2004 ANNUAL MEETING

PREVIEW INSIDE! Journal News • VBA

The Official Publication of The Bar Association

Volume XXIX, Number 8 December 2003/January 2004 VBA• •

Suite 1120 701 East Franklin Street Richmond, VA 23219 News Journal (804) 644-0041 FAX (804) 644-0052 THE VIRGINIA BAR ASSOCIATION E-mail: [email protected] VOLUME XXIX, ISSUE 8 • DECEMBER 2003/JANUARY 2004 Web: http://www.vba.org

President 4 • President’s Page: Frank A. Thomas III, Orange Why I’m a Believer President -elect Frank A. Thomas III E. Tazewell Ellett, Alexandria Immediate Past President 6 • VBA Annual Meeting Preview J. Edward Betts, Richmond A meeting registration form, highlights, CLEs and a schedule of events Young Lawyers Division Chair Stephen D. Otero, Richmond 10 • Marbury v. Madison Bicentennial: Young Lawyers Division Chair-elect John Marshall Revisited on Marbury’s 200th Anniversary Stacy M. Colvin, Richmond Justice Donald W. Lemons’ reflections on the life and character Law Practice Management Division Chair of “The Great Chief Justice” Heman A. Marshall III, Roanoke Chair, Board of Governors 16 • Legal Focus/Needs of Children: James V. Meath, Richmond Guardian ad litem performance standards promulgated Board of Governors The Officers and Professor Robert E. Shepherd Jr. Hon. William G. Broaddus, Richmond Ann T. Burks, Richmond 18 • Many Thanks to the VBA Patrons for 2003 Marilynn C. Goss, Richmond Prof. Roger D. Groot, Lexington 19 • Young Lawyers Division: Glenn C. Lewis, Fairfax Hon. William C. Mims, Leesburg Mountains of projects reviewed at Wintergreen meeting Frank West Morrison, Lynchburg Stephen D. Otero D. Alan Rudlin, Richmond Gregory T. St. Ours, Harrisonburg Harriette H. Shivers, Roanoke 20 • Across the Commonwealth Hon. Diane M. Strickland, Roanoke VBA plans for 2004 General Assembly • Virginia Business William R. Van Buren III, Norfolk announces “Legal Elite” for 2003 • New schedule for VBA News Hon. John E. Wetsel Jr., Winchester Journal • Spring conferences planned • VBA/YLD slate for 2004 Member of ABA House of Delegates Hon. R. Terrence Ney, Fairfax 21 • News in Brief Legislative Counsel 22 • Professional Announcements Anthony F. Troy, Richmond Robert B. Jones Jr., Richmond 24 • Calendar Anne Leigh Kerr, Richmond Executive Vice President On the Cover: A snowy view of Williamsburg, site of January’s VBA Annual Meeting, Charles Breckenridge Arrington Jr. in a departure from our usual practice of featuring a Virginia courthouse. Photo by Director of Programs Caroline Cardwell. One hundred forty photographs of Virginia courthouses are contained Brenda J. Dillard in Virginia’s Historic Courthouses, written by John O. and Margaret T. Peters with a VBA News Journal Editor foreword by the late Justice Lewis F. Powell Jr.; photographs by John O. Peters; published Caroline Bolte Cardwell by University Press of Charlottesville; and sponsored by The Virginia Bar Association. To order the book, call the VBA at (804) 644-0041 or 1-800-644-0987. OUR MISSION The Virginia Bar Association is a voluntary VBA NEWS JOURNAL, the official publication of The Virginia Bar Association (ISSN 1522-0974, organization of Virginia lawyers USPS 093-110), is published eight times per year (December/January, February, March/ April, committed to serving the public and the May, June/ July, August, September/October and November). Membership dues include the legal profession by promoting the highest cost of one subscription to each member of the Association. Subscription price to others, $30 standards of integrity, professionalism, per year. Statements or expressions of opinion appearing herein are those of the authors and and excellence in the legal profession; not necessarily those of the Association, and likewise the publication of any advertisement is working to improve the law and the not to be construed as an endorsement of the product or service unless specifically stated in administration of justice; and advancing the advertisement that there is such approval or endorsement. Periodicals postage paid at collegial relations among lawyers. Richmond, VA 23232. POSTMASTER: Send address changes to The Virginia Bar Association, 701 East Franklin Street, Suite 1120, Richmond, VA 23219. PRESIDENT’S PAGE Why I’m a Believer by Frank A. Thomas III

The last President’s Page of the bar year has traditionally been a How do you justify paying dues to combination of Garrison Keillor and a voluntary bar organization? It’s Douglas MacArthur — a easy. The VBA is worth it for the retrospective and an inspiring farewell. My tendencies have always value it brings to its members... been more in the direction of Keillor, It is also worth it for the so I will spend my last page contributions our Association reviewing the past year. makes to society and public Much of our work this year has carrying on the programs and service. Who else can speak for projects of which we are justifiably those who have no effective voice proud. Our legislative program was a than the only statewide bar success, as we were able to get 30 of with the creation of the organization without any agenda the 36 bills we sponsored enacted Community Service into law. The Young Lawyers Program Council which or specific affinity? Division continued to shine and will encourage and received national recognition once support both traditional again. Our seminars, conferences pro bono service as well as service to new members. We all can be very and meetings served an estimated our communities in general. This grateful to Greg St Ours, the chair of 1,525 people. Our members organization will foster the this committee, for all the energy continue to be recognized as commitment of our members to and enthusiasm he brings to it. outstanding lawyers representing 73 public service of which we have A second result was a percent of the Virginia lawyers listed been justifiably proud. restructuring of the Patron program. in The Best Lawyers in America and Our restructuring and program While the Patron program gave VBA 80 percent of the lawyers in Virginia growth has not been without cost. members the chance to do something Business’ “Legal Elite.” Our public While our staff has an uncanny over and above dues to support us, it service programs continue to serve ability to make silk purses out of was a modest program without a the Commonwealth and particularly sows’ ears, even they have not been particular focus. those of its citizens who might not able to pull this off within the Beginning in 2004, Patron otherwise have an effective voice. existing budget. The impact of this contributions will support the work Most of what I have described is expansion, together with a change in of the VBA Foundation, which will plainly evident from even a cursory policies on dues and other expenses assume appropriate public interest review of our publications and of some of our larger law firms, has programs of the Association. The newsletters. What may not be so caused us to begin a serious program will be expanded to three evident is the work the VBA consideration of our sources of levels of giving: the traditional $100 leadership has been doing. Our revenue. level, as well as additional levels of focus this year has been in bringing One of the results of this focus is $250 and $500. to fruition the planning process we the creation of our Membership Donors at each level will receive began three years ago under the Committee and its constituent appropriate recognition. All Patron Presidency of Anita Poston and Regional Advisory Committees. dues at every level will be eligible continued through the terms of Membership has traditionally for a tax deduction as charitable Jeanne Franklin and Ed Betts. received less attention from the contributions. You will see the first The plan has brought a Board than other matters. It has now evidence of this new opportunity on restructuring of our Board to reflect become a priority. Advocacy for your dues statement for 2004. both operational considerations and membership has moved from the We have also spent a significant program issues. The last piece of this staff to the membership as we are amount of time exploring non-dues restructuring is falling into place casting a broad and ambitious net for revenue projects. We have examined 4/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL DECEMBER 2003/JANUARY 2004 our existing affinity programs. One statement comes. Think about how As you can tell, I am a believer. result is an improvement to the you can get more for your dues by The experience of the past year has benefits we can offer our members becoming more deeply involved with confirmed and deepened my belief. I through the VBA credit card and its Section or Committee work or have had the opportunity to watch World Points program. something else we are doing that our members carry on the good work Another result is the insurance interests you. of which we are so proud. I have program of the Virginia Barristers Reach out to a good lawyer who is been humbled by the depth of their Alliance. This insurance program not a VBA member and get him or involvement and commitment. I am offers comprehensive group and her to join. Both the VBA and the profoundly grateful for the work they individual coverages with costs and new member will be the better for it. are doing. quality comparable to any coverages Think about the Barristers While Ted Ellett will have this job available to our members. In the Alliance for your insurance needs. next year, I look forward to case of some individual products, Check out the VBA credit card. supporting the work of our discounts are available to VBA Put the VBA Foundation on the Association in the years to come. members that bring the cost of list of the charitable organizations Thank you very much for giving the coverage below what you might you support. We will only be as good opportunity to do so this year as your otherwise expect to pay. These an organization as you help us to be. President. VBA programs offer our members the ability to both help themselves and help the VBA. And yes, we have also looked at dues. The dues statements for 2004 will show an increase. Our first since 1998. In making the change, we have tried to be sensitive to younger lawyers and keep the line at the existing level of $150 for lawyers with five or fewer years of practice. Public service lawyers and law school faculty will still pay half the normal dues. The rest of us will have annual dues of $200. How do you justify paying dues to a voluntary bar organization in the face of all the other organizations that vie for your dollars? It’s easy. The VBA is worth it. Worth it in the value it brings to its members through the Law Practice Management Division; participation in Section and Committee work; providing an opportunity to give back through public service; and in creating the opportunity to work and interact with the best lawyers in the Commonwealth, to name but a few. It is also worth it for the contributions our Association makes to society and public service. Who else can speak for those who have no effective voice than the only statewide bar organization without any agenda or specific affinity? We hope you will do more than simply sigh and sign the check for the new dues when your membership

DECEMBER 2003/JANUARY 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/5 6/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL DECEMBER 2003/JANUARY 2004 The 114th Annual Meeting OF THE VIRGINIA BAR ASSOCIATION JANUARY 15-18, 2004 • COLONIAL WILLIAMSBURG

Schedule of Events Highlights and Headliners Thursday, January 15 10 a.m.-3 p.m. Virginia Law Foundation Virginia Opera stars to perform at banquet Committee Meetings/ Prepare for an elegant and festive evening on Friday, January 16! Stars of the Board Luncheon Meeting Virginia Opera will perform selections from their most popular productions for Noon-4:30 p.m. our traditional banquet. The banquet will be preceded by a black-tie reception, Board of Governors Luncheon from which guests will be ushered by Colonial Williamsburg’s Fife and Drum Meeting Corps. In addition to the Virginia Opera performance, selected awards will be 2-6 p.m. presented. Afterwards, VBA members, spouses and guests are invited to the Registration and Information President’s Reception. Plan to attend this gala series of events for a Friday 5-6 p.m. night you won’t soon forget! Friends of Bill W. (Open meeting) 6:30-7:30 p.m. Gaze into the future of law pra ctice management Welcome Reception On Friday, January 16, from 11 a.m. to 12:30 p.m.. the VBA Law Practice Entertainment by The Virginia Management Division presents futurist Jay Jamrog, who will discuss “Are Gentlemen, an a cappella choral Demographics Really Destiny? Your Life and Practice in the Midst of Generational group from the University of Change.” Jamrog will use current demographics to illustrate what tomorrow’s Virginia. workforce will look like, considering such critical elements as recruitment, Courtesy of Colonial Williamsburg retention and benefits. Spouses and guests are invited to attend this look into 7:30-9:30 p.m. our future workplace! Following the general session, the VBA/LPMD has also Virginia Law Foundation Fellows arranged for Jamrog to provide “A Futurist’s Look at the Changing Work Force” at Dinner and Induction Ceremony the Managing Partners Roundtable Luncheon. MPs will not want to miss this in- depth discussion of emerging issues! At the same time, the annual Small Firm Friday, January 16 Information Exchange Luncheon will offer solo and small-firm practitioners 8 a.m.-6 p.m. some practical tips on “Taming the Paper Tiger: Tips and Techniques for Registration and Information Managing Documents and Information in Your Practice.” 8:15-9:15 a.m. Continental Breakfast Courtesy of Virginia Business Special Issues looks at church/state separation Magazine “Is the Wall Just Tumbling Down? The Separation of Church and State as 2004 8:30-9:30 a.m. Begins” will be presented as a general session on Friday afternoon. Organized by Past Presidents’ Council the VBA Committee on Special Issues of National and State Importance, the Breakfast program will feature insights from nationally-known experts in constitutional 8:30-9:30 a.m. law, including Jay Sekulow, chief counsel for the American Center for Law and Section and Committee Justice; Rodney Smolla, dean of the University of Richmond School of Law; The Business Meetings Right Rev. Peter James Lee, Bishop of the Episcopal Diocese of Virginia; Prof. 8:30 a.m.-5 p.m. William Van Alstyne of the Duke University School of Law; and author David Exhibits France. Get ready for an exciting, intellectually stimulating discussion of current 9:30 a.m.-12:30 p.m. religious and political issues! Spouses and guests are invited to attend. CLE Programs: Concurrent Sessions (See separate listing) 10 a.m.-Noon Have a literary lunch with ‘ Books and Authors’ YLD Law School Liaison Bookworms unite! Building on the popularity of the VBA Legacy Series, meeting Recruiting Roundtable planners have set up the first-ever “Books and Authors” Luncheon for Saturday, 10-11:30 a.m. January 17, immediately following the midday reception. Members, spouses and Spouse/Guest Program: A guests are invited to attend. If you’re a book-lover looking for recommended Culinary Demonstration and Tasting reading, don’t miss this event! Separate fee required. (Separate registration and fee required) Continued on next page DECEMBER 2003/JANUARY 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/7 Schedule of Events Continuing Legal Education Programs Friday, January 16 Friday, January 16 (continued) 9:30-11 a.m. 11 a.m.-12:30 p.m. Environment, Natural Resources and Energy Law Section: “Environment Law: General Session: “Are Trends and Changes Every Practitioner Needs to Know.” (1.5 Credits) Demographics Really Destiny? Intellectual Property and Information Technology Law Section: “Eye of the What We Can Learn About Our Beholder: Client Perceptions of Ethics Issues in Intellectual Property Law Future.” A presentation by the VBA (Expanded and Enhanced).” (1.5 Credits/1.5 Ethics) Law Practice Management Division. Judicial Section and Domestic Relations Section: “Who Has the Burden of Proof 11:30 a.m.-3:30 p.m. and For How Long? Issues in Equitable Distribution.” (1.5 Credits) Virginia Public Defender Labor Relations and Employment Law Section: “Top Ten Ways to Get Sued: Commission Meeting/Luncheon Legal Traps for Unwary Employers.” (1.5 Credits) 12:30-2 p.m. Virginia Joint Committee on Alternative Dispute Resolution: “Arbitration in Small Firm Information Virginia — Past, Present and Future.” (1.5 Credits) Exchange Luncheon: “Taming the 11 a.m.-12:30 p.m. Paper Tiger: Tips and Techniques General Session/Law Practice Management Division: “Are Demographics Really for Managing Documents and Destiny? What We Can Learn About Our Future.” (No Credits) Information in Your Practice.” Civil Litigation Section: “The Wired Courtroom: The Use of Audiovisuals in Sponsored by the VBA Law Practice Today’s Courtroom.” (1.5 Credits) Management Division. 12:30-2 p.m. 12:30-2 p.m. Small Firm Information Exchange Luncheon: “Taming the Paper Tiger: Tips and Managing Partners Roundtable Techniques for Managing Documents and Information in Your Practice.” (No Luncheon: An in-depth discussion Credits) Sponsored by the VBA Law Practice Management Division. Register with demographer Jay Jamrog. separately; additional fee for lunch. Sponsored by the VBA Law Practice VBA Legacy Series Luncheon and Program: “FFVs: First Felons of Virginia (and Management Division. Other Legislative Moments in Virginia History).” (No Credits) A presentation by 12:30-2 p.m. Frances Pollard of the Virginia Historical Society based on recent research on the VBA Legacy Series Program subject. Register separately; additional fee for lunch. and Luncheon: “FFVs: First Felons of Virginia (and Other 2-3:30 p.m. Legislative Moments in Virginia General Session/Committee on Special Issues of National and State Importance: “Is the Wall Just Tumbling Down? The Separation of Church and State as History).” A presentation by 2004 Begins.” (1.5 Credits) Frances S. Pollard of the Virginia Historical Society. (Register 3:45 p.m.-5 p.m. separately; additional fee for lunch) General Session/VBA Board Committee on Legislation: “2004 Legislative 12:30-2 p.m. Preview.” (1.5 Credits) YLD Executive Committee and Saturday, January 17 Council Luncheon and Passing 9-10:30 a.m. of the Gavel Bankruptcy Law Section: “Discharging Taxes in Bankruptcy.” (1.5 Credits) 12:30-4:30 p.m. Criminal Law Section: “Post-Conviction Remedies: Issues in the Beverly Virginia Association of Defense Monroe Case.” (1.5 Credits) Attorneys Board Meeting and Luncheon Health Law Section: “The HIPAA Privacy Regulations: A Discussion for the Non- 2-3:30 p.m. Health Lawyer (or What Real Lawyers Should Know About HIPAA.” (1.5 Credits/.5 Ethics) General Session: “Is the Wall Just Tumbling Down? The Transportation Law Section: “Ticket to Jail? Criminalization of Transportation Separation of Church and State as and Other Regulatory Offenses.” (1.5 Credits) 2004 Begins.” A presentation by Wills, Trusts and Estates Section: “What Every Estate Planning Attorney Should the VBA Committee on Special Know About Divorce, Custody and Adoption — But Was Afraid to Ask.” (1.5 Issues of National and State Credits) Importance. 10:30 a.m.-Noon 3:30-3:45 p.m. Business Law Section: “Preparing a Company for Sale or ‘Exit.’” (1.5 Credits) Refreshment Break General Session/Civil Litigation Section: “Mold Litigation, Science, Insurance Courtesy of Hunton & Williams and the Law.” (1.5 Credits) 3:45-5 p.m. Elder Law Section: “A Double Dose of Elder Law: 1) Advising Your Older Client General Session: “2004 on Housing Options and 2) Important Information Every Private Practitioner Legislative Preview.” A Should Know About Legal Aid Issues.” (1.5 Credits/.5 Ethics) presentation by the VBA Board Lawyers Helping Lawyers Program: “The High Cost of Practicing Law: Depression Legislative Committee. and the Changing Focus of Lawyers Helping Lawyers.” (1.5 Credits)

8/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL DECEMBER 2003/JANUARY 2004 Schedule of Events More Meeting Highlights Friday, January 16 (continued) Get a preview of the ’04 General Assembly 5-6 p.m. When the General Assembly convenes on January 14, statewide attention Friends of Bill W. (Open meeting) focuses on Capitol Square. Get insight into the issues facing the Assembly from 6-7 p.m. a panel of legislative leaders, including Senators Kenneth Stolle (R-Virginia Reception (Black tie) Beach) and Henry Marsh (D-Richmond) and Delegates Robert McDonnell (R- Courtesy of LexisNexis Virginia Beach) and Viola Baskerville (D-Richmond). 7-9:30 p.m. Banquet (Black tie) Stars of the Virginia Opera will be Three new groups plan inaugural meetings our featured entertainment after The Virginia Joint Committee on Alternative Dispute Resolution will hold its dinner and will perform popular first full meeting since allowing open enrollment at 4 p.m. on Thursday, January arias from some of the company’s 15. All committee members are encouraged to linger after the hourlong meeting best-loved presentations. and attend the opening reception of the VBA Annual Meeting! (See below for Banquet courtesy of The information about the CLE program planned by the Joint Committee.) The VBA McCammon Group Past Presidents’ Council will hold its first meeting at 8:30 a.m. on Friday, at 9:30-11 p.m. which former Association leaders will contemplate and recommend action on President’s Reception issues facing the VBA. And on Saturday at 1 p.m., the Community Service Courtesy of Shackelford, Thomas Program Council will hold its kickoff meeting, promoting the new community & Gregg, PLC, and Hogan & service/pro bono publico initiative open to all Virginia lawyers. Hartson, LLP 10:45 p.m.-12:30 a.m. Litigators have their own 3-program CLE track YLD “After Hours” Social Litigators can participate in a three-program CLE track on Friday and Saturday. Members of the Young Lawyers Starting at 9:30 a.m. on Friday, the Virginia Joint Committee on Alternative Division are invited to participate in Dispute Resolution will present “Arbitration in Virginia — Past, Present and some after-hours “gambols,” Future,” followed at 11 a.m. by the VBA Civil Litigation Section’s look at “The popular tavern games of Colonial Wired Courtroom: The Use of Audiovisuals in Today’s Courtroom.” On Saturday times. at 10:30 a.m., the Civil Litigation Section will present a general session on “Mold Courtesy of Troutman Sanders Litigation, Science, Insurance and the Law,” featuring a multidisciplinary panel LLP discussion. Saturday, January 17 8-9 a.m. Legacy Series offers ‘legislative minutes’ Annual Breakfast and Business As part of its continuing Legacy Series of programs offered in collaboration with Meeting the Virginia Historical Society, the VBA Committee on Special Issues of National Spouses and guests are welcome. and State Importance presents “FFVs: First Felons of Virginia (and Other Courtesy of Prolegia and Moments in VIrginia Legislative History),” a luncheon program on Friday, Legal Directories January 16, from 12:30 to 2 p.m. Frances S. Pollard, library services director 8:30 a.m.-1:30 p.m. at the VHS, will discuss memorable “legislative minutes” in the form of Registration historical vignettes produced for the 2004 General Assembly. (Separate 8:30 a.m.-12:30 p.m. registration and fee required; please register in advance.) Exhibits 9 a.m.-Noon CLE Programs: Concurrent Chefs work culinary magic (you can taste it!) Sessions (See separate listing) Sample some of CW’s culinary delights — and take the recipes and techniques Noon-1 p.m. home! A Colonial Williamsburg chef will conduct a culinary demonstration and Reception tasting on Friday, January 16, from 10 to 11:30 a.m. The charge for this program Courtesy of SunTrust Bank is $25 per person; space is limited, and advance registration is suggested. 1-2 p.m. Books and Authors Luncheon Accommodations and Registration Program (Register separately; Room reservations can be made by phone, fax or mail. Please return the form additional fee for lunch) provided with your payment or credit card information to Colonial Williamsburg 2:30-5:30 p.m. Company, Attn: Group Reservations Manager, P.O. Box 1776, Williamsburg, VA Board of Governors Meeting 23187, phone 1-800-261-9530, fax (757) 220-7729. Please do not send room reservation forms to the VBA office. Meeting registration forms were also Visit included in the brochures sent to all VBA members and are included on the Colonial Williamsburg Annual Meeting page at www.vba.org in PDF format. Please call the VBA office at on the web at (804) 644-0041 if you have questions or need a form faxed to you. www.history.org

DECEMBER 2003/JANUARY 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/9 MARBURY V. MADISON BICENTENNIAL John Marshall Revisited on Marbury’s 200th Anniversary: Reflections on the Life and Character of ‘The Great Chief Justice’ Presented by Justice Donald W. Lemons, Supreme Court of Virginia, to the Joint Meeting of The Virginia and West Virginia Bar Associations, at The Greenbrier on July 11, 2003 How did a man, born and raised on been reduced to a situation of greater the frontier of America, influenced by peril than during the winter at Valley agrarian principles and dependent Forge.” upon family and local governance for It was not that the colonies had no food order and protection, become one of a or financial ability to support the troops; handful of leading Federalists, rather, it was a failure of government. The committed to the establishment of a had no power to strong national government? The command the provision of supplies from answer is more complex, of course, but the various colonial governments; it had surely the influences and ideas that only the ability to request. Surely, the formed John Marshall’s federalism, at morale of American forces faltered at the least symbolically, came to early knowledge that clothing, food, supplies fruition in a tent at during and munitions were hoarded in the the desperate encampment of the colonies and even in some cases sold to winter of 1777 –78. the British in exchange for gold. The utter The declaration of American ineffectiveness of the loose confederation freedom had been made and the of colonies was never more apparent than determined resistance of the mother at Valley Forge. George country to emancipation of her colonies pleaded with the Congress, “unless some had resulted in two years of war. By great and capital change suddenly takes December 1777, the prospects of place in that line, this Army must American military victory were bleak. inevitably be reduced to one or other of European nations that might have these three things. Starve, dissolve, or become American allies had not yet disperse, in order to obtain subsistence in John Marshall: His federalist done so. American soldiers were the best manner they can; rest assured Sir essentially an assembly of state militia values emerged from Valley Forge this is not an exaggerated picture . . .” units, more likely to obey the orders of John Marshall was there. And it was an officer they knew from their own dysentery, and scurvy were there that he learned that a strong state or community. The Continental commonplace. The lack of basic clothing national government was necessary for Congress had demonstrated discord required men to sit by fireside through the survival of the American experiment. and quarrel among its member colonies the night to keep from freezing to death. He said it was then that he came to and had proven ineffective in their Bloody footprints in the snow attested to consider “America as my Country and provision of material support for the the lack of shoes. One morning, the Congress as my government.” It is not too army of America. Virginia Brigade recorded that only 149 fanciful to suggest that John Marshall, Eleven thousand soldiers camped in privates were fit for duty, with 257 “the Federalist,” was born in a tent at the winter snow under the command of rendered unable to perform for lack of Valley Forge. General . Over three clothing. The reluctance of soldiers to The election of 1800 was one of the thousand would die, not from British walk barefoot and inadequately clothed most momentous events in American hostilities, but from freezing to death, through the snow to a distant latrine history. The first election involving real starving to death, or succumbing to created sanitary problems and fostered distinction between political parties cast virulent disease raging through the the spread of disease. incumbent along with encampment. The carcasses of hundreds John Marshall was 22 years old, and Charles Cotesworth Pinckney as of dead, rotting horses lay unburied on he was there. He later observed, “At no Federalist candidates for President and the frozen ground. Smallpox, typhus, period of the war had the American army Vice President, and

10/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL DECEMBER 2003/JANUARY 2004 and Aaron Burr as Republican “good behavior” and assuring that their candidates for President and Vice compensation not be diminished during President. The electoral college system their terms of office. Federalists wanted required the electors to meet in their the repeal tested before the Supreme respective state capitols to cast their Court. Republicans worried that the votes. Without distinction between the repeal might be found constitutionally office of President or Vice President, each infirm. So the Republican Congress elector was to vote for two candidates. passed its own legislation reorganizing The candidate with the highest number of the federal judiciary and cleverly altering votes won the Presidency and the runner the immediate terms of the Supreme up was Vice President. Court such that it would not meet for a In this fateful election, when the period of 14 months. The prospect of electoral ballots were cast, the two immediate review of the repeal was Republican candidates were ahead of temporarily avoided. their Federalist rivals, but they each The new legislation revived the garnered the same number of electoral practice under the votes. Jefferson and Burr had run with the of Supreme Court Justices “riding understanding that Jefferson was the John Adams: Court packing circuit” as trial judges. The even- Presidential candidate, but Burr refused during the last hours of his tempered and ever-cautious Marshall to defer. The official count of electoral Presidency created controversy persuaded his colleagues to quietly votes would await a formal tally in acquiesce to demands of Congress rather February 1801. The Constitution than provoke a crisis by refusing to provided that in the case of a tie the House of Representatives only after 36 comply. It was in this heavily charged deadlock was thrown to the House of successive ballots over six days. It was political atmosphere that a simple Representatives where each of the 16 resolved when the Federalist petition by a man named William state delegations had one vote. Congressman from announced Marbury changed the course of the In this tumultuous atmosphere that he would abstain on the 36th attempt American judiciary. involving the first transition of political to elect a President. Much to the consternation of incoming power from the Federalists to the In all of American history, there could President Jefferson, Adams had been Republicans, President Adams was be no political event to rival the scene at busy signing judicial commissions on the confronted with a vacancy in the office of the Capitol on March 4, 1801, when at night of March 3, 1801, literally in the Chief Justice of the United States. noon on that day, the leading Federalist of last hours of his presidency. The obvious Knowing that he had lost reelection and the nation, John Marshall, administered packing of the federal judiciary with last- that either Jefferson or Burr would be his the oath of office to the new President, the minute appointments of Federalist successor, Adams sought to fill the leading Republican of the nation and partisans was bound to create position during his lame-duck Marshall’s cousin, Thomas Jefferson. The controversy, but no one could have interregnum. Marshall, who was Adams’ distrust between these two men was predicted that it would provide Marshall Secretary of State, was the President’s palpable, but they both rose above it to with the opportunity to enhance the power chief advisor and urged the elevation of confirm the orderly transition of power. of the Court. Justice . Adams rejected The political warfare over the soul of On Adams’ last day in office, William this advice and instead offered to the Constitution soon became focused Marbury had been appointed a Justice of reappoint , the first Chief Justice, upon the judiciary. With Jefferson in the the Peace for the District of Columbia. to the position. Jay declined. With Jay’s White House and Marshall at the helm of The commission had been signed by letter in hand, Marshall conferred with the Courts, it was inevitable. The President Adams and sealed in the office Adams. He later recalled that Adams Judiciary Act of 1801 had been forced of the Secretary of State, John Marshall. asked, “who shall I nominate now?” through Congress in the waning days of John Marshall had already taken the oath Marshall again made reference to Federalist control of the legislature. The of office as Chief Justice of the United Paterson, but the President resolutely Act expanded the jurisdiction of the States, but he was still serving as stated, “I shall not nominate him.” In the federal courts, added 16 new circuit Secretary of State. A clerk in the State silence that followed this exchange, judges, reorganized the district courts, Department delivered the commissions to Adams looked to Marshall and said, “I and provided for the reduction in size of James Marshall, John Marshall’s brother, believe I must nominate you.” Marshall the Supreme Court from six to five when who was also Adams’ private secretary recorded that he was surprised at this the next vacancy occurred. The Act was and had just been rewarded with a last- turn of events, but bowed his head an offensive thorn in the side of the newly minute appointment to the newly created silently in an act of acquiescence. He was ascendant Republicans, and its repeal Circuit Court for the District of Columbia. confirmed by the Senate and took the was high on the agenda of the new James Marshall delivered a number of oath of office on February 4, 1801. Republican Congress. But the repeal of commissions to newly appointed Justices Seven days later the official tally of the the Act seemed directly contrary to of the Peace but he could not account for electoral votes occurred. The bitterly Constitutional provisions guaranteeing the lack of delivery to Marbury. Upon disputed contest would be resolved in the that judges shall hold their offices during taking the oath of office, Jefferson

DECEMBER 2003/JANUARY 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/11 instructed his acting Secretary of State, unconstitutional and assert the Court’s Levi Lincoln, not to deliver the power to review certain acts of the commissions. Two weeks after Jefferson’s executive branch of government. The inauguration, John Marshall wrote his Court ruled that Marbury had a legal right brother James that in his opinion, even to his commission and that mandamus without delivery, the appointments were was a proper remedy to compel an official nonetheless valid, having been signed by of the executive branch of government to the President and appropriately sealed. perform a ministerial duty. But the Court Some months later, , who ruled that it did not have power to issue had been Adams’ Attorney General, the writ because the jurisdictional appeared before the Supreme Court to predicate for it was found in the Judiciary request the Court to issue an order Act of 1789 and, that legislative provision directed to the new Secretary of State, was in conflict with the provisions of , requiring him to show Article III of the Constitution. While cause why he should not be compelled Congress could enlarge the appellate to deliver judicial commissions to four jurisdiction of the Court, its original of Adams’ appointees, including jurisdiction was circumscribed by the William Marbury. Jefferson’s Attorney Constitution, and Congress did not have General, Levi Lincoln, was present power to enlarge the original jurisdiction when the request was made, but when William Marbury: His judicial of the Supreme Court. asked if he had a position on the commission was signed and Of course, having decided that the matter, declined to participate in the sealed by Adams, but not delivered Court had no power to issue a writ of absence of directions from the mandamus, the remainder of the opinion President or Secretary of State. What an was “dicta,” unnecessary to the extraordinary scene – Adams’ former further that he was particularly resolution of the issue decided. But what Attorney General is requesting the compromised by his current position as powerful “dicta” it was. Marshall faced Court headed by Marshall, who sealed Attorney General. The impasse was an extraordinary political dilemma. If he Marbury’s commission but did not broken by the Court’s compromise. failed to assert the Court’s power to deliver it, to compel the new Secretary Lincoln would testify, but it would be review acts of Congress and certain of State to deliver the commission that upon written questions and answers. The conduct of the executive branch, the had not been delivered by the acting Court distinguished between confidential judiciary would remain the weakest Secretary of State, Levi Lincoln, who political communications and facts that branch of the tripartite system. And if he was now Jefferson’s Attorney General. were not confidential, namely whether the ordered Madison to deliver the And moreover, the Chief Justice’s brother commissions were in his office when he commission to Marbury, the Court would had been complicit in the failure to was Secretary of State. Lincoln’s answers be ignored and confirm that the judiciary deliver the commissions and the Chief were not particularly helpful and the had no power. His solution has been Justice had already privately opined Court would not compel him to answer thought by most to be masterful. At once concerning their validity! One must the most important question of all – what lecturing President Jefferson and wonder aloud whether Marshall ever happened to the undelivered Secretary of State Madison on the considered recusing himself from the commissions. Finally, Lee established the illegality of their acts, Marshall asserted case. existence of the signed, sealed the right to review certain executive Although James Madison was named commissions through an affidavit of a conduct, the right to “emphatically as a defendant in this proceeding sitting circuit judge, none other than declare what the law is,” and the right to purporting to invoke the original James Marshall, the Chief Justice’s invalidate an act of Congress repugnant to jurisdiction of the Supreme Court, he brother. Now the issues were joined: did the text of the Constitution. And he did so refused to participate. At a hearing before the Court have jurisdiction to award a writ without risking lack of compliance with the Court in February 1802, Lee called of mandamus; could mandamus issue the orders of the Court. In a sense, in his first witnesses, two State Department against a Secretary of State; and could the Marbury v. Madison, Jefferson won the clerks. They refused to answer questions court order the new Secretary of State to battle, but he lost the war. citing . The Court deliver the commission to Marbury? In Marbury v. Madison, Marshall ruled that the clerks were public Two weeks after closing arguments in staked out judicial turf. He distinguished ministerial officers and they were the case, Marshall delivered the between the executive’s prerogative to compelled to testify although their unanimous opinion of the Court. Because make the appointment, a political act testimony was not particularly helpful. of the illness of Justice Chase, the Court beyond judicial review, and the delivery Next, Lee called his adversary, Attorney convened in the living room of the of the commission, a ministerial act General Levi Lincoln, as a witness. boarding house where the Justices were subject to judicial review. Marbury had Lincoln was understandably reluctant to staying. There Marshall read aloud to the no property right in being appointed a testify. He protested that he should not be assembled crowd the 11,000-word Justice of the Peace, but once appointed, called to testify about matters concerning opinion that would state the Court’s he had a property right in the office and his conduct as Secretary of State and authority to declare an act of Congress the failure to deliver his commission was

12/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL DECEMBER 2003/JANUARY 2004 unlawful. Furthermore, there was a sword. remedy for Marbury. The opinion stated Chief Justice Charles Evans Hughes that once made the curious observation that in cases in which the executive “Marshall’s preeminence was due to the possesses a constitutional or legal fact that he was John Marshall.” What he discretion, nothing can be more meant was simply that the force of perfectly clear than that their acts Marshall’s personality, character and are only politically examinable. But intellect is the source of his contributions where a specific duty is assigned by to a nation. law, and individual rights depend Marshall was born on the frontier of upon the performance of that duty, it Virginia. Formal educational seems equally clear that the opportunities were unavailable in individual who considers himself Fauquier County, so his father, Thomas injured, has a right to resort to the Marshall, sent his son 100 miles from laws of his country for a remedy. home at the age of 14 to receive training Marbury v. Madison, 5 U.S. 137, 166 under the tutelage of a respected (1803). clergyman. At the end of one year, The Court further stated that Marshall returned home and his father The province of the court is, solely, to hired a tutor to live with the family and decide on the rights of individuals, James Madison: Named as a educate the children. His father not to enquire how the executive, or defendant, the Secretary of State assembled a respectable library with executive officers, perform duties in refused to participate in the case many volumes borrowed from Lord which they have a discretion. Fairfax. Marshall himself attests to the Questions, in their nature political, influence of Horace, Livy and particularly or which are, by the constitution and the right to review, in certain cases, the Alexander Pope in his formative years. laws, submitted to the executive, can acts of the executive and the ability to There is little doubt that Marshall’s crisp never be made in this court. decide if executive privilege must be style of writing and penchant for the Id. at 170. honored. He even slipped in the memorable phrase had its origins in his The Federalist-dominated judiciary declaration that the power behind the early education. was accused by the ascendant Constitution was a grant from “the By the time he was 18 years old, the Republicans of using the judiciary for people” as opposed to the Jeffersonian controversy with Great Britain had partisan purposes. Prosecutions under the Republican view that the Constitution reached the point of inevitable hostilities. Alien and Sedition Acts were only one of was an agreement among the states. His father had been present in Richmond many abuses laid at the feet of Federalist Of course, Marbury v. Madison is cited at St. John’s Church when judges. The genius of Marshall’s delicate as the case that established the doctrine threw down the rhetorical gauntlet, navigation of this political minefield was of judicial review over acts of Congress. proclaiming his preference for death over that he retreated from the political To be sure, it is the first declaration of the enslavement. The call to arms resonated question while boldly establishing the principle in the opinions of the United throughout Virginia and the mobilization authority to decide actual controversies States Supreme Court. But the concept of local militia in preparation for defense involving the property rights of citizens was not new and its articulation surprised of the colony swept the young Marshall when abridged by the executive branch. no one at the time. State and lower federal into the role of soldier. In marking a perceived “retreat,” courts had utilized the doctrine before. Marshall was a first lieutenant in the Marshall was establishing the exclusive Marshall had referred to this power of the Fauquier Rifles and they would see first territory of the judiciary. courts in his defense of the Constitution blood in Virginia at the battle of Great He declared that “[i]t is emphatically during the ratification debates in Virginia. Bridge, 12 miles to the south of Norfolk, a the province and duty of the judicial By 1803, there was little doubt that the Tory stronghold. Marshall would later see department to say what the law is. Those Court had such power. With the federal battle in the northeast at Monmouth, who apply the rule to particular cases, judiciary under attack, the assertion of Brandywine and Cooch’s Bridge. And he must of necessity expound and interpret the power of judicial review in Marbury v. would endure the winter encampment at that rule. If two laws conflict with each Madison was more defensive than Valley Forge. other, the courts must decide on the offensive. Were Marshall to see the scope Marshall’s leadership skills were first operation of each.” Id. at 177. Declaring of judicial encroachment under the guise honed in the military. He led by example it “the very essence of judicial duty,” of judicial review today, he would most and was known by his troops as the most Marshall wrote that, “[i]f then the courts assuredly be shocked. It would seem that cheerful and optimistic man they had are to regard the constitution; and the Marshall’s defensive effort to stake out encountered. In the face of unspeakable constitution is superior to any ordinary the Court’s turf has been replaced by a deprivation, Marshall did not complain act of the legislature; the constitution, and more intrusive application of judicial and encouraged his men with a wealth of not such ordinary act, must govern the review involving supervision of the social, anecdotes and athletic games. case to which they both apply.” Id. at political and economic policy of the Throughout his life, Marshall was known 178. In the process, Marshall declared United States. The shield has become a for his athletic ability. It was reported that

DECEMBER 2003/JANUARY 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/13 he could high jump over six feet, an disciplined by early education, and accomplishment that could not be constant habits of systematick thinking, matched by any of his competitors. His that he embraces every subject with the daily habit of walking six miles each clearness and facility of one prepared by morning was pursued throughout his previous study to comprehend and adult life. explain it.” Even his political adversaries During a furlough after Christmas never doubted his skill. Thomas Jefferson 1779, Marshall visited his father in once commented upon his rival’s ability Yorktown. Thomas Marshall’s residence to reason logically from a particular was next door to the residence of Jaquelin premise and trap his rhetorical opponent. Ambler, a leading revolutionary in the Jefferson said, “Why, if he were to ask colony. And better yet, Ambler was the me whether it were daylight or not, I’d father of three daughters eligible for reply, ‘Sir, I don’t know, I can’t tell.’ ” marriage. The daughters had heard of the Marshall’s speech was eloquent, but heroic service of now Captain Marshall his personal appearance was not as and anxiously awaited his arrival. It was polished. Some commentators have the youngest of the three, Mary – known described him as “slovenly” in matters of as Polly – not yet 14 years old, who dress. But of course the criticism cannot announced to her sisters that Captain Thomas Jefferson: Marshall’s be judged by contemporary Marshall was to be her prize. Marshall cousin and political adversary understanding of the term. By comparison had not succumbed to the British but he acknowledged his rhetorical gifts to other lawyers and public figures of the appeared to surrender to Polly. age, Marshall certainly was not During this absence from the war, preoccupied with matters of dress. He be seen as a visible reminder of the love Marshall enrolled in law classes in was no dandy, but he hardly deserves the affair that was the marriage of John nearby Williamsburg under the description as “slovenly.” One of the Marshall and Polly Ambler. supervision of Professor . stories often told about Marshall involves In the years that followed his marriage His classmates included Bushrod an older gentleman who needed a lawyer to Polly and leading up to his Washington, who would later serve with and was advised that Marshall was the appointment as Chief Justice, Marshall him on the Supreme Court, and Spencer best in Richmond. The man took one look established a prosperous law practice, Roane, who would become a Judge of the at Marshall and decided to hire someone became the leading citizen of the City of Court of Appeals of Virginia and would else. On the day his case was to be called, Richmond, engaged in politics and assume the mantel as Marshall’s chief he sat in the gallery watching the elective office, became a leading judicial antagonist. Marshall’s law notes performance of lawyers in other cases. He spokesman and advocate for the survive. The otherwise well-organized observed Marshall arguing against the ratification of the Constitution, and served notes are littered with Polly’s name lawyer he had hired instead of Marshall. his country as a diplomat and as written randomly in the margins. During a recess, the man approached Secretary of State. Apparently, even the formidable George Marshall, admitted he had made a He noted that on his wedding day, Wythe could not keep Marshall’s terrible mistake and asked Marshall if he after paying the minister, he had but one attention from wandering to thoughts of would agree to represent him. guinea in his pocket. He was a member of Polly. Unfortunately, the other lawyer had taken the Virginia General Assembly, but his As family legend tells it, after the $95 of the $100 the man had with him. pay for such public service was conclusion of the war, Marshall proposed Marshall agreed to take the case for the inadequate. Marshall knew that his to Polly and she refused. Marshall remaining $5. Surely, the ability to tell financial future was dependent upon law mounted his horse and rode away toward the story was worth the loss of the larger practice and land speculation and he Fauquier County. A distraught Polly, fee. vigorously pursued both. Edmund regretting her refusal, wept In the realm of politics, Marshall was Randolph turned his law practice over to uncontrollably. Her brother John Ambler engaged in practically every major debate Marshall when Randolph was elected snipped a lock of Polly’s hair without her of his time. He had an uncanny knack of Governor in 1786. Randolph’s law knowledge and rode after Marshall and knowing when to stand his ground despite practice had received a similar boost gave him the lock. Marshall, supposing it intense criticism and when to reach when Thomas Jefferson decided to pursue had been sent by Polly, returned and they practical compromise. politics on a full-time basis and turned were later married. Polly placed the Marshall’s conduct as one of three his law practice over to Randolph. It is snippet of hair in a locket and wore it envoys to France solidified his reputation certainly a strange irony that Thomas around her neck for the rest of her life. for honor and integrity. It also gave him Jefferson’s law practice eventually When she died, Marshall wore it until his greater stature as a Federalist, although a became Marshall’s. death. The locket was given by Marshall’s moderate one. In the XYZ Affair, as it was As a lawyer, Marshall was brilliant. great-great-great-granddaughter Mary called, Marshall refused to be swindled One of the lawyers in Richmond Douthat Higgins to the John Marshall by the French government. He refused described Marshall as having a mind “so House in Richmond as a gift in honor of the invitation to bribe French officials creative, so well organized by nature, or Chief Justice Harry L. Carrico, and it can and would not bow to demands to humble

14/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL DECEMBER 2003/JANUARY 2004 the nation with a Presidential apology for patience and his desire to reach remarks made by Adams. Marshall was consensus brought forward the best lauded by the American people for the qualities of all the Justices on the depth of his nationalism, patriotism, Court. personal virtue and character. The members of the Marshall Court After the XYZ Affair, Federalists lodged together and dined together enjoyed a period of ascendancy and during the sessions of Court. Justice Marshall was one of their most visible Story recalled the habit of the Court to public figures. In Virginia, however, the indulge in the moderate drinking of Republicans were in control of Congress Madeira together, but only in wet and were under the considerable weather. Story confessed, “it does influence of Jefferson and Madison. sometimes happen that the Chief George Washington invited his nephew, Justice will say to me, when the cloth is , and Marshall to removed, ‘Brother Story, step to the to confer on matters of window and see if it looks like rain.’ significance. The matter most on And if I tell him that the sun is brightly Washington’s mind was the election of shining, Judge Marshall will sometimes Federalists to the Congress. His nephew reply, ‘All the better, for our could not resist Washington’s entreaty, George Washington: Marshall jurisdiction extends over so large a but Marshall held out for four days. On admired his onetime commander territory that the doctrine of chances the last morning, Marshall rose early, and could not refuse his requests makes it certain that it must be raining determined to leave before another somewhere.’ ” confrontation with Washington. Much to He was pragmatic and practical, his surprise, Washington had anticipated attacks. None other than Roane’s father- possessed with patience, good Marshall’s attempted escape and greeted in-law, Patrick Henry, came to Marshall’s judgment, modesty and a healthy dose him on the porch in full military dress. In defense with a letter written for the of good humor. His leadership skills the ensuing conversation, Marshall purpose of being leaked to the public and were honed in his experiences as a succumbed to Washington’s request. published in newspapers. Henry soldier, a member of Congress, an How could he fail to do so? Seeing defended Marshall and attested to his Ambassador, and Secretary of State. Washington clothed in the visible symbol high moral character and patriotism. His collegiality won friends among his of his own sacrifice for the nation, Despite their political differences, Henry colleagues as well as those who would Marshall became a candidate for always admired Marshall’s personal oppose him politically. He was Congress. attributes. He ended the letter with a uniquely suited for the leadership of Ultimately, Marshall could not have touching personal request: “Tell Marshall the United States Supreme Court at a turned down this earnest request from I love him, because he felt and acted as a time when its survival as a co-equal Washington. If Marshall engaged in idol republican, as an American.” branch of government was in jeopardy. worship, George Washington was the When John Marshall assumed the Often referred to as “The Great Chief object. Upon learning of his death, office of Chief Justice of the United Justice,” he deserves the praise Marshall eulogized Washington on the States, the Court had little prestige and afforded him by Justice Oliver Wendell floor of Congress with these words: “Our less authority. ’s declaration in Holmes Jr., who said, Washington is no more! The hero, the Federalist 78 that under the If American law were to be sage and patriot of America—the man on Constitutional scheme, “the judiciary is represented by a single figure, skeptic whom in times of danger every eye was beyond comparison the weakest of the and worshipper alike would agree turned and all hopes were placed, lives three branches” was most certainly true. without dispute that the figure could now only in his own great actions and in But John Marshall changed the course of be one alone, and that one, John the hearts of an affectionate and afflicted American history. Marshall. VBA people. … He was first in war, first in When Marshall took the helm, it had peace, and first in the hearts of his been the practice of the Justices to BIBLIOGRAPHY country.” render separate opinions in each case. Baker, Leonard, John Marshall: A Life in During the campaign, there were Marshall began the practice of writing Law, Macmillan Publishing Co., Inc., 1974. concerted efforts to undermine the one opinion expressing the decision of Hobson, Charles F., The Great Chief credibility of candidate Marshall. Spencer the Court in one voice. It would be Justice: John Marshall and the Rule of Roane conspired with other Republicans simplistic to assume that Marshall Law, University Press of Kansas, 1996. to cast doubt upon Marshall’s motive and simply overwhelmed his colleagues. By Newmyer, R. Kent, John Marshall and character. He was vilified as an “enemy the force of his personality he was most the Heroic Age of the Supreme Court, of free speech,” a “monarchist,” and a certainly persuasive in his leadership Louisiana State University Press, 2001. “British agent.” Even his amiable social of the Court. After all, he had been a Simon, James F., What Kind of Nation, habits received some negative comment. revolutionary war hero, a military and Simon and Schuster, 2002. Smith, Jean Edward, John Marshall, He did not publicly respond, but he political leader, and a diplomat. His Definer of a Nation, Henry Holt and privately seethed at the pointed personal personal qualities of good humor, tact, Company, Inc., 1996. DECEMBER 2003/JANUARY 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/15 LEGAL FOCUS/THE NEEDS OF CHILDREN Guardian ad litem performance standards promulgated by Professor Robert E. Shepherd Jr., Chair, VBA Commission on the Needs of Children

On July 7, 2003, the Supreme only performance standards had performance of GALs, and it Court of Virginia approved the action existed at the local level, such as in proposed that the Judicial Council of taken by the Judicial Council the the Juvenile and Domestic Relations Virginia adopt standards of month before and gave the final District Court for the City of performance for guardians ad litem imprimatur to proposed Standards to Richmond. However, The Virginia in order to assure more vigorous, Govern the Performance of Bar Association’s Commission on the effective and competent Guardians ad litem for Children, Needs of Children had heard representation for all children. ruling that they would become frequent complaints about the With the able assistance of its effective on September 1, 2003. A uneven performance of GALs across consultant, Harriet Russell revised juvenile and domestic the state, and even within individual McCollum, proposed standards for relations district court form, DC- jurisdictions, and thus it undertook a GALs in child protection 514, has been used since that date, project in 2001 with the principal proceedings were drafted. The and it specifically states that the aims of ascertaining the extent of Judicial Council met in October failure of an attorney so appointed to any problem and then improving the 2002, adopted the Commission’s comply with the duties specified in quality of practice by attorneys proposed standards, and urged the the Standards “may result in the serving as GALs in abuse and group to continue its study to cover appointing court’s refusal to neglect cases. other proceedings where guardians authorize payment of the fees The Commission obtained a ad litem were appointed for children requested by the guardian ad litem Virginia Law Foundation grant to in Virginia. or a reduction of the payment assist its inquiries into the During the Commission on the requested, removal from the effectiveness of the GAL system and Needs of Children’s study, guardians assigned case or removal from the it established a broad-based ad litem became an issue in the court’s Guardian Ad Litem advisory committee to assist it which 2002 Session of the General Appointment List.” was composed of attorneys serving as Assembly, and several efforts were Since the revised form order refers GALs, lawyers representing local made to impose a cap on GAL fees. specifically to appointment in either departments of social services, That effort was forestalled, largely by the circuit or juvenile court, similar juvenile and domestic relations the efforts of the VBA and several sanctions presumably would apply to district court and circuit court local bar groups, through the passage a GAL appointed in any court, and judges, court appointed special of a study resolution establishing a the Standards specify that they apply advocates, foster parents, child Joint Subcommittee to Study the in “child protection, custody and protective services workers and other Effectiveness and Costs of the visitation, juvenile delinquency, professional experts in the areas of Guardian Ad Litem Program child in need of supervision, child in court administration, juvenile law composed of eight legislators, need of services, status offense and and services to troubled families. chaired by Delegate H. Morgan other appropriate cases” in all those The Commission and advisory Griffith, the majority leader of the courts. Thus, there are now in place committee conducted an extensive House of Delegates, who had the first statewide performance review in the summer and fall of introduced the resolution standards for lawyers appointed as 2001 of similar efforts conducted by establishing the study, HJR 76. guardians ad litem in a wide range of national organizations, such as the The study raised a number of cases in Virginia’s courts with ABA and the National Association of issues that related to the role of meaningful sanctions to enforce Counsel for Children, and other GALs generally, but especially in them. states, and they also examined custody and visitation cases and Although standards for the Virginia’s current statutes, policies concerning their role in the circuit qualification of guardians ad litem and rules. The group determined court as well as the juvenile court. have been in force since 1995, the that Virginia needed to address the The study also focused on issues of 16/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL DECEMBER 2003/JANUARY 2004 compensation for GALs, but in the Representing children, however, of all proceedings, the child’s rights, fall of 2002 the study committee is also different from other forms of the role and responsibilities of the ended its work by commending the litigation, and the importance of the GAL, the court process and the Commission, and The Virginia Bar dispositional process and the possible consequences of the legal Association, for their work on the potential for court proceedings to action; standards. It urged the Association affect the very nature of a family D. Participate, as appropriate, in to continue its work in developing provide the basis for these pre-trial conferences, mediation and performance standards for custody distinctions. The long term negotiations; and visitation cases, and requested consequences to the child client E. Ensure the child's attendance that the Association present a further make the role of a GAL as crucial at at all proceedings where the child's report on its progress to the study disposition as at any other phase of attendance would be appropriate group members in 2003. the case. These consequences and/or mandated. The Commission and the advisory demand full attention to the F. Appear in Court on the dates committee, enhanced by the addition formulation and articulation of well- and times scheduled for hearings of several distinguished family law supported arguments and prepared to fully and vigorously specialists from across the appropriate recommendations, as represent the child’s interests; Commonwealth and a Court of well as a critical evaluation of plans G. Prepare the child to testify, Appeals judge, concluded their work proposed by others. when necessary and appropriate, in on the broader task in the spring of The group recognized that accord with the child’s interest and 2003 by drafting comprehensive attorneys who serve as GALs are welfare; performance standards at a meeting subject to the Rules of Professional H. Provide the court sufficient where the participants spent Conduct as they would be in any information including specific considerable time discussing the other case, except when the special recommendations for court action definition of the role of the GAL and duties of a GAL conflict with such based on the findings of the the tension between acting in a rules. But unlike the normal Rules interviews and independent traditional attorney role, primarily governing confidentiality, there may investigation; presenting evidence and arguing the be times when attorneys serving as a I. Communicate, coordinate and case for the child’s best interest, GALs must, in furtherance of their maintain a professional working versus serving as a reporter to the role, disclose to the court relationship in so far as possible with court, presenting information in the information communicated to them all parties without sacrificing form of reports not necessarily by the child. independence; supported by evidence and perhaps The role and responsibility of the J. File appropriate petitions, containing hearsay. GAL is to represent, as an attorney, motions, pleadings, briefs, and The group was aided significantly the child’s best interests before the appeals on behalf of the child and during its final deliberations by the court, a view which follows the lead ensure the child is represented by a action of an ABA Family Law of the ABA Standards. The GAL is a GAL in any appeal involving the Section subcommittee which drafted full and active participant in the case; and approved Standards for Child proceedings who independently K. Advise the child, in terms the Representation in Custody Cases investigates, assesses and advocates child can understand, of the court’s under the chairmanship of John for the child’s best interests, both at decision and its consequences for the Crouch of the Arlington bar. trial and on appeal. child and others in the child’s life. The final report of the In fulfilling the duties of a These simple standards are to be Commission on the Needs of guardian ad litem, the new “black printed on the reverse of the order Children reached several general letter” Standards prescribe that an appointing a guardian ad litem, but conclusions about the representation attorney should: they are supported by Commentary of children by guardians ad litem. It A. Meet face to face and interview in the full document approved by the concluded that many of the the child; Judicial Council and the Supreme competencies required to represent B. Conduct an independent Court, which may be found at children are the same as those investigation in order to ascertain www.courts.state.va.us/gal/ required for other types of litigation the facts of the case; gal_standards_children_080403.html. — skills, abilities and actions C. Advise the child, in terms the VBA expected of attorneys in all cases, child can understand, of the nature such as conducting interviews, framing and evaluating pleadings, engaging in discovery techniques, thoroughly preparing for trial, and [email protected] negotiating on behalf of a client. Visit www.vba.org/books.htm and start saving on book orders today!

DECEMBER 2003/JANUARY 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/17 VBA JUDICIAL PATRONS: Hon. David H. Adams, Norfolk Hon. G. Steven Agee, Salem Hon. Leslie M. Alden, Fairfax Hon. William N. Alexander II, Rocky Mount Hon. Thomas M. Ammons III, Virginia Beach Hon. Rosemarie P. Annunziata, Fairfax Hon. Jonathan M. Apgar, Roanoke Hon. Franklin P. Backus, Alexandria Hon. Garland L. Bigley, Dinwiddie Hon. Daniel R. Bouton, Orange Hon. H. Harrison Braxton Jr., Fredericksburg Hon. William D. Broadhurst, Roanoke Hon. Albert V. Bryan Jr., Alexandria Hon. Rudolph Bumgardner III, Staunton Hon. Harry L. Carrico, Richmond Hon. John E. Clarkson, Norfolk Hon. George M. Cochran, Staunton Hon. Marvin F. Cole, Richmond Hon. Glen E. Conrad, Roanoke Hon. H. Vincent Conway Jr., Newport News Hon. Talmage N. Cooley, Waynesboro Hon. Robert B. Cromwell Jr., Virginia Beach Hon. Beverly A. Davis III, Rocky Mount Hon. Rodham T. Delk Jr., Suffolk Hon. Ray W. Dezern Jr., Norfolk Hon. Robert G. Doumar, Norfolk Hon. Jay E. Dugger, Hampton Hon. T. Durden, Hampton Hon. George C. Fairbanks IV, Williamsburg Hon. Walter S. Felton Jr., Williamsburg Hon. Humes J. Franklin Jr., Staunton Hon. Jerome B. Friedman, Norfolk Hon. Junius P. Fulton III, Norfolk Hon. Charles D. Griffith Jr., Norfolk Hon. William D. Heatwole, Waynesboro Hon. Marvin C. Hillsman Jr., Harrisonburg Hon. Pamela E. Hutchens, Virginia Beach Hon. Birdie H. Jamison, Richmond Hon. James P. Jones, Abingdon Hon. W. Wellington Jones, Suffolk Hon. M. Langhorne Keith, Fairfax Hon. Donald H. Kent, Richmond Hon. Edward S. Kidd Jr., Roanoke Hon. Cynthia D. Kinser, Pennington Gap Hon. Jackson L. Kiser, Danville Hon. Elizabeth B. Lacy, Richmond Hon. Joseph A. Leafe, Norfolk Hon. Louis R. Lerner, Hampton Hon. Eugene E. Lohman, Abingdon Hon. James A. Luke, Prince George Hon. Everett A. Martin Jr., Norfolk Hon. John J. McGrath Jr., Luray/Harrisonburg Hon. Joseph W. Milam Jr., Danville Hon. Norman K. Moon, Lynchburg Hon. Henry C. Morgan Jr., Norfolk Hon. R. Terrence Ney, Fairfax Hon. Eugene L. Nuckols, Pulaski Hon. Daniel F. O’Flaherty, Alexandria Hon. Norman Olitsky, Norfolk Hon. Carleton Penn, Leesburg Hon. Nicholas E. Persin, Grundy Hon. Von L. Piersall Jr., Portsmouth Hon. Charles S. Poston, Norfolk Hon. Robert L. Powell, Pearisburg Hon. Samuel T. Powell III, Williamsburg Hon. Ford C. Quillen, Gate City Hon. Joshua L. Robinson, Luray Hon. Jane Marum Roush, Fairfax Hon. Gregory L. Rupe, Richmond Hon. Pamela M. Sargent, Abingdon Hon. William H. Shaw III, Gloucester Hon. Paul F. Sheridan, Arlington Hon. Arthur W. Sinclair, Haymarket Hon. Franklin M. Slayton, Halifax Hon. Dennis J. Smith, Fairfax Hon. Beverly W. Snukals, Richmond Hon. Joseph E. Spruill Jr., Tappahannock Hon. J. Warren Stephens, Newport News Hon. Roscoe B. Stephenson Jr., Covington Hon. L. Neil Steverson, Richmond Hon. F. Bradford Stillman, Norfolk Hon. M. Lee Stilwell Jr., Danville Hon. Charles M. Stone, MartinsvilleHon. William F. Stone Jr., Roanoke Hon. Diane M. Strickland, Roanoke Hon. Harry T. Taliaferro III, Warsaw Hon. John C. Thomas, Richmond Hon. Douglas O. Tice Jr., Richmond Hon. Wenda K. Travers, Manassas Hon. James C. Turk, Roanoke Hon. George D. Varoutsos, Arlington Hon. Randolph T. West, Newport News Hon. John E. Wetsel Jr., Winchester Hon. Henry H. Whiting, Winchester Hon. Robert B. Wilson, V, Hampton Hon. Thomas H. Wood, Staunton Hon. Dean S. Worcester, Leesburg Many thanks to ourVBA Patrons for 2003! VBA PATRONS: Vaughan Gibson Aaronson, Richmond Michael B. Adams Jr., Washington, D.C. George R. Aldhizer Jr., Harrisonburg Wilbur C. Allen, Richmond Hon. Hunter B. Andrews, Hampton Hugh T. Antrim, Richmond Thomas L. Appler, Fairfax Peter A. Arntson, Fairfax Charles B. Arrington Jr., Richmond Sidney J. Baker, Williamsburg James E. Ballowe Jr., Arlington John S. Barr, Richmond Kyle F. Bartol, Alexandria Anthony W. Basch, Richmond John W. Bates III, Richmond Bruce A. Beam, McLean John J. Beardsworth Jr., Richmond Wayne L. Bell, Bristol, Tenn. Hon. Hubert D. Bennett, Richmond Hon. William W. Bennett Jr., Halifax William J. Benos, Richmond Prof. Thomas F. Bergin, Charlottesville J. Edward Betts, Richmond James C. Bishop Jr., Roanoke David P. Bobzien, Fairfax Thomas O. Bondurant Jr., Richmond Lewis T. Booker, Richmond Alan D. Borinsky, Baltimore, Md. Robert F. Boyd, Norfolk Prof. Kathryn W. Bradley, Charlottesville Mark D. Braley, Richmond Evans B. Brasfield, Richmond Roy S. Bredder, Vienna Shannon J. Briglia, Vienna Delmar L. Brown, Richmond Richard Brown, Williamsburg Robert B. Brown, Richmond Thomas C. Brown Jr., McLean Andrew S. Brownstein, Richmond Deborah V. Bryan, Virginia Beach Robert P. Buford Jr., Richmond Ann T. Burks, Richmond Stephen D. Busch, Richmond Harris D. Butler III, Richmond Hon. M. Caldwell Butler, Roanoke Lloyd Lee Byrd, Richmond Tammy J. Calabrese, McLean Hon. Robert L. Calhoun, Alexandria Hon. Archibald A. Campbell, Wytheville E. Beale Carter Jr., Boykins Joseph C. Carter Jr., Richmond Richard H. Catlett Jr., Richmond Hon. Edward T. Caton III, Virginia Beach Larry W. Caudle Jr., McLean L B Chandler Jr., Charlottesville James L. Chapman IV, Norfolk R. Harvey Chappell Jr., Richmond Calvin H. Childress, Virginia Beach Malcolm M. Christian, Richmond Clyde R Christofferson, Reston Randolph W. Church, McLean Henry C. Clark, Harrisonburg W. Garland Clarke, Kilmarnock Hon. Gary L. Close, Culpeper John V. Cogbill III, Richmond Stacy M. Colvin, Richmond C. Lacey Compton Jr., James R. Cottrell, Alexandria James K. Cowan Jr., Blacksburg Timothy A. Coyle, Norfolk Hon. C. Richard Cranwell, Roanoke James Smyth Cremins, Richmond Benjamin C. Crumpler, Richmond Hon. Richard Cullen, Richmond Marshall M. Curtis, Reston James A.L. Daniel, Danville Hon. John J. Davies III, Culpeper Terry H. Davis Jr., Norfolk Robert B. Delano Jr., Richmond Douglas W. Densmore, Roanoke Prof. A. Mechele Dickerson, Williamsburg Thomas W. diZerega, Upperville Howard W. Dobbins, Richmond Prof. John E. Donaldson, Williamsburg John B. Donohue Jr., Richmond Mark S. Dray, Richmond Benton S. Duffett III, Alexandria B. Purnell Eggleston, Roanoke Sam D. Eggleston Jr., Lovingston E. Tazewell Ellett, Washington, D.C. John D. Epps, Richmond Reid H. Ervin, Norfolk Daniel K. Evans, Lexington R. Craig Evans, Mechanicsville Bernard M. Fagelson, Alexandria Thomas F. Farrell II, Richmond James B. Feinman, Lynchburg F. Rodney Fitzpatrick, Roanoke James W. Fleet, Mobile, Ala. John R. Fletcher, Norfolk G. Franklin Flippin, Roanoke George M. Foote, Washington, D.C. James H. Ford, Martinsville William E. Franczek, Norfolk Jeanne F. Franklin, Alexandria Joy C. Fuhr, Richmond Lane R. Gabeler, McLean Martin A. Gannon, Alexandria Griffin R. Garnett Jr., Arlington Hon. Vernon M. Geddy Jr., Williamsburg Paul W. Gerhardt, Williamsburg Joseph E. Gibson, Charlottesville Gerald E. Gilbert, McLean Tracy A. Giles, Roanoke Hon. Thomas E. Glascock, Hampton Hon. J. Samuel Glasscock, Suffolk C. Hobson Goddin, Richmond Allen C. Goolsby, Richmond Allen J. Gordon, Chesapeake Michael W. Graff Jr., McLean John L. Gregory III, Martinsville Ilona E. Grenadier, Alexandria Prof. Roger D. Groot, Lexington Timothy H. Guare, Richmond Robin C. Gulick, Warrenton Virginia H. Hackney, Richmond I. Lionel Hancock III, Norfolk Grayson P. Hanes, Falls Church John W. Hanifin, Ocean Ridge, Fla. Reno S. Harp III, Richmond Joseph R. Hartsoe, Washington, D.C. James W. Haskins, Martinsville John T. Hazel Jr., Falls Church John B. Hemmings, Lexington George H. Hettrick, Richmond Glenn M. Hodge, Harrisonburg Hon. William J. Howell, Fredericksburg Richard W. Hudgins, Newport News Leonard H. Huh, Falls Church James V. Ingold, Fairfax Robert J. Ingram, Pulaski William D. James, Richmond Roby G. Janney, Luray John T. Jessee, Roanoke Bryce D. Jewett III, Richmond Harry M. Johnson III, Richmond Hon. Joseph P. Johnson Jr., Abingdon F. Claiborne Johnston Jr., Richmond Robert B. Jones Jr., Richmond Elaine R. Jordan, Richmond Stephen G. Kalinsky, Fredericksburg John F. Kay Jr., Richmond H. Wise Kelly Jr., Fairfax Peter J. Kenny, Charlottesville Anne Leigh Kerr, Richmond Donald E. King, Richmond H. Lane Kneedler III, Richmond Peter A. Kraus, Dallas, Tex. J. Sloan Kuykendall III, Winchester R. Larry Lambert, Virginia Beach Carl C. LaMondue, Norfolk David Craig Landin, Richmond Hon. Edward E. Lane, Richmond Chiswell D. Langhorne Jr., Washington, D.C. William A. Lascara, Virginia Beach Svein J. Lassen, Newport News Thomas T. Lawson, Daleville William J. Lemon, Roanoke Michael H. Levinson, Virginia Beach Glenn C. Lewis, Fairfax George B. Little, Richmond E. Eugene Luther, Annandale Harvey S. Lutins, Roanoke Matthew J. MacLean, McLean Marcia M. Maddox, Vienna Donald J. Maher Jr., Westminster, Colo. James H. Maloney, Falls Church Robert W. Mann, Martinsville Heman A. Marshall III, Roanoke Howard W. Martin Jr., Norfolk Wade W. Massie, Abingdon Ronald M. Maupin, Spotsylvania Robin J. Mayer, Lexington Joseph R. Mayes, Virginia Beach J. Robert McAllister III, McLean Thomas W. McCandlish, Richmond Thomas J. McCarthy Jr., Pulaski Eugene W. McCaul, Mechanicsville Howard C. McElroy, Abingdon Richard T. McGrath, Richmond Katharine W. McGregor, Vienna James S. McNider III, Hampton Thomas F. McPhaul, Norfolk James V. Meath, Richmond David S. Mercer, McLean Louis A. Mezzullo, Richmond Hon. Thomas J. Michie Jr., Charlottesville Charles F. Midkiff, Richmond G. Kenneth Miller, Tappahannock Hon. Nathan H. Miller, Harrisonburg H. Victor Millner Jr., Chatham Hon. William C. Mims, Leesburg Hon. Willard J. Moody, Portsmouth John R. Moore, Selinsgrove, Pa. Thurston R. Moore, Richmond James W. Morris III, Richmond J. Edward Moyler Jr., Franklin Hon. W. Tayloe Murphy Jr., Richmond L.C. Musgrove, Roanoke William A. Noell Jr., Norfolk Thomas G. Nolan, Charlottesville Robert C. Nusbaum, Norfolk Charles W. O’Donnell, Falls Church Albert M. Orgain IV, Richmond J. Lee E. Osborne, Roanoke Samantha S. Otero, Richmond Stephen D. Otero, Richmond Aubrey J. Owen, Winchester Fred W. Palmore III, Richmond Sharon E. Pandak, Prince William Philip W. Parker, Roanoke David W. Parrish Jr., Charlottesville Gordon P. Peyton Jr., Alexandria B. Carter Phillips, Hampton Thomas C. Phillips Jr., Abingdon C. Cotesworth Pinckney, Richmond Allan R. Plumley Jr., Arlington T. L. Plunkett Jr., Roanoke H. R. Pollard IV, Richmond Mark C. Popovich, Williamsburg Anita O. Poston, Norfolk James S. Powell, Denver, Colo. Virginia W. Powell, Richmond Lisa A. Price, Washington, D.C. Stephen C. Price, Leesburg William E. Rachels Jr., Norfolk Gordon F. Rainey Jr., Richmond Alfred M. Randolph Jr., Norfolk B. Michael Rauh, Washington, D.C. Gant Redmon, Alexandria Walter W. Regirer, Richmond Robert L. Rhea, Staunton Timothy A. Rice, Carver, Mass. Michael L. Rigsby, Richmond Hon. John F. Rixey, Virginia Beach George H. Roberts Jr., Richmond James C. Roberts, Richmond Elizabeth J. Robison, Richmond William F. Roeder Jr., McLean Frank W. Rogers Jr., Roanoke Thomas H. Rose Jr., Stony Creek Harry P. Rowlett, Jonesville Douglas P. Rucker Jr., Richmond Dexter C. Rumsey III, Irvington R. Bradley Runyan, Washington, D.C. C. Edward Russell Jr., Norfolk John F. Rutledge, Arlington Whitney G. Saunders, Suffolk Hon. Toy D. Savage Jr., Norfolk Richard S. Schweiker Jr., Richmond V.R. Shackelford Jr., Orange Virginius R. Shackelford III, Orange Harry Shaia Jr., Richmond John S. Shannon, Norfolk John C. Shea, Richmond Prof. Robert E. Shepherd Jr., Richmond Keith T. Shiner, Falls Church Harriette H. Shivers, Roanoke Robert E. Shoun, Fairfax Donald E. Showalter, Harrisonburg David G. Shuford, Richmond John R. Sims Jr., Nellysford Prof. Kent Sinclair, Charlottesville Thomas G. Slater Jr., Richmond Alexander H. Slaughter, Richmond Edward R. Slaughter Jr., Charlottesville R. Gordon Smith, Richmond Richard W. Smith, Staunton Margaret H. Smither, Richmond Paul R. Smollar, Washington, D.C. John D.K. Smoot Jr., Alexandria J. Raymond Sparrow Jr., Fairfax Nicholas A. Spinella, Richmond Gregory T. St. Ours, Harrisonburg Thomas Stark III, Amelia Harold E. Starke Jr., Richmond Phillip C. Stone, Bridgewater Arthur P. Strickland, Roanoke Robert E. Stroud, Charlottesville G.R.C. Stuart, Abingdon Joseph M. Sullivan, Fairfax Timothy J. Sullivan, Williamsburg Frank L. Summers Jr., Staunton Mary Lynn Tate, Abingdon J. Hume Taylor Jr., Norfolk Frank A. Thomas III, Orange Betty A. Thompson, Arlington Timothy O. Trant II, Williamsburg Lucia Anna Trigiani, McLean Hon. Anthony F. Troy, Richmond William R. Van Buren III, Norfolk Wilson F. Vellines Jr., Staunton H. Benjamin Vincent, Emporia Edward B. Walker, Roanoke John L. Walker III, Richmond M. Bruce Wallinger, Harrisonburg Edmund L. Walton Jr., Reston Guilford D. Ware, Norfolk Janet L. Weaver, Lexington Robert B. Webb III, Tysons Corner Michael S. Weisberg, Norfolk Hill B. Wellford Jr., Richmond Samuel I. White, Virginia Beach Anne Marie Whittemore, Richmond Gary L. Wilbert, Charlottesville Erica Y. Williams, Washington, D.C. William J. Williams, Irvington Jesse B. Wilson III, Fairfax John M. Wilson Jr., Roanoke Sara Redding Wilson, Manakin-Sabot J. Christopher Wiltshire, Richmond F. Blair Wimbush, Norfolk Thomas S. Word Jr., Richmond Cabell E. Youell, Roanoke Dickson J. Young, Fairfax James M. Young, Salem Jeannine Rustad Zigner, Washington, D.C. William L. Zimmer III, Richmond Paul A. Zucker, Falls Church • as of December 8, 2003 YOUNG LAWYERS DIVISION

Mountains of projects reviewed at Wintergreen meeting by Stephen D. Otero The Young Lawyers Division was the Service to the Bar, Service to the schools to become members. scheduled to have its annual Fall Public and Comprehensive categories, •Chris Boynton, Darren Marting Meeting at Wintergreen Resort on the respectively. In addition, the Wills for and the rest of the Hampton Roads weekend of September 19- 21. Of Heroes Project, a joint effort of the Town Hall Committee organized a course, Hurricane Isabel put those VBA/YLD and the VSB Young debate among the candidates in the plans on hold, as it did Lawyers Conference, Sixth and Seventh State Senate with so many plans received special recognition Districts on October 29 at the Virginia throughout the in the VSB’s division. Beach Contemporary Arts Center. Commonwealth. In any Lastly, the YLD’s video on •Dan Ortiz and Kathy Harman- event, approximately 30 the reporting requirements Stokes organized a CLE on young lawyers and their for child abuse received the Professionalism and Civility at the families joined VBA American Bar Endowment’s Fairfax Courthouse on October 22. President-elect Ted Ellett Outstanding Public Service Approximately 60 young lawyers for the rescheduled Fall Award for all projects from attended and heard Judges Keith, Meeting at Wintergreen all bar associations in all Smith and Roush of the Fairfax Circuit on the weekend of divisions! Court and attorneys Tom Spahn and November 7-9. It was a •Richard Ottinger Rod Leffler address a series of ethics little cooler in the Blue reported that the Emergency hypotheticals similar to situations Ridge in November than it would have Legal Services project has teamed with young lawyers are likely to encounter been in September. Nevertheless, the its VSB/YLC counterparts to help in the first few years of their practices. timing of the meeting may have turned coordinate the organized bar’s Ortiz and the YLD Professionalism out to be a blessing in disguise, as it response to Hurricane Isabel. Dozens Committee are planning to present this gave the Division the chance to meet of volunteer lawyers have provided pro program to other parts of the state in as a group in the heart of its busiest bono legal assistance to more than 50 the coming year. season. The result was a very victims of Hurricane Isabel both by •Chris Jones, Eve Grandis productive meeting, and some added staffing some of the more than 24 Campbell, Elizabeth Horsley and the momentum for the many YLD projects FEMA Disaster Recovery Centers rest of the National Moot Court that come to fruition during the fall. (DRCs) in person or through a Committee organized the annual The YLD Executive Committee telephone hotline number available at Region IV National Moot Court kicked off the weekend with a meeting the DRCs. Competition November 7-8 at the on Friday afternoon, followed by a •Lori Thompson, Katja Hill, Greg federal courthouse in Richmond. They dinner with their families. On Saturday Hunt and Sakina Paige reported that were sorely missed at Wintergreen for morning at the Joint Meeting of the VBA Law School Councils at UVA, the Fall Meeting, but their efforts YLD Executive Committee and UR and W&L had conducted or were resulted in a very successful Moot Executive Council, Ted Ellett provided conducting programs at those schools Court tournament that weekend. an excellent explanation of how the on November 11, October 29, and •Beth McMahon moderated the VBA is in the process of implementing November 13, respectively. In annual Pro Bono Hotline Summit, its long range plan. The rest of the addition, Kristan Burch organized the which took place in conjunction with meeting revealed what a great job the inaugural Law School Council at the meeting of the regional Virginia various Division committees have been William and Mary on November 12, Legal Aid societies in Virginia Beach doing this year. For instance: and Matt and Sharon Kirsner are in the on November 5. Attending the Summit •As reported in the September VBA process of organizing an inaugural with Beth were regional YLD Hotline News Journal, the YLD enjoyed great event at Law School to Chairs Coby Beck, Agustin Rodriguez, success in this year’s ABA Awards of take place in January 2004. These Cyane Crump, Dinny Skaff, Webb Achievement. The YLD’s New Law School Councils have been King, Jim Harvey and Brian Sykes. Lawyers’ Survival Guide, Video Series successful enough that the VBA is in •Molly Shuttleworth Evans reported Project and Comprehensive the process of amending its bylaws to that the YLD Health Law Project is Application each won first place in the permit students at the Virginia law Continued on next page

DECEMBER 2003/JANUARY 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/19 working toward a program in Arlington to provide pro bono advanced medical ACROSS THE COMMONWEALTH directives sometime around February 2004. •King Tower reported that the YLD Nominating Committee has made the VBA plans for 2004 General Assembly following nominations: Lori Thompson of Gentry Locke Rakes & Moore for Proposed sales tax on professional services Secretary-Treasurer, and Beth Colling not included in Governor’s or GOP tax plans of Petty Livingston Dawson & Richards, Renee Esfandiary of the The 2004 General Assembly The proposed sales tax on U.S. Securities and Exchange convenes in Richmond on January 14, professional services, which the VBA Commission, Molly Shuttleworth one day before the VBA Annual had publicly opposed earlier in the Evans of Feldesman Tucker Leifer Meeting starts in Williamsburg. This fall, was not included in Governor Fidell, Livy Haskell of Williams year’s “long” 60-day session will be Warner’s tax plan and failed to arouse Mullen, and Katja Hill of LeClair marked by a number of new legislators broad interest among Republican Ryan for the Executive Committee. and several thousand legislative legislators crafting their own package Executive Committee and Council proposals to be sifted through before of tax proposals. The VBA will members and their families had an adjournment sine die on March 13. continue to monitor any developments informal lunch after the meeting on VBA leaders met on November 18 which may occur in that area. Saturday morning. Everyone had in Richmond to review the various Information on this year’s legislative Saturday afternoon and Sunday free to proposals developed by Association proposals and other bills of interest take full advantage of the many sections and committees. This year’s will be available on the legislation recreational activities at Wintergeen, agenda included proposals by the page at www.vba.org, which also such as hiking, golf, tennis and the Business Law, Civil Litigation, features a “window” on breaking ever popular spa and fitness center. Construction and Public Contracts Virginia political and governmental Crackerjack lawyer and rock star Matt Law, Domestic Relations, Health Law, news, through a special arrangement Cheek secured his place in the Intellectual Property and Information with StatePulse.com. Bill information lifestyle-balance hall of fame with a Technology, Real Estate and Wills, as far back as the 1994 session is bike trip along the Blue Ridge Trusts and Estates Sections, the AMES available online at leg1.state.va.us. The Parkway on Saturday afternoon, before (Arts, Media, Entertainment and General Assembly website at the group assembled one last time for a Sports Law) Committee, and the legis.state.va.us includes contact social and dinner. Commission on the Needs of Children. information and other tidbits on All in all, the YLD had a great More details on bills of interest and legislators. Another useful site is Fall Meeting in the mountains, how they fare during the Assembly will www.vipnet.org, the Commonwealth of proving that it will take a lot more be made available online at Virginia website, which includes than Hurricane Isabel to dampen our www.vba.org and in upcoming issues directories of state agencies and spirits! VBA of the VBA News Journal. employees, links to state and local government websites, state officials’ VBA Young Lawyers Division nominators sites, and much more. announce proposed 2004 slate of officers Mark spring meeting The VBA/YLD Nominating Committee is pleased to announce the following nominees for the 2004 slate of officers: Chair, Stacy M. Colvin, Hunton & dates on your calendar Williams, Richmond; Chair-elect, R. Braxton Hill IV, Christian & Barton LLP, The VBA’s 2004 spring calendar is Richmond; and Secretary-Treasurer, Lori D. Thompson, Gentry Locke Rakes & Moore LLP, Roanoke. Five persons have been nominated for election to seats on already dotted with significant dates, the VBA/YLD Executive Committee: Beth G. Colling, Petty Livingston Dawson & including the VBA Bankruptcy Law Richards, Lynchburg; Renee C. Esfandiary, U.S. Securities and Exchange Conference (April 23-25 at The Commission, Washington, D.C.; Molly S. Evans, Feldesman Tucker Leifer & Fidell Sanderling) and the VBA/YLD LLP, Washington, D.C.; E. Livingston B. Haskell, Williams Mullen, Richmond; and Executive Committee and Council Katja H. Hill, LeClair Ryan, P.C., Richmond. Other nominations for the VBA/YLD Executive Committee may be made by any Spring Meeting (April 30-May 2, also VBA/YLD member by notifying the chair of the Nominating Committee in writing: at The Sanderling). And, looking King F. Tower, Williams Mullen, P.O. Box 1320, Richmond, VA 23218. ahead, the VBA Summer Meeting will Elections will take place during the VBA/YLD’s annual business meeting and be held July 15-18 at The Homestead. luncheon on Friday, January 16, during the VBA Annual Meeting in Williamsburg. All A calendar appears on the back VBA/YLD members are invited to attend and participate in Annual Meeting activities, including an after-hours social for VBA/YLD members following the banquet. cover of the VBA News Journal and is posted at www.vba.org. 20/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL DECEMBER 2003/JANUARY 2004 Hofheimer Nusbaum, Norfolk. ‘Legal Elite’ announced for 2003 Intellectual Property: James R. Creekmore, Woods Rogers, Roanoke. Growing Virginia Business list includes 12 categories Labor/Employment: Harris D. Butler Virginia Business magazine has the number has continued to grow III, Butler, Williams & Skilling, released the results of its eagerly- with each successive roster. Richmond. awaited “Legal Elite” poll for 2003. The Virginia Bar Association, Legislative/Regulatory: Anthony F. More than 500 lawyers, representing while not a sponsor of the survey, Troy, Troutman Sanders, Richmond. 12 categories of legal practice, were provides advice and assistance to the Real Estate/Construction: Joseph W. named to this year’s list. Virginia Business staff, such as Richmond Jr., Richmond & Fishburne, “Big firms are getting bigger — suggesting a broadening of the Charlottesville. can ‘Law-Mart’ be far behind?” survey population even further Taxes/Estates/Trusts: Timothy H. asked VB author Robert Burke in beyond the confines of VBA Guare, Richmond. the introductory article which membership and distributing surveys The full list may be viewed online accompanied this year’s list. Burke in areas outside of major at www.virginiabusiness.com. noted the growth of large law firms metropolitan centers. and the continuing trend in law firm As in previous years, strict rules were mergers, and included comments imposed. Lawyers could not nominate NEWS from managing partners James P. themselves. They could nominate Gallatin Jr. of Reed Smith and attorneys in their own law firms, but IN BRIEF Robert L. Burrus Jr. of better scores were given to lawyers they McGuireWoods, as well as VBA nominated from other firms. Former VBA Board of Governors Executive Vice President Breck While numerous VBA leaders, member Anne Marie Whittemore of Arrington. including President Frank Thomas McGuireWoods LLP in Richmond has First published in December and VBA/YLD Chair Steve Otero, been named as the recipient of the 2003- 2000, the “Legal Elite” consists of and Association members made the 04 Hunter W. Martin Professionalism Virginia attorneys selected by their list, a sizable number of non- Award by The Bar Association of the peers as the top lawyers in the member lawyers were also named by City of Richmond. Commonwealth. Nearly 300 lawyers, their peers to the list. Prince William County Attorney and representing 10 areas of law The list of practice categories former VBA Board of Governors member practice, made the initial list, and changes annually to create more Sharon E. Pandak has received the diversity in the list, recognizing Arthur W. Sinclair Professionalism lawyers in both broad and narrow Award for 2003 from the Prince William New schedule for areas of law. County Bar Association. Space restrictions prevent the VBA member Patrick R. Hanes of VBA News Journal VBA News Journal from recognizing Williams Mullen in Richmond has been The VBA News Journal will be all attorneys of the 2003 Virginia named an Outstanding Young Virginian published on a slightly different Business “Legal Elite”; we are, by the Virginia Jaycees. Hanes served schedule, starting with this issue. however, pleased to publish the as co-chair of the VBA/YLD Model Legal While the frequency will remain names of the lawyers who received Services Project for the Mentally Ill from the same — eight issues a year — the highest votes in each of the 12 1997 to 2000. the timing of the issues will change. categories and were profiled in the Does the VBA have current contact Instead of publishing issues shortly magazine. information for you? Please let us know before the VBA Annual and Summer Bankruptcy/Creditors’ Rights: if you have moved and/or changed Meetings, the VBA will publish Frank J. Santoro, Marcus, Santoro & employment by sending your information issues following the meetings, Kozak, Chesapeake. to Judy King at the VBA office, reflecting events and actions at those Business Law: Allen C. Goolsby III, [email protected]. meetings. Issues will be dated as Hunton & Williams, Richmond. The Virginia Lawyer was first follows: February, March/April, May, Civil Litigation: James C. Roberts, published in 1966 by the VBA Young June/July, August, September/ Troutman Sanders, Richmond. Lawyers Division. In 2000, Virginia CLE October, November and December/ Criminal Law: Anthony F. Anderson, and the VBA/YLD joined in a January. Roanoke. cooperative effort to produce a new The VBA will continue to utilize Environmental Law: Paul R. version of the two-volume guide for its website at www.vba.org to provide Thomson Jr., Woods Rogers, Roanoke. practitioners designed to assist attorneys additional public and member Family/Domestic Relations: Andrea in dealing with unfamiliar areas. Details information, in addition to material R. Stiles, Williams Mullen, Richmond. are available on the Internet at http:// published in the News Journal. Health Law: Patrick C. Devine Jr., www.vacle.org/wn111.htm#valawyer. DECEMBER 2003/JANUARY 2004 THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL/21 The VBA News Journal offers classified advertising. Categories available are as PROFESSIONAL ANNOUNCEMENTS follows: positions available, positions wanted, books and software, office equipment/ furnishings, office space, experts, consulting Keeler Obenshain PC announces a graduated from the University of services, business services, vacation rentals, recent addition to the firm’s employment Richmond School of Law in 2000 and and educational opportunities. Rates are $1 law practice. Bob Hahn, a Shenandoah served as a law clerk to Hon. M. per word for VBA members and $1.50 per word for non-members, with a $35 minimum, Valley native, has joined the firm following Langhorne Keith in the Fairfax County payable at the time of submission. Ad costs several years of practice with the Circuit Court. Prior to joining the firm, must be paid in advance. The VBA News Journal employment law firm of Wimberly Lawson Sones worked at the Internal Revenue reserves the right to review all ad copy before Seale Wright & Daves in Tennessee. Service in the Chief Counsel’s Office, publication and to reject material deemed unsuitable. Professional announcements may Hahn’s areas of expertise include where she was appointed to the Internal be printed; the cost per announcement is $15 counseling a wide variety of clients on Revenue Service Chief Counsel Honors and text may be edited for style and space matters ranging from the Family Medical Program. She will concentrate her practice limitations. Deadlines are one month in Leave Act, the Americans with Disabilities in the firm’s business law department. advance of the date of publication (August 1 Act, Title VII, wages and hours, and McCann is a 1998 graduate of the for September, etc.). Information is available online at www.vba.org, or call for details at workers’ compensation defense. In College of William and Mary, where he (804) 644-0041. addition, Hahn has represented clients on received his A.B. degree in economics, matters before both regulatory agencies cum laude. He graduated from William and in proceedings before all levels of and Mary School of Law in 2003 where he United States Postal Service Statement of Ownership, Management and Circulation, PS state courts. Hahn earned his MBA from was a member of the William and Mary Form 3526. 1. Publication Title: VBA News James Madison University in 1992 and a Law Review, Moot Court, and the Order of Journal. 2. Publication Number: ISSN 1522-0974, law degree from the University of the Coif. USPS 093-110. 3. Filing Date: November 14, Tennessee at Knoxville in 1997. Hahn’s Otero is a 1991 graduate of Wake 2003. 4. Issue Frequency: Monthly +/-. 5. educational experience has provided him Forest University, where she received a Number of Issues Published Annually: 8. 6. Annual Subscription Price: $30. 7. Complete with a unique vantage point on B.A. degree in art history with a minor in Mailing Address of Known Office of Publication: employment matters from both a business Italian. She received her J.D. degree from The Virginia Bar Association, 701 East Franklin and a legal perspective. the William and Mary School of Law in Street, Suite 1120, Richmond, VA 23219-2503. Keeler Obenshain PC, with offices in 1995, where she served as Articles Editor 8. Complete Mailing Address of Headquarters or General Business Office of Publisher: Same. Charlottesville and Harrisonburg, offers of the Bill of Rights Journal. Prior to 9. Full Names and Complete Mailing Addresses legal representation and services to joining the firm, Otero was Counsel to of Publisher, Editor and Managing Editor. business and individual clients throughout Morris & Morris, where she gained Publisher, The Virginia Bar Association, same. Virginia and West Virginia. Keeler experience in all facets of employment Editor: Caroline B. Cardwell, same. Managing Obenshain’s employment law group has litigation in both state and federal courts. Editor: N/A. 10. Owner: The Virginia Bar Association, 701 East Franklin Street, Suite 1120, worked closely with Fortune 500 She will concentrate her practice in the Richmond, VA 23219. 11. Known Bondholders, companies, midsize employers, family firm’s employment and labor law Mortgagees, and Other Security Holders Owning businesses, nonprofit and institutional department. or Holding 1 Percent or More of Total Amount clients, manufacturers, start-up companies of Bonds, Mortgages, or Other Securities: None. The law firm of Feil, Pettit & 12. Tax Status (For completion by nonprofit and professional services firms. Williams in Charlottesville is pleased to organizations authorized to mail at nonprofit The law firm of Christian & Barton, announce that Michael E. Derdeyn, rates). 13. Publication Title: VBA News Journal. 14. Issue Date for Circulation Data Below: L.L.P. is pleased to announce that J. formerly of McGuireWoods LLP, has October 2002-September 2003. 15. Extent and Suzanne Sones and W. Brian McCann joined the firm, concentrating primarily Nature of Circulation. Average No. Copies Each have become associated with the Firm in commercial litigation, employment Issue During Preceding 12 Months: a. Total and that Samantha S. Otero has joined law, and related general business Number of Copies: 5763. b. Paid and/or Requested Circulation: 5441. c. Total Paid and/ the Firm as Counsel. matters. Derdeyn serves as co-chair of or Requested Circulation: 5441. d. Free Sones is a 1994 graduate of the College the VBA Young Lawyers Division’s Distribution by Mail: 0. e. Free Distribution Outside of William and Mary, where she received a Charlottesville Town Hall Meeting the Mail: 185. f. Total Free Distribution: 185. g. B.S. degree in environmental science. She Committee. Total Distribution: 5626. h. Copies Not Distributed: 137. i. Total: 5763. j. Percent Paid and/or Requested Circulation: 96%. No. Copies of Single Issue Published Nearest to Filing Date: Attention Attorneys: a. Total Number of Copies: 5850. b. Paid and/ Estate Planning, Tax, Divorce, Bankruptcy or Requested Circulation: 5602. c. Total Paid and/or Requested Circulation: 5602. d. Free Inaccurate appraisal numbers can cost your clients a lot of money! When needing an Distribution by Mail: 0. e. Free Distribution Outside agricultural personal property appraisal, why use a farmer or someone who just claims to the Mail: 126. f. Total Free Distribution: 126. g. “know cattle and machinery?” When you can utilize a professional who “knows cattle Total Distribution: 5849. h. Copies Not and machinery and how to professionally appraise them. I have the ability to develop and Distributed: 121. i. Total: 5849. j. Percent Paid and/or Requested Circulation: 97%. 16. write appraisals that meet Uniform Standards of Professional Appraisal Practice Publication of Statement of Ownership: (USPAP). This means that in the event your client goes to court, the appraisal I prepare Publication required. Will be published in the will carry the authority that goes with developing appraisals in accordance with USPAP. December issue of this publication. 17. Signature Plus with the supporting facts and methodology used, you are assured the right number. and Title of Editor, Publisher, Business Manager, To see the difference with my work, I may be reached at 540-291-3093 or e-mail: or Owner: Amy Cathey, VBA Director of Finance. [email protected] for a free sample appraisal. Bernard M. Watts, PE Date: November 17, 2003.

22/THE VIRGINIA BAR ASSOCIATION NEWS JOURNAL DECEMBER 2003/JANUARY 2004 Darby Printing ad (pick up from Oct/Nov issue cover 3)

SoftPro ad (pick up from Oct/Nov issue p 17) CALENDAR OF EVENTS

January 15-18, 2004 April 30-May 2, 2004 VBA 114th Annual Meeting VBA Young Lawyers Division Executive Committee Colonial Williamsburg and Council Meeting The Sanderling February 4-10, 2004 American Bar Association Midyear Meeting July 15-18, 2004 San Antonio, Texas 114th VBA Summer Meeting The Homestead March 23, 2004 VBA Leadership Conference August 4-11, 2004 The Jefferson Hotel, Richmond American Bar Association Annual Meeting Atlanta, April 16-18, 2004 VBA Board of Governors Meeting October 21-22, 2004 The Ritz-Carlton, Tysons Corner Boyd-Graves Conference Omni Richmond April 23-25, 2004 VBA Bankruptcy Law Conference October 21-24, 2004 The Sanderling, Duck, Southern Conference of Bar Presidents Meeting Biloxi, Mississippi For more details, please visit our website at www.vba.org or call the VBA office at (804) 644-0041. A complete calendar of events with links to additional information is posted on the website.

Make plans now to attend The 1111 4th Annual Meeting of The Virginia Bar Association January 15-18, 2004 • Colonial Williamsburg

VBA• • The Virginia Bar Association 701 East Franklin Street, Suite 1120 Richmond, Virginia 23219 (804) 644-0041