Virginia LawyerVOL. 68/NO. 3 • October 2019 VIRGINIA LAWYER REGISTER The Official Publication of the Virginia State Bar

The Real Property Issue: Your Practice and Real Estate Transactions Liens That Survive Bankruptcy Common Interest Communities Transfer on Death Deeds Plus, Gifts for Lawyers

Virginia Lawyer The Official Publication of the Virginia State Bar October 2019 Volume 68/Number 3

Features Noteworthy REAL PROPERTY VSB NEWS 17 Get Real: The Real Property Issue 36 2019 Diversity Forum Attracts by Ronald D. Wiley Jr. Capacity Crowd

18 No Good Deed Goes Unpunished: Your Practice and Real Estate Transactions by Kay M. Creasman and Paul H. Melnick

22 Liens That Survive Bankruptcy: Is There a Better Way to Get That Message to Debtor Clients? by F. Lewis Biggs 37 The Honorable Teresa M. Chafin Invested to the Supreme Court of 24 A Review of Selected Virginia Laws and Virginia Regulations Pertaining to Common Interest 37 Virginia Law Foundation Communities and Community Managers Announces 2019 Grant Recipients by Susan Bradford Tarley 38 University of Richmond Law 26 Transfer on Death Deeds Student Wins IP Writing by Kay M. Creasman Competition 40 In Memoriam 30 Six Important Developments for Conservation Easements by Timothy Lindstrom 44 Conference of Local and Specialty Bar Associations ET AL. 42 Gifts for Lawyers Access to Legal Services 55 Listening to the Law 34 Herb Sebren of Tappahannock to Receive 2019 Powell Pro Bono Award 35 Kelly Guzzo and Consumer Litigation Associates Honored for Departments Pro Bono Work 6 Forum 51 CLE Calendar VIRGINIA LAWYER REGISTER 59 Professional Notices 56 Disciplinary Summaries 58 Virginia Lawyers: If You Need 61 Classified Ads 61 Advertiser’s Index 57 Disciplinary Proceedings Business, We Need You! 58 The Honorable Teresa M. Chafin 58 Join the Disciplinary System Invested to the Supreme Court of Columns Virginia 8 President’s Message 58 SCOVA Advisory Committee Seeks Comments on Proposed 10 Executive Director’s Message Amendments 12 Ethics Counsel’s Message 58 Comments Sought on Proposed 14 Legal Aid Revisions to the Clients’ Protection 45 Law Libraries Fund Rules 46 Risk Management 47 Book Review

Cover: The Real Property Section photographed at the Virginia CLE offices in Charlottesville. Back row (l–r): Rick Richmond, Max Wiegard, Tracy Banks (VaCLE liaison), Barbara Goshorn, Larry McElwain, Whitney Levin, Rick Chess, Wayne Glass, Steve Wood, Brian Wesley, Cynthia Nahorney; Stairs (l–r): Hope Payne, Kay Creasman (Immediate Past Chair), Page Williams, Kathryn Byler (Secretary), Ron Wiley (Chair), Lori Schweller (Vice Chair), Robert Hawthorne, Susan Pesner, Susan Siegfried. Photo by Deirdre Norman Virginia Lawyer Virginia State Bar The Official Publication of the Virginia State Bar 2019–20 OFFICERS 16th Circuit Marni E. Byrum, President R. Lee Livingston, Charlottesville www.vsb.org Brian L. Buniva, President-elect Palma E. Pustilnik, Charlottesville Leonard C. Heath Jr., Immediate Past President Editor: Karen A. Gould, Executive Director and Chief 17th Circuit Deirdre Norman Operating Officer Adam D. Elfenbein, Arlington ([email protected]) Jennifer S. Golden, Arlington EXECUTIVE COMMITTEE Gregory T. Hunter, Arlington Marni E. Byrum, President Joshua D. Katcher, Arlington Creative Director: Brian L. Buniva, President-elect William H. Miller, Arlington Caryn B. Persinger Leonard C. Heath Jr., Immediate Past President ([email protected]) Maryse C. Allen, Prince William 18th Circuit Ann B. Brogan, Norfolk Barbara S. Anderson, Alexandria Assistant Editor: Eugene M. Elliott, Roanoke Stacey Rose Harris, Alexandria Jackie Kruszewski Eva N. Juncker, Falls Church John K. Zwerling, Alexandria ([email protected]) Jay B. Myerson, Reston William T. Wilson, Covington 19th Circuit Advertising: LLM Publications Brian C. Drummond, Fairfax CONFERENCE CHAIRS AND PRESIDENT David J. Gogal, Fairfax Ben Oerther Conference of Local and Specialty Bar Richard A. Gray, Fairfax ([email protected]) Associations – Lewis A. Martin III Chidi I. James, Fairfax Diversity Conference – Chidi I. James Douglas R. Kay, Tysons Corner Senior Lawyers Conference – John D. Eure Daniel B. Krisky, Fairfax VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473) Young Lawyers Conference – Farnaz F. Thompson David L. Marks, Fairfax is published six times a year by the Virginia State Bar, COUNCIL Gary H. Moliken, Fairfax 1111 East Main Street, Suite 700, Richmond, Virginia Jay B. Myerson, Reston 1st Circuit Nathan J. Olson, Fairfax 23219-0026; Telephone: (804) 775-0500. Subscription Damian J. (D.J.) Hansen, Chesapeake Dennis J. Quinn, Tysons Rates: $18.00 per year for non-members. This material 2nd Circuit Wayne G. Travell, Tysons is presented with the understanding that the publisher Ryan G. Ferguson, Virginia Beach Edward L. Weiner, Fairfax and the authors do not render any legal, accounting, Steven G. Owen, Virginia Beach Michael M. York, Reston or other professional service. It is intended for use by Jeffrey B. Sodoma, Virginia Beach 20th Circuit attorneys licensed to practice law in Virginia. Because of 3rd Circuit R. Penn Bain, Leesburg Susan F. Pierce, Warrenton the rapidly changing nature of the law, information Meredith B. Travers, Portsmouth contained in this publication may become outdated. As 4th Circuit 21st Circuit a result, an attorney using this material must always Ann B. Brogan, Norfolk G. Andy Hall, Martinsville Gary A. Bryant, Norfolk 22nd Circuit research original sources of authority and update Neil S. Lowenstein, Norfolk information to ensure accuracy when dealing with Eric H. Ferguson, Rocky Mount 5th Circuit a specific client’s legal matters. In no event will the Thomas G. Shaia, Suffolk 23rd Circuit authors, the reviewers, or the publisher be liable for Eugene M. Elliott Jr., Roanoke 6th Circuit K. Brett Marston, Roanoke any direct, indirect, or consequential damages resulting J. Daniel Vinson, Emporia from the use of this material. The views expressed herein 24th Circuit 7th Circuit are not necessarily those of the Virginia State Bar. The Eugene N. Butler, Lynchburg Benjamin M. Mason, Newport News inclusion of an advertisement herein does not include 25th Circuit an endorsement by the Virginia State Bar of the goods 8th Circuit William T. Wilson, Covington Marqueta N. Tyson, Hampton or services of the advertiser, unless explicitly stated 26th Circuit otherwise. Periodical postage paid at Richmond, 9th Circuit Nancy M. Reed, Luray W. Hunter Old, Williamsburg Virginia, and other offices. 27th Circuit 10th Circuit R. Cord Hall, Christiansburg Charles H. Crowder III, South Hill 28th Circuit POSTMASTER: 11th Circuit William M. Moffet, Abingdon Dale W. Pittman, Petersburg Send address changes to 29th Circuit 12th Circuit VIRGINIA LAWYER D. Greg Baker, Clintwood P. George Eliades II, Chester MEMBERSHIP DEPARTMENT 30th Circuit 13th Circuit 1111 E MAIN ST STE 700 Greg D. Edwards, Jonesville Dabney J. Carr IV, Richmond RICHMOND VA 23219-0026 Leah A. Darron, Richmond 31st Circuit Eric M. Page, Richmond Maryse C. Allen, Prince William Cullen D. Seltzer, Richmond Sushella Varky, Richmond MEMBERS AT LARGE J. Tracy Walker IV, Richmond Denise W. Bland, Eastville Henry I. Willett III, Richmond Afshin Farashahi, Virginia Beach Atiqua Hashem, Richmond 14th Circuit Eva N. Juncker, Falls Church Craig B. Davis, Richmond B. Alan McGraw, Tazewell Stephanie E. Grana, Henrico Virginia State Bar Staff Directory Lenard T. Myers Jr., Norfolk Marissa D. Mitchell, Henrico Frequently requested bar contact Lonnie D. Nunley III, Richmond 15th Circuit Patricia E. Smith, Abingdon information is available online at Jennifer L. Parrish, Fredericksburg A. Benjamin Spencer, Charlottesville www.vsb.org/site/about/bar-staff.

4 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org

Forum

Correction: In our August In Memoriam section Letters the last name of the Hon. James Warren Send your letter to the editor to: Stephens Jr., who passed away in [email protected] or December of 2018, was misspelled as Virginia State Bar, Stevens. We regret the error. Virginia Lawyer Magazine, 1111 E Main St., Suite 700, Richmond VA 23219-0026 Letters published in Virginia Lawyer may be edited for length and clarity and are subject to guidelines available at www.vsb.org/site/ publications/valawyer/.

Jest Is For All by Arnie Glick

6 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org

President’s Message by Marni E. Byrum We Can Make A Difference

Each of us, at some point, would ence focused on diversity in the legal country as states consider their ethics say that we became lawyers to help profession — bringing together over rules in light of the American Bar people or to make a difference. 100 members of the legal community Association’s amendment to Model Regardless of whether or not your to discuss implicit bias, improving di- Rule 8.4. ABA Model Rule 8.4(g) states actual practice focuses on individual versity in the legal profession, address- that “it is professional misconduct for representation or direct client contact, ing the needs of a diverse legal com- a lawyer to . . . (g) engage in conduct there are still opportunities to make munity, and the impact of the current that the lawyer knows or reasonably that difference. Recently, I was privi- roster of cases before the United States should know is harassment or dis- leged to watch two of those opportuni- Supreme Court on issues of diversity. crimination on the basis of race, sex, ties unfold. The panels included judges, prac- religion, national origin, ethnicity, I attended the Alleghany-Bath- ticing attorneys, and law professors. disability, age, sexual orientation, gen- Highland Bar Association Senior Law der identity, marital status or socioeco- Day Program in August. Over 200 cit- nomic status in conduct related to the izens attended this free program that practice of law.” provided guidance on estate planning, Every lawyer can be the Only two states, Vermont and grandparents’ rights, guardianships, Maine, have adopted rules similar to aging in place, long-term care, social face of the Bar to the the ABA. However, over half the states security, and dealing with Alzheimer’s have rules with language that pro- disease. In addition to lunch, the public, and programs like hibit certain types of discrimination, seniors received health screenings. prejudice, bias and harassment, while It was a full day of volunteering by this provide an opportu- other states address such conduct as the bar association and other pro- “prejudicial to the administration of fessionals, offering information and nity to make a tangible justice.” There is no proposal to amend support to the senior community in difference in people’s lives. the Rules of Professional Conduct Alleghany, Bath and Highland coun- in Virginia to reflect the model rule, ties. The bar association began this or the alternative language adopted Senior Law Day program over 15 years by other states. That does not mean, ago. The program was later adopted however, that lawyers in Virginia need statewide and, in conjunction with Throughout the day, there was lively not be mindful of how their language the Senior Citizens Handbook, has discussion, debate and personal stories and conduct may impact the adminis- become a flagship program of the about the issues that, whether inten- tration of justice or the perception of Senior Lawyers Conference. Lawyers tionally or not, create roadblocks and fairness in the legal system by clients across Virginia have used this program interfere with equal opportunities for or the general public. and handbook to reach out to their lawyers, as well as their clients. One of We all have the ability to have an communities. Every lawyer can be the goals of the Diversity Conference impact. If we are vigilant about unin- the face of the Bar to the public, and is to provide a forum to assist the pro- tended consequences, then we will use programs like this provide an oppor- fession and the judiciary in addressing those skills to make a difference — and tunity to make a tangible difference in the legal needs of a diverse population. a positive one. people’s lives. Open discussions like this help to Then in September, the Diversity advance that goal. INCLUSION Conference held its Second Annual How far do lawyers have to go to Z Forum on Diversity at the Marshall address bias in the profession and in DIVERSITY Wythe School of Law at the College of the administration of justice? That Z William and Mary. This year’s confer- question is being debated around the ENGAGEMENT

8 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org

Executive Director’s Message by Karen A. Gould The Tide Is High, But We’re Holding On

We had a flood at the Virginia most to a person, with a great attitude: VSB Systems Engineer Charles Troy, State Bar, but don’t worry, we still have working in tight quarters, sometimes and Senior Software Developer Jamie all your MCLE records. doubling up where only one person Mathes; Demetrios Melis, director of All kidding aside, nobody wants to was meant to work; working in odd regulatory compliance, whose depart- have a physical disaster in their office. environments where lawyers don’t ment was the most heavily impacted It disrupts productivity. It costs mon- usually work; and multiple people by the disaster and who kept the Com- ey. And depending upon what caused were working together in conference pliance Department functioning with the loss and how large it is, it can have rooms that became makeshift offices. the help of IT; and Cameron Rountree, a significant impact on how long it Meanwhile, the building manage- deputy executive director, who assisted takes you to get your business back up ment worked on providing alternate with planning to recover from the and running. work space on another floor with disaster. Lawyers should and hopefully do appropriate work surfaces, networked The VSB-assigned contact at the attend programs on how to plan for cabling, power, and phones. The dis- Division of Risk Management, which disaster recovery. And yet, until you placed staff were finally able to move covers state agencies for this type are in the throes of a disaster, you truly to that space on Monday, August 5, of event, could not have been more don’t understand how important it only to find that the LAN had not been helpful or reassuring. Likewise, the is to have prepared for a disaster in properly configured and could not assistant attorney general who assisted advance. connect to our network or phone sys- with the lease of temporary space was The Virginia State Bar suffered tem. This configuration issue delayed available and knowledgeable in dealing the loss of approximately a third of its implementation by several more days. with those issues. The agency head of space on July 24, when a part failed in There are, however, many pos- the Division of Real Estate Services the middle of the night in the HVAC itives that have come out of the was also very helpful in advising the system of the Bank of America build- situation. Due to the Commonwealth VSB on some thorny issues. That it ing. Twenty-five floors’ worth of chiller of Virginia’s insistence that the VSB “takes a village” was certainly true in water was dumped in one floor of have a Continuity of Operations Plan dealing with the problems caused by the VSB space and ruined computers, (COOP), the VSB’s management this disaster. monitors, and other equipment. The team was able to easily contact its 92 Not every lawyer has the resources current prediction is that the entire employees to notify them of the emer- we are fortunate enough to have as 17,337 square feet has been rendered gency and advise them of the problem a state agency. But every lawyer can unusable for six to eight weeks. and the actions that were being taken. attend a course on emergency pre- paredness or read up on best practices Most of the 38 employees who The four-person IT staff responded to protect your files, your documents, worked in that space were told not to immediately and appropriately to get and your equipment in case of a disas- report to work for the first three days. the dues compliance employees back ter. Think about what you would do if Some had computers with them who online to meet the needs of our mem- your office or home were to encounter could telecommute. Since dues were bers and have continued to assist those a problem like a flood or a fire. -De due by July 31, four employees who whose IT equipment was destroyed in velop a plan. Have insurance to cover were essential to the dues collection the flood. the perils. There are resources on the process came in on Wednesday morn- Many thanks go to Randy Webne, web – for example, at the American ing and were immediately set up with HR director and facilities manager, Bar Asssociation (https://perma.cc/ older computers that were scheduled for her long hours in dealing with the T7MB-5SFG). to go to government surplus. catastrophe and its impact on the VSB; The ABA’s Standing Committee The remaining employees were the IT Department: IT Director Selina on Ethics and Professional Respon- told to report to work on the following Deale, Senior Software Engineer/Assis- Monday. The VSB staff responded, al- tant Director Darren Harris, long-time Flood continued on page 49

10 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org If You Need Business, We Need You!

Veterans’ rights Consumer law Collections law Tenants’ rights Employment law Family law

The Virginia Lawyer Referral Service has had to turn away potential clients for lawyers throughout the state.

Become a panel member of the VLRS today and start getting pre-screened referrals. www.vlrs.net

New to the Virginia State Bar? Get your first year of free referrals as a panel member of the VLRS if you’ve been a Virginia lawyer for five years or less.

Virginia Lawyer Referral Service. Let’s Build Your Practice Together. Ethics Counsel by James M. McCauley Ethical Issues Abound When Lawyers Consider Changing Law Firms

“Things change. And friends leave. Life doesn’t stop for anybody.” — Stephen Chbosky, The Perks of Being a Wallflower

The Legal Ethics Hotline or embarrassing” to the client. In most ture of a lawyer who has had primary receives many calls and emails asking instances, the client’s identity and the responsibility over that client’s active what are the ethical obligations when general nature of the matter the lawyer legal matter. Both the departing lawyer a lawyer departs one law firm to join is handling for the client is neither and the law firm have a duty to inform another? Lawyer mobility used to privileged nor “confidential” as defined firm clients of any material change mean the journey over the course of by Rule 1.6(a). Thus, the lateral hire in the representation, including the a lawyer’s career in the same law firm should be able to disclose enough departure of a lawyer that had primary from associate to partner. Now most information for the new firm to check responsibility for the client’s mat- lawyers will likely change firms or for conflicts but without breaching ter, and obtain the client’s informed positions several times over the course any duty of confidentiality owed to decision as to how the client wishes the of their career. Whether the departure the lateral hire’s clients. Generally, the matter to be handled going forward. is amicable or not, there are several lawyer need not obtain client consent This communication, however, must important ethical requirements for (1) before discussing possible employment not occur until after the attorney has the departing lawyer, (2) the old firm, at another law firm to disclose this first given notice to the firm of the and (3) the new firm. limited information. impending departure and an attempt Sometimes a lawyer considers to meet and confer with members of 1. Discussions of possible employ- making a lateral move to a law firm the old firm about how and to whom ment with the new firm. Lawyers that is an adversary in a pending case. notice shall be given. Rule 5.8(a) considering a lateral move to another This may create a conflict of interest (1). See, e.g., Restatement of the Law firm will need to disclose limited under Rule 1.7(a)(2) because the law- (Third) of The Law Governing Lawyers, information about the clients they yer’s loyalty to the client in the pend- sec. 9(3) (2000) (lawyer leaving firm have represented and the matters that ing matter may be materially limited may solicit firm clients prior to leaving they have handled during employment by the lawyer’s conflicting and per- only after lawyer has informed the firm at the old firm so that the hiring firm sonal interest in securing employment of the lawyer’s intent); Ohio Supreme may screen and check for possible con- with the adversary firm. The lawyer Court Ethics Op. 98-5 (1998) (depar- flicts of interest. Firms worry whether must obtain informed consent from ture should be discussed between firm conflicts of interest will be created the affected client before pursuing and departing lawyer before client is when accepting a lateral hire. The ABA earnest negotiations with the adversary informed); Pennsylvania and Phila- tackled this issue in ABA Formal Op. firm. If the client will not consent, the delphia Joint Ethics Op. 2007-300 (in 09-455 and later added Model Rule lawyer may not pursue employment most cases, client notice should not 1.6(b)(7) saying that, when engaged discussions with the adversary firm precede notice to lawyer’s firm); and in serious negotiations for employ- until the pending case is concluded. Fla. Rule of Prof. Conduct 4-5.8 (pro- ment with a new firm, a lawyer may hibits a departing lawyer from sending disclose limited information to the 2. Notice to the Firm. First and fore- notice until after a good faith effort to extent reasonably necessary to detect most, the departing lawyer must give negotiate a joint notice). and avoid conflicts of interest. Virginia reasonable notice of intent to leave the While both the departing lawyer has not adopted this amendment to firm promptly after making a commit- and the old firm have a duty to notify Rule 1.6; however, it would seem that ment to join another firm. active clients over whose matters the the lateral hire could disclose limited departing attorney has had primary information under Virginia’s Rule 3. Notification of Affected Clients. responsibility, the best practice is for 1.6 unless the client has directed that Lawyers have an obligation under both to issue the notice jointly. Wheth- the information not be disclosed, or Rules 1.4 and 5.8 to communicate with disclosure would likely be “detrimental a client about the impending depar- Ethics continued on page 48

12 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org Confidential help for substance abuse problems and mental health issues.

For more information, visit www.valhl.org or call our toll free number: (877) LHL-INVA Lawyers Helping Lawyers is now Virginia Judges and Lawyers Assistance Program

www.vsb.org Vol. 68 | August 2019 | VIRGINIA LAWYER 13 Legal Aid by Joseph R. Carico Pro Bono Service and the Justice Gap in Virginia

In the mid-1800s, Nathaniel Americans.”1 While legal aid programs Increased participation in pro bono Hawthorne wrote a short story enti- provide legal assistance to low-income work by the Bar is critical.7 tled The Great Stone Face. The story individuals, legal aid lacks the resourc- The Supreme Court of Virginia’s involves a man named Ernest who had es to serve every eligible person or Access to Justice Commission has grown up in the area known for the address every legal problem in need launched various initiatives to ad- Great Stone Face geological forma- of representation. According to the dress the justice gap by encouraging tion located in Vermont. Ernest had 2017 study, even after assistance from more pro bono participation. These been obsessed with a Native American legal aid programs, more than half of initiatives have included judiciary-led prophecy about a man who would be those in need “will receive limited legal pro bono pilot projects throughout born someday in his vicinity, and who help or no legal help at all.”2 While the Virginia. Notably, in order to allow would become the greatest and noblest lack of legal services for low-income judges to trumpet these pilot projects, person of his time and would resemble individuals nationwide is well-docu- our Supreme Court changed the Judi- in likeness, word, and deed the magnif- mented, the justice gap is also plainly cial Cannons. Now, Virginia’s Cannons icence of that Great Stone Face. evident in Virginia. of Judicial Conduct provide that “[a] Ernest went his whole life waiting In 2017, the National Center for judge may encourage lawyers to pro- for that prophecy to be fulfilled. And State Courts conducted the Virginia vide pro bono public legal services.” every time he thought he’d found the Self-Represented Litigant Study. This Chief Justice Lemons highlighted this person who fulfilled the prophecy, study, only the second of its kind in new cannon in a letter enlisting local he was let down. As the years passed, the nation, revealed that in Virginia, judges to participate in these pilot Ernest himself became well-known — “the vast majority of civil cases include projects. Chief Justice Lemons wrote a simple but kind man, full of knowl- at least one unrepresented party,”3 and that “judicial support of pro bono edge, and always helpful and willing that poverty was associated with this legal services can increase lawyers’ to serve his neighbors and those who lack of legal representation.4 The dis- understanding of the importance of were in need. The story ends with oth- parity was true for 99 percent of Gen- pro bono as a necessary component of ers pointing out to Ernest that he, in eral District Court cases, 94 percent of closing the justice gap.” fact, had himself fulfilled the prophecy. Adult Juvenile & Domestic Relations In 2015, one such pilot project Within the heart of this story is a Court cases, and 62 percent of Circuit began in the 25th Circuit. There, with lesson about service to others and the Court cases. Stated another way, the local judicial leadership and the vision good that it can accomplish. As attor- “traditional adversarial model of the and trailblazing support offered by neys, we wield an awesome responsi- court, in which both parties have John Whitfield and our colleagues at bility to serve those who need it most. legal representation, occurs in only Blue Ridge Legal Services, the project That need is embodied by our fellow one percent of General District Court was able to achieve 86 percent pro citizens across the Commonwealth cases, six percent of Adult Juvenile & bono participation by that circuit’s who cannot afford representation for, Domestic Relations Court cases, and practicing attorneys. Last year, the oftentimes, what are the most rudi- 38 percent of Circuit Court cases.”5 Supreme Court of Virginia decided to mentary legal issues. This lack of rep- The study also noted more judicial expand this pilot project into six other resentation results in a literal “justice outcomes in favor of represented par- jurisdictions: the 4th, 5th, 13th, 18th, gap” within our legal system. ties over those who are unrepresented 23rd, and 28th circuits. A study conducted in 2017 by the — a common sense conclusion. Given Southwest Virginia Legal Aid Legal Services Corporation defined that disparity, and the association with Society (SVLAS) agreed to assist with this justice gap as “the difference poverty, it should come as no sur- one of those projects in our own 28th between the level of legal assistance prise that, according to one survey, 56 Circuit — the Appalachian Bench-Bar available and the level that is neces- percent of Virginians believe the poor sary to meet the needs of low-income receive worse treatment in our courts.6 Legal Aid continued on page 50

14 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org CALL FOR NOMINATIONS William R. Rakes Leadership in Education Award

The Section on the Education of Lawyers in Virginia has established an award to honor William R. Rakes of Gentry Locke for his longstanding and dedicated efforts in the field of legal education, both in Virginia and nationally. The inaugural award was presented to Mr. Rakes in conjunction with the 20th Anniversary Conclave on the Education of Lawyers in Virginia sponsored by the Virginia State Bar’s Section on the Education of Lawyers in April 2012.

Past Recipients 2019 — Thomas A. Edmonds 2016 — Hon. Donald W. Lemons 2013 — W. Taylor Reveley III 2018 — Stephen A. Isaacs 2015 — Hon. B. Waugh Crigler 2012 Inaugural Recipient — 2017 — James E. Moliterno 2014 — Hon. Elizabeth B. Lacy William R. Rakes

Criteria This award recognizes an individual from the bench, the practicing bar, or the academy who has: (1) demonstrated exceptional leadership and vision in developing and implementing innovative concepts to improve and enhance the state of legal education, and in enhancing relationships and professionalism among members of the acad- emy, the bench, and the bar within the legal profession in Virginia. (2) made a significant contribution (a) to improving the state of legal education in Virginia, both in law school and throughout a lawyer’s career; and (b) to enhancing communication, cooperation, and meaningful collaboration among the three constituencies of the legal profession.

Nomination Process Nominations will be invited annually by the Section on the Education of Lawyers. A selection committee appointed by the section’s board of governors will meet annually to discuss possible nominations. The selection committee will include five members: at least three members of the Section on the Education of Lawyers, with one each from the bench, the practicing bar, and the academy, including the chair of the section; and at least one former award winner. The award may only be made from time to time at the discretion of the selection committee. When a nominee is selected, the award will be presented at a special event to include a reception for the honoree and his/ her family, friends and colleagues; past award recipients; and special guests. The law firm of Gentry Locke has agreed to un- derwrite the award and the special event to honor award recipients on an ongoing basis. Please submit the nomination form below, together with a letter describing specifically the manner in which your nominee meets the criteria established for the award. Nominations should be addressed to Bernadette S. Peele, chair, Section on the Education of Lawyers, and submitted with your nomination letter to the Virginia State Bar: 1111 East Main Street, Suite 700, Richmond, VA 23219-0026. Nominations must be received no later than December 6, 2019. For questions about the nomination process, please contact Section Liaison Mallory J. Ralston: (804) 775-0514 or [email protected].

WILLIAM R. RAKES LEADERSHIP IN EDUCATION AWARD NOMINATION FORM Please complete this form and return it with your nomination letter to the Virginia State Bar: 1111 East Main Street, Suite 700, Richmond, VA 23219-0026. Nominations must be received no later than December 6, 2019.

Name of Nominee: ______

Profession: ______

Employer/Affiliation (Law Firm, Law School, Court): ______

Address of Nominee: ______

City: ______State: ______Zip: ______

Name of Nominator: ______Telephone: ______

Email: ______Signature: ______

www.vsb.org Vol. 68 | August 2019 | VIRGINIA LAWYER 15 CALL FOR NOMINATIONS Harry L. CarriCo ProfessionaLism award VSB Section on Criminal Law The Harry L. Carrico Professionalism Award was established in Criteria 1991 by the Section on Criminal Law of the Virginia State Bar The award will recognize an individual who meets the following to recognize an individual (judge, defense attorney, prosecutor, criteria: clerk, or other citizen) who has made a singular and unique con- tribution to the improvement of the criminal justice system in the u Demonstrates a deep commitment and dedication to the highest Commonwealth of Virginia. ideals of professionalism in the practice of law and the administra- The award is made in memory of the Honorable Harry L. tion of justice in the Commonwealth of Virginia; Carrico, former Chief Justice of the Supreme Court of Virginia, u Has made a singular and unique contribution to the improve- who exemplified the highest ideals and aspirations of profession- ment of the criminal justice system in Virginia, emphasizing profes- alism in the administration of justice in Virginia. Chief Justice sionalism as the basic tenet in the administration of justice; Carrico was the first recipient of the award, which was instituted at the 22nd Annual Criminal Law Seminar in February 1992. u Represents dedication to excellence in the profession and “per- Although the award will only be made from time to time at the forms with competence and ability and conducts himself/herself discretion of the Board of Governors of the Criminal Law Section, with unquestionable integrity, with consummate fairness and cour- the Board will invite nominations annually. Nominations will be tesy, and with an abiding sense of responsibility.” (Remarks of Chief reviewed by a selection committee consisting of former chairs of Justice Carrico, December 1990, Course on Professionalism.) the section. Prior Recipients Submission of Nomination The Honorable Harry L. Carrico 1992 Hon. Paul B. Ebert 2006 Please submit your nomination on the form below, describing specifi- James C. Roberts, Esquire 1993 Rodney G. Leffler 2007 cally the manner in which your nominee meets the criteria established Oliver W. Hill, Esquire 1995 Prof. Ronald J. Bacigal 2008 for the award. If you prefer, nominations may be made by letter. Hon. Robert F. Horan 1996 Hon. Jere M.H. Willis Jr. 2010 Nominations should be addressed to Seth C. Weston, Chair, Melinda Douglas 2012 Reno S. Harp III, Esquire 1997 Criminal Law Section, and mailed to the Virginia State Bar Office: Hon. Richard H. Poff 1998 Claire G. Cardwell 2013 1111 East Main Street, Suite 700, Richmond, VA 23219-0026. Nom- Hon. Dennis W. Dohnal 1999 Gerald T. Zerkin 2014 Hon. Paul F. Sheridan 2000 Hon. Jerrauld C. Jones 2015 inations must be received no later than December 2, 2019. Please Hon. Donald H. Kent 2001 Hon. Michael N. Herring 2016 be sure to include your name and the full name, address, and phone Craig S. Cooley, Esquire 2002 Philip J. Hirschkop 2017 number of the nominee. Prof. Robert E. Shepherd 2003 Hon. Martin F. Clark Jr. 2018 If you have questions about the nomination process, please call Richard Brydges, Esquire 2004 Hon. M. Hannah Lauck 2019 Maureen D. Stengel, Director of Bar Services, Virginia State Bar, at Overton P. Pollard, Esquire 2005 (804) 775-0517.

Harry L. CarriCo ProfessionaLism award NOMINATION FORM Please complete this form and return it to the Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, VA 23219- 0026. Nominations must be received no later than December 2, 2019.

Name of Nominee: ______Profession: ______Employer/Firm/Affiliation: ______Address of Nominee: ______City ______State ______Zip ______

Name of person making nomination ______Telephone ______(Please print) Email ______Signature ______

(Please attach an additional sheet explaining how the nominee meets the criteria for the Harry L. Carrico Professionalism Award.) Get Real: The Real Property Issue

by Ronald D. Wiley Jr.

The Virginia State Bar Real Property Section concerns itself ed consequences and unaccomplished objectives in matters “with all fields of real estate practice and procedure in the involving real property. Commonwealth of Virginia” and exists in part “to spon- The Real Property Section welcomes any members of the sor publications . . . of special interest and relevance to the Virginia State Bar, even those whose practices may only occa- members of the section and the Virginia State Bar in fields of sionally involve real property issues, to join our section. We are real estate practice and procedure, and to further the public’s a friendly and very collegial group of lawyers who enjoy our understanding of their rights and obligations in such areas of professional association. Our $25 section dues cover two issues law.” 1 We intend this issue of Virginia Lawyer to be relevant to of The Fee Simple, our section publication, annually. members of the Bar who may not practice regularly in the area We also co-sponsor two live annual continuing educa- of law that primarily concerns our section. tion programs with Virginia CLE® each spring: an advanced Members of our section often deal with other fields of law program typically in early March, and another program in practice indirectly affecting real estate practice and procedure. May covering important and relevant legislative and case law We sometimes need to resolve the unintended but very real updates along with other current topics presented at three consequences or the failure to accomplish intended outcomes locations around the Commonwealth. Section members are of legal representation involving ancillary real property law given discounts almost equal to their section dues to register issues. Many members of the Bar may not have needed to for either of these great annual programs. A real deal! consider pure real estate practice and procedure issues since studying for the bar exam and, yet, many legal issues can affect Endnote: 1 Bylaws of the Real Property Section of the Virginia State Bar, Art. I, § 2, real property rights and obligations. adopted June 18, 2010 (italics added) The Real Property Section proudly thanks its mem- bers who contributed to this issue of Virginia Lawyer. Susan Bradford Tarley’s article on common interest communities and managers should be helpful to anyone living in a neigh- borhood with a common interest owners association. Former Section Chair Lewis Biggs reminds us that bankruptcy dis- charge may not be a complete solution for avoiding pre-bank- ruptcy debts. Former Section Chairs Kay Creasman and Paul Melnick offer useful pointers for anyone drafting deeds in matters primarily involving other practice areas. And Kay Ron Wiley Jr. is the 2019–2020 chair of the Real Property Section. He has been a real estate lawyer in Charlottesville since graduating in 1983 from Creasman shares information about transfer on death deeds the T. C. Williams School of Law at the University of Richmond. Ron that originally appeared in our section’s periodical five years became underwriting counsel with Old Republic Title in 2016. He is a ago but remains relevant today. We hope these articles will frequent presenter of continuing education programs for real estate profes- sionals and has helped teach a real estate transactions and finance course interest not only members of our section but also members at the University of Richmond law school every year since 2013. Wiley has of the Bar at large and help attorneys avoid those unintend- been married to Gail Hyder Wiley since 1980, and they have two adult sons. www.vsb.org REAL PROPERTY | Vol. 68 | October 2019 | VIRGINIA LAWYER 17 No Good Deed Goes Unpunished: Your Practice and Real Estate Transactions by Kay M. Creasman and Paul H. Melnick

You have undoubtedly heard the and impact each other regularly. This saying: “No good deed goes unpun- article sets forth real estate practice ished.” Many real estate attorneys tips for all attorneys, but especially for would probably prefer the saying to those who don’t regularly work in the be: “The drafters of bad deeds may real estate area. very well get punished,” because of the General Comments on Deeds: real peril that can be caused by deeds When drafting a deed, make sure the grantors that are incorrectly drafted. At best, and grantees are properly identified, including such deeds will slide through a trans- marital status for individuals or state of domi- action and not cause any immediate cile for an entity. Spell names correctly. harm (but may cause harm later). At Make sure an entity legally exists. (A deed worst, such deeds can cause substan- from or to an entity that does not legally exist is a nullity.) tial damage to clients, including the If a couple is married, say so. Survivor- loss of their real property interest. ship is not automatic for a married couple. Estate planning documents that are Although no longer required by statute,1 if incorrectly drafted (powers of attor- a couple takes title as tenants by the entire- ney and trusts, e.g.) can have similar ty, add “with right of survivorship” to cover those situations where grantees are not actu- adverse impacts on the real property ally married. For example, sometimes clients of clients. The various specialty prac- are embarrassed to say “Oh, we were married, tice areas of attorneys are interrelated but we divorced then got back together but

18 VIRGINIA LAWYER | October 2019 | Vol. 68 | REAL PROPERTY www.vsb.org NO GOOD DEED haven’t bothered with the formality of getting deed of gift, use a regular deed of conveyance married again.” In other instances, a mother with the appropriate exception in Va. Code § and son take title intending survivorship but 58.1-811 to eliminate recordation taxes and to are erroneously identified as a married couple avoid potential tax issues. as tenants by the entirety. Adding words of If real estate is being conveyed to an survivorship creates a joint tenancy with sur- existing entity, determine that the entity is vivorship even if the acquiring parties are not in existence and that the correct name and married.2 entity format has been provided by the client. If you have not been furnished a title Whether domiciled in Virginia or elsewhere, commitment, have at least a “current own- this information is easily available online. er” title search done before drafting a deed. Clients may have conveyed property to a re- Family Law: vocable living trust and fail to remember they Avoid using deeds of gift between spouses. have done so. In that situation, the trustees This can possibly cause adverse issues if the would need to convey or the deed would not spouses divorce and need to divide their prop- be effective.3 erty. Instead, use a regular deed of conveyance Check and double check the legal de- with no monetary consideration—it will be scription. Use the full legal description for the exempt from recording taxes because it is real property from the vesting deed, not the between spouses.5 abbreviated description on the tax assessment. When the ownership of property is Unless you are relying on a title commit- determined by property settlement agree- ment, make sure a metes and bounds legal ments and/or divorce proceedings, it’s better description closes.4 If it’s a lot/block/section in to deed the real estate to whichever spouse a subdivision, make sure the plat is record- will own the property at the end prior to the ed where the deed says it is recorded. The divorce becoming final, to avoid co-ownership referenced plat may, for example, be a utility as tenants in common and perhaps having easement (not the actual subdivision plat) judgments attach to the real estate. Too often, and which would not describe the property real estate practitioners see transactions where adequately. years after the divorce, the spouse who was Use “whereas” (recital) clauses if there is deeded the real estate after the divorce decree a helpful story to explain matters in the chain was final has to pay debts of his or her prior of title that are out of the ordinary. Be liberal spouse because the judgment of that spouse with “whereas” clauses and incorporate the recitals into the deed by reference. When the ownership of property is determined by property Business/Commercial Law: settlement agreements and/or divorce proceedings, it’s better Custom and practice have entities conveying by special warranty deed when conveying to to deed the real estate to whichever spouse will own the a third party, limiting liability to the time the property at the end prior to the divorce becoming final ... entity owned the real estate. When conveying from an individual to an entity in exchange for a share in the entity, or a merger of two attached to the real estate the minute the entities, consider using a general warranty divorce decree was entered. If it is necessary to deed instead to protect your title insurance wait to record the deed, have a “current own- coverage. A quitclaim deed should be avoided; er” title search (including a judgment search) it has exceedingly limited application and title done to make sure there are no surprise judg- companies may be reluctant to insure title to ments that can cause a future problem. real estate with a quitclaim deed involved. Often with divorces, the parties fail to When contributing real estate in the es- record the deed: the spouse in possession of tablishment of a business, rather than using a the real estate thinks the property settlement www.vsb.org REAL PROPERTY | Vol. 68 | October 2019 | VIRGINIA LAWYER 19 NO GOOD DEED

agreement stating they are to receive the current military form clearly says it is not home serves as sufficient record of ownership. durable, which would invalidate a deed if the A property settlement agreement, on its own, agent signs when the principal has become does not convey title to real estate. A deed incapacitated, even if that information has from the other owner or a very specifically not been communicated to agent. worded court order transferring real estate Military powers of attorney are given pursuant to Va. Code § 20-107.3 (which is great latitude but review them to make sure required to be recorded in the land records), they don’t say they are not durable (i.e., that is needed to properly convey the real estate. the powers granted by the power of attorney Title to real estate is conveyed only by deed or don’t terminate upon the disability of the will,6 or by court order in specific situations. principal). From a real estate perspective, it’s better if the parties have a deed signed and recorded. If the Trusts: divorce is so hostile that one party refuses to For the last several decades, estate planners sign, the judge can appoint a special commis- have preferred inter vivos (“living”) trusts. In sioner to sign on behalf of the hostile spouse. deeds to trustees of trusts, always set forth the powers of the trustee to deal with the real Powers of Attorney: property. This preserves the private nature of When a power of attorney with authority over a trust and prevents parts of the trust from real estate is utilized to sign a document to be needing to be recorded later to show the pow- recorded, the original POA should be record- ers of the trustee. Make sure that the powers ed first, together with an agent certification. A set forth in the deed align with the powers set POA should include the legal description of forth in the trust. It’s advisable to set forth the the property from the most recent deed, the powers with as much detail as possible. Some address of the property, and tax identification practitioners may feel that simply incorpo- number of the property to assure that all ap- rating by reference the powers set forth in plicable property is described in the power of Virginia Code §§ 64.2-105 and 64.2-778 is attorney. Anything short of this information sufficient to provide for the powers of the may not cover all applicable property. Be sure trustee to deal with the subject real property. to include generic language as well to cover This may be satisfactory in most cases, but after-acquired real estate. the better practice is always to set forth in the deed the actual powers of the trustee concern- ing real property so that anyone reviewing the Often with divorces, the parties fail to record the deed: the deed (especially title searchers or non-attor- spouse in possession of the real estate thinks the property neys) will immediately see and comprehend the powers of the trustee. settlement agreement stating they are to receive the home If your client so desires, have the trust serves as sufficient record of ownership. specify the trustee’s power to mortgage or en- cumber trust assets to secure any of the grant- or’s indebtedness. This language prevents If using a standard Uniform Power of future problems (such as needing to convey Attorney Act form, make sure to have the the property back to the grantor of the trust client initial the powers they are granting the or needing a trust amendment) if the grantor agent, or amend the form to allow the powers of the trust wants to finance or refinance the to be checked. Take special care to make real property held by the trust with herself as clear what type of self-dealing and gifting is the borrower. Lenders can be very particular allowed, through appropriate designations in about the trustee powers to encumber trust the “special powers” section. real property. Under current Virginia statutes, all POAs If trustee powers are not set out in the are durable unless they say they are not. One deed, problems can arise in later years if the

20 VIRGINIA LAWYER | October 2019 | Vol. 68 | REAL PROPERTY www.vsb.org NO GOOD DEED trust agreement can no longer be found. It’s testator, or the gift will pass to another named prudent to set forth successor trustees as well, beneficiary who survives the testator. This to provide for continuity if the trust agree- helps to avoid the application of Virginia’s ment is missing in future years. anti-lapse statute, Virginia Code § 64.2-418, which may mean that the real property passes Wills: in a way that is possibly contrary to the desires If there is a concern that one or more of the of the testator. (This practice tip should also real property beneficiaries has or will have be considered when trusts are prepared for creditor issues, or if there are many beneficia- clients.) ries, have the property devised to the executor In addition, even when you have provid- with a direction for the executor to sell the ed for everything, be sure to include a residu- real property and distribute the proceeds of ary clause to avoid unintended consequences sale to the beneficiaries. This prevents the if devisees pass away prematurely. title to the real property from vesting in the Consider using a Transfer on Death deed beneficiaries and in turn prevents beneficia- (See page 26 for more on these) in your estate ries’ creditors’ judgment liens from attaching planning when probate avoidance is the main to the property.7 It also prevents problems objective and the estate is relatively simple associated with many beneficiaries owning or small.8 Lastly, make sure compliance with fractional interests in the real property as the provisions of the Uniform Real Property 9 tenants in common (i.e., beneficiaries each Transfer on Death Act are closely followed. q having the right to occupy the property, or property management problems). Always set forth in the will what is to happen to the real property if the beneficiary has predeceased the testator. For instance, the testator can provide that the gift shall lapse if the primary beneficiary predeceases the

Kay M. Creasman, assistant vice president and Paul H. Melnick, is a principal of Pesner Altmiller counsel for Old Republic National Title Insurance Melnick & DeMers PLC, where he focuses his prac- Company, focuses on practical problem solving tice in the areas of real estate, estate planning, and while getting real estate transactions to close. She is estate/trust administration. He has served Arlington former chair of the Real Property Section of the VSB County as a member of its Board of Zoning Appeals and recipient of the Traver Scholar Award (2017) since 2013. He has served on the Fourth District presented by the Real Property Section and VaCLE. Disciplinary Committee Section I for the VSB and is She is a member of the VSB Trusts and Estates past chair of the VSB Real Property Section. Melnick Section and on the Board of Governors for the VBA’s is also a member of the VSB Trusts and Estates Real Estate Section. Creasman is past president of Section and the Arlington County Bar Association the Virginia Land Title Association and 2010 recipi- Trusts and Estates and Elder Law sections. ent of its Distinguished Service Award.

Endnotes 6 Va. Code § 55.1-101 (prior § 55-2). 1 Va. Code § 55.1-136 (prior § 55-20.2). 7 See Stark v. City of Norfolk, 183 Va. 282, 32 S.E.2d 59 2 Gant v. Gant, 237 Va. 588 ( 1989). (1984); Harrison on Wills and Administration, 2d 3 Austin v. City of Alexandria, 574 S.E.2d 289, 265 VA Ed. p. 578. 89 (2003). 8 Federal estate tax exemption equivalency for 2019 is 4 Search “free deed plotter” for sites at the time you $11,400,000.00. need to use them. Many are available. 9 Va. Code § 64.2-621 et seq. 5 Va. Code § 58.1-810. www.vsb.org REAL PROPERTY | Vol. 68 | October 2019 | VIRGINIA LAWYER 21 Liens That Survive Bankruptcy: Is There a Better Way to Get That Message to Debtor Clients? by F. Lewis Biggs

Real estate lawyers report that release a debtor from many personal liabilities, they frequently run into situations but it will not clear the lien from the proper- ty. Thus, a creditor may still enforce the lien in which a lien survives bankruptcy. against the property in an in rem proceeding.2 Property owners enter into a contract There are, of course, exceptions to the for the sale or refinance of their land rule. Certain liens that are partially or fully “underwater” on the date of the bankruptcy which has (or had) judgment liens filing may, in some circumstances, be avoided, attached to it. The homeowner confi- “stripped-down,” or “stripped-off.” Those cir- dently (but incorrectly) believes that cumstances and their limitations3 are beyond prior bankruptcy proceedings have the scope of this article, but recent articles by other Virginia lawyers, mentioned below, discharged those liens. Unfortunately, explore that aspect of the law.4 once it is determined that these liens Whether or not lien stripping or avoid- were not in fact discharged, problems ance is (or was) available in bankruptcy, many arise which may include the failure to debtors do not know that pre-bankruptcy liens survive discharge. This problem could perform the sales contract for sale or arise from any of a number of possible sourc- financing falling through.1 es, including (i) the abstract, confusing nature of lien survival vs. debt survival, (ii) an As a general rule, deeds of trust, judgment understandable tendency by debtors to focus liens, and tax liens, among others, survive on short term, pressing threats, (iii) a lack bankruptcy. A bankruptcy discharge may of effective communication between lawyers

22 VIRGINIA LAWYER | October 2019 | Vol. 68 | REAL PROPERTY www.vsb.org LIENS THAT SURVIVE BANKRUPTCY and clients, and/or (iv) a failure of debtors to Association. Search orders should specify disclose (and their lawyers to identify) liens and limit what copies are to be pulled (e.g., against real estate. the source deed and any deeds of trust, for The purpose of this article is to highlight accurate scheduling, and docketed judgment the long-term, sometimes devastating, impact liens). of lien survival on individual debtors — and Several practitioners identified what may to urge bankruptcy lawyers who represent be the most vexing problem concerning lien individuals to consider if there are ways to survival. If a judgment lien is known, the improve their clients’ understanding and lawyer has a duty to analyze lien stripping or expectations. avoidance options. If any options are viable, The idea that liens exist independently the lawyer then has a duty to bring a motion from the underlying debts (and can sur- or adversary proceeding seeking a remedy. vive the debts) is very a difficult concept for The real cost to the debtor in the latter case even the most sophisticated clients to grasp. is not the $150 title search but a substantial Individual debtors facing bankruptcy are increase in legal fees because of the time and probably not going to study or understand process involved in what in essence is an complex disclaimers and warnings, no matter additional proceeding within the bankruptcy how well-crafted. Thus, I think it is fair to say proceeding. that, in an ideal world, best practice would In preparation for writing this article, I be to both (i) present clients with detailed spoke with bankruptcy practitioners about written disclaimers and (ii) have specific and lien survival to account for their perspectives. direct conversations with clients about the One reported that his office requires that potential future impacts of lien survival. The clients complete detailed paperwork that, former would protect the lawyer; the latter among other things, discloses known liens. If would help clients achieve understanding the client discloses judgment liens, the office (and manage expectations). Even in situations pulls records or has the client pull records. where lien stripping or avoidance is not an However, the office does not routinely order option, better knowledge and understanding title searches. The office also provides clients could help clients plan better and may prevent a very detailed information packet disclosing them from entering into sales contracts that that liens survive bankruptcy and offering, they cannot perform because of the extent of for a fee, to order title searches.5 Several other liens against the property. bankruptcy practitioners confirm that the The issue of whether bankruptcy lawyers foregoing practice is typical. must or should run title searches is tricky. Debtors may not be able to accurately disclose liens, especially given the financial stress driv- ing them to file. In an ideal world, obtaining The idea that liens exist independently from the under- current lien searches on all owned real estate lying debts (and can survive the debts) is very a difficult would be best practice; many debtors, howev- er, may not be willing or able to pay for those concept for even the most sophisticated clients to grasp. searches. One possibility could be to try to reduce the cost of lien searches as much as possible. Some bankruptcy lawyers report that they The easiest path for bankruptcy lawyers, send clients to the record room to search for it seems, may be to disclose but not really judgments themselves. Other (more reliable?) explain; and look for liens, but not look too options may be to order a “current owner diligently. This path may be prudent from a search” (about $150 in the Richmond area), business standpoint, but it sometimes exacts a or a mere “judgment lien search” (about very heavy price from clients. $75). High-volume bankruptcy offices may I hope this article highlights a frequent, be able to negotiate discounts, perhaps by yet not often thought about problem and contracting directly with an independent title examiner certified by the Virginia Land Title Liens continued on page 28 www.vsb.org REAL PROPERTY | Vol. 68 | October 2019 | VIRGINIA LAWYER 23 A Review of Selected Virginia Laws and Regulations Pertaining to Common Interest Communities and Community Managers by Susan Bradford Tarley

Common interest communities erned communities in the United States. The number has continued to grow; 2018 statistics have been in existence in the United show 347,000 associations governing commu- States since the mid-1800s. Louisburg nities in the United States.3 Square in Boston, Massachusetts is In Virginia, most localities require a developer to form a community associa- known as the first official homeowner tion to manage the infrastructure (such as association.1 Twenty-eight Louisburg drainage and storm water facilities) and any Square owners elected a committee to recreational areas and clubhouses for the community. For condominiums, the Virginia manage a park that was limited to use Condominium Act requires the establishment by those owners. The committee had of a unit owners association to manage the the authority to charge each owner for condominium.4 Community associations in the the fees required to maintain the park. Commonwealth try to balance efficiency, Thereafter, similar homeowner asso- effectiveness, and ensuring that owners are ciations formed in other parts of the informed. Virginia balances the need for community associations to efficiently and United States to manage park areas in effectively enforce the restrictive covenants, neighborhoods. rules, and regulations for a community with the importance of keeping owners informed Fast forward to the 1960s. Developments are of the activities of the community, including formed with homeowner associations to man- its expenditures for common expenses. The age restrictive covenants and any recreational rights and concerns for owners is further areas dedicated to the owners. According evident in the requirement for community to the Community Association Institute,2 managers to be licensed; the Virginia Code by 1970 there were 10,000 association-gov- imposes management experience and edu-

24 VIRGINIA LAWYER | October 2019 | Vol. 68 | REAL PROPERTY www.vsb.org COMMON INTEREST COMMUNITIES cational requirements on community managers.5 The Office the applicable law or regulations, and make a decision as to of the Common Interest Community ombudsman provides whether the community association is in violation.16 an additional resource for owners to obtain information and The CIC ombudsman’s decision is not binding on either education on common interest communities. It also serves as a party, but it provides a third-party review and guidance in an forum for their complaints to be heard. effort to resolve the member’s issue. The decision is in the sole This article reviews the governmental oversight structure discretion of the ombudsman and is a final decision with no in Virginia for common interest communities and provides further review.17 Even though the decision is not binding, if the a limited summary of the Virginia laws and regulations that ombudsman finds a violation and the association fails to take govern them. the recommended action(s), the next complaint alleging the same violation could be referred to the CICB for action. I. OVERSIGHT OF COMMON INTEREST COMMUNITY ASSOCIATIONS AND COMMUNITY MANAGERS II. VIRGINIA STATUTES AND REGULATIONS RELATED Virginia condominium associations and property owners’ TO COMMON INTEREST COMMUNITIES AND associations (collectively “community associations”) are COMMUNITY MANAGERS required to register with the Common Interest Community The statutes governing common interest communities include Board (CICB). The Virginia Department of Professional and the Virginia Property Owners’ Association Act (Va. Code Occupational Regulation (DPOR) is the regulatory agency Ann. §§ 55.1-1800 et. seq.), the Virginia Condominium Act that oversees the CICB. The CICB regulates condominiums, (Va. Code Ann. §§ 55.1-1900 et. seq.), and Common Interest community associations, community managers, and certain Communities (Va. Code. Ann. §§ 54.1-2345 et. seq.). The management company employees. Currently, there are more Virginia regulations pertaining to common interest commu- than 6,527 registered community associations in Virginia, of nities include the Common Interest Community Manager which 4,430 are property owner associations and 1,801 are Regulations, the Common Interest Community Management condominium associations.6 Information Fund Regulations, the Common Interest Community Ombudsman Regulations, and the Condominium A. COMMON INTEREST COMMUNITY BOARD Registration Regulations. The CICB is created by statute7 as a policy board;8 it consists We will review selected portions of the CIC Manager of eleven members appointed by the Governor. The CICB has Regulations and CIC Ombudsman Regulations. broad authority over management companies, including the authority to establish regulations, fees, procedures, and quali- A. COMMON INTEREST COMMUNITY MANAGER fications for the issuance and renewal of community manager REGULATIONS licenses. Included in its authority is the establishment of crite- The CICB is empowered to promulgate regulations for com- ria for licensing of management companies and the certifica- munity managers.18 The CIC Manager Regulations are part of 9 tion of certain management company employees. The CICB the Virginia Administrative Code;19 the Regulations provide approves educational programs and required training and the details for the required licensure and certification of com- enforces the statutory requirements and regulations pertaining munity managers. (Virginia is one of nine states that require 10 to management companies. community managers to be licensed.) Any firm or person Complaints concerning actions of community managers offering community management services must apply to the 11 are handled by the CICB. If a community association is not CICB for its license. 20 compliant with the relevant laws and regulations, the CICB is The license process is very broad but stringent. Applicants authorized to take action, which may include filing a lawsuit must disclose their criminal history, obtain a blanket fidel- against the community association, issuing a cease and desist ity bond or employee dishonesty policy, and meet required order, or assessing a monetary penalty up to $1,000 per viola- standards of conduct. Further, each applicant must hold an 12 tion. active designation as an Accredited Association Management Company (AAMC) by the Community Associations Institute B. OFFICE OF THE COMMON INTEREST (CAI) or have an employee who holds a Professional COMMUNITY OMBUDSMAN Community Association Manager (PCAM) designation from The CIC ombudsman offers assistance and information to CAI.21 community association members.13 The director of DPOR 14 The AAMC designation requires a minimum of three appoints the ombudsman; the ombudsman is separate and years of management experience; a senior manager with a distinct from the CICB. PCAM designation. At least 50 percent of the managers em- If a community association member has a complaint on ployed by the company for at least two years must hold a CAI whether or not their association is complying with Virginia professional manager designation; fidelity, general liability, and laws or regulations related to common interest communities, worker’s compensation insurance; and compliance with the the member may file a complaint with the CIC ombudsman.15 CAI Code of Ethics for Managers.22 The PCAM designation re- The ombudsman will review the member’s complaint and any information submitted by the community association, analyze Communities continued on page 29 www.vsb.org REAL PROPERTY | Vol. 68 | October 2019 | VIRGINIA LAWYER 25 Transfer on Death Deeds by Kay M. Creasman

Since July 1, 2013, Virginia’s Summary of TOD provisions in the Virginia

1 Code Transfer on Death (TOD) deeds 1. The provisions apply to a TOD deed have frequently been used as a way to made by the transferor “on, before or insure title vests in the named benefi- after July 1, 2013,” when the transferor dies on or after July 1, 2013.4 ciary(ies) immediately upon the death 2. A TOD deed is revocable, even if it says of the record owner. This avoids the it is not.5 3. The TOD deed is nontestamentary.6 burdens of probate, as the deeds are 4. The TOD document must meet all the the equivalent of “payable on death” requirements of a deed in order to be (POD) beneficiary designations used recorded, except that there need not be any notice, delivery or acceptance, nor with intangible personal property any consideration.7 assets such as retirement or bank ac- 5. The TOD deed must be recorded prior to the transferor’s death.8 counts. TOD deeds are used when an 6. If no consideration is paid, the TOD deed estate is small2 or uncomplicated3, and is exempt from recordation tax.9 7. If property is held as tenants by the real property owners want to retain entirety or as joint tenants with a right of autonomy over their real estate during survivorship, all co-tenants must sign the their lifetimes (e.g., they don’t want TOD deed for it to be effective. This does not apply to property held by multiple co-owners or to establish a life estate). parties as tenants in common.10 TOD beneficiaries have no interest in 8. Revocation of a TOD deed may occur, in whole or in part, through: the real estate until the death of the a. An inter vivos transfer of the proper- grantor who owns the real estate. ty (i.e., the transferor (grantor) sells

26 VIRGINIA LAWYER | October 2019 | Vol. 68 | REAL PROPERTY www.vsb.org TRANSFER ON DEATH DEEDS

it or gives it to someone else by deed liens, and other interests to which the recorded before he or she dies); property is subject at the transferor’s b. A deed of revocation; death.” c. A TOD naming a subsequent f. TOD deed “transfers property with- beneficiary (though any revoca- out covenant or warranty of title tion document must be record- even if the deed contains a contrary ed prior to the death of the provision.” transferor)11. 12. A beneficiary may disclaim all or part of 9. Revocation must be recorded prior to the his interest following disclaimer rules set death of the transferor(s) and is not effec- out in Va. Code § 64.2-2600 et seq.15 tive if the original TOD deed, or a copy 13. Property is subject to claims of creditors of the recorded TOD deed, is marked to of the transferor, but a proceeding to indicate that the transferor changed her enforce the liability must be “commenced mind12. not later than one year after the transfer- 10. Effect of the TOD deed during the trans- or’s death.” 16 feror’s life13: 14. A statutory form is provided in Va. Code a. A TOD deed is only effective after § 64.2-635. the death of the transferor. b. A TOD deed has no effect on the right of the transferor to sell, gift or encumber the real estate (e.g., to have a deed of trust recorded). c. The fact that a third party has actual knowledge of the TOD deed does not affect the ownership interest of the transferor (i.e., he can do what he wants with the real estate) Kay M. Creasman, assistant vice president and d. No interest is vested in the transferee counsel for Old Republic National Title Insurance during the life of the transferor. The Company, focuses on practical problem solving while getting real estate transactions to close. She is transferee has no legal or equitable former chair of the Real Property Section of the VSB interest during the life of the trans- and recipient of the Traver Scholar Award (2017) feror; his creditors cannot attach any presented by the Real Property Section and VaCLE. She is a member of the VSB Trusts and Estates interest in the real estate. Section and on the Board of Governors for the VBA’s 11. Effect of the transfer on death deed after Real Estate Section. Creasman is past president of the transferor’s death14: the Virginia Land Title Association and 2010 recipi- ent of its Distinguished Service Award. a. Property interest conveys at the mo- ment of death to the beneficiary in the most recent, recorded, unrevoked TOD deed. b. The beneficiary must survive the transferor. c. Multiple beneficiaries take title in Endnotes: 1 Virginia Uniform Real Property Transfer on Death equal undivided shares with no right Act, Va. Code § 64.2-621 et seq. of survivorship. However, if one of 2 Federal exemption equivalency for 2019 is multiple beneficiaries fails to take $11,400,000. 3 Such as, one marriage or all children from one title for any reason (predeceased marriage. transferor, disclaims, slayer statute 4 Va. Code § 64.2-622. applies, etc.) then surviving named 5 Va. Code § 64.2-625. 6 Va. Code §§ 64.2-626, -627. beneficiaries take that beneficiary’s 7 Va. Code §§ 64.2-628, -629. interest in proportional shares. 8 Va. Code § 64.2628(3). d. Divorce or annulment revokes a 9 Va. Code § 64.2628(5). 10 Va. Code §§ 64.2-621, -628(6). TOD deed, unless the deed specifi- 11 Va. Code § 64.2-630(A). cally says otherwise. 12 Va. Code § 64.2-630(C). e. Beneficiaries take title subject to 13 Va. Code § 64.2-631. 14 Va. Code § 64.2-632 . “all conveyances, encumbrances, 15 Va. Code § 64.2-633. assignments, contacts, mortgages, 16 Va. Code § 64.2-634. www.vsb.org REAL PROPERTY | Vol. 68 | October 2019 | VIRGINIA LAWYER 27 Liens continued from page 23

invites consideration about ways to im- Endnotes: Liens in Bankruptcy, by The Hon. Stephen 1 Consider the following real-life example: A S. Mitchell, THE FEE SIMPLE, Vol. XXXIV, prove communications and subsequent former debtor was recently unable to close on No. 2 (Fall 2013) and Stripping it Down – long-term outcomes between bankrupt- a equity line of credit needed to send a son or Real Estate Issues in Bankruptcy, by Sarah cy attorneys and their debtor clients. daughter to college. Beckett Boehm, VIRGINIA LAWYER, Vol. 64 q 2 See 11 U.S.C. § 524 (Effect of Discharge). E.g., (February, 2016). In Re: Deutchman v. Internal Revenue, 192 5 That information packet (reprinted F.3d 457 (4th Cir., 1999) “As a general rule, with permission) contains the follow- liens pass through the bankruptcy process ing excerpt related to liens on real estate, unaffected. This is because a bankruptcy dis- among others: “JUDGMENT LIENS – We charge extinguishes only in personam claims do not obtain title examinations on your against the debtor(s), but generally has no real property. Judgments may have been effect on an in rem claim against the debtor’s docketed as liens against your real prop- property. In order to extinguish or modify a erty, and you may not know about it. lien, the debtor must take some affirmative A BANKRUPTCY DISCHARGE DOES step toward that end.” (citations omitted). NOT AUTOMATICALLY ELIMINATE 3 The following is a crude summary of the JUDGMENT LIENS AGAINST YOUR REAL law related to lien stripping outside of the PROPERTY! GENERALLY, LIENS PASS context of stripping/avoidance actions for THROUGH BANKRUPTCY AND ARE preferences or fraudulent conveyances or ENFORCEABLE AFTER BANKRUPTCY under a trustee’s strong-arm powers – Lien AGAINST THE PROPERTY THEY ARE F. Lewis Biggs is a partner at Kepley stripping is generally not available in Chapter ATTACHED TO! There are some limited Broscious & Biggs, PLC, focusing on 7 bankruptcies (Dewsnup v. Timm, 502 U.S. circumstances where the lien may be modi- commercial real estate and finance and on 410 (1992)), except to the extent certain fied by Court Order. But, it may be difficult, Chapter 7 bankruptcy matters involving the judgment liens impair available homestead expensive and/or even impossible to have use, sale, and leasing of real estate under 11 or other exemptions (11 U.S.C. § 522). It pre-Bankruptcy judgment liens removed or U.S.C. § 363. He has extensive experience may be available in bankruptcies brought released. Please let us know if there are any with Virginia and multi-state real estate under Chapter 11 or 13 (11 U.S.C. § 506(a) judgment liens against your real property. transactions, real estate due diligence, and (d)), but the following broad exceptions If there are, please obtain a copy of the third-party opinion practice, problem real apply: (a) Reorganization plans may not strip docketed lien from the Courthouse and bring estate loans, workouts and foreclosures, or otherwise “modify” a claim secured by a it to us so, at your request, we can address complex purchase and sale transactions, deed of trust on principal residence unless (at this issue and advise you. If you don’t know th and loan portfolio due diligence and least in the 4 Circuit) such deed of trust is, whether there are judgment liens, but suspect acquisitions. He serves on the Board of on the date of filing, completely underwater; there may be, you should consider making ar- Governors of the Real Property Section and (b) under Chapter 11, a creditor with rangements to have a title examination done of the Virginia State Bar and previously some equity may be able to thwart efforts to to determine lien existence and priorities. served as that section’s chair. A graduate of strip by electing to have a its claim treated as Remember, we do not do or arrange for title Hampden-Sydney College, he earned his fully-secured (11 U.S.C. § 111(b)(2)). examinations unless special arrangements J.D. from Washington and Lee University 4 Recent articles covering lien-stripping in are made by you. They generally cost about School of Law. bankruptcy include “Strip-Off”of Real Estate $400.00 which you must pay for in advance.”

28 VIRGINIA LAWYER | October 2019 | Vol. 68 | REAL PROPERTY www.vsb.org Communities continued from page 25

quires five years of direct community association management regulations or interpretations by the CICB to assist them in the experience, successful completion of six courses through CAI administration of the community association.31 (approximately 84 hours), and a required examination.23 Principal or supervisory employees of a management CONCLUSION company are required to obtain certification through the Virginia laws and regulations continue to evolve and expand CICB.24 The employee must submit information similar to the in regulating common interest community associations and management company application concerning convictions community managers. Owners in common interest commu- and standards of conduct, and must hold a Certified Manager nities expect that the restrictive covenants and rules will be of Community Association (CMCA) from the Community enforced and that their community association will follow the Association Managers International Certification Board law. Associations conversely expect that owners will comply (CAMICB),25 or Association Management Specialist (AMS)26 with the restrictive covenants and rules for the community and or PCAM designation from CAI, or have two years’ experience be compliant with the law. It is when these expectations are not and complete a comprehensive training program approved by met that the laws and regulations are brought to the forefront the CICB. for both owners and common interest community associa- The 2019 General Assembly session included House Bill tions. q 2099 that proposed removing regulatory requirements for common interest community managers, thereby removing all requirements for licensing and certification. The Joint Legislative Audit and Review Commission (JLARC) conducts program evaluation, policy analysis, and oversight of state agencies on behalf of the Virginia General Assembly. JLARC staff reviewed DPOR and its staffing and organization, its pro- cessing of licenses, and enforcement of regulations and rules, and found that, “DPOR licensing requirements are generally Susan Bradford Tarley, CCAL, is a partner in Tarley Robinson, PLC in appropriate, but regulation of some occupations may not be Williamsburg. Tarley focuses on civil practice including commercial and warranted.”27 JLARC determined that community managers residential real estate matters, community association law, and small did not appear to meet the criteria for regulation. The bill business representation. She has been appointed to the Best Practices for Declarations Committee through Virginia Common Interest Community did not pass out of the General Laws committee; however, we Board. She is a graduate of George Mason School of Law and Pennsylvania anticipate this issue may be raised in future sessions. State University.

B. COMMON INTEREST COMMUNITY Endnotes OMBUDSMAN REGULATIONS 1 Redefining Civic Responsibility: The Role of Homeowner Associations and The CIC Ombudsman Regulations provide the framework and Neighborhood Identity, Mark Huyler, Section 2.3.2 The First Homeowner detail for owners to obtain information about common inter- Association, page 34. 2 Community Associations Institute (CAI) is an international trade est communities and have an inexpensive forum in which to organization that provides information, education and resources to register a complaint if an owner believes the common interest community managers, homeowner leaders, and business partners who community association is not compliant with relevant Virginia provide services to community associations. 28 3 National and State Statistical Review for 2018, Community Association laws or regulations. The CIC Ombudsman Regulations re- Data, Foundation for Community Association Research, CAI. quire all common interest community associations to imple- 4 Va. Code Ann. § 55.1-1940 (A). ment a written complaint procedure.29 5 18VAC48-50-30. 6 July 12, 2019 registration information provided by the Virginia If an owner receives an adverse decision from the commu- Department of Professional and Occupational Regulation. nity association, the owner has 30 days to submit a notice of fi- 7 Va. Code Ann. § 54.1-2348. nal adverse claim to the CIC Ombudsman for review. The CIC 8 Va. Code Ann. § 2.2-2100 (A) “Policy” -- A board... shall be classified as policy if it is specifically charged by statute to promulgate public policies ombudsman will acknowledge receipt of the claim and send a or regulations. It may also be charged with adjudicating violations of notice to the common interest community association of the those policies or regulations. pending claim. The CIC ombudsman may request information 9 Va. Code Ann. § 54.1-2349 10 Id. 30 from the common interest community association. 11 See, http://www.dpor.virginia.gov/Boards/CIC-Board/ July 29, 2019. If the CIC ombudsman determines that the final adverse 12 Va. Code Ann. § 54.1-2351. 13 See http://www.dpor.virginia.gov/CIC-Ombudsman/ July 24, 2019. decision made by the community association is in conflict with 14 Va. Code Ann. § 54.1-2354.3. the relevant laws or regulations or interpretations that have 15 Va. Code Ann. § 54.1-2354.3 (3). been made by the CICB, the CIC ombudsman may, in its sole 16 Va. Code Ann. § 54.1-2354.4 (C). 17 Id. discretion, determine that the community association is not 18 Va. Code Ann. § 54.1-2349. compliant and require that it correct the violation. The CIC 19 18 VAC 48-50-10 et. seq. ombudsman may also provide the complainant and the com- munity association with information concerning such laws or Communities continued on page 33 www.vsb.org REAL PROPERTY | Vol. 68 | October 2019 | VIRGINIA LAWYER 29 Six Important Developments for Conservation Easements by Timothy Lindstrom

Once upon a time, conservation With the growth of conservation transac- tions nationally, as well as in Virginia, the IRS easements were simply generous and the tax court are now paying very close donations by conservation-minded attention indeed to the details. Opinions of landowners. Neither the donor, nor the federal tax court handed down over the past several years, and an increasingly skepti- the lawyer handling the transaction, cal IRS, have made compliance with even the nor the Internal Revenue Service for most minor rules essential to protecting tax that matter, paid much attention to benefits. In addition, the Land Trust Alliance,5 of which most land trusts in Virginia are the details. At least as far as the IRS is members, require that land trusts refuse to ac- concerned, that is no longer the case. cept donations likely to constitute tax shelters. This article summarizes six recent significant In Virginia, 872,951 acres of land were per- developments in the tax law governing con- manently protected between January 1, 2000, servation easement deductions. and August 31, 2018, primarily through the use of conservation easements. The appraised 1. Credit Offset Regulation value of this conservation amounted to $4.14 On August 27, 2018, the Treasury Department billion.1 Assuming, hypothetically, that deduc- issued a proposed regulation6 requiring that tions equal to this value were claimed shelter- the amount of any charitable deduction for ing income that would otherwise have been which a state or local tax credit was avail- taxed at 32 percent,2 federal tax savings (or able be offset by the amount of that credit. expenditures, if you like) alone would amount For example, suppose a Virginia landowner to $1.325 billion. Virginia Land Preservation contributes a conservation easement worth $1 Tax Credits3 (preservation credits) in the million. The contribution is eligible for pres- amount of $1.66 billion were also issued for ervation credits7 equal to 40 percent of the these donations.4 contribution, in this case $400,000. The new

30 VIRGINIA LAWYER | October 2019 | Vol. 68 | REAL PROPERTY www.vsb.org CONSERVATION EASEMENTS regulation requires that the federal deduc- This decision creates a drafting challenge tion for this contribution be reduced by the for conservation easements reserving the right amount of the preservation credit, from $1 to future structures, particularly dwellings. If million to $600,000. Because Virginia tracks soils within a building envelope designated in federal charitable deductions, the donor’s the conservation easement for residential use Virginia charitable deduction will also be can’t perc, for example, the building envelope reduced to $600,000. may be unusable. However, because of the In effect, the new regulation treats Pine Meadow ruling, the easement document easement donations for which tax credits cannot allow designation of an alternative, are available as bargain sales. The Treasury leaving the landowner with a useless building Department is considering whether credits for envelope. Postponing the location of a build- which offsets are required should be recog- ing envelope until the landowner is ready to nized as having a basis. Under current law, use it, which would avoid this problem, raises tax credits issued in exchange for easement perpetuity issues similar to those addressed donations are considered to have neither basis in the Pine Meadow case. This is true even if nor holding period.8 Under current tax rules, the easement holder must pre-approve the when a tax credit is sold, as is possible with location. preservation credits, the entire amount of net One alternative to avoid such a problem proceeds is taxable.9 According a basis to pres- is to create multiple building envelopes from ervation credits could be a significant benefit which the landowner may choose. Once a to Virginia easement donors, depending upon choice has been made the other building en- how (and if) the Treasury Department figures velopes are extinguished. Another alternative that basis. relies upon the “no-build/build zone” concept Although the credit offset reduces overall used in the past by the Virginia Outdoors tax benefits, when the value of the preserva- Foundation and others in their easements. tion credit is taken into account, tax benefits This approach identifies particularly sensitive remaining are still about 80 percent of what portions of a property, such as scenic views, they were prior to the offset requirement. karst formations, streams or wetlands, and Conservation easement donations in Virginia draws a line around these features prohibiting continue to generate some of the most sub- any new structures inside the line, which is stantial tax benefits in the nation.10 the “no-build zone.” New structures can be located anywhere outside of the no-build zone 2. Building Envelopes — the “build zone.” Many conservation easements allow a land- However, this approach raises an “incon- owner to construct or locate new build- sistent use”13 issue: If structures can be located ings, including residences, on the easement property. To avoid having the location of such new structures conflict with the conservation According a basis to preservation credits could purposes of the easement (thereby risking the deduction) frequent practice was to require be a significant benefit to Virginia easement new structures to be located within building envelopes designated in the easement. To donors, depending upon how (and if) the Treasury provide flexibility, easement documents often Department figures that basis. allowed building envelopes to be relocated subject to the prior consent of the easement holder. anywhere within the build zone, the IRS may A recent tax court decision11 ruled that argue either (1) that there are no conservation allowing the relocation of building envelopes, values worth protecting within the build zone, even subject to consent of the easement hold- and if that is the case why should there be any er, violated the requirement that the easement tax benefits for protecting it?; or (2) the right be perpetual. This decision is on appeal. to locate structures anywhere within the build However, even if overturned, the tax court zone constitutes reservation of an “inconsis- has repeatedly demonstrated its unwillingness tent use,” which is grounds to deny the entire to comply with appellate court rulings with deduction. which it disagrees unless such compliance is To anticipate such arguments, easement mandatory.12 documents, or baselines,14 should include spe- www.vsb.org REAL PROPERTY | Vol. 68 | October 2019 | VIRGINIA LAWYER 31 CONSERVATION EASEMENTS cific information supporting the conservation value of build denying the easement holder any value for the easement pursu- zones, and specific information explaining why location of ant to the proceeds clause. structures within the build zone is not inconsistent with those Therefore, no standard for determining “fair market value” values. Similar information should be prepared supporting in such cases should be provided in the easement document. the location of building envelopes, if they are provided for.15 If In the event a payment pursuant to a proceeds clause is ever an easement provides one or more specific building envelopes required, it will be necessary for the landowner and easement instead of relying on the build zone approach, the areas iden- holder to then determine how “fair market value” is to be tified for building envelopes should be thoroughly analyzed to determined. insure that they will satisfy local building regulations, includ- ing provision of water and septic, as well as access. 5. Amendments If the build zone approach is used, to minimize the im- For some time, there has been a debate over whether conser- pact on conservation values within the build zone, structures vation easements could be amended. In a recent case,19 the tax should be clustered, rather than allowed to sprawl throughout court ruled that conservation easements are contracts and can the build zone, and total the footprint of all structures should be amended just like any contract, whether or not the ease- be restricted (which is typically the case anyway). ment document expressly allows amendments. Nevertheless, the tax court has made it clear that, to be deductible, conserva- 3. Proceeds Clauses tion easements may not provide for the revision of easement Tax law requires that in the event that a conservation ease- boundaries, the relocation of the easement, or the relocation ment is extinguished, proceeds from a subsequent sale of the of building envelopes, regardless of the standards imposed on underlying land must be divided between the landowner and such revisions or relocations. Whether such substantial chang- the easement holder (the proceeds clause).16 In some cases, es could be accomplished by an amendment rather than as a easement documents provided that existing or future im- reserved right in the easement document, is an open question. provements on the easement property are to be disregarded Testing such an approach should probably not be done while in determining what proceeds were required to be paid to the the statutory period for tax assessments remains open unless easement holder. a private letter ruling supporting such an approach is first The 5th Circuit Court of Appeals recently ruled17 that the obtained. amount of proceeds to be allocated to the easement holder cannot exclude the value of existing or future improvements 6. Syndications20 but must be based upon the value of the “whole property” as In recent years promoters have sold investments in land-own- provided in the regulations. In other words, the value of exist- ing limited liability companies for the purpose of generating ing or future improvements on land, even if they do not in any returns to investors solely from the deductions resulting from way contribute to the value of the conservation easement, must the donation of conservation easements over that land. These be included in determining proceeds due the easement holder “syndications” purport to give investors a choice between in the event of extinguishment. developing the land, holding it for future sale, or donating a conservation easement over the land. In reality, the only feasi- 4. Valuing the Easement in the Case of Extinguishment ble option is the conservation easement, for which the promot- In an attempt to facilitate satisfaction of the proceeds clause, ers have already obtained a preliminary appraisal. According to a number of conservation easements provide that the values the IRS, on average, syndication easement appraisals exceed the required to determine the allocation of proceeds between the amount invested by investors by 470 percent.21 Over $20 billion landowner and the easement holder should be based upon in deductions were claimed by syndication investors between the values relied upon to substantiate the deduction. In other 2010 and 2018.22 words, the value of the easement as a percentage of the value of In an effort to discourage syndications, the IRS issued the “whole property” would be determined from the taxpayer’s Notice 2017-10 December 23, 2017, requiring that all investors easement appraisal. Sometimes these provisions stipulate that in syndications, and “material advisors” to syndications, dis- the proceeds clause values would be those “finally determined” close their participation to the IRS on Form 8886 (Form 8918 for purposes of the deduction, thus allowing for adjustments for material advisors). In December 2018, the Department of resulting from audits, etc. Justice filed suit23 against a group of persons involved in the This common sense approach to establishing values for promotion of easement syndications on the grounds that such purposes of the proceeds clause was disallowed in a 2016 rul- syndications are false and abusive. The Department is seeking ing18 in which the tax court ruled that provisions in easements to enjoin these persons from promoting syndications in the fu- dictating how such values would be determined to satisfy the ture and asking that they “disgorge” all gross receipts received proceeds clause violated the regulations. The court found by them in connection with the syndications. Needless to say, that in the event a conservation easement was disallowed defendants in this suit are mounting a vigorous defense.24 The on grounds other than valuation, the value of the easement outcome isn’t likely for some time, given the resources avail- for purposes of the proceeds clause, relying on the formula able for litigation on both sides. q provided in the offending provision, would be zero, effectively

32 VIRGINIA LAWYER | October 2019 | Vol. 68 | REAL PROPERTY www.vsb.org CONSERVATION EASEMENTS

Endnotes: where the appellate court ruling was issued. The Pine Meadow case offers a stark example 1 Land Preservation Tax Credit Conservation of the Tax Court’s refusal to follow a ruling Value Summary for calendar year 2017 pub- by the 5th Circuit Court (and, perhaps, an lished by the Department of Conservation equally stark example of its refusal to use and Recreation in November 2018. The value common sense). would include both the value of donations in 13 An “inconsistent use” is one that is incon- fee as well as conservation easements. sistent with the conservation purposes of 2 Federal rates currently range from 10 percent the easement. Such uses are prohibited by to 37 percent. Regulations sections 1.170A-14(d)(4)(v) and Timothy Lindstrom represents land trusts 3 Virginia Code §58.1-512 et seq. provide a 1.170A-14(e)(2). and landowners in conservation transactions transferrable credit against Virginia income 14 Documentation of the condition of the nationwide from his office in Washington, tax equal to 40 percent of the value of a con- property at the time of the donation re- Virginia. He holds a J.D. from the University servation easement contribution on Virginia quired by Regulations section 1.170A-14(g) of Virginia School of Law and has written and land, or the contribution of Virginia land for (5)(i). lectured extensively about the tax law relating conservation purposes. 15 Such documentation is reportedly the rec- to conservation easements. He is the author of 4 Supra, note 1. ommendation of an IRS official in the Office A Tax Guide to Conservation Easements pub- 5 The Alliance is a non-profit organization of the Associate Chief Counsel of the IRS lished in 2016 by the Land Trust Alliance. whose purpose is to serve the nation’s private with oversite of conservation easements. land trusts. It has an accreditation program 16 Regulations 1.170A-14(g)(6)(ii). and provides extensive educational resources 17 PBBM-Rose Hill, LTD, et al v. Commissioner, to its members and the public in general. No. 17-602276 (5th. Cir., 2018) It publishes Standards and Practices, which 18 Carroll v. Commissioner, 146 T.C. 13 (2016). contains an extensive set of guidelines for the 19 Pine Mountain Preserve, supra note 11. operation of land trusts. 20 For an in-depth analysis of syndications 6 Treasury Regulation Section 1.170A-1(h)(3). see Timothy Lindstrom, A Tax Guide to The regulation was made permanent in June Conservation Easement Syndications, Real 2019 effective for all donations occurring Estate Review, Winter, 2018, 3-45. after the date of the Proposed Regulation, 21 Letter from IRS Acting Commissioner David which was August 27, 2018. Kautter to the Honorable Orrin Hatch, Chairman 7 Supra, note 3. of the U.S. Senate Committee on Finance dated 8 See, e.g., Tempel v. Commissioner 136 T.C. July 18, 2018. No. 15 (2011). 22 Id. 9 At ordinary tax rates for credits held for one 23 U.S. v Zak, et al, U.S. District Court for year or less; at capital gains rates for credits the Northern District of Georgia, Case No. held for more than one year. 1:18-cv-05774-AT. 10 For a list and description of current state 24 A recent newspaper article reports that one incentives for conservation easements go of the defendants, an appraiser, surrendered to http://s3.amazonaws.com/landtrustal- his appraisal license in lieu of going through liance.org/State-Land-Conservation-Tax- an administrative hearing triggered by a Incentives-April-2019.pdf complaint that the appraiser over-valued 11 Pine Mountain Preserve, LLLP, et al v. residential development potential in his Commissioner, 151 T.C. 14, 41 (2018). appraisals. https://www.myrtlebeachonline 12 Which is only the case when the Tax Court .com/news/local/article232493852.html is deciding a question arising in the circuit

Communities continued from page 29 20 Va. Code Ann. § 54.1-2346. 26 The AMS designation through CAI Join the 21 18VAC48-50-30. requires two years of management experi- Real Property Section 22 https://www.caionline.org/ ence, the completion of two courses, and LearningCenter/credentials/Pages/AAMC passing the CMCA examination. .aspx, July 24, 2019. See , https://www.caionline.org/ The Real Property Section of the 23 https://www.caionline.org/ LearningCenter/credentials/Pages/AMS. Virginia State Bar concerns itself with LearningCenter/credentials/Pages/PCAM aspx, July 24, 2019. all aspects of real estate practice and .aspx, July 24, 2019. 27 Operations and Performance of the 24 Va. Code Ann. § 54.1-2346 (C). Department of Professional and procedures in the Commonwealth of 25 The CMCA designation through the Occupational Regulation, http://jlarc. Virginia and sponsors projects and CAMICB requires the applicant to take a virginia.gov/2018-dpor.asp, July 24, 2019. programs of special interest and rele- management course or have five years of 28 Va. Code Ann. § 54.1-2354.3 (B). community management experience and 29 Va. Code Ann. § 54.1-2354.4. vance to the members of the section. pass an examination. 30 Va. Code Ann. § 54.1-2354.4 (B), (C). The Fee Simple, the section’s newslet- See https://www.camicb.org/get-certified, 31 Va. Code Ann. § 54.1-2354.4 (C). ter, is published twice each year with July 24,2019. timely and educational articles on real estate issues.

www.vsb.org/site/sections/ realproperty

www.vsb.org REAL PROPERTY | Vol. 68 | October 2019 | VIRGINIA LAWYER 33 Access to Legal Services Herb Sebren of Tappahannock to Receive 2019 Powell Pro Bono Award

situation,” writes Kimberly McCartney Sebren, calling him a “standout” attor- of Legal Aid Works in her nomination. ney for the volume of cases handled, his “This attorney is, in my opinion, one reliability, and his willingness to take on of the most respected and dedicated many different types of cases. of them all and gives so generously of “A solo practitioner willing to help his legal talents on behalf of our area’s in a rural region that has few other alter- poor.” natives for indigent clients is a godsend McCartney cites Sebren’s 22-year for our organization and the clients we history of pro bono assistance and serve,” Kloeckner writes. estimates that he’s taken on at least 150 Legal Aid Works’ managing at- cases over the years. “Because of him, torney, John R. Rellick, praises Sebren at least 22 drivers’ licenses have been for his willingness to help shoulder his restored, at least 108 family matters have caseload, which stretches across sev- been resolved, and countless others have en counties. “I wish our office had a been helped with consumer problems, hundred pro bono attorneys like Herb have had wills prepared, and have avoid- Sebren.” ed eviction,” she writes. The Powell Award was established Hebert “Herb” L. Sebren Jr., a solo McCartney highlighted an instance by the Standing Committee on Access practitioner based in Tappahannock, has where Sebren was willing to take on a to Legal Services of the Virginia State been named the 2019 recipient of the time-sensitive case during the holidays Bar to honor attorneys and attorney Lewis F. Powell Jr. Pro Bono Award. and another where Sebren went above groups that have made outstanding “Again and again, I have called on and beyond in getting a divorce settled. pro bono contributions. This year’s one attorney in particular when looking Ann H. Kloeckner, executive direc- award will be presented October 16 for someone to provide assistance to a tor of the Fredericksburg-based Legal during the Virginia State Bar Pro Bono low-income family in a desperate legal Aid Works, seconded the nomination of Conference in Harrisonburg.

Annual Pro Bono Conference and Awards Dinner

October 16 4.5 CLE (1.5 ethics) approved

Please join the Access to Legal Services Committee for a day of education and awards celebrating Virginia’s pro bono community, in conjunction with the 39th Annual Statewide Legal Aid Conference hosted by the Virginia Poverty Law Center.

New this year! The three conference CLEs will also be offered by webinar so attorneys across the state can participate in the pro bono training remotely and get 4.5 hours (1.5 ethics) approved CLE credit for FREE.

The awards dinner honors recipients of the Lewis F. Powell Jr. Pro Bono Award Keynote speaker and the Frankie Muse Freeman Organizational Pro Bono Award. Jim Sandman president of the Legal Hotel Madison in Harrisonburg – Register at http://bit.ly/PB1016 Services Corporation

34 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org Access to Legal Services Kelly Guzzo and Consumer Litigation Associates Honored for Pro Bono Work

Consumer Litigation Associates, PC

The Virginia State Bar’s Committee and cancelled debt for financially-strug- on Access to Legal Services has tapped gling Virginians.” Consumer Litigation Associates, PC Gifts of cy pres awards and attorney and Fairfax firm Kelly Guzzo, PLC as fees are common themes in nominators’ 2019 co-recipients of the Frankie Muse letters. Speer and Wallace cite a case Freeman Organizational Pro Bono where, after months of litigation, CLA Kristi C. Kelly Andrew J. Guzzo Award. and Kelly Guzzo forewent attorneys’ fees The two firms were nominated by in order to settle a lawsuit with a preda- dance at the annual Consumer Rights the Legal Aid Justice Center (LAJC), and tory lender charging a 960 percent APR Litigation conference. And they mentor three other nonprofits wrote in support for their loans. “The difference in the and train new attorneys. of the firms’ joint efforts to protect and lives of those who had been affected by “I cannot think of anyone more defend consumers from mistreatment this predatory lender, and the relief they deserving … to receive the Frankie Muse by businesses engaged in unfair and felt, cannot be overstated,” writes Speer. Freeman Award,” says Speer. abusive conduct. Wallace also highlights last-minute The chair of the board of Hampton “These firms have created a culture discovery, trial prep, and mediation Roads Refugee Relief also wrote in of fighting for consumer rights, giving work the two firms did on a civil rights support of CLA and its founding part- to the community, and pro-bono work case seeking adequate medical care for ner, Leonard Bennett. Under Bennett’s that has provided immense value to the 1,200 incarcerated women. He also leadership, CLA has worked tirelessly Legal Aid Justice Center, many other commends CLA and Kelly Guzzo for on a pro bono basis to assist the refugee Virginian legal aid firms, and countless work on a case challenging eviction in community’s legal needs. low-income Virginians,” writes Tim Richmond’s public housing authority. Consumer Litigation Associates Wallace of LAJC. “When we think of pro bono has offices in Alexandria and Newport Wallace estimates that about 20 partnership at LAJC, … we think of all News. Kelly Guzzo is based in Fairfax percent of attorney time at Consumer the ways that multiple members of both and has offices in D.C., Baltimore, and Litigation Associates (CLA) and Kelly Consumer Litigation Associates and Honolulu. Guzzo goes toward pro bono work, Kelly Guzzo, PLC work to help us fulfill The Freeman Award was estab- allowing them to represent untold our mission to keep people out of pov- lished by the Standing Committee on individuals while partnering with legal erty,” says Wallace. “More importantly, Access to Legal Services of the Virginia aid organizations, voluntary bars, and they make it their own mission in the State Bar to honor firms and attorney nonprofits in their communities. work they do each and every day.” groups that have made outstanding “[The firms] have been instrumen- Nominators note that CLA and pro bono contributions. The award is tal in the fight against predatory lending Kelly Guzzo’s pro bono help comes in named for the famed civil rights leader in Virginia,” writes Jay Speer of the many forms. Their attorneys often pres- and first woman appointed to the U.S. Virginia Poverty Law Center in his nom- ent and lend their expertise at legal aid Commission on Civil Rights. This year’s ination. “They have filed numerous class events. They draft consumer law treatis- award will be presented October 16 action lawsuits against internet lenders es for the nonprofit National Consumer during the Virginia State Bar Pro Bono that are evading Virginia law, which has Law Center. They write amicus briefs. Conference in Harrisonburg. resulted in millions of dollars in awards They fund legal aid attorneys’ atten- www.vsb.org Vol. 68 | October 2019 | VIRGINIA LAWYER 35 Noteworthy > VSB NEWS 2019 Diversity Forum Attracts Capacity Crowd

Over 100 lawyers and judges attended the second Annual Forum on Diversity in the Legal Profession at William & Mary School of Law in Williamsburg on September 20. Attendees heard from speakers on topics like implicit bias, Title VII, and employment best practices. The event, hosted by the Bar’s Diversity Conference, featured a keynote address by the Honorable S. Bernard Goodwyn of the Supreme Court of Virginia. “I am going to be brief for as long as it takes,” joked Justice Goodwyn, quoting Yogi Berra, at the beginning of 1 his remarks. Goodwyn said that diversity re- mains integral to a fair judicial process, noting that in the legal system, as in most things, “You get a better product when you get better input, and you get better input when you get a diverse input.” He concluded by remembering the actions of former Supreme Court of Virginia Chief Justice Leroy R. Hassell Sr., the first African American chief justice of the court. Hassell endured racism and segregation in his lifetime, and he created an annual seminar that 2 continues today, assisting and educating defense lawyers who represent under- served Virginians throughout the state.

1. A panel discusses the ramifications of implicit bias.

2. Justice S. Bernard Goodwyn of the Supreme Court of Virginia addresses the forum.

3. Luis A. Perez of the law offices of Luis A. Perez, VSB President Marni E. Byrum of McQuade Byrum, Justice Bernard Goodwyn, and Diversity Conference Chair Chidi I. James of Blankingship & Keith at William & Mary Law School.

3

36 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org VSB NEWS < Noteworthy The Honorable Teresa M. Chafin Elevated to the Supreme Court of Virginia

The investiture of the Honorable Teresa where she served as Chief Judge until M. Chafin as a Justice of the Supreme 2005, when she was elected a judge of Court of Virginia was held September the Twenty-ninth­ Judicial Circuit, serv- 6, 2019, in a special session of the Court ing as Chief Judge in 2008 and 2009. In held at the Southwest Virginia Higher 2012, Justice Chafin was elected a judge Education Center. of the Court of Appeals of Virginia. Justice Chafin, a native of Lebanon, Prior to her service in the judiciary, was elected by the General Assembly Justice Chafin was an attorney in private to a 12-year term, and will fill the seat practice in Lebanon, Virginia. left by retiring Justice Elizabeth A. Justice Chafin received her under- McClanahan. graduate degree from Emory and Henry Justice Chafin was elected to the College and her law degree from the Twenty-ninth District Juvenile and University of Richmond School of Law. Domestic Relations Court in 2002, Virginia Law Foundation Announces 2019 Grant Recipients

The Virginia Law Foundation (VLF), the philanthropic arm of Virginia CLE, held its annual 2019 Grant Recipient Luncheon in Richmond in August where over $538,000 was awarded to a variety of organizations. The VLF has provided more than $26 million in grants over the last 30 years to projects throughout the Commonwealth that support the VLF mission, which is to promote the rule of law, access to justice, and law-related education. Grant recipients included the The Virginia Poverty Law Center received a $25,000 grant from the Virginia Law Foundation. (L–R): VLF President F. Virginia Beach Justice Initiative, the Anderson Morse, Virginia Poverty Center Executive Director James W. Speer, VPLC Legal Aid Education Manager Natasha Oliver White Hill Foundation, and Evans and VLF President-elect Matthew E. Cheek the Capital Area Immigrants’ Rights Coalition, among many others. More information about this year’s grant recipients maybe found on the Virginia Law Foundation website: www.virginialawfoundation.org.

www.vsb.org Vol. 68 | October 2019 | VIRGINIA LAWYER 37 Noteworthy > VSB NEWS Comedy and Copyright: University of Richmond Law Student Wins IP Writing Competition

Third-year law student Matthew L. He explains the “virtual identify Pangle won the Intellectual Property standard” and argues that, while creat- Section writing contest this year with a ing a high bar for plaintiff comedians paper that explores the legality behind claiming infringement, it incentivizes laughs. creativity and facilities open expres- Judge Richard Linn, senior circuit sion in the comedy world. You can judge for the United States Court of read Pangle’s winning submission at Appeals for the Federal Circuit, select- www.vsb.org/docs/sections/intellect/ ed the winning submission, a paper MattPangle.pdf. entitled, “The Last Laugh: A Case Study Linn says that all of the papers in Copyright of Comedy and the Virtual selected and sent to him for final re- Identity Standard.” view were interesting, thoughtful, and Pangle, who studies at the well-written. But Pangle’s paper stood University of Richmond School of Law, out based on its “crisp and clear style, its wrote about copyright in a comedy logical organization and presentation, Matthew L. Pangle world that’s more crowded than ever. and its thorough citation support. It’s an “[W]ith comedy’s resurgence over easy and informative read.” popular platforms like Netflix and This is the third year in a row that a Twitter, along with the emerging force student studying law at the University of of intellectual property law, copyright Richmond has won the competition. protection is becoming a major player Pangle received his award of $5,000 in policing infringement of comedians’ at the IP Section’s seminar in Arlington material,” writes Pangle. in September.

A Healthy Lawyer is a Better Lawyer.

Join a VSB Section

There are twenty sections of the Virginia State Bar. Each is a separate group devoted to improving the practice of law in a particular substantive area or specialty practice. The sections operate under bylaws and policies approved Attorneys are exposed to a variety by the Virginia State Bar Council. They elect their own officers and choose of stresses in their profession, which can take a toll on their mental and their own activities within the limits established by the Council. Section emotional well-being. Perhaps not membership is open to all lawyers in good standing of the Virginia State surprisingly, lawyers have been shown to abuse substances and suffer Bar. Many sections also have law student and associate memberships. mental health issues at higher rates than other professionals.

See more information at Please visit our well-being resource www.vsb.org/site/members/sections. center to discover ways to improve your mental and physical health, and to find contact information for people ready to assist you. www.bit.ly/lawyer-well

38 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org VSB NEWS < Noteworthy

Check Your MCLE Hours Online Now

The Mandatory Continuing Legal Education compliance deadline is October 31, 2019. Go to https://member.vsb.org You’ve Got Mail! /vsbportal/ to review your MCLE record. Or you might, if your email address is up to date Please apply for any non-approved courses now to with the Virginia State Bar. avoid a new late application fee for applications received Please make sure you are getting our monthly VSB over 90 days after course attendance. News and annual compliance messages by add- Reminder: Of the 12.0 CLE hours required each year, ing [email protected], [email protected], and [email protected] to your email contacts. 2.0 must be in ethics and 4.0 must be from live, interactive programs. If you have any questions, please contact the NEW: In your member portal, you can opt out of receiving Virginia Lawyer by mail if you prefer to Regulatory Compliance Department at (804) 775-0577 or read it online. [email protected]. And as always: Keep all of your information current by logging on at www.vsb.org.

Join your fellow Virginia lawyers as they celebrate over 40 members of the Virginia judiciary, including:

The Hon. Teresa M. Chafin, Justice, Supreme Court of Virginia The Hon. Rossie D. Alston Jr., U.S. District Court for the Eastern District of Virginia With the Hon. Roderick C. Young, Magistrate Judge of the U.S. District Court for the Eastern District of Virginia, as keynote speaker.

Celebration of Women & Minorities in the Legal Profession Bench-Bar Dinner 2019 October 29, 6–9 p.m. Hilton Downtown Richmond Tables of Eight: $300 | Individual Tickets: $40 Includes reception and dinner. The dinner provides an opportunity for lawyers to interact with judges in a casual, relaxed atmosphere.

Sponsored by the VSB Young Lawyers Conference register at http://bit.ly/VSBbenchbar

www.vsb.org Vol. 68 | October 2019 | VIRGINIA LAWYER 39 Noteworthy > VSB NEWS In Memoriam

Harry Leo Carey Lawrence H. Hoover Jr. Richard M. Rogers Alexandria Harrisonburg Fairfax December 1945 – July 2019 May 1934 – September 2019 December 1946 – July 2019 Ronald Douglas Speakman James F. D’Alton Jr. Thomas Randolph Lewis Potomac Petersburg Powhatan May 1961 – July 2019 September 1943 – September 2019 July 1943 – August 2019 Arnold Beryl Snukals George Daniel Forbes Jr. John Vance Little Richmond Franklin Charlottesville November 1955 – August 2019 March 1946 – August 2019 April 1951 – July 2019 Roy B. Thorpe Jr. Kellen Jay Galloway John Francis McCreary Culpeper Palmyra Dumfries May 1946 – August 2019 January 1986 – August 2019 November 1946 – August 2019 Gregory Michael Tobin Lawrence D. Gaughan Thomas Johnson Michie Jr. East Alton, Illinois Reston Charlottesville September 1960 – July 2019 July 1933 – June 2019 June 1931 – August 2019 John Patrick Walsh Jr. Prescott Hamner Gay John Thomas Moakley Fairfax Lynchburg West Falmouth, Massachusetts November 1946 – May 2019 December 1951 – September 2019 September 1953 – August 2019 Thomas G. Wood James Lucian Gleaves Jr. Jesse W. Overbey Arlington Wytheville Chatham June 1942 – May 2019 January 1924 – May 2019 July 1940 – July 2019 Boyce Carmines Wornom William Jackson Hancock Dabney Overton Jr. Emporia Lexington Harrisonburg January 1928 – July 2019 March 1983 – July 2019 March 1937 – April 2019

Kristen Diane Hofheimer Mary Thomas Pittman Virginia Beach Richmond April 1969 – January 2019 February 1924 – March 2019

40 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org VSB NEWS < Noteworthy Marion Edwyn Harrison

Marion Edwyn Harrison, a retired him to the Counsel of Administrative Harrison was Washington and Virginia lawyer active Conference of the United States, upon a Capitol Page in cultural, professional, religious, and which he served seven years; he was School and political organizations, died on July a Senior Conference Fellow 1984 to University of 3rd, 2019, at Vinson Hall Retirement 1988. Virginia grad- Community at 87. He lived in Arlington, His work with educational in- uate and held with a second home in Scottsdale, stitutions included the presidency of two degrees Arizona. the George Washington Law Alumni from George Harrison, who served on the Association, 1974–1977, a term on the Washington American Bar Association Board of Army Judge Advocates General’s School University, Governors from 1982 to 1986 and in its Board of Visitors, and lecturing at the the youngest House of Delegates for ten years, prac- National Judicial College in Reno. He graduate in each class. He also was a ticed law in Washington, D.C., Virginia, lectured abroad 13 summers with the graduate of the Infantry Officers’ School and Zurich. His clients over the years late Supreme Court Justice Antonin and the Army Judge Advocate General’s included private mints, direct mail- Scalia. He also lectured once with the School and served on active duty as an ers, private international clients, and late Chief Justice William H. Rehnquist. Army judge advocate officer. political committees, including a 1988 He was an editor of the Administrative He is survived by his wife of 67 presidential committee. Law Review, 1976–1989, and edi- years, Carmelita (“Lita”), three children, He was chair of the American Bar’s tor-in-chief of the Federal Bar News, and four grandchildren. Administrative Law and Regulatory 1960–1963. He also wrote for various Practice Section from 1974 to 1975. legal and other publications. President Nixon twice appointed An Arlington resident since 1945,

Robert Allen Williams

Robert Allen Williams, born July 28, and was a manager of the swimming in Tucson, 1944, in Danville, graduated from the team. Arizona. University of Virginia School of Law After graduation from the Williams was in 1969 as one of the earliest African- University of Virginia Law School, a member of American graduates, another of whom he taught at North Carolina Central numerous civic was his first cousin, Isaac C. Hunt. The University School of Law before and community son of Ida Allen Williams, an educator, becoming an assistant dean of admis- organizations and Jerry L. Williams Sr., an attorney, sions at Harvard University Law School. including the he passed on August 19, 2019. Known After his tenure at Harvard, he worked Old Dominion to friends and family as “Butch,” he for a short time in the Massachusetts Bar Association was raised in Danville and educated in Attorney General’s Office before return- and the segregated schools at Westmoreland ing to Virginia to establish a practice Martinsville Bar Association, serving as Elementary and John Mercer Langston in Martinsville in 1976 as a branch of president of both. High School. As a teenager in Danville, Williams, Luck and Williams, a law firm A voracious reader, history buff, he played a key role in a group of founded by his father, Jerry L. Williams jazz and blues lover, and world traveler, African American NAACP youth who Sr., a civil rights attorney who at one Butch also loved Porsches and driving sat in at the segregated public library time employed Gregory Swanson, the fast. He is survived by his wife, Patricia; and Ballou Park, protesting African first African-American admitted to UVA his children, Robbie and Jamiese; his Americans being prohibited from using and UVA Law. He practiced law for 43 sisters, attorney Trudy A. Williams of those facilities and leading to the deseg- years until his passing. Los Angeles, CA, and Agnes A. “Boots” regation of both. He was married to Patricia Hodge Shelton of Columbus, Ga.; his brothers, Though he received a full scholar- Williams and they had two children, attorney Jerry L. Williams Jr. and Carl ship to Morehouse College, he chose to Robert A. Williams Jr., an attorney and E. “Lut” Williams; and numerous family attend Howard University where he ma- investment banker in New York City and members, friends, and colleagues. jored in economics and political science Jamiese M. Williams, M.D., a physician www.vsb.org Vol. 68 | October 2019 | VIRGINIA LAWYER 41 Noteworthy > ET AL. Gifts for the Lawyers in Your Life (That Includes You)

There’s a season coming up. We won’t name it, yet. But it’s a Notorious RBG Mug season where people often give gifts to one another. Consider Zazzle has this simple mug with the this your first warning. And list of ideas. ever-quotable Ruth Bader Ginsburg on it: “You can disagree without being dis- Law School in a Box agreeable.” Her Honor is right again. This lunch box from trivia website Mental Floss includes a mini-textbook, 10 ‘Heroes of the Courtroom’ trading cards, 10 ‘You Be the Judge’ cards, a Lawyers Never Lose Their mini bar exam, and a faux diploma. Appeal T-shirt Teepublic has this t-shirt to remind you that even in the adversarial world The New Yorker Book of Lawyer of the law, lots of us love lawyers. Cartoons The venerable publication collects its lawyer-themed cartoons into one book that will give you something to Supreme Court of Virginia laugh about on those days when being Canvas Print a lawyer doesn’t feel that funny. Turn the highest court in the Commonwealth into an interior design centerpiece with this large canvas Will Give Legal Advice for Tacos print of photographer Brendan Reals’ T-shirt SCOVA picture. Find it on You get what you pay for, but tacos fineartamerica.com. are good! Find this hilarious t-shirt for the young law grad on Etsy.

Mark your calendar to join us at the Virginia State Bar 82nd Annual Meeting

June 18–20, 2020, in Virginia Beach

42 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org Resolve fee disputes as an arbitrator or mediator for the Bar.

Attend one of two training CLEs to prepare to handle attorney-client fee disputes.

Norfolk – October 24, 2019 Fredericksburg – October 29, 2019

Trainings are 10 a.m. to 2 p.m. Lunches provided. CLE and CME (for mediators) credits pending.

To register, visit http://bit.ly/FDRtrain. Registration will serve as a request to be appointed to a local committee if you are not already serving on one.

Lawyer volunteers must have been a member of the Virginia State Bar for at least five years and be in good standing.

Contact Stephanie Blanton at (804) 775-0576 or [email protected] for more information.

INNOVATION COMESSTANDARD

LEARN MORE AT ® LEARN MORE AT www.vsb.org/site/main/member-portalwww.vsb.org/site/main/member-portal

www.vsb.org Vol. 68 | October 2019 | VIRGINIA LAWYER 43 Conference of Local and Specialty Bar Associations Calling All Bar Association Presidents-elect

Training specifically designed for you • Ethics CLE for bar leaders presented is available for FREE each spring at the by Tom Spahn 1 Bar Leaders Institute (BLI). The BLI • free continental breakfast and buffet is a one-day program sponsored by lunch the Conference of Local and Specialty All officers and prospective officers Bar Associations to train and provide of bar associations are encouraged to resources to current and prospective attend, as well as VSB Council, and local and specialty bar leaders. chairs and vice chairs of all VSB com- 2 Mark your calendar for March 6, mittees, conferences, and sections. 2020. Enjoy a day of training at the beau- tiful Lewis Ginter Botanical Garden in 1: At the 2019 BLI (l–r): attendee Patrick C. Murphrey, keynote speaker the Hon. Roger L. Gregory, chief judge, U.S. Court Richmond. This year’s BLI will include: of Appeals for the Fourth Circuit, VSB Executive Director Karen A. Gould, and then-VSB President Leonard C. Heath Jr. • A Supreme Court panel with Justices 2: Attendees of the 2018 BLI included then-VSB President Doris Henderson Causey (left) with Christina T. Parrish, Cleo E. Powell and William C. Mims then-president of Hill Tucker Bar Association, and Richard E. Garriott Jr., the president-elect of the VBA

Awards of Merit Competition

Is your local or specialty bar planning a have won Awards of Merit in the past. special project for the year? Does your Remember: Imitation is the sincerest local bar want to do a project, but need form of flattery. suggestions on where to start? Once you have completed your Assistance is available through the project, no matter how big or small, Conference of Local and Specialty Bar don’t forget to submit it for the Awards Associations. Please contact Paulette of Merit competition. The deadline for Davidson at [email protected] or (804) entries is April 17, 2020. 775-0521 for more information, or visit the CLSBA website at www.vsb.org/site/ Solo & Small-Firm conferences/clba to see projects that Practitioner Forum

The Solo & Small-Firm Practitioner Keep Us In the Loop! Forum focuses on issues that confront attorneys who practice When your bar association holds its • Bar associations looking to connect alone or in small firms. Law office elections, please be sure to send that with other bars for events, etc. management and ethics are information to CLSBA liaison Paulette • Members of the General Assembly among several topics covered at Davidson at [email protected]. seeking input from local attorneys these CLEs. Paulette keeps a database of all Virginia • Groups such as ALPS when they want These CLEs are free, include bar associations and provides this in- to offer free CLE and/or funding for lunch, and are available on a formation to individuals/organizations such to the members of a local/special- first-come, first-served basis. such as: ty bar • Courts wanting to get the word out • Newly licensed attorneys at the VSB April 3 — Melfa, VA about rule/procedure changes Admissions and Orientation Ceremo- May 19 — Danville, VA • Attorneys looking to join a local or nies in the Spring and Fall specialty bar association www.vsb.org/site/conferences/ • Members of the public seeking to hire clba-calendar an attorney in a specific locality

44 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org Law Libraries Researching and Keeping up to Date with Real Estate Law in Virginia by Frederick W. Dingledy

Most Virginians will encounter real and issues involving title. Kessler and devoted to real estate law, and Virginia estate law at some point. For some, the Melnick’s work also covers special topics CLE offers two annual seminars on new process of buying a home may be the such as ethical considerations, commer- developments. first time in their life a person needs to cial real estate contracts, condominiums hire an attorney. Homeowners might and property owner associations, and Bars become embroiled in litigation over foreign owners of Virginia real estate. The Virginia State Bar’s Real Property zoning, eminent domain, or boundary Eminent Domain Law in Virginia, Section publishes a semiannual news- lines. Those who choose not to follow edited by Paul B. Terpak, walks the letter, The Fee Simple, with articles the path to homeownership may face a reader through the condemnation discussing current issues in real proper- landlord-tenant dispute or one of the process, including the trial, valuation ty law. Past issues of The Fee Simple are other myriad issues relating to renting and relocation assistance, and tax available to the public on the section’s property. Whether trying to get a basic implications. Terpak’s book describes website, with the most recent issue orientation in this topic or keeping up condemnation procedures under federal accessible to members only.2 The website with the latest developments, Virginia law, the Commonwealth’s general power of the Virginia Bar Association’s Real lawyers sorting through the “sticks” of eminent domain set forth in Title Estate Section offers online CLEs for in their client’s particular “bundle of 25.1 of the Code of Virginia, and the purchase as well as a public archive of rights” have several resources upon Commonwealth’s Title 33.2 power to the section’s newsletter, VBA REAL, which to call. use eminent domain for highways. which includes updates on Virginia legislation.3 Beginning Your Research — Treatises Other Publishers and Manuals W. Wade Berryhill and Michael V. Seminars Hernandez’s Real Estate Closings, part Virginia CLE sponsors two annual sem- Virginia CLE of Thomson Reuters’ Virginia Practice inars on real estate law. The Annual Real The Virginia CLE website has several series (available on Westlaw), describes Estate Practice Seminar has updates on useful works available for purchase in the process involved in closing on a new legislation and caselaw, along with print or as a searchable PDF. Each title real estate purchase. Berryhill and discussion of basic topics such as ease- includes numerous forms as appendixes. Hernandez state in the introduction1 ments. The Annual Advanced Real Estate The Virginia Lawyer: A Deskbook for that they intended this work to serve as Seminar addresses specialized topics Practitioners, a popular reference that a how-to book, not an academic analy- such as proffers and homeowners’ asso- many attorneys in the Commonwealth sis. A substantial portion of the publica- ciations. Seminar registration as well as keep close at hand, has two chapters tion is thus devoted to useful forms, but purchase of the accompanying material that provide a solid starting point. also cites and discusses relevant statutes is available on Virginia CLE’s website. Chapter 11 of the 2018 edition discusses and cases. residential real estate settlements and A Virginia Title Examiner’s Manual The cultural and economic significance residential leases, while Chapter 12 by Douglass W. Dewing covers every- of owning, conveying, and encumber- covers eminent domain. Virginia CLE thing relating to titles — from liens, ing real property and improvements also distributes Chapter 11 as a separate restrictions, deeds, and title insurance to thereon make it likely that lawyers publication titled A Guide to Real Estate water and mineral rights, marital prop- and clients alike will confront a real Law in Virginia that includes an addi- erty rights, inheritance, subdivisions, estate law question. Practitioners in tional section on foreclosure. and more. Dewing’s book is available in the Commonwealth have a number of Perhaps the most thorough look at print and as a pdf from the website of its resources on which to rely, whether it Virginia real estate law is offered by Real publisher, Juris Legal Information. involves building a foundational un- Estate Transactions in Virginia, edited by derstanding or staying informed on the Neil S. Kessler and Paul H. Melnick. This Keeping Current newest developments. two-volume set discusses all aspects of the real estate transaction from begin- Both the Virginia State Bar and the ning to closing, including financing Virginia Bar Association have sections Research continued on page 49 www.vsb.org Vol. 68 | October 2019 | VIRGINIA LAWYER 45 Risk Management What’s Wrong with Assuming Everything Will Turn Out Just Fine? by Mark Bassingthwaighte

Everyone makes assumptions every day. workload or conducted periodic reviews perspective accountability for past work As I see it, doing so allows each day to of work in progress in order to stay done by Smith may not be immediate, progress with some level of predictabili- abreast of how the staff was doing day to but it will come. These new clients ty and efficiency. day because some people are just unable will expect to be told of any problems My guess is many attorneys would to “No.” Finally, she could have insti- in their file. As they see it, Wilson’s be surprised at the number of mal- tuted a file review process. Obtaining acceptance of responsibility for their practice claims that are the result of a a periodic status update on all active files brought with it a responsibility to mistake that can be best described as files is a great risk management tool in review those files. Wilson really should “the attorney was working under a false any practice. One caution with these have conducted a thorough file review assumption.” Let me share two short ideas, however: Understand that the of all incoming files from Smith — even stories based upon actual claims to intent here is to maintain a quality work recently closed files. further underscore the concern. product. These processes should never The above two stories demonstrate An attorney had a high volume be used as an excuse to start microman- the kinds of consequences that can arise real estate practice. She made a decision aging the staff. due to working under assumptions. to assign all title search responsibili- The second story is one that focuses While more stories could be told, the ties, settlement package preparation on assumptions about attorney com- point I am trying to make is this: In any responsibilities, and additional related petency. It started with Attorney Smith busy practice, the temptation to assume administrative tasks to one staff person. who was in the process of retiring. He all is well can be strong indeed. Yet, The attorney assumed everything would was fortunate in that another attorney, some assumptions will always turn out be fine because there was no pushback Attorney Wilson, had an interest in to be incorrect, and things can go wrong on the amount of work assigned and purchasing his practice. As a result of at any time. It’s important to keep this in this person was a trusted, devoted, and the eventual transfer of files, Wilson’s mind and establish your backup plans in competent employee. This staff person, workload jumped literally overnight. advance. Leave them alone and the false however, was one who also happened to Wilson made a decision to assume that assumptions will bite at some point. It’s feel unable to speak up for a number of all of Smith’s prior work was accurate only a matter of time. reasons. It wasn’t long before he began and correct. Wilson also assumed that to feel overwhelmed. He ended up in the she would only be liable for the work weeds due to what had quickly become she did on these new files and not for an excessive workload. Mistakes were anything Smith might have done prior made because the attorney’s assumptions to her involvement. Both of her assump- proved to be incorrect and there was no tions proved to be incorrect. safety net in place. The problem here was that Wilson What could this attorney have done failed to consider the reasons that might to avoid having a claim arise if and be behind Smith’s decision to retire. when an assumption proved incorrect? What if Smith’s decision was due to his I would have advised her to develop a being burned out? What if in the final quality control process to assure that all year or so leading up to his retirement Mark Bassingthwaighte, ALPS risk manager, completed settlement documents were Smith’s mental acuity had started to has conducted more than 1,000 law firm risk reviewed for accuracy. After all, having deteriorate? Wilson took no steps to management assessment visits, presented all important legal documents of any be prepared to deal with any files that numerous continuing legal education seminars throughout the United States, and written type reviewed by a second set of eyes is might have been neglected or mishan- extensively on risk management and technol- always a good idea, regardless of practice dled. When Wilson decided to accept ogy. His webinar on Best Practices for Client Selection in the ALPS CLE library is at area. She might have also monitored responsibility for Smith’s files, she also http://alps.inreachce.com. He can be contacted the reasonableness of every employee’s accepted accountability. From a liability at: [email protected].

46 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org Book Review Crafting Effective Settlement Agreements

Ishikawa, Brendon, Crafting Effective Settlement Agreements — A Guidebook for Attorneys and Mediators (American Bar Association, 2018) 408 pages plus a 29-page appendix reviewed by L. Steven Emmert

Most guidance on mediation focuses on The solution is to start working on the difficult task of convincing intransi- the settlement agreement well before gent, warring parties to reach an agree- you gather. One particularly valuable ment on some middle ground. But the approach is for the lawyers to generate agreement itself is only an interim step and circulate in advance a draft written in the process. For the overwhelming agreement. The parties can in this way majority of mediations, the real objec- consider fully the boilerplate terms that tive is to fashion and execute a settle- each expects, hammering out any dif- ment in writing. ferences so there are no post-agreement A new book published by the surprises. ABA’s sections on Business Law and Sharing drafts in advance can help Dispute Resolution aims to address this to hold a fragile settlement together. For final step. Describing Crafting Effective example, if no party mentions confiden- Settlement Agreements as a work that tiality during the mediation session, but “begins where most mediation trainings a later draft includes such a provision on settlement agreement. There are sugges- leave off,” Brendon Ishikawa has written the basis that one party’s lawyer “figured tions for prefatory matter, such as the a treatise dedicated to the essential task that that was understood,” a rift may names of the settling parties, the nature of putting an oral understanding into arise that threatens the entire accord. of the settled claims, and the effective written form. Ishikawa is a California Reviewing each other’s drafts in advance date. Another section explores payment appellate lawyer and mediator who re- can avoid nasty surprises like that. terms and mechanisms where the set- cently co-authored another ABA book, The book next discusses lawyers’ tlement calls for the payment of money. that one on appellate mediation. and mediators’ typical response to an And the chapter includes a key section The substance of Ishikawa’s new unanticipated accord: the “preliminary explaining how to prepare an effective book begins with a chapter comprising settlement agreement,” sometimes called and unambiguous release or covenant ten principles that underlie the medi- a term sheet or a memorandum of not to sue. ator’s and the lawyer’s task. The most agreement. This is often a hastily drafted Another interesting subchapter lists important of these principles, and cor- set of bullet points that the parties write provisions that Ishikawa believes draft- respondingly the longest subchapter in in longhand and then initial, expecting ers should omit. This includes some the book, is “Preparation Is Essential to supplant it with a fleshed-out settle- familiar terms, such as a severability for an Effective Settlement Agreement.” ment agreement after their lawyers hash clause or an admonition to each party This section includes the observation out the details. Ishikawa offers sugges- to read the entire agreement before that many advocates come to a media- tions for both binding and nonbinding signing. The former can cause disastrous tion prepared to negotiate, but wholly preliminary agreements – the latter consequences if a court invalidates one unprepared to succeed at negotiation. sometimes constitute an agreement to key term but holds the beneficiary of That is, they approach the session with negotiate further, or an “agreement to that term to a now-lopsided agreement. the expectation that the case won’t settle agree” – but he understandably con- And better than a “read this!” clause is a — likely a form of defensive lawyering cludes with a warning that they are too statement that the parties used a media- — and then are surprised when it does. often “traps for the unwary.” The better tor and have had ample time to consult Those lawyers are caught flatfooted approach, he urges, is to go straight to independent counsel before signing. when it suddenly — and often quite the final agreement, with the parties all Later chapters include checklists, late into the evening — becomes nec- still in the room. ethical considerations, and a thoroughly essary to memorialize an unexpected The heart of the book, Chapter agreement. 4, explores how best to craft a written Book continued on page 49 www.vsb.org Vol. 68 | October 2019 | VIRGINIA LAWYER 47 Ethics continued from page 12 deposits will be handled. See Rule • Overreach or attempt to persuade 1.16(d). clients to stay with the old firm; er issued jointly or separately, the notice • Transfer of Client File – how transfer • Deny the departing lawyer access to should be neutral, making clear the op- of the client’s file will be handled and if contact information for migrating tions from which the client may choose: the client may be charged a reasonable clients; the departing lawyer, the firm or neither. charge for copying the file for a succes- • Withhold the client’s file or refuse to Even if the departing lawyer does not in- sor lawyer. See Rule 1.16(e). allow the departing lawyer access to tend for any clients to migrate with him • Accounting of Client Property Held the file; or her, clients should be informed of in Trust – a complete and accurate of • Withhold or refuse to transfer un- the lawyer’s departure if the lawyer had all property and funds the law firm is earned fees held in trust by the old primary responsibility for handling the currently holding in trust and whether firm; client’s matter. the trust property will remain in the • Further communicate with clients that While these requirements are not law firm’s possession a request for have given notice to the firm that they always followed, lawyers who solicit direction from the client. have chosen the departing attorney, firm clients before announcing their except as to those matters discussed departure are in effect competing with above in section 3 regarding the notifi- their own firm and may face a civil cation to clients. See Rule 4.2. action alleging breach of fiduciary duty, tortious interference with contract, and While these requirements 5. Lateral Hire Conflicts of Interest unfair competition. Examples of imper- are not always followed, for New Firm. Notwithstanding efforts missible actions when planning to leave by the hiring firm to avoid conflicts a firm include: (1) soliciting firm clients lawyers who solicit firm when bringing in a lateral hire, the new pre-announcement; (2) soliciting firm clients before announc- firm may have to manage and resolve employees pre-termination to join the some conflicts. First, the new firm may departing lawyer; (3) lying to the firm or ing their departure are represent clients adverse to a client at being deceptive about plans to leave; (4) in effect competing with the lateral hire’s old law firm if the lat- using firm property or resources with- eral hire was not personally involved in out permission before announcement, their own firm and may that client’s matter and did not gain any i.e., copying client files, downloading face a civil action alleging confidential information while at the client data and removing firm property breach of fiduciary duty, in order to solicit clients. old firm. See Comments [4]-[5] to Rule ABA Formal Op. 99-414 (1999) tortious interference with 1.9 (“Lawyers Moving Between Firms”). When the lateral hire leaves the provides guidance on the information contract, and unfair that should be put in the announce- old firm, the clients left behind become ment or notification letter to clients. competition. former clients because the departing The information clients typically should lawyer has effectively terminated the receive would include: professional relationship if the clients • Effect of Transition – an explana- have chosen to remain with the old tion for the lawyer’s withdrawal and firm. Any conflicts at the new firm must possible future unavailability; the time • Time for Response – time for client to be analyzed under Rule 1.9. For there frame after which the departing lawyer respond to the notice and the conse- to be a conflict, the new firm must be will no longer be available; current sta- quence if the client does not respond representing a client directly adverse tus of the client matter; and identity of to the notice, such as the client is to a client of the old firm in the “same person to contact regarding client file. considered to remain a client of the or substantially related matter;” and, • Right to Counsel of Choice – the firm until such time as the client gives the lateral hire must have been person- option to remain with the law firm, notice otherwise. See Rule 5.8(d). ally and substantially involved in the choose representation by the departing representation of the old firm’s client or lawyer or choose representation by 4. Obligations of Old Firm. The old obtained confidential information about other lawyers or law firms. firm must be careful not to interfere that client which the lateral hire would • Liability for Fees and Costs – if the cli- with a client’s autonomy and decision to be barred from using or disclosing by ent chooses to terminate the law firm, migrate with the departing lawyer. The Rule 1.9(c). Under those circumstances, information about any responsibility client’s right to terminate the old firm the lateral hire’s conflict is imputed to the client has for fees and costs already and hire a successor lawyer is virtually all the lawyers in the new firm under incurred. absolute. It is improper, once the client Rule 1.10. In Virginia, the imputed • Refund of Unearned Fees and Costs has made the choice to go with the conflict can be cured only with the in- – how any advanced fees and/or costs departing lawyer for the old firm to: formed consent of the old firm’s client.

48 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org Although ABA MR 1.10(a)(2) Endnotes (screens not allowed in side-switching cases allows nonconsensual screening of the 1 Twenty-First Century Rail Corp. v, N.J. despite availability of such a remedy in other Transit Corp., 44 A.3d 592 (N.J. 2012) (no former-client conflict situations); See also, lateral hire to avoid disqualification of screen allowed without former client’s con- CSX Transp. Inc., v. Gilkison, Peirce, Raimond the new firm, Virginia did not adopt sent in subsequent adverse representation & Coulter, P.C., 2006 U.S. Dist. LEXIS 81019 that provision. In Virginia, if there is in same matter); Beltran v. Avon Products (N.D. W. Va.) (overlap in parties, potential a conflict under Rule 1.9, the conflict Inc., 2012 U.S. Dist. LEXIS 83060 (C.D. Cal.) witnesses, and facts and circumstances is imputed to the new firm and only (screen does not block firm’s imputed dis- from which alleged physical injuries or lack qualification when screened lawyer has key thereof arose created substantial relationship client consent can cure conflict. The confidential information from substantially and warrant disqualification which cannot affected clients can agree to screen the related cases); Norfolk S. R.y.. Co., v. Reading be cured by screening). lateral hire, but that would be part of Blue Mountain & N. R.R. Co., 397 F. Supp. an informed consent and waiver of the 2d 551 (M.D. Pa. 2005) (screen not adequate in side-switching case because no affidavit conflict. Only about half of the juris- that firm will not share its fee with screened dictions in the United States offer some lawyer or indication of strong sanctions if version of non-consensual screening to screen is breached, as well as no time lapse avoid former client conflicts imputation between former and current represen- tations, substantiality of former lawyer’s when a lawyer moves in between firms. involvement, and 10-lawyer size of new firm, However, even if the jurisdiction has a despite timely implementation of screen and non-consensual screening provision like restrictions on new lawyer’s access to case ABA MR 1.10, the court may nonethe- and prohibition on discussing case with new lawyer); City Natl. Bank v. Adams, 117 Cal. less disqualify the firm that the switch- Rptr. 2d 125 (Cal. App. 2002) (collecting ing lawyer has joined, even though the cases); Kala v. Aluminum Smelting & Refining new firm has implemented a screen.1 Co. Inc., 688 N.E.2d 258 (Ohio 1998)

Research continued from page 45 Flood continued from page 10

Endnotes sibility has adopted Formal Rule 1 W. Wade Berryhill & Michael v. 482 (9/18/2018) to guide lawyers Hernandez, Real Estate Closings § on what their ethical responsibil- 1:1 (Virginia Practice, Vol. 11, 2018-2019 ities are in the event of a disaster. ed.). The committee’s description of the 2 www.vsb.org/site/sections/realproperty 3 www.vba.org/page/real_estate opinion states: “By proper advance preparation and planning and tak- Frederick W. Dingledy is a senior ref- ing advantage of available technol- erence librarian at Wolf Law Library at William & Mary Law School. He is a for- ogy during recovery efforts, lawyers mer president of the Virginia Association can reduce their risk of violating of Law Libraries. the Rules of Professional Conduct after a disaster.” Lawyers would be well advised to become familiar with this opinion (https://perma Book continued from page 47 .cc/8S2Q-KHF3). No one intends to become a predictable warning against the use victim of a disaster. They are, by of oral settlement agreements. An definition, sudden events that leave appendix offers four template agree- us with unforeseen damages. How ments for different kinds of disputes. you deal with it can be controlled, At $119.95, the book doesn’t however, if you are prepared. Plan seem cheap; but in context, it is, es- ahead to protect your clients, pecially if you frequently mediate yourself, your coworkers, and your Steve Emmert is an appellate lawyer at disputes. If the book’s sensible sugges- Sykes, Bourdon, Ahern & Levy in Virginia family. q tions save the reader from even one Beach. He is a certified appellate mediator exploded agreement, it will have paid and the publisher, since 2005, of the web- site Virginia Appellate News & Analysis. for itself many times over.

www.vsb.org Vol. 68 | October 2019 | VIRGINIA LAWYER 49 Legal Aid continued from page 14 throughout the state, will enable us to do our part. Each of us can provide assist significantly more low-income some extra time, advice and counsel Initiative. With our judges providing Virginians and narrow the justice gap. to help our neighbor. In doing so, the leadership and encouragement, Through the logistical support of- we narrow the justice gap in Virginia SVLAS is providing the logistical fered by SVLAS, we hope to encourage and strengthen the faith in our legal support. Our judges are challenging universal involvement in our service system. q our local practicing attorneys to accept area and remove any impediments to two pro bono cases in the next year. the sustained involvement of attorneys Joseph R. Carico currently serves as the For logistical support, SVLAS aids in providing pro bono services. executive director of Southwest Virginia one-on-one networking, screens eligi- Along with celebrations nation- Legal Aid where he previously served as ble cases, prepares case referral notes, wide, Virginia observes National deputy director and domestic violence staff and offers the cases to participating Celebrate Pro Bono month in October. attorney. He has also served as Common- wealth’s attorney for Wise County & the City attorneys. We also provide forms Now is the appropriate time for each of Norton, chief deputy attorney general of databases, CLE training if needed, and Virginia attorney to sign up for pro Virginia, a judge in General District and malpractice coverage for referred cases. bono participation with the Virginia Circuit Courts and in private practice. Participating attorneys may also accept State Bar or your local legal aid organi- eligible cases for pro bono represen- zation. To be sure, this request is made Endnotes tation online through a statewide pro with the full acknowledgment that 1 Legal Services Corporation. 2017. The Justice Gap: Measuring the Unmet Civil bono portal called JusticeServer. many attorneys already perform legal Legal Needs of Low-income Americans. Along with other Legal Aid pro- work for free or sometimes at lower Prepared by NORC at the University of grams in Virginia, SVLAS is a partic- rates. Your generosity and service are Chicago for Legal Services Corporation. Washington, DC. ipant and supporter of JusticeServer. commended and appreciated, but 2 Id. Attorneys may simply register online there are still unmet needs. 3 John Whitfield, The Sobering Findings at www.justiceserver.org, click a link While we aren’t fulfilling a proph- of the Virginia Self-Represented Litigants Study, 67 Va. Law. 20, 21 (2018). to one of the eight legal aid programs ecy like Ernest in The Great Stone 4 Strickland, Graves & Schauffler,Virginia across the state, view and select one or Face, as attorneys we can fulfill these Self-Represented Litigant Study, National more cases they would like to accept unmet needs in our own communities. Center for State Courts (2018). 5 Id. for pro bono representation, complete And like the lesson in that story, we 6 Citizens Survey, Office of the Executive the work, and report case comple- shouldn’t keep waiting for the next Secretary, Supreme Court of Virginia tion and results online. Attorney attorney to come along to fulfill these (2007). 7 John Whitfield, The Sobering Findings involvement through this method, needs when we are precisely the ones of the Virginia Self-Represented Litigants and through pro bono volunteering who can act and serve. Each of us can Study, 67 Va. Law. 20, 23 (2018).

You’re retiring, but your law degree doesn’t have to.

Transition into emeritus status and practice only pro bono.

For questions about the program, contact the VSB Pro Bono / Access to Legal Services department at (804) 775-0522. To start the application process toward emeritus status, call (804) 775-0530.

50 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org CLE Calendar

October 14 Counselor—Company Design for 28th Annual Advanced Elder Law Update Founders, Key Employees, and Investors Seminar 2019 Live — Wintergreen Resort Virginia State Bar Video — Charlottesville, Tysons Friday: Noon–5:30 pm; Saturday: 8:15–12:30 Harry L. Carrico 9 am–4:15 pm pm Professionalism Course

October 15 October 21 December 5, 2019, Richmond 28th Annual Advanced Elder Law Update GAIN THE EDGE!® Negotiation Strategies v Seminar 2019 for Lawyers January 8, 2020, McLean Video — Abingdon, Alexandria, Norfolk, Live — Richmond v Richmond, Roanoke 8:30 am–3:45 pm 9 am–4:15 pm April 22, 2020, Charlottesville Depositions Done Right v October 16 Video — Alexandria May 2020 (TBD) Norfolk 38th Annual Trusts and Estates Seminar 8:30 am–3:45 pm See the most current dates and 2019 Live — Roanoke 38th Annual Trusts and Estates Seminar registration information at 9 am–4:15 pm 2019 www.vsb.org/site/members/new. Live — Fairfax Lawyers as Fiduciaries: Ethical and 9 am–4:15 pm Practical Considerations—How to Get It Right 38th Annual Family Law Seminar 2019 Essentials of Handling Employment Webcast/Telephone Video — Charlottesville Litigation Cases in Federal Court 9–11 am 9 am–4:30 pm Webcast/Telephone 9 am–12:15 pm 37th Annual Real Estate Practice Seminar Ethics Update for Virginia Lawyers 2019 2019 Webcast/Telephone 38th Annual Family Law Seminar 2019 Video — Tysons Noon–2 pm Video — Fredericksburg, Harrisonburg, 9 am–4:10 pm Tysons October 22 9 am–4:30 pm The Changing Landscape of Non-Compete GAIN THE EDGE!® Negotiation Strategies Agreements for Lawyers Essentials of Probate Live — Charlottesville/Webcast/Telephone Live — Fairfax Webcast/Telephone 1–4:15 pm 8:30 am–3:45 pm 2–4 pm

October 17 Depositions Done Right October 24 37th Annual Real Estate Practice Seminar Video — Charlottesville 28th Annual Employment Law Update 2019 8:30 am–3:45 pm Seminar 2019 Video — Alexandria, Norfolk, Richmond, Video — Tysons Roanoke 38th Annual Family Law Seminar 2019 8 am–4:45 pm 9 am–4:10 pm Video — Abingdon, Alexandria, Norfolk, Richmond, Roanoke Writing and Speaking to Win October 18 9 am–4:30 pm Live — Richmond Title IX Investigations of Sexual 8:30 am–3:45 pm Misconduct on College Campuses The Cybersleuth’s Guide to the Internet: Webcast/Telephone Fast, Free, and Effective Internet The Cybersleuth’s Guide to the Internet: 9–11 am Investigative Research Fast, Free, and Effective Internet Video — Fredericksburg, Tysons Investigative Research 37th Annual Real Estate Practice Seminar 9 am–4:30 pm Video — Abingdon, Alexandria, Norfolk, 2019 Richmond, Roanoke, Warrenton Video — Charlottesville October 23 9 am–4:30 pm 9 am–4:10 pm 28th Annual Employment Law Update Seminar 2019 Mastering Voir Dire and Jury Selection Tom Spahn on Confidentiality: Clients’ Video — Abingdon, Alexandria, Norfolk, Live — Charlottesville/Webcast/Telephone Future Misconduct Richmond, Roanoke Noon–2 pm Webcast/Telephone 8 am–4:45 pm (Richmond video begins at Noon–2 pm 9 am) Special Needs Planning for the Family Law Attorney October 18–19 Writing and Speaking to Win Live — Charlottesville/Webcast/Telephone 46th Annual Advanced Business Law Live — Fairfax 3–5 pm Conference 2019: The Startup Business 8:30 am–3:45 pm

www.vsb.org Vol. 68 | October 2019 | VIRGINIA LAWYER 51 CLE Calendar

October 25 October 30 November 7 28th Annual Employment Law Update 20th Annual Virginia Intellectual Property Mastering Voir Dire and Jury Selection Seminar 2019 Legal Institute 2019 Webcast/Telephone Video — Charlottesville Video — Alexandria, Charlottesville, Noon–2 pm 8 am–4:45 pm Richmond, Roanoke 8 am–4:20 pm (Richmond video begins at Common Litigation Issues in Real Estate Depositions Done Right 9 am) Contracts Video — Norfolk, Richmond, Roanoke, Webcast/Telephone Tysons Trials of the Century II 3–5 pm 8:30 am–3:45 pm (Richmond video begins Live — Fairfax at 9 am) 8:25 am–3:45 pm November 8 Counsel for the Insured: Navigating the The Cybersleuth’s Guide to the Internet: Defending Serious Traffic Cases: Strategies Tripartite Relationship Fast, Free, and Effective Internet and Tactics in Representing Clients Live — Charlottesville/Webcast/Telephone Investigative Research Video — Norfolk, Tysons, Warrenton, Noon–2 pm Video — Winchester Winchester 9 am–4:30 pm 8:25 am–3:50 pm November 8–15 International Destination CLE: Vienna October 28 The Changing Landscape of Non-Compete 2019 20th Annual Virginia Intellectual Property Agreements Live — Vienna, Austria Legal Institute 2019 Webcast/Telephone Video — Norfolk 9 am–12:15 pm November 12 8 am–4:20 pm 38th Annual Trusts and Estates Seminar Essentials of Drafting Separation 2019 Defending Serious Traffic Cases: Strategies Agreements Video — Alexandria, Charlottesville, and Tactics in Representing Clients Webcast/Telephone Fredericksburg, Norfolk, Richmond, Video — Charlottesville 2–4 pm Roanoke 8:25 am–3:50 pm 9 am–4:15 pm October 31 Digital Detox: A Boot Camp for Lawyers Trials of the Century II November 13 Webcast/Telephone Live — Richmond 38th Annual Trusts and Estates Seminar Noon–2 pm 8:25 am–3:45 pm 2019 Video — Ashburn Tom Spahn on Confidentiality: Clients’ 4th Annual Federal Government 9 am–4:15 pm Future Misconduct Contracting Seminar 2019: Government Webcast/Telephone Contracts Trial Practice Tune-Up November 14 3–5 pm Video — Norfolk, Tysons 38th Annual Trusts and Estates Seminar 9 am–1:20 pm 2019 October 29 Video — Warrenton, Winchester 20th Annual Virginia Intellectual Property The Cybersleuth’s Guide to the Internet: 9 am–4:15 pm Legal Institute 2019 Fast, Free, and Effective Internet Video — Tysons Investigative Research Essentials of Small Business Formation 8 am–4:20 pm Video — Charlottesville Live — Charlottesville/Webcast/Telephone 9 am–4:30 pm 10 am–1:15 pm Defending Serious Traffic Cases: Strategies and Tactics in Representing Clients Ways to Avoid Legal Malpractice Claims November 15 Video — Abingdon, Alexandria, Danville, and Ethics Violations Essentials of Search and Seizure in Virginia Fredericksburg, Hampton, Richmond, Telephone Live — Charlottesville/Webcast/Telephone Roanoke Noon–2 pm 11 am–1 pm 8:25 am–3:50 pm (Richmond video begins at 9 am) November 1–2 November 18 40th Annual Construction Law and Public Trying Cases in the Western District of 38th Annual Trusts and Estates Seminar Contracts Seminar 2019 Virginia 2019 Live — Charlottesville Live — Charlottesville/Webcast/Telephone Live — Williamsburg Friday: 8:15 am–5:25 pm; Saturday: 8 9 am–1:15 pm 9 am–4:15 pm am–12:20 pm November 19 Ethics Update for Virginia Lawyers 2019 November 6 Trying Cases in the Western District of Webcast/Telephone What Family Law Attorneys Want Elder Virginia Noon–2 pm Law Attorneys to Know, and Vice Versa Live — Roanoke Live — Charlottesville/Webcast/Telephone 9 am–1:15 pm Noon–2 pm

52 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org Still need CLE Hours?

October 31 is the MCLE Deadline!

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November 19 December 4 December 6 Special Needs Planning for the Family Law Writing and Speaking to Win Essentials of Handling Employment Attorney Video — Abingdon, Charlottesville, Litigation Cases in Federal Court Webcast/Telephone Fredericksburg, Norfolk, Richmond, Webcast/Telephone Noon–2 pm Roanoke Noon–3:15 pm 8:30 am–3:45 pm (Richmond video begins What Family Law Attorneys Want Elder at 9 am) December 10 Law Attorneys to Know, and Vice Versa Trials of the Century II Webcast/Telephone Ethics Update for Virginia Lawyers 2019 Video — Alexandria, Charlottesville, 3–5 pm Webcast/Telephone Norfolk, Richmond, Roanoke Noon–2 pm 8:25 am–3:45 pm (Richmond video begins December 3 at 9 am) 45th Annual Recent Developments in Ethical Obligations Regarding Social the Law 2019: News from the Courts and Media: No Reason to Be Anti-Social Essentials of Small Business Formation General Assembly (Media) Webcast/Telephone Video — Charlottesville Webcast/Telephone 10 am–1:15 pm 9 am–4:25 pm 3–5 pm December 11 Counsel for the Insured: Navigating the December 5 Trials of the Century II Tripartite Relationship Writing and Speaking to Win Video — Danville, Dulles Webcast/Telephone Video — Tysons 8:25 am–3:45 pm Noon–2 pm 8:30 am–3:45 pm December 12 Essentials of Search and Seizure in Virginia Tom Spahn on Confidentiality: Clients’ Trials of the Century II Webcast/Telephone Future Misconduct Video — Tysons 3–5 pm Webcast/Telephone 8:25 am–3:45 pm Noon–2 pm

FIFTIETH ANNUAL Criminal2020 Law Seminar

February 7, 2020 February 14, 2020 DoubleTree by Hilton, Charlottesville DoubleTree by Hilton, Williamsburg

Video Replays in Several Locations in March and April

VIRGINIA STATE BAR AND VIRGINIA CLE®

54 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org ET AL. < Noteworthy Listening to the Law

It’s not enough to live and breathe the by constitutional amendments) and law all day. You also want to think about starting at season one for episodes on legal topics during your commute and Baker v. Carr, jury selection, the Second while you work out, yes? Fear not: The Amendment, the Commerce Clause, staff at the Virginia State Bar feel the and more. same way. Enjoy these legal-themed Photo by Juja Han on Unsplash podcasts to subscribe to — all for free! Legal Talk Network Peruse this website for a number of Common Law shows that bring the law University of Virginia to ears. Above the Law covers contemporary news from a legal School of Law’s Dean hosts one called Thinking perspective. And the Florida Bar and the Risa Goluboff and Vice Like a Lawyer which takes State Bar of Texas have their own series Dean Leslie Kendrick have everyday topics and shines on the network with episodes that are a great rapport in this conversational them through the prism relevant to Virginia lawyers, too. podcast, where they interview guests of a legal framework. LAWsome like John Grisham and professors at Lawyerist.com has the A podcast for law firms the school that are at the forefront of Lawyerist podcast with is this show’s premise. national legal conversations. topics like digital products Created by two legal for lawyers, scaling while solo, and what marketing professionals, More Perfect you should’ve learned in law school. The it combs through the ins and outs of In Radiolab’s signature ABA Journal puts out podcasts: Asked legal marketing and advertising but also style, hosts tackle the legal and Answered has tips of the trade — include topics like data security and history of hot button some from top lawyers and others from networking. topics and explore context outside the field, like a CPA with advice behind some of the most important on running a firm — andModern Law cases. We recommend skipping the third Library features top legal authors dis- season at first (original songs inspired cussing their books. Lawyer 2 Lawyer

SAVE THE DATE

The only thing changing faster than the law is technology … and staying technologically competent not only benefits your practice, it is a key part of the Rules of the Supreme Court of Virginia.

See what last year’s attendees had to say at April 27, 2020 www.bit.ly/TSrecap Greater Richmond Convention Center #VSBTECHSHOW

www.vsb.org Vol. 68 | October 2019 | VIRGINIA LAWYER 55 Virginia Lawyer Register

DISCIPLINARY SUMMARIES Effective June 28, 2019, the Virginia State Bar Disciplinary Board revoked Jahangir Ghobadi’s license to practice law in the The following are summaries of disciplinary actions for vio- Commonwealth of Virginia based on violations of the rules of lations of the Virginia Rules of Professional Conduct (RPC) professional conduct governing competence, diligence, safe- (Rules of the Virginia Supreme Court Part 6, ¶ II, eff. Jan. 1, keeping of property, and declining or terminating representa- 2000) or another of the Supreme Court Rules. tion. RPC 1.1; 1.3 (a); 1.15 (a)(1), (b)(4); 1.16 (d), (e) Copies of disciplinary orders are available at the link pro- www.vsb.org/docs/Ghobadi-071919.pdf vided with each summary or by contacting the Virginia State Bar Clerk’s Office at (804) 775-0539 or [email protected]. VSB John James Good Jr. docket numbers are provided. Stafford, VA 19-060-113221, 19-060-113987, 19-060-114295 Effective August 23, 2019, the Virginia State Bar Disciplinary DISCIPLINARY BOARD Board revoked John James Good Jr.’s license to practice law in the Commonwealth of Virginia for violating professional rules Andrew Ira Becker that govern diligence, communication, declining or terminat- Virginia Beach, VA ing representation, and bar admission and disciplinary matters. 19-021-113658 RPC 1.3 (a), (b); 1.4 (a); 1.16 (c), (d), (e); 8.1(c), (d) Effective August 29, 2019, the Virginia State Bar Disciplinary www.vsb.org/docs/Good-091919.pdf Board revoked Andrew Ira Becker’s license to practice law based on his affidavit consenting to the revocation. By tender- Jordan Jones Hays ing his consent to revocation at a time when allegations of mis- Staunton, VA conduct are pending, Becker acknowledges that the material 19-080-113789 facts upon which the allegations of misconduct are predicated Effective August 7, 2019, a Virginia State Bar Disciplinary are true. Rules of Court, Part 6, Section IV, Paragraph 13-28 Board issued a public reprimand with terms to Jordan Jones www.vsb.org/docs/Becker-082919.pdf Hays for violating professional rules that govern diligence, communication, truthfulness in statements to others, and Jerry Mack Douglas Jr. misconduct. This was an agreed disposition of misconduct Virginia Beach, VA charges. RPC 1.3 (a), (b), (c); 1.4 (a), (b); 4.1 (a); 8.4 (b), (c) 19-000-114086 www.vsb.org/docs/Hays-080819.pdf Effective July 30, 2019, the Virginia State Bar Disciplinary Board revoked Jerry Mack Douglas Jr.’s license to practice law Cynthia Ann King based on his affidavit consenting to the revocation. By tender- Virginia Beach, VA ing his consent to revocation at a time when allegations of mis- 18-021-107996, 18-021-110809, 18-021-112030 conduct are pending, Douglas acknowledges that the material Effective August 12, 2019, the Virginia State Bar Disciplinary facts upon which the allegations of misconduct are predicated Board suspended Cynthia Ann King’s license to practice law in are true. Rules of Court, Part 6, Section IV, Paragraph 13-28 the Commonwealth of Virginia for three months, with terms, www.vsb.org/docs/Douglas-080219.pdf for violating professional rules that govern diligence, com- munication, safekeeping property, declining or terminating Michael F. Fasanaro Jr. representation, and bar admission and disciplinary matters. Norfolk, VA This was an agreed disposition of misconduct charges. RPC 1.3 19-022-114621, 19-022-115204 (a), (b); 1.4 (a), (b); 1.15 (b)(3); 1.16 (a)(2), (c), (d); 8.1 (c) Effective July 26, 2019, the Virginia State Bar Disciplinary www.vsb.org/docs/King-081319.pdf Board revoked Michael F. Fasanaro Jr.’s license to practice law based on his affidavit consenting to the revocation. By tender- George Ernest Marzloff ing his consent to revocation at a time when allegations of mis- Ruther Glen, VA conduct are pending, Fasanaro acknowledges that the material 19-060-115588, 19-060-115639 facts upon which the allegations of misconduct are predicated Effective August 14, 2019, the Virginia State Bar Disciplinary are true. Rules of Court, Part 6, Section IV, Paragraph 13-28 Board revoked George Ernest Marzloff’s license to practice law www.vsb.org/docs/Fasanaro-072619.pdf based on his affidavit consenting to the revocation. By tender- ing his consent to revocation at a time when allegations of mis- Jahangir Ghobadi conduct are pending, Marzloff acknowledges that the material Sterling, VA facts upon which the allegations of misconduct are predicated 18-052-112490, 18-052-111817 are true. Rules of Court, Part 6, Section IV, Paragraph 13-28 www.vsb.org/docs/Marzloff-081519.pdf

56 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org Virginia Lawyer Register

Barry Ray Taylor Chesapeake, VA 16-022-104365, 16-022-104887, 18-022-111398 Effective August 22, 2019, the Virginia State Bar Disciplinary Board suspended Barry Ray Taylor’s license to practice law in the Commonwealth of Virginia for three years for violating professional rules that govern competence, diligence, com- munication, safekeeping property, responsibilities regarding nonlawyer assistants, bar admission and disciplinary matters, and misconduct. This was an agreed disposition of misconduct charges. RPC 1.1; 1.3 (a); 1.4 (a); 1.15 (a)(1), (b)(1)(3)(4)(5), (c)(1)(2)(4), (d)(3)(4); 5.3; 8.1 (a); 8.4 (c) www.vsb.org/docs/Taylor-082219.pdf It’s never a bad time to re-read the rules of your profession. Read them online or print DISTRICT COMMITTEES them in full at www.vsb.org/pro-guidelines.

Edith Charmaine Gray The website includes a breakdown of the Rules Ormond Beach, FL of Professional Conduct, the Professional 18-052-112118 Effective August 6, 2019, a Virginia State Bar Fifth District Guidelines, Legal Ethics Opinions, and Subcommittee issued a public reprimand with terms to Edith Unauthorized Practice of Law Opinions, plus Charmaine Gray for violating professional rules that govern amendments proposed, adopted, and rejected safekeeping property, the unauthorized practice of law and after March 1, 2010, as well as opportunities for multijurisdictional practice of law, and misconduct. This was an agreed disposition of misconduct charges. RPC 1.15 (a)(1), comment on proposed changes. (b)(3); 5.5 (c); 8.4 (a) www.vsb.org/docs/Gray-080819.pdf

DISCIPLINARY PROCEEDINGS

Suspension – Failure to Pay Disciplinary Costs Effective Date Lifted William Bryant Claiborne Halifax, VA July 22, 2019 Peter Robin Estes Springfield, VA July 29, 2019 Michael F. Fasanaro Jr. Virginia Beach, VA September 5, 2019 Michael Denis Kmetz Norfolk, VA July 29, 2019 Jean M. Robinson Vienna, VA September 4, 2019 Lawrence Jacob Song Los Angeles, CA September 9, 2019 Jason Allen Spitler Luray, VA August 16, 2019 Eric Nelson Strom Hopewell, VA August 19, 2019 Harry Tun Washington, DC June 21, 2019

Suspension – Failure to Comply with Subpoena Barry Ray Taylor Chesapeake, VA August 13, 2019 Paul Granville Watson IV Eastville, VA August 16, 2019 August 16, 2019

Impairment Vernon Keeve Jr. Fredericksburg, VA August 19, 2019

www.vsb.org Vol. 68 | October 2019 | VIRGINIA LAWYER 57 Virginia Lawyer Register

NOTICES TO LAWYERS from the “Definition” sub-heading to the “Processing Petitions” subheading; add requirement that alleged loss have a nexus The Honorable Teresa M. Chafin Invested to the Supreme to Virginia; add new procedure if CPF Board’s investigation Court of Virginia reveals a loss greater than amount requested by petitioner; and, On September 6, 2019, the Honorable Teresa M. Chafin was clarify procedure for requests for reconsideration. Comments formally invested as a Justice of the Supreme Court of Virginia are due October 11, 2019. Inspect the proposed changes and in a special session of the Court held at the Southwest Virginia read additional commentary online. Higher Education Center. www.vsb.org/site/news/item/comments_cpf_rules_2019-09 www.vsb.org/site/news/item/the_honorable_teresa_m._chafin Virginia Lawyers: If You Need Business, We Need You! SCOVA Advisory Committee Seeks Comments on Proposed The Virginia State Bar’s lawyer referral service needs attorneys Amendments immediately who can handle ‘everyday problematic’ matters The Advisory Committee on Rules of Court for the Supreme like consumer law, collections law, tenants’ rights, and employ- Court of Virginia is seeking public comment on two proposals ees’ rights. for amendments to the Rules of Court – one regarding issuing www.vsb.org/site/news/item/virginia_lawyers a deposition notice and the other regarding alternative pretrial orders for eminent domain cases. Join the Disciplinary System www.vsb.org/site/news/item/scova_comments The Standing Committee on Lawyer Discipline will soon seek active, in-good-standing lawyers to apply for disciplinary Comments Sought on Proposed Revisions to the Clients’ district committee vacancies. The 17 committees review Protection Fund Rules complaints and investigations against attorneys in their ju- The Clients’ Protection Fund Board seeks comments on a risdiction and determine what the appropriate disposition is. number of proposed changes to the rules that govern the fund. Applications in the form of a résumé and short statement of The proposed changes: allow petitions for alleged losses caused interest will be due in late February. Vacancies will be pub- by attorneys who transfer their class of membership; clarify lished online in mid-October, linked to in the Bar’s emailed petitioner’s duty to seek reimbursement from other sources be- news summaries, and published in the December issue of sides the Clients’ Protection Fund; move provisions in the rules Virginia Lawyer magazine. pertaining to the appropriate measure/quantum of an award

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58 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org Professional Notices

Hunton Andrews Kurth counsel; Kenneth T. Stout as an Eckert Seamans added three attorneys LLP has added Matthew R. associate; and Jason F. Goldsmith as a from LeClairRyan to its Richmond and McGuire as counsel in the law graduate. Washington, D.C. offices. issues and appeals practice Christopher L. Baker Donelson has in its Richmond office. McGuire Perkins will join the McGuire most recently added four lawyers from Richmond office as a served as Principal Deputy Solicitor LeClairRyan to the firm’s partner in the firm’s bank- General and executive division counsel Washington, D.C. and ruptcy & restructuring and Falls Church offices. In Perkins in the Virginia Attorney General’s office. Teskin commercial litigation prac- McGuire joins two other alumni of the Washington, D.C., share- tices. Perkins focuses his practice in the Virginia Attorney General’s appellate holder Robin L. Teskin focuses her areas of bankruptcy, business reorgani- team in the practice group: the former practice on intellectual property law, zations, workouts, and commercial liti- with an emphasis on the biotechnol- Solicitor General and former Acting gation. He represents Chapter 11 debt- ogy, pharmaceutical, and chemical Solicitor General. ors, lenders, and other secured creditors, industries. She provides intellectual creditors’ committees, trustees, receivers, property advice to pharmaceutical, biotechnology, life sciences, and medical lessors, and vendors. In his commercial device companies, research institutions, litigation practice, he handles cases in- hospitals and universities throughout volving the Uniform Commercial Code, the world. lender liability, fraudulent conveyance Kenneth J. Kalafus, and business torts, landlord-tenant Ph.D, a shareholder, is an disputes, construction and mechanic’s (l–r): Goldsmith, Robb, Wolf, Byrd, Schwertz, and Stout experienced attorney in the lien litigation, real estate litigation and biotech/life sciences indus- commercial broker lien disputes, insur- Miles & Stockbridge, a Baltimore- try and concentrates his ance coverage, and malpractice actions. founded firm with more than 230 law- practice on U.S. and foreign Kalafus Gerald F. Ragland Jr. (not pictured) yers in the mid-Atlantic area has opened patent prosecution, coun- will join the Washington, D.C., office as a Richmond office with a litigation team seling, and post-grant opposition. Dr. of counsel in the professional and prod- from LeClairRyan. Trial lawyer Thomas Kalafus assists clients with all phases of ucts liability litigation practices. Ragland M. Wolf, who specializes in commercial biotechnology patent procurement, in- has more than 40 years of experience litigation and construction law and cluding evaluation of invention disclo- practicing before judges and juries in litigation will lead the office. Wolf is sures, patentability studies, and patent various state and federal forums in an adjunct professor of construction application drafting and prosecution. Pennsylvania, Maryland, Washington, law at the University of Richmond His practice includes preparation of D.C., and Virginia. In addition to trials, School of Law; past president of the patent applications for prosecution (and he has been involved in negotiations, al- International Alliance of Law Firms; potential enforcement) internationally. ternative dispute resolution, mediations and served on Governor Tim Kaine’s Gretchen A. Jackson and arbitrations. He has also handled Transition Committee and on the Board joins the firm’s Product numerous appeals in federal and state Liability and Mass Tort of Commissioners of the Virginia Port courts. Group in the Falls Church Authority. Brendan C. Horgan office as a shareholder. She The team also will include John will join the Richmond focuses her practice on Jackson MacDonald Robb III, who is join- office as an associate in the transportation litigation, ing as a principal. Robb is a former tort defense, business litigation and firm’s labor & employment LeClairRyan partner who has spent the construction law. She has extensive trial and commercial litigation Horgan last two years as chief operating officer experience across many areas of both practices. Horgan focuses and chief legal officer of HMR Funding civil and criminal litigation. his practice on employment litigation, LLC in Richmond. Carl R. Schwertz will Peter Zuk joins the commercial litigation, and insurance now reside in the firm’s new Richmond Washington, D.C. office as defense. office.Schwertz focuses his practice on an attorney, concentrating Eckert Seamans products liability and mass torts and has in white collar criminal de- also added Shannon A. tried more than 200 cases to verdict in fense and civil litigation. He Kapadia as an associate Zuk his career. has experience representing in the Richmond office Additionally, Gretchen C. Byrd clients in cases involving tax evasion, Litigation Division. She Kapadia will join as a principal; Joseph M. wire fraud, contract disputes and prem- concentrates her practice Rainsbury (not pictured) will join as ises liability. on complex commercial litigation, www.vsb.org Vol. 68 | October 2019 | VIRGINIA LAWYER 59 Professional Notices including labor and employment and guished experience, high standards of tors, leaders and creative problem-solv- insurance coverage matters. Prior to practice and substantial contributions to ers, for a four-year term. DI creates proj- joining Eckert Seamans, Kapadia was the field of environmental law. Edwards’s ect-based learning experiences, where a judicial law clerk for the Honorable practice is focused on counseling devel- students work together in teams to solve Judges of Henrico County Circuit Court opers, lenders and corporations about open-ended STEAM (science, technolo- in the 14th Judicial Circuit of Virginia. effective strategies for structuring real gy, engineering, arts and mathematics) estate and corporate transactions to and service-learning challenges. Allen’s William “Bill” Edward minimize environmental and financial practice focuses on civil litigation with Callahan Jr. has joined risk. an emphasis on education matters. the Roanoke office of Gentry Locke as a Kakoli Mitra, Ph.D has partner in the Business Callahan joined Lathrop Gage as of Litigation group. His counsel in the Boston office, practice primarily involves bankruptcy joining the intellectual Professional Notices and creditors’ rights work for clients in property transactions team. Mitra various industries, including the finan- Dr. Mitra will primarily aide Email your news and professional cial services sector. He assists creditors clients in the agribusiness and biotech- portrait to [email protected] for with loan workouts and modifications, nology & life sciences industries. Dr. publication in Virginia Lawyer. and he represents businesses, finan- Mitra previously worked as an indepen- Professional notices are free to cial institutions, and investment firms dent practitioner advising academic-in- navigating matters of debt, bankruptcy dustrial consortia and startup compa- Virginia lawyers and may be edited and insolvency. Bill also represents nies on comprehensive business plans for length and clarity. financial institutions outside of bank- encompassing intellectual property ruptcy proceedings in a wide variety of development and multi-million-dollar matters, including foreclosures, collec- capitalization and fundraising strat- tion proceedings, and the development egies. Prior to law school, she was a of non-judicial liquidation strategies. scientific researcher and innovator at Virginia State Bar Staff Directory several world-class research institutions Frequently requested bar contact Nina Ginsberg of DiMuro including the Howard Hughes Medical information is available online at Ginsberg PC in Alexandria Institute and Yale University. was sworn in as president of www.vsb.org/site/about/bar-staff. the National Association of Chicago-based Freeborn Criminal Defense Lawyers Ginsberg & Peters LLP has add- at the association’s annual ed Barbara E. Rosenblatt as meeting in Philadelphia. Ginsberg has an associate in the firm’s practiced criminal law for more than 35 Litigation practice in Rosenblatt years and represented individuals and Richmond. Rosenblatt Website Advertisements corporations in a wide range of matters, focuses her practice on auto insurance & Classified Ads with a focus on national security law, defense litigation. Freeborn’s Insurance white collar investigations and prose- and Reinsurance practice is one of The VSB website has almost 34 million cution, financial and securities fraud, the largest such groups in the nation, hits per year and almost 12 million computer crime, copyright fraud, and and last month the firm moved its (page views) impressions. professional ethics. Richmond office to Riverfront Plaza’s Virginia Lawyer is distributed to west tower to accommodate ongoing Virginia lawyers, judges, law libraries, Holland & Knight Partner expansion. other state bar associations, the media, Amy L. Edwards, the co- and general subscribers. Total circula- chair of the firm’s national Wesley Allen, an associate tion is over 50,000. environmental team, has with Blankingship & Keith, Contact Dee Norman at been elected a fellow in P.C., has been appointed Edwards (804) 775-0594 or [email protected] the American College of to the Board of Trustees if you are interested in advertising in Environmental Lawyers (ACOEL). She is of Destination Imagination Allen one of 25 new fellows and one honorary (DI), a global, volunteer-led Virginia Lawyer or at VSB.org. fellow inducted into ACOEL this year. educational nonprofit dedicated to They were selected for their distin- inspiring the next generation of innova-

60 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org Classified Ads

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www.vsb.org Vol. 68 | October 2019 | VIRGINIA LAWYER 61 Speech continued front page 23 and Holmes’ Patterson decision. A chance Rabban at 248-354. One Holmes expert has encounter on the train traveling to their argued that nothing changed in Holmes’ 16 249 U.S. 47 (1919) summer homes in June 1919 led Hand to try thinking, and that the early 1919 decisions 17 Id. at 51-53. Justice Brandeis would author and convert Holmes to the merits of his direct were consistent with Holmes’ later dissents. a decision decided with Schenck which also incitement test through a series of letters that See Sheldon M. Novick, The Unrevised Holmes rejected a First Amendment challenge to a followed. See Gerald Gunther, Learned Hand and Freedom of Expression” 1991 Sup. Ct. Rev. conviction for giving a speech at a socialist and the Origins of Modern First Amendment 303. Holmes’ dissent in Abrams did not lack meeting where draft registrants were present. Doctrine: Some Fragments from History, 27 for critics, the most vociferous possibly being Sugarman v. United States, 249 U.S. 182 Stan. L. Rev. 719 (1975); Thomas Healy, The John Wigmore. See Abrams v. U.S.: Freedom of (1919). The Sugarman case did not disclose Great Dissent: How Oliver Wendell Holmes Speech and Freedom of Thuggery in War-Time the speech in question but affi rmed a jury Changes His Mind— and Changed the History and Peace-Time, 14 Ill. L. Rev. 539 (1920). instruction that criminalized speech that ad- of Free Speech in America 22 (2013) (“Healy”). 26 Abrams v. United States, 250 U.S. 616 (1919). vocated violation or obstruction of law. Id. at 22 Harold Laski was a young political philoso- It is beyond the scope of this article to discuss 184-85. Justice Holmes would author another pher from Oxford who had come to Harvard the most infl uential and eloquent concur- contemporary of the Schenck decision in to teach history and also enrolled in the law rence in First Amendment history, authored Frohwerk v. United States, 249 U.S. 204 (1919). school. He became the son Holmes never had by Justice Brandeis, in Whitney v. California, Frohwerk involved publication of articles in a and engaged in an extensive letter writing 247 U.S. 357 (1927). German-American newspaper critical of the exchange with Holmes beginning in 1916. See 27 250 U.S. at 630-31. For an excellent treatment draft and war. The conviction was affi rmed Healy at 31ff; Mark D. Howe (ed.), Holmes- of the Abrams case, see Richard Polenberg, even though there was no evidence that the Laski Letters, Vol 1 (1963). Among the books Fighting Faiths (1987). Max Lerner viewed publisher had made a “special effort” to reach Laski had Holmes read during the summer of Holmes’ “but” section in Abrams the “greatest draft registrants. Nevertheless, in an inverted 1919 was A.A. Seaton’s important work, The utterance on intellectual freedom” by any logic, Holmes noted that conviction was Theory of Toleration under the Later Stuarts American ever, ranking with the writings of proper because the defendant had failed to (1910). John Stuart Mill and John Milton (quoted in disprove the possibility that the speech con- 23 Zechariah Chafee Jr. was a young Harvard Mark A. Graber, Transforming Free Speech 108 stituted “a little breath [suffi cient] to kindle a law school professor (and descendant of (1991)). fl ame.” Id. at 209. Frohwerk demonstrated that Roger Williams) who by happenstance began 28 Freedom of speech would take a hit in the the First Amendment, as then understood, teaching an equitable remedies course that led McCarthy era with decisions like Dennis v. Classifiedprovided essentially no Adsprotection for critical him, as war broke out and speech repression United States, 341 U.S. 494 (1951), and Scales speech in wartime. One of the federal pros- began, to research free speech in America. v. United States, 367 U.S. 302 (1962), but ecutors in Frohwerk, Alfred Bettman, would Laski brought Holmes and Chafee together would rally after the Cold War subsided with later concede that Frohwerk was the clearest in the summerOffice of 1919 Spacefor tea and dialogue, cases like New York Times v. Sullivan, 376 example in all the 1919 cases of a political and recommended to Herbert Croly, the U.S. 254 (1964), and Brandenburg v. Hayes, prisoner. Rabban at 329. publisher of the new journal, The New 408 U.S. 665 (1972). For an excellent concise 18 The Sedition Act of 1918, 40 Stat. 553 (1918). CLASSRepublic A OFFICE, that Chafee SPACE write AVAILABLE an article NOW on the treatment of how the Supreme Court got The Sedition Act, among other things, crim- If youFirst are Amendment. searching forSee officeHealy at space 54-62. in Chafee from Schenck to Brandenburg, see Douglas wrote several articles that came to Holmes’s Laycock, The Clear and Present Danger Test, inalized any willful speech that constituted Northern Virginia/DC Metro or Richmond, “disloyal” or “abusive” language against the attention in the 1918–19 time period. See 25 J. Sup. Ct. Hist. 161 (2000). government, the Constitution, the military; we haveFreedom a number of Speech of in excellent War Time opportunities, 32 Harv. L. 29 Schafer v. United States, 251 U.S. 466 (1920); or that “intended to incite” resistance to the withRev. the 932 amenities (1919); “Freedomand finish of Speech,”suitable Thefor law Pierce v. United States, 252 U.S. 339 (1920) New Republic 66-69 (Nov. 16, 1918). For (Brandeis only); Gilbert v. Minnesota, 254 United States; or that advocated curtailment firms of all sizes. Please email Joey Caperton, of military materiel production with the Chafee’s biography, see Donald L. Smith, U.S. 325 (1920)(Brandeis only); U.S. ex rel intent to hinder the United States in the at BrandywineZechariah Chafee, Realty Jr.: Trust Defender to discuss of Liberty your and Milwaukee Social Democratic Publishing Co. v. prosecution of the war. Almost 25 million leasingLaw needs, (1986). or Part dial of JoeyChafee’s directly genius at was (804) that Burleson, 255 U.S. 407 (1921); Gitlow v. New men registered for the draft with approxi- 521-1824.he took the conservative “clear and present York, 268 U.S. 652 (1925). mately 350,000, mostly socialist-inspired, danger” phrase, as employed by Holmes in 30 268 U.S. 652 (1925). resisting; some 2,168 persons were brought to Schenck, and transformed its meaning into a 31 See , e.g., Fiske v. Kansas, 274 U.S. 380 (1927); trial under the Act and 1,055 convicted. See progressive phrase chiefl y through the publi- Stromberg v. California, 283 U.S. 359 (1931); David F. Forte, Righting a Wrong: Woodrow cation of his 1919 Harvard law review article; Near v. Minnesota, 283 U.S. 697 (1931); Wilson, Warren G. Harding, and the Espionage an article praising the Holmes’s Abrams dis- Grosjean v. American Press Co., 297 U.S. 233 Act Prosecutions, 68 Case W. Res. L. Rev. 1097, sent, A Contemporary State Trial: The United (1936); De Jonge v Oregon, 299 U.S. 353 1127 (2018). Of the Espionage/Sedition Act States verses Jacob Abrams, 33 Harv L. Rev. (1937). convictions, 24 persons received 20-year 747 (1920); and his ground-breaking book, 32 The title of this article is derived from words terms, 6 received 15-year terms, and 11 Freedom of Speech (1920). of combustion used by Holmes in Frohwerk, received 10-year terms for their criticisms of 24 Ernst Freund was a University of Chicago 249 U.S. at 209 (“kindle a fl ame”) and Justice the war. See Stephen M. Feldman, Free Speech, professor who would publish a strong pro- Sanford in Gitlow, 268 U.S. at 669 (“rev- World War I, and Republican Democracy: The gressive criticism of Holmes’s opinion in the olutionary spark”), to express their “bad Internal and External Holmes, 6 First Amend. Debs case. See Ernst Freund, “The Debs Case tendency” fears of critical free speech, but, L. Rev. 192, 202 (2008). and Freedom of Speech,” The New Republic, in retrospect, now serve as graphic images 19 Debs v. United States, 249 U.S. 211 (1919). May 3, 1919. for the revolutionary impact the 1919 cases 20 Id. at 216-17. For an excellent treatment of 25 For good discussions of the infl uences would come to have on First Amendment the background of the Debs decision, and Holmes came under in the summer of 1919 jurisprudence. Debs’s exceptional character and commit- seeking to change his mind, see Healy, passim; ment to democratic principles, see Ernest Freeberg, Democracy’s Prisoner (2008). 21 Learned Hand decided one of the earliest Espionage Act cases in Masses Pub. Co. v. o w rg r Patten, 244 F. 535 (S.D.N.Y. 1917), rev’d, 246 F. 24 (2d. Cir. 1917). He applied a “direct incitement test” instead of the “bad tendency @Vastatebar Virginia State Bar test” (i.e., did the words expressly urge law violation, as opposed to did the words have a tendency to cause law violation) to fi nd that the speech in question did not violate the Act. /virginiastatebar @virginiastatebar The Second Circuit reversed, applying the “bad tendency” test in reliance on Blackstone www.vsb.org o. gs Reach 50,000 Lawyers Across Virginia and Across the USA!

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62 VIRGINIA LAWYER | October 2019 | Vol. 68 www.vsb.org Two Dates and an Email Walk into a Bar . . .

Actually, when it comes to trying to keep you informed, we are not joking around!

You have only two key dates each year:

July 31: Deadline for paying your dues.

October 31: Deadline for certifying your CLE hours

If you would like to receive our reminder emails, as well as a monthly news round-up of Supreme Court of Virginia news, legal ethics, and disciplinary actions, please keep your email of record current with the Virginia State Bar and add [email protected] to your email safe senders list, address book or contact list.