Lee Neil S. Kessler judges was continued, in that in conjunction and Tom Millhiser. Fred S. Landess with the University of Virginia Law School, The Orwellian Year coincided with the Charles M. Lollar clerks were provided to the resident Judges Virginia Department of Taxation’s efforts to Marcus H. Long, Jr. of the circuit courts of the City of Charlot- publish in final form regulations on all the R. Hunter Manson tesville and Albemarle County. The program taxes it administers. The Joint Regulatory Conard B. Mattox, III was expanded to provide a clerk for the Uni- Review Subcommittee, chaired by Sally R. Dennis McArver ted States Magistrate resident in Charlot- Warthen, reviewed over twenty different sets Charles L. Menges tesville. The program was funded by a grant of proposed regulations and submitted de- William R. Moore, Jr. from T~_e Charlottesville-Albemarle Bar As- tailed comments on most of the significant Patrick H. Musick sociation, funds from the University of Vir- ones. Once again, almost every member of Thomas Newton ginia Eaw School’s Dean’s Discretionary the Committee on Taxation participated in George W. Rowe Fund and private sources. this effort. Thanks to Sally’s advance work, John Rust, Jr. There was no action recommended by the the Department of Taxation was able to George W. Sadler subcommittee dealing with in vitro fertiliza- incorporate many of our committee’s com- Eugene Schonberger tion issues. ments into the proposed regulations before Wilson E. Sheridan The Committee has continued to consider they were issued for public comment. Gerald W. Sklar publishing a guidebook for administrators Three meetings were held during 1984 Michael K. Smeltzer dealing with the area of proscribed religious with public tax officials. In June, members Donald H. Spitzli, Jr. activities. of the Committee on Taxation participated Courtland L. Traver The first meeting of the Committee for with the Virginia Society of Certified Public Walter F. Witt, Jr. 1985 will take place on January 11 in con- Accountants in meetings in Richmond with Minerva W. Andrews, Chairman junction with the Mid-winter meeting. representatives of both the Virginia Depart- The Committee continues to be composed meant of Taxation and the Internal Revenue of a mix of lawyers and non-lawyers~ Service. In November, Rob Muething repre- Respectfully submitted, sented the Bar Association in Philadelphia C. Torrence Armstrong at a meeting of the Regional Liaison Com- James Ashby, III mittee for the Mid-Atlantic Region of the Margaret I. Bacigal Internal Revenue Service. Susan C. Bolton Plans are underway to expand signifi- Herbert A. Claiborne, III cantly the Newsletter, published jointly with The Reverend George E. the Section on Taxation, into a quarterly Conway publication to be known as the Virginia Tax Report of the Committee on The Honorable B. Waugh Reporter. The Reporter will include copies of Special Issues of State Crigler all significant tax materials published by and National Importance Patricia K. Epps the Department of Taxation and the Attor- To The Virginia Bar Association: Lawrence H. Framme, III ney General’s office. Emeric Fisher, who has Gail A. Galloway almost singlehandedly edited the Newsletter The committee met as a whole on April 9, Elizabeth B. Lacy in past years, will continue as Editor-In- 1984 in Richmond. At that time, it was antic.- Dr. James McClellan Chief of the Reporter. He will be assisted by ipated that the primary goal of the Commit- Thurston R. Moore an editorial board including Bob Lee, Tom tee would be to act on the project relating to Richard D. Rebertson Millhiser, and Jerry Wilson. judicial tenure, compensation and merit se- Jay T. Swett lection. Based on the desire of the Associa- Respectfully submitted, Mark L. Tysinger tion to foster a judicial selection bill, the Stephen H. Watts, II William L. S. Rowe, Chairman committee was requested not to go forward John W. Zunka with any specific activities until such time David Craig Landin, Chairman as the Association was ready to act on its draft bill. Accordingly, we targeted further commit- tee meetings for the balance of 1984 in ac- cordance with the attached memorandum to

39 Report of the Committee on court appointed guardian’s authority and scribed. Mr. Conner’s committee has once Wills, Trusts and Estates that of the ward’s attorney-in-fact. David again prepared an outstanding program, to Addison and former committee chairman be held April 28 through 30, 1985. To The Virginia Bar Association: Thomas Word secured the introduction and Respectfully submitted, The Committee on Wills, Trusts and Es- ultimate passage of a statute dealing with tates met only once in 1984, during the Asso- the qualification of so~alled QTIP trusts. David D. Addison ciation’s annual meeting in Williamsburg. The Committee also discussed possible legis- Neill H. Alford The Committee’s activities during the year lation cordinating the taxation of powers of Dennis I. Belcher did not require further meetings of the whole appointment under the new Virginia estate Stephen L. Best Com~nittee. tax and now-revoked inheritance tax. Stuart E. Brown, Jr. .The primary work of the Committee con- During 1983 Rodney Johnson and Dan Whittington W. Clement tinues to be a review of Virginia probate, Stevens had worked closely and at great Douglas W. Conner trusts and estates law with a view toward its length with the General Assembly’s Joint C. L. Dimos possible improvement. Professor John E. Subcommittee Studying the Transfer of John E. Donaldson Donaldson, chairman of the subcommittee Property at Death. Our Committee concluded Malcolm Pitt Friddell studying Virginia wills law, secured the in late 1983 that it could not support the Edward S. Graves introduction in the 1984 General Assembly Joint Subcommittee’s proposals but assured Edward O. Henneman session of a number of bills dealing with the Subcommittee of our continued assist- J. Rodney Johnson changes in Virginia wills law. The bills were ance if the Subcommittee’s term were to be Joseph C. Knakal, Jr. carried over to the 1985 session, and Profes- extended into 1984. Unfortunately, ~he Joint Vincent L. Parker sor Donaldson attended several interim Subcommittee was not continued, and no Robert H. Powell, III meetings of the Senate Courts of Justice further work at the General Assembly level Dexter C. Rumsey, III Committee on behalf of our Committee. Sub- was done on this project during 1984. It will Stanley L. Samuels committee studies of two other major areas be continued in 1985. Robert M. Saunders of Virginia probate law, intestate succession The Committee, under the leadership of Jane L. Sehwarzschild and protection of persons under disability, Doug Conner’s Continuing Education Sub- Fred W. Shields, Jr. are still in progress. committee, produced its fifth Annual Ad- C. Daniel Stevens Several smaller legislative matters were vanced Estate Planning and Administra- J. Hume Taylor discussed at the January meeting and were tion Seminar at the Tide’s Inn from April 29 Charles C. Webb carried to completion. Professor Rodney through May 1. As before, the faculty con- Martha A. Zaritsky Johnson led a successful effort to effect cer- sisted of Virginia practitioners and a number Howard H. Zaritsky tain modifications in the Virginia Uniform of out-of-state speakers. The seminar was Harry J. Warthen, III, Gifts to Minors Act and to enact legislation again financially successful and, for the first Chairman dealing with the relationship between a year of the program’s history, was oversub-

40 The Association notes with deepest regrets the passing of the following members:

Marshall Andrews ...... 1899-1984 (Life Member)

The Honorable Henry R. Miller, Jr ...... 1890-1984 (Life Member)

Stanley A. Owens ...... 1907-1984 (Life Member)

J. Enos Ray ...... 1913-1984

The Honorable Forrest B. Wall ...... 1919-1984

J. M. H. Willis ...... 1898-1984 (Life Member)