Virginia LawyerVOL. 66/NO. 4 • DECEMBER 2017 VIRGINIA LAWYER REGISTER The Official Publication of the Virginia State Bar
Young Lawyers Conference Continues to Strive Slammin’ Ammons’s Softer Side Atkins Test Withstands Challenges Virginia Veteran and Attorney Receives Purple Heart Second Chances Through Drive-To-Work Free Legal Answers Milestone
Virginia Lawyer The Official Publication of the Virginia State Bar December 2017 Volume 66/Number 4
Features Access to Legal Services GENERAL INTEREST 42 Law Reader Leads Pro Bono Q&A Site: Williamsburg attorney 20 Slammin’ Ammons’s Softer Side: Retired Judge Has hits significant milestone on VSB’s Always Loved Animals Free Legal Answers site by Deirdre Norman by Jackie Kruszewski 22 Atkins Test to Exclude Intellectually Disabled from 44 Pro Bono Conference and Execution Withstands Challenges by State Courts Celebration Draws Hundreds to by The Honorable Joseph A. Migliozzi Jr. and Cara Sylvester Charlottesville 26 Wounded in Iraq, Virginia Veteran and Attorney Receives Purple Heart by Deirdre Norman 28 Lawyers and Legislators Give Second Chances Through Drive-To-Work by Deirdre Norman Noteworthy YOUNG LAWYERS CONFERENCE VSB NEWS 29 The Young Lawyers Conference is Here for You by Chris Fortier 46 Highlights of the October 27, 2017, Virginia State Bar Council Meeting 30 Lawyers and Stress: Small Changes for a Better Life by Helen Chong, Tammy George, and Brent Mattocks 46 Terry Patrick Recalls 32 We Must Combat Racial Disparity and Create a Laughs and Mishaps in More Diverse Legal Profession Almost 40 Years at the by Shemeka Hankins VSB 34 Manners and Messages, E-mail for Young Lawyers 47 In Memoriam by Benjamin Shute 36 The Future of Student Loans: The Brunner Test in the 21st Century and The Consumer’s Hunger for Change Departments by Christina T. Parrish 40 Tumultuous Time Requires Engagement by Young Lawyers 8 Letters by Melissa Little 48 Conference of Local and Specialty Bar Associations VIRGINIA LAWYER REGISTER 51 CLE Calendar 59 Professional Notices 53 Disciplinary Summaries 55 MCLE Reporting Deadline 54 Disciplinary Proceedings 55 Criminal Law Seminar 62 Classified Ads 55 Ethics Committee Reconsiders 55 Awards 62 Advertiser’s Index Proposed LEO 1888 55 VSB TECHSHOW 55 LEO 1885 is pending review by the 56 Virginia State Bar Clients’ Protection Supreme Court of Virginia Fund Board Pays $38,168.33 to 55 Clients’ Protection Fund Former Clients Columns 55 Emeritus Members Allowed to 57 Nominations Sought for Committee 10 President’s Message Provide Pro Bono Services Vacancies 12 Executive Director’s Message 55 Commission on Lawyer Discipline 57 Nominations Sought for District Seeks Comments Committee Vacancies 16 Bar Counsel’s Message 55 Eligibility Survey Sent 58 President-elect Heath seeks members 18 Legal Aid 55 Electronic Filing at the Supreme for Virginia State Bar committees Court with terms commencing July 1, 2018. 50 Law Libraries
Cover: Members of the leadership of the VSB Young Lawyers Conference from left to right: Jasmine R. McKinney, Christopher R. Fortier, Annie Cai Larson, Farnaz F. Thompson, Kristopher R. McClellan, Jennifer C. Wong, and Brian T. Wesley. Virginia Lawyer Virginia State Bar The Official Publication of the Virginia State Bar 2017–18 OFFICERS 17th Circuit Doris Henderson Causey, President Timothy B. Beason, Arlington http://www.vsb.org Leonard C. Heath, Jr., President-elect John H. Crouch, Arlington Michael W. Robinson, Immediate Past President Adam D. Elfenbein, Arlington Editor: Karen A. Gould, Executive Director and Chief Gregory T. Hunter, Arlington Gordon Hickey Operating Officer William H. Miller, Arlington ([email protected]) EXECUTIVE COMMITTEE 18th Circuit Doris Henderson Causey, Richmond, President Barbara S. Anderson, Alexandria Assistant Editor and Advertising: Leonard C. Heath, Jr., President-elect Foster S. B. Friedman, Alexandria Deirdre Norman Michael W. Robinson, Tysons Corner, Immediate Stacey Rose Harris, Alexandria ([email protected]) Past President 19th Circuit Brian L. Buniva, Richmond Brian C. Drummond, Fairfax Graphic Design: Marni E. Byrum, Alexandria David J. Gogal, Fairfax Caryn B. Persinger Nancy C. Dickenson, Abingdon Richard A. Gray, Fairfax ([email protected]) Eugene M. Elliott, Roanoke Chidi I. James, Fairfax Beverly P. Leatherbury, Eastville Douglas R. Kay, Tysons Corner Jay B. Myerson, Reston Editorial Assistant David L. Marks, Fairfax B. Alan McGraw, Tazewell, CLBA Chair Jackie Kruszewski Gary H. Moliken, Fairfax Carole H. Capsalis, Leesburg, Diversity ([email protected]) Jay B. Myerson, Reston Conference Chair Luis A. Perez, Falls Church Robert E. Hawthorne, Kenbridge, SLC Chair William B. Porter, Fairfax Christopher R. Fortier, Oakton, YLC President Dennis J. Quinn, Tysons VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473) COUNCIL Melinda L. VanLowe, Fairfax is published six times a year by the Virginia State Bar, Edward L. Weiner, Fairfax 1st Circuit 1111 East Main Street, Suite 700, Richmond, Virginia Andrew D. Kubovcik, Chesapeake 20th Circuit 23219-0026; Telephone: (804) 775-0500. Subscription Christine H. Mougin-Boal, Leesburg 2nd Circuit Susan F. Pierce, Warrenton Rates: $18.00 per year for non-members. This material Ryan G. Ferguson, Virginia Beach is presented with the understanding that the publisher Steven G. Owen, Virginia Beach 21st Circuit Daniel M. Schieble, Virginia Beach Joan Ziglar, Martinsville and the authors do not render any legal, accounting, 22nd Circuit or other professional service. It is intended for use by 3rd Circuit Nicholas D. Renninger, Portsmouth Lee H. Turpin, Chatham attorneys licensed to practice law in Virginia. Because of 23rd Circuit the rapidly changing nature of the law, information 4th Circuit Ann B. Brogan, Norfolk Eugene M. Elliott, Jr., Roanoke contained in this publication may become outdated. As Gary A. Bryant, Norfolk K. Brett Marston, Roanoke a result, an attorney using this material must always Neil S. Lowenstein, Norfolk 24th Circuit research original sources of authority and update 5th Circuit David B. Neumeyer, Lynchburg information to ensure accuracy when dealing with Carl Phillips “Phil” Ferguson, Suffolk 25th Circuit a specific client’s legal matters. In no event will the 6th Circuit William T. Wilson, Covington authors, the reviewers, or the publisher be liable for Ronnie H. West, Emporia 26th Circuit any direct, indirect, or consequential damages resulting 7th Circuit Nancy M. Reed, Luray from the use of this material. The views expressed herein Benjamin M. Mason, Newport News 27th Circuit R. Cord Hall, Christiansburg are not necessarily those of the Virginia State Bar. The 8th Circuit Marqueta N. Tyson, Hampton inclusion of an advertisement herein does not include 28th Circuit William M. Moffet, Abingdon an endorsement by the Virginia State Bar of the goods 9th Circuit W. Hunter Old, Williamsburg or services of the advertiser, unless explicitly stated 29th Circuit Joseph M. Bowen, Tazewell otherwise. Periodical postage paid at Richmond, 10th Circuit Charles H. Crowder, III, South Hill 30th Circuit Virginia, and other offices. 11th Circuit William E. Bradshaw, Big Stone Gap Dale W. Pittman, Petersburg 31st Circuit 12th Circuit Maryse C. Allen, Prince William POSTMASTER: Graham C. Daniels, Chester MEMBERS AT LARGE Send address changes to 13th Circuit Marni E. Byrum, Alexandria VIRGINIA LAWYER Paula S. Beran, Richmond Nancy C. Dickenson, Abingdon
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professionals to keep our clients ap- VOL. 66/NO. 3 • OCTOBER 2017 Virginia Lawyer prised of the evolving science impacting VIRGINIA LAWYER REGISTER The Offi cial Publication of the Virginia State Bar policy developments and regulatory is- sues. As the article explains, these chang- es impact nearly every aspect of practice, from in-office protocols and medical record keeping to limitations upon the types and duration of medications that can or should be prescribed. And, while not specifically addressed in the article, the new regulations may also create new Health Law continuing education requirements for Taking Aim at Virginia’s Opioid Crisis through Changes in Public Health Law False Claims Act Liability certain health professionals. Exceptions in Healthcare Contracting Further illustrating how quickly The Clients’ Protection Fund Steps In What I learned from Justice Cynthia D. this landscape is changing is the fact Kinser About Being a Lawyer Virginia Merger Statutes that since the article was published, the Future-Proofi ng Your Law Practice White House has directed the acting Health and Human Services secretary On “Taking Aim at Virginia’s to declare the opioid crisis a national Opioid Crisis through Changes public health emergency. While it is in Public Health Law” uncertain what legislative changes will Thank you for the timely article follow, the declaration makes it clear (Virginia Lawyer, October 2017) on the that the administration intends to bring Virginia opioid crisis and the combined greater attention to the problem. efforts of the state health commission- Given these events as well as the er, professional licensing boards and speed at which the opioid epidemic has the General Assembly to address the emerged, it is important for Virginia FREE HOUR opioid issue through heightened public lawyers to stay apprised of these emerg- awareness, new regulations, and laws. ing regulatory developments at both of Legal Research As a healthcare attorney who regularly the state and federal level. Thus, we For New Clients Only represents medical professionals — can serve as better advocates for health Use only the free hour, or apply the including those who prescribe opioid professionals and successfully counsel pain medication — the article shed clients to ensure that they are in compli- free hour to a larger project. light on regulations likely to impact my ance in serving and treating the needs of their patients. Briefs • Trial Memos • Motions clients and provided helpful insight on Legal Research the commonwealth’s initiative to build awareness and prevention. John C. Ivins Jr. 35 Full-Time Attorneys The scope of the epidemic and the Hirschler Fleischer 50,500 Attorneys Served speed at which opioid use is expanding Richmond 173,500 Cases requires those of us who advise health 4,907 Virginia Attorneys have used National Legal Letters Research Group CHARLOTTESVILLE, VA Send your letter to the editor to: [email protected] or Virginia State Bar, Virginia Lawyer Magazine, 1111 E Main Ste 700, Call for a free consultation Richmond VA 23219-0026 1-877-689-6432 Letters published in Virginia Lawyer may be edited for length and clarity and are subject to guidelines available at http://www.vsb.org/site/publications/valawyer/. [email protected] www.nlrg.com
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Young lawyers think about Virginia must assist with the increase remaining balance is then calculated two things: (1) loan debt and (2) in debt and availability of jobs. The as income to the borrower. Thus, for finding a job to pay that debt off. wellness and future of the practice for that one year you are in a higher tax The average law school debt is over young lawyers depends on it. bracket and will owe more taxes for $100,000 and has been increasing for The programs that were available that year. It all depends on the amount years. Many new lawyers have loan to baby boomers are no longer avail- forgiven. The Consumer Financial debts that are over $200,000. U.S. News able to millennials. For example, in the Protection Bureau is a great resource and World Report ranks law schools by past, husband and wife loans could be that provides information and answers the average debt and the percentage consolidated regardless of origin and regarding loans. of graduates with that debt. A com- available for forgiveness under various Lately, an influx of lenders will parison of law school debt with the programs, and loans were easily dis- text, e-mail, advertise and mail various charged. Today, you can only con- deals on student loan forgiveness. availability of jobs in today’s market is solidate your loans and they are not Borrowers beware; do your research. shocking. available for discharge. Additionally, Legal Aid has found that many lenders I, like most law school gradu- the government has a variety of and collection tactics were in violation ates, have significant law school debt. collection means — without the need of the law, which led to litigation and The forecast of paying that debt off of a court order. The government can enforcement actions. Legal Services is cloudy and with legislation to end garnish wages and offset tax refunds of Northern Virginia has started a the Public Service Loan Forgiveness and benefits. Some states suspend student loan debt project that focuses Program the outlook has increased to your driver’s license or professional on student loan litigation. Educational noxious. When you enter law school license if you default or are significant- loans were being “wiped away” due to you believe that you will find a job ly behind on your loan. Fortunately, various general debt buyer defenses making at least $100,000. This doesn’t Virginia is not one of those states. In — statute of limitations, etc. Legal Aid happen. The majority of law school some cases, there are federal programs programs are helping to educate bor- graduates average a beginning salary available and free money to assist bor- rowers about their options, erase some significantly less than the expected rowers. There is some help available of the debt, and assist with loan collec- amount. Statistically the job market for specific public service attorneys. tion practices. As a borrower, you have has improved. However, I am not sure The Public Loan Forgiveness rights and should know what they are. if it has improved because the number Programs (PLFP) and various other You can find them in the student loan of jobs has increased or because the student loan forgiveness programs borrower bill of rights. number of law school graduates has are obtainable. Consolidation and Virginia has a wide justice gap and decreased. Young lawyers can’t find income-based repayment programs eight law schools with graduates look- a job making at least $100,000 or an are available and can reduce the ing for jobs. Many of those graduates income that allows them to pay the monthly payments with the promise have loans. How can we attack this minimum monthly payment on their of forgiveness at the end of a specified problem? Some states have programs loans. Many ask about jobs and how period. The PLFP is a program that that allow graduates to work only on to go about getting a job that pays forgives the remaining balance of your low-income matters — either civil or enough to earn a living, support a loan after 10 years or 120 payments. family, and pay their law school loans. However, the “forgiveness” of the Debt continued on page 19
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Your VSB membership gives you access to free legal Have You Moved? advice on issues ranging from starting a law practice to closing a law practice to anything and everything that To check or change your address of record with the Virginia may trigger a malpractice claim. State Bar, go to the VSB Member Login at https://member.vsb .org/vsbportal/. Go to “Membership Information,” where your current Call (703) 659-6567 for a confidential, free, risk manage- address of record is listed. To change, go to “Edit Official ment consultation with John J. Brandt, JD, LL.M. all at no Address of Record,” click the appropriate box, then click cost to VSB members. Powered by ALPS. “next.” You can type your new address, phone numbers, and email address on the form. Contact the VSB Membership Department (membership@ vsb.org or (804) 775-0530) with questions. Executive Director’s Message by Karen A. Gould The Clients’ Protection Fund Assessment
Effective July 1, 2018, the funding mechanism. In 1996, the sion to provide for a CPF fee. The Supreme Court of Virginia has General Assembly provided statutory 2007 changes to Paragraph 16, Part reduced the amount active lawyers authority for the CPF and required Six, Section IV of the Rules of Court are required to pay to the Clients’ the VSB to use its annual budgetary governing the Virginia State Bar read Protection Fund from $25 to $10. process to appropriate revenue for the as follows: The CPF assessment, a statuto- CPF. Effective, July 1, 2007, each active ry requirement, is due to sunset on In 2003, claims paid exceeded member of the Virginia State Bar June 30, 2020, unless extended by the $200,000 ($244,893) for the first time, shall be assessed a required fee General Assembly. The VSB is seeking and the claims remained over $200,000 of $25 for the Clients’ Protection to have the assessment continued until ($227,074 and $280,956) for the next Fund on the bar’s annual dues July 1, 2023. two years. In 2004 and 2005, the VSB statement. The fee shall be in The CPF is the last option for had to make large contributions to the addition to each member’s an- clients who have suffered financial fund — $500,000 and $250,000. nual dues as presented in Part 6, losses from the dishonest conduct of Section IV, Paragraph 11 of these Virginia lawyers whose licenses have Actuarial Study rules, and it shall be paid on or been suspended or revoked. Claimants A 2005 actuarial study recommended before the 31st day of July each must have exhausted all other possible the CPF reach a corpus of $9 million fiscal year. All monies collected avenues of recovery before seeking re- to provide interest earnings sufficient under this Paragraph 16 shall be imbursement from the CPF. The fund to satisfy projected future claims. The accounted for and paid into the is a critical component of self-regu- study opined that with an annual State Treasury of Virginia and lation. Every state has the equivalent assessment of $25 per year, the CPF transferred by the bar from the of a Clients’ Protection Fund. It is would reach $9 million by 2015. Treasury to the Clients’ Protection important for Virginia’s CPF to be ad- Following up on the recommen- Fund. The bar shall report annu- equately funded to meet the needs of dation of the 2005 actuarial study, the ally on or about January 15 to the future claims arising from defalcation. VSB decided in 2006 to seek a special Supreme Court of Virginia on the Continuation of the assessment will annual assessment payable by each financial condition of the Clients’ ensure that this will happen. active member of the VSB. An annual Protection Fund, and the assess- For the first 20 years of the fund’s assessment would provide consis- ment will be reduced or discon- existence, the VSB transferred money tent and independent funding. Such tinued whenever directed by the from its operating budget to the CPF funding would help the CPF grow to a Court. or made loans, later forgiven, with the sustainable level and enable payment express purpose of accruing interest of most claims in full. The Council In 2010 and 2012, due to large income to capitalize the CPF. The and Supreme Court approved seeking defalcations by attorneys Stephen contributions to the CPF were in- a proposed amendment to Va. Code Conrad and Troy Titus, the fund paid consistent and dependent on the VSB § 54.1-3913.1 to permit the Supreme out $900,560 and $648,902 respective- year-end financial position. In 1995, Court to adopt rules and regulations ly. Even with the assessment, the VSB the Joint Legislative and Audit Review providing for a special assessment up had to transfer $100,000 to the CPF in Commission (JLARC) recommended to $25 for the Clients’ Protection Fund. 2012. that the General Assembly consider The General Assembly passed the statutory authorization to maintain proposed change to the statute, and and finance the CPF through a specific the Court amended the dues provi- CPF continued on page 14
12 VIRGINIA LAWYER | December 2017 | Vol. 66 www.vsb.org Security Clearance Lawyers
McAdoo Gordon & Associates, P.C. 202-293-0534 www.mcadoolaw.com www.casefinder.com 800.457.6045
Let’s Build Your Practice Together. We take the calls, and you take it from there. www.vsb.org/vlrs Executive Director’s Message
CPF continued from page 12 Assessment Extended vigorous effort is necessary to ensure In 2014, at the request of the VSB, the that the public is aware of the existence General Assembly extended the assess- of the fund and those who should bene- In 2011, the VSB payee notification task ment from 2015 to 2020. fit from the fund have access to it. force recommended strengthening the On September 28, 2017, the The Virginia State Bar received CPF by raising limits from $50,000 to Supreme Court of Virginia amended permission from its governing body, $100,000 per claimant and increasing Paragraph 16 of Part Six, Section IV Council, at its October 27, 2017, maximum payments for each defal- of the Rules of Court governing the meeting to proceed with asking the cating attorney from 10 percent to 15 Virginia State Bar, reducing the amount General Assembly to amend Va. Code § percent of the net worth of the CPF. Virginia’s active lawyers are required to 54.1-3913.1 to provide for a three-year In 2013, a second actuarial study pay to the Clients’ Protection Fund from extension beyond 2020. The Supreme analyzed the effect of the increase on $25 to $10, effective July 1, 2018. As of Court of Virginia must also approve limits and recommended continuation September 30, 2017, the fund has grown such a legislative endeavor. of the assessment. As of FY 2014, the to approximately $9.7 million. For over 40 years, the VSB Clients’ CPF had not achieved the $9 million With approximately 31,000 active Protection Fund has compensated benchmark; the balance was slightly less members, the $10 assessment plus clients who have suffered financial losses than $7 million, and the average yield interest income will sustain payments resulting from the dishonest conduct on the conservative investments per- of $330,000 per year, which should be of Virginia lawyers whose licenses have mitted the CPF (certificates of deposit, adequate to cover the average per year of been suspended or revoked. The fund is US governmental securities, and federal claims approved over the last five years. a critical component of self-regulation. agency securities) was lower than the The corpus of the fund will be available Should you have any questions investment yield that formed the basis to cover any extraordinary needs in the regarding the Clients’ Protection Fund of the 2005 actuarial projections. event of a large-scale defalcation. The or continuation of the assessment, feel CPF Board has determined that a more free to contact me at [email protected].
Fee Dispute Resolution Program
Confidential help for substance abuse problems and mental health issues. Now that your work is done, do you find yourself in a dispute with your client over fees and costs? The Virginia State Bar offers another For more information, call our way to settle those disputes, without resorting to costly litigation.
toll free number: The Special Committee on the Resolution of Fee Disputes oversees the Fee Dispute Resolution Program to provide an avenue, other than litigation, for the expeditious and satisfactory resolution of fee disputes between attorneys and their clients (877) LHL-INVA through mediation and uniform arbitration proceedings and works to foster trust and communication among attorneys and clients. or visit http://www.valhl.org. For information on the program, go to our website at www.vsb.org/site/about/resolution-of-fee-disputes.
14 VIRGINIA LAWYER | December 2017 | Vol. 66 www.vsb.org Leroy Rountree Hassell, Sr. Indigent Criminal Defense Advanced Skills for the Experienced Practitioner
Save The Date: Note: May 3, 2018 This Year on Thursday
The Chief Justice and Justices of the Supreme Court of Virginia the Members of the Chief Justice’s Indigent Defense Training Initiative and the Virginia State Bar
Invite All Public Defenders and Court Appointed Counsel Who Have Been Certified by the Virginia Indigent Defense Commission To Represent Indigent Criminal Defendants To Mark Their Calendars For
A Day-Long Advanced Trial Skills CLE
Richmond Convention Center (Live Program)
Blue Ridge Community College, Weyers Cave (Webcast)
and Wytheville Meeting Center, Wytheville (Webcast)
Registration information and details will be available in early January at http://www.vsb.org/special-events/indigent-defense. Bar Counsel’s Message by Edward L. Davis Lawyer Well-Being and Proactive Regulation
On August 14, 2017, the National well-being information by disciplinary To the contrary, its staff will address Task Force on Lawyer Well-Being issued authorities with lawyer assistance pro- a range of mental health issues such a report recommending significant grams. Doing so would allow the bar as depression, age-related cognitive changes to the philosophy behind law- to ask, for example, Lawyers Helping decline, and many other problem areas yer regulation. The task force, consist- Lawyers to reach out to an attorney that affect lawyers. Its staff will assess ing of entities within and outside the who appears to be suffering from a sub- a lawyer’s needs and, depending upon American Bar Association, concluded stance abuse or mental health disorder. what it determines, provide interven- that regulators, through their actions, The idea is to facilitate help for lawyers tion, peer support, and referral to other should meaningfully communicate that who may be suffering from such disor- sources, such as a therapist, rehabilita- lawyer well-being is a priority. In other ders promptly rather than waiting for tion program, Alcoholics Anonymous, words, to be a good lawyer, one has to the conclusion of a disciplinary investi- Narcotics Anonymous, or Gamblers be a healthy lawyer, and disciplinary gation. Doing so could prevent further Anonymous, for example. Our observa- authorities should adopt regulatory ob- misconduct by affected attorneys in tions indicate a prevalence of substance jectives that place a priority on lawyer addition to improving their well-being. abuse, depression, and cognitive decline well-being rather than discipline only. Unfortunately, confidentiality rules among lawyers, and one cannot over In working thousands of lawyer do not allow for this kind of proactive emphasize the importance of these disciplinary actions over the years, it intervention by the bar at this time. lawyer assistance programs. has become apparent that substance Lawyers Helping Lawyers and abuse, stress, and depression, among other lawyer assistance programs, Alternatives Work other disorders, frequently go hand-in- such as the Virginia Bar Association’s With respect to lawyer discipline, other hand with attorney misconduct, such Committee on Substance abuse, pro- states have found that alternatives to as inattention, neglect of clients, and vide an invaluable service to lawyers discipline, such as education, finan- misappropriation of client property. without risk of repercussion from cial monitoring, and objective testing, Under current rules, the bar can refer disciplinary authorities. Comment 5 are working very well. The Colorado affected attorneys to lawyer assistance to Rule 8.3 of the Rules of Professional Bar describes it as a culture shift from programs as a condition of discipline Conduct (RPC) provides that the duty discipline to helping lawyers do better. after there has been an adjudication to report attorney misconduct does not It reports that when its regulators of misconduct. There is no authority, apply to information about a lawyer or address misconduct with alterna- however, for the bar to refer confiden- judge’s misconduct or fitness received tives to discipline, those lawyers do tial complaint information to lawyer by a lawyer in the course of participa- not tend to reappear in the discipline assistance programs ahead of time in an tion in an approved lawyer assistance system. Proactive Management Based attempt to intervene and prevent attor- program. The comments to RPC 8.3, Regulation (PMBR) is a term used to ney misconduct. Pertinent rules provide which carry the weight of law, provide describe approaches and programs that complaints and investigations are that such information is protected to that try to prevent lawyer problems confidential and shall not be disclosed, the same extent as lawyer confidences from occurring, rather than addressing with limited exceptions. and secrets. alleged misconduct after it occurs, and Lawyers Helping Lawyers is after complaints are filed. Most if not all Modifications Recommended well-equipped to identify and address jurisdictions use at least some proactive The Lawyer Well-Being Report recom- the maladies that may affect lawyers. regulation tools. The Virginia State Bar, mends the modification of such rules to A common misconception is that it allow for the one-way sharing of lawyer addresses substance abuse issues only. Well-Being continued on page 19
16 VIRGINIA LAWYER | December 2017 | Vol. 66 www.vsb.org CALL FOR NOMINATIONS
Tradition of Excellence Award The Virginia State Bar General Practice Section annually recognizes an outstanding lawyer who embodies the highest tradition of personal and professional excellence in Virginia. This special award recognizes attorneys who have devoted significant amounts of time, efforts, and/or funds to activities that benefit their community and help enhance the image and esteem of general practice attorneys in the Commonwealth. All candidates must be current members of the VSB in good standing, with a minimum of ten years of law practice, at least five of which must have been as a general practitioner.
Announcement The General Practice Section of the Virginia State Bar is seeking nominations for its 31st Annual Tradition of Excellence Award, which will be presented at the Virginia State Bar Annual Meeting in Virginia Beach on Saturday morning, June 16, 2018. This award recognizes an outstanding lawyer who embodies the highest tradition of personal and professional excellence in Virginia and, in doing so, enhances the image and esteem of attorneys in the Commonwealth.
General Qualifications To qualify, nominees must be current members of the Virginia State Bar in good standing who have practiced for a minimum of ten years, five of which must be in general practice. Nominees also should have achieved both personal and professional distinction in their community.
Nominations Nominations must be submitted in writing to VSB General Practice Section, c/o Paulette Davidson 1111 East Main Street, Suite 700 Richmond, Virginia 23219-0026 and include the following information: 1. Name, age, and address of nominee; 2. Brief biographical information and photograph; 3. Firm or employment affiliation for past ten years or more; 4. Bar memberships; 5. Courts where admitted to practice; 6. Details of significant community activities and/or contributions; 7. Details of significant activities and/or contributions that have helped to enhance the image and esteem of general practice attorneys in the Commonwealth; 8. A brief statement explaining why the nominee should be awarded the Tradition of Excellence Award; and 9. Any other information that may be of assistance to the selection committee. Nominees may also be interviewed by the selection committee or a representative of the committee at any time after submission of the nomination.
Deadline The General Practice Section must receive your nomination by close of business on Monday, March 19, 2018.
Notification of Winner The recipient of this year’s Tradition of Excellence Award will be determined on or before Monday, April 2, 2018. The recipient will be invited to be the honored guest of the General Practice Section at the VSB Annual Meeting.
See a list of past recipients online at www.vsb.org/site/sections/generalpractice/tradition-of-excellence-award.
For more information, contact Paulette Davidson at the Virginia State Bar at (804) 775-0521 or [email protected] Legal Aid by Raymond A. Hartz To Right Wrong, to Do Justice, to Serve Humanity
It is a cold December Saturday long for John, and all his worldly As a law firm, we assist individ- morning, the sun just rising over a possessions, to make it to that Walmart uals to secure some of the most basic mostly empty Walmart parking lot parking lot. necessities of life: to be free from with about twenty cars scattered in a Our attorney put John in touch domestic violence; to live in a safe and section far from the store’s entrance. A with the emergency winter shelter so affordable home; to raise their families dozen members of a local church gath- John could sleep inside. She represent- and have their children receive a er behind a van, organizing donated ed him before the Division of Child meaningful education; to not be cheat- food and water to give to the homeless Support Enforcement while she also ed by consumer fraud; and to get the people living in those cars. Two attor- worked with John to help him apply public benefits they need to survive. neys from Legal Aid Society of Eastern for permanent housing through the We give advice, negotiate legal prob- Virginia (LASEV) are also there. Our Community Services Board. By March, lems, and represent people in court firm provides help to those too poor to John was in his own apartment, and before agencies. afford an attorney. The church mem- receiving mental health counseling, Legal Services has been here to bers are there to offer food and com- and volunteering with a local agency level the playing field for the poor of passion to those in need; the attorneys assisting the homeless. Hampton Roads for more than fifty are there to offer a chance for fairness John’s disability check had been years. We serve more than 200,000 and justice to those from whom it has reduced because he owed past-due people living in poverty in our been denied. child support. His youngest son was region, with twenty-three attorneys John was in his fifties and had now in his twenties and John had paid working out of five offices, located been living in his truck since May. support each month, but had fallen in Williamsburg, Hampton, Norfolk, With an infectious smile, he talked behind. Our attorney discovered the Virginia Beach, and on the Eastern about how the cold, late fall nights child support agency had seriously Shore. were making it especially hard for him miscalculated the amount John owed. Being poor means more than just to sleep — despite being wrapped in She successfully had the amount not having as much money as other sleeping bags and blankets — and how reduced from $11,000 to less than people. stiff his back and legs were by morn- $3,000. The deduction taken from his Poverty creates roadblocks that ing. John had once been considered disability benefit was also greatly re- those of us not in poverty can hardly successful. He had a family, owned duced so he could again afford to pay imagine. Surviving itself can seem like his home and worked as an engineer. rent. a full-time job, especially for those But he suffered from depression for facing other hurdles such as being the which he never got help. He lost first Fair Treatment victim of abuse, being homeless, or one family, and then another. Multiple What our clients want, more than suffering from mental illness. LASEV jobs did not work out. Finally, a series anything else, is simply to be treated attorneys go out into the community of strokes left him unable to work at fairly. LASEV exists to pursue justice to meet clients where they are and to all. He was getting by on the little over for those who would otherwise not make ourselves accessible to the people $1,200 per month he received in Social have an attorney. We provide free legal who need us most. We conduct regular Security disability benefits, until his assistance in civil matters for people in intake at domestic violence and home- disability check was suddenly reduced poverty, and last year our work helped to little more than $400. It didn’t take more than 15,000 people. LASEV continued on page 19
18 VIRGINIA LAWYER | December 2017 | Vol. 66 www.vsb.org LASEV continued from page 18 ties (71 percent). Last year, we served to people in poverty, we get to know just under 400 veterans. the community. We understand their less shelters, at soup kitchens and food Funding remains a challenge. needs, and the evolving threats and pantries, at senior and community In recent years, our state and federal challenges they face. And they develop centers, and in city parks and Walmart funding has been slashed dramatical- trust in our familiar faces over time. ly, but the demand for our services parking lots. Only in this way can we carry out our has increased. Decreased funding has We are here for all members of mission: to right wrong, do justice, and meant a reduction in our number of serve humanity. the low-income community, but our attorneys by 20 percent. clients are mostly women (79 percent), By being there month after Raymond A. Hartz is executive director of the and mostly members of racial minori- month, year after year, reaching out Legal Aid Society of Eastern Virginia Inc.
Well-Being continued from page 16 fession’s perception of regulators from on Lawyer Discipline and other com- police to partner.” In doing so, it offers mittees of the Virginia State Bar are for example, has several, such as the several recommendations to ensure studying the report and its recommen- Ethics Hotline, Mandatory Continuing that the regulatory process “proactively” dations in the hope that we can affect Legal Education, non-disciplinary reso- fosters a healthy legal community and positive change, and reduce the anxiety lution of minor misconduct cases, and provides resources to rehabilitate im- and distrust that may accompany the Professionalism Course. paired lawyers. As the report indicates, interactions with regulators. We will see The Lawyer Well-Being Report discipline alone does not make an ill what the future holds. encourages us to “Transform the pro- lawyer well. The Standing Committee
Debt continued from page 10 the justice gap, lawyers in government moved and worked there for a period and legal aid, public defenders, and of time, but not your legal educational criminal — and they receive a stipend lawyers who provide legal services in loans. plus loan repayment assistance. The rural areas. A program that provides We can better the profession, University of Virginia Law School attorneys with jobs plus loan forgive- schools, attorneys, citizens, and the has one of the best loan repayment ness and provides citizens of Virginia courts by creating a way to assist with programs in the country, the Virginia with representation in critical times of school loan debt and the need for legal Loan Forgiveness Program, but you need will improve our legal system and services. All attorneys, legal employ- must be a UVA Law School graduate the commonwealth as a whole. Overall, ers, bar associations, and courts have to use it. It pays 100 percent of your I believe there are more attorneys will- realized the need for pro bono and the law school loan if you earn less than ing to do pro bono work or work in crippling effects of school debt. We $55,000 annually and work in a public the public sector if they did not have must create a program that provides service position. Can this idea work to worry about loans. relief and forgiveness of both. for the State of Virginia too? Yes. A Legal educational loans should program should be started to assist the be similar and forgiven at the same million plus Virginians that qualify for rate and under the same conditions as legal aid and to help pay the million medical educational loans. Right now plus owed in legal educational loan this is rare in the legal job market. Yet, debt. I would like to see the common- it is the norm in the medical job mar- wealth do this for all lawyers who ket. For example, Alaska will forgive provide pro bono services to help close your medical educational loans if you
www.vsb.org Vol. 66 | December 2017 | VIRGINIA LAWYER 19 Judge Ammons with members of a police escort on his last day as a judge. Slammin’ Ammons’s Softer Side: Retired Judge Has Always Loved Animals
by Deirdre Norman
If a man aspires towards a righteous In 1989, Ammons sentenced a man to jail life, his first act of abstinence is from for beating a kitten to death in his front yard – a case that made national news because many injury to animals. at the time thought two weekends in jail was — Albert Einstein too harsh a punishment. Ammons says that wasn’t even the stiffest On November 8, the Norfolk SPCA presented its first Thomas M. Ammons III Awards for animal cruelty sentence he handed down: “I gave a guy a year in jail once for starving a dog Judge Ammons rides Buddy to his last day Animal Welfare to five animal welfare advo- on the bench. cates in Hampton Roads. The award is named to death in his apartment. for the retired Virginia Beach judge who “It used to be that animals were consid- earned the nickname “Slammin’ Ammons” for ered property and you could do what you being hard on traffic violators and harder on wanted with them. Fortunately, that’s no people who mistreated animals. longer the case.”
20 VIRGINIA LAWYER | December 2017 | Vol. 66 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST
In fact, lawyers across the United States have taken an increasing interest in animal law. According to the Animal Legal Defense Fund, there were only nine law schools with classes in animal law in 2000. By 2015, that number had swelled to 151. At the University of Virginia Law School, Ammons’s alma mater, Bob Barker of The Price Is Right gave $1 million in 2009 to establish an animal law program. And in 2015, Attorney General Mark Herring created the nation’s first Attorney General’s Animal Law unit to assist law enforcement professionals with animal welfare cases and with stopping animal fighting and animal abuse. According to Rob Blizard, executive di- rector of the Norfolk SPCA, five of the organi- zation’s fifteen board members are attorneys. Judge Ammons with Ranger. “It’s not surprising. Law can do good for the City Council also makes an effort to mention world around us,” Blizard says. Jack’s name in every meeting — often starting When asked why he thinks lawyers are the meeting with “How is Jack doing?” or drawn to animal causes, Ammons says, “I’m “How old is Jack now?” after Jack agreed to not trying to boast about lawyers, but I think give $100 to the shelter every time his name is the only trait that all lawyers share is intel- mentioned. ligence. And intelligent people are drawn Ammons says wryly, “Jack also agreed to to helping animals. Many lawyers are also donate $200 every time they show his photo inclined to public service, and our careers give at a county commission meeting, but Jack is us a strong pro bono streak.” struggling now to keep up.” Ammons began volunteering at the The Norfolk SPCA recently celebrated its Virginia Beach SPCA in 1988, and in 1989 he 125th anniversary at an event where AG Mark left behind a real estate practice to become a Herring also received an award for his con- general district judge. “I never lost my ability tribution to animal welfare, and continues to to be shocked by what some people would work daily to help the underserved people of do,” Ammons says of his years as a judge. Norfolk and their animals while using no tax- Ammons retired from the bench in 2005, and payer funds. Virginia lawyer board members was featured in the Washington Post after he of the Norfolk SPCA include President Steve decided to go to court on his last day at work Brinker of Crenshaw, Ware & Martin; Vice wearing a duster coat and a cowboy hat while President Delphine Carnes, also of Crenshaw, riding his beloved black and white retired ro- Ware & Martin; Grant Kidner of Norfolk deo horse, Buddy, alongside a mounted police Southern; Ray King of LeClairRyan; and escort. “Six of us rode,” Ammons recalls. “I Beverlee Richter Tiger of Zubie Development. wish I had done it every day.” Ms. Tiger is also a recipient of the Today Ammons still wears a bracelet inaugural Ammons Award for her work on made from Buddy’s tail hair that he never a three-year project that endeavored to care takes off. He lives with a purebred yellow for and ultimately find homes for a colony of Lab named Ranger, who was given to him unowned cats in a local industrial park. She by a neighbor who could no longer care for says of the reasons lawyers are often drawn the dog, and a somewhat famous shelter dog to helping animals, “I do think people who named Jack. display a tough side in their work have a softer Jack was adopted from an Edenton, side toward animals because animals are North Carolina, shelter and has become a defenseless.” philanthropist in his own right — donating Ammons concurs. “Animals teach us a playground for dogs and 29 dog beds to his about love,” he says. “We have a symbiotic former shelter over the years. The Edenton relationship with them.” www.vsb.org GENERAL INTEREST FEATURES | Vol. 66 | December 2017 | VIRGINIA LAWYER 21 Atkins Test to Exclude Intellectually Disabled from Execution Withstands Challenges by State Courts by The Honorable Joseph A. Migliozzi Jr. and Cara Sylvester
The following is a summary of an article to be published in Volume 30 of the Regent University Law Review by Judge Migliozzi and Ashley Hughes.
Since the landmark decision in issue of Virginia Lawyer, it was written the case of Atkins v. Virginia,1 the that mental health remains a signifi- issue surrounding the execution of cant and growing problem around the intellectually disabled defendants has country, and that appears to be sup- not ceased to fill courtroom dockets ported by the number of challenges to around the country. As a result of the Atkins.2 United States Supreme Court’s ruling The Atkins case arose out of a robbery and in 2002, persons determined to be murder that occurred in late 1996 in Virginia. intellectually disabled are barred from Having been charged as the triggerman fol- execution consistent with the “evolv- lowing testimony by his co-defendant, Daryl Atkins was convicted of capital murder and ing standards of decency.” However, sentenced to death. The issue of Atkins’ men- there have been recurrent challenges tal health was unsuccessfully argued before to the test that was established in the Supreme Court of Virginia on two occa- Atkins for states to follow in determin- sions, despite dissenting opinions by Justices Hassell and Koontz who believed that Atkins’ ing whether a defendant is intellectu- IQ of 59 and other life factors were proof that ally disabled. In the December 2016 he suffered from mental retardation. While it
22 VIRGINIA LAWYER | December 2017 | Vol. 66 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST may have appeared that the battle had been was unsuccessful since Florida’s statutory lost for Atkins in Virginia courts, the United evaluation for mental retardation required States Supreme Court granted certiorari based that “Hall show an IQ test score of 70 or be- on the “gravity of the concerns expressed by low before presenting any additional evidence the dissenters and…the dramatic shift in the of his intellectual disability.”9 Since Hall’s re- state legislative landscape that has occurred in corded IQ was 71, the Florida Court rejected the past 13 years.”3 his claim of mental retardation under Atkins. Justice Stevens delivered the majority The United States Supreme Court granted opinion in a 6–3 decision that held execution certiorari in the Hall case to clarify whether of intellectually disabled persons violated the Florida can “execute a man because he scored Eighth Amendment prohibition against cruel a 71 instead of a 70 on an IQ test.”10 Florida and unusual punishment. The Court found held that a “person whose test score is above that there existed a “consistency of the direc- 70, including a score within the margin for tion of change,” whereby an increasing num- measurement error, does not have an intel- ber of states enacted legislation prohibiting lectual disability and is barred for presenting the execution of mentally retarded individu- other evidence that would show his faculties als.4 Additionally, the court distinguished the are limited.”11 Ultimately, the Supreme Court two penological purposes of the death penalty was faced with the challenge of whether a — retribution and deterrence — which would “strict IQ test score cutoff”12 was constitu- be rendered ineffective by the execution of the tional. intellectually disabled.5 Most importantly, the In a 5–4 ruling, the Supreme Court Court adopted a test derived from a legislative decided that the Florida’s bright-line cut-off consensus accepting the clinical definition of of 70 was unconstitutional.13 In his majority mental retardation. To be classified as intel- opinion, Justice Kennedy relied in a large part lectually disabled the defendant must have on the clinical definitions and practices within (1) subaverage intellectual functioning with psychiatric professional communities. First, (2) significant limitation in adaptive skills (3) there was an emphasis placed on an accepted manifest before the age of 18.6 practice among psychiatric professionals that This formula for assessing mental re- IQ scores were not a fixed number but include tardation was to be the minimum standard a standard error of measurement. This means applied by state courts and it was also made that “an individual’s score is best understood clear that states had been deferred the author- as a range of scores on either side of the re- ity to adopt their own statutory procedures corded score.”14 The purpose of including this for implementing this constitutional restric- range is to account for the inherent impreci- tion.7 In the cases that have followed Atkins, sion of the IQ tests, including “practice from the Supreme Court has had to strike the right earlier tests; the environment or location of balance between state discretion on the one the test.”15 Secondly, the Florida legislation hand and implementing the fundamental cri- incorrectly took an “IQ score as final and teria originally opined in Atkins on the other. conclusive evidence of a defendant’s intellec- The first challenge heard in the US tual capability.”16 The court opined that it was Supreme Court relating to the three-stage test necessary to look beyond just the IQ score set out in Atkins presented itself in the case of as it “bars an essential part of a sentencing Hall v Florida.8 Freddie Lee Hall was convicted court’s inquiry into adaptive functioning.”17 of two counts of murder committed during Therefore, for a state to determine that a a robbery and abduction and was eventually standardized score irrefutably determines sentenced to death for one of the murders. an individual’s mental status defies accepted Throughout the appellate process, extensive psychiatric practice as well as the “evolving mitigating evidence was presented of his standards of decency.” inability to adapt or adjust to daily life since In his dissenting opinion, Justice Alito childhood — he was beaten, hanged, and highlighted the shortcomings of the some- burned routinely by his abusive family. Even what arbitrary term “evolving standards of de- as an adult, Hall was unable to care for him- cency” — particularly the degree of influence self or hold a simple job and ultimately was medical societies had in the court’s opinion determined to have an IQ of 71. Nonetheless, compared to that of American society. They Hall’s appeal to the Supreme Court of Florida also challenged the majority’s use of the term www.vsb.org GENERAL INTEREST FEATURES | Vol. 66 | December 2017 | VIRGINIA LAWYER 23 GENERAL INTEREST
consensus when there had been at least nine of the Atkins test as his academic and social other states, as of 2014, that had a similar difficulties were deemed not related to deficits statute to that of Florida.18 in intellectual functioning. For example, In September 2016, Hall’s sentence of Moore’s poor grades in school resulted from death was commuted to life in prison. his changing schools multiple times, drug Another major challenge to the Atkins abuse, absenteeism, and racial harassment.23 test was presented to the United States The court also noted that Moore’s socially Supreme Court in the case of Moore v Texas.19 adaptive strengths were more relevant than Although Texas was not one of the states any perceived deficits as he could support mentioned by Justice Kennedy as having himself on the streets and was able to earn a similar statutory scheme to Florida for money by mowing lawns and playing pool.24 identifying intellectually disabled persons, the The United States Supreme Court grant- method that they had employed post-Atkins ed certiorari in the Moore case to address for diagnosing the intellectually disabled drew Texas’s reliance on outdated and profession- the attention of the Supreme Court in 2016. ally unaccepted standards for evaluating the The case originated from a murder during limitations in adaptive skills. In delivering the an armed robbery which occurred in 1980. majority opinion, Justice Ginsburg high- Bobby James Moore was convicted of capital lighted the recurring theme in both Hall and murder at the age of 20, sentenced to death Atkins, that “to enforce the Constitution’s and for the next 30 years remained on death protection of human dignity… we look to the row. During this time, Moore challenged evolving standards of decency that mark the his sentence on the grounds of intellectual progress of a maturing society.”25 The opinion disability. The Texas Habeas Court received highlights three main issues regarding the testimony from Moore’s family on petition Texas court’s assessment of Moore for intel- for relief pursuant to Atkins that Moore had lectual functioning. First, the court confirmed adaptive behavioral deficits as a youth and the legitimacy of applying the standard error further testimony from mental health experts. of measure to Moore’s IQ of 74, the “lower Subsequently, the Habeas Court recommend- end of Moore’s score falls at or below 70 [so] ed that the Texas Court of Criminal Appeals the CCA had to move on to consider Moore’s (CCA) reduce his sentence to life in prison adaptive functioning.”26 Yet, Ginsburg goes on and in doing so relied upon the DSM-V and to critique Texas for overemphasizing Moore’s the American Association of Intellectual and adaptive strengths, overcoming the consid- Developmental Disabilities (AAIDD-11).20 erable objective evidence of Moore’s adap- However, the CCA emphasized that in diag- tive behavioral deficits.27 Finally, the Court nosing intellectual disability, it was necessary challenged Texas’s reliance on Briseno factors to use the standards that had been adopted as they were based on lay perceptions of by Texas in an earlier case Ex Parte Briseno intellectual disability and were not universally (2004)21 and consequently denied Moore’s relied upon by Texas in all cases of diagnos- habeas relief. ing an intellectual disability (e.g. diagnosing juveniles). Ginsburg stated that “Texas cannot The majority opinion concludes by asserting that while satisfactorily explain why it applies current medical standards for diagnosing intellectual states have some flexibility in enforcing the constitutional disability in other contexts, yet clings to su- restrictions set out in Atkins, there is not unfettered dis- perseded standards when an individual’s life is at stake.”28 cretion as it would risk that the judgment in Atkins would The majority opinion concludes by “become a nullity and the Eighth Amendment’s protection asserting that while states have some flexi- bility in enforcing the constitutional restric- of human dignity would not become a reality.” tions set out in Atkins, there is not unfettered discretion as it would risk that the judgment The CCA justified its reliance on theBriseno in Atkins would “become a nullity and the standards citing Atkins and its holding that Eighth Amendment’s protection of hu- the “decision to modify the legal standard for man dignity would not become a reality.”29 intellectual disability in the capital sentencing Regarding the second prong of the Atkins context rests with this Court.”22 According test, the CCA failed to take into account the to the CCA, Moore failed the second prong “medical community’s diagnostic frame-
24 VIRGINIA LAWYER | December 2017 | Vol. 66 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST work” resulting in a ruling against Moore 3 Atkins v. Virginia, 536 U.S. 304, 310 (2002). that was pervasively infected.30 By relying on 4 Id. at 315-16. an outdated 1992 definition of intellectual 5 Id. at 318-19. 6 Id. at 318. disability from the American Association on 7 Id. at 321. Mental Retardation (AAMR), they had fo- 8 Hall v. Florida, 134 S. Ct. 1986, 1991 (2014). cused on Moore’s adaptive strengths and not 9 Id. at 1992. his deficits, whereas the medical community 10 Id. at 2001. were much more concerned with adaptive 11 Id. at 1994. 12 Id. at 1998. deficits when assessing adaptive functioning. 13 Id. at 1990. In February of this year, the Supreme Court 14 Id. at 1995. vacated the Texas court’s ruling and remand- 15 Id. ed the case for further proceedings.31 In the 16 Id. dissenting opinion, Chief Justice Roberts 17 Id. at 2001. 18 Id. at 2002. stated that the majority had confused the 19 Moore v. Texas, 137 S. Ct. 1039, 1045 (2017). roles of the clinicians and the justices, writing 20 Id. at 1046. that “clinicians, not judges should determine 21 Ex parte Briseno, 135 S.W. 3d 1, clinical standards; and judges, not clinicians, 8-9 (Tex. Crim. App. 2004). From should determine the content of the Eighth Briseno, Texas adopted the following criteria 32 for diagnosing mental disabilities: (a) Did Amendment.” his family, friends, teachers, and employers Atkins marked a significant turning point believe the defendant was mentally retarded for American jurisprudence on the constitu- at that time; (b) Is the defendant’s conduct tionality of the death penalty. In keeping with impulsive; (c) Does defendant’s conduct the evolving standards of decency, the United show leadership or is he is a follower; (d) Is defendant’s conduct in response to external States Supreme Court barred the execution of stimuli rational and appropriate; (e) Does de- persons who are determined to be intellectu- fendant respond coherently and rationally to ally disabled and identified a clinical standard oral or written questions or do his responses for states to follow in making this determi- random; (f) Can the defendant hide facts or nation. While there have been challenges to lie effectively in his own or others’ interests; and (g) Did the offense committed require this test from states as they try to reconcile forethought, planning, and complex execution existing laws with Atkins, the three-part test of purpose? has withstood these challenges and currently 22 Ex parte Moore, 470 S.W.3d 481, 487 (Tex. remains unchanged: (1) subaverage intellectu- Crim. App. 2015). al functioning with (2) significant limitations 23 Id. at 1045. 24 Id. at 1047. in adaptive skills (3) which manifest before 25 Id. at 1048. age 18. The Supreme Court has guided states 26 Id. at 1049. in each of its post-Atkins rulings to conform 27 Id. at 1050. their intellectual disability assessments to a 28 Id. at 1052. standard of fairness and decency. 29 Id. at 1053. 30 Id. 31 Id. Endnotes 32 Id. at 1054 (Roberts, C.J., dissenting). 1 Atkins v. Virginia, 536 U.S. 304, 321 (2002). 2 Judge Migliozzi and Densia Muhametaj, Mental Health Courts on the Rise, Virginia Lawyer, December 2016, at 16.
Joseph A. Migliozzi Jr. was appointed to the Cara Sylvester is a final year Law and Sociology Norfolk General District Court bench in 2009. student at the University of Warwick in the Beginning in 2002, he served as the southeast- United Kingdom. She was a summer intern for ern district’s capital defender, representing peo- the Honorable Joseph A. Migliozzi Jr. in the ple charged in death-penalty-eligible cases. Norfolk Circuit Court during the summer of 2017. She is from London and upon graduating law school plans to practice as a solicitor. www.vsb.org GENERAL INTEREST FEATURES | Vol. 66 | December 2017 | VIRGINIA LAWYER 25 GENERAL INTEREST Wounded in Iraq, Virginia Veteran and Attorney Receives Purple Heart by Deirdre Norman
2 3
1 5 4 Clockwise from left: 1. 2017 Operation Eager Lion: In the desert of Jordan with Captain Richard Blanchette, United States Marine Corps JAG, Lt Col Alexis Stackhouse who served as the Joint Staff Deployment Training Team Legal Analyst. 2. Purple Heart Medal front. 3. Military portrait. 4. Stackhouse was the varsity statistician in high school. 5. Engraved back of Purple Heart medal.
Alexis N. Stackhouse describes the forces of the US who are wounded by an in- day she was hit in the head by razor- strument of war in the hands of the enemy.” Stackhouse’s career has included an array sharp shrapnel from an Al-Qaeda of accolades and accomplishments from being rocket as being “in the wrong place the Rule of Law Coordinator for the entire at the right time.” Nine months into country of Iraq, to representing detainees at Guantanamo Bay in her role as Senior her year-long tour in Iraq, Stackhouse Defense Counsel for the Office of Military was seeking cover in a bomb shelter in Commissions, to earning a Bronze Star. Baghdad when rockets hit the heavily Today, Lieutenant Colonel Stackhouse, still a fortified Green Zone, causing death reservist in the United States Air Force Judge Advocate General Corps (JAG), has logged and injuries. many more miles around the globe (Jordan, UAE, and Dubai just this year) as an opera- Stackhouse was injured when she and others tional law subject matter expert (SME). shielded the vulnerable opening to a con- In all of these roles, Stackhouse has crete bunker (she was wearing Kevlar) from travelled a long way from her childhood in errant shell casings and mortar debris pulsing rural Horry County, South Carolina, where through the air. Stackhouse and other military “they didn’t get cable until 1990 and they members helped the injured while the rockets didn’t have 9-1-1 until about 1996.” The eldest continued to explode around them, and in of four girls, all college graduates, born to November 2017 she received the Purple Heart, two educators, Stackhouse considers herself which “is awarded to members of the armed “an example of what happens when America
26 VIRGINIA LAWYER | December 2017 | Vol. 66 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST makes a tiny deposit on the promissory note” the ideals I spent a year touting to the Iraqis that Martin Luther King Jr. espoused in his were observed during the military commis- 1963 speech. sions.” Looking at herself and other legal pro- Stackhouse is proud of the ground- fessionals of her generation, she notes that breaking work she and other JAGs from all they are often beneficiaries of their parents, the military services completed. Teamed with who faced broad-based discrimination in prominent lawyers, including Harvard law the South… “lots of preachers, teachers, and professors and famous TV legal commen- morticians” she recalls. After an “unfair, un- tators, Stackhouse represented an innocu- just, and unexpected” encounter with the law, ous sheep herder and an infamous jihadist. a 13-year-old Stackhouse decided to become Stackhouse served a pivotal role as a military a lawyer. Falsely accused of theft, Stackhouse lawyer who provided information to team says she thought, “I wish I knew what I should members not familiar with combat or the have said to stand up for myself,” when fog of war that envelops a situation, even a questioned by a police officer who immedi- legal one, rather quickly. Speaking of the ately took a store clerk’s accusation as gospel. unexplored legal frontiers at Guantanamo, Though her mother later made sure that the Stackhouse notes that “many of the legal clerk apologized, Stackhouse says, “I knew conundrums we faced as a country, and this had something to do with my race, and I as a military, had not been seen since the wanted to grow up and help people in those Nuremberg trials.The military lawyers found situations.” themselves teetering on the edge of Occam’s A natural student, Stackhouse went on razor in trying to understand how inalienable to graduate from Clemson University with principles of jus in bello (law of war) seemed a master’s degree before receiving her law to evaporate overnight.” degree from the University of North Carolina Stackhouse’s team ultimately won the at Chapel Hill School of Law. In 2012, with freedom and repatriation of the sheep herder Chief Judge Rebecca Moore of the Alexandria she was assigned, but it was during a freezing General District Court serving as her prac- flight on a cargo plane to Guantanamo Bay titioner faculty advisor, she also earned an that she decided to make a shift in her career. LLM with concentrations in trial litigation Sitting on a crate of tomatoes, pumping breast and national security law from Georgetown milk for her newborn son, Alex Zhi, watch- University Law Center. Though it was at ing folks around her head to the latrine she Clemson where she met her husband, textile thought: “I think I have done enough for my chemist Ramon D. McMillan, Stackhouse country in this capacity,” she says laughingly, considers herself a Tar Heel — and it was at as she planned her transition from active-duty UNC law school where she was selected as one to reserve citizen-warrior. of only 80 law school graduates nationwide to be direct appointees to the USAF Judge Stackhouse’s career has included an array of accolades and Advocate General Corps. Stackhouse served 10 years of active accomplishments from being the Rule of Law Coordinator duty — working her way across a number of for the entire country of Iraq, to representing detainees at air force bases and serving as special assis- Guantanamo Bay in her role as Senior Defense Counsel tant United States attorney in Ohio before she was deployed to Iraq. After her year in for the Office of Military Commissions, to earning a the combat zone, Stackhouse was selected in Bronze Star. 2008 as a senior defense counsel for detained enemy combatants by the Chief Legal Defense Now in private practice, Stackhouse Counsel for the Military Commissions at has established a small, boutique firm, The Guantanamo Bay, Cuba. “I had just come out Litigation Practice of Alexandria PLLC. of Iraq,” Stackhouse says, “where I spent a Stackhouse works as a criminal defense attor- great deal of time imploring Iraqi judges and ney and a military law consultant, as well as lawyers to implement legal protections such serving as a reserve JAG on the J7 Joint Staff. as due process. It was surreal to find myself at Guantanamo actually litigating to ensure that Purple Heart continued on page 45 www.vsb.org GENERAL INTEREST FEATURES | Vol. 66 | December 2017 | VIRGINIA LAWYER 27 GENERAL INTEREST
Lawyers and Legislators Give Second Chances Through Drive-To-Work by Deirdre Norman
1 2 Clockwise from left: 1. Governor Terry McAuliffe. 2. O. Randolph Rollins and panelists including Virginia Supreme Court Justice William C. Mims (2nd from right). 3. VSB President Doris Henderson Causey (2nd from right) at the Dominion Energy table. 3 4. Two Drive-to-Work success stories with O. Randolph Rollins.
4
If you’re looking for a bipartisan effort in Virginia is the first state in America to offer drivers’ li- censing and commercial drivers’ licensing in its prison system, today’s hyper partisan environment, look no fur- an innovative program that helps to alleviate the difficulties ther. This fall, at the Jefferson Hotel in Richmond, of finding work and re-entering society without the ability a group that included sheriffs and prosecutors, to drive. For example, although there are currently almost criminal defense attorneys and people convict- 100,000 available commercial driving jobs nationwide, Virginia had over 800,000 drivers’ licenses suspended as of 2015. ed of crimes, and high-profile Democrats and Much of the driving difficulty comes from laws that sus- Republicans met for lunch to celebrate the ten-year pend licenses for unpaid court costs, civil judgments, or failure anniversary and the many accomplishments of to pay child support. As a result, offenders are often left unable to break the “no license-no job-no money” cycle. The special Virginia’s unique Drive-To-Work program. guests of the luncheon included two former clients of Drive- To-Work — a former substance abuser whose court costs had Founded by retired McGuireWoods LLP partner O. Randolph climbed to $19,000 that the program helped to find work and Rollins in 2007, Drive-To-Work assists low-income or previ- pay off his debts, and a woman whose impaired driving had ously incarcerated individuals with restoring driving privi- leges so that they may get back to work. As keynote speaker landed her in prison. She found sobriety while serving time, Governor Terry McAuliffe told the crowd at the luncheon, and through the Drive-To-Work program was able to get her “We want everyone back in society, paying taxes, and going to license restored after seven years. She is now building her own work.” home in Virginia. Panelists at the luncheon included Virginia Supreme Sponsors of the luncheon included Capitol One, Court Justice William C. Mims, attorney and Virginia House Dominion Energy, McGuireWoods, Hunton & Williams, of Delegates member G. Manoli Loupassi, Virginia Senator Barnes & Diehl, Douglas D. Callaway, ThompsonMcMullan, Ryan T. McDougle, Virginia Secretary of Public Safety and and WilliamsMullen. If you are interested in volunteering for Homeland Security Brian J. Moran, and Virginia House of Drive-To-Work, please call (804) 358-6727, or e-mail info@ Delegates member William J. Howell. drivetowork.org.
28 VIRGINIA LAWYER | December 2017 | Vol. 66 | GENERAL INTEREST FEATURES www.vsb.org The Young Lawyers Conference is Here for You
by Chris Fortier
When you run a young lawyer organization, you have To help address this issue, we will seek to estab- to remain ahead of your constituency. You must be lish Legal Checkups, a no cost, low hassle, online tool able to anticipate the needs and have infrastructure that can be set up for in-person legal consultations. ready to go before your constituency’s needs become Like the annual checkup at your doctor’s office, an in- a problem. This is more of an art than a science. In dividual will fill out a form describing their situation order to get anywhere near your goals, you must have and legal issue. Then, an individual is invited to have a your ears to the ground at all times. free brief chat with a lawyer, or is referred to resources As young lawyers, we have a number of challeng- if the individual is online. We envision this as a great es in front of us. Constant change, challenges getting way to involve potential clients who may need help started in our careers, meeting the expectations of but have no idea where to get started. our supervisors and clients, all while trying to prove ourselves and establish personal lives…we have a lot YLC’s Commitment to Public Service Programs of pressure. As we are generally regarded as a public service The YLC is there for you. We encourage young arm of the Virginia State Bar, we have our series of attorneys to attend our Professional Development projects that effectively serve Virginia. Programs such as the Oliver Hill/Samuel Tucker Pre-Law Conference every fall, our Professional Development Institute, Immigrant Outreach Committee, Wills for Series, seen weekly on our YouTube Channel, our First Heroes, Children and the Law Committee, Women Day in Practice Seminar, and our Annual Meeting and Minorities Bench-Bar Dinner, Minority Prelaw programs. They are meant to enhance your knowl- Conferences, Domestic Violence Safety Project, and edge and provide professional fulfillment. However, our Rule of Law Days advance access to justice as we need to provide support to help you personally. lawyers are either providing pro bono services, edu- The new lawyer demographic has its own issues cating others, or introducing the rule of law to a new that the YLC needs assistance in addressing. While 20 generation. percent of lawyers are known to have mental health I am thankful for all the volunteers on these or substance abuse issues, that number rises to 30 per- projects as they provide an essential service to our cent with our age demographic (i.e. under the age of communities and our country. These lawyers are the 40). We have our work cut out for us. We are part- unsung heroes who are spreading the American ideal nering with Lawyers Helping Lawyers and starting a to new groups of individuals, the people who will Wellness Initiative aimed at providing opportunities continue the American tradition of democracy and for physical activities for lawyers, mindfulness cours- the rule of law. es, and a mindset that allows us to manage our mental However, we have a long way to go to meet our health. We were delighted to see the ABA Report on goal. There is a lot of work to do and a large popula- Wellness in the Profession and even more delighted tion to reach. Join us, and we’ll achieve great things to see Chief Justice Lemons of the Supreme Court of together. Virginia ask the leaders of Virginia’s bars to look into the issue.
Expanding Representation in Communities of Need Lawyers service only 15 percent of the public that experiences legal issues. Furthermore, the percentage of those with legal issues who decide to represent themselves or sit on their hands praying the issue goes away is approximately 22 percent. These stats Chris Fortier is the president of the Young Lawyers Conference. alone undermine the exceptional, client-oriented He also serves as vice chair of the VSB TECHSHOW, a member of the board of governors for the Diversity Conference, and on service that all of you do. This is also a potential the Future of Law Practice Study Committee. He is an attorney source of work for the many new lawyers we swear adviser at the Social Security Administration in Falls Church. The views represented in this article are his and not those of in every year. SSA or the Federal Government.
www.vsb.org YOUNG LAWYERS CONFERENCE | Vol. 66 | December 2017 | VIRGINIA LAWYER 29 Lawyers and Stress: Small Changes for a Better Life by Helen Chong, Tammy George, and Brent Mattocks
Working around the clock and below come from two health professionals and can be incorporated as you begin, or con- making sure each of your clients is tinue, your journey to a healthier life. treated as if they are your only client are just a few of the “norms” in the le- Insight from a Licensed Professional gal profession. Clients trust us to carry Counselor: Healthy Lifestyle Habits Over the last 20-plus years, study after study their legal burden and advocate for shows high rates of depression, anxiety, and their best interests. Across the table is substance addiction among practicing lawyers another attorney with the same objec- and law students. Stress-related illnesses are tive for his or her client. As lawyers, we on the rise in the United States in general. In order to avoid the negative mental and operate under an adversarial system, physical consequences from the stress of being so taking on stress is comparable to a lawyer or law student, it is imperative that taking on air. Stress, whether you are you establish healthy lifestyle habits. Below is a sample of recommended healthy habits. a trial attorney, in-house counsel, or Prioritize your time. It seems rudimen- non-profit advocate, is a part of our tary, but many do not recognize that too daily life. much time is wasted on low priority tasks. Have a list of priorities, but be careful not The practice of law involves learning and to have unrealistic expectations about how applying legal skills. Similarly, living a healthy much needs to be done. Also, do not forget to lifestyle while under stress requires under- add the non-work-related priorities such as standing and exercising stress management relationships, exercise, hobbies, etc. skills. The tools will vary from attorney to Engage in personal interests and hob- attorney. However, the strategies described bies. In other words, make time for fun things
30 VIRGINIA LAWYER | December 2017 | Vol. 66 | YOUNG LAWYERS CONFERENCE www.vsb.org LAWYERS AND STRESS outside of work. If you don’t create space for ing to pay attention to the present moment the things you love to do, then your stress re- and helping manage thoughts and emotions action increases over time leading to anxiety, more effectively. Calm, Headspace, and depression, and burnout. When you build Simply Being are apps that teach mindfulness positive emotional experiences into your life, and meditation practices. There are also many you build resilience to stress. books, magazines, websites, and podcasts Attend to relationships. Make time for that are excellent resources for learning and those you love. Social interactions are an im- building your practice. Also, do not forget that portant part of our well-being, and a lack of yoga is a mindfulness practice that isn’t just social support is an indicator of high risk for good for your body’s strength and flexibility, depression. but also for your mind’s focus and attention. Exercise regularly. Make time — don’t find time. Mind and body are all part of the Insight from a Fitness Expert & Personal physical experience. You can’t expect one to Trainer: Diet and Exercise to Combat Stress function optimally if the other is compro- Stress is defined as any environmental or mised and vulnerable. Anything is better than physical pressure that elicits a response from nothing. Start where you are, not where you an organism. In most cases, stress promotes think you should be or where you used to be. survival because it forces organisms to adapt Break it up into smaller increments during to rapidly changing environmental condi- your day if necessary. tions. As humans, we normally use stress to Practice relaxation techniques. There create positive outcomes. The competitive are plenty of ways to find and learn these nature of sports is a stressor which push- techniques. YouTube, apps, and professional es athletes to run faster, jump higher, and counselors are all good resources to learn spe- work harder. At work stress enhances focus, cific ways to relax mind and body. Relaxation motivation, and critical thinking skills. An skills override the physiology of the stress individual’s ability to handle stressors dictates reaction, or “fight or flight reaction.” Deep the effect on the body. breathing, relaxed muscles, and a quiet mind A strong body is better equipped to handle result in lowering stress reaction and improv- stress induced physiological changes includ- ing our ability to fall and stay asleep. ing increased heart rate, blood pressure, and Establish good sleep hygiene. Just like muscle tension. A critical variable in the personal hygiene, we need to pay attention determination of the body’s reaction to stress to our sleep routine. Sleep problems are an is health and fitness. Exercise reduces stress epidemic in our country. Unplug from your and improves a person’s ability to handle a technology for an hour before bed and get larger degree of stress. Exercise also produces into the habit of going to bed and waking endorphins or hormones that improve mood, up at the same time every day. Avoid watch- increase the quality of sleep, and reduce stress. ing television, playing games and, of course, Consuming healthy food such as oatmeal working while in bed. Instead, do quieting boosts levels of serotonin, a calming brain activities such as reading a magazine, doing chemical, while reducing cortisol and adren- crossword puzzles, listening to quiet music or aline levels, which go up as stress increases. sleep stories from an app. If you have diffi- Stress overwhelms a person who is unpre- culty, wait for about 15 minutes, then get up pared to deal with it. A crucial upcoming case, to sit in a dark quiet place and wait until you combined with unhealthy food choices, lack start to get sleepy again. This is also a good of exercise, and any additional personal issues time to practice those relaxation techniques. is a recipe for stress overload or an anxiety Avoid turning on lights (including your attack. Do yourself a favor and exercise a phone, laptop and/or tablet) because the light minimum of 30 minutes per day, while eating signals the brain to be alert and wakeful. fruits and vegetables, and you will be well Practice mindfulness and meditation. on your way to ensuring that stress will not Mindfulness and meditation have proven to impede your productivity and success. be effective in building resiliency to stress. There are many resources out there to aid in developing this practice which involves learn- Better Life continued on page 33 www.vsb.org YOUNG LAWYERS CONFERENCE | Vol. 66 | December 2017 | VIRGINIA LAWYER 31 We Must Combat Racial Disparity and Create a More Diverse Legal Profession by Shemeka Hankins
As we encourage lawyers to take A study completed by the Criminal Justice Center at Stanford University in 2016 a larger role in alleviating disparities provided further data supporting the rec- in laws that affect minority commu- ommendation that those in management positions should make an effort to include nities, there are two groups of people diversity in hiring.3 that require more attention. In the last We want to believe that just because these few years, one group of lawyers has are the numbers, the criminal justice system isn’t skewed or biased. However, a number been pointed out more than others as of reports, studies, and data driven research having a tremendous impact on mi- articles find otherwise. Melba Peterson, a former Miami-Dade Prosecutor and the norities in the criminal justice system. outgoing president of the Black Prosecutors That group of lawyers is prosecutors Association, stated that “it’s critical that decision makers in the criminal justice system and the stunning racial gap associated reflect the populations they serve.”4 with this important position. While each of us recognize that the prosecutor’s ultimate goal is always to seek The American Bar Association released a justice, sometimes the definition of justice study in 2010 revealing that 88.1 percent of all shifts when you are balancing the letter of the lawyers are Caucasian.1 law and the needs of the community, accord- In a study conducted by the Women’s ing to Peterson. So, the first step is recognition Donor Network, it was uncovered that of prosecutors’ roles in the criminal justice of 2,437 elected prosecutors nationwide, system. Prosecutors can use their influence to approximately 95 percent are Caucasian and provide other options than incarceration, of- 79 percent are men. Furthermore, roughly fer fair and individualized plea agreements as- 60 percent of all states have no elected black sessing each situation to combat biases or stop prosecutors.2 taking things to trial because of more con-
32 VIRGINIA LAWYER | December 2017 | Vol. 66 | YOUNG LAWYERS CONFERENCE www.vsb.org CREATE A MORE DIVERSE LEGAL PROFESSION servative tough-on-crime areas. Prosecutors to proposed legislation. There were over one must continue to use key partnerships with thousand bills in the House of Delegates last other members of the justice system — the year.7 Everyone is busy but different per- public defender, the courts and other groups spectives are a part of the goal. As we move — to assess the domino affect the system has forward, each one of us can make efforts to on the lives of those facing serious criminal support a fairer and equitable justice system charges. Prosecutors can be on the forefront for all. of changing the tide regarding the effect of laws on the economically vulnerable or people Endnotes: of color. 1 http://www.diversityinc.com/news/8-of-10 -u-s-prosecutors-are-white-males-study But prosecutors only represent one -shows/ type of lawyer that can influence our laws. 2 https://www.nytimes.com/2015/07/07/us/ At the federal, state, and local levels, African a-study-documents-the-paucity-of-black Americans, Hispanics, and Asians hold elec- -elected-prosecutors-zero-in-most-states. tive office at rates lower than their percentages html?mcubz=3 5 3 https://law.stanford.edu/wp-content/ of the overall populations. In Virginia, from uploads/2015/07/Diversity-Case-Studies 2007 to 2014 the Hispanic population in this -Final-3.12.16.pdf state grew by 46 percent yet in the General 4 https://www.vice.com/en_us/article/wdbdxb/ Assembly, yet we have only two representa- black-prosecutor-america-life-inside tives of Hispanic heritage.6 We need diverse 5 https://www.theatlantic.com/politics/archive /2015/07/american-prosecutors-are-incredible individuals running for office. Diverse people -whitedoes-it-matter/397847/ should be becoming prosecutors. Attorneys 6 https://apnews.com/4c6c0cf4d1aa4c8eba should support efforts to increase diversity in 374876b8a24533/divided-america-minorities the General Assembly with lawyers of diverse -missing-many-legislatures backgrounds. Lawyers of diverse backgrounds 7 See https://lis.virginia.gov/cgi-bin/legp604 .exe?161+lst+ALL+HB1344. should be encouraged to forget the mindset that the most they can do for a person of color is become a defense attorney. If there are no differing perspectives to counteract unknown biases or unlived experiences at various levels and sectors of our legal system, it will be difficult to achieve a fairer and col- or-blind justice system. We need your skills and experiences on the front lines as an elected representative to Shemeka Hankins is an assistant commonwealth’s the General Assembly or your contributions attorney practicing in Norfolk, Virginia.
Better Life continued from page 31
Special thanks to the following non-attorney contributors:
Tammy George is a licensed professional counselor in private practice and is located in the of- Helen Chong is a board member of the Virginia fices of Aquia Counseling and Therapy Services in Stafford, Virginia. George has been providing State Bar Young Lawyers Conference. She has individual and couples therapy to adolescents and adults for almost 20 years. She specializes in overseen several programs, including the Children cognitive behavioral therapy with special interests in mindfulness, grief counseling, and mood and the Law Commission and Immigrant Outreach disorders. Committee, that have received national awards and grants from the American Bar Association. Chong Brent Mattocks is a National Academy of Sports Medicine certified personal trainer. He is an was the recipient of the R. Edwin Burnette Jr. instructor for CD Fit, a high intensity interval training program in the Washington, DC, area. He Young Lawyer of the Year Award in 2015. Recently, has trained over 50 clients, helping them transform their lives and meet their fitness goals. As a Chong was the featured in the August 2017 issue of subscriber to a whole food, plant-based diet, Mattocks has studied the impact food has on our Virginia Living Magazine for her contributions to daily lives. He graduated from the United States Air Force Academy in 2013, and is serving as an serving the public as a criminal defense attorney. acquisitions officer for the US military.
www.vsb.org YOUNG LAWYERS CONFERENCE | Vol. 66 | December 2017 | VIRGINIA LAWYER 33 Manners and Messages, E-mail for Young Lawyers
by Benjamin Shute
Many attorneys send hundreds Young lawyers are no strangers to e-mail. In fact, we are the first generation of lawyers of e-mail messages every day, rang- who grew up with e-mail as a primary form ing from small interoffice quips of communication. Our early memories to drawn-out debates with oppos- are often riddled with colorful images of Macintosh desktops, the raucous screech of a ing counsel. In the 20 years since dial-up modem, and the flashy chime of AOL Hotmail popularized the first free proclaiming, “You’ve got mail.” We are the e-mail service, it has become the pre- first generation who learned to send an e-mail and write cursive in the same grade, and ferred method of communication for perhaps the last to be taught the latter. E-mail working professionals. messages are second nature to us, and with
34 VIRGINIA LAWYER | December 2017 | Vol. 66 | YOUNG LAWYERS CONFERENCE www.vsb.org MANNERS AND MESSAGES, E-MAIL FOR YOUNG LAWYERS the advent of cell phones and text messaging, to justify a third draft of an e-mail when almost outdated. assignments steadily pile up on our desks. Despite this ubiquity, and perhaps Brief deadlines and billable hours often take because of it, e-mail messages can cause precedent over such concerns, and we must considerable headache. We are all too familiar balance our priorities. This list is certainly not with stories of data breaches, N.S.A. surveil- exhaustive. Countless factors influence how lance, and the political misfortunes of e-mail we communicate, but that only further illus- scandals. The Internet is so saturated with trates the importance of doing so profession- these subjects that they have become common ally. E-mail messages reflect our diligence, and knowledge. In the world of Wikileaks and our priorities. Russian hackers, the idea that one should, As a result, an e-mail message should “e-mail like it may one day be read aloud in a be written with respect, both for the recipi- deposition,” has become a platitude.1 ent and for the subject. This commandment E-mail security is indeed a fashionable may seem rather simple, but it is sufficient issue, and one that many tech-savvy young to create professional, conscientious writing. lawyers pay close attention to. Yet in doing so It would be presumptuous to try and write a we have come to overlook a more fundamen- comprehensive guide on e-mail etiquette. The tal concern, one which may not be as animat- subject is simply too fluid and office-specific. ing or trendy, but is equally important. Young The formalities that e-mail messages require lawyers often forget that e-mail messages, at largely depend on contextual clues that are their most basic level, are writing samples. subtle and hard to define, much less apply. No matter the length, subject, or context, What is appropriate for some may be too each e-mail is a reflection of the care that we formal for others. Any style guide to e-mail put into our work. Our words either show writing is more likely to reflect the standards effort or indolence, and for a vocation that of the author than your boss. Moreover, tech- prides itself on professional standards, e-mail nology will continue to evolve with time, and has a tremendous impact on your personal the next generation of young lawyers may in- brand. This problem is further compounded teract with e-mail in an entirely different way by how e-mail messages are used. They are than we do. In 50 years e-mail messages may often referenced by both peers and superi- even be obsolete. The larger point, however, ors, and serve as an unofficial record of your will always be relevant. Anything worth saying work. Between cloud storage and file fold- is worth saying well. We should type accord- ers, messages can linger on the edges of an ingly. inbox for years. An awkward comment in a passing conversation can be forgotten, but a Endnotes: tasteless joke in an e-mail can last a lifetime. 1 Nuzzi, Olivia (@Olivianuzi). “Dance like no one is watching; email like it may one day be Somewhere along the way, young lawyers have read aloud in a deposition.” Dec. 13, 2014, largely forgotten this. 1:18pm. Tweet. There are a number of potential causes for this slide. The first, and most obvious, is our upbringing. Young lawyers were raised with e-mail, texting, Twitter, and more. We often think of e-mail as just another means of informal communication, and our stan- dards therefore differ from elders who interact with technology differently. E-mail etiquette is remarkably contextual as well. Preferred formalities vary with office culture. Beliefs Benjamin Shute is an assistant commonwealth’s at- torney for Gloucester County, where he is responsible and attitudes of the work environment will for prosecuting felony and misdemeanor offenses. He naturally influence the way employees com- currently serves as the Young Lawyer’s Conference 6th District Representative. An Arlington County native, municate. Time is also a factor. It is difficult he was admitted to the bar in October of 2016. www.vsb.org YOUNG LAWYERS CONFERENCE | Vol. 66 | December 2017 | VIRGINIA LAWYER 35 The Future of Student Loans: The Brunner Test in the 21st Century and The Consumer’s Hunger for Change by Christina T. Parrish
The mention of the term “student loan” is rarely met with smiles or happy thoughts. Instead, it will likely elicit anger and disdain.
According to the Pew Research Center, student loans accounted for more
than $1.3 trillion in debt in the United States at the end of June 2017.1
Moreover, this debt burdens about four-in-ten adults under the age of 30, and
roughly one-in-five adults between the ages of 30 and 40.2 The Pew Research
Center also reports that 73 percent of young college graduates with student
loan debt are not living comfortably or, in other words, they are struggling
financially.3 As of June 30, 2017, 8.5 million federal student loan borrowers
were in default, including 500,000 consumers who defaulted in the first six
months of 2017.4
36 VIRGINIA LAWYER | December 2017 | Vol. 66 | YOUNG LAWYERS CONFERENCE www.vsb.org THE FUTURE OF STUDENT LOANS
We are facing a financial crisis triggered by after a set term of repayment. Instead, the student loans. Bankruptcy Code states that government-is- When consumers are not living com- sued student loan debt can only be discharged fortably, or when a consumer faces insur- upon a debtor’s demonstration that the failure mountable financial problems, he or she often to discharge student loan debt would impose considers whether the bankruptcy system can an “undue hardship” on the debtor.10 Thus, provide relief. A discharge in bankruptcy will while bankruptcy provides relief from a large often alleviate a debtor’s obligation to repay variety of consumer debt, bankruptcy has a debt, barring specific exceptions. While been an unhelpful tool in eliminating student student loan debt is categorized as an unse- loan debt since the late 1980s. cured debt5, and thus in the category of debt which is usually discharged in whole or in A Rise in Judicial Relief part through bankruptcy, student loans have Despite the explicit exception to discharge in long enjoyed enhanced statutory protections 11 U.S.C. § 523 (a)(8), consumers may find making a discharge in bankruptcy more chal- help, hope, and some relief in Virginia bank- lenging. ruptcy courts. The case of Erbschloe v. U.S. Since 1985, courts have used the Brunner Department of Education11 provides an excel- test6 to assess the dischargeability of student lent example of how courts evaluate whether loans despite their enhanced statutory pro- the exclusion of a debtor’s student loans from tection. In recent years, an emerging shift in their discharge in bankruptcy would inflict case law has developed. Several courts suggest an undue hardship on the debtor. Amber the Brunner test is antiquated and should be Erbschloe (the Debtor) sought the discharge adjusted. In fact, one recent decision demon- of her student loan debt under 11 U.S.C. strates willingness by at least one court to § 523 (a)(8). The debtor graduated from re-evaluate dischargeability in the context of Virginia Tech in 2009 and incurred $17,000 an increased cost of higher education and the in student loan debt, which grew to $19,300 modern-day trend towards extended repay- as of the date of the hearing.12 Throughout ment terms. her time of study, she voluntarily repaid small amounts towards her account balance.13 After The History of Student Loan graduating, the debtor developed a rare phys- Dischargeability ical disability that left her unable to engage in Approximately 30 years ago, student loans did heavy lifting and strenuous activity.14 not enjoy the exclusive treatment they cur- The evidence demonstrated that, de- rently utilize in our bankruptcy system. Prior spite the debtor’s best efforts, her disability to 1985, federal student loans were generally prevented her from working in her field. dischargeable. Pursuant to 11 U.S.C. § 523 (a) Furthermore, her disability prevented her (8) at that time, student loans were ripe for from maintaining her student loan obliga- discharge if the debtor could demonstrate five tions.15 At the time of the trial to determine years of repayment.7 After all, the ten-year the dischargeability of the debtor’s student standard repayment period was common- loans, the debtor worked at an auto shop in an place, unlike the thirty-or-more-year plans administrative capacity for 25 to 40 hours per of present-day. In that context, five years week at a rate of $9.00 per hour.16 According of repayment was viewed as substantial. If to the debtor’s testimony, her monthly ex- a debtor sought to discharge student loans penses came very close to exceeding her before five years of repayment, the law re- monthly income.17 quired a demonstration of “undue hardship.”8 Pursuant to the Brunner test, a debt- The term “undue hardship” is not defined in or must prove, by a preponderance of the the Federal Bankruptcy Code. As such, the evidence, three factors in order to establish Southern District of New York developed a undue hardship: “(1) that the debtor cannot three-prong test known as the Brunner test maintain, based on current income and ex- that became the majority approach for deter- penses, a “minimal” standard of living for her- mining whether an undue hardship exists.9 self and her dependents if forced to repay the Today, the Bankruptcy Code no longer loans; (2) that additional circumstances exist provides for the discharge of student loans indicating that this state of affairs is likely to www.vsb.org YOUNG LAWYERS CONFERENCE | Vol. 66 | December 2017 | VIRGINIA LAWYER 37 THE FUTURE OF STUDENT LOANS persist for a significant portion of the repayment period of the at a debtor’s short-term ability to repay fixed amounts and student loans; and (3) that the debtor has made good faith ef- applying it to determine whether a debtor’s circumstances may forts to repay the loans.”18 change at some time in the next twenty or more years.”23 The court thoroughly considered the evidence in evaluat- The court granted Amber Erbschloe a partial discharge ing the three prongs of the Brunner test. The court determined of her student loan obligation upon condition of her qualifi- that the debtor presented evidence to satisfy the first prong cation for, and participation in, an Income Based Repayment of the inquiry. The debtor’s evidence established an inability Program.24 The court further concluded that any balance due to maintain a minimal standard of living for herself and her and owing at the end of the 25-year repayment period rep- dependents, as her income fell below 150 percent of the pov- resents the portion of her student loan debt that would impose erty line.19 In evaluating the second prong, and pursuant to an undue hardship. As such, the court discharged that amount the analytical approach traditionally applied in precedent, the prior to its expected forgiveness.25 Provided Amber Erbschloe’s court determined that the debtor failed to provide the court monthly student loan obligation is $0 per month, her partial with evidence sufficient to establish, by a preponderance of the discharge would have the effect of a total and complete dis- evidence that her financial hardship was likely to persist for charge of her debt. While the result in Erbschloe is not typical, a significant portion of the repayment period of the student it—coupled with an income-based repayment program—may loans.20 Without evidence sufficient to satisfy the second prong, provide a viable solution for those crippled with student loan the court could not grant a full discharge of her student loans. debt.26 Yet, the court did not end its inquiry there. As requested by the debtor, the court went further to consider partial discharge of The Legislative Outlook her student loan obligation. Despite an adjustment to the second prong of the Brunner The court acknowledged that the Fourth Circuit had not test by the Erbschloe court, relief from student loan debt using yet adopted a test for undue hardship in the partial discharge the bankruptcy system remains tenuous at best. Many courts context. Guided by a decision from the District Court for the around the nation continue to adhere to the rigorous appli- Western District of Virginia, the court adopted the third prong cation of the Brunner test. As such, some argue that the best of the Brunner test as the prerequisite for obtaining a partial opportunity for relief must include the legislature. Earlier this discharge of student loan debt: a debtor’s good faith effort to year, the United States House of Representatives introduced repay the student loan obligation.21 Upon the court’s review of two pieces of legislation aimed at facilitating relief: H.R.2366 the evidence, it found that the debtor made a good faith effort and H.R. 2527. to repay her student loan obligation and therefore satisfied the H.R. 2366 is also known as the Discharge Student Loans prerequisite for partial discharge of student loan debt.22 in Bankruptcy Act of 2017. Sponsored by Representative John K. Delaney of Maryland, the bill sought to eliminate 11 U.S.C. § 523 (a)(8) in its entirety.27 Plainly speaking, the bill would enable unrestricted discharge of ... bankruptcy has been an unhelpful tool all student loans. The bill stalled in its in eliminating student loan debt since the subcommittee and failed to gain any mo- mentum. late 1980s. H.R. 2527 is a related bill and is also known as the Private Student Loan Bankruptcy Fairness Act of 2017.28 Sponsored by Representative Steve Cohen of Tennessee, the bill does not In granting the debtor’s prayer for a partial discharge of her attempt to facilitate the unrestricted discharge of all student student loan obligation, the court noted an observation of loans. Instead, the bill sought to eliminate subparagraph (B) first impression. The court evaluated the applicability of the of 11 U.S.C. § 523 (a)(8), a “catch all” section for educational second prong of the Brunner test given the recent inception of loans stemming from sources other than a governmental or income-based repayment plans. In the court’s decision to es- nonprofit unit.29 This bill also stalled in its subcommittee and sentially nullify the second prong of the Brunner test, the court failed to gain any momentum. There has been no further ac- noted that “courts must apply the Brunner test within the tion on either bill and the success of either bill is highly unlike- context of income-based and extended repayment plans that ly. While the introduction of these bills certainly signals recog- allow borrowers to extend their repayment periods for twenty nition of the rallying cry of struggling consumers, legislators or more years, all the while making monthly payments as low are evidently concerned with potential consequences that may as $0. As such, courts are taking a test that was designed to look ensue.
38 VIRGINIA LAWYER | December 2017 | Vol. 66 | YOUNG LAWYERS CONFERENCE www.vsb.org THE FUTURE OF STUDENT LOANS
Consequences of Dischargeability common types of unsecured debt are credit card debts, medical Student loans are the bedrock of the American higher educa- debts, and personal unsecured loans. tion system. If the pathway to student loan dischargeability 6 In re Brunner, 46 B.R. 752 (S.D.N.Y.1985). 7 11 U.S.C. § 523(a)(8) (West 1985) becomes wider, positive and negative consequences may result. 8 Id. Some critics of student loan dischargeability contend that a 9 See supra note 6. change in the law will cripple the student loan industry. If 10 11 U.S.C. § 523(a)(8) (2017) student loans become dischargeable in bankruptcy, similar to 11 Erbschloe v. U.S. Dep’t of Educ. (In re Erbschloe), 502 B.R. 470 their treatment pre-1985, it is quite plausible that student lend- (Bankr. W.D. Va. 2013). ing will cease or become virtually unattainable. Government 12 Id. lending would crumble and private lending would rise rapidly, 13 Id. 14 Id. at 475. coupled with the risk of harsh market rates. Without reason- 15 Id. able student loan lending, millions of young Americans may be 16 Id. priced out of higher education. 17 Id. However, the positive consequences may outweigh this 18 Id. at 476-477. See also Brunner v. N.Y. State Higher Educ. Servs. negative forecast. First, young Americans will once again have Corp. (In re Brunner), 831 F.2d 395 (2nd Cir.1987). an opportunity to realize true relief from one of the largest 19 Erbschloe, 502 B.R. at 478. and most cumbersome forms of debt. This would enable a 20 Id. at 478, 480. 21 Id. at 482. See also Tennessee Student Assistance Corp. v. Mort ( In rebirth of homeownership and family expansion. Similarly, a re Mort), 272 B.R. 181 (W.D. Va. 2002). decrease in student loan lending may serve as a catalyst for tui- 22 Erbschloe, 502 B.R. at 482. tion restructuring. As colleges and universities compete for the 23 Id. at 481. best and the brightest, campuses are exploding with increased 24 Id. at 483. amenities and offerings that inflate tuition. Without the ease 25 Id. of access to the capital that students have traditionally enjoyed, 26 See also Roth v. Educ. Credit Mgmt. Corp. (In re Roth), 490 B.R. there will be decreased demand for this ballooning supply from 908, 920 (B.A.P. 9th Cir., 2013) (“I concur that the bankruptcy court erred in declining to grant a hardship discharge of the stu- the modern university. A decreased enrollment will have a dent loan debt to Debtor under § 523(a)(8). However, because I trickledown effect upon institutions nationwide, leaving them understand how the bankruptcy court felt restricted by precedent with no other choice but to alter their approach to regaining in reaching its decision, I write separately to highlight that the the students upon which they depend. So, if the legislature re- analysis required by Pena/Brunner to determine the existence of fuses to intervene, perhaps a renewed perception of consumer an undue hardship is too narrow, no longer reflects reality, and bankruptcy alongside a fresh application of the Brunner test should be revised by the Ninth Circuit when it has the opportu- may be what our society really needs to alleviate the pressure nity to do so. Put simply, in this era, bankruptcy courts should be free to consider the totality of a debtor’s circumstances in decid- stemming from $1.3 trillion in student loan debt. ing whether a discharge of student loan debt for undue hardship is warranted.”) Conclusion 27 Discharge Student Loans in Bankruptcy Act of 2017, H.R. 2366, The unrestricted discharge of student loan debt via a legislative 115th Cong. § 2 (2017) amendment to 11 U.S.C. § 523 (a)(8) appears unlikely, at least 28 Private Student Loan Bankruptcy Fairness Act of 2017, H.R. in the interim. Forward looking courts may, therefore, prove to 2527, 115th Cong. § 2 (2017) be the best avenue for consumers burdened with student loan 29 Id. debt. While the courts continue to align the Brunner test with modern developments in the student loan industry, consumers are encouraged to take advantage of lenders’ alternative repay- ment options until the law evolves over time.
Endnotes: 1 Anthony Cilluffo, 5 Facts About Student Loans, Factank News in the Numbers (Aug. 24, 2017) http://www.pewresearch.org/fact- tank/2017/08/24/5-facts-about-student-loans/ 2 Id. 3 Id. 4 Tyler Roberts, Law Schools with the Highest Student Loan Default Christina T. Parrish began practicing bankruptcy law after several years Rates (Sept. 29, 2017) http://www.nationaljurist.com/nation- of practice in business litigation, commercial real estate, and consumer al-jurist-magazine/law-schools-highest-student-loan-default- financial compliance. Her practice primarily focuses on the evaluation and defense of matters arising during and after the confirmation of Chapter 13 rates plans. She is a frequent presenter for seminars and training offered by local 5 At a very basic level, an unsecured debt is a financial obligation community organizations, as well as small to mid-sized businesses. She whose repayment is not secured by a lien on collateral. Other lives in Richmond with her twin daughters. www.vsb.org YOUNG LAWYERS CONFERENCE | Vol. 66 | December 2017 | VIRGINIA LAWYER 39 Tumultuous Time Requires Engagement by Young Lawyers by Melissa Little
Newly admitted Virginia lawyers are sworn in by the Supreme Court of Virginia at the December 2017 Admission & Orientation Ceremony.
Lawyers are held to a higher the death of Heather Heyer and two police officers.2 There has been a rise in hate groups standard than most other profession- operating in this country and a spike in hate als. In Virginia, a lawyer is expected crimes committed by these groups.3 Currently, to render at least two percent per year there are 917 known hate groups in America.4 of professional time to pro bono legal Many bar associations, including the Virginia State Bar and the Young Lawyers Conference, services, which include poverty law, quickly responded with a statement con- civil rights law, public interest law, and demning the egregious acts of these hate volunteer activities designed to in- groups. Congress also responded by passing a resolution condemning hate crimes and crease the availability of pro bono le- any other forms of racism, religious or ethnic gal services.1 In addition, lawyers take biases, discrimination, incitement to violence, an oath to support the Constitution of or animus targeting a minority in the United States.5 Although these actions taken by bar the United States and the Constitution associations and Congress are noteworthy, we of the Commonwealth of Virginia. must continue to speak out, protest, and stand up against all hateful acts and discriminatory As lawyers, our roles and responsibilities policies that undermine our country and the become even more significant during periods rule of law. of social unrest. On August 12, 2017, Virginia Recently, the Trump Administration made national headlines because a white developed policies that limit the rights and supremacist group protested the removal protections of select groups of people. This of a Confederate monument, resulting in includes, to name a few, a travel ban that
40 VIRGINIA LAWYER | December 2017 | Vol. 66 | YOUNG LAWYERS CONFERENCE www.vsb.org TUMULTUOUS TIME REQUIRES ENGAGEMENT BY YOUNG LAWYERS targeted Muslim-majority countries, the sus- or simply make a monetary donation to the pension of the Deferred Action for Childhood cause of your choice. Overall, there are many Arrivals (DACA) program, a ban on trans- ways to effect change, while also fulfilling your gender individuals serving in the military, the obligations as a lawyer. scaling back of important policing reform initiatives, and reversing a policy that pro- Endnotes: tects transgender workers under employment 1 Virginia Professional Guidelines and Rules of discrimination laws. Conduct 6.1(a) In addition, several states have proposed 2 http://www.reuters.com/article/us-usa legislation that restricts access to voting. -trump-weapons-exclusive/exclusive -trump-administration-prepares-to Research has shown that these laws dispro- 6 -ease-export-rules-for-u-s-guns portionately impact people of color. In Texas -idUSKCN1BU2N8 v. Holder, 88 F.Supp.2d 113 (2012), a federal 3 Final U.S. Status Report Hate Crime Analysis court unanimously found that a Texas bill & Forecast for 2016/2017 (SB14) to restrict voter access discriminat- https://csbs.csusb.edu/sites/csusb_csbs/files/ ed against minority voters. Nevertheless, in Final%20Hate%20Crime%2017% 2013, after the United States Supreme Court 20Status%20Report%20pdf.pdf in Shelby County v. Holder, 570 U.S. 2 (2013), 4 https://www.splcenter.org/hate-map rendered Section 5 of the Voting Rights Act 5 S.Res.118 — 115th Congress (2017–2018) inoperable, Texas immediately announced 6 https://www.americanprogress.org/issues/ that it would implement SB 14. After years democracy/reports/2016/11/11/292322/vot- er-suppression-laws-cost-americans of ongoing litigation, on August 23, 2017, a -their-voices-at-the-polls/ federal judge ruled that Texas SB 14 violates https://www.americanprogress.org/issues/ Section 2 of the Voting Rights Act as well as race/news/2017/05/12/432339/five-truths-vot- the 14th and 15th Amendments to the U.S. er-suppression/ Constitution.7 According to the Brennan 7 See https://www.brennancenter.org/ Center, as of May 2017, approximately 31 legal-work/naacp-v-steen. states have introduced close to 10 bills aimed at restricting access to registration and voting. In 17 states, approximately 35 of these bills have at least been approved at the committee level or beyond. To protect our nation’s laws and found- ing principles, we must be attuned to what is happening around us, and how our policies and practices may impact others. If you are Melissa Little’s practice focuses on education matters. interested in learning more about ways to Prior to joining Blankingship & Keith, she advocated make a difference in your community, con- on behalf of youth in school administrative hearings. As a trial attorney, she also represented both plain- tact your local legal aid office. You may also tiffs and defendants in civil matters in state courts connect with a local civil rights organization throughout the commonwealth.
Get Involved with the Young Lawyers Conference
Want to get to know other lawyers and have a say in the special interests and concerns of young and new lawyers? YLC functions provide opportunities for young lawyers to meet others in their field, both those just starting out — like yourself — and those who are seasoned in the profession. Moreover, through its many projects, the YLC is a vehicle through which young lawyers can participate in the VSB, serve the profession and the public, and enhance the public awareness of the legal profession. Learn more by reading the Docket Call newsletter at http://bit.ly/YLC-DC-Fall2017.
www.vsb.org YOUNG LAWYERS CONFERENCE | Vol. 66 | December 2017 | VIRGINIA LAWYER 41 Access to Legal Services Law Reader Leads Pro Bono Q&A Site Williamsburg attorney hits significant milestone on VSB’s Free Legal Answers site by Jackie Kruszewski
John D. Williams gets up early — like, 3 a.m. early — to walk his dog. “I check my messages and this and that,” he says. “And I tend to work in the nice, peaceful, wee hours of the night.” It’s a fitting schedule for what the lawyer calls his “little, quiet practice in rural Williamsburg, Virginia.” And it’s also during this time that the attorney logs onto Virginia State Bar’s Free Legal Answers service and lends a hand, an- swering legal questions for the website’s low-income users. In November, Williams became the first Virginia lawyer to answer 50 ques- tions on the platform, and he’s complet- ed 56 as of this writing. He says he was inspired to give the website a try after a Virginia State Bar seminar in Hampton last year. “The program was just interesting to me,” he says. “I’m an old man and John and Maxine Williams and their dog with the presidential helicopter in 2009. technologically challenged, but I can use e-mail. And I figured out how to do this, so I just started doing it in my free time. The Virginia State Bar launched community lawyering and service. In It’s been good fun.” Free Legal Answers in August of 2016, recent years, he’s concentrated on being Williams says, for the most part, part of a multi-state initiative of the a guardian ad litem for children in the the questions concern general, run of American Bar Association to provide courts system. And he’s mentored about the mill topics like divorce, custody, and online pro bono civil legal assistance to a dozen law students — from William family law — Williams’s areas of ex- Virginia residents. Users meet certain & Mary and other schools — in his pertise. He says he attends to questions income guidelines that qualify them for two-decade law career. where he knows he has a competent, the help, and Virginia lawyers in good He calls the law his third career, thorough answer. standing can sign up to answer their a later-in-life pursuit that is more of “I don’t get involved in questions legal questions. a passion than a financial necessity. where I’m not 100 percent sure of the The program is an opportunity to Williams is one of a handful of lawyers answers I’m giving,” Williams says. engage in pro bono on a flexible sched- in Virginia practicing law without a One international custody case, he ule, and the volunteer lawyers are cov- law degree, having apprenticed under says, exceeded the scope of the site, and ered by malpractice insurance provided Dwight Dansby in the Law Reader pro- Williams helped flag the posting for by the National Legal Aid & Defender gram. moderator intervention and more in- Association Insurance Program. As a Law Reader, an aspiring lawyer depth help. Since its debut, over 70 Virginia can learn the law under a supervising “I know people are fearful of going lawyers have answered more than 630 attorney or judge for a set number of to court,” Williams says. “I like being questions at virginia.freelegalanswers years and hours, earning the right to able to give an accurate answer to people .org. practice, while also accruing experience about what I’d expect across the state of Williams’ prolific participation in a firm or at court. Virginia is one of Virginia from judges.” is an extension of a career focused on five states that offer this educational
42 VIRGINIA LAWYER | December 2017 | Vol. 66 www.vsb.org Access to Legal Services path. After his apprenticeship, Williams I don’t have a fax machine. There’s not passed the bar on his first try in 1997. much out there about me.” Top Five Answerers on “When I first started practicing law, I But Free Legal Answers is a reward- hung out a shingle and waited for busi- ing, anonymous way to provide a benefit FreeLegalAnswers.com ness to walk in the door,” he says. “I did to fellow citizens who can’t afford to John D. Williams, Williamsburg – just about everything a brand new, small hire counsel, Williams says. Lawyers are 56 questions answered town lawyer does: divorces, wills, small “too damn expensive,” he adds. business formation, etc.” “I’ve never been a fan of legal fees Elaine H. Cassel, Fairfax – For seven years, he worked on crim- and I’ve probably cheated my wife of a 45 questions inal cases as a court-appointed attorney lot of money,” he says, chuckling. Ann Callaway, Fauquier County – and did a stint as counsel for the local Outside of the law and early morn- 43 questions department of social services. Williams ing walks, Williams enjoys sailing, build- continues to practice on a regular basis ing and flying airplanes, motorcycling, Tammy L. Sossei, Henrico County – in three jurisdictions and makes irreg- and traveling. “I’ve been blessed with a 36 questions ular appearances in four or five other wonderful wife with whom I’ve enjoyed counties. many interesting experiences,” he says. Martin D. Wegbreit, Richmond – He says he otherwise keeps a low 30 questions profile. “I don’t have a Facebook profile;
Wear the Pin That Says You’re a Super Lawyer.
Answer 15 questions or more on Virginia.freelegalanswers.org and we’ll send you a pin to wear with pride.
Virginia.freelegalanswers.org — A national ABA-sponsored program bringing legal answers to people who cannot afford an attorney.
Questions? Contact Crista Gantz at [email protected] or (804) 775-0522.
Do Pro Bono. Do Good.
www.vsb.org Vol. 66 | December 2017 | VIRGINIA LAWYER 43 Access to Legal Services Pro Bono Conference and Celebration Draws Hundreds to Charlottesville
1 2 3
5
4 Fifty-five lawyers attended CLE sessions, while over 250 people attended the awards dinner at the annual Pro Bono Conference and Celebration in Charlottesville where Ofelia Calderon and McGuireWoods LLP took home awards for their extensive contri- butions to pro bono service. Calderon received the Lewis F. Powell, Jr. Pro Bono Award while McGuireWoods received the Frankie Muse Freeman Organizational Pro Bono Award.
Pictured: 1 Access Committee Vice-Chair Tara Casey 2 VSB Access to Legal Services Director Karl Doss hands the rather large (and heavy) Lewis F. Powell, Jr. Pro Bono Award to recipient Ofelia Calderon of Calderon Seguin. 3 Jonathan Blank and Tennille Checkovich of McGuireWoods with the 2017 Frankie Muse Freeman Organizational Pro 6 Bono Award. 4 Simon Sandoval-Moshenberg of the Legal Aid Justice Center introduces Ofelia Calderon, recipient of the 2017 Lewis F. Powell, Jr. Pro Bono Award. 5 Members of the VSB Special Committee on Access to Legal Services: (from left to right) Valerie L’Herrou, Marie Appleby, Chip Nunley, Yvette Ayala, Paul Garrett, and Crystal Twitty. 6 Mary Bauer, executive director of the Legal Aid Justice Center 7 Access Committee Chair Chip Nunley
7
44 VIRGINIA LAWYER | December 2017 | Vol. 66 www.vsb.org Purple Heart continued from page 27
Well-versed in civilian statutes and Bar Association Criminal Practice neck, I told the deputy I appreciated the code of military justice, with her group or the chair of the Virginia State his attentiveness but that since I was military training and clearances, she Bar Military Section, she also watches the prosecutor, it would be helpful for is afforded the ability to handle cases quite a bit of The Andy Griffith Show all concerned if I were as close to the that might prove extremely difficult for (she has all eight seasons on DVD) and bench as possible.” I knew then that I other civilian attorneys. This was the plays Sudoku to relax. wanted to be a judge because the scar- case when she assisted in representing After spending some time as a city of people like me in “front of the an individual for the federal public weekend court judge for teenagers bar” skews the perception that equal defender’s office who was accused of while stationed in Arizona, Stackhouse justice applies to everyone. She says, terrorist activities in plotting to blow says her goal for the future is to “Some people have to see it to believe up several northern Virginia targets. become a civilian judge and a reserve it and I want to give them an eyeful!” In her free time, Stackhouse has military judge. “I have the education, I And though the Purple Heart done pro bono work for the Guest have the training, I have the experience leaves her deeply humbled, she laugh- House in Alexandria, which assists and most of all, I have the desire. One ingly says that the experience taught women who have been incarcerated time, I walked into a civilian court- her “not to stand outside a bunker with legal issues upon their release. room, and was asked to remove myself for anyone else again! You’re on your She also works with the Veteran’s to ‘behind the bar’ because where I own!” Consortium to advocate for veterans stood was for attorneys and judges It is not difficult to imagine that issues and represent those former ser- only. Being dressed as I was, with a Stackhouse will continue to achieve vice members who may not be able to suit and briefcase and all the other her goals, and make an impact to afford attorneys. When not completing accoutrements, such as a bar card whatever arena she brings her talents. duties as the chair of the Alexandria hanging from a lanyard around my
What Seniors Need to Know.
The Senior Citizens Handbook is an invaluable resource with just about everything a senior would want to know about the law and a compendium of community- service organizations that provide senior services.
For more information, or to order copies of the Senior Citizens Handbook, please e-mail Stephanie Blanton at [email protected] or call (804) 775-0576.
www.vsb.org Vol. 66 | December 2017 | VIRGINIA LAWYER 45 Noteworthy > VSB NEWS Highlights of the October 27, 2017, Virginia State Bar Council Meeting At its meeting on October 27, 2017, in Emeritus Rule the facts presented in the opinion Charlottesville, the Virginia State Bar The council also unanimously approved because participation violates the Rules Council heard the following significant the Special Committee on Access to of Professional Conduct governing fee reports and took the following actions: Legal Services’ proposal to amend the sharing with nonlawyers, paying for Rules of the Supreme Court of Virginia referrals, and safeguarding client funds. Clients’ Protection Fund to allow emeritus members of the VSB The proposed LEO will be sent to the to provide pro bono services without The council unanimously approved the Supreme Court of Virginia for its con- direct supervision of a supervising Clients’ Protection Fund Board’s request sideration. attorney. to allow the VSB, in the 2018 legislative session, to seek extension of the CPF LEO 1885 William Schmidt Resolution sunset provision from July 1, 2020, to The council voted 59 to 6 in favor Council approved the resolution regard- July 1, 2023. The proposal will be sent of LEO 1885, which concludes that ing William Schmidt, lauding his many to the Supreme Court of Virginia for its a lawyer may not participate in an years of service to his community, the consideration. attorney-client matching service under Fairfax Bar, and the Virginia State Bar. Terry Patrick Recalls Laughs and Mishaps in Almost 40 Years at the VSB by Deirdre Norman
There is no denying that Terry Patrick the ins and outs of the lawyers whom has worked for a lot of lawyers. In 1980, she worked with over the years. When Patrick joined the VSB for her very first Joseph A. Condo, for example, issued a full-time job, working as a file clerk and “no salmon on the menu” order during assisting with disciplinary matters. Since his 2000–2001 term as VSB president, then, she has worked thirty-five Annual Patrick gifted him with a large salmon Meetings, untold conferences, and a pillow to remember his year working variety of sections and committees — with her. “I love salmon,” says Patrick. including the always unpredictable “But we kept it off the menu for Joe.” Criminal Law group. Says Patrick, “I Patrick’s recent retirement party have grown up in this place, and I have included appearances by former VSB worked for some amazing and wonder- presidents Michael W. Smith and ful lawyers who I call friends.” Warren David Harless of Christian & As she retires from the VSB, Patrick Barton, as well as current VSB president can laugh at the few things that went Doris Henderson Causey. Next up for wrong during the many meetings she Patrick is organizing the wedding of her planned, including an Annual Meeting only child, daughter Branden. where it rained so much that tiles fell “We worked hard to be good from the ceiling “for the whole week- custodians of our lawyers’ dues and to end — with one landing right in the give them good customer service,” says middle of the Executive Committee Patrick of her decades at the VSB. “It’s meeting.” She was also on the deck at funny, but everything that has happened the Cavalier Hotel in Virginia Beach in my life has happened in this organi- when a fight broke out among lawyers at zation.” the cocktail reception. And she learned
46 VIRGINIA LAWYER | December 2017 | Vol. 66 www.vsb.org VSB NEWS < Noteworthy In Memoriam
Nicholas Stephan Altimari Mark Lanao Farrell John Herbert Mears III Midlothian Williamsburg South Sutton, New Hampshire May 1956 – November 2017 July 1969 – May 2017 May 1949 – July 2017
Arthur Hart Blitz James Henry Ford Robert Milton Nash Jr. Bethesda, Maryland Martinsville North Chesterfield March 1941 – October 2017 September 1933 – October 2017 March 1958 – October 2017
Eugene Leon Chrzanowski S. Frear Hawkins II John W. Parsons Key West, Florida Yorktow n Independence October 1948 – May 2017 February 1941 – September 2017 August 1931 – January 2017
John Peter Connolly F. H. Klostermeyer Joe H. Ward Jr. Alexandria Sanibel, Florida Falls Church April 1949 – October 2017 June 1929 – August 2017 April 1930 – September 2017
Mark Francis Davis James Lord Lewis Fairfax Easton, Maryland August 1958 – May 2017 April 1935 – July 2017
Michael McGuire Eaton John Christian Lowe Reston Bethesda, Maryland December 1946 – July 2017 December 1936 – October 2017
Stay connected with the Virginia State Bar!
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www.vsb.org Vol. 66 | December 2017 | VIRGINIA LAWYER 47 Conference of Local and Specialty Bar Associations Local and Specialty Bar SAVE THE DATE Elections Bar Leaders Institute
Virginia Association of Lewis Ginter Botanical Garden Commonwealth’s Attorneys Richmond Patricia T. Watson, President Roy Franklin Evans Jr., President-elect March 9, 2018 Jeffrey Wayne Haislip, Vice President James Edwin Plowman, For more information, please visit: Secretary-Treasurer www.vsb.org/site/conferences/clba or contact Paulette Davidson at [email protected]. Virginia Association of Defense Attorneys Donald Cameron Beck Jr., President John Becker Mumford Jr., President-elect Tate Custer Love, Secretary Melissa Hogue Katz, Treasurer Solo & Small-Firm Practitioner Forum Call for The Solo & Small-Firm Practitioner Forum focuses on issues that confront attorneys who practice alone or in small firms. Law office management and ethics are among several Nominations topics covered at these CLEs.
VSB Conference of Local and These CLEs are free, include lunch, and are available on a first-come, first-served basis. Specialty Bar Associations nomina- tions are due April 27, 2018. SAVE THE DATE Awards will be presented at the CLSBA Annual Meeting and Thursday, May 10, 2018 Breakfast in June at Virginia Beach. Solo & Small-Firm Practitioner Forum Hampden-Sydney College For more information, please visit Solo programs presented during a fiscal year (July–June) will have some crossover in the website at http://www.vsb.org/ topics. You may only claim MCLE credit for attending a specific topic once every two site/conferences/clba/clba-awards. years, unless they are substantially different.
Got an Ethics Question? The VSB Ethics Hotline is a confidential consultation service for members of the Virginia State Bar. Non-lawyers may submit only unauthorized practice of law questions. Questions can be submitted to the hotline by calling (804) 775-0564 or by clicking on the “E-mail Your Ethics Question” link on the Ethics Questions and Opinions web page at www.vsb.org/site/regulation/ethics/.
48 VIRGINIA LAWYER | December 2017 | Vol. 66 www.vsb.org April 23, 2018 Greater Richmond Convention Center
11:05–12:05 Third Sessions (continued) • Employee Security Awareness Training for Law Firms* — Sharon Nelson/Ivan Hemmans – Senior Manager of Agenda Technical Development, O’Melveny Myers LLP, Los 8:00–8:30 Registration/Continental breakfast Angeles, CA 8:30 Welcome—VSB TECHSHOW Chair Sharon 12:05–12:45 Lunch Nelson, VSB President Doris Henderson Causey, 12:45–1:45 Fourth Sessions and Justice of the Supreme Court of Virginia • Ethical Missteps in E-Discovery That Will Punch You and Cleo E. Powell Your Client in the Face* — Brett Burney/Tom Mighell 8:45–9:45 First Sessions • Alexa, Siri, and Other Personal Digital Assistants: How Lawyers Use Them — and the Ethics of Using Them — • Digital Age Revolution in Virginia: The New Marketing Nerino Petro – President-Attorney, The Erickson Group, Ethics Rules* — Jim McCauley – VSB Ethics Counsel, Rockford, IL/Catherine Sanders Reach – Director of Law Richmond, VA/Chris Fortier – President, VSB Young Practice Management and Technology, Chicago Bar Lawyers Conference, Oakton, VA/Britt Lorish – Affinity Association, Chicago, IL Consulting Group, Roanoke, VA • Technology-Related Policies for Law Firms — WITH 1:55–2:55 Fifth Sessions TEMPLATES! Debbie Foster – Affinity Consulting Group, • The Lawyers Guide to the Dark Web — John Simek/ Tampa, FL/Reid Trautz – American Immigration Lawyers Lincoln Mead Assn, Washington, DC • The Current Sweet Spot in Legal Technology for Lawyers — Nerino Petro/Britt Lorish 9:55–10:55 Second Sessions • Ethical Disaster Recovery: The Lessons of 2017* 3:05–4:05 Sixth Sessions (including Incident Response Plans and Active Shooter • Why Lawyers Are Flocking to Office 365: A Guided Policies) Sharon Nelson – President, Sensei Enterprises, Tour — Jim Calloway/Catherine Sanders Reach Fairfax, VA/Jim Calloway – Director of Mgmt Asst • Getting and Keeping Your Law Firm Safely on the Program at Oklahoma Bar Assn, Oklahoma City, OK Cloud* — Reid Trautz/Ivan Hemmans • E-Discovery Primer for Lawyers: Brett Burney — Burney 4:15–5:15 Plenary — ALL NEW: 60 Tech Tips in Consultants, Chagrin Falls, OH/Tom Mighell – Contoural, 60 Minutes Inc., Dallas, TX Sharon Nelson/Debbie Foster/Jim Calloway/Tom Mighell 11:05–12:05 Third Sessions • Cryptocurrencies: What Lawyers Need to Know — Can You Accept Bitcoins for Legal Services? John Simek – Vice Total possible CLE credits = 7 hours, which includes President, Sensei Enterprises, Fairfax, VA/Lincoln Mead – up to 5 hours of Ethics (pending), depending on which IT Director, Utah State Bar, Salt Lake City, UT sessions you attend. *includes Ethics credit (pending)
Register online now! Space is limited and first come/first served. Online registration is available at http://bit.ly/VSBTECHSHOW2018. The $125 registration fee will include Wi-Fi, continental breakfast, lunch, and coffee breaks, as well as CLE credit. Law Libraries Virginia Legal Classics by Gregory Stoner
For more than two centuries, Virginia’s England during the 1760s, was the the first modern legal encyclopedia of attorneys have relied upon various most extensive and authoritative text Virginia law. Greatly expanding upon legal resources to find, understand and interpreting English law and became the prior benchmark work (Minor’s interpret the law of the commonwealth. the most well-known and read legal text Institutes), Michie’s Jurisprudence was While many resources have come and in America. While Tucker’s Blackstone the product of The Michie Company, gone, others have stood the test of time included the text of the original work, it a Charlottesville based legal publish- and remain authorities of note and also featured hundreds of footnotes and ing company. Michie’s Jurisprudence relevance. While a number of today’s essays examining English common law included commentary on Virginia and attorneys may recognize the names in the context of the emerging American West Virginia statutory and case law for and authors of these legal classics, the and Virginia law. In the decades follow- use by law students and practitioners. origins of these works and their past and ing its publication, Tucker’s Blackstone Michie’s Jurisprudence remains an active present significance may be misunder- came to be known as “America’s publication and is updated annually. stood or neglected. This column will Blackstone” and found its way into the Now spanning nearly fifty print vol- hopefully introduce or reintroduce libraries of law students and practi- umes, this established treatise set is also some of Virginia’s noteworthy works to tioners in Virginia and beyond. Today, available to online researchers on Lexis our legal community. Tucker’s Blackstone is still consulted by Advance. those studying constitutional and early St. George Tucker. Blackstone’s American law.1 Endnotes: Commentaries with Notes of Reference 1 For additional background, see Davison M. Douglas, “Foreward: The Legacy of to the Constitution and Laws of the John Barbee Minor. Institutes of St. George Tucker,” 47 Wm. & Mary L. Federal Government of the United Common and Statute Law. 4 volumes, Rev., 1111-1121 (2006). States and of the Commonwealth of 1875-1895. 2 For additional background, see E. Virginia. 5 volumes, 1803. John Barbee Minor (1813-1895), much Lee Shepard, Minor’s “Institutes”, 39 St. George Tucker (1752-1827) was born like Tucker, was one of the leading Virginia Historical Society Occasional in Bermuda and came to Virginia in legal educators of his day. Following Bulletin, 1-4 (1979). 1772 to study at the College of William his graduation from the Law School and Mary. He subsequently read the law of the University of Virginia in 1834, under the direction of George Wythe. Minor commenced the practice of law. Following the American Revolution, In 1845, Minor was appointed profes- Tucker commenced the practice of law. sor of law at his alma mater, a position Within a few short years, he had become he would hold for nearly five decades. a leading lawyer in the Commonwealth Using outlines from his courses, Minor and was appointed a judge on the compiled a multi-volume work that General Court. For more than thirty would not only prove to be a textbook years to follow, Tucker served as a judge for those studying the law, but also the in various courts and came to be recog- most well-regarded and leading text of nized as one of the most well-regarded its time summarizing and explaining jurists of the day. Virginia law.2 Gregory Stoner, library manager at From 1790 to 1804, Tucker also McGuireWoods in Richmond, has bache- lor’s degrees in historic preservation and served as a professor of law at the Michie’s Jurisprudence of Virginia and American Studies from the University of Mary College of William and Mary. During West Virginia: A Complete Treatise Washington, a master’s degree in history from Virginia Commonwealth University, and this period, Tucker published his five of Virginia and West Virginia Law. a master’s in information science from the volume compendium interpreting 1948-Present. University of Tennessee. He is a member of Blackstone’s Commentaries. Blackstone’s First published in 1948 in twen- the Virginia Association of Law Libraries and other professional groups that advance the Commentaries, first published in ty-four volumes, this vast work was work of law librarians.
50 VIRGINIA LAWYER | December 2017 | Vol. 66 www.vsb.org CLE Calendar
Virginia CLE Calendar Virginia CLE will sponsor the following continuing legal education courses. For details, see http://www.vacle.org/seminars.htm.
January 6–11 January 25 37th Annual National Trial Advocacy Government Contract Claims — College 2018 Preserving the Value of Your Client’s Live — Charlottesville Federal Contracts Virginia State Bar Webcast/Telephone January 17 Noon–1 pm Harry L. Carrico Post-conviction Remedies in Virginia Professionalism Course Live — Charlottesville/Webcast/ Representation of Children as a Telephone Guardian ad Litem—2016 Qualifying Noon–1:30 pm Course January 10, 2018, Alexandria Video — Abingdon, Alexandria, January 23 Norfolk, Richmond, Roanoke March 8, 2018, Alexandria The Nuts and Bolts of FLSA 8:30 am–5:15 pm (Richmond video Compliance and Litigation begins at 9 am) April 18, 2018, Charlottesville Live — Charlottesville/Webcast/ Telephone January 26 11 am–1 pm Representation of Children as a See the most current dates and Guardian ad Litem—2016 Qualifying registration information at January 24 Course www.vsb.org/site/members/new. Essentials of Commercial Mediation Video — Charlottesville, Tysons Live — Charlottesville/Webcast/ 8:30 am–5:15 pm Telephone Noon–2 pm
FORTY-EIGHTH ANNUAL Criminal2018 Law Seminar
February 2, 2018 February 9, 2018 DoubleTree by Hilton, Charlottesville DoubleTree by Hilton, Williamsburg
www.vsb.org/site/sections/criminal
Video Replays in 12 Locations on Three Different Dates 7.0 MCLE Credits (including 1.5 ethics credit) pending
VIRGINIA STATE BAR AND VIRGINIA CLE®
www.vsb.org Vol. 66 | December 2017 | VIRGINIA LAWYER 51 CLE Calendar
January 30 January 31 February 8 Representation of Incapacitated The Survivor’s Guide to Expert Difficult Clients and Counsel in High- Persons as a Guardian ad Litem—2016 Witnesses: From Selection Through Conflict Cases — Being Ethical and Qualifying Course Trial Effective Video — Tysons Video — Tysons Telephone 9 am–4:05 pm 9 am–1:15 pm 5–7 pm February 2 The Survivor’s Guide to Expert 48th Annual Criminal Law Seminar February 9 Witnesses: From Selection Through 2018 48th Annual Criminal Law Seminar Trial Live — Charlottesville 2018 Video — Alexandria, Norfolk, 8:15 am–5 pm Live — Williamsburg Richmond, Roanoke 8:15 am–5 pm 9 am–1:15 pm February 7 Essentials of Residential Real Estate February 16 January 31 Closings Post-conviction Remedies in Virginia Representation of Incapacitated Live — Charlottesville/Webcast/ Live — Charlottesville/Webcast/ Persons as a Guardian ad Litem—2016 Telephone Telephone 10 am–1:15 pm Qualifying Course Noon–1:30 pm Video — Abingdon, Alexandria, February 8 Charlottesville, Norfolk, Richmond, CLE and Washington Wizards Roanoke Basketball: Difficult Clients and 9 am–4:05 pm Counsel in High-Conflict Cases — Being Ethical and Effective Live — Washington, DC 5–7 pm; Game begins at 8 pm
Free and Low Cost Legal Resources Pamphlet A guide for helping low- and modest-income Virginians obtain legal services.
Facts about the Justice Gap in Virginia • The Justice Gap has been defined as the difference between the level of legal assistance available and the level that is necessary to meet the needs of poor Americans. Free and Low Cost Legal Resources • Over 80 percent of the civil legal needs of the poor in Virginia and nation- in Virginia wide go unmet.
A guide for helping low- and modest-income Virginians • Individuals who are represented by counsel are twice as likely to have a obtain legal services favorable outcome versus those who are unrepresented. • One in eight Virginians (approximately one million Virginians) is eligible for free legal services from Virginia’s legal aid programs; however, there are not enough legal aid lawyers to provide representation – fewer than 140 legal aid lawyers. • There is one legal aid lawyer per 7,237 poor people in Virginia vs. one lawyer per 349 Virginians.
See: http://bit.ly/2xdBBM6
52 VIRGINIA LAWYER | December 2017 | Vol. 66 www.vsb.org Virginia Lawyer Register
DISCIPLINARY SUMMARIES consenting to the revocation, Howell acknowledged that the charges against him are true and that he could not successfully The following are summaries of disciplinary actions for vio- defend against them. Rules Part 6, § IV, ¶ 13-28 lations of the Virginia Rules of Professional Conduct (RPC) http://www.vsb.org/docs/Howell-92817.pdf (Rules of the Virginia Supreme Court Part 6, ¶ II, eff. Jan. 1, 2000) or another of the Supreme Court Rules. Geraldine Sue Miller Copies of disciplinary orders are available at the Web link Fort Mohave, Arizona provided with each summary or by contacting the Virginia 18-000-109954 State Bar Clerk’s Office at (804) 775-0539 or [email protected]. VSB On October 27, 2017, the Virginia State Bar Disciplinary docket numbers are provided. Board suspended Geraldine Sue Miller’s license to practice law for 30 days commencing on October 6, 2017, based on her suspension by the Supreme Court of Arizona, and ordered her DISCIPLINARY BOARD suspension be continued until Ms. Miller provides proof of reinstatement by the Arizona disciplinary authority. Rules Part Thaddeus Matthew Sigmund Bereday Six, § IV, ¶ 13-24 Tampa, Florida http://www.vsb.org/docs/Miller-111717.pdf 18-000-110835 On October 31, 2017, the Virginia State Bar Disciplinary Board Christopher DeCoy Parrott revoked Thaddeus Matthew Sigmund Bereday’s license to Manassas, Virginia practice law based on his affidavit consenting to the revocation 18-053-110432 due to his plea of guilty to a felony criminal charge in Florida. On October 31, 2017, pursuant to Part Six, Section IV In consenting to the revocation at a time when allegations of Paragraph 13-28 of the Rules of the Supreme Court of Misconduct were pending, Bereday acknowledged that the Virginia, the Virginia State Bar Disciplinary Board revoked material facts upon which the allegations of Misconduct were Christopher DeCoy Parrott’s license to practice law based on pending are true and that he could not successfully defend his affidavit consenting to the revocation. In consenting to against them. RPC 8.4(b)(c), Rules Part 6, § IV, ¶ 13-28 the revocation at a time when allegations of Misconduct were http://www.vsb.org/docs/Bereday-103117.pdf pending, Parrott acknowledged that the material facts upon which the allegations of Misconduct were pending are true and Vinceretta Taylor Chiles that he could not successfully defend against them. RPC 3.3(a) Richmond, Virginia (1), 5.5(c) 8.4(b)(c) 17-033-106995, 18-000-110400 Rules Part Six, § IV, ¶ 13-28 Effective April 1, 2019, the Virginia State Bar Disciplinary http://www.vsb.org/docs/Parrott-110517.pdf Board suspended Vinceretta Taylor Chiles’s license to practice law for six months, with terms, for failing to comply with the Sherri Ann Thaxton terms of a two-year suspension issued April 1, 2017, and for Henrico, Virginia violating professional rules that govern diligence. This was an 15-033-101632 agreed disposition of misconduct charges. RPC 1.3 (a), Rules On August 28, 2017, the Virginia State Bar Disciplinary Board Part 6, §IV, ¶ 13-29 issued a public reprimand with terms to Sherri Ann Thaxton http://www.vsb.org/docs/Chiles-092117.pdf for violating professional rules that govern competence and diligence. RPC 1.1, 1.3 Kenneth Ashley Dodl http://www.vsb.org/docs/Thaxton-102517.pdf Virginia Beach, Virginia 16-022-103621 On September 22, 2017, the Virginia State Bar Disciplinary Board issued a public reprimand to Kenneth Ashley Dodl for DISTRICT COMMITTEES violating professional rules that govern diligence, commu- nication, safekeeping property, and managing of nonlawyer George Harold Edwards assistants. RPC 1.3 (a), 1.4 (a), 1.15 (b)(4), 5.3 (a) (b) (c)(2) Chesterfield, Virginia http://www.vsb.org/docs/Dodl-100917.pdf 17-031-106544 On November 8, 2017, the Third District, Section I Robert Jutzi Howell Subcommittee of the Virginia State Bar issued a public repri- Cary, North Carolina mand with terms to George Harold Edwards for violations of 18-000-110023 professional rules that govern safekeeping property. This was On September 28, 2017, the Virginia State Bar Disciplinary an agreed disposition of misconduct charges. RPC 1.15(a)(1,2) Board revoked Robert Jutzi Howell’s license to practice law (b)(3)(c)(1)(2)(i,ii)(d)(3)(i-iv)(4) based on his affidavit consenting to the revocation due to prior http://www.vsb.org/docs/Edwards.110817.pdf revocations to practice law in North Carolina and Illinois. In www.vsb.org Vol. 66 | December 2017 | VIRGINIA LAWYER 53 Virginia Lawyer Register
Abu Bakarr Kalokoh fairness to opposing party and counsel, and respect for rights Fairfax, Virginia of third persons. This was an agreed disposition of misconduct 17-052-106967 charges. RPC 1.1, 1.3(a), 1.5(a), 1.7(a)(2), 3.4(g), 4.4 On November 1, 2017, the Fifth District Section II http://www.vsb.org/docs/Wilke-110517.pdf Subcommittee of the Virginia State Bar issued a public repri- mand to Abu Bakarr Kalokoh for violating rules of professional Amy Lovell Wilson conduct that govern diligence, conflict of interest, and safe- Herndon, Virginia keeping property. This was an agreed disposition. RPC 1.3(a), 17-052-108185; 17-052-107093; 17-052-107517; 17-052- 1.8(e)(1-2), 1.15(a)(1)(b)(5) 107958; 17-052-109427; 17-052-109614 http://www.vsb.org/docs/Kalokoh-110517.pdf On October 30, 2017, the Virginia State Bar Fifth District Subcommittee, Section II issued a public reprimand with Paul Erik Wilke terms to Amy Lovell Wilson for violating professional rules Charlottesville, Virginia that govern diligence, communication, fees, safekeeping prop- 17-070-106708, 17-070-107647 erty, and declining or terminating representation. This was an On October 24, 2017, the Seventh District Subcommittee of agreed disposition of misconduct charges. RPC 1.3(a), 1.4(a), the Virginia State Bar issued a public reprimand with terms to 1.15(a)(1), (b)(4), (c)(1-4), (d)(1-4), 1.16(d), 1.5(a)(1-8) Paul Erik Wilke for violating the rules of professional conduct http://www.vsb.org/docs/Wilson-103017.pdf that govern competence, diligence, fees, conflicts of interest,
DISCIPLINARY PROCEEDINGS
Suspension – Failure to Pay Disciplinary Costs Effective Date Lifted Gary Michael Anderson Laurel, MD November 8, 2017 Vinceretta Taylor Chiles Richmond, VA November 8, 2017 Catherine Buckner Lea Orange, VA October 31, 2017 Christopher DeCoy Parrott Manassas, VA October 5, 2017 David Laurence Prince Plantation, FL September 21, 2017 Nicholas Caron Smith Mt. Holly, VA October 6, 2017 Bryan James Waldron Oakton, VA September 27, 2017 Barbara H. Yorrick Silver Spring, MD November 3, 2017
54 VIRGINIA LAWYER | December 2017 | Vol. 66 www.vsb.org Virginia Lawyer Register
NOTICES TO MEMBERS ELIGIBILITY SURVEY SENT On November 1, the Supreme Court of Virginia’s Judicial ETHICS COMMITTEE RECONSIDERS PROPOSED Performance Evaluation Program sent an eligibility survey LEO 1888 to all active and in good standing lawyers listing judges with The Virginia State Bar’s Standing Committee on Legal Ethics upcoming evaluations. The survey asks lawyers to indicate has voted not to send proposed Legal Ethics Opinion 1888 to which judges they have recently observed. Judicial performance Council. After receiving many comments in support of and in evaluations will be circulated to lawyers beginning in January, opposition to the proposed LEO, the committee will consid- based on the responses to the eligibility surveys. Your partici- er other means of addressing the issues. The proposed LEO pation is invaluable. concerns a prosecutor’s duty to disclose evidence that tends to negate the guilt of the accused. ELECTRONIC FILING AT THE SUPREME COURT www.vsb.org/site/regulation/leo_1888 The US Supreme Court’s electronic filing system began op- eration on November 13, 2017. While paper will remain the LEO 1885 IS PENDING REVIEW BY THE SUPREME official form of filing as under existing practice, parties repre- COURT OF VIRGINIA sented by counsel will also be required to submit most docu- At its meeting on October 27, on a vote of 59-6, the VSB ments through the new electronic filing system. Attorneys who Council approved LEO 1885, which concludes that a lawyer expect to file documents electronically will need to register in may not participate in an attorney-client matching service advance for the system. Additional information is available. under the facts presented in the opinion because participa- tion violates the Rules of Professional Conduct governing fee MCLE REPORTING DEADLINE sharing with nonlawyers, paying for referrals, and safeguarding The MCLE Form 1 End of Year Report will be mailed soon. client funds. The proposed LEO has been sent to the Supreme The reporting deadline is 4:45 p.m. December 15. Court of Virginia for its consideration. www.vsb.org/site/regulation/leo_1885 REGISTRATION OPEN FOR CRIMINAL LAW SEMINAR The 48th Annual Criminal Law Seminar, sponsored by the CLIENTS’ PROTECTION FUND VSB Criminal Law Section and Virginia CLE, is scheduled for Council also unanimously approved the Clients’ Protection February 2 in Charlottesville and February 9 in Williamsburg. Fund Board’s request to allow the VSB, in the 2018 legislative Watch for registration information in December. session, to seek extension of the CPF sunset provision from www.vsb.org/site/sections/criminal/annual-seminar July 1, 2020 to July 1, 2023. The proposal has been sent to the Supreme Court of Virginia for its consideration. AWARDS www.vsb.org/site/news/item/comments_sought_on_ The VSB is seeking nominations for the following awards, with proposed_changes_to_the_CPF_sunset_provision deadlines in January: Family Law Service Award EMERITUS MEMBERS ALLOWED TO PROVIDE PRO Betty A. Thompson Lifetime Achievement Award BONO SERVICES www.vsb.org/site/members/awards-and-contests/ Council also unanimously approved the Special Committee on Access to Legal Services’ proposal to amend the Rules of the VSB TECHSHOW Supreme Court of Virginia to allow emeritus members of the Registration is open for the April 23, 2018, VSB TECHSHOW VSB to provide pro bono services without direct supervision of at the Greater Richmond Convention Center. a supervising attorney. http://bit.ly/VSBTECHSHOW2018 www.vsb.org/pro-guidelines/index.php/rule_changes/item/ para3_emeritus_2017
COMMISSION ON LAWYER DISCIPLINE SEEKS COMMENTS The VSB Committee on Lawyer Discipline is seeking public comment on proposed amendments to Paragraph 13 regard- ing renaming CRESPA to RESA and to Paragraph 13-1, which would add clarity to the definition of Disciplinary Record and define burden of proof in disciplinary proceedings as clear and convincing evidence. Comment deadline is January 15, 2018.
www.vsb.org Vol. 66 | December 2017 | VIRGINIA LAWYER 55 Virginia Lawyer Register
NOTICES TO MEMBERS
VIRGINIA STATE BAR CLIENTS’ PROTECTION FUND BOARD PAYS $38,168.33 TO FORMER CLIENTS The Virginia State Bar Clients’ Protection Fund Board awarded $36,368.33 in reimbursement to twelve former clients of nine Virginia attorneys at its most recent meeting on September 15, 2017. In addition, the board authorized payment of $1,800.00 to former clients of Stephen Joseph Fisher, a deceased attorney whose claims had been approved at the board’s meeting in September 2016 but not disbursed until October 2017 for procedural reasons. Details of the payments are:
Respondent’s Name Address of Record Amount Paid Type of Case Stephen Joseph Fisher (Deceased) Leesburg, VA $1,800.00 Unearned fees/ Bankruptcy Tony Michael Hutchinson Norton, VA $ 500.00 Unearned fees/ Bankruptcy John Arthur Sutherland Jr. Fairfax, VA $7,333.33 Conversion-Theft/Personal Injury, Property Damage Jean Jerome Dandy Ngando Ekwalla Woodbridge, VA $1,600.00 Unearned fees/Bankruptcy Nnika Evangeline White Richmond, VA $ 500.00 Unearned fees/Family Law Nnika Evangeline White Richmond, VA $1,150.00 Unearned fees/Bankruptcy John Fredrick McGarvey Glen Allen, VA $2,550.00 Unearned fees/Criminal Law Jean Jerome Dandy Ngando Ekwalla Woodbridge, VA $2,850.00 Unearned fees/Consumer Credit John Fredrick McGarvey Glen Allen, VA $2,900.00 Unearned fees/Criminal Law Kimberly Lisa Marshall Poolesville, MD $6,500.00 Unearned fees/Family Law Sara Elizabeth Chase Henrico, VA $1,000.00 Unearned fees/Family Law Michael Alan Bishop (Deceased) Meadowview, VA $7,500.00 Unearned fees/ Virginia Civil Law Michael Alan Ward Fairfax, VA $1,985.00 Unearned fees/Family Law
The Virginia State Bar Clients’ Protection Fund was authorized by the Supreme Court of Virginia and created by the Virginia State Bar Council in 1976 to reimburse persons who suffer a financial loss because of dishonest conduct by a Virginia lawyer. Awards from the Clients’ Protection Fund are discretionary and are not a matter of right. The fund is not taxpayer funded, but is funded by Virginia lawyers who are assessed an annual fee of up to $25. For more information on the fund, go to www.vsb.org/site/public/ clients-protection-fund.
If you have any questions, you may contact Vivian R. Byrd, Administrator to Clients’ Protection Fund, at (804) 775-0572 or e-mail [email protected]
56 VIRGINIA LAWYER | December 2017 | Vol. 66 www.vsb.org Virginia Lawyer Register
NOMINATIONS SOUGHT FOR COMMITTEE VACANCIES are to be filled by members from the 6th, 11th, 12th, 13th or 14th Volunteers are needed to serve the Virginia State Bar’s boards and judicial circuits. committees. The Nominating Committee will refer nominees to THIRD DISTRICT COMMITTEE, SECTION II: 2 attorney the VSB Council for consideration at its June meeting. vacancies (1 member is eligible for reappointment); 1 non- Vacancies in 2018 are listed below. All appointments will be attorney vacancy. Vacancies are to be filled by members from the for the terms specified, beginning on July 1, 2018, unless other- 6th, 11th, 12th, 13th or 14th judicial circuits. wise noted. THIRD DISTRICT COMMITTEE, SECTION III: 3 attorney EXECUTIVE COMMITTEE: 6 vacancies (1 current member is vacancies (current members are eligible for reappointment); not eligible for reappointment, and 5 current members are eligible 1 non-attorney vacancy (current member is eligible for for reappointment). Filled from ranks of the council for 1-year reappointment). Vacancies are to be filled by members from the terms, by council appointment. 6th, 11th, 12th, 13th or 14th judicial circuits. CLIENTS’ PROTECTION FUND BOARD: 4 vacancies (1 current FOURTH DISTRICT COMMITTEE, SECTION I: 2 attorney lawyer member from the 7th disciplinary district and 1 current vacancies (1 member is eligible for reappointment); 1 non- lawyer member at-large are not eligible for reappointment; 1 cur- attorney vacancy (current member is eligible for reappointment). rent lawyer member from the 10th disciplinary district and 1 cur- Vacancies are to be filled by members from the 17th or 18th rent lawyer member at-large are eligible for reappointment). May judicial circuits. serve 2 consecutive 3-year terms. Appointment by council. JUDICIAL CANDIDATE EVALUATION COMMITTEE: 3 lawyer FOURTH DISTRICT COMMITTEE, SECTION II: 1 attorney vacancies (of which 3 vacancies are to be filled by a member from vacancy (current member is eligible for reappointment); 1 non- the 1st, 2nd and 25th judicial circuits). May serve 1 full 3-year attorney vacancy (current member is eligible for reappointment). term. Appointment by council. Vacancies are to be filled by members from the 17th or 18th judicial circuits. VIRGINIA CLE COMMITTEE: 6 lawyer vacancies (of which 6 lawyer members are eligible for reelection to 1-year terms). FIFTH DISTRICT COMMITTEE, SECTION I: 3 attorney vacancies (1 member is eligible for reappointment); 1 non- Appointment by VLF Board on recommendation of council. Term attorney vacancy. Vacancies are to be filled by members from the commences January 1, 2019. 19th or 31st judicial circuits. AMERICAN BAR ASSOCIATION DELEGATES: 1 lawyer vacancy FIFTH DISTRICT COMMITTEE, SECTION II: 2 attorney (of which 1 current member is eligible for reappointment). May vacancies (1 member is eligible for reappointment). Vacancies are serve 3 consecutive 2-year terms. Appointment by council. Term to be filled by members from the 19th or 31st judicial circuits. commences September 1, 2018. FIFTH DISTRICT COMMITTEE, SECTION III: 2 attorney Nominations, along with a brief resume, should be sent by March vacancies; 1 non-attorney vacancy. Vacancies are to be filled by 9, 2018, to VSB Nominating Committee, c/o Asha Holloman, members from the 19th or 31st judicial circuits. Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, VA 23219-0026 or emailed to [email protected]. SIXTH DISTRICT COMMITTEE: 2 attorney vacancies (current members are eligible for reappointment); 1 non-attorney vacancy (current member is eligible for reappointment). Vacancies are to NOMINATIONS SOUGHT FOR DISTRICT COMMITTEE be filled by members from the 9th or 15th judicial circuits. VACANCIES The Standing Committee on Lawyer Discipline calls for nomina- SEVENTH DISTRICT COMMITTEE: 1 attorney vacancy tions for district committee vacancies to be filled by Council in (current member is eligible for reappointment); 1 non-attorney June. Note that there are vacancies which may not become avail- vacancy. Vacancies are to be filled by members from the 16th, able because some members are eligible for reappointment. 20th or 26th judicial circuits. To review qualifications for eligibility, see Rules of the Supreme EIGHTH DISTRICT COMMITTEE: 4 attorney vacancies (2 Court of Virginia, Part 6, Section IV, Paragraph 13-4 — members are eligible for reappointment). Vacancies are to be Establishment of District Committees, specifically 13-4.E filled by members from the 23rd or 25th judicial circuits. (Qualifications of Members) and 13-4.F (Persons Ineligible for Appointment). NINTH DISTRICT COMMITTEE: 4 attorney vacancies (1 member is eligible for reappointment). Vacancies are to be filled FIRST DISTRICT COMMITTEE: 2 attorney vacancies (current by members from the 10th, 21st, 22nd or 24th judicial circuits. members are eligible for reappointment); 1 non-attorney vacancy (current member is eligible for reappointment). Vacancies are TENTH DISTRICT COMMITTEE, SECTION I: 2 attorney vacancies; 2 non-attorney vacancies (both members are eligible to be filled by members from the 1st, 3rd, 5th, 7th or 8th judicial for reappointment). Vacancies are to be filled by members from circuits. the 27th, 28th, 29th or 30th judicial circuits. SECOND DISTRICT COMMITTEE, SECTION I: 2 attorney TENTH DISTRICT COMMITTEE, SECTION II: 3 attorney vacancies. Vacancies are to be filled by members from the 2nd or vacancies (2 members are eligible for reappointment). Vacancies 4th judicial circuits. are to be filled by members from the 27th, 28th, 29th or 30th SECOND DISTRICT COMMITTEE, SECTION II: 1 attorney judicial circuits. vacancy. Vacancy is to be filled by member from the 2nd or 4th Nominations, along with a brief resume, should be sent by judicial circuits. February 28, 2018, to Stephanie Blanton, Virginia State Bar, THIRD DISTRICT COMMITTEE, SECTION I: 3 attorney 1111 East Main Street, Suite 700, Richmond, VA 23219-0026 vacancies (1 member is eligible for reappointment). Vacancies [email protected]. www.vsb.org Vol. 66 | December 2017 | VIRGINIA LAWYER 57 President-elect Heath Seeks Members for Virginia State Bar Committees With Terms Commencing July 1, 2018 To: Members of the Bar From: Leonard C. Heath, Jr., President-elect As you know, much of the work of the Virginia State Bar is done through its committees, and we need members willing to serve. Appointments will generally be for a three-year term, running from July 1, 2018, to June 30, 2021, with the possibility of another three-year term to follow. The work of the committees is time consuming and in most cases requires committee members to set aside substantial time to fulfill the requirements of the job. To encourage participation — and recognizing the time constraints — members are generally limited to serving on only one committee. The number of available positions is quite limited, but I will attempt to accommodate as many people as possible. The committees are as follows: Standing Committees:* • Budget & Finance • Professionalism • Lawyer Discipline • Legal Ethics Special Committees: • Access to Legal Services • Lawyer Insurance • Bench-Bar Relations • Lawyer Referral • Better Annual Meeting • Resolution of Fee Disputes • Future of Law Practice • Technology and the Practice of Law
*Lawyer member vacancies on Standing Committees are limited due to requirements for a specific number of Executive Committee and Council members to serve on each committee.
If you would like to be considered for appointment to any of the VSB committees listed, please complete the form below or download the form at http://www.vsb.org/site/about and return it to the Virginia State Bar office by February 23, 2018, by mail or e-mail to Asha B. Holloman: Virginia State Bar 1111 East Main Street, Suite 700 Richmond, VA 23219-0026 [email protected]
VSB Committee Preference Form (term commencing July 1, 2018) Please complete this form and return it with a brief resume by February 23, 2018.
Name: VSB Attorney No.:
Address:
City/State/Zip: Phone: E-mail:
Choice Committee Name Have you ever served on this committee? Length of Service
1st Choice Yes No
2nd Choice Yes No
3rd Choice Yes No
Check here if you have never served on a VSB committee.
To assist us in the committee selection process, please provide the following information:
Private Practice Corporate Counsel
Primary area of practice: Other
Government attorney Commonwealth City/County Federal Professional Notices Harrisonburg Attorneys Honored for Pro Bono Work
Three lawyers have been recognized for aid clients in our area, but these award their extraordinary pro bono work done recipients deserved special recognition on behalf of Blue Ridge Legal Services for the level of service they donated,” (BRLS), the Shenandoah Valley’s Cornett said. non-profit legal aid society. The lawyers Since 1982, BRLS and the Evick Penrod Pangle are Laura Evick and Jacob Penrod, both Harrisonburg-Rockingham Bar of Hoover Penrod, and Lucas Pangle, of Association have collaborated in the pro Virginia State Bar’s Lewis F. Powell Jr. Wharton Aldhizer and Weaver. bono referral program to provide free Pro Bono Award in 1998, 2014 and Dana Cornett, president of the legal services to financially disadvan- 2016, the American Bar Association’s BRLS board of directors, presented taged members in the area. Over the last prestigious Harrison Tweed Award in the awards during the Harrisonburg- three decades, this bar’s pro bono pro- 1995, and a Pro Bono Service Award Rockingham Bar Association’s annual gram has earned state-wide and national from the Legal Services Corporation in Professionalism Seminar held October acclaim, including the national Legal 2011. 18, 2017. “Our local bar as a whole Service Corporation’s Rural Pro Bono provides outstanding support to legal Attorneys of the Year Award in 1993, the
Beale, Davidson, Etherington & Morris Mr. Epstein was formerly a managing clerk for the Hon. William L. Osteen Jr., PC has relocated its Richmond office director in the restructuring group at US District Court chief judge for the to the Boulders Office Park, located financial guarantor MBIA; he previously Middle District of North Carolina. near the Powhite Parkway (Rt. 76), was in the financial restructuring group Chippenham Parkway (Rt. 150) and at Cadwalader. Christopher Young has Brendan C. Horgan has Midlothian Turnpike (Rt. 60). The new been added as in-house corporate and joined the Richmond office address is 1001 Boulders Parkway, Suite financial services lawyer to serve as the of Midkiff, Muncie & Ross 510, Richmond, Virginia 23225. company’s corporate counsel. PC, where he represents in- surance carriers in workers’ Horgan Thomas C. Bunting has Nathan D. Childs has compensation law. Horgan joined the Shields Law Firm joined the Raleigh office received his JD from the as an associate. Bunting of Midkiff, Muncie & Ross University of Connecticut School of brings over 17 years of PC. Childs practices in Law and his B.A. from Wake Forest litigation experience to Bunting insurance defense, includ- Childs University. Prior to his private law prac- the firm. He has handled ing property and coverage tice, Brendan was a Lieutenant in the US a wide array of personal claims, as well as matters Navy JAG Corp. injury, workers’ compensation, traffic related to ERISA. He received his JD and DUI, and insurance disputes in his from the Wake Forest University School The Judicial Inquiry and Review career, and has successfully tried cases of Law and his BA from the University Commission of Virginia announces the at the state and federal level throughout of North Carolina at Chapel Hill. selection of new counsel and assistant Virginia. He will handle all manner of counsel beginning January 2, 2018, upon personal injury cases, as well as criminal Shannan M. Fitzgerald and Gordon the retirement of Counsel Katherine defense and domestic relations. M. Phillips have joined Christian & B. Burnett. Current Assistant Counsel Barton LLP as associates in the litigation Robert Q. Harris will become com- Bentham IMF announces two new practice group. Fitzgerald holds de- mission counsel. Previously he served hires, including one overseeing a new grees from the University of Richmond as director of the Commonwealth’s initiative to finance disputes stem- School of Law and the University of Attorneys’ Services Council and as an ming from bankruptcies and financial Virginia, and served as a law clerk for assistant attorney general in the Virginia restructurings. Bentham’s bankruptcy the Hon. Beverly W. Snukals, presiding Attorney General’s office. Benjamin H. offering is headed by Ken Epstein, an judge for the Circuit Court of the City Katz, currently an assistant attorney experienced bankruptcy lawyer who of Richmond. Phillips received degrees general, has accepted the position of will direct the firm’s investments on from the University of Richmond assistant counsel. He previously served behalf of debtors, creditors, and other School of Law and Christopher as an assistant commonwealth’s attorney stakeholders in commercial disputes. Newport University, and served as a law in Alexandria. www.vsb.org Vol. 66 | December 2017 | VIRGINIA LAWYER 59 Professional Notices Five Attorneys Receive Honors for Pro Bono Service
Joshua Elrod, Robert Hagan Jr., Rosalie Covington. Ward works Pemberton Fessier, Russell Wayne as a partner at Franklin Updike, and Jeffrey Ward were recently Denney Ward and Dryer in given awards for their exemplary pro Waynesboro. bono efforts in providing civil legal The awards were pre- Elrod Hagan Fessier Updike Ward justice to the underserved. sented by Blue Ridge Legal Elrod is a partner at Mann, Vita & Services, the Virginia Access Elrod in Lexington. Hagan is a private to Justice Commission, Washington & practitioner in Fincastle who for years Lee School of Law, and the judges of the has championed the legal issues of the 25th Judicial Circuit, which includes the poor in Botetourt County. Fessier is counties of Alleghany, Augusta, Bath, a leader of Timberlake Smith’s local Botetourt, Highland, and Rockbridge, government law and civil rights practice and the cities of Buena Vista, Covington, in Staunton. Updike is a partner at the Lexington, Staunton, and Waynesboro. law firm of Wilson Updike & Nicely in
relocation, child custody visitation, and child support.
Briana A. Stevens has joined Wharton Aldhizer & Professional Weaver PLC. She received Notices her JD from West Virginia University College of Law, Stevens E-mail your news and professional where she was a mem- portrait to [email protected] for publi- Harmon (left) and Walker ber of the Public Interest Advocates and a board member of cation in Virginia Lawyer. Professional McGuireWoods’ Board of Partners has the West Virginia Fund for Law in the notices are free to VSB members and elected litigation partner Jonathan P. Public Interest. While in law school, Harmon to succeed Richard Cullen as she worked as a student attorney in may be edited for length and clarity. chair. Additionally, the board appoint- the Child and Family Clinic, and in- ed J. Tracy Walker IV to take the reins terned with Legal Aid of West Virginia, from Thomas E. Cabaniss as managing ChildLaw Services Inc., and the Title IX partner. Harmon and Walker were both Office of West Virginia University. She recommended by their predecessors, focuses her practice on civil litigation who each served for 11 years at the helm and family and domestic law. and who will continue as partners at the firm.
Virginia (“Ginny”) F. Shevlin has joined Blankingship & Keith PC’s Family Law practice as an associate. She has successfully represented clients in a wide variety of civil litigation areas, but concentrates primarily in the area of family law. She represents clients in cases involving dissolution of marriage, pre- and post-nuptial agreements, property division, alimony, parental
60 VIRGINIA LAWYER | December 2017 | Vol. 66 www.vsb.org
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62 VIRGINIA LAWYER | December 2017 | Vol. 66 www.vsb.org ANNUAL Discover even more with our 8 0 MEETING Annual Meeting VIRGINIA STATE BAR - mobile app R C returning this spring!
We invite you to be a part of the 80th VSB Annual Meeting. Last year, more than 600 lawyers, judges, and their families took part in CLEs, lunches, receptions, award ceremonies, investitures, speeches, and athletic events. Mark your calendar to take part in the inspiration, camraderie, and networking at your Annual Meeting.
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