Virginia LawyerVOL. 67/NO. 1 • June 2018 VIRGINIA LAWYER REGISTER The Official Publication of the Virginia State Bar

2018–19 VSB President Leonard C. Heath Jr.

Cheers to 80 Years! A Look Back — with Thanks to the Lawyers of the VSB A Letter from the Honorable Donald W. Lemons Law School Round Up The Felony Reduction Clause

Virginia Lawyer The Official Publication of the Virginia State Bar June 2018 Volume 67/Number 1

Features Noteworthy 2018–19 VSB PRESIDENT VSB NEWS 12 Leonard C. Heath Jr. and the View from the Roof 44 Highlights of the June 14, 2018, by Deirdre Norman Virginia State Bar Council Meeting 45 Marni E. Byrum is President-elect 45 What’s Different on Your Dues Statement this Year? 46 In Memoriam 47 After 29 Years of ‘Growing Where VIRGINIA STATE BAR 80TH ANNIVERSARY she was Planted,’ Gale Cartwright Uproots from the Bar 32 80 Years of the Virginia State Bar 48 New Council Members and 33 VLRS: We Are Looking for the Next C. Butler Barrett Conference Leadership by Deirdre Norman 49 Annual Indigent Criminal Defense 34 What’s Your Favorite Bar? It’s Usually the Local One Seminar Draws Capacity Crowd by Deirdre Norman 49 Past Presidents’ Dinner 35 Let’s Talk About the Elephant in the Room 50 TECHSHOW by Deirdre Norman 51 Admissions & Orientation 36 A look back: milestones that changed the practice of Ceremony law in Virginia during the VSB’s first eighty years 51 UVA Law Sweeps Health Law Writing Competition 38 Virginia Leads Nation in FreeLegalAnswers.org Responses 52 VSB Honors Attorneys 54 Conference of Local and Specialty Bar Associations GENERAL INTEREST

20 The Sobering Findings of the Virginia Self-Represented Litigants Study Access to Legal Services by John E. Whitfield 42 From the CIA to Pro Bono 24 Is It Ethical for Lawyers to Accept Bitcoins and Other Cryptocurrencies? Phenom, Brian Fannin Gives Back by James M. McCauley, Esq., Sharon D. Nelson, Esq. and John W. Simek by Jackie Kruszewski 26 The General District Court’s Felony Reduction Clause by Bryan M. Cave Departments 40 A Letter from the Honorable Donald W. Lemons 6 Forum 58 CLE Calendar 63 Professional Notices VIRGINIA LAWYER REGISTER 64 Virginia Law School Round-up 65 Classified Ads 60 Disciplinary Summaries 61 Lower Health Insurance Rates for 65 Advertiser’s Index Solo Practitioners 61 Disciplinary Proceedings 66 80th Annual Meeting Highlights 61 Notices to Members: 62 Nominations Sought for Two Pro 61 Petition for Reinstatement Bono Awards Columns 61 Proposed Rule Changes Pending 62 Dues Statements Mailed Approval by Supreme Court of 63 Nominations Sought for Board and 14 President’s Message Virginia Committee Vacancies 16 Executive Director’s Message 61 Supreme Court and the Court 62 Clients’ Protection Fund Board of Appeals Announce Two-year Awards $19,440.00 to Former Clients 18 Legal Aid Mediation Pilot Project 56 Future of Law Practice

Cover: 2018–19 Virginia State Bar President Leonard C. Heath Jr. photographed in front of the Governor’s Palace in Colonial Williamsburg. Left to right: Kyle, Len, Kim, Caitlin, and Jordan Heath with Remington (“Remi”), the Heaths’ six-month-old Rhodesian Ridgeback puppy. Photograph by John B. Warters. Photo Reflections Inc. www.photoreflections.com Virginia Lawyer Virginia State Bar The Official Publication of the Virginia State Bar 2018–19 OFFICERS 15th Circuit Leonard C. Heath Jr., President Jennifer L. Parrish, Fredericksburg www.vsb.org Marni E. Byrum, President-elect Doris Henderson Causey, Immediate Past 16th Circuit R. Lee Livingston, Charlottesville Editor: President Palma E. Pustilnik, Charlottesville Deirdre Norman Karen A. Gould, Executive Director and Chief ([email protected]) Operating Officer 17th Circuit EXECUTIVE COMMITTEE John H. Crouch, Arlington Creative Director: Leonard C. Heath Jr., President Adam D. Elfenbein, Arlington Caryn B. Persinger Marni E. Byrum, President-elect Jennifer S. Golden, Arlington ([email protected]) Doris Henderson Causey, Immediate Past Gregory T. Hunter, Arlington President William H. Miller, Arlington Assistant Editor: Brian L. Buniva, Richmond 18th Circuit Jackie Kruszewski Joseph M. Bowen, Tazewell Barbara S. Anderson, Alexandria ([email protected]) Eugene M. Elliott, Roanoke Stacey Rose Harris, Alexandria William E. Glover, Fredericksburg John K. Zwerling, Alexandria Advertising: LLM Publications Beverly P. Leatherbury, Eastville Ben Oerther Jay B. Myerson, Reston 19th Circuit ([email protected]) Brian C. Drummond, Fairfax CONFERENCE CHAIRS AND PRESIDENT David J. Gogal, Fairfax Conference of Local and Specialty Bar Richard A. Gray, Tysons Corner Associations – Charles M. Lollar Chidi I. James, Fairfax VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473) Diversity Conference – Luis A. Perez Douglas R. Kay, Tysons Corner is published six times a year by the Virginia State Bar, Senior Lawyers Conference – Carrollyn C. Cox Daniel B. Krisky, Fairfax Young Lawyers Conference – Brian T. Wesley 1111 East Main Street, Suite 700, Richmond, Virginia David L. Marks, Fairfax Gary H. Moliken, Fairfax COUNCIL 23219-0026; Telephone: (804) 775-0500. Subscription Jay B. Myerson, Reston Rates: $18.00 per year for non-members. This material 1st Circuit Nathan J. Olson, Fairfax is presented with the understanding that the publisher Andrew D. Kubovcik, Chesapeake Dennis J. Quinn, Tysons Wayne G. Travell, Tysons and the authors do not render any legal, accounting, 2nd Circuit Edward L. Weiner, Fairfax or other professional service. It is intended for use by Ryan G. Ferguson, Virginia Beach Michael M. York, Reston attorneys licensed to practice law in Virginia. Because of Steven G. Owen, Virginia Beach Daniel M. Schieble, Virginia Beach 20th Circuit the rapidly changing nature of the law, information Christine H. Mougin-Boal, Leesburg contained in this publication may become outdated. As 3rd Circuit Susan F. Pierce, Warrenton Nicholas D. Renninger, Portsmouth a result, an attorney using this material must always 21st Circuit research original sources of authority and update 4th Circuit G. Andrew Hall, Martinsville information to ensure accuracy when dealing with Ann B. Brogan, Norfolk Gary A. Bryant, Norfolk 22nd Circuit a specific client’s legal matters. In no event will the Neil S. Lowenstein, Norfolk Lee H. Turpin, Chatham authors, the reviewers, or the publisher be liable for 23rd Circuit any direct, indirect, or consequential damages resulting 5th Circuit Carl Phillips “Phil” Ferguson, Suffolk Eugene M. Elliott Jr., Roanoke from the use of this material. The views expressed herein K. Brett Marston, Roanoke 6th Circuit are not necessarily those of the Virginia State Bar. The 24th Circuit J. Daniel Vinson, Emporia inclusion of an advertisement herein does not include David B. Neumeyer, Lynchburg an endorsement by the Virginia State Bar of the goods 7th Circuit 25th Circuit or services of the advertiser, unless explicitly stated Benjamin M. Mason, Newport News William T. Wilson, Covington otherwise. Periodical postage paid at Richmond, 8th Circuit 26th Circuit Virginia, and other offices. Marqueta N. Tyson, Hampton Nancy M. Reed, Luray 9th Circuit 27th Circuit W. Hunter Old, Williamsburg R. Cord Hall, Christiansburg POSTMASTER: 10th Circuit 28th Circuit Send address changes to Charles H. Crowder III, South Hill William M. Moffet, Abingdon VIRGINIA LAWYER 11th Circuit 29th Circuit MEMBERSHIP DEPARTMENT Dale W. Pittman, Petersburg Joseph M. Bowen, Tazewell 1111 E MAIN ST STE 700 12th Circuit 30th Circuit RICHMOND VA 23219-0026 P. George Eliades II, Chester Greg D. Edwards, Jonesville 13th Circuit 31st Circuit Brian L. Buniva, Richmond Maryse C. Allen, Prince William Dabney J. Carr IV, Richmond Leah A. Darron, Richmond MEMBERS AT LARGE Christy E. Kiely, Richmond Nancy C. Dickenson, Abindgon Sushella Varky, Richmond Afshin Farashahi, Virginia Beach J. Tracy Walker IV, Richmond William E. Glover, Fredericksburg Henry I. Willett III, Richmond Eva N. Juncker, Falls Church Virginia State Bar Staff Directory Beverly P. Leatherbury, Eastville Frequently requested bar contact 14th Circuit B. Alan McGraw, Tazewell Craig B. Davis, Richmond Lenard T. Myers Jr., Norfolk information is available online at Stephanie E. Grana, Richmond A Benjamin Spencer, Charlottesville www.vsb.org/site/about/bar-staff. Marissa D. Mitchell, Henrico vacancy

4 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org

Forum

Dear President Causey: Sincere regards, intoxication, which can cause vehicle accidents with injury and/or death. I just wanted to tell you how much I J. Roger Detweiler More specifically, and as an adult parent appreciate the thoughtful invitation to Bend, OR and grandparent, it is clear that young attend the 80th Annual Meeting, extend- individuals can be persuaded by friends ed to those of us who have completed Marijuana Legalization: to utilize marijuana for so called “joyful 50 years of membership in the Virginia Different Viewpoints purposes.” This type of action can result State Bar. Although I’m living out West in young people undertaking actions these days and won’t be attending, I This communication is a response which ultimately may become regretta- know those of us who will be there will to Zach Mauldin’s article, “Opinion: ble. In addition, legalization of marijua- be grateful for the recognition received. General Assembly Makes Welcome na invites potential illegal sale of said I’m particularly honored by an invi- Gains on Marijuana Laws,” appearing in substance to underage juveniles. Again, tation from a legal aid colleague, having the April edition of the Virginia Lawyer. this is not in the interest of the juvenile served in the Office of Legal Services, While I understand the logic of or their parents, given the prospect of Office of Economic Opportunity at allowing marijuana to be medically uti- injury or emotional distress resulting the beginning of the War on Poverty. lized for pain, nausea or seizure control, from marijuana use influencing poor Although the battle is not yet won, I I do not think that it is in the best inter- judgment. know the struggle is in the good hands est of the citizens of Virginia to embrace It is noteworthy that any attorney of warriors like you, having risen to the a complete legalization of marijuana for experienced in criminal defense actions highest level of service to our profession. recreational purposes. Such an action, in knows that marijuana can be a gateway Please carry on with my best wish- my opinion, is irresponsible, in as much drug to other more harmful drugs and es, and thanks again for remembering as marijuana diminishes the thinking commission of other crimes. These those of us who have had the honor of ability of any individual subject to its membership in the Virginia Bar. influence. Obviously, this can result in Marijuana continued on page 8

6 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org

Forum phenomena augment the overall com- Very truly yours, anything, up from epilepsy alone, but monwealth expenses associated with law first-time offenses will still be prosecut- enforcement, prosecution activities, and Randall J. Trost ed for unpermitted possession of pot. court costs that come with every arrest. Lynchburg Societal costs on both sides are noted, as well as the disproportionate arrest of Any commentary that complete black people — a thinly-veiled reference legalization is merited in order to reduce The October 2017 Virginia Lawyer to racism. Virginia’s on the wrong side costs associated with prosecution under highlighted an article (“Taking Aim of history — again. the current law is not a substantial at Virginia’s Opioid Crisis through But wait. What’s wrong with baby and meaningful basis for legalization Changes in Public Health Law”) dealing steps, taking a wait-and-see approach of recreational use of marijuana. The with the opioid crisis, which has built to and letting other states be the “go- wisdom of age is clearly more beneficial epidemic proportions thanks, in part, to with-the-flow” laboratories and their to the public and the citizens of Virginia the prescribing of drugs originally de- residents be the guinea pigs, until more than the commentary and promotion of veloped for use by the terminally ill only controlled, longitudinal research is available? Who is the author trying to marijuana legalization by the youthful — and sold as being safe, legal “oxy” and fool? Like the lottery and liquor, the thinking of Zach Mauldin. its ilk. Here we go again. Just six months later, the April 2018 legalization decision is about money Finally, I want to thank you for pro- issue (“Opinion: General Assembly and there are other ways to make it than viding the opportunity to respond to the Makes Welcome Gains on Marijuana poisoning the populace and priming it Mauldin article in the April edition of Laws”) includes the lamenting of the for a subsequent “problem” industry. the Virginia Lawyer. With kind regards, I commonwealth legislature’s incremental remain approach: medicinal marijuana oil for Marijuana continued on page 10

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Do we really need to add to the distracted and drunk drivers already on Correction: In the April 2018 edition our roads? Or augment the numbers of of Virginia Lawyer magazine, the the impaired, the substance abusing, and article, “VSB’s Katie Uston Leads the the addicted in general? National Organization of Bar Counsel This Year” (page 46), misstated the I think not: parallels and slippery authority of a committee chaired by slopes. How soon we forget…even be- Supreme Court Justice William Mims. fore “Along Comes Mary!” The VSB’s committee on lawyer dis- cipline is the body considering a rule Karen DeLuca change aimed at allowing lawyers to Alexandria avoid certain marks on their record.

Letters Send your letter to the editor to: [email protected] or Virginia State Bar, Virginia Lawyer Magazine, 1111 E Main Ste 700, Richmond VA 23219-0026

Letters published in Virginia Lawyer may be edited for length and clarity and are subject to guidelines available at http://www.vsb.org/site/publications/valawyer/.

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It was 104 degrees one summer & Mary] law school.” day in 1983, when at 2:00 p.m. on the Heath joined Williams Worrell Kelly front canopy roof of the Williamsburg & Greer, P.C. in Norfolk in 1986 and Candle Factory, Len Heath had an says, “I had wanted to do transactional epiphany about being a lawyer. Heath work, but I hated it. At the end of each was installing metal flashing at the deal I had a big stack of documents and bottom of a white wall that led to the very little feedback. But one of the great upper roof of the building. That wall things we did at that firm as associ- both blocked any hint of a breeze and ates was spend each Friday in Norfolk reflected the sun directly back on him. General District Court in front of Judge Around him, the men were pouring hot Lydia Taylor. After a year, I knew I want- asphalt that reached temperatures of ed to do litigation.” 450 degrees onto the flat tar paper. The Litigator William T. Prince was men wore blue uniforms that had grad- assigned to mentor Heath, and of this ually turned to white as the salt from Heath says, “Who you are as a lawyer their sweat dried into the fabric. Some is formed by your first exposure to the of the men were in their 40s and 50s and law. About ten years earlier in 1978, Bill a couple were in their 60s. mother died of breast cancer. Heath was Prince had been the 40th president of “I stood up and took a Kodak picture in just ten years old. the Virginia State Bar. He encouraged my mind that day,” says Heath. “I was 22 “After my mother died, I was going me to get involved with the bar as I years old, and I was starting law school in the wrong direction, getting in trou- sat in his office that day, and what he in a few days, and I thought, ‘If you ever ble,” Heath says. “My father said, ‘you could not know and I did not know, of get tired of studying or practicing law, are working with me.’ That summer I course, is that one day in 2018 I would remember this day.’ It was my day of started sweeping the shop, doing what be inducted as the 80th president of the inspiration.” they wanted me to do for five dollars a Virginia State Bar.” The new president of the Virginia day when I was twelve. By 14, I wanted Heath took his mentor’s advice to State Bar is a partner in Heath, Overbey, to work on the roof fulltime. It was a heart, eventually serving in numerous Verser & Old, PLC in Newport News great part of my education. I met some roles at the VSB, including the MCLE and is the first lawyer from the penin- of the smartest people I know on job Board, the Ethics Committee, Council, sula to hold that office in 50 years. His sites.” the Budget & Finance Committee, firm handles a variety of cases ranging Despite, or perhaps because of, the Future of Law Committee and the from personal injury to criminal defense having to leave school early, Heath’s Executive Committee, before being to business litigation. Heath maintains father put a great emphasis on school, named president-elect. Heath also had an AV Preeminent rating and was re- and Heath graduated from Central another life-changing event occur at the cently invited to become a Fellow of the Baptist School where he was president firm when he met a paralegal named Litigation Counsel of America. Yet he of the student body and first in his class. Kimberly, whom he managed to date, almost became a roofer. He went on to graduate from William & fall in love with, and ask to marry him “The Heaths are from a long line Mary with every intention of using his without the partners at the firm even of roofers,” he says. Heath’s father business degree to take over his father’s knowing they were a couple. They were left school in North Carolina to start roofing company, which had grown to married on December 2, 1989, with one working on the farm that his family 75 employees. But his senior year he colleague commenting, “I didn’t even tended as sharecroppers, and, after his took a business law class and for the first know that you knew each other.” Today, own father suffered a stroke, he came to time in his academic career he failed a they have three children: Jordan, who is Newport News at the age of 15 to live test. “I was stunned,” he says. “And in- a rising third-year at Regent Law School; with an uncle who was a roofer. Heath’s trigued at the thought process involved. and Caitlin and Kyle, both at Virginia father married and eventually started his I actually had to work in the class and, Tech, with Caitlin studying human de- own commercial roofing company, but ultimately, that professor went on to velopment and Kyle studying electrical tragedy struck soon after, when Heath’s write my recommendation for [William engineering.

12 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org 2018–19 VSB President

The bulk of Heath’s practice is now litigation of all types, with a special- ty he developed back in his days at Williams Worrell in “…a very narrow niche protecting electric transmission rights-of-way.” He says he was given his first such case with the caveat, “You are probably going to lose.” He went on to win that case, and to create a specialty that he has practiced successfully for 30 years in which he works to protect the area surrounding power lines from encroachment. Perhaps his most noteworthy plain- tiff’s case involved a minor teenager who had cut off his hand in a circular saw accident. The hand was reattached, but the ensuing lawsuit saw Heath and And what is there to know about his firm suing not only the man who Leonard C. Heath Jr. that you might was supervising the teenager but also never guess by meeting him in the the teen’s parents on behalf of the teen. courtroom or at the Virginia State The case garnered national media Bar? When asked this Heath pauses attention, including invitations from the for a minute as if weighing the answer Montel Williams and Jenny Jones shows, then says simply, “I am a Walt Disney all of which Heath promptly declined. aficionado. I have been to Disneyland The case settled two days before oral twice and Walt Disney World well over argument was set to begin in front of 25 times.” When given the option by the Supreme Court of Virginia. his wife Kim to have a home office at Heath’s demeanor turns thoughtful their new house, Heath instead chose to when asked about his goals for his year have what he calls The Cave – a room as VSB president. “As with many things full of Disney memorabilia collected in my life, it goes back to my early years over the course of his lifetime. As with at Williams Worrell. Of the 25 lawyers many things in Heath’s life, he can draw working with me there in 1987, as of a straight line from a past event and today two have committed suicide. They connect it to the present and the man he were really good lawyers, and they were became. wonderful people. When you see that, “When I was a kid we only had you want to do something about it.” He a black and white TV. One day I was says his main goal for his year as presi- watching the Wonderful World of Disney dent will be to continue to expand the at my friend’s house and Tinkerbell ongoing discussion on lawyer wellness. came out and waved her wand and the “We talk about it now. We didn’t scene changed to color. I was transfixed.” then. But we are still really just starting Then, when his mother passed away in the discussion. I have a son who is going 1971, his father took him to Disneyland. into the profession, and I want it to be That sealed the deal. “My mom had just safe. When I worked construction, I had died and that was so hard, but I still had The Heath family at Disney over the years. the right tools, the right hat, the right the greatest time.” boots. We need to figure out what the And that is how the boy who was tools are that will help to equip lawyers heading in the wrong direction grew to be safe in their profession as well. up not to be a roofer, but a lawyer, who “I love the practice of law. I can’t loves his family, the law, and Disney. imagine doing anything else. I like being around lawyers and I like taking care of lawyers,” he concludes. Heath bio continued on page 15 www.vsb.org Vol. 67 | June 2018 | VIRGINIA LAWYER 13 President’s Message by Leonard C. Heath Jr. End Zones, Ethics, and Epiphanies

The legal profession and the ing society better. We assist in the or- To be a good lawyer, one has to be NFL have something in common. derly flow of business, the governance a healthy lawyer. Sadly, our profes- Each recently experienced epiphanies of human affairs, the fair and efficient sion is falling short when it comes born of a series of studies, indicat- operation of government, and the to well-being . . . [S]tudies . . . ing that we both have a problem. We proper delivery of justice. And, like the reveal that too many lawyers and have spent decades watching talented NFL, it took years of observing, and law students experience chronic NFL athletes make spectacular plays perhaps suffering, the effects of our stress and high rates of depression on the field. For players on defense, problem before we finally acknowl- and substance use. These findings that usually means inflicting crushing edged that our profession actually has are incompatible with a sustain- blows. For players on offense, it means a problem. Depending on the study able legal profession, and they holding onto the ball even after the you read, 21 to 36 percent of attorneys raise troubling implications for player has had “his bell rung.” But after are problem drinkers. Twenty-eight many lawyers’ basic competence. watching these players survive increas- percent suffer from some form of de- This research suggests that the ing amounts of kinetic energy being pression, nineteen percent experience current state of lawyers’ health applied to their brains, medical pro- anxiety, and twenty-three percent have fessionals began to observe that many cannot support a profession elevated stress. Twenty-five percent are players were suffering from memory dedicated to client service and clinically classified as having a work loss, confusion, inability to control dependent on the public trust. addiction. Moreover, our profession emotions or impulses, depression, and This report is a clarion call to our has an unacceptably high suicide rate. dementia. For some, profession to take a critical self-evalu- these symptoms ation. It is simply led to early death, not enough to occasionally by say that lawyers suicide. It was not ... like the NFL, it took years of observing, and perhaps suffer high rates of until these symp- mental illness. We toms became pro- suffering, the effects of our problem before we finally must take a hard nounced on a larger acknowledged that our profession actually has a problem. look at ourselves scale that the search and find out why. for the cause of the This will mean symptoms began. drilling down to For the first time, the actual causes we learned of a little-known medical On August 14, 2017, a landmark of wellness issues. There is a direct cor- condition . . . chronic traumatic en- report was issued by the National relation between impaired attorneys cephalopathy, or CTE. Having discov- Task Force on Lawyer Well-being. The and ethics violations that may lead to ered CTE, the NFL is now reexamining report, entitled “The Path to Lawyer the game to try to make it safer. disciplinary proceedings. However, The legal profession has its own Well-being: Practical Recommendations while the report addresses impaired talented players — lawyers and judges for Positive Change,” can be found at lawyers, the report is more than a — who go to work every day aspiring http://bit.ly/lawyerhealth. In a cover report on “impaired lawyers.” Wellness to the high ideals of supporting the letter submitting the report, the Task issues arise long before lawyers become Rule of Law, serving others, and mak- Force summarized our situation: impaired. And, most lawyers who suf-

14 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org President’s Message fer from wellness issues, may never get law that can affect lawyer mental health. Heath continued from page 13 to the point of actually being clinically Not all of the characteristics apply to impaired. However, even wellness prob- every lawyer, but each characteristic can lems that fall short of clinical impair- cause well-being issues. What we are Leonard C. Heath Jr. ment can affect our clients, our families, finding is that well-being issues impact Heath, Overbey, Verser & Old, PLC and the profession. “Big Law” and solos, trial attorneys In Virginia, we have proud con- and business attorneys, and govern- Virginia State Bar: nections to the National Task Force ment attorneys and those in the private Executive Committee report. Three individuals involved in the sector. When it comes to age, at least the Council report have either direct or close ties to initial studies reflect that wellness issues Legal Ethics the Commonwealth of Virginia. First, impact younger lawyers more than Budget and Finance Chief Justice Donald W. Lemons is one seasoned attorneys. And, shockingly, Better Annual Meeting Committee of the co-authors of the report. Justice at least one report shows that wellness Bench – Bar Relations Lemons has always been an advocate for issues arise as early as the second year of Future of Law Practice the profession and for lawyers in general law school. Lawyer Insurance and his leadership in the issuance of this For those of us who simply feel Mandatory Continuing Legal Education report is something for which we should honored to have been allowed to par- Study Committee on the Future of Law be grateful. Second, the Virginia State ticipate in our great profession, these Professionalism Course Faculty

Bar’s own Kathleen M. Uston served as wellness statistics are unacceptable. I am Other Affiliations: a peer reviewer for the report. Finally, proud to be a lawyer. I like being with Fellow in the Litigation Counsel of America Chris Newbold is also a co-author. lawyers. One of my children is on the American Bar Association Chris serves as ALPS liaison to the VSB path to becoming a lawyer. So, if you Newport News Bar Association through our endorsed lawyer profes- cannot tell by now, wellness will be at Virginia Bar Association sional liability carrier program. the top of my agenda for the coming Virginia Trial Lawyers Association The National Task Force report has year. Please feel free to contact me with Williamsburg Bar Association already had an impact in Virginia. First, your thoughts and suggestions on the our executive director has forwarded the topic. The “experts” are the attorneys Education: report to all components of the VSB to across this great commonwealth who, The College of William & Mary, B.B.A. address wellness issues. Positive institu- day in and day out, actually practice law. The College of William & Mary Marshall- tional change has already been effectu- We are the ones who must participate Wythe School of Law, J.D. ated in this regard. In addition, Chief in the critical self-evaluation, not only Justice Lemons asked Justice William for ourselves, but for those attorneys yet Family: Mims to convene a panel to examine to come. But, most importantly, we are Len and Kim Heath are the parents of three well-being issues in Virginia. That com- compelled to do this for our clients and children: Jordan, Caitlin, and Kyle mittee continues its deliberations and the public trust. should have a report forthcoming before the end of this calendar year. You may have also noticed that CLE providers are addressing wellness issues in their presentations. I highly commend these programs. Read more about Lawyer Well-Being on the VSB website at As we begin our self-evaluation, we know that the answers will not be http://www.vsb.org/site/members/lawyer_well_being simple. Personally, I have compiled a list of “occupational risks to lawyer well-be- ing.” As I write this article, I have a list of 19 specific elements of the practice of www.vsb.org Vol. 67 | June 2018 | VIRGINIA LAWYER 15 Executive Director’s Message by Karen A. Gould The Benefits of Membership: You and the VSB

Virginia lawyers usually by filling out the form, vsb.org/docs/ Professionalism Courses to find the think about the Virginia State Bar only orderform.pdf, linked below Topical one that fits best with their schedule in terms of what they are required to Resources. You can then provide these during their first year in practice. do: MCLE compliance and annual helpful brochures to your clients. The annual VSB TECHSHOW keeps dues. The VSB is so much more than Publications include The Bankruptcy lawyers educated on the very latest those regulatory functions, running Process; El Processo de Bancarrota en in technology developments affect- the gamut from helping members español; Children & Divorce; Los Hijos ing the practice of law. The annual practice ethically to providing online y El Divorcio en español; Divorce in Leroy Rountree Hassell Sr. Indigent referrals to lawyers. In this 80th year, I Virginia; Financial Issues in Divorce in Criminal Defense Seminar educates would like to remind you of some of Virginia; Health Care Decision Making approximately 1,000 public defenders the things you and your peers make and Virginia Advance Directives and court-appointed attorneys free of possible for Virginia lawyers. resources; Immigration Fraud - infor- charge each year. The CLSBA’s Solo Considering the amount of usage mation and multilingual brochures; & Small-Firm Practitioner Forum the Ethics Hotline gets, this has to be Before You Buy: HOA Legal Issues; travels to smaller towns twice a year to the most popular member benefit the Legal Handbook for Cancer Survivors; reach solos and small firms in diverse VSB offers. The four ethics lawyers Marriage in Virginia; Minors, areas of the state. The Annual Meeting run a daily hotline to help Virginia’s Alcohol and Virginia Law; Protecting in Virginia Beach (this year was our lawyers practice ethically. You may Your Intellectual Property: Patents, 80th!) offered eight hours of CLE, as reach the Ethics Hotline to seek infor- Trademarks & Copyrights; Selecting well as an excellent opportunity for mal ethics or unauthorized practice of and Working with a Lawyer; Spare the networking and celebrating the civic law advice by calling (804) 775-0564. Child; and Wills in Virginia. and pro bono accomplishments of Alternatively, you may also email the VSB members have access to the Virginia lawyers. Ethics Hotline by going to vsb.org/ Fastcase legal research tool from the The Senior Lawyers Conference, site/regulation/ethics-questions-form. member page. Fastcase is provided Diversity Conference, Conference of Depending on the complexity of your free to all VSB members, though the Local & Specialty Bar Associations, question, you will receive either an service ordinarily costs $995 per year and the Young Lawyers Conference email response or a return phone call. for subscribers. Fastcase is the most stage programs for their members and The ethics staff strives to respond to popular legal research service in the the public to educate and further the your questions within the same day. country, serving over 800,000 lawyers pursuit of justice, while enhancing the VSB.org, the VSB website (all and twenty-seven state bar associa- image of lawyers in the community 10,000 pages of it), the Virginia tions. Fastcase 7 includes enhanced through their tireless efforts. Lawyer magazine, the Virginia Lawyer Forecite, Tag Cloud, Authority Check, The VSB also has a robust Access Register (now part of the magazine), and Bad Law Bot, the first big data to Legal Services program. The mis- and the News (formerly call E-News) service to identify negative citations to sion of the Virginia State Bar is to reg- provide communications and educa- judicial opinions. Fastcase 7 also offers ulate the legal profession of Virginia; tion to our members. The VSB also more advanced search options, new to advance the availability and quality publishes resources about law-relat- results screen options, larger fonts, and of legal services provided to the people ed issues for Virginia’s lawyers and easier reading and printing options. of Virginia; and to assist in improving citizens on its website at vsb.org/site/ The VSB offers a number of edu- the legal profession and the judi- publications/publications-home. cational programs for its lawyers. New cial system. Access to legal services You may ask to receive hard copies admittees have their choice of eight remains a core part of this mission.

16 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org Executive Director’s Message

The Director of Access to Legal Services Additionally, the committee collects and There are many opportunities for is employed full time by the VSB to sup- records data regarding circuit committee you to utilize VSB member benefits by port pro bono endeavors and to work activity; and develops and implements attending one of our many educational with the VSB Special Committee on awareness strategies among the public programs, joining a section, signing up Access to Legal Services. The Supreme and the legal profession. for the Lawyer Referral Service, follow- Court of Virginia’s recent order estab- The twenty sections of the Virginia ing VSB news online or in the magazine, lishing voluntary pro bono reporting State Bar are devoted to improving the or by participating in Virginia.freele- on the 2019 dues statement has focused practice of law in a particular substan- galanswers.org. Your dues dollars have VSB efforts on providing relevant CLE tive area or specialty practice. They pub- remained low over the years due to the programs while directing attorneys to lish newsletters, elect their own officers, constant vigilance of the VSB staff in pro bono opportunities. and choose their own activities within keeping costs down. Virginia.freelegalanswers.org is the limits established by the Council. In the next Virginia Lawyer maga- a VSB program that can be helpful Dues that range from $10 to $35 sup- zine, my column will address volunteer to members who want to render pro port the sections, of which a percentage opportunities for members to assist bono legal services in a limited way. is paid to the VSB for administrative either with the VSB’s regulatory mission Prospective clients log on to the site and support. A total of 23,156 lawyers are or with member benefits. Do not hesi- are screened to determine if they meet enrolled in section memberships as of tate to contact me at [email protected] if the threshold income requirements. If May 2018. Membership runs from a you have questions or concerns. they qualify, users may post questions high of 3,235 in the Litigation Section to about a civil legal issue. Questions are 204 in the Antitrust Section. then placed in a queue according to the nature of the legal issue or type of problem (i.e., “Family/Divorce/Custody” or “Debts & Purchases”). More informa- tion about this program may be found at vsb.org/site/pro_bono. Virginia Lawyer Referral Service is a service of the VSB that matches mem- bers of the public who are seeking the counsel of a Virginia lawyer. Members of the public have a number of different ways to reach VLRS: online by going to http://www.vsb.org/vlrs/; by sending an email to [email protected]; or by calling VLRS at (804) 775-0808 (metro Richmond) or (800) 552-7977 (state- wide and nationwide toll-free). The Special Committee on the Resolution of Fee Disputes oversees the Fee Dispute Resolution Program to pro- vide an avenue, other than litigation, for the expeditious and satisfactory resolu- tion of fee disputes between attorneys and their clients through mediation and uniform arbitration proceedings; and to foster trust and communication among attorneys and clients. The committee has established twelve fee dispute reso- lution circuit committees and provides training sessions for those committees. www.vsb.org Vol. 67 | June 2018 | VIRGINIA LAWYER 17 Legal Aid by Ann H. Kloeckner Got Any Real Lawyers There?

“You got any real Cheerleader-in-Chief big pictures that lie beneath our cli- lawyers there?” One of the best parts of my job as ex- ents’ legal issues? Do they have the “eye “Lorraine” called our legal aid ecutive director of a legal aid organiza- of the tiger” to be a passionate, fearless office, Legal Aid Works, searching for a tion is my role as cheerleader, mentor, litigator in what is often a David vs. lawyer to help her with a civil protec- and sounding board for our extraor- Goliath mismatch? And, more practi- tive order petition she had filed against dinarily dedicated attorneys. It makes cally, can we expect them to work hard her abusive spouse. Our intake staffers my day when one of my colleagues for the small nonprofit salary we offer, hear that question often, because ap- bursts into my office, eager to relate typically $48,000 for a newly hired at- plicants frequently wonder aloud if a a triumph in court, work through a torney? Finally, it helps to have a sense free legal aid office could possibly offer pressing legal conundrum, or commis- of humor and work/life balance. a “real lawyer.” erate about the struggles our clients are facing. Our attorneys benefit from A Day in the Life The Perception a collegial support system not just with What is it like on a typical day in the Something that comes without appar- other attorneys and dedicated staffers life of a legal aid attorney? In a word, ent cost might be perceived as not as in our three branch offices, but also busy. Our nine attorneys (one of valuable as something which would among the other legal aid attorneys all whom is part-time) try their best to normally cost thousands of dollars. over the commonwealth. We inspire meet the civil legal needs of 52,000 If someone offered you a diamond our newly minted attorneys by making potentially eligible clients living in a bracelet for free, you would wonder sure they are plugged into that net- vast, mostly-rural service region which whether those sparklers were genu- work of gracious, generous colleagues encompasses seventeen counties and ine or fake. So, it might be logical to who are always willing to puzzle 51 county-level courts. assume that legal aid lawyers are not through an issue, share a template or Like an emergency room without “real” and that our representation make a referral to a pertinent resource. enough doctors, we have perfect- is half-way, less than, and not fully ed the unenviable skill of rationing authentic. Adding to that general Searching for the Best justice through a triage process which perception is the oft-repeated taunt How do we choose which attorneys winnows out all but the most pressing from abusive spouses that our indigent will be the best fit for this extraordi- cases, based on priorities set through clients won’t have the money for a nary opportunity that is rewarding community legal needs surveys. “real lawyer.” in all but the monetary sense? We Currently, our office prioritizes cases assess whether candidates have the which involve imminent homelessness The Reality integrity, grit and creativity that we (evictions and mortgage foreclosures) “Yes,” we tell Lorraine, “we do have real need to do this demanding work. and domestic violence cases, but we lawyers.” They come in all levels of ex- With compassion as an essential tool also handle other family law cases, perience, ranging from just passed the in their toolbox, those job candidates consumer and public benefit cases as bar to 35-year litigation veterans. They are measured for their ability to stow well. are compassionate and savvy, with their judgmental attitudes about the Across the country, legal aid just enough dewy-eyed idealism to indigent at the door. Then we gauge offices have to turn away two out of help them plow through the crushing their ability to multi-task effectively. every three eligible applicants simply caseloads they handle. Will they perceive the small and the because we do not have the resources.

18 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org Legal Aid

In Virginia, there is one private attorney Another great resource is the Ann H. Kloeckner, Esq. has been the ex- for every 346 Virginians, but from a Virginia Poverty Law Center, which ecutive director of Legal Aid Works (www. legalaidworks.org) since 2011 and is licensed poor person’s perspective, there is only offers crucial training opportunities in Virginia, Texas, Pennsylvania, and New one legal aid attorney for every 7,000 and access to mentors who are experts Jersey. poor Virginians. That justice gap keeps in their respective fields. In addition, our caseloads large, as we do our best to we count on a cadre of compassionate, triage the needs of indigent clients who eager pro bono attorneys, interns, and face life-altering civil legal issues. law clerks whose exposure to our brand More on pro bono service of equal justice will, we hope, inoculate Resources them against apathy and forbid them One way we can assist new attorneys from living in blissful ignorance about Read more about how a Fredericksburg who come to us fresh from law school, the justice gap and the compelling need lawyer works with Legal Aid Works to do staggering under a mountain of school for volunteer attorneys and financial debt, is a Loan Repayment Assistance donations to support our work. pro bono on page 42. Program (LRAP). With that fund, administered through the Legal Services Real Lawyers Read about how you can get involved in Corporation of Virginia, our new attor- Yes, Lorraine, we do have real lawyers at FreeLegalAnswers.org on page 38. neys can obtain up to $5,000 per year to Legal Aid Works. They are warriors on assist them in repaying their loans while the front lines of the justice gap and are they are helping our clients find justice. worth their weight in gold.

www.vsb.org Vol. 67 | June 2018 | VIRGINIA LAWYER 19 The Sobering Findings of the Virginia Self- Represented Litigants Study by John E. Whitfield Representation in Virginia’s General District Courts All Civil Cases, 2016 Only Defendant is represented 0%

Only Plaintiff is represented 54% Both sides are represented 1%

Neither side is represented 45%

A few months ago, the National then Chief Justice Cynthia Kinser of the Supreme Court of Virginia to help the judi- Center for State Courts published the ciary fulfill its mission of providing an inde- Virginia Self-Represented Litigants pendent, accessible, responsive forum for the Study, a ground-breaking study of just resolution of disputes, with a particular focus on the civil legal needs of low-income Virginia’s civil courts’ case manage- Virginians. Early on in our deliberations, we ment databases focusing on unrepre- learned that there existed no hard data on the sented litigants. It was the first such pervasiveness of unrepresented litigants in Virginia’s courts. The court system’s databases study ever in Virginia, and perhaps did not uniformly track the representation- only the second in the entire country. al status of parties, so there was no way to (Missouri completed a similar study determine the numbers of unrepresented litigants in the court system. The commission in 2015.) The study was undertak- saw the obvious need for such data, to provide en with funding from a technology benchmarks for our work. initiative grant from the Legal Services As a first step, the commission sought the help of Karl Hade, the executive secretary Corporation (LSC) to my legal aid or- of the Supreme Court of Virginia, in adding ganization, Blue Ridge Legal Services the necessary fields in the database programs (BRLS), for this purpose. to allow for representation to be uniformly tracked. This was accomplished in 2014 by Background making the representation fields in the data- This report has been five years in the making, bases mandatory in all courts. After working with the creation of the Virginia Access to for two years to develop and refine the study Justice Commission (VAJC) as its primary concept, Blue Ridge Legal Services applied for catalyst. The VAJC was created in 2013 by a technology initiative grant in 2015 from the

20 VIRGINIA LAWYER | June 2018 | Vol. 67 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST national Legal Services Corporation (LSC) percent of general district court cases. Even if to fund the study, with the support of the all default judgments and “not founds,” etc., VAJC, the Office of the Executive Secretary, were excluded, both parties were represented the Virginia legal aid community, and the in only two percent of the remaining cases National Center for State Courts (NCSC). The in Virginia’s general district courts. In 54 grant was awarded in late 2015. percent of the cases, only the plaintiffs were The NCSC initially ran into some dif- represented, while neither side had counsel in ficulties getting access to circuit court data; another 43 percent of the cases. In the J&DR they ultimately were able to examine the data courts, neither party had representation in 87 from just 33 circuit courts, representing 38 percent of the cases, and only six percent of percent of the statewide circuit court caseload. adult cases involved counsel representing both On the other hand, they were able to work sides. For a court system designed around with a complete, comprehensive database a presumption of the presence of counsel, of all General District courts and Juvenile & the exception to the rule is in fact the case, Domestic Relations District courts. The da- resulting in a dysfunctional system for most tabase included a full year’s worth of data — unrepresented litigants. from April 1, 2015, through March 31, 2016. In contrast, 38 percent of circuit court However, the J&DR court data presented cases had counsel representing both parties. some problems in sorting out the representa- Only the plaintiffs were represented in 42 per- tional status of the parties, so NCSC narrowed cent of the circuit court cases, while neither its focus to adult cases in the J&DR courts for party had counsel in 14 percent of the circuit this study. court cases. It should be noted that many of Ultimately, the NCSC released five sepa- the cases where only the plaintiff had counsel rate reports as part of its study. Three reports, were undoubtedly uncontested matters (e.g., completed in April 2017, were descriptive no fault divorces) where there was likely no analyses of the circuit court, general district detriment to the defendant resulting from the court, and J&DR district court data, respec- lack of representation. (It would be useful to tively. The final two reports, including an drill down and look at the data after screening analysis of case outcomes and their relation- out the uncontested matters — something for ship to representational status of the parties, a future study to undertake.) and a summary of suggested management reports for future use by the courts, were The Association between Poverty and the completed in December 2017. All five of these Lack of Representation reports can be reviewed and downloaded at The second area of inquiry was the asso- http://brls.org/the-virginia-self-represent- ciation, if any, between poverty and repre- ed-litigant-study/. sentational status ot the parties in Virginia’s courts. Of course, the courts’ databases have Key Findings no data on the income of individual litigants, The key findings of the study focused on three so in order to examine this, NCSC ranked all aspects: • The pervasiveness of unrepresented litigants in Virginia’s civil justice system; • The association between poverty and the For a court system designed around a presumption lack of representation; and • The impact of the lack of representation on of the presence of counsel, the exception to the rule case outcomes. is in fact the case, resulting in a dysfunctional sys- Pervasiveness of Unrepresented Litigants in tem for most unrepresented litigants. Virginia’s Courts The data revealing the pervasiveness of unrepresented litigants was startling, partic- ularly in the lower courts. The vast majority of Virginia’s localities by their poverty rate of civil cases in Virginia’s courts involved at and grouped them accordingly. Then they least one unrepresented party. The tradition- compared those groupings with the rate of al court model, in which both parties have representation in the cases of the correspond- legal representation, occurred in only one ing courts. They found that the greater extent www.vsb.org GENERAL INTEREST FEATURES | Vol. 67 | June 2018 | VIRGINIA LAWYER 21 GENERAL INTEREST

of poverty in a locality, the more likely it is and agreed” the case. A case might also be that parties would be unrepresented. “dismissed” at the close of the plaintiff’s case, when the judge rules the plainfiff has not The Effect of the Lack of Representation by proved its case. The one common charac- Counsel on Case Outcomes teristic of all of these possibilities is simply Third, the study looked at the relationship that the plaintiff did not obtain a judgment between representational status and case out- against the defendant. See the accompany- comes. Not surprisingly, both plaintiffs and ing graph showing the breakdown of civil defendants have substantially higher success cases’ outcomes in Virginia’s general district rates when represented than when they are courts in 2016. unrepresented — reassuring information for Next, the study analyzed the same out- members of the bar. Of course, that is why come data but broke it out by the representa- people hire lawyers, if they can possibly afford tional status of the parties. There are generally to do so: they KNOW they need a lawyer four possibilities: in order to increase their odds of winning. • only plaintiff is represented; More disturbingly, the study’s results reveal • neither party is represented; that the impact of the representation status • both parties are represented; or of the parties — and the resulting potential • only defendant is represented. for imbalance of power when only one side is represented — is significant. This reflects When the case outcomes are compared similar findings in other more limited studies among these four groupings, the study found from other states; in this respect, Virginia is significant differences in outcomes depending not unique. on the representational status of the parties. Looking at case outcomes in all civil cases For example, plaintiffs obtained judgments in in Virginia general district courts in 2016, over 60 percent of the cases where plaintiffs we find that plaintiffs obtained judgments were represented and defendants were not. in 52 percent of the roughly 555,000 cases In contrast, they obtained judgment in only disposed of during the year, either through about 15 percent of the cases where defen- default judgments or contested judgments. dants were represented and plaintiffs were Conversely, they did not obtain judgments not. in the remaining 48 percent of the cases. When there was a level playing field These cases were disposed of in a number of — either both parties were represented, or ways: 7 percent were non-suited; 15 percent neither was represented — the outcomes fell were closed for non-dispositional reasons in between the two extremes. When both sides (e.g., “not found,” change of venue, etc.); had lawyers, plaintiffs won in about 55 per- 0.4 percent were judgments for defendants; cent of the cases, while they won in just over and 25 percent were dismissed. It should be 20 percent when neither party had a lawyer. In noted that “dismissed” can potentially cover a short, one’s chances of winning in court were wide range of circumstances; a case might be much better if represented, especially if the “dismissed” because the defendant paid the other side was not. alleged debt, or because the parties “settled

Case Outcomes in Virginia’s General District Courts All Civil Cases, 2016

2118

239724 49550 84156 39829 140110

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Default Judgment for Plaintiff Judgement for Plaintiff

Non-dispositional (”Not Found” etc.) Non-Suit Dismissed Judgement for Defendant

22 VIRGINIA LAWYER | June 2018 | Vol. 67 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST

The Import of these Findings tive defense of the statute of limitations, In a nutshell, these are the important findings which is waived if not raised. (How many in the study: judges have seen, on the face of the docu- • Our lower courts, in particular, are awash ments, that the statute of limitations has run, with unrepresented litigants; but feel they are duty bound to leave it alone • Poverty is correlated with lack of represen- if the unrepresented litigant fails to utter the tation, and localities with high poverty rates magic words?) have concomitantly high rates of unrepre- sented litigants; and At the same time, we need to increase the • Representational status has a clear impact on availability of counsel for those low-income case outcomes, particularly when only one litigants who have valid claims to dispute, side or the other is represented. particularly where opposing party has coun- sel, through: To the extent our civil justice system presumes • Additional funding for legal aid programs the presence of counsel to fairly and effective- so they have the capacity to represent more ly try cases (in pleadings, rules of procedure clients; and and evidence, etc.), that reliance is too often • A universal commitment by the bar to seriously misplaced — creating a dysfunc- undertake pro bono work for low-income tional system for the many litigants who don’t litigants. have access to representation. With our lower courts awash with unrepresented litigants, we Only by attacking this invidious problem from have a system that is frustrating both for our all angles will we be able to make the prom- judges and for most litigants. ise of “Equal Justice Under Law” a reality for Moreover, poverty — and the concomi- low-income Virginians in Virginia’s civil tant inability to retain counsel — creates a sig- courts. nificent barrier to successful outcomes for un- represented poor litigants in Virginia’s courts, Case Outcomes in Virginia’s General District Courts notwithstanding the best efforts of our judges All Civil Cases, 2016, by Representational Status to treat all litigants fairly. Judges — particular- 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% ly our lower trial court judges — are contin- ually struggling with the tension between the Plaintiff Only is Represented conflicting goals of remaining impartial and not bending the rules to help out a struggling Neither Party is Represented unrepresented litigant, versus arriving at a just result for the parties, notwithstanding their Both Parties Represented inability to retain counsel.

A Prescription Defendant Only is Represented If we are to try to address these serious structural access to justice problems — the Default Judgment for Plaintiff Judgement for Plaintiff existence of which this report confirms — we Non-dispositional (”Not Found” etc.) Non-Suit need to pursue a multi-pronged approach. Dismissed Judgement for Defendant On one hand, we need to re-think our court processes, recognizing that unrepresented litigants are now more often the rule than the exception to the rule — particularly in the lower trial courts, by: • Expanding small claims dockets and their equivalent; • Adopting simplified forms using plain lan- John E. Whitfield has served as the executive direc- tor and general counsel of Blue Ridge Legal Services guage, not legalese; since 1989. Prior to becoming the executive director, • Relaxing rules of procedure and evidence in he served as law clerk, staff attorney, and supervising those cases where both parties are unrepre- attorney since joining the organization in 1980. He is co-chair of the Virginia Access to Justice Commission. sented; and He was the 1998 recipient of the Virginia State Bar’s • Reforming unfair procedural traps for the Legal Aid Award and he was inducted as a Fellow of unrepresented litigant, such as the affirma- the Virginia Law Foundation in 2009. www.vsb.org GENERAL INTEREST FEATURES | Vol. 67 | June 2018 | VIRGINIA LAWYER 23 Is It Ethical for Lawyers to Accept Bitcoins and Other Cryptocurrencies? by James M. McCauley, Esq., Sharon D. Nelson, Esq. and John W. Simek

Cryptocurrency Baseline nomenon of cryptojacking in which miners hijack the computing resources of unknowing Bitcoins are digital currency — and victims so they can mine cryptocurrencies. yes, lawyers are beginning to accept And yes, your network could be victimized them from clients. They are also and there is little chance you would know un- less so much power is used that your network known as virtual currency or crypto- slows down! currency since cryptography is used Today there are a lot of different cryp- to control the creation and transfer tocurrencies. Bitcoin is still one of the most well-known and popular. However, other of bitcoins. They use peer-to-peer cryptocurrencies such as Ethereum, Bitcoin technology with no central authority Cash, Monero, Litecoin, Ripple, Dash, and or banks. The issuance of bitcoins and others are gaining in popularity. They prom- ise to scale better than Bitcoin and to provide the managing of transactions are car- stronger anonymous protections. As of April ried out collectively by the network. 26, 2018, the amazing number of different cryptocurrencies is 1,759 according to invest- Cryptocurrencies are created by a process ing.com’s current list located at https://www. called mining — by becoming a miner of investing.com/crypto/currencies. With all the cryptocurrencies, you make money (not various “flavors” of digital currencies, we’re much unless you are a major league miner). sure you’ll find one to your liking. We won’t go into all of the technology that All cryptocurrency transactions are re- is used to create and verify the transactions corded in a computer file called a blockchain, since it will probably make your head hurt. which is synonymous to a ledger that deals Mining is accomplished by executing compli- with conventional money. Users send and cated mathematic operations that take a lot receive bitcoins and other cryptocurrencies of processing power. Hence the new phe- from their mobile device, computer or web

24 VIRGINIA LAWYER | June 2018 | Vol. 67 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST application by using wallet software. You can Criminal defense lawyers, of course, even use cloud services to host and manage can face potential ethical and even criminal your wallet(s). Frankly, we prefer to have di- issues if clients pay them with assets they are rect control and keep our wallet(s) stored on determined to have acquired through illegal local devices. Of course, don’t forget to back conduct. And yet, almost invariably, when up your wallet(s). we hear about lawyers accepting bitcoins as We won’t get into all the technical and payment, the lawyers involved are criminal legal issues surrounding cryptocurrencies. defense attorneys. For all the talk of “privacy” Suffice it to say that these virtual currencies and the frequent inability to prove the con- are here to stay and have value, although nection between illegal conduct and bitcoins, they remain extremely volatile. In the U.S., it is clear that federal authorities believe the cryptocurrencies are regarded as property bitcoins are used to keep criminal activities rather than cash, with all the consequent tax financially untraceable. On the other hand, implications. many legitimate businesses in the United States and Europe accept Bitcoin, including Ethical issues Dish Network, Overstock.com and Expedia. Let’s deal with some of the ethical issues con- cerning the acceptance of cryptocurrencies. Holding Cryptocurrencies Nebraska is the only state we are aware of What if the lawyer wants to keep the crypto- that has issued an ethical opinion specifically currency for their own use? Can they just keep for Bitcoin usage. Nebraska’s opinion states the cryptocurrency in their own electronic that lawyers may accept payments in digital wallet and deposit cash in the trust account currencies but must immediately convert on behalf of their client? The answer to this them into U.S. dollars. Any refund of monies question depends on whether the bar con- is also made in U.S. dollars and not in digital siders bitcoin “funds” or “property” which a currency. client entrusts to the lawyer. See Rule 1.15. Client “funds” belong in a trust account but It is well known that an attorney can’t ac- client “property” must be safe kept by the cess client funds until they are earned, hence lawyer. Since a lawyer cannot deposit bitcoin the existence of trust accounts. Also, an attor- in a trust account, describing it as “funds” is a ney can accept property as payment, but there problem. must be a valuation for the property. This is where accepting digital currencies could get a little muddy. The Virginia rules require that a fee for legal services must be “reasonable.” If attorneys receive digital currency, they should In Rotunda’s view, bitcoin is like gold in the sense immediately convert and exchange it to actual currency AND put it in their escrow account. that it is worth whatever people are willing to This effectively (and actually) puts a value pay for it. on the cryptocurrency, which is exactly the process described in the Nebraska opinion. As part of the reconciliation and billing process, the lawyer would just note wording stating the number of bitcoins or other cryptocurrency When a client gives a lawyer bitcoin, it is and the market value at conversion. What “property” not actual currency, but Rule 1.15 the Nebraska opinion did not address is the requires a lawyer to safeguard client property. handling of transaction fees, which can be This means making sure your digital “wallet” rather substantial. The majority of lawyers is secure and backed up. If the lawyer wants to will use an exchange to convert the crypto- keep the bitcoin and give the client the equiv- currency into cash. Who pays the fee for this alent value in cash, those funds must go into conversion? And what if the client insists that the trust account if the bitcoin was payment the lawyer hold an advanced fee payment in of an advanced fee. This would require the bitcoin, instead of converting it to US curren- client’s consent and would be subject to the cy? If Bitcoin increases in value who gets the business transaction rule under Rule 1.8(a), windfall—the lawyer or the client? Who bears the risk if Bitcoin drops in value? Cryptocurrencies continued on page 30 www.vsb.org GENERAL INTEREST FEATURES | Vol. 67 | June 2018 | VIRGINIA LAWYER 25 The General District Court’s Felony Reduction Clause by Bryan M. Cave

For even the most experienced “Court of Record,” a plethora of case law is defense attorney, preliminary hearings not readily available to direct such practi- tioners. However, there are a few practice tips represent a complex area of criminal that can allow a defense attorney to utilize a procedure to navigate. The process is preliminary hearing to effectuate a permanent difficult to explain to the defendant, and finite disposition of a felony case. the outcome lacks finality, and the Court’s Possible Findings in a Preliminary lowered threshold of evidence creates Hearing a most unique criminal trial. “The preliminary hearing is essentially a screening process. Its primary purpose is to Depending on the tactical need or the strate- determine whether there is ‘sufficient cause’ gic advantage, preliminary hearings can prove for charging the accused with the crime to be needless, or an “unofficial” vehicle to alleged, that is, whether there is reasonable discovery, or a means to demonstrate to the ground to believe that the crime has been defendant a preview of the impending trial. committed and whether the accused is the Many criminal attorneys, in spite of numer- person who committed it.”1 A preliminary ous instances of case law, use the prelimi- hearing in the Commonwealth of Virginia is nary hearings for de facto discovery due to codified in Va. Code § 19.2-186 and specifical- the lack of a codified set of discovery rules ly holds: in the Commonwealth. Attorneys use the The judge shall discharge the accused if preliminary hearing as a way to test potential he considers that there is not sufficient witnesses and defenses without a real cost to cause for charging him with the offense. the defendant. The preliminary hearing has a seldom If a judge considers that there is sufficient used, and often overlooked possibility that cause only to charge the accused with an provides to General District Court judges offense which the judge has jurisdiction an ability to summarily dispose of a felony to try, then he shall try the accused for immediately. This power is seldom invoked, such offense and convict him if he deems and because General District Court is not a him guilty and pass judgment upon

26 VIRGINIA LAWYER | June 2018 | Vol. 67 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST

him in accordance with law just as if the issue.7 Evidence presented must justify such accused had first been brought before a conviction and supplant the felony as the him on a warrant charging him with such proper charge. Therefore, if there is no ap- offense. propriate, lesser included misdemeanor, the Reduction Clause cannot be triggered. If a judge considers that there is suffi- This position is further expanded upon cient cause to charge the accused with an in Moore, where the defendant argued that a offense that he does not have jurisdiction subsequent indictment on charges that were to try then he shall certify the case to the dismissed at the preliminary hearing should appropriate court having jurisdiction be barred.8 The defense argued that no further and shall commit the accused to jail or let prosecutions were constitutional as there him to bail pursuant to the provisions of was a lesser included offense for the felony Article 1 (§ 19.2-119 et seq.) of Chapter 9 charged, and after a full presentation of the of this title.2 evidence to the court the felony was “dis- missed.”9 The defendant’s position in Moore There are three potential outcomes for a was specifically rejected by the court.10 preliminary hearing in the Commonwealth The issue of the lesser included misde- of Virginia: 1) a finding that there is sufficient meanor becomes crucial in an attempt by the evidence presented to the court which then commonwealth for any subsequent prosecu- certifies the felony to the grand jury; 2) a tions related to the issues put before the tribu- finding that there is not sufficient cause for nal at the General District Court level. Both the felony and discharge the defendant; or 3) courts in Rouzie11 and Freeman12 saw appel- a finding “that there is not sufficient cause to lants that had initial felony charges reduced to charge the defendant with the charged felony, misdemeanors at their respective preliminary but reduce the charge to a lesser included hearings. Both defendants then saw new fel- misdemeanor.”3 Of these three outcomes, this onies charged in circuit court. Rouzie faced a article shall focus on the mechanics of the new charge of malicious wounding after being seldom used third option. found guilty of misdemeanor assault and The code section is silent as to the actual battery.13 Freeman was subsequently tried for use of what I will call “the Reduction Clause.” burglary after a lower court reduction to petit The only guidance available is the General larceny.14 While the Rouzie court held that the District Court Judges’ Benchbook regarding subsequent felony charge was barred as a re- what occurs after the court has decided to reduce the charge.4 At the point of reduction, the court has the authority to immediately arraign the defendant on the misdemeanor, At the point of reduction, the court has the authority to grant a continuance requested by either party, or entertain a motion for nolle prosse by the immediately arraign the defendant on the misdemeanor, commonwealth.5 The instructions are absent any direction on how the court may reduce grant a continuance requested by either party, or enter- the felony charge initially. However, statutory tain a motion for nolle prosse by the commonwealth. analysis and case law present several factors that must be present for the reduction.

Requirements to Trigger the Reduction Clause sult of double jeopardy,15 the court in Freeman 1. Lesser Included Misdemeanor Offense found that, based upon both the Blockberger The first requirement is there must be an and Grady tests, a misdemeanor conviction appropriate, lesser included misdemeanor for petit larceny did not bar a subsequent to be arraigned on in place of the felony burglary conviction.16 While the initial need charge.6 The court may not enforce any form for a suitable, lesser included misdemeanor is of legal fiction and convict the defendant of a needed to invoke the General District Court’s misdemeanor unrelated to the original felony. use of the Reduction Clause, it also plays a The Supreme Court of Virginia, in Rouzie, crucial role in determining the constitution- discussed the importance and necessity that al validity of any subsequent charges by the lesser included misdemeanors play in this commonwealth. www.vsb.org GENERAL INTEREST FEATURES | Vol. 67 | June 2018 | VIRGINIA LAWYER 27 GENERAL INTEREST

2. Full Presentation of the Evidence As articulated by Duggins, courts “[re- The second requirement for a reduction is serve] the power to overrule a nolle prosequi more vague due to the lack of specific codified when wielded as a weapon of ‘mischief or language. In Moore, the court spent consid- oppression’ against an accused.”22 Mischief erable time discussing the “full presentation and oppression can have multiple meanings of the evidence” regarding felony charges depending on which side of the aisle is mak- brought and dismissed against a defendant ing the argument. “Such deference remains who was subsequently indicted directly.17 due even in cases where the prosecution seeks Moore had her felony charges “dismissed” a nolle prosequi because of an ‘oversight’ in at the preliminary hearing.18 She was subse- its pretrial preparations.”23 This again speaks quently directly indicted and found guilty in to the potential need of the defense to call or a bench trial.19 While the Moore decision goes subpoena witnesses usually brought by the more toward the elective decision of the court commonwealth. If the defense is seeking the in using the Reduction Clause, a topic covered Reduction, and the commonwealth only opts later in this article, the court’s reliance on to put on evidence to meet the probable cause the necessity of the trial court to hear “a full standard, the defendant could be faced with presentation of the evidence” lends itself to a a situation where the case may not be fully belief in its requirement. presented — thereby removing the Reduction The commonwealth is under no obli- option. gation to put on their entire case in chief Moreover, “a lack of adequate fore- and are only required to present evidence to sight and preparation on the part of the establish probable cause of the crime and the Commonwealth’s Attorney” may not rise to defendant’s culpability. Therefore one can that mentioned level of mischief or oppres- 24 logically assume that not all of the evidence sion. Any analysis of this power, and the will be guaranteed to be presented by the court’s prerogative in allowing the use of this commonwealth. A defendant looking to power, must conclude that in order to avoid request usage of the Reduction Clause may be a nolle prosse, the defendant must show forced to not only subpoena every potential that the commonwealth’s choice is strictly commonwealth’s witness but, in an effort to oppressive or connected to a desire to bring ensure that all potential testimony is consid- the charge again where this jeopardy will not apply. ered by the court, elicit testimony from those witnesses that goes to support the common- The Discretion of the Court wealth’s case-in-chief as related to the felony A practicing defense attorney must always charge. bear in mind that the Reduction Clause power This stills begs the question: what of the General District Court is completely evidence, if any, beyond the normal prelim- voluntary. While the pertinent paragraphs inary presentment, will a General District of Virginia Code §19.2-186 state: “If a judge Court judge need to hear before unilaterally considers that there is sufficient cause only deciding to permanently remove the onus of a to charge the accused with an offense which felony? Unfortunately, based on a lack of case the judge has jurisdiction to try, then he shall law, one can only assume that this bar would try the accused for such offense and convict have to be established on a “judge by judge” him,”25 the Virginia Supreme Court held that basis. the usually mandatory use of the word “shall” has a softer meaning in this context. The The Commonwealth’s Nolle Prosse Option Moore court states: Once a felony has been reduced under this The word ‘shall’ in this context means the code section, the commonwealth is prevented court has the responsibility to proceed from resurrecting this charge under a direct to try the accused on the misdemeanor, 20 indictment. This is in stark contrast to the either at the time of the hearing (but commonwealth’s broad authority to nolle subsequent to the finding of no proba- 21 prosse a charge at any time. This power ble cause on the felony) or at some later would seem to give the commonwealth the time. To construe the language otherwise authority to drop a questionable charge would mean that at every preliminary before the General District Court judge might hearing on a felony which encompassed invoke its Reduction Clause. a lesser included misdemeanor offense,

28 VIRGINIA LAWYER | June 2018 | Vol. 67 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST

the Commonwealth must have all the felony unlikely, but it must show its evidence marshaled and be fully that a conviction upon the misdemean- prepared to try the misdemeanor or is proper. The commonwealth must as part of such hearing. This could either elect not to nolle prosse or be pre- not have been the legislative intent, vented from nolle prossing the charge. given the nature and purpose of the Finally the General District Court judge preliminary hearing.26 must be convinced to use this authority. While these circumstances may be rare, Bryan M. Cave is a partner in the Richmond- based law firm of Cravens & Noll (www.cra- In this instance the court held that the potential exists to turn a preliminary vensnoll.com). He is the managing attorney for the use of the word ‘shall’ is “directo- hearing from an unofficial discovery both the Luray and Harrisonburg offices. His ry and not mandatory.”27 This means hearing into a full dispositive trial that areas of practice include domestic, criminal, bankruptcy, personal injury, and civil matters. that even if you have a lesser included permanently eliminates a felony charge. misdemeanor, a full presentation of the evidence, and an obvious instance of Endnotes: the commonwealth’s inability to prove 1 Moore v. Commn., 218 Va. 388, 391, 237 25 Virginia Code § 19.2-186 (emphasis the felony in the Circuit Court, the trial S.E.2d 187, 190 (1977) (citing Williams added). 26 Moore at 190-91. court judge may still elect not to reduce v. Commn., 208 Va. 724, 725, 160 S.E.2d 781, 782 (1968)). 27 Id. the felony to the appropriate misde- 28 Moore at 389. meanor. 2 Va. Code § 19.2-186. 3 District Court Judges’ Benchbook, 29 Id. Association of District Court Judges 30 Id. Appealing the Decision of Virginia Benchbook Committee, As discussed in the Moore decision Section II(c), Chapter 5, Section D, p. above, appealing the court’s decision to 220, (2016). use its Reduction Clause comes with its 4 Id. own set of issues. Moore found herself 5 Id. in the position of appealing the Circuit 6 Rouzie v. Comm., 215 Va. 174, 207 Court’s finding of guilt on the lesser S.E.2d 854 (1974). included misdemeanor.28 Once the mat- 7 Id. ter was appealed, the commonwealth 8 Moore v. Comm., 218 Va. 388, 237 was then allowed to nolle prosse the S.E.2d 187 (1977). FREE HOUR charge and direct indict on the original 9 Id. at 190. felony.29 With the reduction appealed, 10 Id. of Legal Research the decision no longer had the element 11 Id. at Rouzie. For New Clients Only 12 Freeman v. Comm., 14 Va. App. 126, 414 of finality that would have rendered the S.E.2d 871 (1992). indictment unconstitutional on double Use only the free hour, or apply the 13 Rouzie v. Comm., 215 Va. 174, 207 free hour to a larger project. jeopardy grounds. A conviction and fi- S.E.2d 854 (1974). nality of such a case on a lesser included 14 Freeman v. Comm., 14 Va. App. 126, 414 • • offense would have prohibited a subse- Briefs Trial Memos Motions S.E.2d 871 (1992). Legal Research quent prosecution; once the matter was 15 Rouzie at 176. appealed, the jeopardy was no longer an 16 Freeman at 128 (citing Blockberger v. 35 Full-Time Attorneys issue. As a result, the Supreme Court of US, 284 U.S. 299, 52 S.Ct. 180 (1932) 50,500 Attorneys Served Virginia upheld Moore’s eventual con- and Grady v. Corbin, 495 U.S. 508, 110 173,500 Cases viction on the felony.30 If the Reduction S.Ct. 2084 (1990)). Clause is used, be very careful of your 17 Moore v. Comm., 218 Va. 388, 237 4,907 Virginia Attorneys have used decision to appeal the matter to Circuit S.E.2d 187 (1977). Court. 18 Id. at 389. 19 Id. National Legal 20 Rouzie at 856. Summary Research Group 21 Duggins v. Commn., 59 Va. App. 785, The use of the Reduction Clause by the CHARLOTTESVILLE, VA 790, 722 S.E.2d 663, 666 (2012). General District Court is rare because 22 Id. (citing 2 William Hawkins, Treatise Call for a free consultation it effectively takes a perfect storm of of the Please of the Crown, 355 n. 1 1-877-689-6432 circumstances. There must exist a felony (1824). with a suitable lesser included offense. 23 Id. (citing Battle, 12 Va. App. 630, 406 A full presentation of the evidence must S.E.2d at 198). [email protected] be given. That evidence must show the 24 Harris v. Comm., 258 Va. 576, 584, www.nlrg.com judge that not only is a conviction upon S.E.2d 825, 829 (1999). www.vsb.org GENERAL INTEREST FEATURES | Vol. 67 | June 2018 | VIRGINIA LAWYER 29 GENERAL INTEREST

Cryptocurrencies continued from page 25 lawyer. The lawyer can accept risk with respect to his or her own property. That the bitcoin cannot be deposited into a requiring that the terms of the transaction be fair and reason- bank account is not an ethics issue if the bitcoin is payment able, confirmed in writing and that the client be advised to toward an earned fee. Even if the client paid the fee in cash, a seek independent counsel before entering into the agreement. lawyer cannot deposit an earned fee in a trust account because One legal ethicist, the late Professor Ronald D. Rotunda, that would be commingling. The ethics rules do not require disagreed with the Nebraska Bar’s Ethics Opinion 17-03 that the lawyer to deposit an earned fee in an operating account ei- says the lawyer must convert the cryptocurrency immedi- ther. The lawyer could deposit the cash directly into a personal ately into US currency. See “Bitcoin and the Legal Ethics of checking account. Lawyers,” dated November 6, 2017, on Justia’s Verdict blog at If the client gives the lawyer bitcoin as an “advance fee,” https://verdict.justia.com/2017/11/06/bitcoin-legal-ethics-law- however, there are some problems. Rule 1.15 requires that a yers. Professor Rotunda correctly explains how bar opinions lawyer safe keep property that the client has entrusted to the have allowed that, subject to certain requirements, lawyers may lawyer. An “advanced fee” is property of the client until the accept from their clients’ stock and tangible property in lieu lawyer has earned it, per Legal Ethics Opinion 1606. If bitcoin of cash for payment of legal fees even if the stock or property plummets dramatically in value, and the client discharges the might fluctuate in value after the lawyer has accepted it. In lawyer before the work is completed, the lawyer will not have Rotunda’s view, bitcoin is like gold in the sense that it is worth kept safe sufficient funds or property to make a refund of the whatever people are willing to pay for it. unearned fee as required by Rule 1.16(d); or, if the lawyer The Nebraska opinion requires that lawyers “mitigate the accepts bitcoin in settlement of a client’s claim, and the bitcoin risk of volatility and possible unconscionable overpayment loses value, the lawyer is unable to pay the client or to dis- for services” by not retaining the digital currency and by charge third-party liens as required by Rule 1.15(b). The lawyer converting it “into U.S. dollars immediately upon receipt.” To may discharge these obligations with other funds or property, Rotunda, it is a business decision rather than an ethics decision but in doing so the lawyer would be making payments “out of if the client wants to shift the risk of volatility to the lawyer. If trust” and not in compliance with the rules. a client and lawyer agree to pay the lawyer with stock in lieu Another problem arises out of the fact that the bar’s reg- of currency and the original value is reasonable at the time ulation of trust accounts and recordkeeping has not kept pace the parties contracted, the fact that the stock goes up or down with technology and does not contemplate cryptocurrency. in value does not make the acceptance of the stock unethical. Lawyers are required to keep records of trust account transac- The bar opinions “look back” to the time that payment was tions that are auditable and verified through an approved fi- accepted to determine whether the payment was “reasonable,” nancial institution’s records and statements. No regulatory bar and the lawyer may suffer a loss or a windfall, as the case may is currently equipped to audit Bitcoin transactions and storage. be. These bar opinions do not require that the lawyer sell the stock immediately to convert it to cash. In some initial pub- The future lic offerings, there may be “blackout periods” in which the Unless some serious security measures are built into Bitcoin, lawyer is prohibited from selling the stock. That the bitcoin we wouldn’t recommend that you invest any serious wealth might drastically drop in value, resulting in the lawyer being with the virtual currency. Certainly, some virtual currencies are underpaid, is not an ethics issue either, according to Rotunda. better protected than others, but you still might want to think Lawyers are educated adults and can make the call to sell or long and hard about accepting Bitcoin or other cryptocurren- keep the bitcoin and accept that risk. cy as lawyers. The bulk of people we know regard bitcoins as Rotunda may have a point if the client pays the lawyer “shady money” and they may well regard lawyers accepting in bitcoin for past legal services. In that case, the lawyer has bitcoins as “shady lawyers.” Will Bitcoin be legitimized one day earned the fee and the bitcoin becomes the property of the in the eyes of average Joes and Janes? Maybe — but not soon.

Jim McCauley is the ethics Sharon D. Nelson is the president John W. Simek is vice president counsel for the Virginia State of Sensei Enterprises Inc., a legal of Sensei Enterprises Inc., a legal Bar where he has been employed technology, cybersecurity, and technology, cybersecurity, and for almost 29 years, and teaches digital forensics firm based in digital forensics firm based in Professional Responsibility at Fairfax. (703) 359-0700 www. Fairfax. (703) 359-0700 www. the T.C. Williams School of Law senseient.com. senseient.com. in Richmond, Virginia.

30 VIRGINIA LAWYER | June 2018 | Vol. 67 | GENERAL INTEREST FEATURES www.vsb.org Confidential help for substance abuse problems and mental health issues.

For more information, call our toll free number: (877) LHL-INVA or visit www.valhl.org.

Got an Ethics Question? The VSB Ethics Hotline is a confidential consultation service for members of the Virginia State Bar. Non-lawyers may submit only unauthorized practice of law questions. Questions can be submitted to the hotline by calling (804) 775-0564 or by clicking on the “E-mail Your Ethics Question” link on the Ethics Questions and Opinions web page at www.vsb.org/site/regulation/ethics/.

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www.vsb.org GENERAL INTEREST FEATURES | Vol. 67 | June 2018 | VIRGINIA LAWYER 31 80 YEARS OF THE VIRGINIA STATE BAR

80 Years of the Virginia State Bar

From colonial attorneys being paid in tobacco, to post-Revolutionary War lawyers helping shape a new nation, the legal profession in Virginia goes much farther back than 80 years. But since 1938, when the General Assembly approved the State Bar Act, the bar has meant more than simply one’s knowl- edge of laws.

The bar is a community of pro- 1 2 fessionals dedicated to the rule of law, principles of justice, and self-regulation. And, as officers of the court, Virginia lawyers have always recognized the need to hold ourselves to high standards, as befits our responsibility to clients and the public. For 80 years, the Virginia State Bar has represented that commit- 3 ment. Fifty-thousand, nine hundred and twenty-five. That’s the number of people that comprise the bar of this commonwealth as of June. As we reflect on how far we’ve come and who we are today, we also say: Here’s to the next 80 years! 5

6

4 1: 40th President, William T. Prince, mentor to 80th President Leonard C. Heath Jr. 2: Hon. Ruth Hawkins-Nesbitt, chair of the DC Public Service Commission; Hon. Spottswood G. Robinson III, judge of the US Court of Appeals in DC; Gerald B. Lee; Robert H. Cooley Jr.; and Hon. William B. Bryant, senior judge of the US District Court in DC, at the 49th Old Dominion Bar Association Conference in 1988. 3: At the 1987 Annual Meeting, Supreme Court Justice Lewis F. Powell Jr. presented special awards to Richmond attorneys Oliver W. Hill and Samuel W. Tucker on behalf of the Virginia Commission on Women and Minorities in the Legal System. 4: First annual report 5: 1979 Annual Meeting band, The O’Kaysions See more photos and bar history on 6: 50 year celebration logo page 36.

32 VIRGINIA LAWYER | June 2018 | Vol. 67 | VSB 80TH ANNIVERSARY www.vsb.org 80 YEARS OF THE VIRGINIA STATE BAR

VLRS: We Are Looking for the Next C. Butler Barrett by Deirdre Norman

If you are ever in Emporia (pop. 5,927), home to both the Virginia Pork Festival and the Virginia Peanut Festival, which attract almost 30,000 to the town each year, you will find yourself on Main Street and, in all likelihood, you will drive past the Greensville County Courthouse. Just across the street: the law offices of C. Butler Barrett. Barrett, now in his 50th year of bar membership, runs a general practice law firm encompassing the traffic, real estate, wills, uncontested divorces, and civil cases that many lawyers in smaller towns must handle in order to meet the changing needs of their community. Fourteen years ago, Barrett decid- ed to join the Virginia Lawyer Referral was when I decided I needed to do loss of some Service (VLRS) as a panel member, something other than farm.” Barrett of the civility becoming the 50th member of the married his high school sweetheart, and camara- service. He has gone on to become one Betty Anne (her family owned a dairy derie in the of the most successful lawyers to use the and her father delivered the milk in practice of VLRS, maintaining a 95 percent consult Emporia), and today, after teaching law, he clearly and retainer rate. Says Barrett, “You school and raising three children, she embodies can obviously make some fees, and the works together with Barrett in the law so much of VLRS staff are excellent to work with.” practice. what is gallant In many ways, Barrett’s story is Barrett’s office features shelves lined about the the story of many people who have left with the toy cars and tractors he has col- profession. their small communities to learn the law lected since childhood. It’s a warm room Outside and then returned to practice. Barrett that inspires a sense of ease and must on Main Street, 80,000-pound log- was raised on a “row-crop” farm where be soothing to the people who come to ging trucks roll slowly back and forth his father — who had only a 3rd grade see Barrett with their issues. He speaks between the freeway and the Georgia education (Barrett’s grandfather was fondly of his clients – the woman “no Pacific plant. Logan’s Diner is serving illiterate) — put a great importance older than my children” who is planning some of the best peanut butter pie in on education. Though his father toiled her estate after falling ill, the farmer who Virginia, if not the universe. And the law from dawn to dusk growing peanuts, has married yet again, the young man office of C. Butler Barrett continues to cotton and soybeans, as well as raising who has come to see Barrett about the handle the myriad cases that make up hogs and cattle, “He would never let me adoption papers Barrett handled for his the fabric of the general law practice, miss school to farm,” says Barrett. “Even adoptive parents when he was an infant. helping Virginians with issues from cra- when I said to him, ‘Pop, I know you He speaks with pride of the VLRS dle to death and everything in between. need the help.’” case he recently handled for a motorist Barrett went to the University of whose license was suspended. Though If you are interested in becoming a Virginia with a $500 scholarship — the courts closed in ten minutes, Barrett member of the VLRS, which has recently at a time when tuition was around was able to fax over a motion to rehear added an online portal that allows people $1,500 — and then to William & Mary and help the motorist to get his license to locate a Virginia lawyer 24/7, please Law School. “I saw my father struggle reinstated. Butler says he has no plans contact Toni Dunson at (804) 775-0591 through two major droughts, and that to retire, and though he laments the or email [email protected]. www.vsb.org VSB 80TH ANNIVERSARY | Vol. 67 | June 2018 | VIRGINIA LAWYER 33 80 YEARS OF THE VIRGINIA STATE BAR

What’s Your Favorite Bar? It’s Usually the Local One by Deirdre Norman

About 52,000 Virginia lawyers comprise the VSB, but it is often the smaller bars, ranging in size from just a few people to the couple thousand members of the Fairfax Bar Association, where lawyers make friends, network, share experienc- es, and get involved in their communi- ties. Local bars are the grassroots, front- line organization of the legal profession. The Conference of Local and Specialty Bar Associations (CLSBA) serves as the umbrella organization that helps to connect these myriad and far-flung bars to the Virginia State Bar. The current chair of the CLSBA, Bernard Alan McGraw of Altizer Walk & White PLLC in Tazewell, comes from the Tazewell County Bar Association, in the far western corner of the common- wealth along the West Virginia border. are more than willing to help another Virginia, Inc., the Old Dominion Bar Says McGraw, “We provide a face for lawyer find a job or work on a profes- Association, and the Virginia Women the Virginia State Bar to the rest of the sional problem.” Attorneys Association. Across the com- commonwealth.” Not surprisingly, those that get monwealth, these bars devote countless Paulette Davidson of the VSB has involved with their local bars often hours to pro bono, outreach, profession- worked with the CLSBA for 21 years and contribute to the VSB as well. The al development, and other programs says lawyers join local bars for varied CLSBA chair position has served as that enhance the legal profession while reasons but common threads include an incubator of sorts for future VSB helping their communities. networking, mentoring and making presidents, including Manuel A. Capsalis connections with your legal peers. of Arlington, Jon D. Huddleston of Examples of projects done by local and “Some just get together for a holiday Leesburg, George Warren Shanks of specialty bars: party once a year,” she says, “while oth- Luray, and Edward L. Weiner of Fairfax • Access to Justice Summit ers meet regularly and are very active in among those who have served as heads • Color of Justice Program their communities.” Davidson men- of both the CLSBA and the VSB. • Community Service Brochures tions the South Hampton Roads Bar The CLSBA has also printed the So • Community Service Programming Association as an example of a bar that You’re 18 handbooks for over 20 years. • Jazz4Justice encompasses “young trailblazers, civil These free handbooks are provided to • Mentorship Program with Young rights leaders, the judiciary, and private local bars, schools, courts, DSS offices, Attorneys and public practice attorneys” amongst and more to help young adults under- • Mentorship Program with Local its ranks. stand their rights and responsibilities. School Davidson says that lawyers in local This year, the CLSBA created an inter- • R.I.S.E. – Reading in School with bars look out for each other and offer active website that they hope will be Esquires each other support as well. “I once had another valuable asset to the program. • Santa in the Square a young lawyer call me in tears. He felt The CLSBA currently counts 124 • Toys for Tots like he had wasted his time and money bars in its membership, including going to law school and was so frus- numerous local and specialty bars, plus For more information on any of trated. I was able to connect him to the the Hispanic Bar Association of the these projects, please contact Paulette Chesterfield County Bar Association, his Commonwealth of Virginia, the Asian Davidson at [email protected]. local bar, where there are people who Pacific American Bar Association of

34 VIRGINIA LAWYER | June 2018 | Vol. 67 | VSB 80TH ANNIVERSARY www.vsb.org 80 YEARS OF THE VIRGINIA STATE BAR

Let’s Talk About the Elephant in the Room by Deirdre Norman

Some clients simply can’t or won’t pay, So, if you believe your fee dispute and the options for lawyers are terrible. may already be escalating to a bar com- File a lawsuit, and almost certainly the plaint, perhaps suggesting a meeting in client will file a malpractice counter- a neutral location with your client will claim in return, flagging the lawyer for lessen your stress, save the relationship, increased malpractice rates. and get you some or all of your fees — Hire a collection agency and lose all for $20. the relationship — and any potential David Rust Clarke referrals and future business from that of Blankingship & relationship — forever. Keith in Fairfax, who they practice and their client communi- Write off the fees and be out of has arbitrated cases for cations that may be subjecting them- pocket for not only hard costs, but for the FDR program says, selves to potential liability. These can be your time and overhead as well. “From the perspective discovered in a confidential setting and There is another option, one that of the arbitrator (and can be changed going forward, to place clients regularly avail themselves of, but I venture from the litigants as well), the lawyers in a better position.” that can also be beneficial to Virginia I say without reservation that the fee As for fees and future business, lawyers: The Fee Dispute Resolution dispute program works. Among other King says, “Mediation does not mean (FDR) Program, a long-standing VSB benefits, it provides the unhappy client that a lawyer has to compromise on service that mediates or arbitrates a fee with a generally informal forum to voice fees. Some resolutions are achieved by dispute between a lawyer and his or her his complaints and dissatisfaction, and modifying the payment plan, misunder- client for only $20. provides counsel with an expedient, eco- standing on the client’s part of the basis And that’s where we come to the nomical means to resolve the dispute.” of the charges, the manner in which the elephant. Many lawyers have concerns Danny Burk, of client was treated in connection with that using the Virginia State Bar, their Resolution Point LLC the billing, ambiguous documentation mandatory agency tasked with lawyer in Great Falls concurs, or lack of sufficient documentation, or discipline, for a dispute with a client is adding, “The entire conflicting communications (actual or a risk not worth taking. What if the bar program is a solid client perceived) between the lawyer and asks for my trust account files? What if example of the bar client. When the client and the lawyer a simple fee dispute becomes a disci- helping maintain its clear up communications, often the plinary proceeding? What if I put myself relationship with clients. Lawyers who client feels better about the relationship on the bar’s radar and the outcome of participate give their clients a chance to and is not likely to communicate nega- the fee dispute resolution is not only no present their views in a safe and com- tive feelings about the firm or lawyer to money, but discipline as well? fortable environment. I can say that, at others.” For over 25 years, the VSB has been least to date, each case that I’ve mediat- Now, about that elephant. The VSB helping lawyers cheaply and expedi- ed ended with a resolution and closure.” wants to help lawyers bridge disagree- tiously resolve hundreds of fee disputes Since 2006, ments with their clients when it comes using a committee of volunteer lawyers Donita King, of Donita to fees, and numerous volunteer lawyers from most circuits in the common- King Law Offices are willing to donate their time and wealth. According to James C. Bodie, in Richmond, has office space to help make that happen. VSB Intake Counsel, “Generally, the bar resolved cases with the If you find yourself in a stalemate with does not handle fee disputes through FDR program and also a client over fees, consider spending $20 the disciplinary process unless the bar currently serves as a to air out the issue, get closure on the is presented with evidence of ethical board member of the VSB Disciplinary relationship, and perhaps end up with misconduct. We refer callers to the Fee Board. Says King, “Another benefit is Dispute Resolution program.” what the lawyers learn about the way FDR continued on page 39 www.vsb.org VSB 80TH ANNIVERSARY | Vol. 67 | June 2018 | VIRGINIA LAWYER 35 80 YEARS OF THE VIRGINIA STATE BAR

A look back: milestones that changed the practice of law in Virginia during the VSB’s first eighty years

January 1953. Six pages long, Vol. 1, No. 1 1976. The Clients’ Protection Fund is started of the “Virginia Bar News” is published. VSB to reimburse persons who suffer a finan- President B. Drummond Ayres writes, “Of cial loss because of dishonest conduct by a making many books there is no end; and Virginia lawyer — and, in doing so, fulfill an much study is a weariness of the flesh. … obligation to self-regulation and help uphold Let us hope, however, that you will not look the dignity of the legal profession. upon the Virginia Bar News as just anoth- er legal bulletin. This one is peculiarly for 1977. The Virginia Lawyer Referral Service is Virginia lawyers.” founded to help connect Virginia lawyers to clients across the state.

September 1983. The Supreme Court ap- proves a bar petition to institute a mandato- ry continuing legal education course on the revised Code of Professional Responsibility. In 1988, Virginia became the first state to introduce a professionalism course as a requirement for licensure.4

April 1, 1938. The General Assembly approves the State Bar Act authorizing organization of the Virginia State Bar as an administrative agency of the Supreme Court of Virginia. The legislation acknowledged the September 11, 1963. The Supreme Court court as the main public agency responsible of Virginia affirms the state bar’s right to for defining the practice of law, prescribed use mandatory bar dues for legal educa- a code of ethics governing the professional tion, publications, and enjoining lawsuits conduct of lawyers, and established a proce- against the unauthorized practice of law dure for disciplining and suspending lawyers. in Button V. Day, 204 Va. 546. The decision In August 1939, 200 members attended the followed a closely watched ruling by the U.S. first annual bar meeting of at the roof garden Supreme Court upholding bar integration in of the John Marshall Hotel in Richmond.1 Wisconsin in Lathrop v. Donohue, 367 U.S. 820 (1961).3 August 6, 1947. The VSB and voluntary Virginia Bar Association form a permanent committee of cooperation to discourage recurring efforts to merge the two orga- nizations. Virginia, West Virginia, North Carolina are the only states, along with the District of Columbia, that retain mandatory and voluntary state bar organizations.2

A few months after Button v. Day affirms the state bar’s right to use bar dues for legal education and publications, Virginia Governor Albertis Harrison marks Virginia Legal Secretaries Day many years before Casual Friday took hold.

36 VIRGINIA LAWYER | June 2018 | Vol. 67 | VSB 80TH ANNIVERSARY www.vsb.org 80 YEARS OF THE VIRGINIA STATE BAR

approximately 2 percent of their profession- al time to providing legal services without charge. In 2016 the Council rejected by a narrow margin a proposal for mandatory reporting of pro bono hours. The Supreme Court of Virginia hosted its first bienni- al pro bono summit in 2010. At the fifth biennial summit held in April 2018 the state bar announced four new projects aimed at improving access to justice.6 By 1987, the Virginia Commission on Women and Minorities in the Legal System was working to integrate the overwhelmingly white male legal system. WHRO June 1994. Kathleen O’Brien of McLean public television videotaped a panel that included Judge becomes the first woman to become VSB Barbara M. Keenan of the Virginia Court of Appeals, president, serving for the 1994–1995 year. Elaine R. Jones of the NAACP (and the first black person admitted to the University of Virginia), civil rights lawyers Oliver W. Hill and Samuel W. Tucker (whose grandfather February 2001. The VSB Council approves was enslaved), and moderator William D. Dolan III. phasing out the private reprimand to im- prove accountability in the lawyer discipline process. By the late 1990s Virginia was one Below: VSB president-elect Marni E. Byrum, left, with Veryl V. Miles (2nd from left), and Sylvia L. Clute (far of only a handful of states still using the right) with an unidentified guest at the 1987 Annual private reprimand to resolve a majority of Virginia attorneys accepting court appointed Meeting. cases heard by the discipline committee. As a criminal cases have attended since then. In consequence, the public did not have access 2017, the seminar was named after Leroy to the names of most attorneys accused Rountree Hassell Sr., the late Virginia chief and reprimanded for ethics violations. VSB justice who was a main proponent of the President Joseph Condo made improving CLE. transparency in the process a priority during 7 his term, from 2000 to 2001. June 2017. Doris Henderson Causey of 2005. The Indigent Criminal Defense Richmond becomes the Seminar is held for the first time. Over 9,000 September 1986. The VSB joins with first African American local and special bar associations to form to become VSB the Virginia Commission on Women and President, serving for Minorities in the Legal System to fight prej- the 2017–2018 year. udice and discrimination in the profession. African Americans and women were admit- ted to the bar as soon as state law prohibiting them from practicing law in Virginia were repealed (in 1865 and 1923, respectively), A Look Back continued on page 39 but as late as 1960, 96 percent of attorneys in Virginia were white men. The Virginia Commission on Women and Minorities in the Legal System grew out of the work a spe- cial committee appointed in 1984 to investi- gate perceptions of discrimination. In 1988, the Bar Council pledged its commitment to developing policies to enhance participation of women and minorities at all levels of state bar activities.5

1988. The bar celebrates its 50th anniversary.

June 1990. The VSB Council adopts a Definition and Standard for Pro Bono Legal Services and creates a staff position for a pro bono services coordinator. Virginia’s pro bono standard encourages lawyers to donate Some things never change: beach volleyball, name tags, and refreshments at the 50th Annual Meeting in 1988. www.vsb.org VSB 80TH ANNIVERSARY | Vol. 67 | June 2018 | VIRGINIA LAWYER 37 80 YEARS OF THE VIRGINIA STATE BAR Virginia Leads Nation in FreeLegalAnswers.org Responses

Virginia lawyers of all different types continue to find time to anonymously answer the legal questions of low-income Virginians. This chart shows some pro bono superstars who have answered hundreds of questions – sometimes helping themselves learn a new area of the law while also helping those who cannot afford a lawyer.

I enjoy helping others, but I also learn about areas of the law with I think that a big factor in the disparity of outcome in court for which I am unfamiliar and refresh and sharpen my knowledge in parties not represented is that they needed advice before the areas in which I have a background. I am a good researcher and matter went to court. For tenants, don’t withhold rent! Give can find guidance to give sufficient advice for the client. I can your notices and pursue a tenants assertion. I hope that I have access the user-friendly website in my down-time, help someone, contributed a little to help those parties. Wynn A. Harding, and often learn something new. Elaine H Cassel, Fairfax County, Harrisonburg City, Convy & Harding, PLC Law Office of Elaine H. Cassel I volunteer because I know how important it is for people to have an understanding of I went to law school to help people their legal rights regarding their employment. through the legal process. I’m Much of a person’s personality and sense inherently logical, so I use that to of self comes from what he or she does for assist people navigate through the a living. When their job is threatened or maze that is the judicial system. becomes stressful it affects not only them Tammy L. Sossei, Henrico County, individually, but their family as well. I have Sossei Law, PC found the experience of answering inquiries to be very rewarding, and the people I have SMALL worked with have been very grateful. William C. Tucker, Charlottesville,Tucker Law Firm, PLC Virginia Free Legal Answers PRACTICE makes it very easy and convenient to be able to meet I think about how important people in their place of need SOLO legal advice can be in making and point them in the right the right decision and critical in direction to properly deal PRACTICE MEDIUM helping someone make the best with their questions. The ease PRACTICE of a bad situation. The cost of and simplicity of the site only such advice is prohibitive to a adds to the satisfaction I get large segment of the population. from knowing that I am truly LARGE VA Free Legal Answers provides helping people in their time an efficient way to provide legal of need. Jonathan M. Wallis, PRACTICE assistance to those persons who Campbell County, The Law would otherwise probably have Office of Jonathan M. Wallis no financial ability to obtain such advice. Donald C. Beck, IN-HOUSE McCandlish Holton Morris, I choose to volunteer for Richmond Virginia’s free legal answers PRACTICE because I see on a daily basis in my practice the need for better Having grown up in Northern access to good legal advice by Virginia, I’m excited to have the folks who can’t afford to hire an OTHER opportunity to help individuals attorney. The accessible nature GOVERNMENT in my community with the legal of this program both for the issues they confront, which public and the attorneys is very also add depth to my practice appealing and I have enjoyed that predominantly focuses on helping Virginians more easily corporate clients. Lisa M. Kaas, access legal advice. Charles Fairfax County, Blank Rome LLP R. Samuels, Richmond City, Charles R. Samuels, Attorney at Law, PLLC I volunteer to contribute to the pro bono efforts of the members of the bar in Virginia. As a government attorney other opportunities for pro bono service are In response to the overwhelming limited and this program provides an need and legal aid’s limited opportunity to fulfill my desire to provide resources, Free Legal Answers pro bono service. Richard L. Chidester, allows me to help more people with County of Giles (County Attorney) only a slight additional effort. In 20 minutes or less, the web site allows me, and other Virginia attorneys I volunteer on Free Legal Answers because I see the who volunteer, to provide direct and I have always thought it As a government attorney access to justice crisis in the citizens with whom I speak timely assistance to individuals facing was important to give who lives and works in every single day, and I know that every little question that legal problems who may have no back, whether as a school a jurisdiction other than gets answered is a huge help, both for the substantive other place to which they can turn. volunteer or as an attorney. where I am licensed, I have issue they have, and for boosting their confidence in our In a small but meaningful way, I can I find that it is easy to found Virginia Free Legal great justice system as a whole. Also, I saw that cool Pro contribute more to access to justice. answer questions on virginia. Answers to be the ideal way Bono Hero pin and I want one. Meredith H. Jacobi, City Martin D. Wegbreit, Richmond City, freelegalanswers.org using to fulfill what I consider my of Chesapeake Office of the City Attorney Central Virginia Legal Aid Society just my smartphone, VSB Fastcase, and Google. Susan obligation to do pro bono Ruppel, Fauquier County work. Elizabeth E. Urrutia, Contract Attorney Arlington County, AFLOA/ JAQK

Virginia Free Legal Answers is one way to help low-income Virginians receive access to justice by providing users with convenient, 24 hours a day, 365 days per year access to lawyers who can answer their legal questions. If you have questions about Virginia.freelegalanswers.org want to help, please contact Crista Gantz at 804-775-0522 or [email protected]. 80 YEARS OF THE VIRGINIA STATE BAR

a payment plan that will leave open the possibility of future business or referrals from an existing client. The Fee Dispute Top Ten Best Things about Fee Dispute Resolution Resolution Program provides lawyers with a cheap, quick way to have experi- 1. It’s cheap — $20. enced mediators and arbitrators – your 2. It’s quick — mediation is scheduled within 30 days of the mediator’s appoint- peers — bring you to the table with ment, and arbitration is scheduled within 45 days of the arbitrator’s appoint- non-paying clients, and potentially leave ment. the door open for future business. 3. It’s informal. For more information about the Fee Dispute Resolution program, please 4. It’s conducted by Supreme Court certified mediators and VSB trained arbitrators. contact Stephanie Blanton, at (804) 775- 5. It’s confidential — mediation is confidential, unless both parties agree otherwise 0576 or [email protected]. in writing. 6. It’s good for you. 7. It’s good for the profession. 8. It’s good for the client. 9. It’s fair and balanced. 10. It’s one of the VSB’s best kept secrets. Let’s change this!

A Look Back continued from page 37

Endnotes: Profession,” April 17, 2018, http://thepbeye Reporting of Pro Bono,” Virginia Lawyers 1 An act providing for the adoption and .probonoinst.org/2018/04/17/virginia Weekly, June 14, 2017; and Vieth, enforcement by the Supreme Court of -is-making-pro-bono-cool/, accessed April “Mandatory reporting of pro bono is Appeals of Virginia of rules and regulations 23, 2018. rejected,” Virginia Lawyers Weekly, October 6, defining the practice of law, . . .(passed Apr. 5 Lisa C. Germano, “The Virginia Commission 2017. 1, 1938); James S. Walmsley, “The First Fifty on Women and Minorities in the Legal 7 Dawn Chase, “VSB to Mull Opening Years: A History of the Virginia State Bar,” System: An Historical Perspective,” of Lawyer Discipline,” Virginia Lawyers Virginia Lawyer, 37, no. 4 (October 1988): Virginia Lawyer, 41, no. 9 (March 1993), Weekly, July 24, 2000; Chase, “High Court 11-14; Waller Horsley, “Law Reform and 35-36; “Insurance Administrator Chosen, Okays More Open Process for Discipline,” the Bar Today,” Virginia Bar News, 31 no. 6 Minorities Commission Gets VSB Support,” Virginia Lawyers Weekly, October 15, 2001; (December 1981): 15. Virginia Bar News, 35, no. 1 (July 1986), p. 1; and “Condo Gains award from Open 2 “Report of the Special Committee for “Council Adopts Policy Statement Regarding Government Group,” Virginia Lawyers Cooperation with the Virginia State Bar Women and Minorities,” Virginia Lawyer Weekly, December 10, 2001. Association,” Report of the Proceedings of the Register, 37, no. 1 (July 1988): 5; “O’Brien Fifty-Eighth Annual Meeting of the Virginia Unopposed,” Virginia Lawyers Weekly March Research assistance by Catherine G. OBrion. State Bar Association, 59 (1948): 128; Jill M. 22, 1993; “Council Adopts Policy Statement Kastner, “Mandatory vs. Voluntary: Which Regarding Women and Minorities,” Virginia State Bar is Better?” The Affiliate, published Lawyer Register, 37, no. 1 (July 1988): 5; on the American Bar Association website, ac- Peter Wallenstein, “’These New and Strange cessed April 18, 2018, https://www.american- Beings’: Women in the Legal Profession in bar.org/publications/affiliate_home/affiliate_ Virginia, 1890-1990,” The Virginia Magazine index/yld_affiliate_septoct08_kastner.html; of History and Biography, 101, no. 2 (April Annual report of the Executive Committee, 1993): 212. Report of the Virginia Bar Association (1971), 6 Chief Justice Harry Carrico,” A Letter to 82: 231. Virginia Lawyers,” and “The Pro Bono 3 Kastner, “Mandatory v. Voluntary: Which Initiative in Virginia,” Virginia Bar News, State Bar is Better?” 39, no. 11 (May 1991): 11-13; Russell Pearce, 4 Roderick B. Mathews, “Looking Back” and “Lawyer and Public Service: The Historical J. Jay Corson, IV, “Looking Ahead,” Virginia Perspectives on Pro Bono Lawyering,” 9 Lawyer, 36, no. 12 (June 1988): 20, 22; ; American University Journal of Gender, Catherine G. OBrion is Librarian-Archivist “Virginia is Making Pro Bono Cool,” pub- Social Policy, & Law, 171 (2001); Virginia at the Virginia State Law Library, where she lished in the Blog “The PBEye: Pro Bono as Bar News, June 1991; Baker McClanahan, collects and shares oral histories of appellate We See It,” the official blog of the nonprofit “Gartlan Backs Off Mandatory Pro Bono,” court judges and historical information about Pro Bono Institute, New and Intriguing Virginia Lawyers Weekly, September 8, Virginia’s appellate courts, highlighted on the Websites and Products for the Legal 1997; Peter Vieth, “Panel Pushes Mandatory court history website, https://scvahistory.org/.

www.vsb.org VSB 80TH ANNIVERSARY | Vol. 67 | June 2018 | VIRGINIA LAWYER 39

Access to Legal Services From the CIA to Pro Bono Phenom, Brian Fannin Gives Back by Jackie Kruszewski

At his tiny Fredericksburg office in here we are struggling to perfect it as we an historic, creaky building, Brian W. move along.” Fannin can almost touch both walls To Fannin, lawyers seemed to be when he stretches out his arms. He jokes able to make an outsized difference in that he likes to remind his law school that societal negotiation, which fueled classmates of this fact when they express his interest in becoming one. At Cornell any envy at his eponymous law firm, Law School, he found purpose volun- Fannin Law PLLC. teering at the legal aid clinics. But it “There was a writer named Grace wasn’t a direct path from there to now. Paley,” Fannin says. “She said the secret The events of September 11, 2001, came to being a successful fiction writer is right as he was starting his third year at keep your overhead low and never live Cornell. Fannin tried to join the military with anyone who doesn’t believe in you.” but was thwarted by color blindness. So Fannin, 45, applied that logic when he applied to the CIA. he did a stint writing for newspapers The influx of applications meant Fannin’s tendency to get bored quickly, before law school, and now he applies the security clearance investigation but it’s also symbiotic with his pro bono it to the solo practitioner lifestyle. And would take about a year, so Fannin com- work. Taking pro bono cases in new it’s a maxim that’s allowed the New pleted his last year of law school while areas of law can lead to regular busi- Jersey-raised roofer’s son to dedicate up he waited to join the CIA — as one does. ness in that area, and regular practice to 20 hours a week to pro bono through His career in intelligence and national in another area makes pro bono there Fredericksburg’s Legal Aid Works. security, as both a government employee smoother and faster. Fannin recom- Executive Director Ann Kloeckner calls and as a defense contractor, included mends pro bono for lawyers, especially him a “pro bono phenom.” service in the Middle East and Southeast younger ones, who want to go into solo It’s Fannin’s version of success, Asia. work. and one he says he feels lucky to have “I’m hesitant to say that I used to “They just really inform each other achieved. His interest in pro bono work be a CIA officer, because every time I all the time,” he says. is rooted in a sense of justice and fair- mention it, that’s a little more interest- Fannin takes a special interest in ness for low-income citizens, especially ing,” Fannin laughs. But he says his work clients struggling with mental health when it comes to civil cases, where overseas and in war zones had similar issues — a particularly vulnerable set of lawyers aren’t court appointed. themes to his interest in law — using clients who are often disproportionately “That creates unjust outcomes in diplomacy and the rule of law to solve underrepresented. He bristles at the many cases, and that’s just not accept- conflict. memory of an opposing lawyer calling able to me,” Fannin says. “If it were up Eventually, he says, it was time to a woman suffering from depression “a to me, a lot more pro bono would be settle down. He’s happy to report that he crazy plaintiff” in court. Another driver required of all of us. But I’m happy to got to do a stint as a stay-at-home dad had hit her car, and she appeared pro se do it as much as I can.” for his three kids, now ages 10, 7, and 5, in court, before Fannin got involved. Fannin, who lives in Spotsylvania between CIA officer and officer of the Fannin’s mother struggled with County, is philosophical, too, about his court. He then took the Virginia bar in mental illness, and he now volunteers initial interest in law. It goes to the heart 2014. “Even though the hours of law can for and supports Mental Health America of a person’s responsibility as a citizen, be pretty crazy, the law actually provid- Fredericksburg, a nonprofit providing he says, and helping individuals negoti- ed more stability to me than intel did.” local suicide prevention education, a ate their place in the community. Fannin’s legal focus is very gener- senior visitors program, support groups, “If you believe in any of that social alized — he likens himself to an old- and a helpline. contract theory,” he says. “There’s school, small town lawyer who takes He’s also barred in DC and New this contract we’ve created to elevate most of what comes through the door. Jersey, which came in handy for a recent ourselves above the caveman status, and It’s a style of counsel that complements pro bono case, where a Virginia man

42 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org Access to Legal Services was being sued for divorce in a DC be done, and it makes a big difference in no time to spare on volunteering for us,” court. The man was illiterate, and the people’s lives.” Kloeckner says. “But he consistently and woman had been taking advantage of The small stuff adds up. Legal Aid cheerfully takes pro bono cases for us him, Fannin says. Fannin was able to get Works, like other similar organizations, and is eloquent about his motivation for a default judgment vacated, get the man has what Kloeckner calls an “unbeliev- doing that.” his divorce, and protect the man’s assets. ably thin staff” of nine lawyers doing Kloeckner says Legal Aid Works “Sometimes with legal aid or pro their best to cover 16 counties and the takes all comers, and will even train bono or low bono stuff, you really just city of Fredericksburg. lawyers in litigation, if need be. She says get a sense that you’re doing something “We are turning away easily two out a huge area of need is uncontested di- good in an area where a lot of peo- of every three people, simply because vorces — often low-income couples who ple are doing something pretty bad,” how can those lawyers be in 51 courts?” are long separated but unable to pay for Fannin says. “I know moral judgments she says. “That’s enormous and not to be the divorce. These are simple legal acts are out in a lot of cases, but I can’t help discounted at all. They are eligible [for needing a fairly finite amount of time; but feeling that way. It’s part of what legal aid] and desperately in need.” Kloeckner says a lawyer can take on as motivates me.” Lawyers like Fannin provide valu- many or as few as he or she wants. Legal Fannin recognizes that spending 20 able bandwidth and can help Legal Aid Aid Works also hosts a number of estate hours a week on more complicated cases Works assist exponentially more people. planning days — “will-a-thons” where like that divorce isn’t doable for every- Plus, outside lawyers bring expertise, lawyers are matched with low-income one. But if he finds himself without any perspective and energy to the table. people needing help. pro bono on his docket, he’ll call up Fannin’s broad practice experience and “We just want to make things as Legal Aid Works to offer his services. willingness to learn, Kloeckner says, al- easy as possible and meet them where “Even if it’s just an hour doing low her to give him more complex cases. they are,” Kloeckner says of lawyers some uncontested divorces, that’s fine,” “As a solo practitioner with young willing to help. Fannin says. “They’re things that need to children, he has every reason to claim

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www.vsb.org Vol. 67 | June 2018 | VIRGINIA LAWYER 43 Noteworthy > VSB NEWS Highlights of the June 14, 2018, Virginia State Bar Council Meeting

At its meeting on June 14, 2018, in otherwise participate with the attorney will be presented to the Supreme Court Virginia Beach, the Virginia State Bar in the course of the representation. The of Virginia for approval. Council heard the following significant proposed LEO will be presented to the reports and took the following actions, Supreme Court of Virginia for approval. Paragraphs 13-1 and 13-30 all of which are subject to approval by The council unanimously approved the Supreme Court of Virginia: Paragraphs 13-1 and 13-9 amendments to Part 6, Section IV, The council unanimously approved Paragraph 13-1 and Paragraph 13-30. Rule 1.1, Competence amendments to Part 6, Section IV, The amendment to Paragraph 13-1 By a vote of 52-8, the council approved Paragraph 13-1 and Paragraph 13- defines a Lawyer Assistance Program. a proposed new comment 7 to Rule 1.1, 9. These amendments allow the The amendment to Paragraph 13-30 which calls attention to the fact that Disciplinary Board to assess fees and addresses the provision of confidential maintaining well-being is an aspect of costs of a Guardian Ad Litem to be information by Bar Counsel to a Lawyer maintaining competence to represent paid by the Respondent when the Assistance Program. These amendments clients. The comment arises from the Guardian Ad Litem was appointed are responsive to the report of the August 2017 report of the National Task by the Disciplinary Board. The pro- National Task Force on Lawyer Well- Force on Lawyer Well-Being, which posed changes will be presented to the Being, which recommends that when compiled extensive data on the extent of Supreme Court of Virginia for approval. information of mental health or sub- substance abuse, mental health issues, stance abuse issues is discovered during and other wellness issues in the legal Paragraphs 3 and 13-23 investigation or prosecution of lawyer profession. The proposed changes will The council unanimously approved regulation matters, confidentiality rules be presented to the Supreme Court of amendments to Part 6, Section IV, will allow sharing of such information Virginia for approval. Paragraph 3 and Paragraph 13-23. with lawyer assistance programs. The The amendments are motivated by the proposed changes will be presented Legal Ethics Opinion 1889 report of the National Task Force on to the Supreme Court of Virginia for The council unanimously approved Lawyer Well-Being and will facilitate approval. LEO 1889 – Scope of representation retirement for a lawyer suffering from – Duty of court-appointed lawyer to a permanent impairment, such as an Budget appeal termination of parental rights irreversible cognitive decline, by allow- The council approved a $14.1 mil- order. The proposed opinion addresses ing retirement with dignity instead of lion budget for FY 2018–19. This is a whether a court-appointed lawyer has having the lawyer’s license suspended decrease of $800,000 from the 2017–18 a duty to appeal or continue represent- on impairment grounds. With these operating budget, primarily due to a ing a parent when that parent’s paren- amendments, the impaired lawyer could reduction in the Clients’ Protection tal rights have been terminated by a transfer to the Disabled and Retired Fund (CPF) transfer, the decreased CPF Juvenile and Domestic Relations District class of membership as described in assessment, and a decrease of two staff Court if the attorney has lost contact proposed Paragraph 13-23.K. The pro- positions. A 2 percent bonus for staff with the parent, the parent has not di- posed language in Paragraph 3(d) con- has been included in this budget. rected the attorney to appeal the matter, forms to the requirements of amended and the parent fails to appear in court or Paragraph 13-23. The proposed changes

Check Your MCLE Hours Online Now The Mandatory Continuing Legal Education compliance deadline is October 31, 2018. Go to https://member.vsb.org/vsbportal/ to review your MCLE record. Please apply for any non-approved courses now to avoid a new late application fee for applications received over 90 days after course atten- dance. Reminder: Of the 12.0 CLE hours required each year, 2.0 must be in ethics and 4.0 must be from live, interactive programs. If you have any ques- tions, please contact the MCLE Department at (804) 775-0577 or [email protected].

44 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org VSB NEWS < Noteworthy Marni E. Byrum is President-elect of the Virginia State Bar

Marni E. Byrum of Alexandria is the a fellow of the Virginia Law Foundation, Virginia State Bar’s new president-elect. and was recognized by Virginia Lawyers She was sworn in at the Annual Meeting Weekly as a 2014 Leader in the Law. on June 16 and will succeed President She is also a Past President of the Leonard C. Heath Jr. for the 2019-20 Virginia Women Attorneys Association, term. Byrum’s law practices focuses on the Northern Virginia Legal Services labor, employment and personnel law. Board, and the Arlington County Bar She is a frequent lecturer regarding Association. ethics issues, labor and employment law, A 1976 graduate of Virginia Tech, and alternative dispute resolution. she has served on its Alumni Board, Byrum has served in numerous the President’s Advisory Board and the positions in the bar dating back to 1984. Dean’s Round Table for the College of Currently, she serves on Bar Council Arts and Sciences, and currently serves and the Executive Committee, chairs on the Dean’s Round Table for the the Standing Committee on Budget College of Science. She earned her JD and Finance, and is a member of the from Pepperdine University in 1979. Special Committee on the Future of In addition to her work within Law Practice. She is a past chair of the the legal community, Byrum has been Standing Committee on Legal Ethics, recognized for her public and volunteer the Judicial Selection Committee, and work, receiving the University Alumni the Multi-Jurisdictional Practice Task Distinguished Service Award from Byrum is married to family law attorney Force. Virginia Tech, the Women of Distinction Martha JP McQuade. They have been Byrum is AV rated by Martindale- Award from Soroptimist International together for 32 years and, in 2006, com- Hubbell and is listed in the Bar Register and the Person of Vision Award from bined their practices with the establish- of Preeminent Attorneys. She is a the Arlington Commission on the Status ment of McQuade Byrum PLLC. member of the Boyd Graves Conference, of Women.

What’s Different on Your Dues Statement this Year?

1. Clients’ Protection Fund (CPF) neys. For more information, please visit assessment: Financed entirely by the the Public Resources section of vsb.org. legal profession, the CPF is a fund of last resort for clients who have suffered fi- 2. Requirements for Emeritus mem- nancial losses by lawyers whose licenses bership: Per Supreme Court of Virginia have been suspended or revoked due to approval in December, retiring members dishonest conduct. Va. Code § 54.1- of the bar have the option to go dues- 3913.1 authorizes the Supreme Court free and receive free CLEs, if they agree of Virginia to assess up to $25 annually to practice only pro bono in affiliation per active VSB member to fund the with a qualified legal services provider. CPF. Effective July 1, 2018, the Supreme Court of Virginia reduced the CPF as- The changes to the rules are intended to sessment from $25 to $10. Also effective ease the transition to emeritus mem- July 1, 2018, the statutory assessment bership for the purpose of encouraging was extended from July 1, 2020 to July 1, more pro bono legal services. Learn 2023. At its most recent meeting on May more in the Member Resources section 4, the CPF Board awarded $19,440.00 to of vsb.org. six former clients of four Virginia attor- www.vsb.org Vol. 67 | June 2018 | VIRGINIA LAWYER 45 Noteworthy > VSB NEWS In Memoriam

The Honorable John M. Apostolou Philip Joseph Hare Michael Edward Rich Salem Rockville, Maryland Alexandria August 1930 – August 2017 November 1933 – April 2018 December 1939 – July 2017

Tinya Linnette Banks John C. Hamilton Jr. John M. Ryan Norfolk Arlington Norfolk December 1963 – February 2018 February 1932 – February 2018 May 1936 – October 2017

Thomas W. Barham Erin Gilmore Hoffman David Wayne Seitz Fairfax Reston Glen Allen December 1931 – May 2018 July 1979 – November 2017 April 1944 – April 2018

Fred Bartenstein Jr. James Plummer Lukes Eugene J. Skora Mendham, New Jersey Fairfax Springfield October 1917 – January 2017 March 1973 – February 2018 August 1923 – March 2018

William Allan Blake Fenton L. Martin James E. Spinks Laytonsville, Maryland Chestertown, Maryland Mechanicsville May 1955 – March 2018 October 1928 – November 2017 April 1933 – January 2017

Henry W. Brockenbrough George Minor Jr. Garrett Michael Swain Richmond Portsmouth Locust Grove August 1923 – March 2018 May 1929 – February 2017 August 1921 – July 2017

Carl Richard Boehlert Michael A. Murphy R. Peatross Turner Bluffton, South Carolina Burke Ashland July 1925 – October 2017 May 1943 – February 2018 February 1937 – April 2018

Frederic Norbert Firestone Robert Donald Murphy Jr. Thomas W. Ullrich Virginia Beach Richmond Fairfax August 1929 – January 2018 October 1955 – December 2017 May 1945 – January 2018

Stuart H. Gary B.F. Meyers Mark Joseph Yeager Vienna Issaquah, Washington Fairfax November 1946 – September 2017 August 1925 – August 2017 August 1947 – March 2018

Frederick Sasscer Gore Gary Martin Nuckols Williamsburg Fredericksburg September 1920 – January 2018 November 1949 – April 2018

Christian Jarrell Griffin John M. Payne Winchester Norfolk June 1959 – March 2018 May 1927 – February 2018

The Honorable Samuel M. Hairston Cyrus E. Phillips IV Chatham Williamsburg October 1926 – April 2018 October 1944 – November 2017

46 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org VSB NEWS < Noteworthy After 29 Years of ‘Growing Where she was Planted,’ Gale Cartwright Uproots from the Bar

At her desk, stacked with papers, dec- orated with photos, and spotted with mementos of her time at the Virginia State Bar, Gale Cartwright reminisces about her years of wrangling lawyers into compliance. “Earlier, working in MCLE, when the numbers were smaller, I was kind of like mother hen over the people who were not in compliance,” she says, in her quiet way of speaking. “And generally speaking, no one got suspended that I hadn’t talked to, if I could get a hold of Above: Members of the MCLE Board and Deputy them.” Director of Member Compliance Angie Conner present Cartwright retired on July 9 after retiring Director of Member Compliance Gale Cartwright 29 years at the bar, having started at an with a portrait. L to R: VSB President Len Heath, entry level position, overseen a depart- Kimberly Pierro, Zachary Kitts, Tammy Woodcock, Angie mental merge that more efficiently Conner, Michael Pierce, Gale Cartwright, Bill Watkins, Lori Galbraith, Christine Poarch, and Mark Brennan. serves Virginia lawyers, and eventually Right: Cartwright and Demetrios Melis. led a staff of 14. As the director of mem- ber compliance, Cartwright calls her role customer-service oriented, focused about lawyers with fantastical excuses on helping lawyers stay in compliance for non-compliance — and whispers of with their dues and continuing educa- a lawyer who has paid thousands in late tion — before there’s trouble. Known fees and re-instatement fees over several around the office for her collection of years. manager who is customer-focused and colored eyeglasses, she also holds the “We do have some of what I would passionate about public service, process distinction of having been the only call ‘dog ate my homework’-type excus- improvement, and employee engage- person to win the Halloween costume es,” she says. ment. He has a Bachelor of Science contest twice. Cartwright says she’s had to talk degree in Criminal Justice and a master’s Gale was working for an automo- a few irate lawyers off the ledge. And degree in public administration from tive parts warehouse when she saw an she urges attorneys to come to the bar Virginia Commonwealth University and ad in the newspaper about the Virginia sooner with any issues. “We will help has participated in multiple leadership State Bar needing a staff assistant in the you figure a way around it; we’ll find programs. membership department. She started in you some free CLE,” she says. “We will Cartwright and Melis will have had 1989. do those kinds of things, but we can’t do a few weeks of working together to ease “I came here not even knowing it after the deadline.” the transition. Asked for parting wisdom there was a such a thing as a bar,” she On June 18, the department wel- to her successor, Cartwright tears up a says. comed its new director, Demetrios little. “Take care of my girls,” she says. Cartwright applied for and received J. Melis. Melis, comes from the Virginia “I have really good staff. I’ll be sorry to promotions, eventually becoming the Department of Professional and leave them, but I know they will do a director of MCLE by 2000. “You know, I Occupational Regulation where he good job under new leadership.” come from a different generation where worked as the executive director of two you just do the job you’re given,” she policy boards encompassing nine regu- says. “And you grow where you’re plant- latory programs and 75,000 licenses. ed, which is what I did. And I enjoyed During his 12-year tenure at it.” DPOR, he held progressively responsible Cartwright is diplomatically mum positions in regulatory and licensing when pressed for specific anecdotes roles and is highly regarded as an adept www.vsb.org Vol. 67 | June 2018 | VIRGINIA LAWYER 47 Noteworthy > VSB NEWS New Council Members and Conference Leadership

The VSB welcomed a number of new 14th Circuit council members following council elec- Stephanie E. Grana tions in April and the conclusion of our 2017 fiscal year. Welcome aboard to all 16th Circuit these leaders and new conference chairs, R. Lee Livingston Lollar Perez Cox Wesley and thank you to our members who take the time to vote and who volunteer 17th Circuit to serve. Jennifer S. Golden William H. Miller Conference of Local and Specialty Bar Bryant Vinson Tyson Eliades Associations chair 18th Circuit Charles M. Lollar Jr. Barbara S. Anderson John K. Zwerling Diversity Conference chair Luis A. Perez 19th Circuit Carr Darron Varky Willett Chidi I. James Senior Lawyers Conference chair Daniel B. Krisky Carrollyn C. Cox David L. Marks Nathan J. Olson Young Lawyers Conference president Wayne G. Travell Grana Livingston Golden Miller Brian T. Wesley Michael M. York

4th Circuit 21st Circuit Gary A. Bryant G. Andrew Hall

6th Circuit 23rd Circuit Anderson Zwerling James Krisky J. Daniel Vinson Eugene M. Elliott Jr.

8th Circuit 28th Circuit Marqueta N. Tyson William M. Moffet Marks Olson Travell York 12th Circuit Circuit 30 P. George Eliades Gregory D. Edwards

13th Circuit See the full list of 2018–19 Council and Dabney J. Carr IV Executive Committee members on page 4. Hall Elliott Moffet Edwards Leah A. Darron Susheela Varky Henry I. Willett III

SAVE THE DATE: APRIL 12, 2019 Bar Leaders Institute Lewis Ginter Botanical Garden, Richmond The Bar Leaders Institute (BLI) is a one-day program sponsored by the Conference of Local and Specialty Bar Associations to train and provide resources to current and prospective local and specialty bar leaders. Details will be posted on the CLSBA Calendar as soon as they are available at http://bit.ly/CLSBAcalendar.

48 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org VSB NEWS < Noteworthy Annual Indigent Criminal Defense Seminar Draws Capacity Crowd

Almost 1,000 lawyers from around the state participated in the Leroy Rountree Hassell Sr. Indigent Criminal Defense Seminar on Thursday, May 3, in Richmond, Weyers Cave, and Wytheville. The free event, named for the first African American chief justice of the Supreme Court of Virginia, is a court initiative that provides national speakers and educational panels to those Virginia lawyers, whether court-ap- pointed or public defenders, who routinely represent indigent Virginians accused of a crime. The seminar began with opening remarks by the Honorable Stephen R. McCullough, justice of the Supreme Court of Virginia and included speakers from Virginia, California, Pennsylvania, Washington, DC, and South Carolina. Above: Allison Sampson–Jackson of Integration Solutions, Inc. in Richmond with Professor Seth Stoughton of the University of South Carolina.

Right: (Left to right) The Hon. Kevin M. Duffan, Harlan Yu, executive director of Upturn in Washington D.C., and Professor Seth Stoughton.

Presidents of the Virginia State Bar — past, present, and future — along with their spouses attended the eighth annual Past Presidents’ Dinner at the University of Richmond on April 18. Attending were (left to right): Phil Anderson, Manuel Capsalis, Doris Henderson Causey, Edward L. Weiner, Marni E. Byrum, W. David Harless, Leonard C. Heath Jr., Howard W. Martin, Jean P. Dahnk, Philip B. Morris, Karen A. Gould, Irving M. Blank, Mike Smith, Michael W. Robinson, Bob Altizer, Edward B. Lowry

www.vsb.org Vol. 67 | June 2018 | VIRGINIA LAWYER 49 Noteworthy > VSB NEWS Show and TECH

About 430 attendees of the 2018 Hyung Sohn cutting-edge technology and how to TECHSHOW learned about their Fairfax best manage law firms. future robot overlords at the Greater Patent law I am hoping to leave at the end of Richmond Convention Center on “I’m a techie at heart, the day knowing cryptocurrency and Monday, April 23, with a cyberpacked so this is somewhat bitcoin a lot better. And then just being day of tech-oriented CLEs, seminars and fun. The seminar on able to mingle with colleagues and get to networking. the dark web is more know some new people.” Arriving from around the com- personal curiosity, monwealth, lawyers gathered for the but the rest of it probably has a bit of day-long event to learn about the dark relevance to what I actually do — not Michael P. McComas web, cryptocurrencies, cyber security, just in terms of the direct subject matter Richmond and more. that I practice in, but because everything Patent law is going electronic. You do have to be “I practice patent Why’d you come to the TECHSHOW? more careful these days. Hopefully I’ll law, so it’s a good get some lightbulb type of moment.” way to get exposed Farnaz Thompson to a lot of areas I Charlottesville don’t usually get In-house counsel Tameka Robinson exposed to, that are peripheral to what at the University of Chesterfield I do, maybe not directly related, but Virginia Solo practitioner things that could be of interest or could “I’m interested in focusing on family matter. It’s about getting outside of my seeing the seminar and juvenile law narrow focus.” regarding the dark “I’m a newer attor- web, and I think it’s ney and I think that something that a lot of attorneys are this information will interested in. And I’ve dealt with a few be very useful, especially when dealing data security breaches at my work and with bitcoin and the ethics of accepting I’m looking to learn more about how to any other type of cryptocurrency. And mitigate damages and what you can do also dealing with cyber security and from the technology perspective to help making sure that your network is secure. prevent security breaches from happen- As a solo practitioner, I’m nervous ing.” about using the cloud and storing infor- mation and those types of things, so I’m hoping to gain information on keeping Clarence Freeman things secure and making sure that my Stanback Jr. clients’ information is protected.” Lives in Hyattsville, MD, practices in Doris Henderson Causey and Justice Arlington Brian T. Wesley Cleo E. Powell were among the speakers “I’m here to learn Richmond at the 2018 TECHSHOW. about e-discovery — Solo practitioner of I’m involved in some corporate and real litigation concerning me right now, so estate law I have a lawyer. Our e-discovery is an “They’re great CLEs, issue, so I figure I’ll learn something great topics at a really about that today, and maybe help him.” great price. Bitcoin and cryptocurrency, I think, will be very interesting topics, since it’s a new and innovative legal area. I’m very interested to see that. It’s good to hear about the

50 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org VSB NEWS < Noteworthy

On June 6, the Supreme Court of Virginia swore in a new crop of about 200 lawyers at the Admissions & Orientation Ceremony at the Greater Richmond Convention Center.

Photos: 1: Adrianna Jordan (third from left) of Western Michigan’s Cooley Law School with her family, Anthony Hailey, Jasmin McMillon, Carmen Jordan, Jeffrey Jordan 1 2 II, (a student at Pitt Law) and Judge Jeffrey Jordan.

2: Roshni Dhillon (left) of George Mason University Law School and her sister

3: Anjanae Trina Stringfield (second from right, front) of Appalachian School of Law

4: Gregory Crapanzano of Washington & Lee Law School, Lauren Geiser of Boston University Law School, and Paul Atkinson of the University of Virginia Law 3 4 School

5: The new lawyers are sworn in by the Clerk

5 UVA Law Sweeps Health Law Writing Competition Dues Statements Dues statements were mailed The VSB Health Law Section’s stu- 2nd Prize and $1000: Lauren Howes June 15. The annual dues must be dent writing competition for students for “Surrogate Decisions to Withdraw at Virginia law schools for the 2017-18 Life-Sustaining Treatment: A received at the Virginia State Bar by academic year saw three University Comparison of the United Kingdom July 31, or delinquency fees will be of Virginia Law School students take and the United States” assessed. All active members must the top honors and prize money. pay the Clients’ Protection Fund Contestants submitted papers on a 3rd Prize and $500: Christopher assessment and provide a completed topic pertaining to a health law issue or Spadaro for “Frozen: Procreational and signed Mandatory Certification the practice of health law. Entries were Autonomy and Disputes over the Regarding Professional Liability judged by a committee of the Health Disposition of Cryopreserved Pre- Insurance, also by July 31. Separate Law Section on the basis of subject Embryos and Gametes” fines will be assessed for unpaid matter originality, relevance to health dues, unpaid CPF fees, and incom- law, quality of analysis and research, and The Health Law Section intends to hold plete liability insurance certifications. quality of writing. All three winners a similar competition for the 2018-19 You may renew your membership, attend the University of Virginia Law academic year. If you have questions certify your liability insurance School. The winning entries are: or would like more information about coverage, join VSB sections, and pay the competition, please contact Sara your dues online by going to Mem- 1st Prize and $1500: Katherine Mann Heisler, [email protected]. ber Login on the VSB home page. for “CRISPR and Human Germline Corporate Counsel Registrants may Editing: Improving U.S. Regulation also use this feature. to Address Safety, Social, and Ethical Concerns” www.vsb.org Vol. 67 | June 2018 | VIRGINIA LAWYER 51 Noteworthy > VSB NEWS VSB Honors Attorneys

The Virginia State Bar presented the & Skaff noted that Isaacs was chosen and Consumer Law Units. Dipti is also following awards during its Annual for his role at the VBBE “because he an Adjunct Professor at the University Meeting. had demonstrated the highest integri- of the District of Columbia – David A. ty throughout his numerous years of Clarke School of Law. Prior to joining Tradition of Excellence practice.” Continued Memmer, “Steve LSNV, Dipti served as a law clerk at the Presented by the General Practice Section has developed Virginia’s character and District of Columbia Superior Court Grayson P. “Gray” fitness process into one of the nation’s for Judge Russell Canan and Judge Hanes, of Reed best, all the time treating each applicant Stephanie Duncan-Peters. Previously, Smith LLP in Tysons. with the highest respect and courtesy.” Dipti worked for AmeriCorps at the A longtime col- In seconding Isaacs, Curtis Hairston Commodore Barry Elementary School league recently said Jr. of The Gee Law Firm, PC said, “His in West Philadelphia. of Hanes: “Gray is a willingness to educate individuals on the lawyer for all seasons. issues has saved countless law students Oliver White Hill Student Pro Bono A Renaissance man, from making mistakes that would have Presented by the Special Committee on equally comfortable and performing interfered with their efforts to become Access to Legal Services at the top of his game whether he’s licensed attorneys.” Emmeline Paulette Charu Kulkarni, a practicing in front of a judge or jury, Reeves of the University of Richmond recent graduate of Washington & Lee or negotiating a private deal, Gray does School of Law said of Isaacs, “I, and School of Law. David it all; and does it all well, which is very many others in the academy, have been I. Bruck, Clinical hard to find.” When Reed Smith moved awed by Mr. Isaacs’ unwavering com- Professor of Law at to its new office space in Tysons last mitment to maintaining the highest W&L and Director year, the firm recognized Hanes’s long level of character and professionalism in of the Virginia years of service to the law by naming a our profession and, at the same time, by Capital Case Clearinghouse, nominated conference room after him. Hanes was his tireless efforts to assist and support Kulkarni and noted not only her exten- unable to attend the ceremony because bar applicants in overcoming weak- sive pro bono hours but her excellent he instead chose to represent his client nesses, becoming their best selves, and legal capabilities exhibited in mock trial at a zoning hearing. Hanes recently serving the public as ethical, responsible competitions and in actual practice, told a new partner working with him attorneys.” including “...winning parole for a 70- on a land use exception with a 17-year year old man who had served 40 years expiration: “After the next 17 years, this Legal Aid Lawyer of the Year in prison with virtually no disciplinary matter will be yours. I’ll be 96 then, and Presented by the Special Committee on infractions.” Her other successes in law probably just working part-time.” Access to Legal Services school include successfully obtaining Dipti Pidikiti-Smith, a temporary protective order for a William R. Rakes Leadership in deputy director of domestic violence survivor and immers- Education advocacy at Legal ing herself in immigration advocacy to Presented by the Section on the Education Services of Northern help those who have come to the United of Lawyers in Virginia Virginia. The award States as immigrants. Says Professor Stephen A. Isaacs, recognizes those who Bruck, “The list of her achievements director of the exhibit: 1) innova- may evoke an image of a hard-charging, Character and Fitness tion and creativity driven extrovert. But the actual Charu Committee of the in advocacy; 2) experience and excel- is a small, soft-spoken, and self-effacing Virginia Board of lence in service; and 3) impact beyond young woman. Though she speaks five Bar Examiners and his or her own program’s service area. languages, she listens more than speaks, general practitioner Pidikiti-Smith began her legal career and when she does offer an opinion in Richmond. In at LSNV in 2008 as a staff attorney and about a problem or an issue, her words her nomination, C. Kailani Memmer had various roles including Senior Staff always reveal that she has carefully con- of Glenn Robinson Cathey Memmer Attorney and Chair of the Housing Law sidered the problem from every side.”

52 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org VSB NEWS < Noteworthy

Clarence M. Dunnaville Jr. to create greater efficiencies in the someone comes looking for help, Jay is Achievement criminal justice system and to promote going to say yes and help regardless of Presented by the Diversity Conference public safety in Southwest Virginia. In how many other things he is working The Honorable 2016, Slemp launched the “Courts to on.” Rupen R. Shah, Classrooms” program, that provides ed- general district judge ucational experiences for area students. Bar Association of the Year based in Staunton. In 2017, Slemp created the “Southwest Presented by the Conference of Local and Edward L. Weiner Virginia Joint Senior Abuse Task Force” Specialty Bar Associations of Weiner Spivey to address crimes against senior citizens The Fairfax Bar Association (FBA). & Miller in Fairfax, and the “Wise Works” program to pro- The FBA was nominated by executive nominated Shah, vide alternative sentencing options for director Courtnie L. Norris who enu- noting his service to the bar as 2009 low-risk offenders. He has also worked merated the many programs that the “Bar Leader of the Year,” and his role as to address the region’s substance abuse bar supports including the Fairfax Law president of the Augusta County Bar crisis, to protect seniors from financial Foundation, book drives, Jazz4Justice, Association. Judge Shah also served as exploitation, and to safeguard children Heroes vs. Villains 5K, the FBA Paralegal chair of the VSB Diversity Conference from abuse and neglect. food drive, and the Young Lawyers Toys and oversaw the Millennium Diversity for Tots. The FBA also manages the Initiative. In the community, Judge Shah Local Bar Leader of the Year Northern Virginia Pro Bono Law Center personally created and endowed a fund Presented by the Conference of Local and and donates thousands of dollars and for The Valley’s Children’s Advocacy Specialty Bar Associations thousands of legal hours to the Center Center that counsels and assists chil- Jay B. Myerson, to assist low-income Fairfax county dren who have been victims of sexual founder of the residents with civil, family, employ- crimes. Weiner wrote of Judge Shah, Myerson Law Group ment, landlord-tenant and many other “He exemplifies excellence in promoting in Reston. Luis A. legal issues. In the community, the FBA and working for diversity and ‘serving Perez of Luis A. had over 200 members volunteer for the underserved.’ As a role model, Judge Perez P.C. nominated programs with schools including court Shah lights the way for young people to Myerson, enumer- tours, mock trials, classroom speakers, see the possibilities.” ating his numerous and the Devonshire Program that edu- volunteer activities both with the cates at-risk teenagers about drug and R. Edwin Burnette Jr. Young Lawyer of Fairfax Bar and with other legal entities alcohol related legal issues. Additionally, the Year including the American Inns of Court, the FBA operates a law library at the Presented by the Young Lawyers the George Mason Inns of Court, and Fairfax County Courthouse that is open Conference the American Bar Association. David J. to the public and serves more than Charles H. Slemp Gogal of Blankingship & Keith second- 60,000 people each year. The FBA has III, Commonwealth’s ed the nomination, noting, “Jay has also developed a new pro se program Attorney for Wise tirelessly planned and coordinated the designed to assist both the public and County and the effort to persuade our state legislators the courts with the swelling number of City of Norton. In to fill judicial vacancies and increase pro se domestic cases. her nomination of the number of judges appointed by the Slemp, YLC Board General Assembly, in order to meet the Member Rachel needs of justice in our commonwealth.” Wolfe, noted that: “Slemp has made a Sharon D. Nelson of Sensei Enterprises great impact upon the Conference, the said of Myerson, “His leadership qual- legal profession, and the community. ities are exemplary. He gently guides Slemp has actively participated in YLC people toward consensus and is always programming which has led to more diplomatic – even when others are not.” involvement from young lawyers in In his endorsement of Myerson, William Southwest Virginia. Slemp is noted for P. Daly Jr. of Rees Broome PC in Tysons initiating various programs designed Corner added, “And the fact is, when www.vsb.org Vol. 67 | June 2018 | VIRGINIA LAWYER 53 Conference of Local and Specialty Bar Associations Roanoke and Prince William County Bar Associations Win 2018 Awards of Merit

The Virginia State Bar’s Conference of ed a comprehensive plan to heighten An Award of Merit was also given to the Local and Specialty Bar Associations awareness of its existing programs while Roanoke Bar Association of the 23rd (CLSBA) has bestowed Awards of Merit partnering with community organiza- judicial circuit for creating a public on two local bars for creating out- tions to better expand their impact and education seminar entitled “Foster Care: standing programs that improve their The Road to Permanency and Social outreach. Some of these included join- communities and the legal system. Media & Internet Safety.” This program The awards recognize projects that ing the Prince William County Chamber is part of a broader initiative called “You serve the bench, the bar, and the people of Commerce, developing a Speakers and the Law” that the RBA implemented of Virginia. Bureau of lawyers willing to address the in 2010 at the behest of Circuit Court The conference makes information public on legal topics of interest, and Judge William Broadhurst to help on winning projects available to other working with Court Appointed Special educate the public about the courts and groups that want to consider similar pro- Advocates (CASA) to provide volunteers the legal system. The foster care semi- grams. For information, contact Paulette and raise money for the group, in ad- nar brought together commonwealth J. Davidson at [email protected] or dition to numerous ongoing pro bono attorneys, sheriffs, social workers, and (804) 775-0521. lawyers and was delivered live as well initiatives for juveniles, senior citizens, as videotaped for viewing on the RBA The Prince William County Bar and low-income county residents. The website. The RBA’s president is Kevin W. Association (PWCBA) operates in the president of the PWCBA is Sarah J. Holt of Gentry Locke. 31st Judicial Circuit and implement- Knapp of ShounBach.

2018–19 CLSBA Local and Specialty Bar Elections Executive Committee Chair Charles M. Lollar Madison-Greene Bar Association Rebecca Janet Wade, Secretary (Norfolk & Portsmouth Bar) Scott Braxton Puryear, President Tamika Dawn Jones, Treasurer Chair-elect Lewis A. Martin III Amanda Drumheller Strecky, Secretary Colleen M. Haddow, Director (Charlottesville-Albemarle Bar) Ryan Jay Rakness, Treasurer Phoenix Shannon Michele Ayotte Secretary Sandra T. Chinn-Gilstrap Scott Braxton Puryear, Conference Harris, Director (Danville Bar) Representative Brent Jason Schultheis, Director Treasurer Susan N.G. Rager John Michael Powell, Past President Clarissa Katharine Pintado, Director (Northern Neck Bar) Immediate Past Chair B. Alan McGraw Metropolitan Richmond Women’s Bar Virginia Trial Lawyers Association (Tazewell Bar) Association Michael Bryan Slaughter, President Joanna Lee Suyes, President Jason Wade Konvicka, President-elect At-Large Members: Michele Lynn Satterlund, President-elect Craig Brian Davis, Vice President Nicholas J. Gehrig (Alexandria Bar) Candace Stinson Mundy, Vice President Thomas Vaden Warren Jr., Vice John A. Merrick (Richmond Bar) Mollie Colleen Barton, Secretary President Katherine Garrett Gray, Treasurer Bridget Newcomb Long, Vice President Joseph W.H. Mott (Roanoke Bar) Elliott Matthew Buckner, Vice President Christine H. Mougin-Boal (Loudoun Co. Bar) Norfolk & Portsmouth Bar Association Joanna Lee Suyes, Treasurer Luis A. Perez (Fairfax Bar) Caryn Rivett West, President Derrick LaMonde Walker, W. Marcus Scriven (So. Hampton Roads Bar) Charles Malcolm Lollar, President-elect Parlimentarian Dillina W. Stickley (Harrisonburg- Lamont Demetrius Maddox, Treasurer Rockingham Bar)

The Alexandria Bar Association Amy P. VanFossen (Middle Peninsula Bar) George Christopher Wright, President Reiss F. Wilks (Virginia Creditors Bar) Jessica Lynn Leischner, President-elect

54 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org 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 the membership department at (804) 775-0530.

Lawyers Helping Lawyers 2018 Fall Conference Wintergreen Resort September 14 & 15 Keynote Speaker Justice William C. Mims Earn CLE credit Enjoy fellowship and food at Wintergreen Resort at a beautiful time of year! Agenda and registration available on the Lawyers Helping Lawyers website: www.valhl.org

www.vsb.org Vol. 67 | June 2018 | VIRGINIA LAWYER 55 Future of Law Practice The Disappearing Civil Trial and an Uncertain Future by Graham K. Bryant

The Special Committee on the Future of states soon adopted for themselves. — the disappearing civil trial provides Law Practice exists to study how various Litigators for the first time could compel an opportunity for innovation. How disruptive forces will affect the practice adversaries to turn over relevant docu- can lawyers best prepare themselves for of law going forward. Although much of ments and interrogate hostile witnesses an uncertain future, and perhaps even the committee’s work addresses cut- in depositions. thrive despite relentless change? ting-edge developments, it also studies Doing so gave both parties an accu- First, lawyers should take on more other long-standing trends — such as rate estimate of what to expect at trial, pro bono litigation cases, and their part- the justice gap — that continue to have and from there it was not hard to figure ners or supervisors should encourage profound implications for our profes- out whose side the law was on. Both them to do so. A recent study of Virginia sion’s future.1 parties then had an incentive to settle civil caseloads revealed that both parties Much like the justice gap, lawyers without the hassle and expense of trial. have legal representation in only one have long known that traditional civil As legal historian John Langbein put it: percent of general district court cases, trials are becoming less common. And “Having seen the dress rehearsal, today’s six percent of adult juvenile and domes- although much has been written about litigants often find that they can dis- tic relations district court cases, and 38 3 why civil trials are declining, less atten- pense with the scheduled performance.” percent of circuit court cases.5 As these tion has been given to what this trend The advent of discovery thus in- figures indicate, trying a case in state means for the future of law practice. stigated the civil trial’s decline. But this court is economically unsound for most In a recent law review article narrative has a flaw — it assumes that litigants unless they represent them- titled The Disappearing Civil Trial: the law itself is known. One conse- selves.6 Implications for the Future of Law quence of the decline, however, is that Encouraging newer attorneys to Practice, Kristopher McClellan of the the law is becoming less certain. take pro bono cases through trial allows Young Lawyers Conference board of An unintended result of more them to gain trial experience, making governors and I sought to fill this void.2 settled cases is less binding precedent them more valuable to an employer and We believe that the consequences of the in a time of proliferating statutes, to their clients. Doing so will also help disappearing civil trial are contributing regulations, and other legal literature mitigate the problem of trial-averse to an unprecedented period of legal in need of authoritative interpretation. attorneys ascending to the bench. More uncertainty to which all lawyers, not just Moreover, fewer trials means that fewer broadly, serving underprivileged citizens civil litigators, must adapt in order to lawyers (and, eventually, judges) will reinforces the legitimacy of the legal thrive. have significant trial experience, leading to a self-enforcing norm of trial avoid- system as a whole and improves lawyers’ Reevaluating the Accepted Narrative ance. All the while, the legal profession standing in society. Consider the accepted explanation for is undergoing the most disruptive peri- Second, the disappearing civil trial civil trial decline. From their origins od of technological upheaval since the provides litigators an opportunity to until the early twentieth century, trials advent of the common law. embrace alternative dispute resolu- served as the primary investigative Resolution of all legal problems tion and develop new, more versatile engine of the common law. This was requires application of governing law practices focused on solving problems because the common law had no provi- to specific facts to reach a conclusion.4 holistically. ADR permits professionals sion for discovery — no mechanism for At common law, all parties knew the with other areas of expertise, such as documenting disclosure or examining law but not the facts. We expect that in counselors and financial advisors, to nonconsenting witnesses existed outside the future litigators will know the facts assist with problem solving in a way that the courtroom. In order to figure out better than ever — but the law itself will traditional ligation usually does not.7 how the law applied to a given case, a become increasingly uncertain. A lawyer who embraces his or her trial was necessary to determine the licensure as an “attorney and counselor facts. Lessons for Lawyers at law” in this fashion may be able to All that changed in 1938 with the Like the more sensational disruptive build a practice that is more personally advent of the Federal Rules of Civil forces affecting law practice — artificial satisfying and better serves clients than Procedure and their organized system intelligence, blockchain technology, and another who ignores the myriad possi- of discovery, some form of which most online dispute resolution, among others ble dispute resolution options.

56 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org Future of Law Practice

Finally, and perhaps unintuitively, 4 See Antonin Scalia & Bryan A. lawyers should cultivate a knowledge Garner, Making Your Case: the Art of legal history to prepare themselves of Persuading Judges 41 (2008). 5 Shauna Strickland et al., NCSC, for an uncertain future. In a time where Virginia Self-Represented Litigant new laws are passed faster than courts Study: Outcomes of Civil Cases in can interpret them, lawyers who have a General District Court, Juvenile nuanced understanding of the American Graham K. Bryant is a law clerk to Chief & Domestic Relations Court, and common law system’s origins and evo- Judge Glen A. Huff of the Court of Appeals of Circuit Court i (2017), http://brls Virginia, where he focuses on developing trends .org/wp-content/uploads/2018/03/ lution are best suited to contextualize in appellate law and legal writing. He is active Outcome-Report.pdf. novel issues within the common law in the Virginia State Bar, serving on the Special Committee on the Future of Law Practice and 6 Paula Hannaford-Agor et al., fabric that underpins our entire legal contributing to the 2018 revisions of the VSB NCSC, Civil Justice Initiative: The system. Appellate Advocacy Handbook. Beginning Landscape of Civil Litigation in This is especially true in Virginia, in August 2018, he will serve as a law clerk to State Courts 35 (2015), https://www Justice William C. Mims of the Supreme Court .ncsc.org/~/media/Files/PDF/Research/ where the common law of England is of Virginia. 8 CivilJusticeReport-2015.ashx. incorporated into the Code, and where 7 See Pauline H. Tesler, the courts have not hesitated to rely on Endnotes: Collaborative Law: Achieving that common law tradition to decide 1 See Chris Fortier, The Legal Checkup — Effective Resolution In Divorce cases.9 A Tool for All, Va. Law., Apr. 2018, at Without Litigation 3–5 (2d ed., 49–50, http://www.vsb.org/docs/ As the disappearing civil trial 2008). valawyermagazine/vl0418 8 Va. Code § 1-200. indicates, trends both old and new will -legalcheckups.pdf (discussing legal 9 See, e.g., Cherry v. Lawson Realty Corp., checkups as one of the latest efforts to play key roles in shaping the future of No. 170718, slip op. at 6–7 (Va. May 3., address access to justice concerns). law. By studying how we arrived at this 2018); Cline v. Dunlora South, LLC, 284 2 Graham K. Bryant and Kristopher point and what challenges lie ahead, we R. McClellan, The Disappearing Civil Va. 102, 105–10, 726 S.E.2d 14, 16–19 can better prepare for what the future Trial: Implications for the Future of Law (2012), Commonwealth v. Morris, 281 will bring. Although much is uncertain, Practice, 30 Regent U. L. Rev. 287 Va. 70, 79, 705 S.E.2d 503, 508 (2011); Taylor v. Commonwealth, 58 Va. App. one truth is clear: the legal profession (2018). 3 John H. Langbein, The Disappearance 435, 443, 710 S.E.2d 518, 522 (2011). must be willing to adapt and innovate to of Civil Trial in the United States, 122 remain relevant. YALE L.J. 522, 551 (2012).

Virginia Lawyer Referral Service now offers online referrals for clients 24 hours a day, 7 days a week. Let us build your practice together. Learn more and sign up to start receiving referrals. www.vlrs.net

www.vsb.org Vol. 67 | June 2018 | VIRGINIA LAWYER 57 CLE Calendar

Virginia CLE Calendar Virginia CLE will sponsor the following continuing legal education courses. For details, see http://www.vacle.org/seminars.htm.

July 10 July 26 August 15 Essentials of Drafting Trusts in Virginia 44th Annual Recent Developments in 2017–2018 U.S. Supreme Court Labor Webcast/Telephone the Law 2018: News from the Courts and and Employment Law Cases: A Timely 10 am–1:15 pm General Assembly Analysis Video — Ashburn, Harrisonburg, Webcast/Telephone 10 am–Noon July 11 Lynchburg Hanging a Shingle: Starting and 9 am–4:25 pm August 16 Perfecting a Successful Law Practice Medical Malpractice Case Screening: Live — Fairfax July 27 44th Annual Recent Developments in Knowing When to Keep the Case, and 8:25 am–3:45 pm When to Refer It the Law 2018: News from the Courts and Live — Charlottesville/Webcast/Telephone General Assembly July 11 Noon–2 pm Video — Tysons, Winchester Removal Defenses 101: Understanding 9 am–4:25 pm the Immigration Deportation (Removal) August 17 Legal Technology and Law Practice Process and Forms of Relief August 2 Webcast/Telephone Management Seminar, Featuring Barron Essentials of Cross-Examination K. Henley Noon–2 pm Webcast/Telephone Live — Richmond Noon–2 pm 9 am–4:15 pm July 12 Essentials of Residential Real Estate August 7 August 20 Closings Navigating the Intersection of Divorce Navigating the Intersection of Divorce Webcast/Telephone and Bankruptcy: What Family Law and Bankruptcy: What Family Law 10 am–1:15 pm Attorneys Need to Know About Attorneys Need to Know About Bankruptcy Law Bankruptcy Law July 17 Live — Charlottesville/Webcast/Telephone Webcast/Telephone Essentials of Depositions Noon–1 pm Noon–1 pm Webcast/Telephone August 21 Noon–2 pm August 8 Understanding Financial Statements Social Media in the Workplace Live — Charlottesville/Webcast/Telephone Live — Charlottesville/Webcast/Telephone July 19 Noon–2 pm Family Law Mediation 9 am–1:15 pm Live — Charlottesville/Webcast/Telephone August 22 August 14 Noon–3:15 pm Essentials of Appellate Practice Essentials of Drafting Wills in Virginia Live — Charlottesville/Webcast/Telephone Webcast/Telephone July 24 Noon–2 pm 10 am–1:15 pm 2017–2018 U.S. Supreme Court Labor and Employment Law Cases: A Timely Analysis Live — Charlottesville/Webcast/Telephone Noon–2 pm Solo & Small-Firm Practitioner Forum Thursday, October 18, 2018 July 25 Wytheville Meeting Center, Wytheville, VA 44th Annual Recent Developments in the Law 2018: News from the Courts and The Solo & Small-Firm Practitioner Forum focuses on issues that confront attorneys who General Assembly practice alone or in small firms. Law office management and ethics are among several Video — Abingdon, Charlottesville, topics covered at these CLEs. Danville, Fairfax, Hampton, Richmond, These CLEs are free, include lunch, and are available on a first-come, first-served Roanoke basis. Details will be posted at http://bit.ly/SSFWytheville2018 when they become available. Planned topics include Appellate Practice with the Court of Appeals, Trust 9 am–4:25 pm Accounting, Software and Document Management for Law Firms, and Fastcase 7.

58 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org CLE Calendar

Virginia Criminal Sentencing Commission Calendar Details at vcsc.virginia.gov Virginia State Bar Introduction to Sentencing Guidelines Six the topics covered in this seminar. Attendees Hours Approved for 6 CLE & VIDC Re- will participate in a discussion-oriented Harry L. Carrico certification workshop addressing common errors and Professionalism Course The introduction seminar is designed for the complex scoring issues. Cost $100.00 for 5 attorney or criminal justice professional who hours seminar (Paralegals $50.00) or $40 for is new to Virginia’s Sentencing Guidelines. ethics portion only. (Fee waived for Judges, July 12, 2018, Roanoke Cost $125.00 (Paralegals $62.50). Purchase Comm. Attorneys, P&P, Public Defenders & manual separately. (Fee waived for Judges, Staff. v CAs, Public Defenders, P&P and staff. 7/24/2018 Chesterfield August 16, 2018, Alexandria 8/1/2018 Henrico Workforce Alliance, Midlothian Center Henrico Police and Fire Training Center 9:30 9:30 AM (#657) v AM (#658) Ethics Portion Only (1 Hour – 1 CLE) 8/7/2018 Fairfax 9:30 AM (#668) September 12, 2018, Richmond Fairfax County Government Center 9:30 AM v (#659) Virginia Lawyer publishes at no charge no- tices of continuing legal education programs December 6, 2018, Richmond Sentencing Guidelines Knowledge & Skills sponsored by nonprofit bar associations and Evaluation (Including Ethics Issues) government agencies. The next issue will cover Five hours – Approved for 5 CLE & VIDC August 23 through October 13. Send informa- See the most current dates and Re-certification tion by July 16 to [email protected]. For other registration information at The evaluation course is designed for the CLE opportunities, see Virginia CLE calendar experienced user of Virginia’s Sentencing and “Current Virginia Approved Courses” at www.vsb.org/site/members/new. Guidelines. Attendees will complete a knowl- www.vsb.org/site/members/mcle-courses/ or the edge and skills exercise that will determine websites of commercial providers.

November 10 – 17, 2018 Plus, an exciting optional pre-trip extension to Porto • Six nights at the 5-star Sofi tel Lisbon Liberdade in the heart of the city, on Lisbon’s most prestigious Avenida da Liberdade • Airfare from Dulles and airport transfer included (optional) • Optional tours, to sites in and around Lisbon, every day • All taxes and gratuities to hotel personnel included • Breakfast buffet daily at hotel • Welcome and Farewell receptions • Half-day Orientation Tour • Dedicated Hospitality desk at hotel staffed by a local Destination Management Company (DMC) • Nine hours of CLE, including a live presentation on Portuguese Legal Structure

For more information, please visit www.vacleinternational.org

www.vsb.org Vol. 67 | June 2018 | VIRGINIA LAWYER 59 Virginia Lawyer Register

DISCIPLINARY SUMMARIES (c), (d)(2-4) www.vsb.org/docs/Nubani-051418.pdf The following are summaries of disciplinary actions for vio- Rory Kieran Nugent lations of the Virginia Rules of Professional Conduct (RPC) Herndon, Virginia (Rules of the Virginia Supreme Court Part 6, ¶ II, eff. Jan. 1, 17-053-109426 2000) or another of the Supreme Court Rules. Effective June 6, 2018, the Virginia State Bar Disciplinary Copies of disciplinary orders are available at the web link Board suspended Rory Kieran Nugent’s license to practice law provided with each summary or by contacting the Virginia for a period of two and one-half years for violating profession- State Bar Clerk’s Office at (804) 775-0539 or [email protected]. al rules that govern diligence, communication, truthfulness in VSB docket numbers are provided. statements to others, and misconduct. RPC 1.3 (a), (b); 1.4 (a), (b); 4.1 (a); 8.4 (b), (c) www.vsb.org/docs/Nugent-060718.pdf

DISCIPLINARY BOARD Laura Reed Wright Roanoke, Virginia B. Walter Billips 17-080-107279 Grundy, Virginia On April 2, 2018, the Virginia State Bar Disciplinary Board 17-102-108947 revoked Laura Reed Wright’s license to practice law based on Effective, March 23, 2018, the Virginia State Bar Disciplinary her affidavit consenting to the revocation. By tendering her Board revoked B. Walter Billips’ license to practice law based consent to revocation at a time when allegations of misconduct on violations of the rules of professional conduct governing are pending, Wright acknowledges that the material facts upon the unauthorized practice of law. RPC 8.5 (a); 5.5 (c); 5.5 (d) which the allegations of misconduct are pending are true. (2)(i-ii) Rules of Court Part 6, § IV, ¶ 13-28. RPC 3.3 (a)(1,2,4), (d), www.vsb.org/docs/Billips-042318.pdf (e); 3.4 (c)(1-3); 4.4; 8.1 (a), (b); 8.4 (a), (b), (c) www.vsb.org/docs/Wright-040218.pdf Karl Galen Blanke Burke, Virginia 18-052-110532, 18-052-110090 DISTRICT COMMITTEES On April 26, 2018, the Virginia State Bar Disciplinary Board revoked Karl Galen Blanke’s license to practice law based on Terry Richard Driskill his affidavit consenting to the revocation. By tendering his Hopewell, Virginia consent to revocation at a time when allegations of misconduct 18-031-110979 are pending, Blanke acknowledges that the material facts upon On June 5, 2018, the Third District, Section I Subcommittee which the allegations of misconduct pending are true. Rules of of the Virginia State Bar issued a public reprimand with terms Court Part 6, § IV, ¶ 13-28 to Terry Richard Driskill for violating professional rules that www.vsb.org/docs/Blanke-042718.pdf govern competence, diligence, and communication. This was an agreed disposition of misconduct charges. RPC 1.1; 1.3 (a); Richard Murray 1.4 (a) Bradenton, Florida www.vsb.org/docs/Driskill-060518.pdf 15-053-101605 On March 30, 2018, the Virginia State Bar Disciplinary Board Jahangir Ghobadi revoked Richard Murray’s license to practice law based on Sterling, Virginia his affidavit consenting to the revocation. By tendering his 18-052-110740 consent to revocation at a time when allegations of miscon- On May 25, 2018, the Fifth District, Section II Subcommittee duct are pending, Murray acknowledges that the material facts of the Virginia State Bar issued a public reprimand without upon which the allegations of misconduct are pending are terms to Jahangir Ghobadi for violating professional rules that true. Rules of Court Part 6, § IV, ¶ 13-28. RPC 1.5 (a), (b); 1.8 govern candor toward the tribunal and bar admission and (c); 1.15 (a)(3); 3.3 (a)(1); 8.4 (b), (c) disciplinary matters. This was an agreed disposition of miscon- www.vsb.org/docs/Murray-040318.pdf duct charges. RPC 3.3 (a)(4); 8.1 (a) www.vsb.org/docs/Ghobadi-052918.pdf Ashraf Wajih Nubani Springfield, Virginia Thomas Brian Haddock 17-051-107890 Fairfax, Virginia Effective April 27, 2018, the Virginia State Bar Disciplinary 17-051-108077 Board suspended Ashraf Wajih Nubani’s license to practice law On May 30, 2018, the Fifth District, Section I Subcommittee for a period of 60 days with terms for violating professional of the Virginia State Bar issued a public reprimand with terms rules that govern the safekeeping of property. RPC 1.15 (b)(3), to Thomas Brian Haddock for violating professional rules that govern competence, scope of representation, diligence,

60 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org Virginia Lawyer Register communication, safekeeping of property, and declining or (1, 5), (c)(2), (d)(3-4); 8.4 (a) terminating representation. This was an agreed disposition of www.vsb.org/docs/Shedlick-052318.pdf misconduct charges. RPC 1.1; 1.2 (a); 1.3 (a); 1.4 (a), (b), (c); 1.15 (a)(1), (b)(1, 3), (c)(1, 2), (d)(2-4); 1.16 (a)(2) Melvin Lorenzo Todd Jr. www.vsb.org/docs/Haddock-053118.pdf Richmond, Virginia 17-032-107501 Christopher Broughton Shedlick On May 21, 2018, the Third District, Section II Subcommittee Falls Church, Virginia of the Virginia State Bar issued a public reprimand without 18-053-109901, 18-053-110818 terms to Melvin Lorenzo Todd Jr. for violating professional On May 22, 2018, the Fifth District, Section III Subcommittee rules that govern diligence and communication. This was an of the Virginia State Bar issued a public reprimand with terms agreed disposition of misconduct charges. RPC 1.3 (a), (b); 1.4 to Christopher Broughton Shedlick for violating professional (a), (b) rules that govern safekeeping property and misconduct. This www.vsb.org/docs/Todd-052218.pdf was an agreed disposition of misconduct charges. RPC 1.15 (b)

DISCIPLINARY PROCEEDINGS

Suspension – Failure to Pay Disciplinary Costs Effective Date Lifted William Lee Andrews III Roanoke, VA June 1, 2018 Brent Lavelle Barbour Lynchburg, VA June 5, 2018 Andrew Ira Becker Virginia Beach, VA April 12, 2018 Ana Maria Cuitino McLean, VA May 31, 2018 Jonathan David Esten Manassas, VA May 2, 2018 Karen M. Kennedy Fredericksburg, VA May 22, 2018 Nancy Beth White Manakin-Sabot, VA April 10, 2018

Suspension – Failure to Comply with Subpoena Jason Michael Breneman Ashland, VA May 15, 2018 May 17, 2018 William Franklin Burton Chevy Chase, MD June 4, 2018 Cynthia Ann King Virginia Beach, VA May 14, 2018 John James McNally Norfolk, VA May 31, 2018

NOTICES TO MEMBERS www.vsb.org/pro-guidelines/index.php/rule_changes/item/para_13- 23_impaired www.vsb.org/pro-guidelines/index.php/rule_changes/item/para_13- PETITION FOR REINSTATEMENT 1_13-30_lawyer_assistance On April 12, 2018, the Supreme Court of Virginia denied Anne Marston Lynch Wilber (formerly Anne Marston Lynch) of SUPREME COURT AND THE COURT OF APPEALS Portsmouth, VA, her petition for the reinstatement of her law ANNOUNCE TWO-YEAR MEDIATION PILOT PROJECT license. On June 13, the Supreme Court of Virginia and the Court of Appeals of Virginia announced that they would begin two-year PROPOSED RULE CHANGES PENDING APPROVAL BY mediation pilot projects beginning January 1, 2019. www.vsb.org/ SUPREME COURT OF VIRGINIA site/news/item/virginias_appellate_courts_announce_mediation_ At its June 14, 2018, meeting, VSB Council voted to send Proposed pilot_projects LEO 1889 http://www.vsb.org/site/regulation/leo_1889 and Rule 1.1, Comment 7, to the Supreme Court of Virginia for final LOWER HEALTH INSURANCE RATES FOR SOLO approval. www.vsb.org/pro-guidelines/index.php/rule_changes/ PRACTITIONERS item/revisions_to_rule_1.1_competence Solo practitioner? You may be able to lower your health insurance Council also voted to send three amendments to Paragraph 13 rates while getting better coverage with the passage of SB 672. to the Supreme Court. More information: http://www.vsb.org/site/news/item/solo_practi- www.vsb.org/pro-guidelines/index.php/rule_changes/item/para- tioners_health_insurance graph_13_1_and_13_9 www.vsb.org Vol. 67 | June 2018 | VIRGINIA LAWYER 61 Virginia Lawyer Register

NOMINATIONS SOUGHT FOR TWO PRO BONO AWARDS the VSB Council for consideration at its October meeting. All The Access to Legal Services Committee of the Virginia State appointments are made by the Supreme Court of Virginia. Bar is seeking nominations for the Lewis F. Powell Jr. Pro Bono Award and the Frankie Muse Freeman Organizational Pro Bono Vacancies in 2019 are listed below. All appointments or elections Award. The nomination deadline is August 1, 2018. www.vsb.org/ will be for the terms specified, beginning on July 1, 2019. site/sections/pro_bono/awards Council Members at Large: 4 lawyer vacancies (of which 2 DUES STATEMENTS MAILED incumbents are not eligible for reappointment, 1 incumbent is Dues statements were mailed June 15. The annual dues must be eligible for reappointment to a second term and 1 incumbent has received at the Virginia State Bar by July 31, or delinquency fees resigned). May serve 2 consecutive 3-year terms. will be assessed. All active members must pay the Clients’ Protec- tion Fund assessment and provide a completed and signed Man- Disciplinary Board: 6 lawyer vacancies and 1 lay member vacancy datory Certification Regarding Professional Liability Insurance, (of which 4 lawyer members are not eligible for reappointment also by July 31. Separate fines will be assessed for unpaid dues, and 2 current members are eligible for reappointment to a second unpaid CPF fees, and incomplete liability insurance certifications. term, and 1 lay member is eligible for reappointment). District You may renew your membership, certify your liability insurance committee service is required. May serve 2 consecutive 3-year coverage, join VSB sections, and pay your dues online by going terms. to Member Login on the VSB home page. Corporate Counsel Registrants may also use this feature. Mandatory Continuing Legal Education Board: 3 lawyer vacan- What’s Different on Your Dues Statement this Year? cies (of which 2 members are not eligible for reappointment and The Clients’ Protections Fund annual assessment on active 1 current member is eligible for reappointment to a second term). Virginia lawyers has changed from $25 to $10. May serve 2 consecutive 3-year terms. The rules and requirements behind emeritus designation have changed to encourage more lawyers to consider it. See page Nominations, along with a brief résumé, should be sent by 45 for more information. September 7, 2018, to Doris Henderson Causey, NOMINATIONS SOUGHT FOR BOARD AND COMMITTEE Chair, VSB Nominating Committee, Virginia State Bar, VACANCIES 1111 E. Main St., Suite 700, Richmond, VA 23219-0026, Volunteers are needed to serve the Virginia State Bar’s boards and or emailed to [email protected]. committees. The Nominating Committee will refer nominees to

VIRGINIA STATE BAR CLIENTS’ PROTECTION FUND BOARD AWARDS $19,440.00 TO FORMER CLIENTS The Virginia State Bar Clients’ Protection Fund Board awarded $13,640.00 in reimbursement to former clients of three Virginia attorneys at its most recent meeting on May 4, 2018. In addition, the board authorized payments totaling $5,800.00 to former clients of Karen M. Kennedy and Jud Andrew Fischel, whose claims were approved in January 2018, but subject to a reconsideration request by the subject attorneys, then affirmed in May 2018. Details of the payments are:

Docket Number Respondent’s Name Address of Record Amount Paid Type of Case 18-555-003124 Karen M. Kennedy Fredericksburg, VA $3,300.00 Unearned fees/ Consumer Law 18-555-003126 Jud Andrew Fischel Warrenton, VA $2,500.00 Unearned fees/ Civil Law - State 18-555-003142 Jean Jerome Dandy Richmond, VA $2,250.00 Unearned fees/Landlord/Tenant Ngando Ekwalla 18-555-003146 Karen M. Kennedy Fredericksburg, VA $6,190.00 Unearned fees/Consumer Credit/ Real Estate 18-555-003150 John Fredrick McGarvey Glen Allen, VA $3,200.00 Unearned fees/Criminal Law 18-555-003160 John Fredrick McGarvey Glen Allen, VA $2,000.00 Unearned fees/Criminal Law

The Virginia State Bar Clients’ Protection Fund was created by the Supreme Court of Virginia in 1976 to reimburse persons who suffer a financial loss because of dishonest conduct by a Virginia lawyer. Awards from the Clients’ Protection Fund are discretionary and are not a matter of right. The fund is not taxpayer funded, but is funded by Virginia lawyers who are assessed an annual fee of up to $25. For more information on the fund, go to https://www.vsb.org/site/public/clients-protection-fund.

If you have any questions, you may contact Vivian R. Byrd, Administrator to Clients’ Protection Fund, at (804) 775-0572 or email [email protected].

62 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org Professional Notices

Hunton & Williams LLP has changed Robert Cherin Award for Harman Claytor Corrigan its name to Hunton Andrews Kurth Outstanding Deputy or & Wellman LLP following a merger with Andrews Assistant Local Government welcomed Saemi Kurth Kenyon LLP. The combined firm Attorney” at the LGA’s Murphy, Britton R. has more than 1,000 lawyers worldwide, recently concluded spring Wight and Charles M. including more than 200 lawyers in conference in Roanoke, McAndrews Matthews to the firm. Murphy Richmond, approximately 300 lawyers in Virginia. Murphy joins the Richmond four Texas offices, and more office as a senior associate than 150 lawyers each in Burtch Law PLLC in and will defend claims in- New York and Washington. Richmond has added Barry volving civil rights, wrong- George C. Howell III of D. Gabay to its ranks. ful death, personal injury, Richmond and New York Gabay recently moved from construction defect, logging/ Wight serves as the chair of the Washington D.C. to join the trucking accident, malicious Executive Committee. Howell firm. Prior, he was associate Gabay prosecution, excessive force, counsel for the Board of premises and professional Bean, Kinney & Korman Veterans Appeals where he adjudicat- liability. Wight joins the announced that Joseph L. ed claims for entitlement to disability DC/Metro office as a senior Meadows has joined the compensation, survivors’ benefits and associate and will focus his Matthews firm as a shareholder. Mr. educational assistance. practice on general civil Meadows is a trial attorney litigation. Matthews joins the Richmond who focuses his practice Meadows Benjamin Chew has joined office as a junior associate and will focus on complex civil litigation, international law firm his practice on general civil litigation. primarily in the areas of internet defa- Brown Rudnick as a partner mation/disparagement and cyber-attack in their litigation practice, The William & Mary Law School matters. working out of both the Alumni Association honored Beth Washington D.C. and Irvine, Chew Hopkins with The Virginia Museum of California offices. Chew the 2018 Citizen- Fine Arts Foundation has handles a variety of high-stakes mat- Lawyer Award named Katie Wallmeyer ters throughout the United States and during the Law Payne as its new Director abroad on behalf of eminent individuals, School’s Diploma of Government Relations. businesses, trade associations and foreign Ceremony on Payne will work to increase Payne governments. He is a Fellow of the May 13. The awareness of VMFA’s statewide contri- American College of Trial Lawyers. award is the asso- Hopkins with Dean Davison butions as she represents the museum ciation’s highest Douglas before local, state and federal legislators recognition and and officials on issues that affect re- is given annually to a graduate or friend sources and support for the Museum’s of the Law School who has made “a mission. Payne joins VMFA with nearly lifetime commitment to citizenship and 10 years of experience in government leadership.” relations from working with Williams Mullen, LLP. The William & Mary Law School Alumni Association James Wheaton, previously recognized M. Cabell a partner with Troutman Clay with the 2018 Taylor Sanders LLP in Virginia Willett Reveley Award during Beach and General Counsel the Law School’s May 13 Clay On May 4, 2018, The Prince of Liberty Tax, has joined the Diploma Ceremony. The award rec- William County Bar Association spon- faculty of Boston University Wheaton ognizes outstanding commitment to sored the investiture of the Honorable School of Law as Clinical public service by an alumna or alumnus Associate Professor and Director of BU’s James A. Willett to the Circuit Court in who has graduated in the previous 10 Entrepreneurship & Intellectual Property Virginia’s 31st Judicial Circuit. Judge years. Law Clinic. The clinic works with ear- Willett was appointed to an eight-year ly-stage business ventures involving MIT term by the General Assembly during Northern and BU students. the 2018 session. Pictured with him, in Virginia’s Walsh, order from left to right are: daughter Liz, Colucci, Lubeley Alexandria Assistant City Attorney son Mike, daughter Becky, (behind her & Walsh has George A. McAndrews was honored father), Judge Willett, wife Kelly and the strengthened its by the Local Government Attorneys of Honorable Mary Grace O’Brien, admin- land use and real Mikulic Dales Virginia, Inc. (LGA) with the 2018 “A. istering the oath. estate practices www.vsb.org Vol. 67 | June 2018 | VIRGINIA LAWYER 63 Professional Notices with the addi- Robert Chambliss tion of four new (“Cham”) Light Jr. has associates: Steven joined the Virginia law firm Professional Notices M. Mikulic, of Gentry Locke. Mr. Light Philip C. Dales, will practice on the firm’s Email your news and professional por- Timothy J. Clewell Mernin Commercial Litigation Light trait to [email protected] for publica- Clewell, and team as of counsel. He tion in Virginia Lawyer. Professional Sarah E. Mernin. joins Gentry Locke after a 30-year career notices are free to VSB members and In addition, Michael R. Kieffer, real as legal counsel at Nationwide Insurance, may be edited for length and clarity. estate transaction attorney, has been where he rose to the position of assistant named a shareholder in the firm. general counsel.

Virginia Law School Round-up

University of Virginia National Moot Court Michaela Liberman, a 3L School of Law students Competition in Law & at William & Mary Law Philip Doerr and Trina Religion in April. School, was honored with Rizzo argued before the Law School Association’s Justice Samuel Alito Over 25 Regent Thurgood Marshall Award Liberman Wenger, Herald , and Jr. on April 8, winning Rizzo and Doerr University School of Bryant for public service. Michaela the Irving R. Kaufman Law students received will join the Legal Aid Justice Center in Securities Law Competition at Fordham summer Judicial Charlottesville after taking the bar. University — one of several first-place internships. victories for UVA Law Extramural Moot Students will Laura Bladow, a 3L at Court competitors. Competing against work with judg- William & Mary Law School, 28 teams, the pair won dinner with the es at federal, was honored with the justice, which they enjoyed alongside circuit, general Lawrence W. I’Anson Award, their final-round competitors. district, and ju- given each year by the Law Bladow venile domestic School to a graduate who Luisa Hernandez, who relations courts, shows strong evidence of great profes- came to the U.S. at age 13 as well as the Virginia Court of Appeals. sional promise through scholarship, from Venezuela, argued a character and leadership. She will clerk case before the U.S. Court Molly Banas (2L), Madeline Jones (2L), for a judge on the U.S. District Court for of Appeals for the Fourth Hernandez and Amina Jones (2L) from Regent the Eastern District of Virginia. Circuit earlier this year. The University School of Law’s Trial Washington & Lee School of Law 3L Advocacy board spent time volunteer- From Liberty University Law School, argued as a student attorney in W&L’s ing at the Norfolk and Portsmouth Bar Sarah Anne Barton will be externing with Black Lung Clinic, appealing a denial of a Associations’ mock trial competition for Justice Cleo E. Powell at the Supreme survivor’s claim. middle school kids. Court of Virginia, Anna Crib will be externing with Justice Paul Newby at the The Peggy Browning Fund William & Mary Law School’s Moot North Carolina Supreme Court, Rebekah has awarded a 10-week Court team is Meier will be externing with Justice summer fellowship to Ella ranked 10th Sam J. Ervin IV at the North Carolina Markina, a second-year in the nation Supreme Court, Natalie Rhoads and student at University of Markina according John Terry will be externing with Judge Richmond School of Law. Having to new data Randolph Beales at the Virginia Court of competed with over 400 applicants for compiled by Appeals, and Laura King will be intern- the public interest labor law fellowship, the University ing with Justice Stephen R. McCullough Markina will spend the summer working of Houston at the Supreme Court of Virginia. at Mehri & Skalet, PLLC, in Washington, DC. Law Center. As one of the top 16 teams, Helena Pereira was awarded a Blackstone the school has qualified to compete in Fellowship for the summer and will be Regent University School of Law’s the University of Houston Law Center’s externing at Kean & Matney, LLC in Abigail Wenger (2L), Ariel Bryant (2L), annual Andrews Kurth Kenyon Moot Farmington, CT. and Katlyn Herald (2L) won 1st place Court National Championship which and received the Best Brief Award will be held in January 2019. at Touro Law Center’s Fifth Annual

64 VIRGINIA LAWYER | June 2018 | Vol. 67 www.vsb.org Classified Ads

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We at Neifeld IP Law, PC, would Provides legal services to various like to be your patent coun- Sentinal Integrated Services 10 City departments, boards and sel. Check us out on the web Towncenter Partners 10 commissions, advising groups at www.neifeld.com. Reach us Virginia State Bar Members’ Insurance Center ...... 9 on legal matters. Attends meet- by telephone at (703) 548-2663. www.vsb.org Vol. 67 | June 2018 | VIRGINIA LAWYER 65 80th Annual Meeting

2018 ANNUAL – 1938 MEETING

We Came, We Saw, We Mingled: 2018 Annual Meeting Recap ANNUAL The 2018 Annual Meeting in Virginia Beach drew over 600 attendees and 1938 – 2018 MEETING their families including three Supreme Court of Virginia justices, as well as VIRGINIA STATE BAR JUNE 14-17 2018 members of the judiciary from all levels and lawyers from across the com- VIRGINIA BEACH monwealth. Unlike the previous two years, the meeting featured beautiful weather and sunny skies.

Leonard C. Heath Jr. of Newport News was inducted as the new VSB president and Marni E. Byrum of Alexandria be- came president-elect. Doris Henderson Causey of Richmond passed the baton to Heath at the Friday evening banquet where Heath told the crowd that lawyer well-being would be the focus of his year as president because, “To be a good lawyer, one has to be a healthy lawyer.” Heath went on to quote Lawrence J. Fox, a former chair of the ABA ethics com- mittee who said in 1999: “Each of us is an officer of the court, each of us is licensed with power to start law suits, subpoena witnesses, opine regarding transactions, stand between our clients 1 and the awesome power of the state. It is we who are charged with undertaking pro bono services, defending the indepen- dence of the judiciary, accepting court ap- pointments, providing volunteer services for our bar associations, recommending discipline of our own, teaching continu- ing legal education courses, explaining our system to the public and working to improve the laws and legal institutions.” These powerful responsibilities, concluded Heath, require “good lawyers who are in 2 3 good health.” 1: Marni E. Byrum, president-elect, Leonard C. Heath Jr., president, and Doris Henderson Causey, immediate past-presi- At the General Session, Heath dent at the 2018 Annual Meeting. reviewed council and Supreme Court of 2: Heath is sworn in by the Honorable William C. Mims of the Supreme Court of Virginia. 3: Causey passes the baton to Heath at the Friday evening banquet. continued on page 68

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2018 ANNUAL – 1938 MEETING

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1: William R. Rakes (left) and John M. Bredehoft (right) with Stephen A. Isaacs of the Virginia Board of Bar Examiners, recipient of the 2018 Rakes Leadership in Education Award sponsored by Gentry Locke and the VSB Education Section. 2: Immediate past-president Doris Henderson Causey presents Grayson P. Hanes of Reed Smith with the General Practice 3 Section’s Tradition of Excellence Award. 3: Priya Pidikiti (Dipti’s mother), Virginia Legal Aid Award winner Dipti Pidikiti-Smith, Oliver Hill Law Student Pro Bono Award winner Charu Kulkarni, Neeraja Kulkarni (Charu’s sis- ter), and Sulekha Kulkarni (Charu’s mother) at the Legal Aid Luncheon. 4: C.H. “Chuck” Slemp III receives the Young Lawyer of the Year Award from the award’s namesake the Honorable R. Edwin Burnette Jr. of the 24th Judicial Circuit in Lynchburg at 6 the General Session. 5: The Honorable Rupen R. Shah receives the Clarence M. Dunnaville Jr. Achievement Award from Carol H. Capsalis of the Diversity Conference. 6: Clarence M. Dunnaville Jr. at the award presentation in his honor. 5 7: VSB Executive Director Karen A. Gould presents Causey with a caricature of she and her family as a memento of her historic See more photos on our Flickr year as VSB president. web page: http://bit.ly/2tyjnpD

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Virginia actions and emphasized the importance of all lawyers submitting comments on issues when comments are sought by the court or the VSB. Said Heath, “Every single comment is reviewed by members of council and ultimately the Supreme Court, and your comments can make the difference in deciding issues affecting law in the commonwealth.” Meeting attendees were capable of acquiring up to 8 MCLE credits, and none was more popular than “Lawyer Feud” 3 4 on Saturday which featured a game show style panel comprised of judges from around the state, including Justices Cleo E. Powell and S. Bernard Goodwyn of the Supreme Court of Virginia. Hosted by the Young Lawyers Conference, the game show featured the Honorable Rossie D. Alston Jr. as the host, and teams from the 5 Young Lawyers Conference, the Diversity Conference, and VSB past presidents. It 1: Doris Henderson Causey and the crowd give new VSB presi- is perhaps the only forum in the com- dent Leonard C. Heath Jr. a standing ovation. monwealth where one judge would refer 2: Justice William C. Mims addresses the guests at the ban- to another as Game of Thrones character quet. “Khaleesi, with her twin dragons, Reversed 3: Former VSB president Kevin Martingayle with Justice and Remanded.” Bernard Goodwyn of the Supreme Court of Virginia and VSB president Leonard Heath at the Rakes Award presentation. Other fun was had during the 5k race, the volleyball tournament, the Fore 4: Len Heath delivers his acceptance speech at the banquet. Diversity golf tournament, the opening 5: At the Council Reception, retiring council members receive reception and the banquet, sponsored plaques commemorating their years of service. by the McCammon Group. If you have 6: Jay Speer, executive director of the Virginia Poverty Law Center, presenting Kathy Pryor, staff attorney for the VPLC, suggestions or ideas for improving the 6 Annual Meeting or would like to get with a certificate of recognition for her many years of service at the Legal Aid Luncheon. involved, please contact Maureen Stengel at [email protected] or (804) 775-0517. We sincerely hope to see you next year in Virginia Beach!

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5 1: The recipients of the Senior Lawyers Conference 50 Year Award who have been 6 members of the bar for 50 years. 2: Mentees from the Mentor/Mentee program at the Opening Reception. 3: The Diversity Conference’s Mentors and Mentees gather after the Section & Conferences Joint Luncheon. 4: Ashden Fein of Covington & Burling LLP speaks at a CLE on cybersecurity. 5: Hon. Michael S. Nachmanoff moderates a CLE panel about protests and the First Amendment. 6: A CLE panel discussing dispute resolution. 7: A CLE on “Successful Appellate Practice from the Trial Court to the Appellate Court” featuring Justice Bernard Goodwyn of the Supreme Court of Virginia and Hon. Michael F. Urbanski.

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1: Doris Henderson Causey and Alan McGraw present Jay Myerson (center) with the Local Bar Leader of the Year Award at the Conference of Local and Specialty Bar Associations (CLSBA) breakfast. 2: Doris Henderson Causey and Alan McGraw present Richard Gray, immediate past president of the Fairfax Bar 6 Association, (center) with the Bar Association of the Year Award at the CLSBA breakfast. 3: The leadership of the CLSBA. 4: The judges of the Lawyer Feud CLE included Hon. Rossie D. 7 Alston Jr. as host, as well as Hon. S. Bernard Goodwyn, Hon. John A. Gibney Jr., Hon. Robert J. Humphreys, Hon. Kimberly A. Irving, Hon. Cleo E. Powell, and Hon. John M. Tran. 5: The Lawyer Feud Red Team was fielded from members of the Diversity Conference. 8 6: The Green Team included leadership from the Young Lawyers Conference. 7: Anne Holton with Virginia Legal Aid Award winner Dipti Pidikiti-Smith at the Legal Aid Luncheon. 8: Steve Isaacs, recipient of the Rakes Leadership in Education Award, with his family. 9: From left to right, Susan Bower, Kalei Memmer, Kai Memmer, and VSB President-elect Marni Byrum at the Rakes Award reception.

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9 8 10 1: The winners of the Fore Diversity golf tournament were Kevin Wilson, Judge James Spencer, Sherray Gravelly, and Richard Greenberg (not pictured) with tournament organizer Eva N. Juncker. 2: The second-place golf team included Frank Reynolds, John O’Neil, Matthew O’Neil, and Gage Landis. 3: Eva Juncker (front), with Carole Capsalis (l), Doris Henderson Causey (r), Kathryn Dickerson (rear left) and Robert Holloman at the golf tournament. 4: Family Bingo, sponsored by Walker Jones PC, always means lots of smiles. 5: And cash prizes! 6: Racers line up for the 5K Run in the Sun sponsored by Virginia Lawyers Weekly and the YLC. 7: The David T. Stitt Memorial Volleyball tournament, sponsored by Harris, Matthews, & Crowder and the YLC always brings out some stiff competition. 8: Winners of the 5k Run in the Sun. 9: A family of racers. 10: Yoga on the beach.

JUNE 14–17 2018 • VIRGINIA BEACH, VIRGINIA www.vsb.org Vol. 67 | June 2018 | VIRGINIA LAWYER 71