Virginia LawyerVOL. 69/NO. 5 • February 2021 LAWYER REGISTER The Official Publication of the Virginia State Bar

The Health Law Issue The COVID-19 Pandemic and the Law Attorney General Mark R. Herring and the Pandemic Legal Team

Virginia Lawyer The Official Publication of the Virginia State Bar February 2021 Volume 69/Number 5

Features Noteworthy HEALTH LAW VSB NEWS 37 Stephanie Grana Elected VSB 13 The Year of Health Law Adaptation President-elect by Allyson K. Tysinger 37 New Virginia Lawyers Sworn in Virtually 14 COVID-19 Liability in Long-Term Care: A Tidal Wave or a Trickle of Litigation in Virginia? 37 Be Prepared: National Healthcare by Beth A. Norton Decisions Day 38 Prince William County Bar 18 Expansion of Telemedicine during COVID-19 Association Honors Local and the Issue of Non-Compete Agreements Attorneys by Dean E. Lhospital 39 In Memoriam 40 Augustus Benton Chafin 22 The New Virginia DOLI COVID-19 Emergency Workplace Standards: An Administrative Nightmare for Healthcare Providers 40 Florence W. Madden by William P. “Scott” Daisley and Elizabeth Dahl Coleman 41 Joan Marie O’Donnell 41 Mark B. Sandground Sr. 26 Pre-Disposition Mitigation of Traffic Cases: A Simple Proposal to Improve Access to Justice, Public Health, 42 Bar Council Elections and Court Operation during COVID and Beyond by Shawn Mihill Departments 6 Forum 28 The COVID-19 Pandemic: The Legal Issues, the Public Impact, and Our Progress 36 Wellness by Mark R. Herring, Attorney General of Virginia 57 Professional Notices 60 Cartoon GENERAL INTEREST 60 Advertiser’s Index 61 Classified Ads 30 Goodbye VPNs – Hello Zero Trust Network Access by Sharon D. Nelson and John W. Simek Columns 8 President’s Message 32 Opinion: Virginia’s Cash Bail System: Denying Due Process to the Poor 10 Executive Director’s Message by Clarence M. Dunnaville Jr. 12 Bar Counsel’s Message 43 Access to Legal Services VIRGINIA LAWYER REGISTER 44 Letter from the Access to Justice Commission 50 Disciplinary Summaries 46 Law Libraries 51 Disciplinary Proceedings 47 Technology and the Future Practice 52 Notices to Lawyers: A Roundup of News and Proposed Rule Amendments of Law from vsb.org 48 Risk Management 53 CLE Opportunities 62 The Last Word

Cover: Attorney General of Virginia Mark R. Herring and members of his pandemic team: First row: Attorney General of Virginia Mark R. Herring; Second row (L to R): Deputy Attorney General Keonna C. Austin; Chief Deputy Attorney General Erin B. Ashwell; Third row (L to R): Heather Hays Lockerman; Justin I. Bell; Carol L. Lewis; Fourth row (L to R): Grant E. Kronenberg; Robin V. Kurz; Fifth row (L to R): Solicitor General Toby J. Heytens; Allyson K. Tysinger, Health Law Section Chair. Photo by Deirdre Norman at the Attorney General’s office in the historic Barbara Johns Building. 3 Virginia Lawyer Virginia State Bar The Official Publication of the Virginia State Bar 2020–21 OFFICERS 15th Circuit Brian L. Buniva, President Allen F. Bareford, Fredericksburg Jay B. Myerson, President-elect Marni E. Byrum, Immediate Past President 16th Circuit www.vsb.org Karen A. Gould, Executive Director and R. Lee Livingston, Charlottesville Chief Operating Officer Palma E. Pustilnik, Charlottesville Editor: EXECUTIVE COMMITTEE 17th Circuit Deirdre Norman Brian L. Buniva, President Adam D. Elfenbein, Arlington ([email protected]) Jay B. Myerson, President-elect Jennifer S. Golden, Arlington Marni E. Byrum, Immediate Past President Gregory T. Hunter, Arlington Creative Director: Eugene M. Elliott, Roanoke Joshua D. Katcher, Arlington Caryn B. Persinger Stephanie E. Grana, Richmond William H. Miller, Arlington ([email protected]) Chidi I. James, Fairfax 18th Circuit Eva N. Juncker, Falls Church Barbara S. Anderson, Alexandria Assistant Editor: William M. Moffet, Abingdon Stacey R. Harris, Alexandria Kaylin Bowen Eric M. Page, Richmond John K. Zwerling, Alexandria ([email protected]) CONFERENCE CHAIRS AND PRESIDENT 19th Circuit Conference of Local and Specialty Bar Advertising: Susan M. Butler, Fairfax Associations – Susan N. G. Rager, Coles Point Brian C. Drummond, Fairfax Deirdre Norman Diversity – Sheila M. Costin, Alexandria ([email protected]) David J. 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It is intended for use by 3rd Circuit 20th Circuit Meredith B. Travers, Portsmouth R. Penn Bain, Leesburg attorneys licensed to practice law in Virginia. Because of Susan F. Pierce, Warrenton the rapidly changing nature of the law, information 4th Circuit 21st Circuit contained in this publication may become outdated. As Ann B. Brogan, Norfolk Gary A. Bryant, Norfolk G. Andy Hall, Martinsville a result, an attorney using this material must always Neil S. Lowenstein, Norfolk research original sources of authority and update 22nd Circuit 5th Circuit Eric H. Ferguson, Rocky Mount information to ensure accuracy when dealing with Thomas G. Shaia, Suffolk a specific client’s legal matters. In no event will the 23rd Circuit 6th Circuit Eugene M. Elliott Jr., Roanoke authors, the reviewers, or the publisher be liable for J. Daniel Vinson, Emporia K. Brett Marston, Roanoke any direct, indirect, or consequential damages resulting 7th Circuit 24th Circuit from the use of this material. The views expressed herein Benjamin M. Mason, Newport News Eugene N. Butler, Lynchburg are not necessarily those of the Virginia State Bar. The 8th Circuit 25th Circuit inclusion of an advertisement herein does not include Marqueta N. Tyson, Hampton William T. Wilson, Covington an endorsement by the Virginia State Bar of the goods 9th Circuit or services of the advertiser, unless explicitly stated 26th Circuit Susan B. Tarley, Williamsburg Nancy M. Reed, Luray otherwise. Periodical postage paid at Richmond, 10th Circuit Virginia, and other offices. 27th Circuit E. M. Wright Jr., Buckingham R. Cord Hall, Christiansburg 11th Circuit 28th Circuit Shaun R. Huband, Petersburg William M. Moffet, Abingdon POSTMASTER: 12th Circuit Send address changes to 29th Circuit P. George Eliades II, Chester D. Greg Baker, Clintwood VIRGINIA LAWYER MEMBERSHIP DEPARTMENT 13th Circuit 30th Circuit Dabney J. Carr IV, Richmond Greg D. Edwards, Jonesville 1111 E MAIN ST STE 700 Leah A. 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Letter to the Editor I read with interest your December issue on the importance of local bar associations. As many Virginia Lawyer readers Letters may already know, my mother, Rosalie Small, passed away in September 2020. For 15 years, starting in the late 1970s, Rosie Send your letter to the editor to: was Executive Director of the Fairfax Bar Association, helping to make that organization into one of the most important small bars [email protected] or in the country. Virginia State Bar She wasn’t an attorney, and, thus, wasn’t a member of the VSB. Still, I believe that Virginia Lawyer Magazine many VSB members owe so much to people like Rosie, who are the unsung workers 1111 E Main St., Suite 700 for many bars across the Commonwealth. Richmond, VA 23219-0026

J. Max Weintraub Letters published in Virginia Lawyer Senior Litigation Counsel may be edited for length and clarity Department of Justice and are subject to guidelines avail- able at www.vsb.org/site/publica- In Response to “Help Bring Justice for All to Rural Virginia” tions/valawyer/. Regarding your article in the Virginia The difference is that many of those Lawyer entitled “Help Bring Justice For 148 lawyers are retired or not actively All To Rural Virginia”. As you men- practicing, or are prosecutors or their tioned in the article, there is a dearth of assistants, personal injury firms, or may lawyers in rural areas. That is especially have a residence address in the coun- true in the Northern Neck and Middle ty but do not practice in the area. By Peninsula counties where I practice. It example, John Rellick is the managing seems that fewer lawyers want to prac- attorney for the legal aid office (Legal tice in rural areas now. And consequent- Aid Works) in Tappahannock (Essex ly, there are fewer lawyers willing to take County), but he lives in King William, on pro bono matters. so he may have been counted twice as a Your article listed the number of law- practicing attorney. yers by County. However, the numbers Legal Aid Works in Tappahannock listed for the counties where I practice serves the counties of Essex, King appear to be greater than the actual William, King and Queen, Richmond, number of practicing lawyers in those Lancaster, Northumberland, counties. Those counties, with the Westmoreland and has its headquarters number of actual, practicing lawyers in Fredericksburg. A survey in Essex (and the number in the article in paren- County a few years ago pointed out theses) are: that 70% of its residents received some Caroline - 8 (18) form of public benefits, such as food Essex - 6 (13) stamps, rent assistance, income assis- King and Queen - 1 (2) tance (welfare), Social Security, etc. King William - 5 (10) Except for farming, timber, and Lancaster - 17 (43) housing construction, there is very little Middlesex - 8 (18) industry in the area and most jobs are Northumberland - 6 (21) low wage, entry-level, or service jobs. Richmond - 4 (4) Accordingly, there is a greater need for Westmoreland - 6 (19) legal representation among the low-in- The total number of actively practic- come population, but, unfortunately, ing lawyers is about 61 covering nine fewer rural lawyers to accommodate that counties, whereas the total number of need. The possibility of getting lawyers lawyers by county is about 148. from metropolitan areas to assist with

Letter continued on page 11

6 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org

President’s Message by Brian L. Buniva Civility and Gratitude in This Great Profession

I WOULD LIKE TO BEGIN of the most frequently cited passages is my bond. this column by quoting from a on civility came from retired United • Avoid all bigotry, young George Washington’s early States Supreme Court Justice Anthony discrimination, or prejudice. writings, titled “Rules of Civility and M. Kennedy as he addressed the • Treat everyone as I want to Decent Behaviour in Company and American Bar Association’s annu- be treated – with respect and Conversation.” Washington scribed al meeting in 1997: “Civility is the courtesy. a total of 110 rules to be observed in mark of an accomplished and superb • Act as a mentor for less daily life, which ranged from matters professional, but it is even more than experienced lawyers and of personal hygiene and decorum to this. It is an end in itself. Civility has as a role model for future topics that we should revisit frequently deep roots in the idea of respect for the generations of lawyers. — especially in today’s turbulent times. individual.” • Contribute my skills, knowledge I consider the following some of his and influence in the service of most important admonitions: Who among us has not my community. • “Every action done in company • Encourage those I supervise ought to be with some sign used reproachful language to act with the same of respect to those that are against someone or treated professionalism to which I present.” a s pi re .” • “Use no reproachful language someone without the respect I am grateful for the many opportu- against anyone; neither curse nities I have had to observe first-hand nor revile.” they deserve? civility as practiced by giants of the bar • “Undertake not what you as my partners, mentors, co-counsel, cannot perform, but be careful We can only hope that those or opposing counsel. The late Gerald to keep your promise.” Baliles, Bill Broaddus, Irv Blank, the • “Labour to keep alive in your failings are few and far late Buddy Allen, the late Richmond breast that little celestial fire Circuit Court Judge Randall Johnson, called conscience.” between, and not repeated. Pat McSweeney, Frank Brown, and This nation’s public discourse Charlie Williams are just a few of the would be greatly elevated if only these Our Virginia Supreme Court truly great lawyers who have led the few basic, but important, rules of civil- has also opined on the expectation crusade for civility and professional- ity and decent behavior were observed that all lawyers behave with civility ism by example. I urge all to identify during our country’s recent national when it adopted the “Principles of a lawyer who has demonstrated true public and political debates. Professionalism” more than a decade professionalism and civility, watch But as simple as these common- ago. I commend the words regarding them closely, and learn. It will make sense statements are, I dare say they conduct toward all others embodied in you better people, and better lawyers. are not easy to observe in our daily the Court’s Principles: Finally, I would like to close this lives. Who among us has not used “In my conduct toward everyone column with thoughts of gratitude. reproachful language against someone with whom I deal I should: We’ve all had a tough past year or so or treated someone without the respect • Remember that I am part of a due to COVID-19, but, when things they deserve? We can only hope that self-governing profession, and seem bleak, I remember a New York those failings are few and far between, that my actions and demeanor Yankee baseball player of long ago and not repeated. reflect upon my profession. named Lou Gehrig. After 17 years As lawyers we are called upon to • Act at all times with in the major leagues, he was stricken bring civility into every phase of our professional integrity, so that private and professional lives. One others will know that my word President continued on page 54

8 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org @Vastatebar /virginiastatebar Virginia State Bar @virginiastatebar

Executive Director’s Message by Karen A. Gould You Do, In Fact, Still Get To Complain Even If You Don’t Vote

THE VIRGINIA STATE BAR tion: Donald Trump did receive two counts spiked on Mondays, the day rarely has a contested president-elect write-in votes in the VSB election, the reminders were sent. Because it election. In the last ten years, the VSB placing him a very distant third if he is against VSB policy to inundate our has had three contested elections: were an eligible Virginia lawyer. But lawyers with emails, it was deemed 2012, 2014, and 2020. In the 2012 back to our turnout: the biggest spike sufficient to send the reminders once a election Raymond B. Benzinger trailed in votes occurred, unsurprisingly, on week on a Monday. by a margin of less than two percent days when we emailed the ballots or To combat low voter response, we when he lost a VSB president-elect reminded you that you still needed to have received suggestions that the election to Kevin E. Martingayle of vote. president-elect election be moved to Virginia Beach. About 20 percent of Yet, there was no U.S. presiden- the spring to occur at the same time as Virginia’s 30,000 active lawyers cast tial election in 2014 to dampen voter the Council elections. VSB members ballots in that VSB election, the last response. The low turnout in the are more likely to know the Council such contest using only paper ballots. 2014 election prompted the Report candidates in their circuits and, there- In 2014, Raymond B. Benzinger of of the Study Group on VSB Online fore, Council elections would attract Arlington, Thomas A. Edmonds of Elections (May 2015) and the Final circuit members to vote for the pres- Richmond, and Michael W. Robinson Report and Recommendations from the ident-elect position because it would of Reston competed for the presiden- Special Committee on President-elect be on the same ballot as the circuit cy. The three-way election resulted Procedures (June 15, 2016). Substantive candidates. in 4,517 votes being cast from 31,180 changes were made in the election pro- The proposal set forth for your eligible voters (14.49%). Robinson won cess because of those reports, but the consideration below would change with 2,043 votes. low turnout remains. the timing of the president-elect This year, the VSB had a contest- The measures proposed by the election to coincide with the Council ed president-elect election between study group and adopted by the special elections. It also proposes that the Stephanie B. Grana of Richmond and committee had three guiding princi- election period be shortened to two David E. Neumeyer of Lynchburg. ples, which guide our elections today: weeks. Because elections were origi- Grana won the election with 2,986 • every member of the VSB who nally held through the mail, they were votes, compared to Neumeyer’s 2,436 desires to participate and vote held through a month. The advent of votes. A total of 5,4691 voters returned in an electronic election should electronic balloting means this extend- a ballot out of 32,174 eligible voters have a reasonable opportunity to ed period is no longer necessary. (17%). do so and receive a message that The Paragraph 42 rule change and The low voter turnouts in VSB their vote has been received and bylaw changes that would be neces- elections have not gone unnoticed. We counted; sitated by this proposal are simple, as would like higher lawyer interest, but • the VSB has a transparent and fair indicated in this redlined proposal also understand that you are busy and election process; and (additions are denoted by underlining; may believe that the president of the • the VSB affords each president- deletions by strikethroughs): Bar has no bearing on your careers. In elect candidate the opportunity my experience, that is untrue. When to communicate their goals and 4. Officers— any lawyer in the Commonwealth positions to Bar members. The officers of the Virginia State Bar contacts the current or even former One of the recommendations made shall be a President, a President-elect, president of the bar on an issue, it has in 2014 was that the VSB membership an Immediate Past President and a without fail generated response and should be sent periodic reminders Secretary-Treasurer. The President- action. about the election. The 2020 elec- elect shall be elected annually for Of course, our election was taking tion report confirms that the email place during another notable elec- reminders work because the vote Executive Director continued on page 54

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Letter continued from page 6

pro bono work in rural areas appears to be remote, though for office visits, and has been for many months, although it it would be welcome. The answer seems to be more govern- still takes telephone calls. I continue to work with them as ment funding for more rural legal aid offices so they can hire much as possible, and also perform voluntary pro bono work more lawyers and more staff. for those clients unable to pay fees. The top three areas of The pandemic has also adversely affected the area by that work are the same as those listed in your article, to-wit: causing many restaurants and small businesses to close or divorce, landlord/tenant, wills and powers of attorney. reduce employment, thereby causing further hardship on the low-income population. Herbert L. Sebren Jr. The Legal Aid Works Office in Tappahannock is closed Tappahannock

www.vsb.org VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 11 Bar Counsel’s Message by Renu M. Brennan Turning the Fiduciary Relationship on its Head: Fiduciary Misconduct and Lawyer Discipline

WITHIN THE LAST TWO YEARS, held as a fiduciary for the benefit of an benefit of, and held the power of disciplinary tribunals have suspend- elderly ward. attorney for, this disabled client. The ed or revoked at least nine attorneys’ Fairfax attorney Clifford John trust made monthly payments into a licenses to practice law in the Com- Shoemaker5 held the power of attorney bank account, which Wilks managed. monwealth of Virginia for ethical mis- for an 86-year old woman suffering Throughout a six-month period, Wilks conduct committed while the lawyers from dementia. Shoemaker deposited made 17 transfers totaling nearly served in a fiduciary capacity. In some $142,506.82 in life insurance proceeds $11,000 from his client’s account to his cases, the lawyers exploited, instead for her benefit into his trust account personal account. Wilks periodically of protected, individuals the lawyers and then used $57,000 to pay his credit repaid some of the client’s money. agreed to protect. In all cases, the law- card bill. Shoemaker altered his bank Wilks was not honest with his law yers abused the trust and confidence statements to conceal his misappropri- partners when they confronted him reposed in them by the principals. The ation. After initially claiming he was about the transfers. It was not until the lawyers’ misconduct harmed not just not charging the client a fee, Shoe- partners pressed the issue that Wilks those they agreed to protect, but the maker billed his client $30,450 in legal admitted what he had done and fully profession at large. fees. Shoemaker eventually repaid the repaid the client. “When an attorney assumes the money. He was charged with felony Loudon County attorney James responsibility of acting as a fiducia- embezzlement and pled nolo conten- Christopher Chamblin8 consented to ry and violates his or her duty in a dere to a reduced charge of misde- revocation of his license for mis- manner that would justify disciplinary meanor embezzlement of less than appropriating more than $850,000 action had the relationship been that $500. Shoemaker was sentenced to a from trusts for which he was trustee. of attorney/client, the attorney may 12-month jail sentence with 12 months Chamblin had repaid approximately be properly disciplined pursuant to suspended. Shoemaker consented to $250,000 at the time he consented to the [Virginia] Code of Professional revocation of his license in February revocation in October 2019. Chamblin Responsibility.”1 See also Comment 5 2020. represented that depression was a con- to Rule of Professional Conduct 8.4, Norfolk lawyer Philip Farthing6 tributing factor to his misconduct. discussing lawyers’ abuse of positions served as the trustee for a set of related Most recently, effective Novem- of private trust, including as trustees, trusts. The trust beneficiary sued him ber 17, 2020, the Disciplinary Board executors, administrators, and guard- for breach of fiduciary duty and sought accepted Richmond attorney Bruce ians, as indicative of an inability to his removal as trustee. The Circuit Matson’s 9 affidavit consenting to revo- fulfill the professional role of attorney. Court for the City of Chesapeake cation of his license. Matson served as The Rules of Professional Con- removed Farthing as trustee and later the former liquidation trustee for the duct at issue in these cases implicate found, after a bench trial, that Farthing liquidation trust for LandAmerica Fi- serious— and sometimes criminal— was liable for $1,382,653 for breach nancial Group, and then as wind-down conduct, including the duty not to of fiduciary duty and $770,471.33 for trustee. The bankruptcy decree pro- disburse, use, or convert funds or unreasonable fees. The Supreme Court hibited Matson from disbursing funds property of a client2 without their of Virginia refused Farthing’s appeal. from the trust until 2021. In 2019, consent, and the duty not to commit Farthing consented to revocation of Matson disbursed $1,000,000 to him- criminal or deliberately wrongful acts.3 his license in January 2020. self and $1,500,000 to another attorney A three-judge panel suspended the who was assisting with the liquidation. Notable Cases license of Manassas attorney David A few months later, Matson disbursed Lynchburg attorney Cherie Washburn4 Wilks7 who transferred $11,000, which an additional $341,000 to himself. consented to revocation of her license he held in trust for a blind, disabled He held the funds in an account in based on allegations that she had mis- client, to his personal account. Wilks appropriated substantial funds that she created a revocable trust for the Bar Counsel continued on page 56

12 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org The Year of Health Law Adaptation by Allyson K. Tysinger s the chair of the Health Law Section Virginia State Bar Board of Governors, I am pleased to introduce this edition of Virginia Lawyer, which highlights the work of members of the Health Law Section. AWhile the pandemic has likely touched all of us in our practice of law, it has truly consumed those of us who practice health law. Thus, it is not surprising that the articles included in this edition have a COVID-19 focus. This issue addresses the work of the Office of the Attorney General in assisting the Commonwealth in its response to the public health emergency, the expansion of telemedicine during the pandemic, the emergency workplace standards of the Department of Labor and Industry that were the first such standards in the nation related to COVID-19, liability risks faced by long- term care facilities due to COVID-19, and a proposal for pre-disposition mitigation of traffic offenses to minimize court appearances to protect public health. As the vaccines for COVID-19 begin to roll out, there is much to look forward to in 2021. National Healthcare Decisions Day is April 16, and this is a great time to not only assist clients with preparing advance directives, but to also prepare your own. You can find information from the Health Law Section on advance directives, as well as free forms, on the Bar’s website. In addition, the Health Law Section is excited to present a CLE at the 82nd Annual Meeting scheduled to be held virtually on June 14-15, 2021. The CLE, titled Natural Questions about Artificial Intelligence: Addressing the Promise and Limitations of Artificial Intelligence in Healthcare, will explain how artificial intelligence is being used in healthcare and offer a variety of perspectives on how clinicians and attorneys are addressing emerging legal issues. We hope to see you there. In the meantime, we wish you all good health and a reminder to wash your hands, wear your masks,and stay six feet apart.

Allyson K. Tysinger is a Senior Assistant Attorney General and Chief of the Health Services Section of the Office of the Attorney General. She and the nine attorneys of the Health Services Section serve as agency counsel to the Department of Health, the Department of Behavioral Health and Developmental Services, the Department of Health Professions, the Department for Aging and Rehabilitative Services, the Department for the Blind and Vision Impaired, and the Department for the Deaf and Hard of Hearing. Her practice is focused on public health and disability law.

www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 13 COVID-19 Liability in Long-Term Care: A Tidal Wave or a Trickle of Litigation in Virginia? by Beth A. Norton

lmost every part of the world result, and as the federal agency that regulates has been negatively impacted by U.S. nursing homes, CMS moved to impose COVID-19. But the U.S. has been thousands of dollars in fines on Anbe, and Ahit hardest, and in terms of COVID deaths, more damagingly, to terminate it from the no other community in the U.S. has suffered Medicare program, which can mean an like the residents of long-term care (LTC) almost certain end for any nursing facility. facilities. At least 94 residents died of COVID early Residents of LTC facilities, namely in the pandemic at two sister New Jersey nursing homes and assisted living facilities, facilities.4 Many family members reported at comprise only about 1 percent of the U.S. or around that time they were unable to get population, but account for an estimated in touch with facility personnel, and many 40 percent of COVID-19 deaths in the U.S.1 hadn’t heard from their loved one in weeks. The CDC explains that, “[t]he communal Police searched the facility and found five nature of nursing homes and long-term bodies in a small holding room. The next day, care facilities, and the population served they found another twelve bodies in the same (generally older adults often with underlying room. medical conditions) put those living in The facility allegedly never contacted nursing homes at increased risk of infection any of the 17 residents’ family members or and severe illness from reported any of their deaths to the authorities. COVID-19.”2 The facility is now facing a proposed class This deadly combination has contributed action lawsuit alleging the owners misled to massive outbreaks in many facilities consumers in violation of the New Jersey across the country, particularly early in the Consumer Fraud Act and failed to protect pandemic, with some facilities even reaching residents in violation of state and federal a 100 percent infection rate among residents. nursing home laws. One Kansas nursing home, the Anbe Attorney General Maura Home, is facing federal penalties after all 63 Healey brought the first criminal case in of its residents became infected with the country against two administrators of a coronavirus, killing at least ten.3 Massachusetts veterans’ nursing home for The Centers for Medicare their part in an outbreak that killed 76 of its & Medicaid Services residents. The extraordinary charges were (CMS) investigated brought after the state found that staffing and found the shortages led the administrators to make the facility failed “tragic and deadly” decision to consolidate to separate two dementia units, resulting in confirmed healthy COVID-19-positive residents knowingly residents being placed near asymptomatic veterans in from the facility. infected No criminal charges have been brought ones. in Virginia against any LTC facility owner As a or administrator, but significant outbreaks have occurred, and as of this writing, they continue to occur. In May 2020, at least 51 residents died at the Canterbury Health & Rehabilitation Center, a skilled nursing facility in Henrico County.5

14 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | THE HEALTH LAW ISSUE www.vsb.org And more recently, on Nov. 20, 2020, the Virginia Department of Health reported that Heritage Hall, a nursing home in Big Stone Gap, had 190 infected residents and staff, The Act failed, but resulting in 21 deaths.6 many states, including Immunity for LTC Facilities The inevitable litigation that follows such stories of mass Virginia, had already infection and death are just starting to emerge. Some predict a flood, others a trickle. passed laws providing Conservative politicians certainly believe there will be a flood, which is why they’ve insisted immunity from ordinary negligence suits be included in any additional pandemic relief immunity for long-term .7 Senate Majority Leader Mitch McConnell predicts a “tidal care facilities anyway. wave” of COVID-related lawsuits will be brought against health care providers, intended only “so that trial lawyers can line their pockets.”8 Last July, to prevent these supposed nuisance suits, he and the other Senate Republicans proposed the Safe to Work Act, insisting its provisions be included in any future congressional COVID-19 pandemic response bill. The to the disaster, rendering the health care provider Act contained a safe harbor, retroactive to 2019 and effective unable to provide the level or manner of care for five years, that would have shielded owners of long-term that otherwise would have been required in the care facilities from COVID-related liability if: 1) reasonable absence of the emergency and which resulted in efforts were taken to comply with applicable government the injury or wrongful death at issue. standards and guidance in effect at the time; 2) the facility did not engage in gross negligence or willful misconduct in Governor Northam further clarified that “emergency and responding to the COVID-19 pandemic; and 3) the Plaintiff’s subsequent conditions … attributable to the disaster” include injury or death was caused by actual exposure to coronavirus.9 insufficient availability of PPE or other supplies, insufficient The Act failed, but many states, including Virginia, had already availability of trained staff, and using supplies or equipment in passed laws providing immunity for long-term care facilities innovative ways. anyway. It’s clear that EO60 immunity will apply in COVID-19 cases Virginia Governor Northam signed Executive Order No. in which a LTC facility can reasonably excuse its deviation(s) 60 (“EO60”) on April 28, 2020. EO60 acknowledged that from the relevant standard of care on shortages of PPE due healthcare providers, including nursing homes, were under to supply chain disruptions and/or unavoidable staffing significant stress due to large numbers of patients presenting shortages. with COVID-19 symptoms and critical shortages of personal What’s not as clear about EO60 is whether it will provide protective equipment (PPE) due to supply chain disruptions. LTC facilities immunity for non-COVID-related care they Governor Northam also acknowledged staff shortages within provided during the declared state of emergency. For example, facilities, including it among the difficulties “created by the will EO60 immunity be an available defense in bedsore cases, effects of COVID-19” and presenting “less than optimal common pre-COVID, that involve care provided during the conditions to deliver the healthcare indicated by conventional declared emergency? standards of care.” A subsequently enacted Virginia statute may be instructive EO60’s stated purpose was, in relevant part, to “clarify” on this question. On October 13, 2020, Virginia Code Section that COVID-constitutes a “disaster,”10 as that term is used 8.01-225.0311 was enacted and provides, in relevant part: in Virginia Code Section 8.01-225.02. Section 8.01-225.02 In the absence of gross negligence or willful provides, in relevant part: misconduct, any … assisted living facility … In the absence of gross negligence or willful that delivers care to or withholds care from a misconduct, any health care provider who … resident … who is diagnosed as being or is responds to a disaster shall not be liable for any believed to be infected with the COVID-19 virus injury or wrongful death of any person arising shall not be liable for any injury or wrongful from the delivery or withholding of health care death of such … resident … arising from when (i) a state or local emergency has been the delivery or withholding of care when the or is subsequently declared in response to such emergency and subsequent conditions caused disaster, and (ii) the emergency and subsequent by the emergency result in a lack of resources, conditions caused a lack of resources, attributable attributable to the disaster, that render such www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 15 … assisted living facility … unable to provide or wanton conduct, it must be shown that he the level or manner of care that otherwise was conscious of his conduct, and conscious, would have been required in the absence of the from his knowledge of existing conditions, that emergency and that resulted in the injury or injury would likely or probably result from his wrongful death at issue. conduct, and that with reckless indifference to consequences he consciously and intentionally The new law provides immunity to assisted living facilities did some wrongful act or omitted some known and other providers who might have been excluded from EO60 duty which produced the injurious result.13 immunity since these providers are not expressly defined as “health care providers” in the Virginia Code, and Section In a prior 2004 case,14 the Supreme Court of Virginia explained 8.01-225.02 only provides immunity to “health care providers” the three levels of negligence in Virginia: during declared disasters. The first level, simple negligence, involves the Regarding assisted living cases, there appears to be no failure to use the degree of care that an ordinarily question that the new statute’s immunity will only apply prudent person would exercise under similar where the plaintiff alleges actual coronavirus exposure. There circumstances to avoid injury to another. remains some question, however, whether EO60 immunity The second level, gross negligence, is a degree will apply in non-COVID, ordinary negligence claims against of negligence showing indifference to another nursing homes regarding care that took place in the COVID- and an utter disregard of prudence that amounts era, although the new law could be construed as signaling to a complete neglect of the safety of such other the ’s intent that the previous statute and EO60 person. This requires a degree of negligence that immunity apply only in nursing home cases that allege actual would shock fair-minded persons, although coronavirus exposure as well. demonstrating something less than willful recklessness. Gross Negligence and Willful and Wanton Conduct The third level of negligent conduct is willful In any case, wise plaintiffs’ counsel will certainly include and wanton negligence. This conduct is all possible allegations of gross negligence and/or willful defined as acting consciously in disregard of and wanton conduct to overcome possible EO60 immunity another person's rights or acting with reckless defenses, and wise defense counsel should be prepared to indifference to the consequences, with the defend these claims. defendant aware, from his knowledge of existing It is hard to imagine any plaintiffs will allege that a LTC circumstances and conditions, that his conduct facility’s owners or personnel intentionally infected them probably would cause injury to another. with the virus. But as the Supreme Court of Virginia recently decided,12 “…ill will is not a necessary element of willful and What, then, constitutes gross negligence or wanton conduct.” The Court explained: willful misconduct regarding LTC facilities’ acts and In order that one may be held guilty of willful omissions in the COVID-era? Active COVID litigation has not yet come to Virginia. Sean Byrne, managing partner of the Byrne Legal Group, recently reported, “We are not yet seeing claims and lawsuits that directly allege COVID-related liability theories. We will surely see some—they just haven’t matured yet to the point of being claims or suits.” Many other experienced medical malpractice defense and plaintiffs’ attorneys confirmed they were unaware of any current COVID cases against Virginia LTC facilities. But COVID cases alleging gross negligence and/or wanton and willful conduct have been filed in other states and may provide insight into the acts and omissions that might meet Virginia’s applicable standards. A civil complaint brought on behalf of 15 residents, 10 of whom died, has been filed against a Pennsylvania nursing facility alleging the facility engaged in “reckless, willful and wanton conduct” when it failed to take sufficient steps to prevent the spread of the coronavirus.15 The proposed Safe to Work Act suggests that a mere failure to adhere to government guidance might constitute gross negligence or willful and wanton conduct. But authoritative

16 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | THE HEALTH LAW ISSUE www.vsb.org federal and state guidance has been, and remains, a Endnotes moving target. The standard of care applicable to any 1 Ricardo Alonso-Zaldivar, “Nursing Home COVID-19 Cases COVID-era case, therefore, will be very time-specific. Rise Four-fold in Surge States,” Washington Post, November 8, 2020. Sympathy 2 Centers for Disease Control and Prevention, “People Who If a plaintiff manages to overcome these legal challenges, Live in a Nursing Home or Long-Term Care Facility,” updated will be receptive to claims against LTC facilities for Sept. 11, 2020, accessed Nov. 11, 2020 at https://www.cdc.gov/ the death of their residents? The Virginia attorneys with coronavirus/2019-ncov/need-extra-precautions/people-in- whom we consulted are split on this question. Some think nursing-homes.html. any COVID-related case against a local LTC facility will 3 Brittany Shammas, “Kansas nursing home faces severe federal be a tough sell. Others think it depends on the timing penalties after deadly coronavirus outbreak,” Washington Post, and other circumstances of the alleged acts or omissions. Oct. 27, 2020. Multiple plaintiffs’ attorneys reported they won’t 4 Bill Wichert, “NJ Nursing Facilities Sued Over Dozens of even consider taking a case that involves coronavirus COVID-19 Deaths,” Law360, Sept. 8, 2020. exposure that occurred early in the pandemic before 5 Michael Martz, “Two more die at Canterbury, but nursing definitive government guidance was provided. Neither facility now recovering from COVID-19,” Richmond Times- the CDC, CMS, nor the Virginia Department of Health Dispatch, May 7, 2020, accessed 11/20/20 at https://richmond. (VDH) began issuing COVID-specific guidance until com/news/virginia/two-more-die-at-canterbury-but-nursing- April. facility-now-recovering-from-covid-19/article_f10cda32-38ed- Most attorneys seem to agree that even if EO60 510f-bfdc-9251b661e4b1.html immunity doesn’t automatically apply in non-coronavirus 6 Jeff Keeling, “190 cases, 21 deaths: Outbreak at Big Stone Gap, exposure cases, juries will likely only be sympathetic Va. nursing home driving Wise County COVID death spike,” to plaintiffs in cases of gross negligence or willful and News Channel 11 WJHL.com, Nov. 20, 2020, accessed Nov. 20, wanton conduct anyway. 2020 at https://www.wjhl.com/local-coronavirus-coverage/190- cases-21-deaths-outbreak-at-big-stone-gap-va-nursing-home- Questions Left Unanswered driving-wise-county-covid-death-spike/ There are more questions than answers at this point about 7 Erica Werner and Tom Hamburger, “White House and future COVID-era cases against LTC facilities in Virginia. Congress clash over liability protections for businesses as firms When will EO60 or other immunity provisions apply? cautiously weigh virus reopening plans,” Washington Post, May When it does, what acts and omissions will constitute 3, 2020. gross negligence or willful misconduct? Will plaintiffs be 8 Debbie Cenziper, Peter Whoriskey, Shawn Mulcahy and Joel required to meet these heightened standards in non- Jacobs, “As Nursing Home Residents Died, New COVID-19 coronavirus exposure cases? How receptive will jurors be Protections Shielded Companies from Lawsuits. Families Say toward the plaintiffs and defendants in these cases? that Hides the Truth,” Washington Post, June 8, 2020. But whether it comes as a tidal wave or a trickle, 9 Senate Bill 4317, accessed at https://www.congress.gov/ COVID-related litigation against LTC facilities is coming bill/116th-congress/senate-bill/4317/text#toc-id368E3064D885 to Virginia and, as any litigator will tell you, knowing the 42E7A1FDE5C618B58155. questions is half the battle. 10 Executive Order Number Sixty (2020), accessed 11/21/20 at https://www.governor.virginia.gov/media/governorvirginiagov/ executive-actions/EO-60-Clarification-of-Certain-Immunity- From-Liability-For-Healthcare-Providers-in-Response-to- Novel-Coronavirus-(COVID-19).pdf. 11 https://lis.virginia.gov/cgi-bin/legp604.exe?202+sum+HB5059. 12 Curtis v. Highfill, 840 S.E.2d 321, 324 (Va. 2020). 13 Id. 14 Cowan v. Hospice Support Care, Inc., 268 Va. 482, 486-87 (2004) (citing Gossett v. Jackson, 249 Va. 549, 554 (1995); Griffin v. Shively, 227 Va. 317, 321 (1984); Koffman v. Garnett, 265 Va. Beth Norton is a former cardiac nurse and a graduate 12, 15 (2003); Griffin, 227 Va. at 321; Ferguson v. Ferguson, of the University of Virginia School of Law. She spent several years with Kaufman & Canoles and Hancock 212 Va. 86, 92 (1971) Etherton v. [[Doe]], 268 Va. 209, 213-14 Daniel & Johnson representing healthcare providers (2004)(quoting Griffin, 227 Va. at 321); and Alfonso v. Robinson, in compliance, contract and litigation matters. Now, 257 Va. 540, 545 (1999)). through her firm Norton Health Law in Charlottesville,  she represents consumers in a variety of healthcare 15 Y. Peter Kang, Pa. “Nursing Home Hit With Suit Over legal matters, including those related to elder and dis- COVID-19 Deaths,” Law360, October 21, 2020, accessed ability law, as well as general healthcare consumer law, 11/20/20 at https://www.law360.com/articles/1321680/pa- particularly healthcare contracts and litigation. nursing-home-hit-with-suit-over-covid-19-deaths?copied=1.

www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 17 Expansion of Telemedicine during COVID-19 and the Issue of Non-Compete Agreements by Dean E. Lhospital

n March 2020, while COVID-19 was would not have passed muster.4 first beginning to surge in the United In Virginia, one of the minority of states States, there was a corresponding surge that regulates how commercial payors Iin telemedicine visits between patients and reimburse for telemedicine visits,5 insurers healthcare providers including doctors, were obliged to increase their reimbursement nurse practitioners, clinical psychologists, rates for telemedicine visits, and in many and licensed clinical social workers.1 Already other respects treat telemedicine visits as ascendant as a delivery model, but still fairly though they were traditional in-person visits.6 niche and expanding at a measured pace from Accordingly, the increase in telemedicine certain corners of the healthcare industry, in encounters translated to an increase in a matter of weeks the telemedicine market telemedicine revenue, for which providers exploded approximately 80 percent over its were grateful, even if it did not come close to pre-pandemic size.2 offsetting the loss of revenue from cancelled Patients’ reluctance to accept telemedicine elective procedures and other traditional as an alternative to traditional in-person visits sources of revenue. fell away as virtual visits in many instances At this point, the trajectory of telemedicine became the safest or only option to obtain care. is largely dependent on the stickiness of Providers likewise embraced telemedicine the regulatory changes, many of which visits as a way to blunt the precipitous drop were implemented on a temporary basis. in patient volumes and to mitigate the But, it would be reasonable to expect that transmission risks involved with in-person telemedicine will continue to be an attractive appointments, through which providers healthcare delivery modality for patients and could contract the virus and fall ill or be providers even after the current pandemic is quarantined for long periods of time due to resolved. potential exposure, regardless of whether they contracted COVID. Unintended Consequences The widespread adoption of telemedicine While providers and their counsel were busy was made possible in large part by the navigating the acute impacts of this shifting toppling of regulatory barriers in response regulatory and financial landscape and the to the pandemic. As part of the Coronavirus rapid expansion of telemedicine, a host of Preparedness and Response Supplemental other legal and business complications bobbed Appropriations (CARES) Act, the Centers to the surface. One of these was already a for Medicare and Medicaid Services (CMS) long-simmering issue causing heartburn received authority to expand Medicare in the healthcare and legal fields: physician telemedicine, including: bringing 135 new non-compete agreements. When telemedicine allowable services into the fold; expanding appointments skyrocketed beginning in it beyond rural areas to beneficiaries in their March 2020, non-compete provisions own homes; and reimbursing at the same rate suddenly took on a new as traditional in-person visits.3 Technological cast. Most existing barriers also fell away as the HHS Office for agreements do not Civil Rights relaxed enforcement of HIPAA directly address violations against health care providers who telemedicine serve patients in good faith through everyday services as communications technologies that previously a distinct

18 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | THE HEALTH LAW ISSUE www.vsb.org modality within a larger practice area, and the framework for analyzing non-compete agreements is almost uniquely unsuited to the modern conundrum posed by telemedicine. Frequently deployed by employers, non-compete provisions in physician employment agreements are designed to protect employers’ legitimate business interests: in keeping personnel who are expensive to recruit, train, and retain, in protecting proprietary business information, and in maintaining patient populations the employer likely built at significant cost, among other reasons. For purposes of illustration, a simplified non-compete clause would provide: Non-Competition. Employee agrees that during the term of this Agreement and for a period of twelve (12) months after termination or expiration of this Agreement (the “Restricted Period”), Employee shall not compete on the directly with Employer by rendering the employees’ same professional medical services Employee ability to earn a provided for Employer, or any subspecialty living, and (3) it is not 8 thereof, within 30 miles of Employee’s practice against public policy. Courts will location during the Restricted Period. examine the aggregate effect of the restrictions in terms of 9 function, geographic scope, and duration. The employer Courts’ views and public sentiment regarding such bears the burden of demonstrating that the restraints non-compete provisions have waxed and waned over time are reasonable under the particular circumstances of the and vary widely from state-to-state. They are frequently case, and the language will be strictly construed against characterized as unfavored restraints on trade, although the the employer, with any ambiguity resolved in favor of the 10 counterpoint is often made that prohibiting them would employee. abridge the freedom to contract, destabilize the healthcare Setting aside telemedicine for the moment, even with workforce, and harm employers who have invested in a seemingly straightforward non-compete clause and a education and training. Some states have categorically traditional in-person practice, Virginia’s apparently middle- prohibited them through legislation, others have attempted to of-the-road approach to analyzing non-compete provisions limit their use in certain professions or codify restrictions or has not been without controversy. Each analysis is highly requirements, while still others have largely stayed out of the dependent on the circumstances of a given case and the conversation and handed off the issue for courts to construe. aggregate effect of the restrictions, meaning each clause For its part, the Virginia General Assembly maintained that is challenged is examined on its own merits, and even some distance until addressing them in a limited fashion impeccably drafted clauses may show cracks when examined by passing legislation effective July 1, 2020, that prohibits in court. As a philosophical matter, some physician groups employers from using “covenants-not-to-compete” with have cautioned against their use, although the guidance certain low-wage employees, who would decidedly not largely tracks the courts’ views that they should not include physicians.7 unreasonably restrict physicians’ practice, and that the public Reticent as the General Assembly may be on the subject, policy considerations of patient choice and continuity of care Virginia courts have been compelled to consider and construe should be respected.11 non-compete provisions exhaustively, resulting in The public policy aspect has always been a somewhat a construction that falls roughly between nebulous concept that seems to either represent a general the poles in relation to other states. In balancing of employer/employee equities, the perceived general, a non-compete provision will sentiment of an artificially harmonized populace, or merely be enforced if (1) it is narrowly as a proxy for a jurist’s opinion. The result of years of ebb and drawn to protect the employer’s flow is that these restrictions are generally permissible but legitimate business interest, (2) scrutinized and strictly construed, with employers bearing a it is not unduly burdensome heavy burden in both drafting and litigation.12 www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 19 Virginia courts have not yet issued any guidance on how Such a result would be unworkable from several angles to analyze noncompete clauses in the context of telemedicine, —legal, practical, and ethical. Telemedicine was born of a which may not be surprising given the novelty of this issue. desire to provide quality health care to underserved, rural Historically, there is a certain lag-time between the populations, which would be completely undermined if the emergence of a new technology and when the courts can entire state became a restricted area, or if only areas in dire digest and assimilate the development and settle into need of healthcare became pock-marked with exclusion areas. any kind of post-prandial ease. Right now, courts are just It would be greater than necessary to protect the employer, opening their menus. Physicians and employers are already unduly harsh and oppressive for the employee, and repugnant asking for the check. to public policy, but that would not even be intended or At the forefront of the turmoil is the issue of geographic desired by any party, it would simply be an unintended scope, which was previously one of the more straightforward consequence of the collision of old laws with a new economy. aspects. In the traditional practice of medicine in specialties That would seem to leave a fundamental paradox where that customarily involve direct patient contact, the patient and the practice of medicine must be deemed to occur where the physician are co-located. In telemedicine, they are patient is located for some purposes, like licensure, in separate, diffuse locations, which raises but where the physician is located for other the question as to where the medicine purposes, such as when construing is being practiced for purposes of a non-compete provisions. Aside the geographic limitation: where the resultant cognitive dissonance, physician is located, where that split-view approach the patient is located, both, But, it would be would not be a panacea. or neither. Physicians may not be in The reflexive impulse reasonable to expect the same place each time would be to see the they render healthcare practice of medicine that telemedicine services, and they occurring where the may be outside the physician is located will continue to be an area they would be when construing a attractive healthcare within if they were geographic limitation; providing in-person after all it is the delivery modality for care. The reality is physician who signed that the geographical the agreement that patients and providers scope consideration is contained the non- built on an assumption compete clause, it is the even after the current that is no longer valid— employee upon whom the that competition happens restraint acts, and s/he is pandemic is resolved. within a particular region likely still conducting business of physical space. It does not from the employer’s facilities account for the new economy using the employer’s equipment and where competition is virtual and technology, whereas patients may be at least state-wide. Add that to the located around the state or even the country. other foundational assumption that has been However, there are plausible arguments to consider invalidated, that patients and providers are in the same the practice of medicine occurring where the patient is located, place at the same time, and the result is a profoundly outdated not the least of which is official guidance from the Virginia analytical framework. Board of Medicine that says that, at least for purpose of However, the solution does not seem to be to allow licensure, “the practice of medicine occurs where the patient is technological and market changes to preclude any enforcement located at the time telemedicine services are used.” 13 However, if of restrictive covenants. The business realities of healthcare still that patient-centric view of where the practice of medicine exist, and a gig economy for physicians also does not represent occurs is applied to the construction of physician non- sound public policy. Telemedicine is often complementary to compete provisions, it would create a swiss-cheese map of in-person visits, so an unstable provider workforce with no Virginia with exclusionary bubbles for miles around each incentive to remain with a certain employer would negatively and every patient the physician saw while s/he worked for impact patient freedom and continuity of care just the same as the employer. would overburdensome restrictions on physicians.

20 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | THE HEALTH LAW ISSUE www.vsb.org Finding a New Paradigm Endnotes While the limitations of the current 1 This article uses the definition of “telemedicine” provided in Va. Code Ann. framework should be evident, a new § 38.2-3418.16: “[T]he use of electronic technology or media, including fulcrum that balances employer interests, interactive audio or video, for the purpose of diagnosing or treating a patient physician interests, and patient interests is or consulting with other health care providers regarding a patient’s diagnosis or not immediately apparent. Telemedicine, treatment.” in its ability to expand access to healthcare 2 Telehealth may see big long-term gains due to COVID-19: 10 observations. and potentially reduce the costs of https://www.beckershospitalreview.com/telehealth/telehealth-may-see-big- long-term-gains-due-to-covid-19-10-observations.html (accessed November delivering care, is truly a disruptive 11, 2020). technology, in the laudatory sense of the 3 Billing and reimbursement during the COVID-19 Public Health Emergency, term, and like other industry disruptions, https://telehealth.hhs.gov/providers/billing-and-reimbursement/?section=1,6# it is sending ripples through every private-insurance-coverage-for-telehealth (accessed November 11, 2020). arcane corner of the industry which will 4 Policy changes during the COVID-19 Public Health Emergency, https:// eventually settle into some new normal. telehealth.hhs.gov/providers/policy-changes-during-the-covid-19-public- In the interregnum, other areas may health-emergency (accessed November 11, 2020). flare for example, there may be a greater 5 Lacktman NM, Acosta JN, Levine SJ. 50-State survey of telehealth commercial focus on non-solicitation provisions or payer statutes. https://www.foley.com/-/media/files/insights/health-care-law- confidentiality provisions protecting today/19mc21486-50state-survey-of-telehealth-commercial.pdf (accessed proprietary business information as November 11, 2020). employers look for ways to shore up 6 See Virginia Code § 38.2-3418.16 (D) providing that “[an] insurer, corporation, their business models. Regardless, it or health maintenance organization shall reimburse the treating provider or the will continue to be an interesting topic consulting provider for the diagnosis, consultation, or treatment of the insured to watch for business, employment, and delivered through telemedicine services on the same basis that the insurer, healthcare attorneys, and will undoubtedly corporation, or health maintenance organization is responsible for coverage for consume much time and attention and the provision of the same service through face-to-face consultation or contact.” many billable hours. 7 See Va. Code Ann. § 40.1-28.7:8. Available at https://law.lis.virginia.gov/ vacode/title40.1/chapter3/section40.1-28.7:8/ (accessed November 11, 2020). 8 Modern Env'ts, Inc. v. Stinnett, 263 Va. 491, 493, 561 S.E.2d 694, 695 (2002); Simmons v. Miller, 261 Va. 561, 580-81, 544 S.E.2d 666, 678 (2001). Omniplex World Services v. U.S. Inv., 618 S.E.2d 340, 270 Va. 246 (2005). 9 Simmons v. Miller, 544 S.E.2d 666, 668, 261 Va. 561, 563 (2001); Advanced Marine Enterprises v. PRC Inc., 256 Va. 106, 118, 501 S.E.2d 148, 155 (1998). 10 Blue Ridge Anesthesia v. Gidick, 239 Va. 369, 371-72, 389 S.E.2d 467, 468-69 (1990); Simmons v. Miller, 544 S.E.2d 666, 261 Va. 561 (2001). 11 See American Medical Association Code of Medical Ethics Opinion 11.2.3.1, providing: Competition among physicians is ethically justifiable when it is based on such factors as quality of services, skill, experience, conveniences offered to patients, fees, or credit terms. Covenants-not-to-compete restrict competition, can disrupt continuity of care, and may limit access to care. Physicians should not enter into covenants that: 1. Unreasonably restrict the right of a physician to practice medicine for a specified period of time or in a specified geographic area on termination of a contractual relationship; and Dean Lhospital is Associate General Counsel 2. for the University of Virginia Physicians Do not make reasonable accommodation for patients’ choice of physician. Group, the faculty practice plan affiliated with Physicians in training should not be asked to sign covenants not to compete as a UVA Health. Previously, he worked in UVA’s condition of entry into any residency or fellowship program. School of Medicine and in private practice in Charlottesville. He received his J.D. from 12 Blue Ridge Anesthesia v. Gidick, 239 Va. 369, 371-72, 389 S.E.2d 467, 468-69 George Mason University School of Law, where (1990). Simmons v. Miller, 544 S.E.2d 666, 261 Va. 561 (2001). he was the Editor-in-Chief of the Journal of 13 Virginia Board of Medicine Guidance Document 85-12. Available at https:// Law, Economics & Policy. Previous publica- tions have appeared in the Human Rights and www.dhp.virginia.gov/medicine/guidelines/85-12.pdf (accessed November 10, Globalization Law Review, The Washington Post, 2020). and Virginia Lawyers Weekly.

www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 21 The New Virginia DOLI COVID-19 Emergency Workplace Standards: An Administrative Nightmare for Healthcare Providers by William P. “Scott” Daisley and Elizabeth Dahl Coleman

n July 27, 2020, the Safety and to classify each job task or hazard into one Health Codes Board (the “Board”) of four risk categories: “very high,” “high,” of the Virginia Department of “medium,” or “low.”5 Based on the risk OLabor and Industry (DOLI) enacted the first categories presented by the tasks and hazards mandatory workplace safety rules related present in the workplace, the employer to the COVID-19 pandemic in the nation must then implement certain safeguards (hereinafter referred to as the “emergency and protections, train staff, and formulate standards”).1 and implement an Infectious Disease Since these emergency standards were Preparedness and Response Plan.6 The enacted, and again following the Board’s requirements placed on the employer vary announcement that it was considering based on the risk categories present in the adopting permanent standards based on employer’s workplace.7 these temporary, emergency standards, Few requirements are placed on employers the regulations have been subject to heavy overseeing workplaces that only contain scrutiny, particularly among providers and hazards and job tasks that fall into the “low” associations in the health care community.2 risk category. However, as workplace job While the emergency standards were a well- tasks climb the risk categories, employers intentioned response to the growing public must implement more safeguards and enact health crisis, these standards quickly become more procedures. If an employer has any nearly impossible for health care providers to “very high” or “high” risk employees or has at efficiently implement because of the ever- least eleven employees and one task or hazard changing risk level they face in their role on of at least “medium” risk, they must develop, the frontlines combating COVID-19. implement, and document an Infectious During this pandemic, our health care Disease Preparedness and Response Plan that providers should be focused on providing “consider[s] and address[es] the level(s) of care, treating the sick, and protecting the . . . disease risk associated with various places most vulnerable members of our population. of employment, the hazards employees are As reflected in the Centers for Medicare and exposed to and job tasks performed at those Medicaid Services’ recent initiative, regulatory sites.”8 burdens on providers should be focused Further, all employers with hazards or on ensuring that providers can focus on job tasks of at least “medium” risk must “Patients over Paperwork.”3 Unfortunately, the train their employees on safe and healthy emergency standards force an administrative work practices based on the risk factors nightmare on many providers and prioritize present in the workplace.9 This can quickly paperwork over patient care. become an impossible task for employers with workplaces that present ever-changing The Basic Requirements of the Emergency levels of risk. Many of our frontline health Standards care providers fall into this type of employer. The emergency standards require employers They are forced to brainstorm all hypothetical to evaluate the risk of exposure to COVID-19 circumstances that may present significant presented by the job tasks performed and risk of exposure to their worksite and plan hazards present in that employer’s workplace.4 and train employees accordingly for those Based on this assessment, the employer is hypothetical situations. Provider employers

22 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | THE HEALTH LAW ISSUE www.vsb.org are also directed, to the extent allowed by law, to consider their COVID-19 positive cases at her facility, her job tasks currently employees’ own individual risk factors, which can vary wildly fall into the “medium” risk category at the beginning of her and might be unknown to the employer.10 As the COVID-19 shift.15 status of the health care provider’s patients fluctuates, so too However, around lunchtime, nursing home Resident does the level of risk presented by the job tasks performed at Johnson reports experiencing symptoms consistent with that employer’s workplace. This forces health care providers to COVID-19 and that resident is accordingly classified as plan and spend for the worst, increasing time expenditures on “suspected to be infected with COVID-19.” LPN Smith is then excessive documentation as well as costs incurred by acquiring assigned to care for Resident Johnson and any other residents and implementing various protective measures. who develop signs and symptoms of COVID-19. Because LPN Smith’s duties now require her to come within six feet The Volatility of the Risk Presented in a Healthcare Setting occupational contact with a person suspected to be infected The risk presented by exposure to COVID-19 to employees with COVID-19, LPN Smith’s job tasks now fall into the “high” working in healthcare settings can vary by the day, hour, risk category.16 and even minute. This is particularly true of our frontline Two hours after being classified as “suspected to be healthcare workers in nursing homes, assisted living facilities, infected with COVID-19,” Resident Johnson flatlines due to and other settings where they interact with patients, residents, an underlying medical condition. LPN Smith is the closest and other population groups that are particularly vulnerable to nursing home staff member available and immediately COVID-19. Further complicating things for providers is that rushes to provide Resident Johnson with Cardiopulmonary the risk assessments are tied to specific tasks or hazards Resuscitation (CPR). As soon as LPN Smith begins rather than the employee’s job title, meaning that an performing CPR, she is now engaging in a potentially aerosol- employee who performs various roles and responsibilities generating procedure with a person suspected to be infected is likely to encounter varying risks throughout the workday. with COVID-19. 17 This means that LPN Smith is now The “very high” risk classification is limited to hazards or encountering a “very high” risk job hazard in the course of her job tasks where the employee engages in aerosol generated employment.18 Within just a matter of hours, LPN Smith’s job procedures, collecting or handling specimens, or performing tasks have transitioned from being comfortably placed in the an autopsy that involves aerosol generating-procedures on “medium” risk category, to the “high” risk category, to finally a person or body known or suspected to be infected with presenting a “very high” risk job hazard. COVID-19.11 This highest risk classification is limited to Such risk fluctuation is not limited to this hypothetical specific circumstances with extreme risk of exposure to scenario and is representative of the day-to-day challenges COVID-19. “High” exposure risk classification is limited to job many healthcare providers face as they continue to operate tasks and hazards that require high potential for occupational during this pandemic. As the COVID-19 status and incidence contact within six feet with people infected with, or known or rates of residents and patients of the provider fluctuate, so will suspected sources of, COVID-19 that do not otherwise classify the exposure risk level presented by the performance of certain as “very high” risk.12 The emergency standards specifically state job tasks and hazards present that this includes “healthcare . . . delivery and support services in the healthcare provided to a patient known or suspected to be infected with provider’s [COVID-19].13 “Medium” exposure risk hazards or job tasks workplace. are those not otherwise classified as “very high” or “high” exposure risk in places of employment that require more than minimal occupational contact inside six feet” with other persons.14 While these different risk level classifications appear sensible on their face, further analysis shows how they quickly become unworkable in the healthcare provider setting. Consider the following hypothetical scenario to understand how the risk classification could change within minutes in the healthcare setting. Licensed Practical Nurse (“LPN”) Smith shows up to work at the nursing home she is employed at in the morning, just as she does every other day. Her nursing home has no current known or suspected COVID-19 positive cases among its residents. Because Nurse Smith’s job tasks require that she come into occupational contact with other persons within six feet to perform her responsibilities, and there are no known or suspected www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 23 perform the assessment while considering the possibility that some job tasks will likely, at one point or another, involve the highest risk possible, and to indicate what steps or protective ...regulatory burdens on measures will be taken in that case. During this time, it would also be prudent for providers providers should be focused to designate a high-level employee to serve as a resource officer in addition to any individual designated to implement on ensuring that providers the Infectious Disease Preparedness and Response Plan. This individual can serve as the point person for questions from other employees and ensure that the necessary protections can focus on and processes are in place. By identifying one lead individual, any necessary updates to the assessment of job “Patients over Paperwork.” tasks and hazards can be more easily tracked and are more likely to be completed without interrupting patient care. The emergency standards do provide an exception intended to offer healthcare employers a reprieve from the emergency standards. However, this exception offers very little in the way of a practical relief. The emergency standards state that if an employer complies with a recommendation Whereas most employers must only ensure compliance in CDC guidance to mitigate COVID-19 related workplace with the requirements of one risk level, healthcare risks that are addressed by the emergency standards, and providers are placed in a unique scenario in which they the CDC guidance offers equivalent or greater protection essentially must ensure that the requirements applicable than the emergency standards, the employer’s actions will to all risk levels are accounted for and implemented in be considered compliant with the emergency standard.20 their workplace. On top of already extensive hours and the In practice, this exception offers little to no protection enormous expense associated with providing care to patients because, if you have a compliant policy in place, then it must at this time, these regulations increase the time burden on provide at least equal protection to the DOLI standards, healthcare provider employers to ensure that the necessary regardless of the source behind the policy. This exception documentation is created and maintained. goes on to state that “an employer’s actual compliance with a recommendation contained in CDC guidelines . . . shall How do Healthcare Providers Practically Face this be considered evidence of good faith in any enforcement Fluctuating Risk? proceeding related to this standard.”21 The Commissioner of Healthcare providers will always have job tasks of at least Labor and Industry is required by statute to consider good “medium” risk present in their workplace. The emergency faith of the employer when imposing a civil penalty for cited standards require all employers with at least “medium” violations of the emergency standards.22 Therefore, if an risk job tasks or hazards present in the workplace to document and certify that the required COVID-19 disease workplace hazard assessment was performed.19 To ensure that healthcare employers are compliant with the emergency standards at all times, this assessment will need to accurately reflect the risks present in the workplace at any given time. Therefore, when the exposure risk associated with certain job tasks or hazards in the workplace changes, the workplace hazard assessment will need to be updated accordingly. This will require that the provider re-documents and re-certifies this updated assessment. During this pandemic, we want our healthcare providers singularly focused on providing needed healthcare services. Unfortunately, this documentation requirement places an immense paperwork burden on providers, particularly those on the frontlines of the pandemic, and appears to prioritize compliant paperwork over patient health and safety. Legal counsel for healthcare providers should discuss their clients’ options to ensure that these assessments are performed in a timely manner. One potential option is to

24 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | THE HEALTH LAW ISSUE www.vsb.org inspector finds that an employer has a deficient policy in place, but Endnotes that policy is derived from a documented CDC recommendation, 1 See §16VAC25-220, Emergency Temporary then the ensuing enforcement penalty may be reduced. It appears Standard Infectious Disease Prevention: that this exception does not offer employers any real protection SARS-CoV-2 Virus That Causes COVID-19, from citation for potential violations but may reduce the as Adopted by the Safety and Health enforcement penalty associated with such citations. Regardless, Codes Board on July 15, 2020, available at all CDC recommendations relied on by employers when crafting https://www.doli.virginia.gov/wp-content/ workplace policies to comply with the emergency standards should uploads/2020/07/COVID-19-Emergency- be documented by the employer, adding yet another documentary Temporary-Standard-FOR-PUBLIC- requirement to the administrative burden placed on healthcare DISTRIBUTION-FINAL-7.17.2020.pdf. 23 providers. 2 See, e.g., comments from the Medical Society of Until additional guidance is provided specific to healthcare Virginia, available at https://townhall.virginia. providers, providers must continue to ensure that all steps gov/l/viewcomments.cfm?commentid=85449, intended to comply with the DOLI standards are documented to the Virginia Hospital & Healthcare Association, the extent possible or show that they have complied with CDC available at https://townhall.virginia.gov/l/ recommendations of equal or greater protection. In the ever- viewcomments.cfm?commentid=86115, and changing healthcare landscape during this worldwide pandemic, HCA Virginia Health System, available at any evidence of intent and good faith actions taken to comply with https://townhall.virginia.gov/l/viewcomments. guidance is critical to protecting provider employers. cfm?commentid=86207. All three of these comments were submitted in connection with Conclusion the recently proposed permanent standards. While the Virginia DOLI emergency standards were borne out of 3 Centers for Medicare and Medicaid Services, a legitimate concern that employers take care of their employees, Patients Over Paperwork Fact Sheet, https:// the emergency nature and quick implementation of the standards www.cms.gov/About-CMS/Story-Page/ have resulted in blind spots that have hindered healthcare provider Patients-Over-Paperwork-fact-sheet.pdf, last employers by increasing the regulatory burden and paperwork updated Aug. 2019. requirements. In a pandemic, the focus of these providers should 4 16 VAC 25-220-40.A.1. be taking all steps to ensure their employees and patients are safe 5 Id. and healthy, without the need to comply with lengthy assessments 6 16 VAC 25-220-50 through -80. and detailed documentation measures that do not capture the 7 See generally, 16 VAC 25-200. reality of the healthcare setting in which risks are ever changing. 8 16 VAC 25-220-70.A. and 16 VAC 25-220- Further discussion and review need to be undertaken in 70.C.3. order to provide healthcare provider employees guidance on 9 16 VAC 25-220-80.A. implementing these regulations to the extent necessary to protect 10  16 VAC 25-220-70.C.3.b. their employees, while recognizing that the “one size fits all” 11  16 VAC 25-220-30 (see definition of “Very high” Virginia DOLI emergency standards are overly burdensome for  risk). these employers. 12 Id. (see definition of “High” risk). 13 Id. (see definition of “High” risk). 14 Id. (see definition of “Medium” risk). 15 Id. (see definition of “Medium” risk). 16 Id. (see definition of “High” risk). 17  See Clinical Questions about COVID-19: Questions and Answers, Infection Control, Which procedures are considered aerosol generating procedures in healthcare William “Scott” Daisley is an associate Elizabeth Dahl Coleman is settings?, available at https://www.cdc.gov/ at Mellette PC in Williamsburg. an associate at Mellette PC in coronavirus/2019-ncov/hcp/faq.html. Daisley’s practice focuses on asset Williamsburg. Her practice focuses 18  See 16 VAC 25-220-30 (see definition of “Very purchases, regulatory compliance, and on assisting healthcare providers corporate and licensing matters. While with a variety of transactional  high” risk). in law school, Daisley interned at the and regulatory matters, such as 19  See 16 VAC 25-220-50.C.2. and 16 VAC 25-220- New Kent County Commonwealth’s obtaining Certificates of Public Need, 60.C.2. Attorney’s Office for two summers maintaining compliance with changing and worked in both the Lewis B. Puller laws and regulations, and navigating 20 16 VAC 25-220-10.G.1. Jr. Veteran’s Benefits and Elder Law investigations and enforcement 21 Id. Clinics. In his spare time, he enjoys actions. She also routinely provides 22 Va. Code § 40.1-49.4.A.4.a. watching sports, home improvement advice to her healthcare clients projects, and spending time with his regarding employment-related 23 16 VAC 25-220-70.C.8. wife and son. concerns.

www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 25 Pre-Disposition Mitigation of Traffic Cases: A Simple Proposal to Improve Access to Justice, Public Health, and Court Operation during COVID and Beyond by Shawn Mihill

t’s a common scene in jurisdictions throughout numerous, but we will identify and discuss just a the Commonwealth: a traffic docket is getting few. First, defendants who can afford an attorney Iunderway in General District Court. There are a do not need to appear in court to get the benefit handful of lawyers mulling near the front along with of a reduction or dismissal. Defendants who can several law enforcement officers. The courtroom neither afford an attorney nor afford to miss a day of is packed, by socially distanced standards, and the work or childcare to come to court are left with two overflow is filling the hallway where social distancing options: plead guilty by pre-paying the offense with guidelines are generally disregarded or impossible. no possibility of a reduction, or not appear in court, The judge takes the bench, and the courtroom be found guilty in their absence, and be assessed the comes to order. The clerk calls the first attorney who additional “tried in absence” fee. Either pre-paying zips through his or her cases, passing up driving the offense or being found guilty in their absence records and driving school certificates to get the leads to a conviction as charged. anticipated reductions for that jurisdiction. This Second, many courts have been forced to close process repeats for each attorney in sequence, some on short notice when COVID cases are diagnosed of whom may have ten or more cases on that docket. among staff. These sporadic, unforeseen closures After that, the clerk calls through the remaining often lead to defendants missing work to come docket. The defendants who are present may state to court, only to find that their cases have been their case or ask for time to complete driving school, continued to another date. Defendants then must get their license restored, and so on. Any remaining decide whether missing an additional day of work or cases for which the defendant did not appear will be childcare is worth returning to court for a second or handled in their absence with convictions as charged subsequent appearance. accordingly, along with the $35 “tried in absence” fee Finally, in the era of COVID, minimizing indoor which gets added to their court costs.1 exposure to crowds is essential. Traffic dockets This system, or something are often one of the busiest days in the general comparable, is frequently district courts, drawing dozens of people into used throughout the small courtrooms and the surrounding hallways. Commonwealth. Such Despite mask requirements, individuals who may systems have been in be susceptible to the worst effects of COVID may place for years, and reasonably decide that their day in court is not worth they are flawed on the risk. For those who do choose to show up, they multiple levels. That risk exposure to crowds they would otherwise be able is the bad news, to avoid. along with the fact These problems could be solved through a single, that change is not straightforward solution: pre-disposition mitigation necessarily easy. of traffic offenses. A few primarily procedural The good news, changes could provide defendants who are unable however, is that to retain an attorney or to miss a day of work or change is possible, childcare with the same opportunities afforded and improvement is to defendants who can; it would allow elderly readily attainable. and immune-compromised defendants equal legal The problems with options without taking a health risk for their day the current system are in court; and it would allow courtrooms to run

26 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | THE HEALTH LAW ISSUE www.vsb.org more efficiently while each charged with speeding avoiding large numbers This change would increase on several occasions of people congregating may end up with very in proximity for hours. access to justice by allowing different driving The first thing records: appearances that would have defendants who cannot by the defendant or to change, albeit a counsel could lead slight change, is the hire an attorney or miss a to dismissals or uniform summons reductions to non- itself. A simple box day of work or childcare to moving violations for for a checkmark could receive the same favorable a total of zero DMV be added for the law demerit points, while enforcement officer to disposition as those not appearing would lead indicate whether the ticket to convictions of moving is eligible for pre-disposition defendants who can. violations, DMV demerit mitigation. This would be points, likely higher fines, very similar to, or in lieu of, additional costs for being tried in the current box that an officer can their absence, and the possibility of check if no appearance is necessary. license suspension. If the officer checks the “pre-disposition Although this change, if enacted, would mitigation eligible” box, that will identify to the court address traffic matters specifically and not more serious that the defendant was relatively polite and cooperative criminal charges, it is nevertheless essential that every throughout the interaction and there were no issues to defendant be afforded the same opportunities. Even raise before the court other than what the ticket was though indigent defendants facing traffic charges are not issued for. If the law enforcement officer does not check afforded the right to counsel, the repercussions on their the box for any reason, the traditionally available options day-to-day lives can be just as substantial and severe as would still be available and an appearance, by defendant those associated with some criminal convictions. or counsel, would be required for any potential reduction. Finally, in the era of COVID, and likely beyond, For those tickets that are deemed eligible for pre- social distancing will continue to be important. Pre- disposition mitigation by the officer, additional details disposition mitigation would allow elderly and immuno- would be provided to the defendant regarding their compromised defendants the same opportunities as options. Such options could either be listed on the revised others without risking their health or lives. It would summons or mailed to those defendants whose cases are also allow courts to continue processing cases, avoiding deemed eligible. The generic information would advise docket backlogs, and reducing courthouse crowding. The the defendant that they can provide certain documents minor changes to the paperwork and processes would be (i.e., driving record, certificate of driving school easily justified considering the benefit for the issues that completion, etc.) by a certain date prior to their court matter: access to justice, public health, and operation of date. the courts. Upon receipt of such documents, the court could Endnotes offer an early disposition by advising the defendant, 1 General District Court Manual, Chapter 4: Traffic Case based on the documents provided, how their charge Procedures. Revised 7/20. http://www.courts.state.va.us/courts/ will be amended to a reduced charge with a specific fine gd/resources/manuals/gdman/chapter04.pdf. or costs, or dismissed with costs, or any other available disposition. That notice could also advise that if the defendant wishes to present any additional evidence to the court, they must appear on their given court date to do so; otherwise, they will be considered to have accepted the given disposition. This change would increase access to justice by allowing defendants who cannot hire an attorney or miss a day of work or childcare to receive the same favorable disposition as those defendants who can. While licenses Shawn Mihill, [email protected], is an are no longer suspended for fines and costs, DMV associate at Anderson & Associates, PC in Virginia Beach. A graduate of Wake Forest University School of suspensions based on DMV demerit points are still Law, his practice consists of criminal defense and civil common. A wealthy defendant and an indigent defendant litigation in courts throughout the Commonwealth. www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 27 The COVID-19 Pandemic: The Legal Issues, the Public Impact, and Our Progress by Mark R. Herring, Attorney General of Virginia

This past year has been unprecedented immediately took steps to put crucial safety in a myriad of ways, but especially in the measures and guidelines in place to keep Tchallenges brought on by the COVID-19 Virginians safe and slow the spread of the virus. pandemic, that has seemingly impacted every These measures included things like closing aspect of Virginians’ lives. in-person K-12 schools, limiting restaurants to Virginians have had to adjust to a “new delivery or takeout only, closing recreational normal”, which for many folks, including and entertainment businesses, limiting the members of the Bar, means working from number of patrons in certain brick and mortar home, remote learning for their children, an retail businesses, and issuing a temporary “stay abundance of family or at-home time, and so at home” order. much more. But no sooner had Virginia’s life-saving Even the work of my office has been affected mitigation efforts taken effect, then legal by the pandemic. In addition to continuing our challenges began to be filed throughout the normal legal work, the Office of the Attorney Commonwealth. Defending these important General has assumed a major role in helping safety measures was up to my team and me, the Commonwealth navigate the COVID-19 and I’m proud to say that, to date, we have pandemic. successfully defended Virginia’s COVID-19 My office has been in a unique position safety measures in court more than 20 times. during this extraordinary time because of Courts across the Commonwealth have our role as counsel to all state agencies across ruled that these safety measures are crucial to Virginia, and particularly those that have been protecting the public health and ensuring that charged with responding to the pandemic, as Virginians and their families remain safe and well as our responsibility to defend Governor healthy during an unprecedented global health Northam’s COVID-19 safety measures in court. crisis. When Virginia first began to feel the But my team’s work didn’t stop at defending effects of the COVID-19 pandemic in Virginia’s COVID-19 safety measures. We were March 2020, Governor Northam also instrumental in providing counsel and advice to virtually every state agency to help them respond to the pandemic and provide necessary services and tools to the citizens they serve. Right at the outset of the pandemic, my Health Services Section immediately jumped into action making sure that the Virginia Department of Health had all the resources they needed to address this once-in-a-lifetime public health crisis, including finding avenues to quickly increase capacity at hospitals and expand our healthcare workforce, as well as enabling the provision of tools to assist Virginians in mitigating the effects of the pandemic, such as an exposure notification application and a platform to link Virginians to needed services. Their colleagues in the Government Operations and Transactions Division did extraordinary work to enable their respective

28 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | THE HEALTH LAW ISSUE www.vsb.org agencies to respond to the pandemic. And now, with the vaccine rollout underway across the Commonwealth, my team has been instrumental in helping the Department of Health as well as its local health districts with its legal needs related to the distribution and administration of the COVID-19 vaccine. No sooner had Virginia’s As colleges and universities across Virginia began to realize they may have to shorten the life-saving mitigation academic year, my Education Section went to work helping schools assess the best courses of efforts taken effect, then action to ensure their students and surrounding communities stayed safe. And, once schools legal challenges began decided to return to campus in some capacity, we helped them develop the best processes for to be filed throughout that to happen. The COVID-19 pandemic also impacted the 2020 Presidential election and the primaries the Commonwealth. leading up to it. The attorneys in my office who represent the Board of Elections and the Department of Elections played a pivotal role in ensuring that last year’s election cycle went smoothly, despite the pandemic. They developed solutions and put out guidance to make sure every Virginian had a safe, comfortable, easy voting experience, whether they chose to vote early absentee, early in person, or on Election Day. My team and I negotiated options to promote safe, secure voting for Virginians who could not or did not want to risk their health to vote in person, including an agreement that waived the witness requirement for absentee ballots for Virginians who feared for their safety voting in person, and an agreement that made it easier for Virginians with disabilities to participate in the election safely at home. As the Attorney General of Virginia, Mark Herring works to Without a doubt, I can say that 2020 was an keep Virginians and their families safe while promoting justice, equality, and opportunity. He is leading efforts to combat the unparalleled year for every Virginian, but I can heroin and opioid crisis, to reduce gun violence, to transform also say that I don’t think Virginia would have the way Virginia deals with sexual and domestic violence, and to been able to weather all of the challenges the protect Virginia taxpayers from abuse and scams. Raised by his mom in Loudoun County, he received year brought without the extraordinary efforts bachelor’s and master’s degrees from the University of Virginia of the Office of the Attorney General. and graduated with honors from the University of Richmond Even in the most difficult of times my School of Law. Herring began in public service as the town attorney team has stepped up to make sure that the for Lovettsville. He served on the Loudoun County Board Commonwealth’s legal needs are met, ensuring of Supervisors, and the representing parts that the state is in the best position to respond of Loudoun and Fairfax Counties while working to bring technology-based economic development to the Northern to the pandemic and protect public health and Virginia region, secure transportation funding for needed safety. I am incredibly proud of their hard work projects, and make both state and local governments more and dedication to the people of Virginia. accountable to the citizens of Virginia.

www.vsb.org THE HEALTH LAW ISSUE | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 29 Goodbye VPNs – Hello Zero Trust Network Access by Sharon D. Nelson and John W. Simek

Virtual private networks (VPN) are very to half (49 percent) of the firms elevated standard these days. But they are riddled the role of CISO to board visibility while with vulnerabilities – and subject to a 39 percent had a Zero Trust oriented “man in the middle attack.” They wreaked pilot for 2020. havoc in 2020 in a work-from-home • The migration towards Zero Trust faces environment. various challenges, with 76 percent of the firms identifying Identity and Enter Zero Trust Network Access (ZTNA) Access Management (IAM) as the major An October 2020 Forrester study (com- challenge. missioned by Cloudflare) offered some key findings: For those who are unfamiliar with the Zero • Working from home compelled firms Trust security model, it allows remote work- to transform how they operated in ers to access applications through a secure the cloud. However, 80 percent of the web-based gateway. The solution imple- IT decision-makers interviewed said ments least-privilege principles and supports their companies were unprepared to multi-factor authentication (MFA) and device make the transformation. Existing IT security checks. Unlike a VPN infrastructure, practices made it difficult to support Zero Trust is highly scalable, more affordable, employee productivity without security and easily integrates with various single sign- compromises. on (SSO) platforms already available in the • As a result, 76 percent of the decision- marketplace. It also permits the configuration makers said their firms intend to of access control policies to manage permis- accelerate their shift to the Zero Trust sions based on users’ privileges and devices. security framework. More than three- More than half of all businesses have quarters (76 percent) of decision-makers experienced data breaches (58 percent) or polled said their companies’ security increased phishing attempts (55 percent) practices were “antiquated” and needed during COVID-19. Ransomware attacks to shift towards Zero Trust Network affected 29 percent of the respondents. Access. Infrastructure outages and VPN connec- • The report found that 82 percent of tion latency issues disconnected 33 percent the firms said they were “committed” and 46 percent of workers, respectively. to migrating to a Zero Trust security Several vendors offered their services for architecture. To achieve this goal, close free or on extended trial periods to allow

30 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | GENERAL INTEREST www.vsb.org GENERAL INTEREST customers to test their Zero Trust security solutions during COVID-19. The free trial period allowed companies to migrate to a Zero Trust security model and test advanced security solutions from reputable vendors. They could then select the products that met their security needs and sign up on a perma- nent basis.

Why the sudden interest in a Zero Trust architecture? The short answer is the migration to the cloud, the increase in third-party service providers, and the need for mobility. Protecting the security perimeter was fine if all the services and people were within the network boundaries. A VPN assumes that a trusted device is now outside of the perimeter and needs to connect securely to inside resources. With more cloud services and a mobile workforce, we need an architecture that provides security for the user and application regardless of location or device. Sharon D. Nelson is a practicing attorney and the president of Sensei Enterprises, Inc. She is a past Even though Zero Trust Network Access as a VPN replace- president of the Virginia State Bar, the Fairfax Bar ment is right around the corner, it is not a solution for every- Association, and the Fairfax Law Foundation. She is one or every application. Zero Trust works great for applica- a co-author of 18 books published by the ABA. [email protected]. tions that have migrated to the cloud where the users that need authentication are clearly identified (such as the employees of a law firm). In other words, you have identified those users that need access, and you trust nobody else. Users can still be a problem even with ZTNA. If a cybercriminal gains access to a valid user’s credentials, they can access resources just like the authorized user. In other words, if the user continues to reuse passwords or doesn’t use multi-factor authorization, an attacker may gain access just like John W. Simek is vice president of Sensei Enterprises, a valid user. Inc. He is a Certified Information Systems Security We always knew Zero Trust Network Access was coming, Professional, Certified Ethical Hacker and a nation- but COVID has accelerated its arrival. And just like any other ally known expert in the area of digital forensics. He and Sharon provide legal technology, cybersecurity technology, ZTNA must be securely implemented with strong and digital forensics services from their Fairfax firm. [email protected] authentication controls to protect users from outside attacks. q

Leroy Rountree Hassell Sr. Indigent Criminal Defense Seminar Advanced Skills for the Experienced Practitioner

Save the Date: Friday, May 7, 2021

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www.vsb.org GENERAL INTEREST | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 31 OPINION Virginia’s Cash Bail System: Denying Due Process to the Poor by Clarence M. Dunnaville Jr.

Judge David Bernhard of the Fairfax inequitable, poverty-criminalizing system, Circuit Court recently held in a which has evolved over time, in my view, landmark decision that a cash or and the view of many advocates for justice bond of $2,500, imposed by a Fairfax (including the Attorney General), should General District Court judge against be totally abolished. There are no standards an indigent person, first-time, DWI or guidelines in the applicable statutes, and defendant, violated the Fourteenth the amounts set in particular cases are often Amendment of the United States arbitrary and capricious. Judge Bernhard Constitution. Judge Bernhard’s decision, quotes the eminent former Richmond is a very welcome answer to what is, in Commonwealth’s Attorney, Michael Herring, my view, a dilemma faced by all judges as stating his method of formulating bail within the Commonwealth seeking to recommendations before himself abandoning administer justice, in wrestling with the use of cash bail, as follows: question of pre-trial release. …when I was a junior Commonwealth’s The case at hand reached Judge Bernhard attorney and the judge looked down at on appeal from a motion to set reasonable bail me and said, ‘Mr. Herring, what’s your of the indigent defendant, Corey Hunter, who recommendation on bond?’ . . . . “I’d was required to linger in jail for days after his think, “OK, it’s a felony, seems like it arrest solely because of his financial inability ought to be four figures…” to meet the $2,500 cash bail condition. A number of judges and prosecutors around This “pull it out of the air” method of the Commonwealth have already dropped setting cash bail disapprovingly referenced cash bail requirements. Hopefully, those who by Herring, based on custom, instinct, and still require cash bail will agree with Judge arbitrary action, is followed throughout Bernhard, take heed of his reasoning, and the Commonwealth. This system imposes follow his lead. severe suffering on the indigent, who, solely Reform of Virginia’s antiquated and because they are impecunious, must linger unconstitutional cash bail system has in jail, often for months, while awaiting trial. been urged for years. Virginia’s rickety, The defendants in these cases are frequently

32 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 | GENERAL INTEREST www.vsb.org GENERAL INTEREST

Blacks and other minorities, and the present judges within the Commonwealth should system is, in reality, state-imposed racial select any specific terms for release. Further, discrimination. and disturbingly, neither Section 19.2-80 When a defendant is acquitted or the or Section 19.2-123 speak to presumptively charges dismissed, as occurs in a substantial releasing a person on their own recognizance percentage of cases, the end result is that an if the individual poses no risk to the innocent defendant may wind up spending far community, and where there is little risk that more time in jail than if he or she had been the individual will fail to appear for trial. convicted. In addition, he or she will always sustain great personal and family losses, that When a defendant is acquitted or the charges dismissed... may not be repairable. I am personally aware the end result is that an innocent defendant may wind up of a heart-wrenching case where a falsely accused young woman of color lost her job spending far more time in jail than if he or she had been and was evicted from her home, in a case convicted. where she was charged with a crime and arrested and required to remain in jail because Judge Bernhard’s decision that “the she could not meet the cash bail requirement. imposition of the cash or surety bond The case against her (after several . . . would only be the product of resort to adjournments) was dismissed. For her, life as custom, instinct and arbitrary action, and it existed was completely destroyed. When her thus would be an unconstitutional application nightmare in jail ended, she was homeless and of the Virginia statutory bail bond scheme, in without employment. I do not think her case derogation of the Due Process Clause of the was a rare exception. The jailing of indigent United States Constitution,” is a great victory defendants awaiting trial clearly leads to this for all who insist that Equal Justice Under Law type of tragic result. must prevail in Virginia. Virginia Code Section 19.2-80 sets forth It is, however, only a very important the statutory authority for imposing bail. and much needed “stop gap” remedy. The That Section only provides that in any case Constitutional infringement presented by in which an arresting officer does not issue a use of cash bail must be fixed by the General summons, “a law enforcement officer making Assembly. It is urgent that the General an arrest . . . shall bring the arrested person Assembly move with all deliberate speed to without unnecessary delay before a judicial abolish Virginia’s antiquated, unconstitutional officer. The judicial officer shall immediately cash bail system. q conduct a bail hearing and either admit the accused to bail or commit him to jail.” Thus, We welcome opinion editorials from Virginia Section 19.2-80 specifies only for “bail or jail.” lawyers on topics relevant to the legal Code Section 19.2-123 contains the profession and justice. Please send your conditions upon which a judicial officer may submission to Deirdre Norman at dnorman@ impose pre-trial release of one accused of a vsb.org, or call (804) 775-0594. misdemeanor or felony. These conditions expand what is meant by “bail” in Section 19.2-80, in that they allow for “bail or jail,” but Section 19.2-123 provides for conditions not tied to cash: (1) placing the accused in custody of a designated person or organization, (2) placing the person on restrictions, (3) and for a number of additional authorized conditions for release that are specified that may be imposed if Jr. is a well-known attorney, civil deemed necessary to assure appearance at rights veteran, legal reformer, author, and activist for trial, and to monitor a defendant’s pre-trial justice. He is the inaugural recipient of the Virginia conduct. Importantly, there are no directions State Bar’s annual Clarence M. Dunnaville Jr. Award, created in honor of his unceasing devotion to improv- as to when and under what conditions ing diversity and equality in the Commonwealth. www.vsb.org GENERAL INTEREST | VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 33 April 26, 2021 8:30 a.m. – 5:15 p.m.

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• Ethics: Ethical Misadventures in Challenging Times • Ethics: Cybersecurity Ethics for Law Firms: A Brand-New Landscape • Ethics: The Intersection of Ethics and AI in the Practice of Law • Case Management Systems and Client Portals: It’s a Whole New World • Law Practice Tech Tools You Didn’t Know You Needed Until 2020 • The Future of Law Post-Pandemic: A Roller Coaster Evolution • Critical Technology in the Pandemic and Post-Pandemic Practice of Law • Zoom, Teams and Webex for Lawyers and Using Them Securely • Innovative Marketing in a Work-From-Home World (not CLE) • Lawyer Wellness at an All Time Low: Finding the Path Forward to Wellness • New Evidence in Town: Audio and Video, Including from Video Conferences • The Electronic Lawyer: What Tools Are Most Effective and Budget Friendly? • 60 Legal Tech Tips in 60 Minutes Only $50.00 to attend! Please register at: http://bit.ly/2021Techshow #VSBTECHSHOW

Wellness Rebooting Your New Year’s Resolutions: We Are Here To Help by Tracy Winn Banks and Margaret Hannapel Ogden

As we find ourselves a month into 2021, adding a new resolution to our already will provide meaningful encouragement there’s a good chance many of us have full plates, it may be more beneficial to along the way. To select the right person already given up on our New Year’s integrate behaviors that contribute to our or persons, you must know yourself. Do resolutions. According to a 2015 study by personal resolutions into our existing you respond best to words of empathy or U.S. News & World Report1, 80 percent responsibilities. words of challenge, or maybe a little of of us who set goals on January 1 will Make a list of the obstacles that have both? When you have a partner in trials, have “failed” by mid-February, which kept you from realizing your resolutions you gain the advantage of companionship can lead to feelings of resignation and and see what you can learn. Are they and working toward a common purpose. shame in high-achievers like attorneys. logistical, i.e. I don’t have time or space? As a parting thought, remember that Rather than berating ourselves for not Or are they more mental, i.e. I don’t each new day can be a new beginning meeting our aspirational objectives, we know what success would look like? For and an opportunity to put on new can use this time to reflect on why we example, if we resolved to eat healthier, habits and resolutions. Anyone who fell short and adapt our goal-setting but find our children and spouse hungry has achieved anything of significance strategies. Let’s examine three common at the end of an exhausting day, we may had a Day One. For help in setting up causes of “resolution failure,” what they be understandably tempted to turn to new rhythms and choices, consider can teach us about ourselves, and how take-out. But if we involve our family in doing some reading. One great book we we can overcome them to make 2021 a the act of meal planning, shopping, and suggest was written by a fellow attorney, resounding success! cooking, we will better align our personal Justin Earley, The Common Rule: Habits 1. “My goals seem too large, goals with our broader obligations. of Purpose for An Age of Distraction. unrealistic, or unattainable.” We are 3. “I feel alone in the pursuit of There are others. If you want some more high achievers, aren’t we? We are used to this.” This is a tough one. We all can suggestions or ideas for achieving your setting big goals, after all we graduated agree that we have to do the work goals, please contact us. You might just from law school through blood, sweat ourselves but it is certainly a better gain a friend for your journey! q and tears, right? So, when we approach journey if we can do it with someone goal setting, sometimes we bring that else. There is something about same desire for achievement to the supportive, human companionship that Endnotes table. Rather than set huge goals that sweetens any endeavor. Think about 1 Luciani, J. (2015). Why 80 Percent of New Year’s you are forced to abandon, evaluate your goals. Is there someone you could Resolutions Fail. Available at https://health. whether a smaller, albeit significant, goal invite along in the journey? The best usnews.com/health-news/blogs/eat-run/ might be just as satisfying. One coach candidate, in our opinion, is someone articles/2015-12-29/why-80-percent-of-new- has recommended that the true way to who is sympathetic to your struggle and years-resolutions-fail. gain success in goal setting is to set a ridiculously simple goal, stick to it for several weeks and then build on that success to accomplish more. For example, we recently read a recommendation that a better approach to annual goal setting might be to focus on a shorter timetable like 90 days. Interesting concept. Tracy Winn Banks is a program attorney with Margaret Hannapel Ogden is the wellness 2. “My motivation is flagging The Virginia Law Foundation. In her capacity coordinator in the Office of the Executive in the face of obstacles.” Attorneys as a program attorney, Banks works with Secretary of the Supreme Court of Virginia. She tend to be busy people, with important attorneys across the Commonwealth to develop is dedicated to improving mental health and CLE programming across the Estate Planning addressing substance abuse in the legal profession obligations to work, family, and their & Administration, Real Estate, Tax, Non-Profit through education, regulation, and outreach. larger communities. We often place our Organizations, and Elder Law portfolio areas. Ogden began her legal career in the Roanoke outside commitments over our internal She also devotes a significant part of her time in City Commonwealth Attorney’s Office before planning Wellness programming for the legal entering private practice. A native of Washington, goals, such as improving our sleep, community. Banks also maintains the Library D.C., she graduated Phi Beta Kappa from the movement, or nutrition. Rather than of CLEs on Wellness for legal professionals. She University of and earned her J.D. from may be reached at [email protected]. Washington & Lee School of Law.

36 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org VSB NEWS < Noteworthy Stephanie Grana Elected VSB President-elect Stephanie Grana, a partner with the law to litigation and service to the bar. firm of Breit Cantor Grana Buckner Her volunteerism includes past pres- in Richmond, has been chosen as the idencies of the Virginia Trial Lawyers Virginia State Bar president-elect for Association; the American Board of 2021–22, and will take over the pres- Trial Advocates — Virginia Chapter; idency of the Bar from current presi- Lewis F. Powell Jr. American Inns of dent-elect, Jay Myerson, in 2022. Court; and the Metropolitan Richmond Grana was elected in a race against Women’s Bar Association. David Neumeyer, of the Virginia Legal Grana currently serves on the VSB Aid Society in Lynchburg. When she be- Executive Committee, Council for the gins her term, Grana will be the seventh 14th Circuit, the Budget & Finance woman to head the 50,000 lawyers of the Committee, and the Nominating VSB in its 84-year history. Committee. She is also a member of the Grana, a personal injury litigator, Boyd Graves Conference, the Virginia • Recognizing bias wanted to be a lawyer since childhood. Model Jury Instructions Committee, and • Working with judges to enhance Her father and brother were tragically the “Working Group” to study expansion bench/bar relations killed in a plane crash in 2008, making of the Court of Appeals. • Continuing the work of prior Grana a plaintiff and, she believes, a Some of Grana’s goals for her presi- presidents for improved access to more empathetic lawyer in the pro- dency include: justice cess. After attending the University of • Promoting professionalism Grana is married to attorney Scott Richmond for both undergraduate and • Increasing diversity among VSB Bemberis, and they have three children. law school, Grana has devoted her career leadership and committees New Virginia Lawyers Sworn in Virtually For the third time Supreme Court of Virginia Chief Justice State Bar. In the December 2, 2020 cere- since the pandem- Donald W. Lemons. The new lawyers mony, 353 newly licensed attorneys and ic, newly admitted were joined in the ceremony by Virginia 31 reciprocity admittees were sworn in. Virginia lawyers have law school deans, Virginia State Bar Although the ceremonies were been sworn into the President-elect Jay B. Myerson, and VSB virtual, the achievement is very real, Virginia State Bar via Young Lawyers Conference President and we offer our sincere congratulations a virtual Admissions Missy York. and heartiest welcome to our newest & Orientation ceremony. During the first ever virtual A&O lawyers. On January 6, 145 newly licensed Ceremony on June 17, 2020, 151 newly The virtual cermeonies may attorneys and 27 reciprocity admittees licensed attorneys and 81 reciprocity be watched at https://vimeo.com/ were sworn in via videoconference by admittees were admitted to the Virginia event/269965. Be Prepared: National Healthcare Decisions Day If there is one thing that 2020 has taught walking and talking to being on a ven- hcare D us all, it’s anything can happen in the tilator within a day. Without an agent alt ec He is l io blink of an eye. National Healthcare or power of attorney, there is no one to a n n s o i D Decisions Day is April 16 annually, and see that your wishes are being followed t BE a a y this year it is easier than ever to imagine while you are incapacitated. N

the repercussions not only for yourself, Virginia lawyers can take advantage PREPARED but family and friends when you don’t of the information specific to VA for have an advance care plan in place. their clients and themselves athttp:// Many Americans experienced it first- bit.ly/NHDD21. Additionally, The APRIL 16, 2021 hand during the COVID-19 pandemic, Conversation Project has numerous thousands of people have gone from resources available at www.nhdd.org. www.vsb.org VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 37 Noteworthy > VSB NEWS Prince William County Bar Association Honors Local Attorneys

The Prince William County Bar Association recently honored several attorneys with awards for their trial advocacy, professionalism, leadership and pro bono/community service work. Traditionally these awards are announced and presented at the PWCBA’s biggest event of the year—the Dinner Dance. In the wake of COVID-19, 2020 is the first year the PWCBA was unable to hold this event, but the Association persevered and found a new way to honor these attorneys, virtually, via a YouTube Livestream. From PWC Circuit Courtroom three, the Bar membership honored this stellar group of lawyers: Kris Spitler served as the Bar’s Cathy Croft, (left) receives the Arthur W. Sinclair Professionalism Award, presented by Kathy Farrell, (right), her president in 2019 and the Association business partner for over 30 years. recognized her hard work and This award recognizes the efforts of honored Judge Wellington for her dedication with the Past President’s one attorney who organizes programs dedication to justice and the women of Award. Since 1994, an attorney is that provide pro bono legal services Prince William County. honored each year with the Guardian or provides direct pro bono legal Since 1992, the PWCBA has ad litem of the Year Award. For 2019 representation. This year the association honored one attorney each year who the Association honored Ashleigh Izard. honored Andrea Morisi, as the 2019 Pro demonstrates the highest level of honor, Trial Attorney of the Year Awards have Bono/Volunteer Attorney of the Year. integrity, competency and courtesy with been presented since 1989, and honor The Virginia Women Attorney the Arthur W. Sinclair Professionalism attorneys for their trial advocacy skills Association recognizes the commitment Award, named after a founding member in the courts of the 31st Judicial Circuit. and importance of female attorneys of the Prince William County Bar For 2019, the Association honored: who showcase generosity, leadership, Association (1941). The recipient of the Kathryn Fenske, as the Juvenile & trial advocacy skills, and are viewed 2019 Arthur W. Sinclair Professionalism Domestic Relations District Court Trial as a mentors and trailblazers. These Award was Cathy Croft. This year the Attorney of the Year, Robert Harris female attorneys are honored each award was presented by Kathy Farrell, III, as the General District Court Trial year with the Justitia Award, an award an honor for both Farrell and Croft. Attorney of the Year and Brian Boyle given throughout the State of Virginia. For over 30 years, these women have and Mark Crossland were both honored The Prince William County Chapter of practiced law together as partners as Circuit Court Trial Attorneys of the the VWAA presented the 2019 Justitia and friends. As stated by Farrell, Croft Year. Award to Judge Janice Wellington. exemplifies these standards and “she has The Prince William County Bar Judge Wellington’s career spans several helped me personally navigate the many Association prides itself on community decades, and she has mentored many difficulties of a stressful law firm and outreach and engagement, to include the within the Prince William County in the process really taught me how to development and delivery of pro bono Judicial system. In 1990, Janice persevere through these stressful times legal services and need based services Wellington became the first African with some honor and some grace. I have to those in the community. In 2003 American woman to be appointed to the also seen her consistent dedication and the PWCBA established the Pro Bono/ Prince William County bench. Recently commitment to the legal community Volunteer Attorney of the Year Award. retired in July of 2020, the PWC VWAA and our legal profession.”

38 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org VSB NEWS < Noteworthy In Memoriam

William J. Allard Martin Earl Hardy Alan Barry Soschin Great Falls San Jose, CA Springfield April 1944 – April 2020 April 1927 – March 2020 February 1947 – November 2020

Michael Dean Beckler Nancy Litchfield Hicks J. Forester Taylor Harrisonburg Mclean Fishersville January 1958 – December 2020 July 1960 – August 2020 July 1926 – October 2020

Edward Janes Bell III The Honorable Thomas O. Jones Patricia Jeanne Wohl Winchester Richmond Vienna March 1930 – November 2020 November 1941 – January 2021 February 1959 – January 2020

Waverley Lee Berkley III Debra Rae Karnes James M. Young Norfolk Stafford Salem June 1930 – August 2020 April 1955 – April 2020 November 1930 – June 2020

F. Paul Blanock Richard Jarratt Lee Mathews Richmond May 1931 – June 2020 February 1943 – October 2020

Deane Mitchell Burke Charles W. Lyman Scottsdale, AZ Houston, TX November 1955 – December 2019 July 1945 – November 2020

Richard Louis Camaur The Honorable Ronald H. Marks Woodbridge Virginia Beach December 1943 – November 2020 January 1944 – October 2020

Leslie D. Campbell Jr. Larry Lynn Miller Ashland Charlottesville January 1925 – December 2020 August 1957 – December 2020

John Ross Cline Paul Alan Morrison Mechanicsville Warrenton November 1947 – October 2020 June 1958 – November 2020

John D. Corse Thomas Gerard Nolan Charlottesville Charlottesville In Memoriam March 1924 – October 2020 December 1956 – August 2020 If you have a family member, Thomas L Crisman James P. O’Sullivan Sr colleague, or friend who was Dallas, Tx Leesburg August 1941 – August 2020 December 1926 – October 2020 a VSB member and has passed away, please email mem- Stephen C. Glassman Michael Wayne Price Exmore Virginia Beach [email protected] so that we July 1942 – December 2020 November 1943 – October 2020 may update their records and

Munford Page Hall II Robert Marvel Ross include them in In Memoriam. Washington D.C. Woodbridge January 1948 – October 2020 September 1947 – November 2020 www.vsb.org VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 39 Noteworthy Augustus Benton Chafin May 1960 — January 2021

State Senator Augustus Benton “Ben” broke with other Republicans to vote for Chafin, 60, passed away on January the expansion of Medicaid in Virginia 1, 2021 of complications due to in 2018. COVID-19. Senator Chafin was a Respected on both sides of the lawyer, as well as a cattle farmer, from aisle, House of Delegates Minority Russell County. He graduated from Leader Todd Gilbert (R-Shenandoah) East Tennessee State University before said that Chafin “was a fierce advocate receiving his law degree from the for not only his region, but our entire University of Richmond. Commonwealth.” A founder of the The Chafin The Senate Democratic Caucus Law Firm, P.C. in Lebanon, he was praised his “compassion, strength, and first elected to the Virginia House of thoughtfulness.” While members of the Delegates in 2013 and elected to the Legislative Black Caucus praised him state senate in 2014. as “a well-respected legislator and a He advocated for the economy and tireless advocate for his constituents in people of his district, particularly the Southwest Virginia.” coal miners who suffered from the He is survived by his wife, three decline of the coal industry. He was children, and two grandchildren, as well a supporter of health care coverage as his sister, Supreme Court of Virginia for the thousands of low-income Justice Teresa M. Chafin. Virginians in his district, one of the Governor Northam ordered state poorest in the Commonwealth. He flags lowered in his honor.

Florence W. Madden December 1934 — October 2020 Florence W. Madden, 85, a retired with distinction from Georgetown Springfield attorney and former University Law School in 1974. She Principal Deputy General Counsel of became a member of the Virginia State the United States Air Force, died quietly Bar and was the first female attorney to at her home on October 26th. join the Department of the Air Force Madden was born during the Great General Counsel where she focused on Depression in New York City. The matters of intelligence, national security, youngest of six children, she overcame and military personnel. Among her economic disadvantage and graduated professional achievements, she was from Ohio University in 1956, especially proud of her work on behalf including studying a year abroad at the of American prisoners of war. Over University of Paris, La Sorbonne. From her career she rose to become Principal 1957 to 1963 she served as a U.S. Air Deputy General Counsel. Force officer and was a distinguished In retirement, she helped adults earn graduate of Squadron Officer School. their high school equivalency degrees She was stationed at Ramstein Air Base, and children with their grade school Germany when she met and married lessons. Thomas Madden, also a U.S. Air Force In recognition of her service as a officer. military officer, her interment ceremony While raising her family, she will be held at Arlington National returned to school and graduated Cemetery.

40 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org VSB NEWS < Noteworthy Joan Marie O’Donnell August 1949 — November 2020 Joan Marie O’Donnell died peacefully her clients, opposing counsel, and the in her sleep on November 16, 2020, in judges she appeared before. O’Donnell Petersburg after a year-long battle with litigated cases all the way up to the cancer. She was 71 years old. Supreme Court of Virginia and the Born in Hollis, Queens, New Supreme Court of the United States. York on August 14, 1949, O’Donnell The local legal community will miss her graduated from Immaculata College in leadership. Philadelphia, Pennsylvania, where she In addition to her legal career, played varsity tennis and basketball. O’Donnell was a devoted mother to A devoted mother to four, her children. She helped to found both O’Donnell’s “fifth child” was her work the Jordan Point Country Club Swim as a child welfare lawyer. O’Donnell Team and the Prince George Cyclones represented almost every Department of Travel Soccer Team (and was a coach for Social Services’ agency from Petersburg both teams). Later in life, she enjoyed to Emporia over the past 30 years. She traveling the world with her husband, was a tireless and devoted advocate to Phil, to visit their children and their the abused and neglected children of families, and sneaking in a round of golf the region, and was widely respected by wherever possible.

Mark B. Sandground Sr. June 1932 — December 2020 Mark B. Sandground Sr. passed away Washington as well as contractors December 30, 2020 from cancer. He was doing business in the U.S. from 88 years old at the time of his death and abroad. still practicing law with his own firm. He In addition to his law practice, he was a member of the Virginia State Bar helped found several D.C. notable and the District of Columbia Bar for well eateries in the 1970s including La over 60 years. Niçoise, and the D.C. branch of the Born June 6, 1932, Sandground Palm Restaurant. He was especially graduated from the University of proud of his long association with the Michigan in 1952 and from the late, great Jean-Louis Palladin and University of Virginia School of Law great, late Michel Richard, and the in 1955. He received an Honorary current luminary Fabio Trabocchi. Doctorate from Johnson & Wales in He was never happier than while at 2000. Sandground practiced throughout the table of a brilliant chef. his entire legal career in the Washington He was especially well-known DC area, officing in the District for 30 in the Fairfax County Bar where he years before locating in Tysons Corner. was a Circuit Court fixture at Friday He founded a series of law firms mornings ‘motions practice,’ often specializing in matrimonial law. Well- juggling multiple matters before known in the field, he represented several different judges. His rivals Sandground’s son, Mark B. senators, congressmen, cabinet members, feared his tactics which were sometimes (“Chipp”) Sandground, is an attorney sports and entertainment celebrities, aggressive (he relished scheduling in Washington, D.C., at Mallios O’Brien well-known (and obscure) artists, depositions on weekends and holidays), & Sandground, and his granddaughter, and even a few rock stars. He also but many of his colleagues were pleased to Lauren Sandground, is an attorney in the frequently practiced outside his specialty, be in court with him because of his passion, Washington, D.C., office of KL Gates. representing foreign governments in commitment, and his irreverent wit. www.vsb.org VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 41 Noteworthy > VSB NEWS Get on the Ballot for Bar Council Elections Bar Council, the Virginia State Bar’s Circuit 4 1 seat (incumbent is not eligible for re-election) governing body, will hold its annual elections by electronic ballot in April for Circuit 8 1 seat (incumbent is not eligible for re-election) terms beginning July 1. Virginia lawyers Circuit 12 1 seat (incumbent is eligible for 2nd term) who wish to be on the ballot must be ac- 4 seats (2 incumbents are eligible for 2nd term; 2 incumbents are not tive members in good standing of their Circuit 13 circuit as of March 15, 2021. eligible for re-election) Make sure your contact information Circuit 14 1 seat (incumbent has been elected to serve as president-elect) is current in the Bar’s records before Circuit 16 1 seat (incumbent is not eligible for re-election) March 15 to ensure that you are eligible 2 seats (1 incumbents is eligible for re-election; 1 incumbent will not to run and to vote in your circuit — and Circuit 17 that you receive the ballot. seek re-election) In order to run, a lawyer must: 2 seats (1 incumbent is eligible for 2nd term; 1 incumbent is not Circuit 18 • file a nominating petition signed by eligible for re-election) not fewer than ten other members 6 seats (3 incumbents are eligible for 2nd term; 2 incumbents are not eligible to vote in the circuit Circuit 19 (www.vsb.org/docs/petition.pdf), eligible for re-election; 1 incumbent will not seek re-election) • write a statement of qualifications Circuit 21 1 seat (incumbent is eligible for 2nd term) not exceeding 150 words,* and • provide a digital headshot.** Circuit 23 1 seat (incumbent is not eligible for re-election) File these three things with the execu- Circuit 28 1 seat (incumbent is not eligible for re-election) tive director at [email protected] on or Circuit 30 1 seat (incumbent is eligible for 2nd term) before April 1, 2021. Council members may serve two body of the email in a way that allows for easy In the statement, describe what is it copy and paste. about your background that makes you 3-year terms but must be re-elected to ** Please do not send a headshot that is in-line or well suited to the position and what you serve a 2nd term. The chart above shows embedded in the email or statement. Rather, which circuits have seats available for attach it to the email in JPEG/JPG/PNG format. hope to accomplish as a member of bar The photo should preferably be just your head election. and shoulders. council. View an example of what voters see * Please do not send statements in pdf form. Use a at www.vsb.org/site/members/13th_circuit. text program like Word or write directly into the

The Nominating Committee seeks active and in-good-standing lawyers for three important bodies. Send a résumé and short statement of interest by March 26 to Asha Holloman at [email protected] or by mail to the Bar. The Clients’ Protection Fund Board: The Judicial Candidate Evaluation The Executive Committee: • 3 lawyer vacancies (1 current at- Committee: • 6 vacancies (4 current members large member who is not eligible for • 2 lawyer vacancies (2 current are not eligible for reappointment; reappointment; 1 current at-large members from the 2nd and 7th 2 current members are eligible for member and one current member disciplinary districts are not eligible for reappointment) from the 7th disciplinary district who reappointment) • Filled from ranks of the Bar Council are eligible for reappointment) • May serve one full 3-year term (no • 1-year terms with potential • May serve 2 consecutive 3-year terms reappointment) reappointment

Join the Leadership of Your Virginia State Bar Since 1938, the Virginia State Bar has operated as an administrative agency of the Supreme Court of Virginia, unifying Virginia lawyers into a mandatory state bar. Its mission is fulfilled by hundreds of Virginia lawyers who volunteer their time to serve on the many committees and boards that work to improve the legal system in the Commonwealth. For more information, go to bit.ly/barleader.

42 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org Access to Legal Services Of Cancer, COVID, and You: Lawyers Can Make a Huge Difference in Tough Times by Lisa Allen

Cancer. It is a devastating diagnosis. For phones have been ringing. Our clients to continue working. Sometimes, an em- people who are one or two paychecks still need estate planning services. For ployment lawyer can only explain to the from financial disaster, a cancer diag- those who meet established financial cancer patient what his options are and nosis can be the catalyst for a blur of guidelines, we reach out to our network help him select the best course of action. escalating trouble. “Chemo-brain” and of volunteers and find them a pro bono Our clients are grateful for the advice. exhaustion make working more difficult. attorney; those who exceed our guide- Right now, employment attorneys are Reduced income can mean housing lines get contact information for three slamming busy, but we desperately need instability and food insecurity. Lost jobs attorneys who, for a fee, can help. We your help. Insurance attorneys, public impact health insurance coverage at a are grateful that many of these attor- benefits attorneys, estate planners, elder time when it is most vital. Medical bills neys have been willing to meet clients law, and housing experts, you are all mount, applications for disability are in hospitals when necessary. We have busy now. This may seem like a difficult slow to be approved, relationships get gotten more requests than ever for help time to take on pro bono cases, but I as- strained, and running underneath it all from financial planners, as clients make sure you, the neediest clients are feeling is an uncomfortable awareness that this choices between competing priorities the pressure like never before. Time you disease might be fatal. for scarce dollars. Social security disabil- spend in your own field, in your comfort Can you imagine the stress of cancer ity applications proceed at a glacial pace, zone, helping clients who are too sick during the COVID pandemic? Imagine and people who get denied benefits need and too overwhelmed to advocate for going into a hospital for daily radiation the help of attorneys — appeals need to themselves is deeply appreciated. or biweekly chemotherapy infusions be filed promptly, but the time before a When we help these patients, we now. Hospitals are scarier than ever, hearing may be long. Volunteer attor- are helping the grandmother, the with visitors limited or prohibited, neys who can help these clients are es- grocery clerk, the hairdresser or the employees in full PPE doing symptom pecially valuable during this pandemic. child’s coach with cancer. Are you will- screening at every door. Supportive Tenants still need attorneys to encour- ing to help them? In honor of the people counseling groups are remote or sus- age needed repairs. Lawyers who can you know who have fought cancer, can pended. At home, imagine helping your help a client navigate private insurance you pick up a pro bono case? children with virtual school while fight- denials of benefits are in demand, too. Contact clientservices@cancerlinc. ing nausea from chemotherapy. Imagine The biggest challenge lately has org about becoming one of our volun- your employer is fighting to stay afloat been in the field of employment law. teer attorneys, or to connect a cancer during the pandemic and wants you We have recently seen clients who have patient you know with our services. q back in the office. How do you balance a been fired at the end of short-term compromised immune system with the disability leave, without being given the need to keep your job? While we all find option to return to work. One client was the pandemic challenging, for cancer told by Virginia unemployment to apply patients, it is significantly more so. in North Carolina, North Carolina told These patients need excellent medi- him to apply in Virginia. He was too cal care, but medical care isn’t enough. sick to be the ping pong ball between Sometimes the patients’ biggest wor- the states and needed an advocate. We ries are those a lawyer can address. have clients who are afraid to ask for ac- CancerLINC, a small, Richmond-based commodations for their protection. We nonprofit organization, has been provid- have clients who have been fired after ing legal assistance to cancer patients for many years of excellent evaluations, who more than 24 years. We connect cancer wonder what their options are. While Lisa Allen, is the client patients to our network of pro bono Virginia employers have wide berth to services attorney for CancerLINC. She can be financial planners and attorneys for help terminate employees, often a simple reached at with a wide range of matters. inquiry from a lawyer can tip the scales [email protected]. During this pandemic, CancerLINC’s in the employee’s favor and enable him www.vsb.org VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 43

A COMMENDATION AND PROCLAMATION OF THE ACCESS TO JUSTICE COMMISSION OF THE SUPREME COURT OF VIRGINIA

JANUARY 12, 2021

WHEREAS Access to Justice is a fundamental and essential right in a democratic society, in our Commonwealth and in our Nation;

WHEREAS Access to Justice is entirely dependent on a functioning Court System;

WHEREAS a functioning Court System requires the presence, dedication and professionalism of a multitude of Civil Servants, including Clerks, Deputy Clerks and other Clerks’ Office Staff; Judges; Judicial Assistants; Guardians Ad Litem; Court Reporters; Foreign Language Interpreters; Magistrates; Sheriffs, Sheriffs’ Deputies and other Sheriffs’ Office Staff;

WHEREAS these Civil Servants provide courthouse and courtroom security, operate the Clerks’ Offices, conduct hearings, trials, appeals and all other judicial proceedings, and provide critical support for all such proceedings;

WHEREAS maintaining a functioning Court System and providing Access to Justice in the Commonwealth during the COVID-19 pandemic has required these Civil Servants to interact on a daily basis with lawyers, litigants, witnesses, members of the public, incarcerated individuals and others involved in the judicial process;

WHEREAS the personal interactions required of these Civil Servants to maintain a functioning Court System and provide Access to Justice during the pandemic have exposed them to greater risk of contracting the COVID-19 virus;

WHEREAS notwithstanding the increased risk they faced, these Civil Servants have made, and continue to make, substantial personal sacrifices necessary to keep the Commonwealth’s Court System open and functioning, thus ensuring that Access to Justice has been maintained and preserved during the COVID-19 pandemic;

WHEREAS these Civil Servants have been the front-line, first responders for the Commonwealth’s Court System so that Access to Justice has been maintained and preserved for citizens of the Commonwealth during the COVID-19 pandemic;

ACCORDINGLY, the Access to Justice Commission hereby recognizes and honors all Civil Servants working in support of Virginia’s judicial system for their diligent presence, dedication, professionalism and sacrifice during this pandemic to ensure that Access to Justice has been preserved in the Commonwealth; and

ACCORDINGLY, the Access to Justice Commission hereby COMMENDS these Civil Servants throughout the Commonwealth of Virginia, PROCLAIMS its deep gratitude for their service and ENCOURAGES all, including specifically lawyers and litigants, who have benefitted and all who will benefit from the diligent presence, dedication, professionalism and sacrifice of these Civil Servants during this pandemic to take the opportunity to express their admiration and gratitude for the work these Civil Servants have done to maintain a functioning Court System and thereby to preserve Access to Justice for all Virginians.

4-�-�/ The Honorable S. Bernard Goodwyn , Justice Supreme Court of Virginia

Co-Chairs, Virginia Access to Justice Commission

Virginia Access to Justice Commission Members

Andrea L. Bridgeman, Esq. The Honorable Mary B. Malveaux, Judge Court of Appeals of Virginia The Honorable Deborah V. Bryan, Judge David Neumeyer, Executive Director Virginia Beach Juvenile and Domestic Relations Virginia Legal Aid Society District Court Lonnie D. Nunley, III Tara L. Casey, Director Hunton Andrews Kurth LLP Harry L. Carrico Center for Pro Bono Service University of Richmond School of Law Scott C. Oostdyk McGuire Woods Karl A. Doss, Deputy Director The Honorable Daniel E. Ortiz, Judge Legal Services Corporation of Virginia Fairfax Circuit Court

Crista Gantz, Director Stephen Otero Access to Legal Services, Virginia State Bar Senior Vice President & Chief Counsel, Litigation & Employment Chaz W. Haywood, Clerk of Court Capital One Rockingham County Circuit Court Bryan Slaughter MichieHamlett The Honorable Tonya Henderson-Stith, Judge Hampton General District Court Gail Warren State Law Librarian Pamela Kestner Supreme Court of Virginia Deputy Director of Housing Ray White, Executive Director Department of Housing and Community Virginia Law Foundation Development

2 Law Libraries Keeping Up to Date with Healthcare Law Developments by Gregory Stoner

In recent years, the health care industry discussing developments in health and Act, cybersecurity, and life sciences. has grown both in scale and complexity. healthcare law. Accessible on the ABA A noteworthy feature of this service Keeping abreast of evolving laws and website for members of the Health Law is the ability to customize notification regulations, as well as developments in Section, this content is also available via emails by topic and/or jurisdictions of multiple related fields, is increasingly other third-party services such as Lexis, interest. Subscribers may access content complicated. Fortunately, there are Westlaw, and HeinOnline. online via the Wolters Kluwer Cheetah numerous online and print news platform or via a mobile app. resources available to today’s health Virginia Medical Law Report care lawyer. While some are broad https://valawyersweekly.com/ Bloomberg Law in their scope and coverage, others vamedicallaw/ https://news.bloomberglaw.com/health- are highly focused and targeted to The Virginia Medical Law Report is law-and-business specialists practicing in specific areas of a free, bi-monthly newspaper from Bloomberg Law’s Health Law & Business the law. The list that follows highlights the publishers of Virginia Lawyers News is an online service featuring both freely available and subscription- Weekly. Full text articles and a digital news and important legal developments based resources designed to help edition of the paper are accessible at affecting the health care industry. attorneys stay attuned to important the noted website. Readers may also Coverage focuses on recent opinions, developments. be interested in registering to receive legislation, regulations, and enforcement the accompanying Virginia Med Law actions. A subscription is required to American Health Lawyers Association Alert, an email alert featuring legal access this content. (AHLA) Publications news developments of interest to https://www.americanhealthlaw.org/ doctors, health care providers and legal Law360 publications professionals. https://www.law360.com/health Members of the American Health Health Law360 provides daily news, Lawyers Association can avail Modern Healthcare expert insight, and analysis on the themselves of several current awareness https://www.modernhealthcare.com/ health care industry. In many instances, resources, including Health Law Daily Modern Healthcare is a longstanding, links to content such as complaints, and Health Law Weekly. Health Law weekly news publication providing petitions and decisions are included Daily is a customizable email news coverage of national and regional in news articles. A daily newsletter of service that provides a daily email healthcare business news. While article headlines is available to all, but a featuring articles from major media most content on their website is subscription is required to read the full outlets throughout the country. limited to subscribers, some material text of articles (free trials available). q Health Law Weekly, another electronic is accessible without a subscription. newsletter, features compiled summaries Interested individuals may sign up for of important developments from free e-newsletters and alerts on the the week. Other items of potential publisher’s website. Print, digital, and interest to members include the weekly combination subscriptions are available. electronic newsletter “Newsstand on State Health Law Issues” and the Wolters Kluwer Health Law Daily monthly member magazine Health Law Health Law Daily is a subscription- Gregory Stoner, library manager at Connections. based, daily electronic news publication McGuireWoods in Richmond, has bach- featuring breaking news alerts elor’s degrees in historic preservation and The Health Lawyer (ABA) and reports of noteworthy court American Studies from the University of Mary Washington, a master’s degree in history from https://www.americanbar.org/groups/ decisions, legislation, and regulatory Virginia Commonwealth University, and health_law/publications/health_lawyer_ developments. This service covers a master’s in information science from the home/ a wide range of topics of interest to University of Tennessee. He is a member of the Virginia Association of Law Libraries and other The Health Lawyer is a quarterly practitioners including Medicare, professional groups that advance the work of publication featuring in-depth articles Medicaid, HIPAA, the False Claims law librarians.

46 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org Technology and the Future Practice of Law Four Trends That Will Shape Legal Practice in 2021 and Beyond by Lisa S. Brook

The onslaught of the COVID-19 pan- workforce. Many law firms have come toward full and equal participation in demic forced us to retreat, regroup, to rely on temporary, contract, and free- the Bar. But the numbers of women, and and rethink in 2020. These challenges lance roles to supplement the existing especially women of color, in leader- also created unparalleled opportunities workforce. ship and management positions, show for change in 2021. These four trends With law firms focusing on the client that women are underrepresented. The inform our expectations in 2021 and experience, back-office functions are future holds great promise for change. beyond: moving to the cloud. Virtual assistants Legal professionals are committed to provide instantaneous responses, and looking at their internal structures and 1. Customized Client Experience remote employees increase the efficiency historical data to come to an under- of growing firms. standing of barriers that have been The drastic changes of the past year The gig economy has redefined every created for women and women of color.5 forced law firms to become nimble—re- aspect of society from grocery shopping If these commitments remain strong, ducing nonessential costs and overhead, to accounting, and the modern law firm the trend will likely see higher levels of while designing systems to increase is no different. The legal workforce is engagement with recruitment, retention, client engagement. rapidly changing to support clients, both training, and opportunities for lawyers Many lawyers have strengthened virtually and in-person. Temporary, and law students who have been histori- client relationships through sharing per- contract, and freelance employees allow cally marginalized. sonal experiences and lessons learned. firms to efficiently scale up or down.3 Virtual meetings are the norm, not the Adapting to these changes will 4. Access to Justice exception. Without the expense and require firms to remain vigilant to main- The record-breaking unemployment trouble associated with travel and traffic, tain client confidence and security while lawyers and clients who meet face-to- rates, housing crisis, and reduced court embracing the opportunity to create services have increased the barriers to face virtually find increases in produc- better client experiences. tivity and efficiency.1 legal services for many in need. Clients have also come to expect the Innovative solutions may begin to 3. Diversity, Inclusion, and Equity revolutionary full service that technol- bridge the gap. Researchers with the ogy allows. Paperless workflows keep a Issues surrounding the historic struggle American Bar Foundation are using clear and consistent record of commu- for racial justice and equity came to the data science to understand how people nications. Chatbots automate customer fore in 2020. Surveys showed that 72 seek legal help on the Internet. They interactions to provide immediate, percent of legal professionals believe personalized responses with a human the U.S. judicial system suffers from Tech continued on page 56 touch. Artificial intelligence performs systemic racism, 65 percent believe an increasing number of legal tasks that the race or ethnic background for clients, from legal research, doc- of a person significantly affects their ument review, billing, and litigation ability to receive fair outcomes for their support, to contract drafting, due legal issues, and 60 percent believe the diligence, and even jury screening.2 race or ethnic background of a person As client expectations shift, changes significantly affects their opportunity to in communication and efficiency in the pursue a career in the legal profession.4 legal industry appear to be permanent. This past year, businesses, individuals, Lisa S. Brook practices with the Personal lawyers, and courts made unprecedent- Injury Group of MichieHamlett in ed antiracism statements. They pledged Charlottesville. In addition to representing 2. Virtual Staffing in a Post-Pandemic plaintiffs in federal and state courts, Brook World to promote diversity and inclusion in all is the content editor for the American aspects of their practices, spotlighting a Association for Justice Section on Toxic, With the rapid changes in technology shared vision for change and growth in Environmental, and Pharmaceutical Torts and shifts in staff demographics, we Blog, and chair of the VTLA Women’s the future. Caucus. Brook may be reached at have entered the age of the distributed Women continue to make progress [email protected]. www.vsb.org VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 47 Risk Management The Potential Hazards of the Co-Counsel Relationship by Mark Bassingthwaighte

Co-counsel relationships are sometimes was the most horrific experience of his reliability. formed “on the fly” meaning that no career, he was able to acknowledge that • Have a formal written co-counsel thorough discussion as to who will be his own assumptions helped create that agreement that documents the roles responsible for whatever occurs. This nightmare. and responsibilities of each attor- can be disastrous if both attorneys Perhaps there was a time when, out ney. This agreement should address assume the other will meet a critical of professional courtesy, we could as- issues such as who will do what, deadline and then neither actually files sume that everything would be fine and how disagreements will be resolved, suit. Oops! It can get even messier if that our professional colleagues were all who gets paid what and when, who one of those two attorneys happens to competent. Sadly, those days are long will hold client funds, who will bill be uninsured. Heaven forbid if the one gone. Consider that in an ABA report the client, how will expenses be who is uninsured is an out-of-state released in 2016, 53.8 percent of all paid, who discusses expense deci- attorney who got you involved solely malpractice claims during the period sions with the client, how will mon- to act as local counsel. And here you of 2012–2015 were the result of a ies be split if the client only partially thought you were just along for the ride substantive legal error.* Running with pays, etc. How the negotiation over with your assumed duties limited to assumptions about the competency or the co-counsel agreement proceeds serving as the mail drop. This is just one reliability of any attorney you are about may help you decide whether the example of the hazards that can arise in to co-counsel with can lead to serious two of you can work well together. co-counsel relationships. malpractice and ethical trouble should Consider also documenting your Here’s another. Local counsel had something go terribly wrong. Under- roles and responsibilities with the worked with an out-of-state firm on a stand that if you and your co-counsel client if for no other reason than to number of matters over the years and share joint responsibility and/or are avoid having assumptions in play the work done by this out-of-state firm splitting the fee on the matter at hand, there as well. Written documenta- was consistently of high quality. As a then you both owe undivided loyalty tion of roles should always be given result, local counsel became less and to your mutual client. This means that to the client if one of you is going less vigilant in staying on top of ac- your client will look to hold you both to have a very limited role in the tive matters being handled by the out accountable for all that happens should matter. of-state firm, eventually getting to the anything go wrong. With all this in • Commit to tracking all critical point where he just signed documents mind, here are a few practice pointers deadline dates on all co-counsel or made an appearance with out-of-state that can significantly reduce your expo- matters regardless of your level of counsel when necessary. Eventually one sure to these kinds of problems if taken involvement and follow up with of these matters ended up going to trial. to heart. your co-counsel to either confirm When the judge entered the courtroom • When considering entering into a you will meet your specific dead- he unexpectedly informed the out-of- co-counsel relationship with an at- line or to make certain that your state attorney that certain documents torney about whom little is known, co-counsel will meet hers. This is were not in order and as a result the investigate the attorney before particularly important on those out-of-state attorney was not going committing to the relationship. At matters where your involvement is to be able to try the case. The judge a minimum, confirm the lawyer is going to be limited to nothing more then turned to local counsel and said admitted to practice in the jurisdic- than your serving as a local contact “you’re up.” Due to his total depen- tion and conduct an internet search who will eventually receive some dence on the efforts of the out-of- of the attorney’s name. You might type of referral fee. Again, remem- state firm, local counsel was com- also ask for recommendations or ber that as co-counsel you are pletely unprepared; but with no other references, conduct a background jointly responsible and liable for the options he had to step up and try the check, interview the attorney, and/ client’s matter. There really isn’t any case. It was apparent to everyone in the or contact area judges or attorneys halfway with this. If lead co-coun- courtroom, including the client, just who practice in the same field in sel misses a deadline, you’ve got a what had happened. While the local order to ask about prospective problem. This is why attorneys who attorney reported that this experience co-counsel’s qualifications and decide to exit a co-counsel relation-

48 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org ship exit completely to include forfeiting any referral fee. Responsibility and liability does come with the money. • Finally, make certain that your prospective co-counsel is adequately insured and do not accept a verbal assurance. I have had attorneys tell me that they will say they are in- sured to get work when in fact they are practicing without any coverage. Financial pressures in competitive markets can result in certain attorneys being forced to take financial risks. This means you do need to get written proof that the co-counsel is adequately covered. A simple swap of a copy of everyone’s declaration page to their malpractice policy would suffice. If you find it hard to have this conversation, Mark Bassingthwaighte, ALPS risk manager, has conducted more than 1,000 law firm risk manage- place the responsibility on your malpractice carrier. A ment assessment visits, presented numerous continu- request framed as “my malpractice carrier has advised that ing legal education seminars throughout the United I obtain written verification of your coverage” can help. States, and written extensively on risk management q and technology. His webinar on Best Practices for ______Client Selection in the ALPS CLE library is at *Profile of Legal Malpractice Claims 2012–2015, ABA http://alps.inreachce.com. He can be contacted at: Standing Committee on Lawyer’s Professional Liability [email protected]. 2016

New Year’s Resolution: Join the VLRS and let them handle the pre-screening of potential clients so that they may provide me referrals to help build my law practice.

www.vsb.org VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 49 Virginia Lawyer Register

DISCIPLINARY SUMMARIES the Commonwealth of Virginia for one year, with terms. The suspension was based on his conviction of a Crime in Hanover County. This matter came before the Board as an accepted The following are summaries of disciplinary actions for viola- Agreed Disposition pursuant to Rules of Court Part 6, Section tions of the Virginia Rules of Professional Conduct (RPC) or IV, Paragraph 13-6.H of a Rule to Show Cause issued pursuant another of the Supreme Court Rules. to Rules of Court Part 6, Section IV, Paragraph 13-22. Copies of disciplinary orders are available at the link pro- http://www.vsb.org/docs/Jones-120320.pdf vided with each summary or by contacting the Virginia State Michael Denis Kmetz, Esq Bar Clerk’s Office at (804) 775-0539 or [email protected]. VSB Virginia Beach, VA 23467 docket numbers are provided. 19-022-115796 By Order entered Dec. 11, 2020, the Virginia State Bar Disciplinary Board suspended Michael Denis Kmetz’s license CIRCUIT COURT to practice law in the Commonwealth of Virginia for two years effective Oct. 24, 2022, for misconduct regarding his duties of Stephen A. Strickler competence, diligence, and communication. This suspension Virginia Beach, VA 23452 will run consecutively to a two-year suspension that was effec- 17-022-108407 tive on Oct. 23, 2020, and was imposed in VSB Docket No. By Order entered October 21, 2020, a three-judge panel sit- 19-000-116040, for a violation of terms set forth in a previous ting in the Circuit Court for the City of Virginia Beach sus- case (VSB Docket No. 18-022-109905). pended Stephen A. Strickler’s license to practice law in the http://www.vsb.org/docs/Kmetz-122920.pdf Commonwealth of Virginia for a period of six months effective November 27, 2020, for two violations of professional rules that Bruce Howard Matson govern conflicts of interest. Richmond, VA 23229 http://www.vsb.org/docs/Strickler-123020.pdf 20-033-117567 Effective November 16, 2020, the Virginia State Bar Disciplinary DISCIPLINARY BOARD Board revoked Bruce Howard Matson’s license to practice law in the Commonwealth of Virginia based on his affidavit consent- OlaDipo Akinwunmi AkinDeko ing to the revocation. By tendering his consent to revocation Springfield, VA 22150 at a time when allegations of misconduct are pending, Matson 21-000-120620 acknowledges that the material facts upon which the allegations Effective December 11, 2020, pursuant to the Rules of the of misconduct are predicated are true. Supreme Court, Part Six, Section IV, Paragraph 13-24, the http://www.vsb.org/docs/Matson-111720.pdf Virginia State Bar Disciplinary Board issued an indefinite sus- pension of Oladipo Akinwunmi AkinDeko’s license to practice Jacob Leon Parrott law in the Commonwealth of Virginia based on his indefinite Myrtle Beach, SC 29579 suspension by the United States District Court for the District 21-000-120967 of Maryland on December 11, 2019. Effective November 19, 2020, the Virginia State Bar Disciplinary http://www.vsb.org/docs/AkinDeko-122120.pdf Board revoked Jacob Leon Parrott’s license to practice law in the Commonwealth of Virginia. This was an agreed disposition for William Franklin Burton a reciprocal revocation, based on his August 12, 2020, disbar- Chevy Chase, MD 20815 ment from the practice of law by the Supreme Court of South 21-000-121116 Carolina. Effective November 12, 2020, the Virginia State Bar Disciplinary http://www.vsb.org/docs/Parrott-111920.pdf Board revoked William Franklin Burton’s license to practice law in the Commonwealth of Virginia. This was an agreed disposi- Kurt Joseph Pomrenke tion for a reciprocal revocation, based on his October 13, 2020, Abingdon, VA 24210 disbarment from the practice of law by the Court of Appeals of 21-000-121199 Maryland. Effective December 28, 2020, the Virginia State Bar Disciplinary http://www.vsb.org/docs/Burton-111320.pdf Board revoked Kurt Joseph Pomrenke’s license to practice law in the Commonwealth of Virginia based on his affidavit con- Gordon Bradford Jones senting to revocation. By tendering his consent to revocation at Falls Church, VA 22042 a time when allegations of misconduct are pending, Pomrenke 20-000-118987 acknowledges that the material facts upon which the allegations Effective July 6, 2020, the Virginia State Bar Disciplinary Board of misconduct are pending are true. suspended Gordon Bradford Jones’ license to practice law in http://www.vsb.org/docs/Pomrenke-122820.pdf

50 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org Virginia Lawyer Register

DISTRICT COMMITTEES Sam Goldstein Washington, D.C. 20001 Paul Joseph Bohnet 20-052-118130 Virginia Beach, VA 23452 Effective December 7, 2020, the Fifth District, Section II 20-021-118602 Subcommittee of the Virginia State Bar issued a public repri- Effective January 12, 2021, the Second District, Section I mand without terms to Sam Goldstein for violating professional Subcommittee of the Virginia State Bar issued a public repri- rules that govern unauthorized practice of law; multijuris- mand with terms to Paul Joseph Bohnet for violating profes- dictional law. This was an agreed disposition of misconduct sional rules that govern diligence, communication, fairness charges. to opposing party and counsel, and Bar admission and disci- http://www.vsb.org/docs/Goldstein-120820.pdf plinary matters. This was an agreed disposition of misconduct charges. http://www.vsb.org/docs/Bohnet-011221.pdf

DISCIPLINARY PROCEEDINGS

Respondent’s Name Address of Record Action Effective Date

Circuit Court Stephen A. Strickler Virginia Beach, VA Six-Month Suspension November 27, 2020

Disciplinary Board OlaDipo Akinwunmi AkinDeko Springfield, VA Indefinite Suspension December 11, 2020 William Franklin Burton Chevy Chase, MD Revocation November 12, 2020 Gordon Bradford Jones Falls Church, VA One-Year Suspension With Terms July 6, 2020 Michael Denis Kmetz Virginia Beach, VA Two-Year Suspension October 24, 2022 Bruce Howard Matson Richmond, VA Revocation November 16, 2020 Jacob Leon Parrott Myrtle Beach, SC Revocation November 19, 2020 Kurt Joseph Pomrenke Abingdon, VA Revocation December 28, 2020

District Committees Paul Joseph Bohnet Virginia Beach, VA Public Reprimand With Terms January 12, 2021 Sam Goldstein Washington, D.C. Public Reprimand December 7, 2020

Suspension – Failure to Pay Disciplinary Costs Effective Date Lifted Jeffrey Brian Bailey Richmond, VA December 23, 2020 William Franklin Burton Chevy Chase, MD December 29, 2020 James McMurray Johnson Woodbridge, VA December 30, 2020 January 7, 2021 Michael Denis Kmetz Virginia Beach, VA January 6, 2021 Larry Lynn Miller (deceased) Charlottesville, VA December 1, 2020 Chung Suk Oh Falls Church, VA December 4, 2020 John B. Russell, Jr. Bon Air, VA December 3, 2020 Jon Edward Shields Manassas, VA December 16, 2020

Suspension – Failure to Comply with Subpeona Effective Date Lifted OlaDipo Akinwunmi AkinDeko Springfield, VA November 13, 2020 Barry Ray Taylor Chesapeake, VA December 8, 2020

Summary Suspension – Reciprocal Effective Date Lifted Jacob Leon Parrott Myrtle Beach, VA November 12, 2020

www.vsb.org VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 51 Virginia Lawyer Register

NOTICES TO LAWYERS Supreme Court approved amendments to Rule 1.17, Rule 1.18, Rule 5.5, and Paragraph 13 On December 23, 2020, the Supreme Court of Virginia Supreme Court of Virginia Issues Sixteenth Judicial approved several amendments. The Supreme Court of Virginia Emergency Order approved amendments to Rule 1.17, Rule 1.18, and Rule 5.5. On January 19, the Supreme Court of Virginia issued it Effective immediately. The Court also approved amendments sixteenth judicial emergency order in response to the Covid-19 to the Rules of the Supreme Court of Virginia Part 6 Section pandemic. The unanimous order, extends the period of judicial IV, Paragraph 13-6.D. Effective February 22, 2021. emergency until February 14, 2021.www.vsb.org/site/news/ www.vsb.org/site/news/item/amendments_rule1.17_1.18_5.5_ item/scv_16th_judicial_emergency para13

Court of Appeals of Virginia Issues Fourth COVID-19 Supreme Court of Virginia Approves LEO 1890 After VSB Order Revision and Amends Rule 4.2, Comment [7] On November 23, 2020, the Court of Appeals of Virginia On January 6, 2021, the Supreme Court of Virginia made issued a Fourth Order extending its August 31, 2020 Third amendments to the Rules of Court - Part Six, Section II, Rule Order until at least April 30, 2021, as a result of the COVID-19 4.2, Comment [7]. The Court also approved amendments pandemic. to LEO 1890, concerning communications with represented www.vsb.org/site/news/item/CAV_fourth_covid_order persons. The changes are effective immediately. www.vsb.org/site/news/item/SCV_approves_leo_1890_after_ vsb_revision Supreme Court of Virginia Amends Part 1 Rules Clarifying Usage of “Shall” Supreme Court of Virginia Approves LEO 1850 and Amends On November 23, 2020, the Supreme Court of Virginia Rules issued an Order amending its Rules to clarify the meaning On Tuesday, January 12, 2021, the Supreme Court of Virginia of the word “shall” which formerly appeared in the Rules. amended a number of rules and a form to be effective The clarifications do not change existing law and the Order immediately, and approved LEO 1850 regarding ethical excludes Parts 2, 3B, 3C, 3D, 6, and the Medical Malpractice issues when a lawyer considers outsourcing legal or non-legal Rules of Practice. support services to lawyers or paralegals, also to be effective The amendments become effective March 1, 2021. www.vsb.org/site/news/item/scv_usage_of_shall_2 immediately. https://www.vsb.org/site/news/item/SCV_approves_leo_1850_ Supreme Court of Virginia Seeks Comment on Admission and_amends_rules of Military Spouses The Supreme Court of Virginia is seeking public comment on President-elect Myerson Seeks Applicants for VSB the provisional admittance of dependent spouses of active duty Committees service members to the practice of law in the Commonwealth Jay B. Myerson, president-elect of the VSB, seeks active and without examination.The amendments would effect Rule 1A:8, in-good-standing Virginia lawyers willing to serve on special Military Spouse Provisional Admission. and standing committees in 2021. If you would like to be Comments due by February 22, 2021. considered for appointment, please complete the committee www.vsb.org/site/news/item/SCV_comments_military_spouses preference form and return it with a brief résumé by February 19, 2021. www.vsb.org/site/news/item/president_elect_committees_2021 SCV Seeks Med Mal Review Volunteers The Supreme Court of Virginia has asked the Virginia State VSB Proposes Changes to Bylaws Governing Election of the Bar to provide an updated list of lawyers willing to serve on President-elect Medical Malpractice Review Panels (MMRPs). The Virginia State Bar is seeking VSB Council authorization Attorneys who are interested in serving should submit a to modify Paragraph 4 of the Rules of Court and the Bylaws letter of interest and a resume to: Karen A. Gould, Executive governing the VSB to better conform with modern voting Director, Virginia State Bar at [email protected] on or before practices. Inspection and comment due by February 12, 2021. May 28, 2021. www.vsb.org/site/news/item/election_of_the_president_elect www.vsb.org/site/news/item/scv_seeks_med_mal_review

52 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org Virginia Lawyer Register

Lawyers Are in Phase 1c of COVID Vaccine Schedule The Center for Disease Control and Prevention (CDC) has placed those who work in the legal system in Phase 1c of the COVID-19 vaccination schedule. Lawyers are CLE Opportunities included in Phase 1c because they “...support ongoing critical infrastructure operations” according to the CDC February 24 recommendations. 1:00–2:00 p.m. www.vsb.org/site/news/item/lawyers_are_phase_1c_of_covid_ Breaking up is Hard to Do: Clients vaccine_schedule and Law Partners Join the Disciplinary System (1.0-hour CLE/Ethics pending) The Standing Committee on Lawyer Discipline seeks active, Sponsored by the General Practice in-good-standing lawyers and non-lawyers to apply for Section disciplinary district committee vacancies. Applications in the form of a résumé and short statement of interest are due March 16, 2021 February 28, 2021. www.vsb.org/site/news/item/first_line_of_defense_2021 noon–1:00 p.m. Lawyer Well-Being for Mindful IP Get on the Ballot for Bar Council Elections Resolutions Bar Council, the Virginia State Bar’s governing body, will hold (1.0-hour CLE pending) its annual elections by electronic ballot in April 2021 for terms Sponsored by the Intellectual beginning July 1. Virginia lawyers who wish to be on the ballot Property Section must be active members in good standing of their circuit as of March 15, 2021. www.vsb.org/site/news/item/bar_council_elections www.vsb.org/docs/vsb-webinars.pdf.

Nominating Committee: Board and Committee Vacancies Virginia lawyers – active and in good standing – are needed to serve on Virginia State Bar boards and committees beginning this year. The chosen applicants will oversee the Clients’ Protection Fund and the Bar’s judicial candidate evaluations, FEE interviewing candidates for vacancies on the bench. The Bar DISPUTE also seeks Bar Council members interested in serving on the Executive Committee. RESOLUTION www.vsb.org/site/news/item/nominating_committee_ vacancies DON’T BATTLE IT OUT Statement of Virginia State Bar President Brian L. Buniva On January 7, VSB President Brian Buniva issued a statement on the events of Jan. 6 at the U.S. capitol. If COVID-19 has put you and a client at www.vsb.org/site/news/item/buniva_statement_Jan7 odds over fees, consider the VSB’s Fee Dispute Resolution Program.

Anyone can join, it’s free, For over 25 years, this program has helped and takes only about two lawyers and clients resolve fee conflicts minutes. Demonstrate your without litigation and for only $20. support for the Diversity Conference by becoming a member today. Learn more at www.vsb.org/site/ www.vsb.org/site/ conferences/diversity members/fee_dispute_resolution.

www.vsb.org VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 53 President continued from page 8 He said, “Fans, for the past two weeks associate with them for even one day? you have been reading about the bad Sure, I’m lucky . . .” with the debilitating disease called break I got. Yet today I consider myself Look around you every so often Amyotrophic Lateral Sclerosis (ALS) the luckiest man on the face of this and see the grand lawyers in your which is commonly referred to as earth. I have been in ball parks for 17 midst. We are members in one of Lou Gehrig’s disease. On July 4, 1939, years and have never received anything the greatest professions in the world. two weeks before he died just shy of but kindness and encouragement from Honor it, and honor those who are in his 39th birthday, a sold-out Yankee you fans. Look at these grand men. it with you. q Stadium listened to the most remark- Which of you wouldn’t consider it the able speech on gratitude ever spoken. highlight of his [or her] career just to

Executive Director continued from page 10 pursuant to the election procedures set PART I — BYLAWS OF THE forth in the bylaws.Vacancies in the VIRGINIA STATE BAR3 a term to commence on July 1im- office of President or President-elect ARTICLE I mediately upon the adjournment of shall be filled by the Council. Should Members the Annual Meeting of the Virginia a vacancy occur in the Immediate Past The Virginia State Bar is comprised State Bar and to continue until the President position, the vacancy will of all attorneys licensed to practice law next president-elect assumes the remain until a new President qualifies in Virginia. presidency or the president-elect as Immediate Past President. ARTICLE II otherwise vacates officeadjournment Officers of the next Annual Meeting of the The President, the President-elect The officers of the Virginia State Virginia State Bar, at which time he and the Immediate Past President Bar shall be a President, a President- or she shall take office as President. shall be ex officio members of the Elect, an Immediate Past President The former President shall continue Council; the President shall preside and a Secretary-Treasurer. The term in office until adjournment of the next over the Council. In the absence of “Secretary-Treasurer,” “executive di- Annual Meeting, at which time he or the President, the President-elect shall rector,” and “Executive Director” refer shethen shall become the Immediate preside. interchangeably to the same position Past-President until the following July throughout these bylaws. 1adjournment of the following Annual The Secretary-Treasurer shall also ARTICLE III Meeting. bear the title of Executive Director Election of President-Elect and Chief Operating Officer. In the Sec. 1. Nominations. In order To be eligible for nomination as event of a vacancy, Tthe Council shall to qualify for election to the office of President-elect, the candidate must, recommend its nominee as Secretary- president-elect for the ensuing bar at the time of nomination, have been Treasurer to the Supreme Court of year, a candidate must be duly quali- fied as set forth in Paragraph 4 of the an active member of the Virginia State Virginia which shall approve or reject Rules of Court, Part Six, Section IV Bar for a period of seven years and the Council’s recommendation. If the and must file a nominating petition must have served on the Council for Supreme Court rejects Council’s rec- with the executive director. a minimum of two years within the ommendation, Council shall submit Sec. 2. Petition. The nominating five-year period next preceding his or another recommendation to the Court petition shall be signed by at least 50 her election. for its consideration. The Secretary- members of the Virginia State Bar and Treasurer shall keep all records of the shall be signed by the candidate, who The method of election of the Council and the Virginia State Bar. shall certify that he or she is qualified President-elect shall be in the man- Accounts of the Secretary-Treasurer to run for the office. The nominating ner prescribed by the Bylaws of the shall be audited annually. petition must be received by the

Council. executive director on or before March The Secretary-Treasurer may be re- 15October 1 of each year. moved from office by the Council with If the President were unable to Sec. 3. Method of Election. In the complete his or her term of office, the approval of the Supreme Court event only one nominating petition the President-elect shall become or by the Supreme Court, acting sua is received by the executive director President. Should a vacancy occur in sponte. on or before March 15October 1 of the President-elect position, for what- xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx any year, the election for the office of ever reason, an election shall be held xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx president-elect shall be held at the next as soon as possible to fill the vacancy xxxxxxxxxxxxx annual meeting in accordance with the

54 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org provisions of Article IV, below. ballot must be returned to the execu- resulted therefrom. In the event two or more nomi- tive director by December 1. (d) For purposes of determining nating petitions are received by the (d) If any member receives more voter and candidate eligibility, the executive director on or before March than one ballot, he or she shall return membership list maintained by the ex- 15October 1 of any year, the election of the excess ballot or ballots, unmarked, ecutive director as of March 15October the president-elect will be in accor- to the executive director in the same 1 shall be controlling. Except to correct dance with the provisions of Sections 4 envelope provided for return of his or clerical errors in records maintained as and 5, below. her marked ballot. of that date, no revisions or additions Sec. 4. Ballots. In the event Sec. 5. Ballot Elections. The ballots to the membership list for purposes of nominating petitions for two or shall be collected and counted in a the election shall be made after March more candidates are received by the manner which assures the confidenti- 15October 1. executive director, then: ality of the members' votes. A plurality (e) The executive director shall (a) The executive director shall of the votes cast by all members shall announce to the bar the results of prepare a ballot which shall list in elect. No ballot received by the exec- the election for the office of presi- alphabetical order the names of those utive director after May 1December 1 dent-elect. persons nominated to the office of shall be counted. Write-in votes shall (f) Any responsibility assigned president-elect. be permitted, but the executive direc- herein to be discharged by the execu- (b)The president-elect ballot shall tor may exclude illegible write-in votes tive director may be assumed and dis- be distributed by mail or made avail- and shall exclude write-in votes for any charged by the Executive Committee, able by electronic means to all mem- candidate ineligible to serve pursuant at its discretion. bers on or before April 15November 5. to these bylaws, if elected. (g) Any challenge to an election The form of the ballot and the proce- Sec. 6. General Provisions. The shall be resolved by a committee which dure for distribution, collection and following provisions shall be applicable shall be chaired by the president and tabulation of ballots shall be deter- to any election of the president-elect shall include the president-elect, the mined by the executive director. under this Article III. immediate past president and two (c) If any member fails to receive a (a) For purposes of these provi- members of Council appointed by the ballot within ten (10) days of distri- sions, a "member" is an active member president who shall not be current bution, or by November 15, which- in good standing of the Virginia State members of the Executive Committee. ever is later, the intended recipient Bar. Only such person may nominate, … shall be given a replacement ballot be nominated, vote or be elected in Please let me know your thoughts upon executing an affidavit, in a form any election for the office of presi- on the election process in general, to be prescribed by the Executive dent-elect. or in specific. You can reach me at Committee, averring (i) that no ballot (b) Records maintained by the [email protected] or (804) 775-0550. q has been received and (ii) that in the executive director as to membership event the original ballot is subse- and good-standing status shall be Endnotes quently received, it will promptly be controlling. 1 The remaining 47 votes were for write-in returned unmarked to the executive (c) The failure to comply with the candidates. director. The affidavit and request for dates designated for the occurrence 2 Paragraph 4 is contained in Part 6, § IV of the Rules of the Supreme Court of Virginia. a replacement ballot must be received or completion of certain acts shall not 3 The complete text of the VSB bylaws can be by the executive director not later than invalidate any election, unless substan- found by searching for “bylaws” in the search November 22, and the replacement tial prejudice can be shown to have bar on the VSB website.

AVAILABLE NOW Manual para Adultos Mayores de Virginia The Senior Virginians Handbook is now available The Manual para Adultos Mayores de Virginia is online in Spanish thanks to the VSB Senior Lawyers available for download online. www.vsb.org/docs/ Conference. Spanish_Senior2020.pdf This book contains over 100 pages of information The Senior Virginians Handbook in English is designed to assist older with a range of availble at www.vsb.org/docs/Senior_Handbook. legal issues, and life decisions. pdf.

55 Bar Counsel continued from page 12 lawyer’s reputation, or in hopes that JLAP). The Bar strives to be proactive. someone else will report the miscon- The stakes are particularly high his own name. Matson maintained duct. — and the obligation to report is that he disbursed the $2,500,000 as Rule 8.3(a) requires a lawyer to critical— in cases where a lawyer “discretionary bonuses” and that the report misconduct if they have “reli- misappropriates funds that he or she additional $341,000 was being held in able information” that another lawyer has been entrusted to safeguard. We escrow in his name. The $2,800,000 has committed a violation of the Rules must act to protect the integrity of the that Matson disbursed to himself and of Professional Conduct that raises a profession, for without the trust of the other attorney were ultimately “substantial question” as to that lawyer’s the public and our clients, what do we returned to the trust account. honesty, trustworthiness, or fitness to have? q practice law. Per Comment 3 to Rule What can we do as a profession to 8.3, the term “substantial” refers to the address these cases? Be vigilant. seriousness of the possible offense and Endnotes We are a self-policing profession. “Ev- not the quantum of evidence of which 1 Legal Ethics Opinion 1515 approved by the Supreme Court of Virginia February 1, 1994 ery lawyer is responsible for observance the lawyer is aware. 2 Rule of Professional Conduct 1.15(b)(4) of the Rules of Professional Conduct. A Not every report has to be for- 3 Rule of Professional Conduct 8.4(b) lawyer should also aid in securing their mal— when in doubt, call the Bar. 4 In the Matter of Cherie Anne Washburn, VSB observance by other lawyers. Neglect of Once reported, the VSB will thoroughly Docket No. 19-090-113267 5 In the Matter of Clifford John Shoemaker, these responsibilities compromises the assess the concerns or complaint, and if VSB Docket No. 20-051-117628 independence of the profession and the necessary, investigate; not every report 6 In the Matter of Philip R. Farthing, VSB public interest which it serves.”10 will result in discipline. Early reporting Docket No. 18-010-110240 The mission of the Virginia State may prevent further harm. The Bar’s 7 In the Matter of David Barney Wilks, VSB Docket No. 19-053-114898 Bar is to protect the public. The Bar disciplinary procedure allows one-way, 8 In the Matters of James Christopher cannot effectively protect the public, confidential reporting of concerns of Chamblin, VSB Docket Nos. 19-051-115974 nor can it ensure consistent discipline, depression, substance abuse, or cogni- and 20-051-116130 if lawyers fail to report substantial mis- tive impairment to Virginia’s Judges and 9 In the Matter of Bruce Howard Matson, VSB Docket No. 20-033-117567 conduct for fear of damaging another Lawyers’ Assistance Program (Virginia 10 Preamble to Rules of Professional Conduct

Tech continued from page 47 auditing search engines, researchers demands creativity. The legal service will test prototypes of new bots and experience is being reshaped by pow- hope to identify methods that can information displays on search engines erful social, economic, and techno- most effectively engage consumers to determine the kind of information logical forces. Lawyers have a unique with public legal help. By identifying and design that can best engage people opportunity to build a future that is 6 patterns of legal needs through virtual in a legal process. more resilient and equitable for all. q clinics, chatlines, advice boards, and Practicing law in 2021 and beyond

Endnotes Litigators, ALAS Loss Prevention Journal Left Out and Left Behind – The Hurdles, Hassles, 1 Kate Kenney, How to Keep Your Business 48 (Summer 2019). and Heartaches of Achieving Long-term Legal Nimble and Flexible During a Pandemic, 3 Yuki Noguchi, Freelanced: the Rise of the Careers for Women of Color, ABA Commission Virginia Lawyers Weekly, Sept. 24, 2020. Contract Workforce, NPR, Jan. 22, 2018. on Women in the Profession, 2020. 2 Ellen M. Gregg, Bill Koch, and Daniel W. 4 Clio 2020 Legal Trends Report. 6 Margaret Hagan, A Human-Centered Design Smith, How Artificial Intelligence is Impacting 5 Destiny Peery, Paulett Brown, and Eileen Letts, Approach to Access to Justice, Ind. JL & Soc. Equal. 6, 199, 2018.

Got an Ethics Question?

The VSB Ethics Hotline is a confidential consultation service for Virginia lawyers. Questions can be submitted to the hotline by calling (804) 775-0564 or by clicking on the “Email Your Ethics Question” link on the Ethics Questions and Opinions web page at www.vsb.org/site/regulation/ethics/.

56 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org Professional Notices

Shannon Reaves was litigator, Jackson-Akiwumi focuses her promoted to partner at practice on complex civil litigation, Stroock & Stroock & white collar criminal defense, and Lavan LLP’s Washington investigations. For 15 years, Jackson- D.C. office. Reaves focuses Reaves Akiwumi practiced law in the public Sabalewski Sizemore Wossene his practice in the areas and private sectors, most recently of Exon-Florio reviews before the serving as a federal public defender in Holland & Knight has also added Committee on Foreign Investment in Chicago. As a federal public defender, 10 attorneys who focus on financial the United States; industrial security, Jackson-Akiwumi represented more services litigation to the firm nationally. including Foreign Ownership, Control than 400 clients accused of federal The team includes Virginia lawyers or Influence mitigation matters before crimes, tried multiple federal jury trials, Travis Sabalewski, partner, and the U.S. Departments of Defense and and argued a half dozen cases in the associates Justin Sizemore and Ariel Energy; and export control compliance. U.S. Court of Appeals. She also served Wossene. The new team will office as an Adjunct Professor at Northwestern in the firm’s Tysons office. The group Natalya Dennett has School of Law. defends financial services companies in opened a private practice individual and class action consumer in Williamsburg called Holland & Knight has added three finance cases in courts throughout the Dennett Law Group, partners to its Tysons office: country, litigating alleged violations of PLLC. The firm specializes Dennett Howard Clemons the FCRA, FDCPA, TCPA and ECOA, in domestic relations and works in the Mid-Atlantic unfair competition laws and various family law, and provides representation Corporate, M&A and state consumer protection laws. Clients in Williamsburg and the peninsula and Securities practice group. include banks, credit card companies, to clients in highly contested divorce Clemons concentrates auto finance lenders, mortgage and Clemons matters, complex custody and visitation his practice on executive other consumer finance companies, and proceedings, protective orders, support compensation and employee benefits debt collection companies. matters, and more. matters, with a significant focus on mergers and acquisitions. During his Harman Claytor Corrigan Lauren E. Fisher White has career, he has advised on employee & Wellman has added John been elected a partner of and executive matters for hundreds of E. Peterson Jr. to the Christian & Barton, L.L.P., merger and acquisition transactions. firm’s Richmond office as a in Richmond. She focuses Lauren Benny is a partner. Peterson focuses Peterson her practice on labor and Fisher White member of the firm’s his practice on medical employment counseling Business Section. Benny malpractice defense. and litigation. focuses her practice in the areas of mergers and Irving M. Blank, former acquisitions, general Benny VSB president and a corporate law, and equity financing partner at Richmond’s transactions. She has advised clients, Blank & Marcus, LLC, both buyers and sellers, on more than Guthrie Berry Jackson has received the Virginia Blank 50 merger, acquisition, and disposition Association of Defense transactions in a number of different Attorney’s and the Virginia Trial industries, including government Harman Claytor Corrigan & Lawyers Association’s 2020 Civility and contracting, consulting services, Wellman has also added three new Professionalism Award. The award is technology, and automotive and associates to the Richmond office: Justin given by each association to a member transportation. G. Guthrie, Laura M. Berry and Briana of the other who exhibits the highest David Schneider is a M. Jackson. Guthrie focuses his degree of civility and professionalism in member of the firm’s Real practice on insurance coverage dealing with litigation opponents. Estate Section. Schneider matters. Berry and Jackson will focus focuses his practice on their practices on general civil litigation. Zuckerman Spaeder land use and real estate Schneider LLP has added Candace development, assisting developers and Jackson-Akiwumi to its landowners in a wide variety of land use Washington, D.C. office as entitlements in jurisdictions throughout partner. An experienced Jackson-Akiwumi . www.vsb.org VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 57 Professional Notices

Attorneys underwriters and lenders in publicly Family and Medical Leave Act, and Harris D. offered and privately placed municipal claims arising under new employment Butler, Craig bond issues. laws that became effective in Virginia on J. Curwood, Michael Bedsaul helps July 1, 2020. She will also provide advice Zev Antell, and Butler Curwood local governments, to business owners and management on Paul Falabella departments of social employment issues. announce the services, and other public formation of a agencies with their unique Bedsaul Pender & Coward in new partnership, needs. At the intersection Virginia Beach has added Butler of government and litigation, Bedsaul Amanda Newins to the Curwood, Antelli Falabella is experienced in municipal litigation, firm, focusing her practice PLC. The local government law, employment law, in criminal litigation Newins new firm will operate out of Butler’s and representation of local departments matters, including traffic existing offices on the canal in Shockoe of social services. He works in the firm’s and DUI offenses, and animal law. Slip in Richmond. The firm represents Christiansburg, office. Newins served for over three years clients in all types of individual and Gregory Bergethon helps as a prosecutor with the Chesapeake class action employment litigation businesses with corporate Commonwealth’s Attorney’s office and throughout the Commonwealth transactions including has trial experience handling complex including discrimination, sexual mergers, acquisitions, joint- misdemeanor and felony offenses. A harassment, executive compensation, ventures, and financings. Bergethon dedicated volunteer and advocate for overtime, retaliation, civil rights, and In his practice, he also animals, she now represents clients in whistleblower claims. provides counsel regarding tax planning complex animal welfare issues, and and strategy. Bergethon works in the works to define legal protections for Jonathan S. Gelber, firm’s offices in Richmond and Virginia animals. formerly of Gelber & Beach. Associates, PLLC, has Stephen Durbin focuses Pender & Coward has joined Vanderpool, his practice on local expanded its Suffolk Frostick & Nishanian, Gelber government issues. His office, adding Jeff Hunt P.C., in Prince William strengths lie in municipal to the firm focusing his County. Gelber comes as Of Counsel litigation, taxation Durbin practice in wills, trusts, Hunt with over 35 years of experience. Gelber assessment defense estate planning, and local has taught CLE courses for lawyers, and collection, eminent domain, government matters. Hunt received his lectured at the annual meetings of the construction law and land use issues. undergraduate degree from Utah State Virginia Creditors Bar Association and He also assists local governments University and his Juris Doctor from other organizations, is a Guardian ad with economic development matters, William & Mary Law School. Litem for Incapacitated Adults in both including the deployment of broadband Arlington and Fairfax counties, and has networks. Durbin works in the firm’s Hirschler has added been a member of the Arlington County Christiansburg office. Janie Lewis Rhoads as Judicial Bar Selection Committee in the a Fredericksburg-based past. Gentry Locke has partner. Rhoads adds to added Imani Elizabeth the firm’s nearly 20 years Rhoads Four Sands Anderson PC attorneys Sowell to the firm’s Roanoke of experience counseling have been elected shareholders: office as an associate with clients in real estate and various Jesse Bausch focuses the Employment & Labor corporate law matters throughout Sowell his practice on public team. Sowell assists with Northern Virginia. Rhoads has diverse finance with an emphasis internal investigations and the defense real estate and corporate expertise, in the areas of traditional of federal and state court cases on with experience representing national municipal bond issuance, a broad range of matters, as well as and local developers in the creation Bausch securities law, and state and defending employers on administrative of planned unit developments, local government law. He represents charges of discrimination, harassment, mixed-use projects, and industrial, state and local issuers in financing a and retaliation brought under the commercial, residential, and conversion wide range of projects, from water Americans with Disabilities Act, Age condominium developments. Rhoads and wastewater facilities to schools Discrimination in Employment Act, provides guidance to apartment owners and court facilities. He represents Title VII, Fair Labor Standards Act, and other housing providers on federal

58 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org Professional Notices and local fair housing laws. She has trial, conviction, escape attempt, and particularly automobile and premises represented schools, government entities 4-year incarceration before he was able liability. The firm handles litigation for and property owners in condemnation to prove his innocence and win his two of the largest insurance companies, matters. freedom. McLaughlin is a retired Army as well as some private clients for tort JAG officer who practices across the defense and plaintiff cases. Babcock & Former VSB Executive street from the same courthouse that Moore is a certified 100 percent woman- Director Thomas sentenced him to 13 years in prison. owned, operated, and controlled law A. Edmonds has firm. been appointed by Governor Northam as Edmonds PilieroMazza announces, effective a Commissioner for the January 1, 2021, Tony Promotion of Uniformity of Legislation. Franco became Managing Rohrbach Rosenthal Edmonds was also the former Dean of Partner, assuming the role the University of Richmond School of David C. Rohrbach and Edward S. held for over three decades Law. Rosenthal have formed Rohrbach by founding partner Pam Franco Rosenthal LLP, a litigation boutique Mazza. Commenting on The University of in Alexandria focused on advising and the change, Mazza remarked, “Tony is a Virginia School of representing businesses and individuals proven leader with a solid understanding Law remains No. 1 in in civil litigation matters. of not only the practice of law, but also Best Professors, Best the business of law. He is more than Quality of Life and Owen I. Conway has joined capable of leading us into the future.” Best Classroom Experience, according Herndon Law, P.C., owned to The Princeton Review’s annual law and founded by Sheryl L. Former VSB President Jon school rankings. As part of the 2021 Herndon. Conway’s practice D. Huddleston has rankings, the Law School is also No. 4 areas include criminal, succeeded Matthew E. Conway in Best Career Prospects, No. 5 in Best traffic, estate planning, Cheek as president of the for Federal Clerkships and No. 6 in estate administration, and guardianship Virginia Law Foundation Toughest To Get Into. and conservatorship matters. She is a for the calendar year of Huddleston graduate of the University of Richmond 2021. “Passing the baton Brittany R. Black has School of Law. of the Virginia Law Foundation’s joined the law firm presidency to someone like Jon of Hugh E. Black, III, Finnegan announces Ryan Huddleston is both an honor and a P.C. in Chesapeake as an P. O’Quinn, Ph.D. is now luxury,” said Cheek. Huddleston is associate. Black’s practice Black a partner in the firm’s a principal with Sevila, Saunders, areas include criminal and Reston office. O’Quinn Huddleston & White, P.C., where he traffic defense, domestic relations, and maintains a versatile O’Quinn has practiced since his admission to the personal injury. Prior to receiving her practice focusing on U.S. Bar in 1986. law degree from the Appalachian district court patent litigation, post- School of Law, Black interned at the grant proceedings at the USPTO, patent Virginia lawyer Timothy J. Lockhart Chesapeake Public Defenders Office. prosecution, and portfolio management has written another novel, A Certain and counseling. His practice covers Man’s Daughter, a thriller in which Bruce McLaughlin, an attorney based a range of technologies, including a lawyer is hired by a in Leesburg, has published He Said, pharmaceuticals, biotechnology, senator’s daughter to She S.A.I.D. (Sexual Allegations immunotherapy, medical devices, stifle a compromising in Divorce), an computer software, business methods, videotape. The autobiography about vending technologies, and mechanical investigation turns to false charges of child systems. murder. Lockhart is abuse during contentious a former U.S. Navy divorce proceedings. Babcock & Moore, PLC officer who worked “More than 80% of announced that recent Bar with CIA, DIA, and the Office of Naval allegations that happen member Emily M. Strak Intelligence. during a divorce prove has joined the firm as a trial to be false,” McLaughlin states. He attorney. Babcock & Moore, Strak Said, She S.A.I.D., tells of his arrest, PLC focuses on tort defense, www.vsb.org VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 59 Professional Notices

Alfred Carry of the national Jest Is For All by Arnie Glick law firm McGlinchey Stafford has been promoted to Of Counsel. Carry is a multifaceted Carry litigator who defends clients in government investigations and consumer financial services litigation. He will practice in the firm’s Washington, D.C. office

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Experience for the William & Mary www.vsb.org VOL. 69 | FEBRUARY 2021 | VIRGINIA LAWYER 61 The Last Word Don’t Be So Negative by Joe Fore My wife and I are the proud parents of a three-year-old. While it hasn’t made for the easiest home life during the pandemic, it’s done wonders for my communication skills. One thing I learned very early on: think (and speak) positively. For example, let’s say it’s lunch time, but my son is having trouble focusing on his meal. After a couple of gentle reminders, I might try to get tough by saying something like this: In the same way that parents often like reject and refrain, and ex- words If you don’t finish your food, employ negative framing, legal writers like except and exclude.2 Thus, a you can’t go outside to play. sometimes overuse negative words. sentence like this: For example, in litigation, advocates Notice how the sentence is may use negative phrasing to define The Court should not exclude framed in the negative: if you don’t their opponent’s burden: the evidence do X, you can’t do Y. It’s a natural way to communicate consequences. If plaintiffs cannot show can be rewritten more simply—and But that negative phrasing presents commonality, they cannot clearly—as: a couple of problems. First, from obtain class certification. an emphasis standpoint, it focuses The Court should admit the on the undesirable outcome (not Now, most legal readers are more evidence. finishing food; not going outside) sophisticated than toddlers (though Negative phrasing is also common in instead of the desirable one (finishing their attention spans are sometimes transactional drafting3: food; going outside). Second, from similarly short and many are prone a clarity standpoint, the sentence to the occasional tantrum when they Party A will not disburse the doesn’t clearly state what the listener is don’t get their way). Still, rewriting funds until Party B does X; or supposed to do. The sentence implies this sentence to cut the negatives the right thing to do (finish your makes the sentence easier to follow Party A may not do X unless food), but it requires an extra logical and consumes less of the reader’s Party B consents in writing. step to get there. And that’s a lot for a mental energy: toddler to handle. Now, there may be times when So, as a parent, I’ve come to realize Plaintiffs can only obtain class that it’s clearer and more effective certification if they can show The Last Word continued on page 61 to restate the sentence to avoid the commonality. negative words altogether: So when you edit your writing, As soon as you finish your watch for sentences that contain food, you can go outside to multiple negative words. “Negative” play. words include variations on no and not—words like neither, nowhere, 1 This positive phrasing is easier to nothing, never, nobody, and none. But Joe Fore is an Associate Professor of Law, understand, since it requires no they also include many other words General Faculty and Co-Director of the Legal Research & Writing Program at the University logical leaps. And from a persuasion with negative connotations, including of Virginia School of Law. Have a comment, a standpoint, it makes the goal seem un- words like unless and until, de- question, or an idea for a future column? Email him at [email protected] or connect with attainable. words like deny and decline, re- words him on Twitter (@Joe_Fore).

62 VIRGINIA LAWYER | FEBRUARY 2021 | VOL. 69 www.vsb.org The Last Word

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