VirginiaVirginia LawyerLawyerVOL. 66/NO. 1 • JUNE 2017 VIRGINIA LAWYER REGISTER The Official Publication of the Virginia State Bar
2017–18 VSB President Doris Henderson Causey Family Law Legal Aid Persists Lawyers as Problem Solvers Highlights of the 79th Annual Meeting PASSION FOR LAW PURPOSE FOR LIFE
OUR STUDENTS RECEIVE UNPARALLELED SKILLS TRAINING SO THEY CAN START MAKING A DIFFERENCE IMMEDIATELY.
• A preLaw magazine top 20 school for public defenders and prosecutors • #2 in July 2016 Virginia Bar Exam passage among first-time test takers • A National Jurist top 20 school for practical training — highest in Virginia [email protected] (434) 592-5300 • Awarded an A- in Trial Advocacy concentration by preLaw magazine Liberty.edu/VALaw facebook.com/LibertyUniversityLaw LEARN HOW LIBERTY LAW IS HELPING THE NEXT GENERATION OF LAWYERS FIND THEIR PASSION FOR LAW AND PURPOSE FOR LIFE. Virginia Lawyer The Official Publication of the Virginia State Bar June 2017 Volume 66/Number 1
Features
2017–18 VSB PRESIDENT Noteworthy
8 Doris Henderson Causey: A Different Voice, VSB NEWS A Different Perspective 39 Highlights of the June 15, 2017, by Deirdre Norman Virginia State Bar Council Meeting 39 Leonard C. Heath Jr. is President-Elect of the VSB 40 Indigent Criminal GENERAL INTEREST Defense Seminar 40 VSB TECHSHOW 22 Lawyer as Problem Solver: Joint Alternative Dispute Resolution Committee’s Top Ten Tips 41 In Memoriam by Deborah Wood Blevins and William T. Fitzhugh 42 VSB Honors Attorneys 24 The Tangible Fruits of Giving Back 44 Past Presidents’ Dinner by Deirdre Norman 45 Local and Specialty Bar Association Awards of Merit 26 It Was in Her Heart to Assist, and She Has Done it Well by Gordon Hickey 46 Evangeline Ellis, of George Mason High School, Wins Annual Law in Society Contest FAMILY LAW SECTION PASSION FOR LAW 29 Spousal Support Litigation in an Era of Departments Social Change 6 Correction by Lawrence P. Vance 47 Conference of Local and Specialty Bar Associations 30 To Retire, or Not to Retire: That Is the Question PURPOSE FOR LIFE by Lawrence D. Diehl 51 CLE Calendar 55 Professional Notices 33 Unfaithfully Yours: Re-Examining Adultery as a Bar to Spousal Support 57 Classified Ads and by Brian M. Hirsch, Esquire Advertiser’s Index 35 Mandatory Income Imputation — When “Discretion” Isn’t Discretionary 58 VSB Annual Meeting Highlights by Samuel A. Leven Columns OUR STUDENTS RECEIVE UNPARALLELED SKILLS TRAINING SO VIRGINIA LAWYER REGISTER 12 President’s Message THEY CAN START MAKING A DIFFERENCE IMMEDIATELY. 52 Disciplinary Summaries 54 Mailing Of MCLE Interim Report 14 Executive Director’s Message Has Been Discontinued 16 Ethics Counsel’s Message • A preLaw magazine top 20 school for public defenders and prosecutors 54 Disciplinary Proceedings 54 Nominations Sought For Two Pro 54 Notices To Members 18 Legal Aid • #2 in July 2016 Virginia Bar Exam passage among first-time test takers Bono Awards • A National Jurist top 20 school for practical training — highest in Virginia [email protected] 54 MCLE Administrative Suspensions 48 Law Libraries (434) 592-5300 54 Nominations Sought For Board 49 Technology and the Practice of Law • Awarded an A- in Trial Advocacy concentration by preLaw magazine Liberty.edu/VALaw 54 Dues Statements Mailed And Committee Vacancies facebook.com/LibertyUniversityLaw LEARN HOW LIBERTY LAW IS HELPING THE NEXT GENERATION OF Cover: Doris Henderson Causey with her husband, Tracy Causey, and their children: Caleb, Jillian, and Joshua. Photo by Deirdre Norman; post production by Sky Noir Photography. LAWYERS FIND THEIR PASSION FOR LAW AND PURPOSE FOR LIFE. Virginia Lawyer Virginia State Bar The Official Publication of the Virginia State Bar 2017–18 OFFICERS 17th Circuit Doris Henderson Causey, President Timothy B. Beason, Arlington http://www.vsb.org Leonard C. Heath, Jr., President-elect John H. Crouch, Arlington Michael W. Robinson, Immediate Past President Adam D. Elfenbein, Arlington Editor: Karen A. Gould, Executive Director and Chief Gregory T. Hunter, Arlington Gordon Hickey Operating Officer William H. Miller, Arlington ([email protected]) EXECUTIVE COMMITTEE 18th Circuit Doris Henderson Causey, Richmond, President Barbara S. Anderson, Alexandria Assistant Editor and Advertising: Leonard C. Heath, Jr., President-elect Foster S. B. Friedman, Alexandria Stacey Rose Harris, Alexandria Deirdre Norman Michael W. Robinson, Tysons Corner, Immediate Past President ([email protected]) 19th Circuit Brian L. Buniva, Richmond Brian C. Drummond, Fairfax Marni E. Byrum, Alexandria David J. Gogal, Fairfax Graphic Design: Nancy C. Dickenson, Abingdon Richard A. Gray, Fairfax Caryn B. Persinger Eugene M. Elliott, Roanoke Chidi I. James, Fairfax ([email protected]) Beverly P. Leatherbury, Eastville Douglas R. Kay, Tysons Corner Jay B. Myerson, Reston David L. Marks, Fairfax B. Alan McGraw, Tazewell, CLBA Chair Gary H. Moliken, Fairfax Carole H. Capsalis, Leesburg, Diversity Jay B. Myerson, Reston VIRGINIA LAWYER (USPS 660-120, ISSN 0899-9473) Conference Chair Luis A. Perez, Falls Church is published six times a year by the Virginia State Bar, Robert E. Hawthorne, Kenbridge, SLC Chair William B. Porter, Fairfax Christopher R. Fortier, Oakton, YLC President Dennis J. Quinn, Tysons 1111 East Main Street, Suite 700, Richmond, Virginia William L. Schmidt, Fairfax COUNCIL 23219-0026; Telephone: (804) 775-0500. Subscription Melinda L. VanLowe, Fairfax Rates: $18.00 per year for non-members. This material 1st Circuit Edward L. Weiner, Fairfax Andrew D. Kubovcik, Chesapeake is presented with the understanding that the publisher 20th Circuit 2nd Circuit Christine H. Mougin-Boal, Leesburg and the authors do not render any legal, accounting, Ryan G. Ferguson, Virginia Beach Susan F. Pierce, Warrenton or other professional service. It is intended for use by Steven G. Owen, Virginia Beach 21st Circuit Daniel M. Schieble, Virginia Beach attorneys licensed to practice law in Virginia. Because of Joan Ziglar, Martinsville 3rd Circuit the rapidly changing nature of the law, information 22nd Circuit Nicholas D. Renninger, Portsmouth Lee H. Turpin, Chatham contained in this publication may become outdated. As 4th Circuit 23rd Circuit a result, an attorney using this material must always Ann B. Brogan, Norfolk Eugene M. Elliott, Jr., Roanoke research original sources of authority and update Gary A. Bryant, Norfolk K. Brett Marston, Roanoke Neil S. 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Doris Henderson Causey, because of the powerful influence famed the new president of the Virginia State civil rights lawyer Alvin O. Chambliss Jr. Bar, has the warm smile and the easy had on her family. Causey, the young- way of an old friend. When asked what est of six children, grew up in Oxford, people would be most surprised to Mississippi, home of William Faulkner know about her, she breaks into a foot- and the University of Mississippi — ball cheer and volunteers laughingly: where Causey’s mother was a professor “That I was a cheerleader in high school of education, and her father taught shop up on top of the pyramid. I was tiny at Oxford High School. Chambliss, often back then. And that I was a band goober described as “the last original civil rights in high school and college. I played the attorney in America,” was a close friend saxophone for the Ole Miss band and of her parents who often came to dinner I played ‘Dixie’ at football games.” She and expounded on his latest causes. says that she and her husband, who met “He was always suing someone try- Doris Henderson Causey at the Central Virginia while they were students at Ole Miss, are ing to make things fair in Mississippi,” Legal Aid Society office still “huge Rebels fans,” and it is easy to says Causey. “He was trying to make imagine her making many a friend at a Causey apologizes for the paint smell sure that schools had black athletes, tailgate party. and settles into a chair right in the store- black cheerleaders, that everyone had In the bustling legal aid office she front window that allows her to smile the same equipment and the same manages in Richmond, Causey pauses to and wave at the passersby. Across the chance to do things. Sometimes he was gently admonish an elderly gentleman street, construction workers prepare the even suing my mother in her capacity waiting with divorce paperwork to “stop site where a statue of Maggie L. Walker, on the Oxford City school board.” getting married, or at least wait until an African American teacher and the Chambliss is best known for his you are divorced,” and as he laughs she first woman ever to charter a bank in the 30-year role in Ayers v. Barbour, which points to her executive secretary and Unites States, will soon be placed. sought to redress Mississippi’s lega- says, “You should actually be interview- On June 16, Causey was inducted cy of underfunding historically black ing her. She is the one who makes it as the Virginia State Bar’s 79th pres- universities. He instilled in Causey not happen around here.” ident, making her both the bar’s first only an interest in justice and the law, Located on a rapidly gentrifying African American president and the first but also an appreciation for legal aid. section of Broad Street in downtown president to come from Virginia’s Legal “I saw Chambliss, Buck Buchanan, and Richmond, the Central Virginia Legal Aid community. “A girl in Mississippi Ava Jackson in small town Mississippi Aid office shares a glass-windowed doesn’t grow up thinking ‘I’m going to working to help people, to change storefront with a beauty business be president of the Virginia bar some- people’s lives,” she says. Chambliss’ wife, called Glam Squad. On one side, young day,’” says Causey. “I see this moment Josephine, also shaped Causey. She women sit in white leather chairs getting not only as an honor, but as a privilege.” was Causey’s 7th grade math teacher, their hair and makeup done for photo In her office, Causey displays a and it was her influence and excellent sessions for the big day. On the other framed collage she made in third grade math skills that led Causey to graduate side, Causey sits to be interviewed in a of herself as a lawyer when her class from Ole Miss with a double major in makeshift space freshly painted after a was asked to create what they wanted to political science and mathematics and a recent blaze caused when an upstairs be when they grew up. Causey says she desire to teach math. Causey went on to resident threw water on a grease fire. knew she wanted to be a lawyer mostly get her master’s degree in education and
8 VIRGINIA LAWYER | June 2017 | Vol. 66 www.vsb.org 2017–18 VSB President
Doris Henderson Causey with her husband, Tracy Causey, and their children: Caleb, Jillian, and Joshua began a career as an educator. “Teaching Doris eventually moved to Texas to and Joshua, 9, who loves gadgets and was and is my first love,” says Causey. fulfill her childhood dream of becoming movies. Speaking of her mother and Josephine a lawyer and attended Texas Southern Causey and her husband relocated Chambliss and their role in molding University’s Thurgood Marshall School to Virginia before she ever had a chance her goals and ambitions Causey says, of Law, so that she could be closer to her to practice in Texas, and she found her- “There’s the old saying that ‘Behind sister, who was going through her med- self in a new city with a new profession every great man is a great woman.’ I’ve ical residency at Baylor University and and like many new lawyers had to figure often found it to be that behind every her brother who worked in Houston. out where to connect. great woman achieving her goals there After passing the Virginia bar, Ironically, Alvin Chambliss would end are greater women who inspired them.” Causey says she looked for her place in up being her law professor there. Causey’s mother’s family still owns the Richmond legal community and Causey made her way to Richmond land in DeKalb, Mississippi, where they found it at the CVLAS. The CVLAS was fifteen years ago via her husband’s career started as sharecroppers and ended my Richmond family. I worked down as CEO of the Capital Area Health up owning 340 acres of farmland. the street at Robert Walker & Associates According to Causey, who still visits Network, a group of medical and dental and I walked there to volunteer daily. Mississippi every summer, “We call it organizations who provide care for Hon. Marilynn Goss introduced me to the country out there. The directions to low-income and uninsured residents. the ODBA and they became my family my grandparents’ house start with, “You She and Tracy, who began his career in too. The first Annual meeting I went turn past the store…’ because there the Air Force, have three children, Caleb, to; there’s Governor Wilder and Elaine really is no other way to describe it.” 15, who loves baseball; Jillian, 10, who Jones and Federal Judges, state supreme After teaching high school and marrying has a form of epilepsy called Dravet court judges, etc. I was awed and I was her college sweetheart, Tracy Lee Causey, Syndrome yet remains active in sports; floored.” www.vsb.org Vol. 66 | June 2017 | VIRGINIA LAWYER 9 2017–18 VSB President
Doris Elcenia Henderson Causey Central Virginia Legal Aid Society
Virginia State Bar: Executive Committee Council Budget and Finance Committee Better Annual Meeting Committee Bench-Bar Relations Committee Clients’ Protection Fund Study Committee on the Future of Law
Other Affiliations: City of Richmond Bar Association Old Dominion Bar Association Virginia Bar Foundation Fellow ABA Fellow ABA House of Delegates
Education: University of Mississippi, B.S. Mathematics and Political Science Tennessee State University, Masters Causey created this collage in third grade showing herself as a lawyer. of Education Texas Southern University, J.D.
Though she was president of her Causey refers to her past as a means Family: high school student body and her law of explaining the journey that took her Doris and Tracy Causey are the parents of school class, and was on the student from private practice to legal aid. When three children: Caleb, Jillian, and Joshua government at Ole Miss, Causey never she graduated from law school she had a defined goal to get involved in the recalls, “My mama said, ‘You going to bar. Curtis Hairston always said, ‘You work in legal aid?’ and I said, ‘No, I want right, and the bar must argue for what’s need to get involved,’” she recalls. “One to make some money!’” she finishes with right as well. You have to address what’s day a card came in the mail looking for a laugh. But she had grown up watching right.” people to run for bar council, so I did. I US Attorneys Calvin “Buck” Buchanan “I like that I am the first African was the only woman to get elected, and and Ava N. Jackson do considerable American to have this role, the first (VSB executive director) Karen Gould good for others with their law degrees. African American woman, and also that asked me to come meet her. I looked up “In small town Mississippi, we saw these I am the first legal aid lawyer,” Causey at all the past presidents of the bar and I lawyers using legal aid to do great things says of her historic bar firsts. “We have saw there were no black presidents, and for good people. I started volunteering seen so many big lawyers have this role maybe that’s where it started.” here at Central Virginia Legal Aid, and — it’s important to show that legal aid Of her hopes for the coming year, it eventually became my profession.” lawyers can do it too.” Causey says, “I want people to see that Causey draws the connection between When asked how she feels about you too can be a bar leader. I bring a dif- the legal aid community and the bar by her upcoming year and the role she will ferent voice. I bring a different perspec- saying, “I’m not going to win every case. forever hold in bar history she says, “I tive. I will see places where there needs But I am going to tell someone’s story. think of myself in this role as: It’s time. I to be some diversity. Some people will There are people being charged $3,000 am leading a historic bar where there are say this does not matter, but to people of in rent and deposits who find them- lots of traditions, and I am glad I did it. my race it does. You want to be includ- selves with rats and filth, and that’s not I’m glad I put my name in the hat.” ed. You want to have your say.” right. You have to go and argue what’s
10 VIRGINIA LAWYER | June 2017 | Vol. 66 www.vsb.org R
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I am honored and humbled tirement. I have enjoyed learning from 2. Pro bono reporting and decreas- to serve as the 79th president of the them. ing the access to justice gap; Virginia State Bar. In taking the oath Our local and specialty bars are 3. Advancing the availability of legal of office, I am proud to be the first among the best things under the services provided to all; African American and first legal VSB umbrella, and I must single out 4. Improving the quality of legal aid attorney to serve as president. the Old Dominion Bar Association services provided to all; and The 79th Annual Meeting was truly (ODBA) as one example for all the 5. Increasing member participation History in the Making — I hope to see things it has done for me. As a young with Virginia.freelegalanswers.org many more of you at the 80th Annual lawyer, I was awed by the plethora of to at least 10 percent. Meeting next year. Since 1938, the bar knowledge, resources, encouragement, I hope to see more volunteers of has continued to evolve and succeed and its family-like atmosphere. The diverse backgrounds involved in the in discovering new ways to uphold ODBA helped me find my place in VSB, as well as smaller bars through- our mission while promoting access to the Virginia legal community, and I out the state. As you know, the bar is justice to all Virginians. I truly believe encourage all young lawyers to seek based on a volunteerism system and that the Virginia State Bar is one of the out a local bar and become active in volunteers are always needed and most exemplary mandatory bars in the it. I thank all the members for your welcomed. Thus, I encourage you to nation. support and encouragement. volunteer to serve on a committee, run To Past-presidents Michael After seventy-seven years of being for bar counsel, participate on a CLE, Robinson and Ed Weiner, I thank Virginia’s advocates for equal justice, make nominations, etc. We all should you both for your encouragement, the ODBA has achieved one of the or- be informed by diverse perspectives. It guidance, and vision. I applaud your ganization’s missions — of being more enhances the limitless possibilities of continued contributions, commitment involved with the Virginia State Bar. As our mission and membership. to the mission of the bar, and time a member of the ODBA, I am proud Legal Aid provides legal assistance in serving the bar and the common- to serve as president of the Virginia to low-income client communities. wealth. I am truly grateful for the State Bar. Thank you for teaching We are truly in desperate need given service, commitment, guidance, wis- me Virginia’s African American legal the most recent events. There are over dom, and contributions of all the past history, introducing me to Mr. Oliver one million Virginians who qualify for presidents with whom I have worked. Hill, and supporting me with the legal aid assistance. Yet, there are only And I look forward to working with largest number of ODBA members at approximately 135 attorneys to serve President-elect Len Heath. any VSB Annual Meeting banquet. It them. Legal aid offices throughout the I must thank the bar staff for their is truly because of your words, actions, state need volunteers and donors to incredible hard work, energy, and and encouragement that I have been help meet the needs of our poor and commitment to over 50,000 attorneys able to prepare for and serve in this underserved. Please consider sharing and the various conferences, sections, office. I continue to encourage every- your time and expertise with those and committees. They are the foun- one to be more active in the bar — it is who cannot afford a lawyer. I think dation of the Virginia State Bar, the your professional organization, and it you will find that the rewards far ex- often invisible engine that keeps us should reflect our evolving profession ceed the loss of some of your free time. going. I am grateful for our strong and as it carries out the mission mandated I would like to see the access to committed executive director, Karen by the Supreme Court of Virginia. justice gap decrease. How can we Gould. Sadly, this year we are losing During my tenure I seek to em- measure this? How do we know exactly three wonderful staff members, Joy phasize the following: the need that is being met? We need Harvey, Elizabeth “Bet” Keller, and data. As a mathematics major, I know Barbara Lanier. They have each spent 1. More volunteers of diverse back- that numbers are the basis for address- years of their lives devoted to the bar grounds involved on every level of ing and serving the need. We need and we wish them the best in their re- the bar and within smaller bars; numbers. We need pro bono reporting
12 VIRGINIA LAWYER | June 2017 | Vol. 66 www.vsb.org President’s Message for all 50,000 members. This will help The VSB’s mission is “to regulate you can participate at any time or from to assess the length of the gap, what we the legal profession of Virginia; to anywhere. Please sign up, and if you are can do to decrease it, and analyze the advance the availability and quality of already signed up then encourage others data for areas of need. I welcome your legal services provided to the people of to sign up. input on this issue, and I hope we reach Virginia; and to assist in improving the The Annual Meeting was truly a point where lawyers are providing us legal profession and the judicial system.” History in the Making. I am humbled by with this vital data. I ask that we emphasize: (1) advancing your trust, and I zealously look forward One day there will be a right to an the availability of legal services provided to working with each of you during attorney in civil cases, but until then to the people of Virginia and (2) the the next year. As many know, I live by legal aid needs help with those cases of quality of legal services provided to the the starfish rule (if you can only throw everyday life. Legal aid attorneys must people of Virginia. one back in the ocean out of millions, handle home foreclosures, evictions, We must work together to achieve you have still made a difference in the landlord/tenant disputes, divorce, custo- these goals. Increasing funding to legal world) and I encourage everyone to dy, support, domestic violence/protec- aid programs throughout the state and make a difference in someone’s life, your tive orders, unemployment, bankrupt- increasing pro bono volunteers will help community, and the legal profession. cies, writs of fieri facias, garnishments, to advance this mission. The VSB and “Helping one person (community) and more. The civil dockets are long many legal aid programs are collaborat- might not change the whole world, but and tedious, especially if the parties are ing with other programs and attorneys it could change the world for that one unrepresented. Pro bono assistance or to address some of the immediate need. person (community).” representation will help all: citizens of Currently, out of over 50,000 attorneys, I am extremely proud and honored Virginia, the clerks, judges, and court we only have a little over 200 attor- to serve as the 79th VSB president — the personnel. I know the bench will greatly neys signed up for the VSB’s Virginia. first African American and first legal appreciate the much needed assistance, freelegalanswers.org. During my term, aid attorney in the history of the VSB and so will those people you are willing I challenge all lawyers to meet a goal of to serve as president. I look forward to to help. a 10 percent sign up rate. It’s free, and serving.
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www.vsb.org Vol. 66 | June 2017 | VIRGINIA LAWYER 13 Executive Director’s Message by Karen A. Gould Major Shift in How Lawyer Advertising Will Be Regulated in Virginia
After a long study, the Virginia principles: (1) the advertising rules • The required disclaimer for state- State Bar’s Standing Committee on should be focused on the appropriate ments of case results has been Legal Ethics proposed major changes regulatory purpose, protecting the removed from Rule 7.1, again shifting to the Rules of Professional Conduct public; (2) the rules must facially and to a general false or misleading on how advertising should be regulat- as applied withstand constitutional standard rather than a mandatory ed in Virginia. It relied for guidance, scrutiny; (3) the rules must be legally technical requirement; in large part, on the Association of and practically enforceable; and (4) the • Rule 7.3, which addresses solicita- Professional Responsibility Lawyers rules should be practical in application tion of clients, is amended to more “2015 Report of the Committee on to evolving means of communication explicitly define the term “solicita- Lawyer Advertising Regulation.” The and promotion of legal services. tion” and to expand the comments to VSB Council approved the proposed The polestar of the proposed re- more clearly explain its application to amendments by a vote of 65 to 1 at its vised rules is a focus, albeit not exclu- issues such as paying for marketing meeting on February 25, 2017. sively, on the prohibition or restriction services or for lead generation. In its brief to the Supreme Court of any advertising or communication The new advertising rules effective of Virginia, the VSB stated its rationale about a lawyer’s services that is false or July 1, 2017, are as follows: for proposing the substantial revisions misleading, as broadly defined in the to the advertising rules: rule. False or misleading commercial INFORMATION ABOUT LEGAL SERVICES. speech is not constitutionally protect- The regulation of lawyer advertis- ed and harms the public. ing has been problematic for decades. RULE 7.1. Communications State bars and regulatory officials have Concerning A Lawyer’s Services. The Court approved the pro- struggled attempting to address and A lawyer shall not make a false or posed rule changes on April 17, 2017, balance legitimate regulatory goals misleading communication about the effective July 1, 2017. In summary, the with the constitutional restrictions on lawyer or the lawyer’s services. A com- advertising rules have been changed in regulating commercial speech, and munication is false or misleading if it the understandable, but legally infirm, the following manner: contains a material misrepresentation goal of “promoting professionalism” of fact or law, or omits a fact necessary or promoting the public perception • Rule 7.1 is streamlined to a single to make the statement considered as a of lawyers. More recently, the explo- admonition that communications whole not materially misleading. sion of the internet and media age has about a lawyer’s services may not be compounded these difficulties, with false or misleading; Comment radical changes in the ways people • Rules 7.4 and 7.5 are deleted, but [1] Truthful statements that are exchange information, make decisions, certain principles from those rules misleading are also prohibited by this and select professionals, and likewise are addressed in new comments, and Rule. A truthful statement is mis- the manner in which professionals reinforce appropriate limitations on leading if it omits a fact necessary to network and promote their services. the solicitation of potential clients; make the lawyer’s communication To address these issues, and strike • Claims of specialization and the considered as a whole not materially the appropriate regulatory balance, the content of firm names, previous- misleading. A truthful statement is Virginia State Bar Standing Committee ly addressed by Rules 7.4 and 7.5 also misleading if there is a substantial on Legal Ethics … has proposed and respectively, are now addressed by likelihood that it will lead a reasonable Council has endorsed significant revi- comments to Rule 7.1, because they person to formulate a specific conclu- sions to Rules 7.1-7.5 of the Rules of are specific applications of the gen- sion about the lawyer or the lawyer’s Professional Conduct. The proposed eral obligation not to make false or services for which there is no reason- revisions were guided by several basic misleading statements; able factual foundation.
14 VIRGINIA LAWYER | June 2017 | Vol. 66 www.vsb.org Executive Director’s Message
[2] A communication that truth- ble professional designation. Although (c) Every written, recorded or fully reports a lawyer’s achievements on the United States Supreme Court has electronic solicitation from a lawyer behalf of clients or former clients may held that legislation may prohibit the shall conspicuously include the words be misleading if presented so as to lead a use of trade names in professional “ADVERTISING MATERIAL” on the reasonable person to form an unjustified practice, use of such names in law outside envelope, if any, and at the expectation that the same results could practice is acceptable so long as it is not beginning and ending of any recorded be obtained for other clients in similar misleading. If a private firm uses a trade or electronic solicitation, unless the matters without reference to the specific name such as “clinic” that also includes a recipient of the solicitation: factual and legal circumstances of each geographical name such as “Springfield (1) is a lawyer; or client’s case. Similarly, an unsubstanti- Legal Clinic,” an express disclaimer (2) has a familial, personal, or prior ated comparison of the lawyer’s services that it is not a public legal aid agency professional relationship with the or fees with the services or fees of other may be required to avoid a misleading lawyer; or lawyers may be misleading if presented implication. It may be observed that (3) is one who has had prior con- with such specificity as would lead a any firm name including the name of a tact with the lawyer; or reasonable person to conclude that the deceased partner is, strictly speaking, a (4) is contacted pursuant to comparison can be substantiated. The trade name. The use of such names to court-ordered notification. inclusion of an appropriate disclaimer designate law firms has proven a useful (d) A lawyer shall not compensate, or qualifying language may preclude a means of identification. However, it is give, or promise anything of value to finding that a statement is likely to cre- misleading to use the name of a lawyer a person who is not an employee or ate unjustified expectations or otherwise not associated with the firm or a pre- lawyer in the same law firm for recom- mislead the public. decessor of the firm, or the name of a mending the lawyer’s services except [3] In communications about a nonlawyer. that a lawyer may: lawyer’s services, as in all other con- (1) pay the reasonable costs of [6] Lawyers may state or imply that texts, it is professional misconduct for advertisements or communications they practice in a partnership or other a lawyer to engage in conduct involving permitted by this Rule and Rule 7.1, organization only when that is the fact. dishonesty, fraud, deceit or misrep- including online group advertising; Lawyers sharing office facilities, but resentation which reflects adversely (2) pay the usual charges of a legal who are not in fact associated with each on the lawyer’s fitness to practice law. service plan or a not-for-profit other in a law firm, may not denominate Rule 8.4(c). See also Rule 8.4(d) for the qualified lawyer referral service; themselves as, for example, “Smith and prohibition against stating or implying (3) pay for a law practice in accor- Jones,” for that title suggests that they an ability to influence improperly a gov- dance with Rule 1.17; and are practicing law together in a firm. ernment agency or official or to achieve (4) give nominal gifts of grati- results by means that violate the Rules tude that are neither intended nor of Professional Conduct or other law. RULE 7.2. Advertising [DELETED]. reasonably expected to be a form of Areas of Expertise/Specialization compensation for recommending a [4] A lawyer may communicate the RULE 7.3. Solicitation of Clients. lawyer’s services. fact that the lawyer does or does not (a) A solicitation is a commu- practice in particular fields of law. A nication initiated by or on behalf of Comment lawyer who is a specialist in a particular a lawyer that is directed to a specific Direct Contact between Lawyers field of law by experience, specialized person known to be in need of legal and Laypersons training, or education, or is certified by services in a particular matter and that [1] A lawyer’s communication a named professional entity, may com- offers to provide, or can reasonably be typically does not constitute a solicita- municate such specialty or certification understood as offering to provide, legal tion if it is directed to the general public, so long as the statement is not false or services for that matter. such as through a billboard, an Internet misleading. (b) A lawyer shall not solicit em- banner advertisement, a website or Firm Names ployment from a potential client if: a television commercial, or if it is in [5] A firm may be designated by the (1) the potential client has made response to a request for information or names of all or some of its members, by known to the lawyer a desire not to is automatically generated in response to the names of deceased members where be solicited by the lawyer; or Internet searches. there has been a continuing succession (2) the solicitation involves harass- [2] There is far less likelihood that a in the firm’s identity or by a trade name ment, undue influence, coercion, lawyer would engage in abusive practic- such as the “ABC Legal Clinic.” A lawyer duress, compulsion, intimidation, es against an individual who is a former or law firm may also be designated by a threats or unwarranted promises of distinctive website address or compara- benefits. Advertising Rules continued on page 21 www.vsb.org Vol. 66 | June 2017 | VIRGINIA LAWYER 15 Ethics Counsel by Seth M. Guggenheim Thinking of Withdrawing? Think Again
Virginia lawyers who con- the obligation is fulfilled.” In addition, orous objection to that same lawyer’s template withdrawal from pending Rule 1.16(b)(5) permits withdrawal if withdrawal. civil litigation for nonpayment of representation poses “an unreasonable A lawyer facing the prospect of fees should consider alternatives. financial burden on the lawyer.” How- working further for a client who is They should also review the excellent ever, if the lawyer represents the client unable or unwilling to pay legal fees guidance in American Bar Association in litigation, Rule 1.16(c) applies, and must assess the situation dispassion- Formal Opinion 476.1 The relevant the lawyer must obtain leave of court ately. Should he withdraw and leave Virginia Rules of Professional Conduct before he may withdraw.2 a penurious client to fend for herself are in substance the same as the Model Whether to seek withdrawal in the with a half-finished case that she Rules cited in the ABA Opinion, which first instance is sometimes a difficult cannot afford to conclude with new concludes: question. As those in private practice counsel? Should he become aggressive well know, clients with unpaid legal with the client who can afford to pay, In moving to withdraw as counsel bills fall into two categories: those who but won’t, and threaten to withdraw in a civil proceeding based on can’t pay, and those who won’t pay. if she doesn’t, exacerbating an already a client’s failure to pay fees, a In the “can’t pay” category are clients bad situation if there is a reasonable lawyer must consider the duty whose available resources have been prospect of voluntary payment down of confidentiality under Rule 1.6 depleted during the representation. the road? and seek to reconcile that duty These clients are often embarrassed Despite the tensions created when with the court’s need for sufficient that they are unable to fulfill their a client either can’t or won’t pay her information upon which to rule financial obligations to their lawyer. bills, lawyers may not see withdrawal on the motion. Similarly, in en- They do not ordinarily dispute the as necessary if the penurious client will tertaining such a motion, a judge reasonableness of the lawyer’s fees as work out a payment plan and, perhaps, should consider the right of the an excuse for nonpayment. furnish security for payment, or if the movant’s client to confidentiality. The “won’t pay” category of recalcitrant client can be mollified This requires cooperation between clients includes those who have grown and persuaded to make a payment in lawyers and judges. If required by critical of the lawyer’s performance, full or partial satisfaction of a large the court to support the motion often challenging the reasonableness outstanding balance. If the amount of with facts relating to the represen- of the lawyer’s billing as a basis for work remaining in the client’s case is tation, a lawyer may, pursuant to nonpayment. A client may also believe not substantial, might it not be more [Model] Rule 1.6(b)(5), disclose that her lawyer will work harder and realistic to refrain from withdrawing only such confidential informa- be more motivated to bring the case before the litigation has been com- tion as is reasonably necessary for to a successful, near term conclusion pleted? A cost/benefit analysis must the court to make an informed if payment of a large outstanding bal- be applied, especially when part of decision on the motion. ance is his reward. Too often a “won’t the calculus is whether the lawyer pay” client will not discharge her might need to devote future unbillable Even if withdrawal were to mate- lawyer or agree to the lawyer’s inten- time defending his performance in rially adversely affect the interests of tion to withdraw because she would the representation and his manner of the client, Virginia Rule of Professional have to start over with a new lawyer, withdrawal should he later attempt Conduct 1.16(b)(4) permits a lawyer paying another advanced fee, a portion collection of the bill or face the client’s to withdraw if “the client fails sub- of which would be devoted to the new bar complaint. stantially to fulfill an obligation to the lawyer’s getting up to speed in the With all of this said, a lawyer lawyer regarding the lawyer’s services case. There is a paradoxical element, would be wise to extricate himself and has been given reasonable warning of course, to a client’s claim that her from representation of a client with a that the lawyer will withdraw unless lawyer is doing poor work and her vig- large unpaid bill if much work remains
16 VIRGINIA LAWYER | June 2017 | Vol. 66 www.vsb.org Ethics Counsel to be done, the client is unreasonably (1) such information to evident to the lawyer that to succeed demanding, refuses to take her lawyer’s comply with law or a court he must rebut the client’s or opposing advice, has unattainable objectives, and order; [and/or] counsel’s contentions that the with- will not authorize reasonable settlement (2) such information to drawal motion must be denied, then the demands or accept reasonable settle- establish a claim or defense lawyer may make the otherwise-confi- ment offers. In these circumstances, on behalf of the lawyer in a dential disclosures under the exceptions withdrawal from representation is the controversy between the lawyer set forth above. lawyer’s only realistic course because and the client, to establish a There is a delicate balance be- stop-gap measures would be but kicking defense to a criminal charge or tween protecting the client’s interests the can down the road. civil claim against the lawyer and providing the court with sufficient No lawyer looks forward to having based upon conduct in which information to permit the lawyer to to persuade a court that he be granted the client was involved, or to secure a sound ruling on his motion to leave to withdraw, but if the lawyer han- respond to allegations in any withdraw. A lawyer who is sensitive to dles the motion ethically, as addressed proceeding concerning the the ethical issues inherent in this process below, he is in a better position to avoid lawyer’s representation of the will not be disciplined for ethical mis- the possibility of a successful bar com- client[.] conduct. plaint for having withdrawn, because the court will have “blessed” the lawyer’s As of the time a lawyer files a Seth M. Guggenheim is VSB Assistant exit from the matter in litigation, which motion to withdraw, he has not been Ethics Counsel the bar will not second-guess. ordered by a court to make disclosures It is not the fact of withdrawal that of his client’s confidential information. Endnotes: lands the lawyer in ethical hot water, There has not yet been a challenge to 1 “Confidentiality Issues when Moving to but the manner in which the lawyer his motion, made before the court. Withdraw for Nonpayment of Fees in has sought to accomplish it. Virginia Thus, neither of the exceptions which Civil Litigation” http://www.americanbar .org/content/dam/aba/images/abanews disciplinary tribunals have sanctioned permit disclosure of any confidential /FormalOpinion476Final12%2013%20 lawyers for making “noisy” withdrawals, information has been triggered. At this 2016.pdf which disparaged clients and disclosed stage, the lawyer should use plain va- 2 Note that effective July 1, 2017, their confidential information, all nilla, generic, references to his basis for § 19.2-190.2 of the Virginia Code will without cause. The status of a client’s withdrawal. Comment [3] to Rule 1.16, eliminate the need for leave of court in account, the client’s financial distress, (relating to mandatory withdrawal in certain criminal matters. The statute and details of how difficult the client court-appointed cases) suggests use of will provide that a privately retained has been are confidences protected by the term “professional considerations” counsel in any criminal case may, pursuant to the terms of a written Rule of Professional Conduct 1.6(a). in motions to withdraw. This terminol- agreement between the attorney and the Moreover, a lawyer must not “intention- ogy should be sufficient in a motion to client, withdraw from representation ally prejudice or damage a client during withdraw in a civil matter, such as for of a client without leave of court after the course of the professional relation- nonpayment of legal fees. certification of a charge by a district ship” as prohibited by Rule 1.3(c).3 A If the motion to withdraw is con- court by providing written notice of the lawyer who files and argues a motion to tested by the client or opposing counsel, withdrawal to the client, the attorney withdraw does so “during the course of the court may call upon the lawyer to for the commonwealth, and the circuit the professional relationship.” Thus any elaborate on his motion. Indeed, the court within ten days of the certifica- disparagement of the client or revelation court may seek additional detail, sua tion of the charge. 3 A provision analogous to Virginia Rule of confidences during the withdrawal sponte, especially if a trial date is near of Professional Conduct 1.3(c) does not process may violate both Rules 1.3(c) and the court’s docket might be dis- exist in the Model Rules. and 1.6(a), unless one or both of the rupted were the lawyer granted leave to exceptions contained in Rules of Profes- withdraw. ABA Formal Opinion 476 sional Conduct 1.6(b)(1) and (2) apply: counsels lawyers to seek “to persuade the court to rule on the motion with- Rule 1.6. Confidentiality of out requiring the disclosure of client Information confidential information, asserting all non-frivolous claims of confidentiality (b) To the extent a lawyer reason- and privilege. . .” However, if the court ably believes necessary, the lawyer directs the lawyer to make disclosures may reveal: which underpin his motion, or if it is www.vsb.org Vol. 66 | June 2017 | VIRGINIA LAWYER 17 Legal Aid by Mark Braley Legal Aid Funding Under Threat, Yet Again! But, Still We Persist
As the state funding and oversight who realized that our principal state we reached a low point of only $6 agency for Virginia’s legal aid pro- funding mechanism, the filing fee add- million in filing fee revenue. While the grams, the Legal Services Corporation on for legal aid, hadn’t been increased economy has certainly rebounded in of Virginia (LSCV) has the responsi- in many years and that legal aid fund- the last couple of years, the number bility of seeking out more funding to ing was long overdue for an infusion. of cases filed that generate an add-on meet the well-documented unmet civil That year, a very strong bi-partisan fee for legal aid and consequently the legal needs of Virginia’s poor. Since coalition of legislators supported a $4 overall revenue generated for our op- the beginning of the Great Recession, increase in the filing fee add-on for erations, has been stuck at $6 million LSCV has been more preoccupied legal aid. At the time, each dollar of per year for three or four years. Still we with trying to prevent cuts to legal aid filing fee generated about $850,000 an- persist. funding than ever before. Normally, nually for legal aid. But, at the time we when we make a plea for increased increased the filing fee add-on in 2008, IOLTA Funding funding for legal aid at the General we did not know the entire financial FY 2008–09 was also the last good year Assembly, it is based principally on house of the country was teetering on for IOLTA revenue, another key com- need — the unmet legal needs of over the edge of the precipice. While filing ponent of legal aid’s funding scheme. one million Virginians who might be fee revenue met our expectations in FY That year, we collected $4.6 million in eligible for civil legal aid services. We 2008–09 generating about $7.8 million interest from attorney IOLTA trust ac- in legal aid have never had sufficient in revenue for legal aid, it didn’t take counts. As the recession deepened, the funding to meet those needs. In a good long thereafter for the burgeoning federal interest rate dropped commen- year, we turn away one person or fam- recession to affect legal activity. The surately, reducing our IOLTA funding ily for every one we serve. In a good number of cases filed dropped dramat- by a million dollars the first year. Since year, we are able to provide something ically in 2010 and kept dropping until the federal target rate hit zero, IOLTA beyond brief advice to someone in need. In a good year, we might suffer a Filing Fee Revenue in Virginia 2007–2016 small cut in funding from one source that we can make up, if we scram- ble, with new funding from another source. We rarely get ahead and we struggle to maintain the funding status quo each year. But, in the end, we help level the playing field for thousands of low-income people, help protect rights, seek redress of others, all in order to achieve justice for some and to help our legal system function fairly. Still we persist.
Filing Fee Add-on In 2008, at the beginning of the great recession, we were very fortunate to have some champions in the General Assembly led by Delegate Dave Albo,
18 VIRGINIA LAWYER | June 2017 | Vol. 66 www.vsb.org Legal Aid accounts have only been generating about $600,000 per year for the last four Declining IOLTA Revenue in Virginia 2006–2017 or five years. Still we persist.
Federal Appropriations During the recession, the other main funding source for legal aid, federal appropriations to the national Legal Services Corporation (LSC), went on a roller coaster ride of ups and downs. In any given year, we suffered an 8 percent cut or a 2 percent increase with the bottom-line being an appropriation today that is about 4 percent less than it was in 2010. Virginia legal aid programs currently receive about $6.7 million in federal funding from a high of slightly over $7 million. Still we persist. And, during the recession, legal aid once again found a champion at the General Assembly in the person of Senator Tommy Norment, who saw Federal LSC Funding Levels 1975–2016 the devastation all the aforementioned funding cuts caused in legal aid. He saw the impact of our having lost over thirty staff attorney positions and an over- all 20 percent reduction in our staffs. Senator Norment filed four consecutive budget amendments to help legal aid address the losses from our three main sources of funding and fought for that funding in budget conference year after year. Because of his advocacy, we were able to save many staff positions and remain a vital component of Virginia’s legal system. Still we persist.
Legal Aid Programs at Risk Now, we face a serious threat to all of our federal funding. The Trump admin- istration presented its FY 2018 (October but still we lost 20 percent of our staff. usual, rural offices will be hurt the most. 2017–September 2018) budget a few Losing our federal funding would mean These are not cuts that can be replaced weeks ago and appropriated no funds additional reductions to our staffs of by more pro-bono, which seems to be for the Legal Services Corporation. about forty attorneys and another twen- the response you get from those sup- If the administration is successful in ty or thirty support staff. porting the cuts. Legal aid staff attorneys pursuing our defunding, we will lose Our nine local legal aid programs working with Virginia’s low-income one quarter of our total funding on operate out of thirty-five offices state- population are necessary, not only be- this coming January 1. To put that in wide, many with only one attorney per cause of the expertise they have devel- perspective, all those losses in filing fee office. A cut of the magnitude proposed oped, but to handle the sheer numbers and IOLTA revenue were less and par- by the Trump administration would tially replaced by the General Assembly, certainly mean closing offices, and as Legal Aid continued on page 20 www.vsb.org Vol. 66 | June 2017 | VIRGINIA LAWYER 19 Legal Aid continued from page 19 porate counsel, and national, statewide, ongoing work of our legal aid offices and local bar associations. The next in Virginia and the people helped and of people needing and seeking help. It concerted attempt to federally defund fondly related his and his wife’s work in would be difficult to find a pro-bono legal aid came during the ascendancy of and for legal aid over the past decades. attorney who could simultaneously Speaker Gingrich in the mid-nineties. The fact is that support for legal aid, the handle a complex mortgage foreclosure, That effort failed as well in the face of recognition that our system of justice a predatory lending collection case, the same kind of bi-partisan support would be a distinctly undemocratic one and a domestic violence protection for legal aid’s work though, again, we without its presence is strong, wide- case while also having the ability to suffered cuts to our federal funding of spread, and evidenced by the ongoing help returning veterans with the many 28 percent. Still we persist. bipartisan support displayed by our own economic and health problems they face state leaders like Senator Norment and and provide advice and counseling to Engaging with Congress Delegate Albo. They recognize that legal an untold number of others in a myriad With the leadership of the American aid in Virginia does great work with of situations where we can’t provide full Bar Association and the National Legal tremendous efficiency and a remarkable representation. Aid and Defender Association and with return on investment for the justice it Interestingly, we all act incredulous- strong public statements from our own brings to individuals and the contribu- ly when informed of the latest attempt statewide bar associations, we have gen- tions it makes to the health and wellbe- to do away with legal aid. “They will erated over 30,000 contacts with mem- ing of Virginia’s economy. And, because never succeed, never get away with it.” bers of Congress nationwide telling our of that, Legal Aid persists. “Legal aid is the last safety net for too representatives the importance of legal You can join the fight to preserve many people and surely our representa- aid in our communities, regaling them legal aid. The ABA has made it very easy. tives in Congress realize this.” Yes, legal with the stories of the very real people Go to www.americanbar.org where you aid has had strong bi-partisan support we help every day. Whether it’s the vet- will find a very obvious banner on the over the years, but too often has had to eran returning from Afghanistan finding home page called “Legal Aid Defenders.” fight to maintain its viability. And, this his home in foreclosure, the elderly man Clicking on this banner provides a really latest attempt to defund legal aid does suffering mistreatment in an assisted simple way to speak up on our behalf threaten its viability. We can take noth- living facility, the elderly woman barely to your congressional representative. It ing for granted and must engage our making ends meet on social security will only take a couple of minutes and Congress. After the significant growth becoming a victim of payday lenders, will make a real difference to the staff in of federal funding for legal aid under or the disabled man facing eviction your local legal aid office and, more im- the Carter Administration, President notices for seven consecutive months in portantly, to the people we serve. And, Reagan was elected in a landslide and which he paid his rent on time. These in the coming months, this column will immediately sought to defund legal aid. things happen all the time to people in feature profiles of our legal aid offices all We stopped that effort to completely Virginia and very often, legal aid is their around Virginia including their dedicat- defund (though we suffered 20 percent only hope of righting or preventing a ed staffs and client stories. cuts) by building coalitions and demon- wrong. On May 4, 2017, Senator Tim strating the bi-partisan support for Kaine made a speech on the Senate floor legal aid in state and local communities. crticizing the Trump administration for Mark Braley has served as executive director Now, we can demonstrate even stronger its shortsighted attempt to defund legal of the Legal Services Corporation of Virginia support for our work from nationwide aid as a step backward in the struggle since 1992. Prior to 1992, he served as a networks of state attorneys general, cor- for justice. He described some of the criminal prosecutor and civil litigator.
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/.
20 VIRGINIA LAWYER | June 2017 | Vol. 66 www.vsb.org Advertising Rules continued from page 15 yer’s services or for channeling profes- sional work in a manner that violates client, or with whom the lawyer has a Rule 7.1 and this Rule. A communica- close personal or family relationship; tion contains a recommendation if it nor is there a serious potential for abuse endorses or vouches for a lawyer’s cre- when the person contacted is a lawyer dentials, abilities, competence, character, or when the person has already initiated or other professional qualities. However, contact with the lawyer. Consequently, Paragraph (d)(1) allows a lawyer to pay the requirements of Rule 7.3(c) are not for advertising and communications applicable in those situations. permitted by this Rule, including the Have You Moved? [2a] The requirement in Rule 7.3(c) costs of print directory listings, on-line that certain communications include To check or change your address of directory listings, newspaper ads, tele- “ADVERTISING MATERIAL” does record with the Virginia State Bar, vision and radio airtime, domain-name not apply to communications sent in registrations, sponsorship fees, banner go to the VSB Member Login at response to requests of potential clients ads, and group advertising. A lawyer https://member.vsb.org/vsbportal/. or their spokespersons or sponsors; may compensate employees, agents, and however, prior contact from the lawyer Go to “Membership Information,” vendors who are engaged to provide in the form of advertising material does where your current address of record marketing or client-development ser- not circumvent the need to include the vices, such as publicists, public-relations is listed. To change, go to “Edit Official words “ADVERTISING MATERIAL” in Address of Record,” click the appro- future contacts. General announcements personnel, business-development staff, by lawyers, including changes in person- and website designers, as long as the em- priate box, then click “next.” You can nel or office location, do not constitute ployees, agents, and vendors do not di- type your new address, phone num- rect or control the lawyer’s professional communications soliciting professional bers, and email address on the form. employment from a potential client judgment in violation of Rule 5.4(c). See Contact the VSB Membership known to be in need of legal services Rule 5.3 for the duties of lawyers and within the meaning of this Rule. law firms with respect to the conduct of Department ([email protected] or [3] Even permitted forms of solic- nonlawyers who prepare marketing ma- (804) 775-0530) with questions. itation can be abused; thus, any solici- terials for them. Moreover, a lawyer may tation that contains information that is pay others for generating client leads, false or misleading within the meaning such as internet-based client leads, as of Rule 7.1, which involves coercion, long as the lead generator does not rec- duress or harassment within the mean- ommend the lawyer, any payment to the ing of Rule 7.3(b), or which involves lead generator is consistent with Rule The VSB E-News contact with a potential client who has 5.4, and the lead generator’s communi- cations are consistent with Rule 7.1. To made known to the lawyer a desire not Have you been receiving the to be solicited by the lawyer within the comply with Rule 7.1, a lawyer must not meaning of Rule 7.3(b), is prohibited. pay a lead generator that states, implies, Virginia State Bar E-News? The Moreover, if after sending a letter or or creates a reasonable impression that E-News is a brief monthly sum- other communication to a potential it is recommending the lawyer, is mak- client the lawyer receives no response, ing the referral without payment from mary of deadlines, programs, rule continued repeated efforts to commu- the lawyer, or has analyzed a person’s nicate with the potential client may legal problems when determining which changes, and news about your constitute harassment and therefore lawyer should receive the referral. regulatory bar. The E-News is violate the provisions of Rule 7.3(b). [5] Selection of a lawyer by a lay- Regardless of the form of the commu- person should be made on an informed e-mailed to all VSB members. If nication, its propriety will be judged by basis. Advice and recommendation your Virginia State Bar E-News is the totality of the circumstances under of third parties — relatives, friends, which it is made, including the poten- acquaintances, business associates, or being blocked by your spam filter, tial client’s sophistication and physical, other lawyers — and publicity and contact your e-mail administra- emotional, and mental state, the nature personal communications from lawyers and characterization of the legal matter, may help to make this possible. A lawyer tor and ask to have the VSB.org the parties’ previous relationship, the should not compensate another person domain added to your permis- lawyer’s conduct, and the words spoken. for recommending him or her, for influ- Paying Others to Recommend a Lawyer encing a potential client to employ him sions list. [4] Lawyers are not permitted to or her, or to encourage future recom- pay others for recommending the law- mendations. www.vsb.org Vol. 66 | June 2017 | VIRGINIA LAWYER 21 Lawyer as Problem Solver: Joint Alternative Dispute Resolution Committee’s Top Ten Tips by Deborah Wood Blevins and William T. Fitzhugh
Once upon a time, lawyers were 2. Focus on the client: Problem solvers do viewed as problem solvers in their not impose their goals or biases onto communities. Communities sought a client’s case. Problem solvers provide legal advice in the context of the client’s out lawyers to serve in leadership values, relationships, and concerns. Often roles in their churches, city councils, clients do not come into our office with and school boards not because they the experience to articulate their own were fierce warriors, but because they needs. Question them about what they knew how to identify and solve prob- mean so you understand their needs and lems. Solving problems and helping interests. In a family law matter, a client clients design strategies for conflict may state that they want primary or full custody. When you ask what they mean resolution are now fundamental skills. by that or what that means to them, you Here are some tips to keep in mind might find out that they want to be able whatever your area of subject matter to move out of state with the children. By expertise. teasing out their true needs and interests, you enhance the client’s autonomy to 1. Recognize your own bias: Lawyers are make decisions based on their values, not not always the most humble of people. your values. We think our perspective is the correct 3. Ask genuinely curious questions: One of one. Obviously. We tend to treat clients the most valuable skills a lawyer can have paternalistically — telling them what is is knowing how to ask genuinely curi- best for them. In order to identify and ous questions. In litigation, lawyers are resolve problems, we need to get out of trained to cross-examine witnesses with the way. With a client-centered approach, questions designed to box in the witness. lawyers should have some recognition There should be only one possible an- that the way they want it done might not swer! Ours! The lawyer is delivering the be the best way for a particular client. information and the witness affirms it. This does not mean that we abdicate our Outside of litigation, problem solvers ask responsibility to educate clients about genuinely curious questions. Sometimes their rights and responsibilities. But it we ask broad questions. Sometimes the does mean we recognize that we do not questions should be direct. The goal of always have “the answer.” the question is to have the person an-
22 VIRGINIA LAWYER | June 2017 | Vol. 66 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST
swering it deliver their information, not 7. Listen to the neutral: Most judges and ours. mediators are not trying to outwit you, 4. Paraphrase: Clients need to feel heard. rather they may be trying to help you. We can let them know they have been Whether you are in litigation, mediation, heard by paraphrasing what we hear back or arbitration, chances are the neutral is to them. Particularly in articulating goals, trying to reach (or help your client reach) paraphrasing ensures that clients have the best outcome. This is particularly true been heard correctly. For example, we can in family law where the lives of children tell the family law client, “What I think I are involved. The neutral provides a dif- hear you saying is you want to move out ferent perspective — and perhaps some of state with the children so that you can good ideas. be near your family.” 8. Provide perspective: On July 24, 2006, 5. Develop a game plan: You have to know Daniel Gilbert, a professor at Harvard, where you want to go before you start a wrote an essay in the New York Times trip, but you also need a map to know entitled “He Who Cast the First Stone, how to get there. Problem solvers help Probably Didn’t.” The message of the arti- design a strategic map to help clients cle is that we tend to remember the pain meet their goals within the context of the inflicted on us more than we remember legal framework. Some cases need to be the pain we have inflicted on others. In litigated or arbitrated because the client family law disputes, we face a difficult needs an impartial decision maker; some task in acknowledging our client’s pain may be resolved through collaborative while also providing the perspective that law or alternative dispute resolution their spouse may also feel pain or have a because the client needs to communicate different viewpoint. Our client’s friends with the other side. Some need a hybrid, and family (shadow advisors) sometimes where early litigation sets the stage for play the role of cheerleaders for our meaningful negotiation. client’s status as the victim, instead of helping our client see the broader picture. 6. Listen to the other side: Communication Our conflict styles and our decision-mak- specialists often speak of the 70/30 Rule ing styles vary. Often clients assign moral of Communication: You want to spend failing to these differences. As problem 70 percent of your time listening, and 30 solvers, simply acknowledging with our percent of your time talking. Problem clients that people have different conflict solvers know that the best solutions are resolution styles and different deci- ones where both sides have their needs sion-making styles can help normalize and interests met. Often asking the right their feelings and provide perspective. question is key: 9. Remain flexible: As your client gains At a recent alternative dispute resolu- knowledge or information, their needs tion competition for law students, one and interests might change. The emo- team was caucusing with the meditator tional stages of divorce are comparable when they said that they just were not to the emotional stages of grief. As your sure what the other side’s goals were. client moves through conflict emotion- “Why don’t you ask?” the mediator sug- ally, their goals may change. Anger and gested. the desire for revenge may be replaced Team: “Great idea. Let’s suggest that by acceptance and the desire for peace. we don’t have a supplier for the widgets. Continuing to listen, not only to the Maybe then they will tell us what their words but also to the tone and emotion goals are!” behind the words, is critical to respond- Mediator: “Perhaps you could ask ing to changes and resolving the problem. them.” 10. Keep your eye on the prize: “Winning” Team: “Ok. We just aren’t really sure in today’s world rarely means a full scale what their needs are so maybe they will victory in court. In fact very few civil tell us when we refuse to supply the wid- cases are tried, particularly before juries. gets.” So end where you start — by recogniz- Mediator: “Or you could just ask them directly.” Problem Solver continued on page 27 www.vsb.org GENERAL INTEREST FEATURES | Vol. 66 | June 2017 | VIRGINIA LAWYER 23 The Tangible Fruits of Giving Back by Deirdre Norman
In 1974, in a Salvation Army Home and Hospital in Tulsa, Oklahoma, a very young mother gave birth to a boy and made the difficult choice to put him up for adoption. That baby boy — who was adopted by teachers in El Reno, Oklahoma, and named Lyle Hedgecock — eventually retired from a career in the US Air Force and decided to become a lawyer. After passing the bar, he attended the Virginia State Bar’s Harry L. Carrico Professionalism Course in 2017 where he crossed paths with one of the Salvation Army’s longest serving volunteers, Fairfax family lawyer William L. Schmidt.
This circuitous chain of connections led to an e-mail in which Hedgecock thanked Schmidt for his efforts on be- half of others at the Salvation Army, and wrote, “The good that we do in people’s lives is never totally visible to us. So, it is up to those like me to share the kind- ness we’ve received with those Good Samaritans, that they may continue their work emboldened. I hope this note emboldens you.” “It brought me to tears,” Schmidt says of the e-mail. “I was so touched by Hedgecock with his family on the day of his adoption his story and so humbled by it.” Schmidt, 71, of William L. Schmidt & Associates years now in front of the same Giant grocery PLC, has held many leadership positions in store in Fairfax where he begins two weeks the VSB, and he often addresses new lawyers before Thanksgiving and rings until a week about service to the bar, to the community, before Christmas every single Saturday for and finding one’s passion in life. He focuses anywhere from eight to ten hours a day. He much of his comments on the rewards he does this, as well as running an annual food gets from helping others, and in particular drive that has collected as much as nine tons his activities for the Salvation Army. “When of food at one time for the Salvation Army I was about six years old,” Schmidt says, “and during the holidays. my father was a low-paid warrant officer “We live in often cynical times,” says for the Army stationed in Australia, it was Hedgecock. “When people do things phil- the Salvation Army who stepped in to help anthropically, they don’t often see the fruits my parents make Christmas special for our of their labor and they may doubt they are family.” achieving anything. I wanted Bill Schmidt to Schmidt has rung the bell during the hol- know that people like him make a difference idays for the Salvation Army for twenty-five in others’ lives and so I told him my story.”
24 VIRGINIA LAWYER | June 2017 | Vol. 66 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST
Hedgecock Schmidt
It is said that there are no coincidences strong tradition of pro bono work in family in life, and these two men share more than a matters for indigent people, Hedgecock will few commonalities: both served in the US Air use his military experience to practice mostly Force, both attended American University for in government contracts work, but he is pas- law school, both speak of their love of the law sionate about giving back as well. He volun- as a means of helping others and in particular teers at the Joint Base Andrews Legal Office children, and both speak of the way in which helping service men and women with legal the Salvation Army has changed their lives. issues, and he just completed a child custody “The most important thing is the chil- CLE and plans to use his spare time to do pro dren,” says Schmidt. “From my position as bono child custody work. bell ringer, I can see that it’s also the children Hedgecock says that people like Schmidt who still understand that with their gift they “…don’t often see the tangible fruits of what can help the world. They have no cynicism.” they’ve done. It’s like a study — you wait In 2009, Schmidt’s continuous span of bell twenty years and you see what happens.” ringing landed him on the front page of USA Today. He says that his volunteerism has also helped his law practice immea- surably. “In the Salvation Army, you meet people at their level of need. It develops a sense of “The good that we do in people’s lives is never totally visible to us. So, empathy that benefits my law practice tremendously.” it is up to those like me to share the kindness we’ve received with those As for Hedgecock, his first Good Samaritans, that they may continue their work emboldened. I interaction with the legal sys- tem was when he was 18 years hope this note emboldens you.” old and an Oklahoma judge unsealed his adoption records. Today, he says that his birth mother is “a big part” of his life. A member of the Fairfax Bar Association, which has a www.vsb.org GENERAL INTEREST FEATURES | Vol. 66 | June 2017 | VIRGINIA LAWYER 25 It Was in Her Heart to Assist, and She Has Done it Well by Gordon Hickey
Elaine Javonovich was talking people correct or eliminate tax bills that in many cases should never have been billed. to her neighbor one day in 1999 While the job offer at CTLP came somewhat out of the blue, it landed on a about her neighbor’s job. willing taker. Javonovich had a background in social welfare and had been running her That neighbor was Nina Olson, who at the own graphic design and typesetting business time was the director of the Community Tax for sixteen years — a background in business Law Project in Virginia, an organization she that came in handy when she rose to run the had founded in 1992. CTLP. “What was always in my heart,” she said Olson has since gone on to become the during a recent interview in her former office, National Taxpayer Advocate in Washington, “was to assist people.” DC, but when she met with Javonovich The CTLP staff and volunteer tax pro- that day, “She talked to me about CTLP fessionals assist about 1,000 Virginians every and I thought, ‘What is she talking about?’” year to decipher the federal and state tax laws Javonovich recalled. The CTLP is not the kind and solve problems they may have with the of organization that lends itself to a quick taxing agencies. CTLP works on behalf of tax- elevator speech. But Javonovich was intrigued payers to untangle red tape and saves families and found out more. money they may not have owed in the first And so it was in the summer of 1999 that place. Javonovich signed on as a pro bono coordi- While anyone can run into questions nator. On May 1, 2017, she retired from the from the IRS, not everyone has the money to organization as its executive director, a job she hire a professional to help solve their problem. had held since December 2003. For eighteen The CTLP is often their only hope. The years, she has been at the hub of an organiza- program handles cases involving innocent tion that has helped uncounted low-income spouses, independent contractors, foreclo-
26 VIRGINIA LAWYER | June 2017 | Vol. 66 | GENERAL INTEREST FEATURES www.vsb.org GENERAL INTEREST sures, denial of family credits, cases involving asked Javonovich and Sams cited two specific immigrants who often don’t speak English, cases. In one, a board member represented and more. a woman in an innocent spouse case — her When asked to talk about her greatest spouse had stuck her with a tax bill she didn’t accomplishment, Javonovich talks about know about and couldn’t afford to pay. The getting through the Great Recession, when case went to the Fourth Circuit, and the wom- the agency was flooded with worried taxpay- an lost because the court had to follow the ers. “Our board worked very, very, very hard existing law. getting us through the recession, because a lot But the legislature saw “that the law of non-profits our size didn’t.” wasn’t serving the way it should,” Javonovich Javonovich’s successor, David Sams, said, and the law was changed. agreed. “The people Elaine has been able In the other case, Sams talked about a to keep on the board allowed CTLP to stay man who lost his job during the recession and at the level it has. Her ability is to right the was homeless. He wasn’t receiving mail and ship through the years and still have these didn’t know he had a credit card debt that had high-level experts still wanting to be in- finally been cancelled. Cancelled credit card volved.” debts are counted as personal income. The board includes nineteen lawyers and Eventually, the man got a job, moved into accountants, all volunteers. The board presi- an apartment, and dutifully filed his taxes. dent, Flora T. Hezel, an assistant attorney gen- He was hit with a small tax bill. The CTLP eral of Virginia, noted that the CTLP has “had managed to get that bill erased through an its share of ups and downs, like any non-prof- insolvency exception, which the man didn’t it.” But, she added, Javonovich has been there even know existed. through it all, fighting for the program. “She While the tax bill wasn’t large, “It was has pretty much done the full gamut of things crushing for him,” Sams said. you can do at CTLP.” It is that kind of memory of accomplish- The CTLP has helped thousands of peo- ment that Javonovich will carry with her into ple out of tax jams over the years, but when retirement.
Problem Solver continued from page 23 the Virginia Bar Association on September 25, 2017, in Richmond when we host “A Place at the Table: A ing that “winning” may not be how you define it, but Symposium on Attracting 21st Century Clients and instead how the client defines it — solving the problem. Efficiently Solving Their Problems.” More information is By establishing a collaborative relationship with the available on the joint committee’s web page at http://www. client, with the other side, and with any neutral involved vba.org/?page=joint_adr. in the case, you have the best opportunity to solve the problem in a winning way. Do you want to be known as a bull dog? Or as a problem solv- er? Some cases require aggres- sive representation. But more often, practicing law or serv- ing your community at your church, PTA, or city council requires effective problem- Deborah Wood Blevins is chair of the Joint William T. Fitzhugh is a partner at Rowe, Rosen & solving skills that focus on the Alternative Dispute Resolution Committee of the Fitzhugh PLC. His practice centers on family law, including divorce, equitable distribution, custody, needs and interests of all sides. Virginia State Bar and Virginia Bar Association and is managing deputy commissioner of the Alternative same-sex relationship issues, and adoption. He has been a member of the International Academy of Want to learn more? Join Dispute Resolution Department of the Virginia the Joint Alternative Dispute Collaborative Professionals since 2006. He serves Workers’ Compensation Commission. She lives in on the council for the Joint Alternative Dispute Resolution Committee of Pulaski. Resolution Committee of the Virginia State Bar and the Virginia State Bar and Virginia Bar Association.
www.vsb.org GENERAL INTEREST FEATURES | Vol. 66 | June 2017 | VIRGINIA LAWYER 27 Let’s Build Your Practice Together. We take the calls, and you take it from there. www.vsb.org/vlrs
November 3 – 10, 2017 With optional pre-trip to Rome and post-trip to Bologna • Six nights at the Westin Excelsior, a fi ve-star hotel in the heart of Florence • Airfare from Dulles and airport transfer included (optional) • All taxes and gratuities to hotel personnel included • Breakfast buffet daily at hotel • Welcome and Farewell receptions • Orientation Tour • Dedicated Hospitality desk at hotel staffed by a local Destination Management Company (DMC) • Optional tours, to sites in and around Florence, every day • Nine hours of CLE, including a comparative law session with our Italian counterparts
For more information, please visit www.vacleinternational.org Spousal Support Litigation in an Era of Social Change
by Lawrence P. Vance
Society’s notions and expectations If spousal support is the gasoline that of spouses’ roles and responsibilities fuels contentious non-child custody cases, within the family have dramatically marital infidelity is certainly the match that changed. Apart from custody and sets it off. Brian Hirsch tackles the emotion- ally charged issue of singling out adultery as visitation matters, no other issue a bar to the receipt of spousal support, the routinely results in more contentious manifest injustice exception, and the effect of family litigation than spousal support. the continued criminalization of adultery. However, unlike the evolution of the Finally, Samuel Levin discusses the evolu- law on distribution of property during tion of the notion of required imputation of a divorce, the law related to spousal income to a support payor who doesn’t seem support remains remarkably vague to be earning what they should be in the con- in response to these societal changes. text of child support, and its crossover into This vagueness makes the task of spousal support determinations. managing expectations about support much more difficult.
The three articles that follow highlight a few of the thornier issues in support litigation. As our society grays, how to advise spou- sal support payors on their ability to retire will become a more frequent question to family practitioners. Lawrence Diehl dives into this murky water to explain why we don’t Lawrence P. Vance, chair of the board of governors of the Family Law Section, is a non-equity member of know what we don’t know when the support Buchbauer & McGuire PC in Winchester, and fellow payor retires. in the American Academy of Matrimonial Lawyers. www.vsb.org FAMILY LAW SECTION | Vol. 66 | June 2017 | VIRGINIA LAWYER 29 To Retire, or Not to Retire: That Is the Question by Lawrence D. Diehl
Mr. Jones shows up for a consultation come to a 65-year-old twice-retired four-star and the following discussion occurs: general who had recently earned additional income from a one-year contract in Desert Mr. Jones: I am paying spousal support. I’m Storm. I handled the appeal of this case and 62 years old and plan to retire at age 65. Can I argued that at age 65, and after thirty years of retire, and will the support I am paying stop? military service and eight years of private em- Mr. Diehl: I don’t know. ployment, thus two retirements, there should Mr. Jones: What? I thought you were the be a presumption of the ability to retire with- man and could help me on this. Why don’t out having income imputed. The argument you know? was that based on historical case law which Mr. Diehl: I know enough to know that I had indicated that attempted retirements at don’t know. ages in the 40s through 54 were too early, If the above sounds like the famous and thus a spouse still had an obligation to “who’s on first” Abbott and Costello routine, earn income for support purposes. I argued that’s because there is no definitive answer to that this was a case with the “appropriate these questions under Virginia law. Factors age” for retirement, so in essence the court such as the length of the marriage, assets, should do what prior case law implied: let one amount of support, health of the parties, retire with impunity unless there was some agreements made during the marriage, and hardship standard that was met. The majority the judge all make the issue unpredictable. opinion rejected the blanket presumption ap- This article will summarize Virginia’s law on proach that was suggested, and held that each the issue — a summary that might help in lit- case must be viewed on its own merits and igating the issue — and where the issue might there was no error in considering the recent be headed legislatively. earnings of the general in deciding that spou- sal support should be paid over and above the Imputing New Income former wife’s share of two other retirements. In the lodestar case of Stubblebine v. Does Stubblebine say that you can’t retire Stubblebine,1 in a 5–4 en banc decision, the at an appropriate age? Many practitioners Virginia Court of Appeals held that the trial say yes, but that is not accurate. It never court did not err in imputing $40,000 of in- held or said that; it merely rejected a blanket
30 VIRGINIA LAWYER | June 2017 | Vol. 66 | FAMILY LAW SECTION www.vsb.org TO RETIRE, OR NOT TO RETIRE: THAT IS THE QUESTION presumption on the issue. It was technically what are their assets and the implications an abuse-of-discretion case on the facts of of Driscoll v. Hunter,5 which basically says that case only as to imputing income based a court can consider the assets of the payor on evidence of recent earnings. It was more spouse in fashioning a support award, even accurately an imputation of income case and liquidating real estate, but not the assets of the it leaves the issue of when one can retire to payee spouse; and critically, the length of time case-by-case analysis. And that is the problem, before the retirement will occur — was the act because it leaves the issue open in Virginia. of the retirement considered by the parties in a Property Settlement Agreement or by the Mixed Results court in fashioning the award. Finally, counsel I predicted that there would be harsh results should review in detail the voluminous from the Stubblebine ruling, and I was number of appellate cases that are fact specific right. In Geddis v. Geddis,2 shortly after the in either imputing or not imputing income Stubblebine decision, the Court of Appeals generally to the facts in existence in a specific affirmed the imputation of income of $13 an case at the time of retirement.6 Providing the hour to a 70-year-old former wife who had court with a case that is close on its facts can not worked for over thirty years, had high often be persuasive. blood pressure, and who was performing pro bono bookkeeping services for her friend at Expectations Are Critical a marina. This was based on the income of That inquiry regarding the expectation of another paid marina bookkeeper, not a voca- retirement at the time of the award is critical tional expert. Was that fair? Read the case. since there may be no basis for a modification However, in Edick v Edick,3 a circuit court of spousal support if the trial court or the refused to follow Stubblebine in a short 6½ parties’ agreement already considered the fi- year marriage where the husband had a sup- nancial results of a retirement. In other words, port obligation to a former spouse preventing the act of retiring may not be a material him from paying an award at retirement age. change if it was within the contemplation of Since Stubblebine, the anecdotal feedback the court or the parties at the time a property I have received from discussion with family settlement agreement is prepared. See, for law practitioners is that there are mixed example, the ruling in Nunez v. Nunez7 where results when an action for modification of the trial court did not err in refusing to reduce spousal support is filed upon one’s retirement. the wife’s spousal support even though she I have had moderate success in arguing for was now receiving part of the husband’s pen- either a termination or reduction of support sion where her receipt of this was anticipated at the age of retirement. But there is really no and foreseeable. The recent trend of cases reasonable prediction of the outcome given in Virginia on this issue should be carefully the status of Virginia law. I suggest that if you reviewed to assess this issue. are representing a soon-to-be retired spouse In other states, courts have generally and the issue of spousal support comes up, not found that retirement was a foreseeable the best advice you can give is to be honest event where it was not specifically stated in and realistic. the order.8 As a practice hint, if retirement in- An attorney advising a client on the come has the potential of impacting a future issues should review all of the required statu- spousal support modification proceeding, tory factors4 applicable to the particular case. counsel should provide, either in a Property The length of the marriage — the longer the Settlement Agreement or in the order of the marriage, the more likely a court is going to court, a specific recitation that the retirement order continued support; the careful analysis income has or has not been contemplated by of the current income and expenses of the the parties in calculating the current amount parties as anyone would do in preparing for of support. That would moot any uncertainty a support hearing; the health of the parties on the issue for future modification proceed- — are there special medical needs of a spouse ings that evolving case law has addressed. that require continued support; the agree- ment of the parties during the marriage — did What Next? they plan and discuss and agree to retirement So where should Virginia go from here in and what were the specific understandings assisting clients, family law practitioners, and upon which their marital partnership relied; courts in addressing the impact of retirement www.vsb.org FAMILY LAW SECTION | Vol. 66 | June 2017 | VIRGINIA LAWYER 31 TO RETIRE, OR NOT TO RETIRE: THAT IS THE QUESTION
on spousal support? In the 2017 session of the final decree. Massachusetts states that alimony General Assembly, HB 859 was introduced. automatically terminates when the obligor This bill would have amended §20-107.1 reaches the full age of retirement. Similar (C) by providing that for initial support to HB 859, the court may set a different proceedings or modification proceedings, termination date for good cause. Further, if periodic payments of support “shall” termi- the divorce occurs within ten years of the re- nate no later than upon the payor attaining tirement date and the marriage is over twenty full retirement age (defined as normal age for years, then that would also constitute good full retirement benefits under social security cause to rebut the presumption. New Jersey law), although for good cause shown the ter- also has enacted a rebuttable presumption mination could be extended. The statute did that retirement at the appropriate age would not define “good cause shown” and therefore terminate support. However, the presumption was vague and gave the courts no guidance. It may be overcome for good cause shown based further provided that a payor’s ability to work on specific factors relevant to retirement beyond the full retirement date would not issues.11 South Carolina states that retirement be grounds to extend the termination date. may be a change of circumstance factor — no Thus, a payor with significant income who is presumption — based on set factors in the still working at full retirement age would have statute.12 the support terminated without any regard to the health, assets, age, or other circumstances Certainty Needed of the recipient spouse. You reach that age — Based on the statutory approaches set forth that’s it, end of story. above, it is my opinion that there should be This bill was opposed by the Virginia Bar some certainty to a payor that retirement at Family Law Coalition since it was oppressive, a full or appropriate retirement age should could result in hardship in many cases, and be a modification factor. But to permit that was bad policy to have legislation that would sole act of retirement to result in the full effectively terminate support without consid- termination of support as proposed by SB 859 eration of the many other factors that any case is too harsh. This could result in economic would normally consider. Those factors have hardships in cases to the payee spouse, and been summarized previously in this article. such a consequence ignores the many other The bill was defeated but the coalition agreed factors that other states have incorporated in to study the issue of retirement for potential their retirement statutes. legislation that might assist the courts in hav- No statute is going to solve all issues and ing factors and guidance more directly related give us a nice and neat answer for every case. to retirement issues. By their very nature, retirement issues and re- sults are going to be fact-specific. But Virginia States Struggle can improve the guidance we give to courts Have other states addressed the issue of retire- and provide some hope to retirees on the is- ment as it affects spousal support? It appears sue. As a policy matter, we have to protect the that most states still struggle with the issue, needs of recipient spouses. But we also need just like Virginia. The issue is one of the facts to accept a potential retirement in good faith as applied to the statutory factors.9 Retirement as part of life experiences and in most cases may justify a modification, but each case is the expectation of any marital partnership. based on the decision of a trier of fact and It is therefore my opinion that a legis- subject to reversal only upon an abuse of lative enactment in Virginia similar to the discretion. However, recently a few states have approaches of New Jersey and South Carolina either attempted to introduce legislation, or should be considered. Retirement should have enacted legislation, which addresses the not be presumed to be an act that totally impact of retirement on an award or modifi- terminates support in and of itself. But a good cation of support.10 faith retirement could be a circumstance that Colorado has enacted legislation allowing is presumed to be a material change in cir- a rebuttable presumption that retirement was cumstance and constitute a presumption for made in good faith when the obligor reaches modification or reduction of support as was the age of retirement. The presumption may actually argued for in Stubblebine. However, be rebutted by an agreement or statement in a To Retire continued on page 38
32 VIRGINIA LAWYER | June 2017 | Vol. 66 | FAMILY LAW SECTION www.vsb.org Unfaithfully Yours: Re-Examining Adultery as a Bar to Spousal Support by Brian M. Hirsch, Esquire
Clients pay good money for fam- exception should continue, especially since a ily lawyers to guide them through the trial court can now consider fault as a factor under Virginia Code § 20-107.1(E)(13) when divorce process, especially when it awarding spousal support. comes to estimating the amount and duration of spousal support if the Adultery as a Bar to Support matter goes to trial. While this is a dif- Adultery must be proven by “clear and con- ficult task, predicting spousal support vincing evidence”4 as opposed to the typical awards has become more an exercise standard of preponderance of the evidence. This higher standard has been defined as in “odds making” than rendering “that measure or degree of proof which will professional advice when the party produce in the mind of the trier of facts a requesting support has committed firm belief or conviction as to the allegations adultery. sought to be established.”5 Mere suspicion of an affair is not enough to prove adultery.6 The amount, duration, and nature of spousal If the trial court finds that the party support are determined by thirteen statuto- requesting spousal support has committed ry factors, which have been refined over the adultery, it must next determine if barring years.1 They include such factors as length of the adulterous spouse from receiving spousal the marriage, standard of living, health of the support would result in a “manifest injustice” parties, contribution toward the other party’s under Virginia Code § 20-107.1(B). This ex- career, and absence from the job market due ception allows the trial court to award spousal to parenting responsibilities. After consider- support to an adulterous spouse “notwith- ing testimony, evidence, and argument, trial standing the existence of such ground if the courts review each of these factors in making court determines from clear and convincing a spousal support award. evidence, that a denial of support and main- However, if the trial court finds the party tenance would constitute a manifest injustice, requesting support has committed adultery, based upon the respective degrees of fault it can bar him or her from ever receiving during the marriage and the relative econom- spousal support.2 This one fact takes the anal- ic circumstances of the parties.” ysis from a balanced consideration of many The most cited case examining this ex- factors down to one factor, and can result in ception is Congdon v. Congdon.7 In Congdon, a permanent ban on a party from ever receiv- the court of appeals affirmed the trial court’s ing a dime in support. 3 Yet, a court can avert finding of a manifest injustice. Although this outcome by finding a manifest injustice Ms. Congdon had committed adultery, Mr. under Virginia Code § 20-107.1(B). Whether Congdon’s repeated boorish behavior toward the prospective payor can prove adultery and her, combined with his substantial separate the prospective recipient can prove a manifest wealth, outweighed her wrongdoing. Courts injustice has created a tremendous amount have found a manifest injustice in situations of uncertainty when negotiating and trying where the respective degrees of fault were spousal support cases. Perhaps it is time to less disparate, such as in Barnes v. Barnes.8 consider whether this bar to support and its In Barnes, the court of appeals affirmed a www.vsb.org FAMILY LAW SECTION | Vol. 66 | June 2017 | VIRGINIA LAWYER 33 RE-EXAMINING ADULTERY AS A BAR TO SPOUSAL SUPPORT
manifest injustice finding where the wife lege against self-incrimination, and stay silent admitted to an affair. However, both parties while being cross examined by counsel about conceded the marriage had ended prior to his or her infidelity. their separation, and the wife testified that This leaves an adulterous spouse in a the husband would not spend time with her dilemma when both custody and spousal sup- and sometimes made crude remarks toward port are at issue. A mother may have to waive her. In Nowlakha v. Nowlakha,9 the court of her Fifth Amendment privilege in the custody appeals upheld a manifest injustice finding portion of the case to testify about her short- where the trial court found that the wife had lived affair to a person who is no longer in her engaged in multiple affairs, but the evidence life, and hope to prove a manifest injustice in showed a gradual dissolution of the marriage order to receive spousal support. Or, she can attributable less to any fault but more from a invoke her Fifth Amendment privilege, and clash of cultures and the parties’ inability to hope the judge does not give much weight to communicate. the steamy e-mails to her paramour and does Despite a substantial number of cases not care whether this person is still in the finding a manifest injustice and allowing an mother’s life when deciding custody.12 adulterous spouse to receive support, Ms. Mundy was not as lucky in Mundy v. Mundy.10 Recent Amendment to Virginia Code Ms. Mundy had multiple affairs and received § 20-107.1 $1.8 million in an equitable distribution As of July 1, 2016, “the circumstances and fac- award. Mr. Mundy received approximately the tors that contributed to the dissolution [of the same in assets, but was a model husband and marriage], specifically including any ground father. The trial court reasoned that barring for divorce” was added to 20-107.1(E)(13), Ms. Mundy from receiving spousal support allowing judges to openly consider fault and constituted a manifest injustice given Mr. other wrongdoing by the parties in awarding Mundy’s $850,000 annual income (contrasted support. This makes our spousal support stat- with Ms. Mundy’s $33,000 imputed annual ute consistent with our equitable distribution income), and awarded her spousal support. statute, which includes this same factor in 20- Mr. Mundy appealed, and the court of appeals 107.3(E)(5). reversed the trial court, leaving Ms. Mundy The question becomes: why is adultery with no spousal support and calling her “a still a complete bar to spousal support when a work-capable, millionaire spouse, guilty of court can consider fault — including adultery repeated acts of adultery with several co-re- — in awarding support? Under the current spondents.”11 two-prong test for determining a manifest While there are differences in these cases, injustice, trial courts must struggle with com- all of the trial courts awarded spousal support pletely cutting off an adulterous spouse from since they found barring spousal support ever receiving spousal support, or trying to would create a manifest injustice, despite find some degree of fault on the payor’s part adultery on the recipient’s part. Yet, the court in order to justify awarding support. The of appeals evidently saw a line in Mundy that new statute allows the trial court to land in the trial court did not, only adding to the un- the middle ground of awarding support but certainty for family lawyers advising a client adjusting it to account for fault by one spouse in adultery cases. or the other. It simply makes no sense to allow adultery to be a bar when a court can now Decriminalization of Adultery consider this factor elsewhere in the statute, A major complicating factor in adultery cases rather than reducing it to an “all or nothing” is that adultery is still a crime under Virginia proposition. Code § 18.2-365, which survived Senate Bill 174 in 2016 and Senate Bill 1124 in 2017 seek- Conclusion ing to make adultery only a fineable offense. The current laws governing adultery and The General Assembly appears reticent to re- spousal support involve too much speculation form this law, probably since decriminalizing on the part of family lawyers when advising adultery may give the appearance of condon- clients. Adultery is sometimes the cause of a ing it. As a result, an adulterous spouse can failed marriage and sometimes it is the effect still invoke his or her Fifth Amendment privi- Adultery continued on page 38
34 VIRGINIA LAWYER | June 2017 | Vol. 66 | FAMILY LAW SECTION www.vsb.org Mandatory Income Imputation — When “Discretion” Isn’t Discretionary by Samuel A. Leven
In 1988, Virginia responded to a is “voluntarily unemployed or voluntarily under-employed.”4 Additionally, courts are federal mandate by adopting our child expressly forbidden from imputing income to support guidelines.1 The guidelines a parent if that parent is the custodial parent, were meant to simplify and make the child is not in school, child care is not rea- more uniform the determination of sonably available, and the costs of child care are not being included in the child support child support across Virginia. While calculation.5 most family law practitioners would likely say this effort has largely suc- “Mandatory” Imputation Is Born Figuring out when, whether, and how to im- ceeded, a large chunk of child support pute income proved a challenge to the courts, cases seem to be consumed with the but in 1994 the court of appeals made an in- question of what to do about a parent teresting logical leap in the Hamel case when it concluded that the language of Code § who is not earning as much as they 20-108.1(B)(3) forbidding imputation of in- should be. come to a parent meeting the four conditions outlined above implicitly required trial courts The Virginia Code has always allowed for to impute income to any voluntarily unem- exceptions to be made to the child support ployed or under-employed parent who did not guidelines; after all, the guidelines are only meet those four conditions.6 afforded a “rebuttable presumption” of being With the Hamel decision, the concept correct in any given case.2 In order to rebut of “mandatory” imputation of income was the presumption, the General Assembly has born, and continued to be expanded upon for given courts a list of factors that can be con- several years thereafter. One notable example sidered as a basis to “deviate” from the guide- came in 1996 when the court of appeals faced lines amount.3 Among the factors a court is a father who had left his job as a pharmacist allowed to consider when deciding whether to in order to attend medical school and become deviate is “imputed income” to a parent who a doctor. The court found that his reduction www.vsb.org FAMILY LAW SECTION | Vol. 66 | June 2017 | VIRGINIA LAWYER 35 MANDATORY INCOME IMPUTATION
in income during medical school was volun- The court of appeals did not just stop tary unemployment, and subsequently it was there, however. It in fact began its legal anal- mandatory to impute income, regardless of ysis by criticizing, fairly harshly, the entire any good faith in his employment decision.7 mandatory imputation rule.17 The court di- In 1998, the court of appeals again em- rectly challenged the Hamel opinion, which phasized that “a trial court determining child it considered as the root of the mandatory support is required to impute income to a imputation rule, by asserting the Hamel court parent who is found to be voluntarily under- misconstrued the meaning of a prior opinion employed,”8 but the issue did not return to the on which Hamel had been based.18 court for about a decade afterwards. Then, in With the court of appeals having issued 2008, the court of appeals handled a case that a published opinion strongly repudiating had arisen under pre-2006 law (a point that the mandatory imputation rule, challenging will be important shortly), and found that it its underpinnings, and asserting that it had needed to determine whether or not the fa- been overruled by statutory amendment, you ther was voluntarily underemployed, because would have been forgiven for believing that if he were, the court would be “required to the rule was dead and gone. However, this impute income.”9 state of affairs did not last long. Just one week after the court of appeals “Mandatory” Imputation Dies — Then issued its decision in Murphy, it issued an- Comes Roaring Back to Life other published opinion in Niblett.19 That In 2006, the General Assembly amended Code case gave us a much less sympathetic parent Section 20-108.1(B)(3) to add a requirement than Murphy’s mother trying to spend more that “any consideration of imputed income time with her kids. Niblett involved a father based on a change in a party’s employment who was convicted of a felony and sentenced shall be evaluated with consideration of the to three years’ incarceration as a result of his good faith and reasonableness of employment adulterous sexual conduct with a minor fe- decisions made by the party.”10 Then, in 2013, male that had been residing with the family.20 another addition was tacked on to the end of In the Niblett case, the trial court found that new line stating, “including [a decision] that the father’s unemployment was the result to attend and complete an educational or of his voluntary act (namely his criminal con- vocational program likely to maintain or in- duct), but nonetheless chose not to impute crease the party’s earning potential.”11 Those income.21 The court of appeals reversed, and provisions remain in place today.12 amongst the reasons it gave for its reversal was In 2015, the issue finally returned to the a finding that Murphy was limited to cases court of appeals when it decided the Murphy with “evidence of good faith and reasonable- case, and it looked like mandatory imputa- ness,” and that absent such evidence, the prior tion was gone forever.13 In the Murphy case, precedents regarding mandatory imputation the mother took a job with a substantially remained binding.22 reduced income in order to allow her to have So, one week after the court of appeals more flexibility with her schedule so as to seemed to do away with mandatory imputa- have more visitation time with her children.14 tion, the court brought it back, at least where The court of appeals in this case expressly there is not “evidence of good faith and rea- found that the 2006 amendments had essen- sonableness.” tially overturned the mandatory imputation rules, as a trial court was now required to Applicability to Spousal Support consider the good faith and reasonableness The court of appeals has never directly ad- of a parent’s employment decisions.15 In the dressed the question of whether or not this Murphy case specifically, this meant the trial mandatory imputation rule applies to spousal court was within its discretion by refusing to support as well, and given that the Hamel impute income to the mother when her vol- opinion is based, at least in part, on a provi- untary underemployment was reasonable and sion from the deviation factors for child sup- done in good faith.16 port, there would be some sense in thinking
36 VIRGINIA LAWYER | June 2017 | Vol. 66 | FAMILY LAW SECTION www.vsb.org MANDATORY INCOME IMPUTATION the rule does not apply to spousal support. There are a couple Endnotes: reasons to think, however, that a court looking at this rule may 1 1988 Va. Acts of Assembly, Ch. 907 well apply it to spousal support. 2 Va. Code § 20-108.2(A) 3 Va. Code § 20-108.1(B) First, the court of appeals has expressly held, generally 4 Va. Code § 20-108.1(B)(3) speaking at least, that it can be an error for a trial court to 5 Id. impute income for child support and not for spousal sup- 6 Hamel v. Hamel, 18 Va. App. 10, 12-13, 441 S.E.2d 221, 222 port.23 Second, in an unpublished decision in 2008, the court (1994) of appeals reversed a trial court for failing to impute income 7 Virginia Dep’t of Soc. Servs., Div. of Child Support Enforcement ex for spousal support, and expressly cited the Hamel case and its rel. Ewing v. Ewing, 22 Va. App. 466, 470 S.E.2d 608 (1996) 24 8 Niemiec v. Virginia Dep’t of Soc. Servs., Div. of Child Support mandatory imputation rule in its opinion doing so. However, Enforcement ex rel. Niemiec, 27 Va. App. 446, 451, 499 S.E.2d 576, this case rests on questionable footing as, not only was it un- 579 (1998) published, but it was also reversed by the court of appeals 9 Broadhead v. Broadhead, 51 Va. App. 170, 179, 655 S.E.2d 748, acting en banc when the en banc court found that the husband 752 (2008) had not actually established that the wife was voluntarily un- 10 2006 Va. Acts of Assembly, Ch. 785 11 2013 Va. Acts of Assembly, Ch. 276 employed (and thus did not address the question of mandato- 12 See Va. Code § 20-108.1(B)(3) 25 ry imputation). 13 See Murphy v. Murphy, 65 Va. App. 581, 779 S.E.2d 236 (2015) Nonetheless, keeping these two cases in mind, there is at 14 Id., 65 Va. App. at 585, 592, 779 S.E.2d at 237, 241 least some history to suggest that the court of appeals will treat 15 Id., 65 Va. App. at 590-91, 779 S.E.2d at 240 a spousal support case similarly to a child support case when it 16 Id., 65 Va. App. at 592, 779 S.E.2d at 241 comes to mandatory imputation. 17 Id., 65 Va. App. at 586-90, 779 S.E.2d at 238-40 18 Id., 65 Va. App. at 587, 779 S.E.2d at 238-39 19 Niblett v. Niblett, 65 Va. App. 616, 779 S.E.2d 839 (2015) Current Law and Unresolved Questions 20 Id., 65 Va. App. at 622, 779 S.E.2d at 842 It seems clear from the interplay of Niblett and Murphy that 21 Id., 65 Va. App. at 623, 779 S.E.2d at 842 the old rules regarding mandatory imputation do not apply 22 Id., 65 Va. App. at 627, 779 S.E.2d at 844 n.2 when a parent’s employment choices were the result of good 23 Blackburn v. Michael, 30 Va. App. 95, 102-03, 515 S.E.2d 780, 784 faith and reasonableness, and do apply when they were not. (1999) (“because the trial court explicitly found that wife was voluntarily underemployed and therefore imputed income to her Nonetheless, there are several areas of unresolved questions for the purpose of evaluating a request for modification of child (after all, Niblett and Murphy are less than two years old — not support, it was error, in this case, for the trial court not to impute much time for any follow-up case law to develop) that may be income to the wife for the purpose of evaluating husband’s mo- worth considering and even litigating. For example: tion to modify spousal support.”) • Must a parent’s employment decisions be both in good faith 24 McKee v. McKee, Record No. 0739-07-1, p. 7, 2008 Va. App. LEXIS and reasonable to avoid mandatory imputation, or may a trial 51, *12 (2008)(unpublished) 25 McKee v. McKee, 52 Va. App. 482, 492, 664 S.E.2d 505, 510 (2008) court exercise discretion so long as it finds either good faith (en banc) or reasonableness? • Are “good faith” and “reasonableness” to be defined by an objective standard, or a subjective one? Can someone, for example, avoid mandatory imputation even if they left their higher paying job solely in order to reduce their child support obligation if their decision nonetheless proves to work out in the children’s best interests? • May a court still impute income if “good faith” and “reason- ableness” are found and mandatory imputation does not ap- ply? If so, when would it constitute an abuse of discretion to do so, or an abuse of discretion not to? • When and to what extent does the mandatory imputation apply and not apply in the context of spousal support? Samuel A. Leven has been practicing law since 2010 with The Baldwin Law Firm LLC in Oakton. He The rules for mandatory imputation of income are still serves on the Fairfax Bar Association’s Circuit Court developing, and with the recent opinions announced by the Committee (and Domestic Relations Subcommittee), Lawyer Referral Service Committee, and is currently court of appeals in 2015 this is likely to be a matter that will serving as vice-chair of the Legislative Committee. He is be litigated for some time. In the end, this is yet one more way also a member of the Family Law Section of the Virginia Trial Lawyers Association and the bars of the District of that even our “simple” post-guidelines child support laws are Columbia and the United States Supreme Court. never really that simple. www.vsb.org FAMILY LAW SECTION | Vol. 66 | June 2017 | VIRGINIA LAWYER 37 To Retire continued from page 32 Adultery continued from page 34 the enactment of any statute on the issue should include very specific factors related to retirement issues to provide courts of a failed marriage; allowing a court to consider which it with those factors that could rebut the presumption. This is and to what extent only makes sense. It is time to exam- would give court’s guidance and limit the guesswork on the ine why adultery continues to be a bar to spousal support issue. Such an approach would greatly reduce the uncertainty when no other ground is. Is adultery worse than cruelty? that exists in Virginia on the issue. Hopefully the result of the Is desertion less harmful to a marriage than a spouse being Virginia Bar Family Law Coalition’s study on the issue will unfaithful? These questions truly turn on the facts of each result in a positive legislative approach to the issue. case, and no ground on its face should have more weight or a greater consequence than the others when a court is Endnotes: awarding spousal support. 1. 22 Va. App. 703, 473 S.E.2d 72 (1996). 2. 1997 WL 583570 (Va. Ct. App. 1997). Endnotes: 3. 2000 WL 1210836 (Va. Cir. Ct. 2000). 1 See, VA Code § 20-107.1(E) 4. See Va. Code Ann. §20-107.1 (E). 2 § 20-107.1(B) provides that “[a]ny maintenance and sup- 5. 59 Va. App. 22, 716 S.E.2d 477 (2011). port shall be subject to the provisions of § 20-109, and no permanent maintenance and support shall be awarded from 6. See Swisher, Diehl & Cottrell, Virginia Family Law: Theory and a spouse if there exists in such spouse’s favor a ground of Practice, Chapter 9:5, fns. 27 & 28, Chapter 9:16 fns. 26 & 35 divorce under the provisions of subdivision A (1) of § 20- (Thomson Reuter 2016). 91.” 7. 2009 WL 1850968 (Va. Ct. App 2009). But see McNamee v. 3 Any finding of adultery is subject to Virginia Code § 20-94, McNamee, 2011 WL 291438 (Va. Ct. App. 2011) where the trial which prevents a divorce from being granted if “it appear court erred in finding that certain events were contemplated at that the parties voluntarily cohabited after the knowledge the time of the execution of their property settlement agreement. of the fact of adultery . . . , or that it occurred more than 8. See, eg. McFadden v. McFadden, 386 Pa. Super. 506, 563 A.2d five years before the institution of the suit, or that it was 180 (1989) (error to hold that retirement is a foreseeable change committed by the procurement or connivance of the party which is not sufficient as a matter of law to justify modification alleging such act.” 4 See, Painter v. Painter, 215 Va. 418, 420 (1975) of spousal support). 5 See, Mundy v. Mundy, 66 Va. App. 177, 181 (2016) 9. The author would like to acknowledge and extend thanks to Amy 6 See, Miller v. Miller, 92 Va. 196 (1895); see also, Dooley v. J. Amundsen, Esquire, of Memphis, Tennessee, a fellow in the Dooley, 222 Va. 240 (1981) AAML and International Academy of Matrimonial Lawyers for 7 Congdon v. Congdon, 40 Va. App. 255 (2003) background research and information supplied to the Coalition. 8 Barnes v. Barnes, 16 Va. App. 98 (1993) 10. See, eg., S.C. Code Ann §20-3-170 (B); Mass. Gen. Laws ch. 208, 9 Nowlakha v. Nowlakha, 14 Vap UNP 2377134 (2014) §49 (f); Colo. Rev. Stat. 14-10-122 (s) (a) (IV) 10 Mundy v. Mundy, 66 Va. App. 177 (2016) 11. N.J.S. 2A:34-23. These include such factors as the ages of the 11 Id. at 184 parties, ages at the time of marriage, degree of economic depen- 12 Further complicating this issue is the trial court’s ability to dency by the payee on the payor, duration of alimony already draw certain inferences if a party fails to provide a reason- able explanation for his conduct, as in Watts v. Watts, 40 Va. paid, health, assets, full retirement age, sources of income and the App. 685 (2003). The same is true of a trial court’s ability ability of the recipient to have adequately saved for retirement. under Virginia Code § 20-88.59(G) to draw an adverse Any finding of overcoming the presumption by the court must interest in a civil hearing if a party refuses to answer on the be in writing and upon said finding support can continue for an ground that the testimony may be self-incriminating. amount and term as set by the court. 12. S.C. Code Ann §20-3-170 (B). These factors include whether the retirement was contemplated when alimony was awarded, age, health, whether the retirement is mandatory or voluntary, whether the retirement would result in a decrease of support and other factors.
Brian Hirsch has practiced Family Law in Northern Virginia since 1989, and is a partner in Hirsch & Ehlenberger PC in Reston. He is a fellow of the American Academy of Matrimonial Lawyers, a member of the Virginia Bar Association Family Law Lawrence D. Diehl is a partner in the law firm of Barnes & Diehl PC in Coalition, editor of the Virginia Family Law Quarterly, Richmond. He has practiced family law for over forty-two years and was and a past chair of the board of governors of the the former chair of the Family Law Section and Virginia’s Chapter of the Family Law Section of the VSB. He is also certified by American Academy of Matrimonial Lawyers. He is co-author of Virginia’s the Supreme Court of Virginia as a family mediator, treatise on family law — Virginia Family Law: Theory and Practice. He is the and is a frequent speaker on family law. recipient of the State Bar Family Law Lifetime Achievement Award (2000) and he has drafted numerous statutes relating to family law.
38 VIRGINIA LAWYER | June 2017 | Vol. 66 | FAMILY LAW SECTION www.vsb.org VSB NEWS < Noteworthy Highlights of the June 15, 2017, Virginia State Bar Council Meeting
At its meeting on June 15, 2017, in cludes in this proposed opinion that evi- a bar complaint is filed. The proposed Virginia Beach, the Virginia State Bar dence of a lawyer’s possible impairment, LEO must be approved by the Supreme Council heard the following significant standing alone, does not necessarily trig- Court of Virginia before becoming reports and took the following actions: ger the duty to report misconduct under effective. Rule 8.3(a), although in many cases Legal Ethics Opinion 1887 the impairment will lead to violations Budget The council unanimously approved of the rules that do trigger that duty. The council approved a $14.9 million LEO 1887: Duties when a lawyer over The proposed opinion also encourages budget for FY 2017–2018. The budget whom no one has supervisory authority lawyers to contact Lawyers Helping Law- includes a 3 percent performance pay is impaired. This proposed opinion ad- yers (LHL), or another lawyer assistance increase for VSB employees effective July dresses the ethical duties of a lawyer to program, or to suggest that the possi- 10, 2017, as authorized by the General take remedial measures when he believes bly-impaired lawyer contact LHL, for Assembly. The pay increase is for all sal- a sole partner in a firm or solo lawyer is guidance on how to address the under- aried positions as of April 10, 2017, and impaired. The Ethics Committee con- lying impairment regardless of whether subject to performance criteria.
Leonard C. Heath Jr. is President-Elect of the VSB
Leonard C. Heath Jr. of Newport News Heath received his B.B.A from the is the Virginia State Bar’s new pres- College of William and Mary, and his ident-elect. He was sworn in at the J.D. from the Marshall-Wythe School of Annual Meeting on June 17 and will Law at the College of William and Mary. succeed President Doris Henderson Heath focuses his practice in the area of Causey for the 2018–19 term. Heath is civil litigation, including personal injury, a partner at Heath, Overbey, Verser & business disputes, real estate litigation, Old PLC. and will/trust/estate litigation. Heath has served in numerous He is married to Kimberly C. Heath positions in the bar as far back as 1989. and they have three children. He currently serves on Bar Council, the Executive Committee, the MCLE Board, and the Budget and Finance, Better Annual Meeting, Bench-Bar Relations, and Lawyer Insurance committees, as well as the Professionalism Course faculty. He is the former president of the Newport News Bar Association and is a member of the Newport News Bar Association and the Williamsburg Bar Association. Since 2013, Heath has served as the chair of Christopher Newport University’s Jazz for Justice program.
www.vsb.org Vol. 66 | June 2017 | VIRGINIA LAWYER 39 Noteworthy > VSB NEWS Indigent Criminal Defense Seminar
The Supreme Court of Virginia and the Virginia State Bar hosted a sold out Indigent Criminal Defense Seminar on May 3 in Richmond, Weyers Cave, and Wytheville for public defenders and court appointed counsel from across the commonwealth. The free event, titled “Advanced Skills for the Experienced Practitioner,” featured speakers from across the United States.
Left to right: Juvall Scott, Administrative Office of the U.S. Courts, Washington, DC; Mark Mahoney, Partner with Harrington & Mahoney in Buffalo, NY; Bonnie Hoffman, Director of Public Defense Reform and Training, NACDL, Washington DC; J. Renee Berard, Attorney with Alex Levay Law, PLLC; Barbara Bergman, Director of Advocacy — The University of Arizona James E. Rogers College of Law, Tucson; Ed Riley, Partner with Riley & Wells, Richmond, VA
VSB TECHSHOW
VSB TECHSHOW Chair Sharon Nelson with speaker Jim Calloway, Director of the Oklahoma Bar Association’s Man- agement Assistance Program, Oklahoma City, OK, who led the session titled, “Building a Virtual Law Practice, Includ- ing a Client Portal.” John Simek, vice president of Sensei 500 lawyers attended the 2017 version Enterprises in Fairfax, VA, and Dave of the TECHSHOW. The 2018 version, Ries, of Clark Hill PLC, Pittsburgh, which is scheduled for April 23, is in the PA, led the session titled, “Encryption planning stages. is Simple, Easy and Cheap — and May Be Ethically Required” at the April 24 VSB TECHSHOW in Richmond. About
40 VIRGINIA LAWYER | June 2017 | Vol. 66 www.vsb.org VSB NEWS < Noteworthy In Memoriam
Everette G. “Buddy” Allen Jr. Miriam Louise Kinner Check Your Richmond Fairfax MCLE Hours October 1940 – May 2017 October 1955 – February 2017 Online Now George E. Allen III John M. Levy Richmond Williamsburg The Mandatory Continuing Legal January 1949 – March 2017 October 1939 – April 2017 Education compliance deadline is October 31, 2015. Go to https:// James P. “Penny” Baber L. Charles Long Jr. member.vsb.org/vsbportal/ to review Cumberland your MCLE record. July 1936 – May 2017 Mechanicsville February 1939 – March 2017 Please apply for any non-ap- proved courses now to avoid a new Patricia Ann Barton late application fee for applications Leesburg Marcia McCardle Maddox April 1934 – March 2017 Falls Church received over 90 days after course April 1941 – April 2017 attendance. Dennis Irl Belcher Reminder: Of the 12.0 CLE hours Richmond Aldo A. Modena required each year, 2.0 must be in ethics August 1951 – April 2017 Midlothian and 4.0 must be from live, interactive September 1928 – March 2017 programs. If you have any questions, Aubrey R. Bowles III please contact the MCLE Department at Richmond David McKay Post (804) 775-0577 or November 1933 – April 2017 Charlottesville [email protected]. Bill Whelan Bourland October 1948 – August 2016 Martinsville June 1951 – April 2017 John E. Prominski Jr. Washington, DC William E. Carter Jr. April 1954 – March 2017 Richmond Dues Statements February 1921 – March 2017 Barton P. Quaintance Wilmington, Delaware Dues statements were mailed Raymond Ellis Davis August 1925 – April 2017 June 16. The annual dues must be Henrico received at the Virginia State Bar by October 1943 – April 2017 Hartley Elsdon Roush July 31, or delinquency fees will be Chesterfield assessed. All active members must Stephen Meredith Farmer May 1949 – April 2017 Occoquan pay the Clients’ Protection Fund May 1948 – March 2017 assessment and provide a completed Gregg Alan Scoggins and signed Mandatory Certification Charles E. Friend Glen Allen Regarding Professional Liability Williamsburg December 1963 – March 2017 Insurance, also by July 31. Separate February 1935 – February 2017 fines will be assessed for unpaid James Francis Thornton Jr. dues, unpaid CPF fees, and incom- Kristofor Jay Hammond Newport News plete liability insurance certifications. Washington, DC October 1931 – March 2017 You may renew your membership, June 1973 – March 2017 certify your liability insurance Melville Pope Windle coverage, join VSB sections, and pay Ronald B. Hildreth Owensboro, Kentucky your dues online by going to Mem- Garden City, New York April 1926 – April 2017 ber Login on the VSB home page. June 1933 – June 2016 Corporate Counsel Registrants may Esther Jeanette Windmueller Jonathan Edward Kaufmann also use this feature. Richmond Reston March 1950 – March 2017 October 1966 – March 2017 www.vsb.org Vol. 66 | June 2017 | VIRGINIA LAWYER 41 Noteworthy > VSB NEWS VSB Honors Attorneys
The Virginia State Bar presented the the world to help countries develop Oliver White Hill Student Pro Bono following awards during its Annual legal ethics policies while assisting in Presented by the Special Committee on Meeting. the training of lawyers and judges in Access to Legal Services jurisdictions with developing legal Tradition of Excellence regimes.” He has designed ethics coursed Amber A. Strickland, Presented by the General Practice Section in Serbia, Armenia, Georgia, Czech a third-year law stu- Republic, Japan, Indonesia, and China. dent at the University The late James P. “Professor Moliterno’s passion for im- of Virginia. In nom- “Penny” Baber. proving the legal profession broadly and inating Strickland Vivian Seay Giles, the ethical administration of law by law- for the award, Josh the Cumberland yers and judges know no geographical Bowers, professor of County attorney bounds…. I have admired and indeed law and co-director and county admin- have often been amazed at his unbridled of the Program in istrator, wrote that, passion not only for teaching students Law and Public Service at UVa wrote, “Mr. Baber stands substantive law, but for doing so in a “I can say confidently that she is one as a monument in manner that will allow them to effec- of the finest all-around students and our community of the true southern tively and efficiently serve their clients in human beings that I have come across in gentleman lawyer who has served his a professional and ethical manner.” eleven years of teaching. She has more community and the Virginia State Bar as integrity and maturity and a deeper a sole practitioner for fifty-six years.… Legal Aid Lawyer of the Year commitment to public interest law than I am nominating Mr. Penny Baber for Presented by the Special Committee on just about anyone I know…. Amber is a the Tradition of Excellence Award, not Access to Legal Services pioneer, a leader, and a team player — a because of any single monumental student who will leave this institution achievement or specific success of which Angela A. Ciolfi, substantially better off than it was when litigation director I am aware, but for his fifty-six years she arrived. And Amber will be a lawyer at the Legal Aid of service, excellence and profession- of the same conscience, character, and Justice Center in alism in the practice of law in Central caliber.” Bowers noted that Strickland Charlottesville. In Virginia. Mr. Baber has served, and volunteered more than 200 hours of nominating Ciolfi continues to serve, as an example of pro bono services while attending for the award, Mary the highest professional ethics and legal law school, while also maintaining an Bauer, executive skill for those of us fortunate enough impressive commitment to an array director of the Legal to practice with him.” Mr. Baber passed of public service projects. Kimberly Aid Justice Center, wrote, “Angela stands away in May. out for her strong commitment to our Carpenter Emery, assistant dean for pro clients, her sharp analytical abilities, and bono at UVa, noted Strickland contrib- William R. Rakes Leadership in her unusually strong work ethic. She is uted more than 125 hours of pro bono Education one of the smartest, hardest working, work to two international organizations Presented by the Section on the Education most courageous and effective children’s alone — the International Law Institute: of Lawyers in Virginia rights advocates and public interest African Centre for Legal Excellence lawyers that I know.” UVa Professor of in Kampala, Uganda, and the Legal James E. Moliterno, Law Leslie Kendrick wrote, “It is clear Resources Centre in Johannesburg, the Vincent Bradford to me that Angela could do anything, South Africa. She is a leader in the Black Professor of Law anywhere. With the hours she works Law Students Association at UVa, where at Washington and the leadership she shows, at a firm she coordinates events with the local and Lee University she would be clear partnership material. Big Brothers/Big Sisters program. She School of Law. In With the knowledge and communica- is active with the Virginia Innocence his letter nomi- tion skills she has, she could teach full- Project, the Virginia National Trial nating Moliterno, time and win every teaching award on Advocacy Team, and the Virginia Journal Washington and the books. She has had other opportu- of International Law. She has interned Lee Dean and Professor of Law Brant J. nities to do other things. She has made at the US Department of Justice Civil Hellwig noted that not only is Moliterno a conscious decision: legal aid is her call- Rights Division and with the American a highly respected teacher and scholar, ing. This is where she wants to be. Civil Liberties Union Racial Justice but that “he has traveled throughout And we are all better off for it.” Program in New York City.
42 VIRGINIA LAWYER | June 2017 | Vol. 66 www.vsb.org VSB NEWS < Noteworthy
Clarence M. Dunnaville Jr. “Heather is always willing to help when in 2002. He has also served as president Achievement called upon,” he wrote. “She is an ex- of the Workers’ Injury Law & Advocacy Presented by the Diversity Conference tremely diligent and dedicated member Group in 2010–11 and remains on that of the bar association and the Loudoun organization’s board. Reinhardt founded Joseph A. Condo, Bar Association is very much better off and organized the Virginia Workers’ family law principal for her commitment and willingness to Compensation American Inn of Court. attorney at Offit serve…. Heather is one of those tireless The Inn has 193 members and has spon- Kurman. Latoya Asia workers who allow projects to get done sored events throughout Virginia that Capers, chair of the and to be done well.” Miller is a member bring members together for education- Diversity Conference, of the Loudoun Bar Association and al enrichment and social interaction. noted that Condo is co-chair of the Thomas D. Horne “Mr. Reinhardt made the Workers’ has been at the Leadership in Law Program. The pro- Compensation Inn of Court a driving forefront of champi- gram is designed for twenty-four rising force in promoting ethics, professional- oning diversity and inclusion in the legal high school seniors who attend a camp ism and civility among members,” Walsh profession in Virginia. “As president for one week where they are paired wrote. of the Virginia State Bar in 2000–01, with lawyers to work on trial prepara- Joe prioritized diversity and created tion. They then appear before a sitting Bar Association of the Year the Millennium Diversity Initiative, judge. As co-chair, Miller directs and Presented by the Conference of Local and which in turn created an impetus and supervises the event. She has worked Specialty Bar Associations funding for the Oliver Hill/Samuel to raise funds for the event, has served Tucker Summer Law Institute and other the Loudoun Bar Association as social The Charlottesville-Albemarle Bar diversity-focused projects, including the chair, which involves coordination of Association. The CABA, which has 436 Diversity Conference. For over 20 years, the annual holiday party and periodic members, was nominated by the bar’s he has been at the forefront of promot- “Breakfast with the Judges” program, president-elect, Joseph Platania, and ing diversity and inclusion on both the and serves as chair of the Juvenile and member-at-large Nina-Alice Antony. state and local level, paving the way for Domestic Relations Court Bench Bar “We practice law together in our local so many to carry on that noble goal. Committee. courthouses; we socialize together He continues to be a vibrant force for at our monthly luncheons; we learn inclusion and is a leader and mentor for Specialty Bar Leader of the Year together at CLEs; together we provide an entire generation within Virginia’s Presented by the Conference of Local and a public forum for judicial candidates; legal profession.” Speaking at his instal- Specialty Bar Associations and we serve the community together lation as president of the VSB in June through various pro bono activities,” 2000, Condo said, “People of color will Andrew J. Reinhardt, they wrote. “Our local bar association soon comprise over fifty percent of our of Reinhardt, Harper, does all of this because we care about nation’s population; yet our profession Davis PLC, is the is over ninety percent white. We need to first winner of this each other, and our community.” The expand access to the profession, so it is new award. He is CABA was organized in 1916. Among more reflective of the diverse society we being honored for its many activities, it offers Continuing serve.” Condo also received the Betty A. his work with the Legal Education seminars through- Thompson Lifetime Achievement Award Virginia Workers’ out the year. Its Judicial Endorsement from the VSB Family Law Section in Compensation Committee announces and solicits April. American Inn of Court. Kathleen Grace applications for judicial vacancies, Walsh, the current chair of that Inn of organizes public forums where the can- Local Bar Leader of the Year Court, wrote that, “Mr. Reinhardt has didates appear, and identifies candidates Presented by the Conference of Local and dedicated his efforts to not only repre- regarded as highly qualified. Members Specialty Bar Associations senting his clients but to the improve- also offer their pro bono services and ment of the workers’ compensation since 2010 have donated $27,500 to the Heather Scott system to the benefit of all stakeholders. Central Virginia Legal Aid Society. They Miller, an associate His efforts have enhanced the Virginia also contribute $16,000 annually to the in Sevila, Saunders, Workers’ Compensation system and Legal Aid Justice Center, where they also Huddleston & White will continue to serve the system and provided 3,865 hours of pro bono work in Leesburg. Miller bar into the future.” Walsh noted that in 2016. was nominated for Reinhardt has served on the Virginia the award by former Trial Lawyers Association board of VSB President Jon governors for fifteen years. He was chair D. Huddleston. of the Workers’ Compensation Section www.vsb.org Vol. 66 | June 2017 | VIRGINIA LAWYER 43 Noteworthy > VSB NEWS
R. Edwin Burnette, Jr. Young Lawyer of ed and effective leader who will be the process hearings. She is also co-chair of the Year future of the bar.” He also noted that the Children and the Law Commission, Presented by the Young Lawyers she was a scholar for the American Bar where she has been instrumental in Conference Association Young Lawyers Division, educating Virginia public schools about a position that exposed her to many cyberbullying and sexting, as well as aspects of the ABA. She was chosen for providing them with ABA Mock Trial her tremendous potential for leadership. kits. She previously taught at rural pub- “She has delivered in her leadership not lic schools, implemented a new science only for the ABA but for the Virginia curriculum, and tutored students. While State Bar.” attending law school at the University Shin is the Director and Clinical of Virginia, Shin clerked for the Public Melissa Little and Crystal Shin have Assistant Professor of Law at William Defender Service for the District of been named co-recipients. and Mary Law School where she super- Columbia conducting research for and Little, of Blankingship and Keith vises and instructs law students enrolled advocating on behalf of special needs in Fairfax, has served in a number of in the Parents Engaged for Learning students. She also volunteered at the positions statewide and nationwide Equality Special Education Advocacy McGuireWoods Child Advocacy Project covering a broad array of tasks to benefit Clinic. The clinic’s mission is to assist continuing to advocate on behalf of attorneys seeking continuing education, children with special education needs in special needs students. As an attor- children needing books, and a public obtaining a free and appropriate public ney at JustChildren/Legal Aid Justice needing information on voter protec- education, including assistance with Center, Shin represented students in tion efforts. YLC President-elect Chris eligibility or IEP meetings, discipline cases involving special education, school Fortier noted that she is “a well-round- matters, complaints mediation, and due discipline, and juvenile justice matters.
SAVE THE DATE Bar Leaders Institute
Lewis Ginter Botanical Garden Richmond March 9, 2018
The Bar Leaders Institute (BLI) is a one-day program sponsored by the Conference of Local and Presidents of the Virginia State Bar — past, present, and future — along with their Specialty Bar Associations to train spouses attended the seventh annual Past Presidents’ Dinner at the University of and provide resources to current Richmond on April 27. Attending were (left to right): Irving M. Blank, Philip B. and prospective local and specialty Morris, Edward L. Weiner, Joseph A. Condo, Michael A. Glasser, Leonard C. Heath bar leaders. Jr., Sharon D. Nelson, Jean P. Dahnk, Howard W. Martin, Jon D. Huddleson, Kathleen O’Brien, Karen A. Gould, Doris Henderson Causey, W. David Harless, Michael W. For more information, please visit: Robinson, George Warren Shanks, and Edward B. Lowry. www.vsb.org/site/conferences/clba or contact Paulette Davidson at [email protected].
44 VIRGINIA LAWYER | June 2017 | Vol. 66 www.vsb.org VSB NEWS < Noteworthy Local and Specialty Bar Association Awards of Merit
The following bar associations will Loudoun Chapter of the Virginia who describe the reality of pro se litigants receive awards from the Conference of Women Attorneys Association and how unrepresented parties can file Local and Specialty Bar Associations The Color of Justice Program was petitions and motions, and participate during the Virginia State Bar Annual developed by the National Association in a panel discussion on foster care and Meeting. The awards recognize projects of Women Judges and encourages girls guardian ad litem. Program presenters that serve the bench, the bar, and the and minorities of all ages to consid- include five juvenile and domestic rela- people of Virginia. er legal and judicial careers. It brings tions court judges and the court clerk, The conference makes information the students together with judges and representatives of the public defender’s on winning projects available to other lawyers and provides them with re- office, six sheriff’s department officers, groups that want to consider similar pro- sources. In 2015, the Loudoun Chapter and representatives from the office of grams. For information, contact Paulette of the VWAA developed a local pro- the attorney general, counsel for the J. Davidson at [email protected] or gram, The Honorable Julia T. Cannon Department of Social Services, and (804) 775-0521. Memorial Color of Justice Program. It CASA. targets students who are at high risk AWARDS OF MERIT for gang involvement, substance use/ Virginia Beach Bar Association For excellence in bar projects abuse, and those who are court-re- Seatack Elementary Second Grade Swim ferred or on probation. The goal is to Program: “Students on the Swim” pro- The Prince William County Bar help students realize that careers in the vides swim lessons for all second grade Association Inc.; Prince William Chapter, Virginia Women Attorneys legal field are accessible to them. The students at the school. The association Association; Old Dominion Bar program is a partnership between the started the program after an uptick Association Loudoun Chapter of the VWAA, the in the number of drowning deaths The three associations co-hosted a Loudoun County Department of Family of young, low-income children at the screening of The Loving Story, the 2011 Services, which operates Camp R.E.A.L., Virginia Beach oceanfront during the documentary that inspired director and members of the Loudoun County summer of 2014 and a review of statis- Jeff Nichols to write and direct the Sheriff Office’s School Resource Officers tics that show a high rate of drowning 2016 motion picture Loving. One of program. More than half of the mem- deaths among low-income children. the objectives of this event was to share bers of the association participate in the The program provides the students with with bar members the documentary’s program, which served more than forty ten lessons over two weeks at the end of behind-the-scenes footage of the legal students in 2016. school year. Red Cross certified instruc- challenges of the case. The documentary tors conduct the lessons. Fifty students includes footage of the Lovings and their Metropolitan Richmond Women’s Bar completed the program in 2016. lawyers, Bernard S. Cohen and Philip J. Association Hirschkop, as well as first-person tes- The association Mentorship program’s CERTIFICATE OF ACHIEVEMENT timony and rare documentary photo- initiatives include member’s visits to For high achievement in bar projects graphs. Presentation of The Loving Story Orchard House School to assist eighth was the first event jointly sponsored by grade students with a mock criminal Tidewater Bankruptcy Bar Association the associations. More than 100 people trial. Association volunteers worked with The Twenty-Fifth Annual Hal J. Bonney attended the event, which also showcased the school’s history teachers to select the Jr. Seminar on Bankruptcy Law and how the law and the arts converged to facts for the trial, acted as coaches for Practice, which began in 1992, is a day- tell a powerful story of justice and love. the student prosecuting and defense at- long event for the association’s members torneys, members of jury, and the judge. and other lawyers with an interest in Hill-Tucker Bar Association The Mentorship program also part- the fields of bankruptcy law, practice, The association’s Annual Turkey Drive, nered with the University of Richmond and procedure. The seminars include which began in 2010 as an effort to Women’s Law Student Association, speakers who are preeminent bankruptcy provide turkeys for Thanksgiving to which encourages females pursuing the judges, law school professors, bankrupt- all members of the Richmond Adult legal profession and connects members cy trustees and attorneys who provide Drug Court Program, now distributes with professionals and mentors in the valuable advice to local practitioners. full Thanksgiving dinners. The pro- Richmond area. The February 2017 seminar included gram has also expanded to include the five United States Bankruptcy Court Richmond Juvenile Drug Court and the Roanoke Bar Association judges, including the chief judge for the Eastern District of Virginia Federal Drug You and the Law: A Look Inside Your US Bankruptcy Court for the Eastern Court. The Turkey Drive demonstrates support for the drug court participants Juvenile and Domestic Relations Courts is District of Virginia, twelve experienced and encourages their efforts to become a program that educates the public about practicing attorneys who provided ad- good, functional members of society. the court and how it operates, explains vice in the areas of recent developments, The program, which distributes between the roll and duties of the sheriff’s office tax issues, landlord/tenant issues, closely seventy and ninety meals each year, has in the court, and discusses the effect held businesses, ethics including ghost- benefited more than 450 families. Judges, social media and apps have in the court. writing and limited representation, and lawyers, and court officials donate to the Participants observe a mock juvenile technology dilemmas. program. detention hearing, hear from two judges www.vsb.org Vol. 66 | June 2017 | VIRGINIA LAWYER 45 Noteworthy > VSB NEWS Evangeline Ellis, of George Mason High School, Wins Annual Law in Society Contest
Evangeline Ellis, a junior at George Mason High School in Falls Church, has won the Virginia State Bar’s 2017 Law in Society Contest. Ellis, the daughter of Josh and Holly Ellis, is the second of five siblings. Ellis was referred to the contest by her International Relations teacher. Other winners of the essay contest, which examined the legal issues sur- rounding transgender rights in schools, and in particular the Virginia case G.G. v. Gloucester County School Board, include McKenzie Templeton of Gate City High School for 2nd place; Kevin Wang of Thomas Jefferson High School for Science and Technology for third prize; and Evan Fitchett and Parth Kotak of Maggie L. Walker Governor’s School, Victoria Slaski of South Lakes High School, Aven Kelley of Lake Braddock Secondary School, and Kelly Hazzard of Trinity School at Meadow View for Honorable Mention. This year’s contest drew approx- Evangeline Ellis of Falls Church with her father, Josh Ellis, and her brother and sister. imately 120 entries from around the state. The winners shared almost $7,000 in prize money, sponsored by the VSB In addition to classes in in Virginia Beach on June 16, during Litigation Section. Ellis says her interest International Relations and IB History the Litigation Section’s CLE seminar on in the law was sparked by her father, of the Americas, Ellis enjoys cheerlead- expert witnesses. who is a lawyer, as well as by the AP ing for the George Mason Mustangs, Ellis’ winning entry may be found Government class she took last year. playing the piano and the guitar, and at www.vsb.org/docs/2017_LISA_ Ellis hopes to attend William & Mary writing poetry. winner.pdf. College in the future, where her older Ellis and her family will receive her brother is currently a student. award during the VSB Annual Meeting
SAVE THEThe VirginiaDATE State Bar TECHSHOW The only thing changing faster than theApril law 25, is 2016 technology | Richmond … andConvention staying Center technologically competent not only benefits403 North your Third practice,Street Richmond, it is VA a 23219 key part of the Rules of the SupremeAgenda Court Pleaseof Virginia. indicate your choice for each session. 8:00–8:30 Registration/Continental breakfast 8:30 Welcome—VSB TECHSHOW Chair Sharon April 23, 2018Nelson, VSB President Ed Weiner and Justice of the Supreme Court of Virginia Cleo E. Powell Greater Richmond Convention8:45–9:45 FirstCenter, Sessions Richmond 5 Ethics: What Does Being Competent Mean in the Digital Era? (Sharon Nelson-President, Sensei Enterprises, 12:05–12:45 Lunch Fairfax, VA/Reid Trautz—American Immigration Lawyers 12:45–1:45 Fourth Sessions Assn, Washington, DC) 5 Using Tech to Do More Legal Work in Less Time (Reid VIRGINIA LAWYER | June 2017 | Vol. 66 5 Technology for Trial Lawyers (Tom Mighell—Contoural, Trautz/Natalie Kelly—Director of Law Practice Mgmtwww.vsb.org at 46 Inc., Dallas, TX/Brett Burney—Burney Consultants, State Bar of Georgia) Chagrin Falls, OH) 5 How to Store Your Law Firm Data in the Cloud Ethically 9:55–10:55 Second Sessions (Brett Burney/Jim Calloway—Director of Mgmt Asst 5 Microsoft 365, Matter Center and Windows 10: Program at Oklahoma Bar Assn, Oklahoma City, OK) The Three Hottest Microsoft Topics for Lawyers (Ben 1:55–2:55 Fifth Sessions Schorr-CEO, Roland, Schorr and Tower, Flagsta, AZ) 5 The Microsoft Word Power Hour for Lawyers (Ben 5 The Ethical Sand Traps of E-Discovery (Tom Mighell/ Schorr/Debbie Foster) Brett Burney) 5 How Law Firms are Successfully Reinventing Themselves 11:05–12:05 Third Sessions Through Technology (Jim Calloway) 5 What Are the “Reasonable” Cybersecurity Steps You Must 3:05–4:05 Sixth Sessions Take to Ethically Protect Your Confidential Data (Sharon 5 The Ethical Perils of Marketing Online (Natalie Kelly/Reid Nelson/John Simek—Vice President, Sensei Enterprises, Trautz) Fairfax, VA) 5 Budget-friendly Technology for Solo/Small Firm Lawyers 5 Essential PDF skills for Lawyers (Britt Lorish-Anity (John Simek/Britt Lorish) Consulting Group, Roanoke, VA/Debbie Foster-Anity 4:15–5:15 Plenary—60 Tech Tips in 60 Minutes Consulting Group, Tampa, FL) (Sharon Nelson/Debbie Foster/Jim Calloway/Tom Mighell)
Register now! CLE hours Mail this sheet, along with your check or money order in the amount of $100 payable to Treasurer of Virginia, to (pending) Paulette J. Davidson, Virginia State Bar | 1111 E. Main Street, Suite 700 | Richmond, Virginia 23219-0026
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*Confirmations and materials will be sent via e-mail. Registration is confirmed only after form and payment are received. Space is limited and first come/first served. Refunds will be made up until April 15. After that date, refunds will no longer be made. Conference of Local and Specialty Bar Associations Local and Specialty Bar Elections
Fairfax Bar Association Petersburg Bar Association Virginia Trial Lawyers Association Thomas William Repczynski, President Kenneth Allen Blalock, President Ronald Lee Livingston, President Christie Ann Leary, President-elect Kevin Bjorn O’Donnell, Vice President Michael Bryan Slaughter, President-elect Luis Antonio Perez-Pietri, Vice President Joan Marie O’Donnell, Secretary Jason Wade Konvicka, Vice President Richard Francis Gibbons Jr., Secretary Richard McIlwaine Cuthbert, Treasurer Craig Brian Davis, Vice President Donna Reubena Banks, Treasurer Christopher Anthony Costa, Director Bridget Newcomb Long, Vice President Joseph Benjamin Dailey, Director The Alexandria Bar Association Elliott Matthew Buckner, Vice President Aaron Joseph Christoff, Director Dipti Pidikiti-Smith, President Thomas Vaden Warren Jr., Treasurer Lacey Ullman Conn, Director George Christopher Wright, President-elect Virginia Women Attorneys Association Fairfax Bar Young Lawyers Tamika Dawn Jones, Secretary Michelle René Parker, President Matthew Charles Perushek, President Jessica Lynn Leischner, Treasurer Claire Frances Egan Keena, Nicholas Valdis Cumings, President-elect Rebecca Janet Wade, Director President-elect
Harrisonburg-Rockingham Bar Phoenix Shannon Michele Ayotte Janet Won Cho, Secretary Association Harris, Director Cynthia Kaplan Revesman, Treasurer Andrew Seth Baugher, President Clarissa Katharine Pintado, Director Quinton Bowman Callahan, Winchester-Frederick County President-elect The Bar Association of the City of Bar Association Harold Eugene Oliver III, Secretary Richmond Marie Elise Acosta, President Jeb Thomas Terrien, Treasurer Douglas Darrell Callaway, President James Anthony Klenkar, Vice President
Terrence LeMarr Graves, President-elect John Dunham Steele Hasselberger, Henrico County Bar Association Brian James Schneider, President Daniel Edward Lynch, Vice President Secretary Natalie Taylor McClearn, President-elect The Honorable Barbara Joan Gaden, Kevin Glenn McKannan, Treasurer Ryan Christopher Young, Vice President Hon. Vice President Emily Paige Bishop, Secretary Timothy O’Connor Johnson, Secretary- Jason Matthew Hart, Treasurer Treasurer
2017–18 Conference of Solo & Small-Firm Practitioner Forum Local and Specialty The Solo & Small-Firm Practitioner Forum focuses on issues that confront attorneys who Bar Associations practice alone or in small firms. Law office management and ethics are among several Executive Committee topics covered at these CLEs. These CLEs are free, include lunch, and are available on a first-come, first-served B. Alan McGraw, Chair basis. Registration and the agendas will be posted on the website at www.vsb.org/site/ Charles M. Lollar, Chair-elect conferences/clba-calendar as soon as they are available. Barbara S. Anderson, Immediate Past Chair SAVE THE DATE: Sandra T. Chinn-Gilstrap, Secretary Lewis A. Martin III, Treasurer September 20, 2017 Solo & Small-Firm Practitioner Forum At-Large Members: Indian Creek Yacht & Country Club, Kilmarnock Daniel P. Frankl John A. Merrick October 13, 2017 Christine H. Mougin-Boal Solo & Small-Firm Practitioner Forum Luis A. Perez-Pietri Mountain Empire Community College, Big Stone Gap Susan N.G. Rager W. Marcus Scriven Solo programs presented during a fiscal year (July–June) will have some crossover in Dillina W. Stickley topics. You may only claim MCLE credit for attending a specific topic once every two Amy P. VanFossen years, unless they are substantially different. Reiss F. Wilks
www.vsb.org Vol. 66 | June 2017 | VIRGINIA LAWYER 47 Law Libraries Family Law Legislative Update by Jason Zarin
The Virginia General Assembly of additional factors not expressed in ily negatively affected by the ten-year adjourned sine die on April 5, 2017. the statute.3 waiting period, and the Post also wrote One bill affecting adoption was success- H.B. 2215 also formalizes and an editorial urging Virginia to revisit fully vetoed, and several bills affecting expands qualifications for continuing the law.8 The profiled family has been adoption were enacted. Following is a adoption assistance payments beyond lobbying members of the Assembly, so it preview of some possible legislation that age 18. Adoption assistance payments is possible a bill may be introduced. may be introduced for the 2018 session. may continue to age 21 if the child (1) “has a mental or physical handicap, or Endnotes: Vetoed bills (S.B. 1324 and H.B. 2025) an educational delay resulting from 1 Va. Code Ann. § 63.2-1300. 2 2017 Va. Acts ch. 199 (to be codified at On March 23, 2017, Governor McAuliffe such handicap, warranting the contin- Va. Code Ann. § 63.2-1300(C)). uation of assistance” or (2) the initial vetoed H.B. 2025 and S.B. 1324. These 3 See id. (“when it is in the best interest “religious freedom” bills shielded from adoption agreement became effective of the child due to factors such as . . . .”) civil liability persons or religious orga- on or after the child’s sixteenth birthday, (emphasis added). nizations with a “sincerely held religious and the child is completing secondary, 4 See id. (to be codified at Va. Code Ann. belief” that marriages only between a post-secondary, or vocational education; § 63.2-1302(B)). man and a woman should be recog- employed for at least eighty hours per 5 2017 Va. Acts ch. 634 (to be codified at nized. Opponents of these bills argued month; participating in an employment Va. Code Ann. § 2.2-1209). 6 Va. Code Ann. §§ 63.2-901.1 & 63.2- that such individuals and organizations program; or incapable of doing any of 1719. these activities due to a medical condi- would be able to discriminate against 7 See D.C. Code § 4-1305.06; Md. Code 4 same-sex married couples wishing to tion. Regs. 07.02.25.04. adopt or qualify as foster parents. Both S.B. 1412: Paid leave for state em- 8 Victoria St. Martin, Because of a the House and the Senate failed to over- ployees who adopt and paternal leave Criminal Record, a Va. Woman Can’t ride the veto. Primary sponsor Sen. David Suetterlein Adopt Now. She’s Fighting the State’s 10- (R-Floyd) introduced this bill to extend Year Ban, Wash. Post (Mar. 12, 2017), Enacted bills: six weeks of parental leave to state https://www.washingtonpost.com/local /a-drug-offender-whos-done-her-time H.B. 2215: Adoption assistance; children employees who adopt an infant under -still-cant-adopt-shes-battling-the-ban with special needs 1 year old and to fathers of newborns. /2017/03/11/e8f2fa5e-fe2a-11e6-99b4 Primary sponsor Delegate David It will take effect on July 1, 2018, but -9e613afeb09f_story.html; Editorial, Toscano (D-Albemarle) introduced this only if the bill is reenacted in the 2018 Virginia’s Arbitrary Barrier to Adoption, bill to facilitate adoption of children session of the General Assembly.5 Wash. Post (Mar. 14, 2017), https:// with special needs. Under prior law, a www.washingtonpost.com/opinions special needs child could not receive Preview of possible bills for the 2018 /virginias-arbitrary-barrier-to-adoption adoption assistance unless there were Session: /2017/03/14/dd4c6714-0837-11e7- b77c-0047d15a24e0_story.html. reasonable efforts first to place the As noted above, S.B. 1412 will not take child in an appropriate adoptive home effect unless reenacted, so it is likely without adoption assistance.1 H.B. 2215 that it will be reintroduced at the 2018 amends section 63.2-1300 to exempt the session. adoption attempt requirement in cases Another issue that has received in which “it is in the best interest of the some press, and may result in a bill, is child.” Factors that can be considered the ten-year waiting period to qualify to determine whether the exemption is as a foster or adoptive parent if the within the child’s best interest include applicant has a criminal record of a whether the child has developed sig- drug-related offense.6 In the neighbor- nificant emotional ties with the foster ing jurisdictions of Washington, DC, Jason Zarin is head of Reference, Research, parents if the foster parents wish to and Maryland, the waiting period after and Instructional Services at the University of Richmond Law Library. He is a member of the 2 7 adopt the child. The language in the such offenses is only five years. The Virginia Association of Law Libraries, as well amendment keeps open the possibility Washington Post profiled a Virginia fam- as the regional and national associations.
48 VIRGINIA LAWYER | June 2017 | Vol. 66 www.vsb.org Technology and the Practice of Law How to Outsmart a Smartphone: Practical Tips on How to Use Electronic Messaging Evidence in the Courtroom by Brandon K. Fellers and Kristin M. Sempeles
The availability of electronic evidence offered is what the proponent ous assertion, this testimony provides evidence has grown exponentially in claims it to be.4 No single approach to distinctive characteristics. recent years, due in large part to the authentication will work in all instances accessibility of hand held computers, for electronic evidence.5 Circumstantial Hearsay: Defined as an out-of-court i.e. smartphones. With this great benefit authentication is necessary for electron- statement offered for the truth of the comes the unprecedented challenges in ic evidence, which involves a two-step matter asserted.9 First, consider what legal proceedings as the courts decide process. First, is the printout an accu- you are offering the statement for? If the how to properly authenticate digital rate depiction of the messages sent and message is deemed hearsay, a majority information under the current judicial received? Second, who is the author/ of the time it will fall into the party rules and procedures. sender of the message? admission or adoptive admission ex- Your client has a text message, The standard is low in regard to the ception.10 Other hearsay exceptions may e-mail, or message from social media accurate depiction of the message. Have be considered with respect to electronic that will help your case. Now what? This the witness authenticate the printout messages, including business records, article will provide practical tips to con- like a photograph, providing that it is public records, and co-conspirator sider in order to get a piece of electronic a fair and accurate depiction of what statements. Is it not being offered for the messaging evidence admitted in Virginia they saw. Who can testify to the authen- truth? Relevant non-hearsay statements state courts under the Virginia Rules of tication? It is not necessary, and likely include: offering for a purpose of cir- Evidence. impracticable, to have a representative cumstantial evidence of state of mind, You must first lay the proper from the website/phone company. It is effect on the listener, statements offered foundation in order for electronic likely sufficient for the layperson who for impeachment, and legally operative messaging evidence to be admitted. The received the message to testify. facts.11 Virginia Rules of Evidence require that The second step, proving the A significant distinction must be for evidence to be admissible, it must identity of the author involves a more made when analyzing an electronic be authenticated, relevant, and survive complex discussion. The statement, “He message: what is computer-generated hearsay and best evidence rules. sent me that message,” alone is likely compared to computer-stored. Likely, insufficient. There must be additional with an electronic message you will have Relevance: The evidence must be relevant circumstantial evidence as to the iden- a mix of both. The header, date, time, to the claims asserted, legally speaking: tity of the sender.6 Look for testimony and received, portion of the message it must have “any tendency” to prove that can describe distinctive charac- would fall under computer-generated, or disprove a consequential fact.1 All teristics such as: appearance, contents, therefore, not a statement; whereas, the relevant evidence is admissible, unless substance, and internal patterns, taken message that was typed by a person that otherwise barred by the US or Virginia in conjunction with circumstances. 7 was transmitted electronically is consid- Constitution, statute, Rules of Evidence, Also, a witness-providing context to a ered a “statement.” There is precedent in or other Virginia Supreme Court Rule.2 writing can be sufficient to authenticate, Virginia with respect to electronic mes- Virginia law generally favors all rele- especially when in response to another sages where a proponent could argue vant evidence, thus the rules calls for writing sent to a party, otherwise known that the messages are not hearsay at all exclusion of relevant evidence only as the “reply doctrine.” 8 “I know he sent because the messages are computer-gen- when its probative value is substantially me this message, because: he always com- erated documents, thus there is no out outweighed by unfair prejudice.3 municates with me through this number, of court asserter.12 ‘squishy’ is the pet name that only he uses, Authentication: In the simplest terms, this was right after he left the house, and Best Evidence: “Objection — the print- authentication requires showing that the only knows about x.” Unlike the previ- out of the message is not the original www.vsb.org Vol. 66 | June 2017 | VIRGINIA LAWYER 49 Technology and the Practice of Law writing!” The Rule provides that where Endnotes: (effect on listener not hearsay); Pugh v. the contents of a writing are desired 1 Va. R. Evid. 2:401. Comm., 233 Va. 369 (1987)(statements to be proved, the writing itself must 2 Va. R. Evid. 2:402. for impeachment not hearsay). be produced or its absence sufficiently 3 Va. R. Evid 2:403. 4 Va. R. Evid. 2:901 12 Chewning v. Comm., 2014 Va. App. accounted for before other evidence of 5 Lorraine v. Markel American Insurance LEXIS 82 (March 11, 2014). See also 13 its contents can be admitted. The best Co., 241 F.R.D. 534 (D. Md. May 4, Godoy v. Comm., 62 Va. App. 113 evidence rule applies only to writings, 2007). (2013). it does not apply to digital images.14 A 6 Harlow v. Comm., 204 Va. 385 (1963). 13 Va. R. Evid. 2:1002. recent Court of Appeals case held that 7 Whaley v. Comm., 214 Va. 353 (1973), 14 Midkiff v. Comm., 280 Va. 216 (2010). text messages do constitute writings for Bloom v. Comm., 34 Va. App. 364 15 Dalton v. Comm., 64 Va. App. 512 purposes of the best evidence rule.15 The (2001). (2015). 8 Kitze v. Comm., 15 Va. App. 254 (1992). 16 Id. See also Cobb v. Comm., 2013 court in Dalton, however, did not decide 9 Va. R. Evid. 2:801(c) Va. App. LEXIS 301 (2013)(Verizon what constitutes an “original” because 10 Va. R. Evid. 2:803(0). Wireless records considered original or the phone in that case was no longer 11 Mackall v. Comm., 236 Va. 240 (1988) duplicate original under best evidence available, and the screenshot pictures of (state of mind not hearsay); Hamm v. rule). the text messages from the phone were Comm. 16 Va. App. 150 (1993)(oper- admissible copies under the rule. 16 ative documents not hearsay); Wood v. Bass Pro Shops, 250 Va. 297 (1995) An electronic message may make or break your case. Lay the proper foundation, have your witness testify to the authentication, and be prepared to respond to hearsay and best evidence objections. Don’t lose heart, even if the electronic message is inadmissible, it may be useful in another way, such as Brandon K. Fellers is an assistant com- Kristin M. Sempeles is an assistant for impeachment, refreshing memory, monwealth’s attorney in the City of Chesa- commonwealth’s attorney in the City of and corroboration. Be prepared so that peake and also serves on the Virginia State Norfolk. you are able to outsmart the smart- Bar’s Special Committee on Technology phone. and the Practice of Law.
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50 VIRGINIA LAWYER | June 2017 | Vol. 66 www.vsb.org CLE Calendar
Introduction to Sentencing Guidelines (Fee waived for judges, commonwealths Six hours – Approved for 6 CLE July attorneys, public defenders, P&P and 13, Portsmouth, Department of Social staff. Limited scholarships are available Services, 1701 High Street and July 18, for attorneys.) Fairfax Government Center, 12000 Gov- ernment Center Parkway. The introduc- Virginia Lawyer publishes at no charge tion seminar is designed for the attorney notices of continuing legal education or criminal justice professional who is programs sponsored by nonprofit bar as- new to Virginia’s Sentencing Guidelines. sociations and government agencies. The The seminar will begin with general next issue will cover August 23 through background information and progress October 13. Send information by July 14 to detailed information on scoring to [email protected]. For other CLE oppor- each of the guidelines factors to include tunities, see Virginia CLE calendar and changes beginning July 1, 2017. Register “Current Virginia Approved Courses” at by completing the form and submit to www.vsb.org/site/members/mcle-courses/ the commission. Cost $125 (Paralegals or the websites of commercial providers. $62.50). Purchase manual separately.
Virginia CLE Calendar Virginia CLE will sponsor the following continuing legal education courses. For details, see http://www.vacle.org/seminars.htm.
July 11 July 25 2017 Spring Military Law Seminar 43rd Annual Recent Developments in Video — Alexandria, Hampton, the Law: News from the Courts and Lynchburg 8:30 am–4 pm General Assembly Video — Abingdon, Charlottesville, July 12 Danville, Fairfax, Hampton, Richmond, 2017 Spring Military Law Seminar Roanoke 9 am–4:25 pm Video — Norfolk, Petersburg 8:30 am–4 pm July 26 July 13 43rd Annual Recent Developments in Annual International Practice Seminar the Law: News from the Courts and Virginia State Bar 2017: What Should International General Assembly Practitioners Expect from the Trump Video — Harrisonburg, Leesburg, Harry L. Carrico Administration? Lynchburg 9 am–4:25 pm Professionalism Course Webcast/Telephone 1–4:15 pm July 27 July 13, 2017, Roanoke July 14 43rd Annual Recent Developments in 2017 Spring Military Law Seminar August 29, 2017, Alexandria the Law: News from the Courts and Video — Arlington 8:30 am–4 pm September 14, 2017, Richmond General Assembly July 18 Video — Tysons, Winchester 9 am–4:25 pm See the most current dates and 2016-2017 U.S. Supreme Court Labor registration information at and Employment Law Cases — A Timely www.vsb.org/site/members/new. Analysis of the Labor and Employment August 2 Law Cases Decided During the Supreme Fundamentals of Probate Practice 2017: Court’s 2016 – 2017 Term The Life of an Estate Live — Charlottesville/Webcast/ Live — Richmond 9 am–4:15 pm Telephone Noon–2 pm August 17 2016-2017 U.S. Supreme Court Labor August 10 July 19 and Employment Law Cases — A Timely Challenging Eyewitness Identifications Tax Bootcamp: Tax Issues Your Clients Analysis of the Labor and Employment in Criminal Cases Can’t Avoid Law Cases Decided During the Supreme Live — Charlottesville/Webcast/ Live — Charlottesville/Webcast/ Court’s 2016–2017 Term Telephone 11 am–1 pm Telephone 9 am–1:15 pm Webcast/Telephone 10 am–Noon www.vsb.org Vol. 66 | June 2017 | VIRGINIA LAWYER 51 Virginia Lawyer Register
DISCIPLINARY SUMMARIES Division. His license had been summarily suspended on March 3, 2017. Rules Part 6, § IV, ¶ 13-22 The following are summaries of disciplinary actions for vio- http://www.vsb.org/docs/Flanders-042517.pdf lations of the Virginia Rules of Professional Conduct (RPC) Cheryl D. Footman-Banks (Rules of the Virginia Supreme Court Part 6, ¶ II, eff. Jan. 1, Norfolk, Virginia 2000) or another of the Supreme Court Rules. 16-022-104335, 16-022-104602 Copies of disciplinary orders are available at the Web link On March 17, 2017, the Virginia State Bar Disciplinary Board provided with each summary or by contacting the Virginia revoked Cheryl D. Footman-Banks’s license to practice law State Bar Clerk’s Office at (804) 775-0539 or [email protected]. VSB based on her affidavit consenting to the revocation. In consent- docket numbers are provided. ing to the revocation, Footman-Banks acknowledged that the allegations against her are true and that she could not success- fully defend against them. Rules Part 6, § IV, ¶ 13-28 CIRCUIT COURT RPC 1.3(a,b), 1.4(a,b), 1.15(b)(4), 1.16(a)(1)(d)(e), 3.4(d), 8.1(c) Neil Kuchinsky http://www.vsb.org/docs/Footman-Banks-042517.pdf Colonial Heights, Virginia 16-033-105536 Antonio Pierre Jackson Effective May 1, 2017, a three-judge panel of the Circuit Court Hampden-Sydney, Virginia for the County of Chesterfield suspended Neil Kuchinsky’s 17-000-107834 license to practice law for five years for violating professional On March 24, 2017, the Virginia State Bar Disciplinary Board rules that govern conflict of interest: general rule, and miscon- revoked Antonio Pierre Jackson’s license to practice law for vio- duct. This was an agreed disposition of misconduct charges. lating terms of an earlier interim suspension issued August 29, RPC 1.7(a)(2), 8.4(b) 2016. Rules Part 6, § IV, ¶ 13-29 http://www.vsb.org/docs/Kuchinsky-042517.pdf http://www.vsb.org/docs/Jackson-061917.pdf
Warren Wilson McLain DISCIPLINARY BOARD Fairfax, Virginia 16-051-106049, 17-051-106754 John T. Burch Jr. On April 24, 2017, the Virginia State Bar revoked Warren Wilson Alexandria, Virginia McLain’s license to practice law based on his affidavit consent- ing to the revocation. In consenting to the revocation, McLain 17-042-107702 acknowledged that the allegations against him are true and that On May 25, 2017, the Virginia State Bar Disciplinary Board he could not successfully defend against them. Rules Part 6, § IV, revoked John T. Burch Jr.’s license to practice law based on his ¶ 13-28 affidavit consenting to the revocation. In consenting to the http://www.vsb.org/docs/McLain-051817.pdf revocation, Burch acknowledged that the allegations against him are true and that he could not successfully defend against them. Karen M. Kennedy Rules Part 6, § IV, ¶ 13-28 Fredericksburg, Virginia http://www.vsb.org/docs/Burch-061317.pdf 12-070-090804, 14-070-096518, 15-070-100785, 15-070-102529, 15-070-102703 Vinceretta Taylor Chiles Effective May 8, 2017, the Virginia State Bar Disciplinary Richmond, Virginia Board suspended Karen M. Kennedy’s license to practice law 16-033-097624, 16-033-1040323 for one year with terms for violating professional rules that Effective April 1, 2017, the Virginia State Bar Disciplinary govern scope of representation, diligence, communication, fees, Board suspended Vinceretta Taylor Chiles’s license to practice safekeeping property, declining or terminating representation, law for two years for violating professional rules that govern conflict of interest: prohibited transaction, and misconduct. competence, diligence, communication, safekeeping property, This was an agreed disposition of misconduct charges. RPC declining or terminating representation, fairness to opposing 1.2(a), 1.3(a,b), 1.4(a), 1.5 (a)(1-8), 1.8(f)(1-3), 1.15(a)(1)&(c) party and counsel, bar admission and disciplinary matters, and (1), 1.16(d), 8.4(b) misconduct. RPC 1.1, 1.3(a-c), 1.4(a-c), 1.15(a)(1)(b)(2-5), http://www.vsb.org/docs/Kennedy-051817.pdf 1.16(d), 8.1, 8.4(a-c) http://www.vsb.org/docs/Chiles-051917.pdf Christopher DeCoy Parrott Manassas, Virginia Scott Alan Flanders 17-000-108869 Vienna, Virginia Effective August 22, 2018, the Virginia State Bar Disciplinary 17-000-108418 Board suspended Christopher DeCoy Parrott’s license to prac- On March 24, 2017, the Virginia State Bar Disciplinary Board tice law for an additional six months for failing to comply with suspended Scott Alan Flanders’s license to practice law for two the terms on a twenty-one month suspension issued November years based on his guilty plea to a felony in the United States 21, 2016. Rules Part Six, § IV, ¶ 13-29 District Court for the Eastern District of Virginia, Alexandria http://www.vsb.org/docs/Parrott-061917.pdf
52 VIRGINIA LAWYER | June 2017 | Vol. 66 www.vsb.org Virginia Lawyer Register
Malcolm Pierce Rosenberg H. Glenn Goodpasture Philadelphia, Pennsylvania Fredericksburg, Virginia 17-000-108668 17-060-108217 On May 19, 2017, the Virginia State Bar Disciplinary Board sus- On April 18, 2017, the Virginia State Bar Sixth District pended Malcolm Pierce Rosenberg’s license to practice law for Subcommittee issued a public admonition to H. Glenn three years based on his three-year suspension by the Supreme Goodpasture for violating professional rules that govern safe- Court of Pennsylvania. His license had been summarily sus- keeping property and responsibilities regarding nonlawyer as- pended on April 27, 2017. Rules Part 6, § IV, ¶ 13-24 sistants. This was an agreed disposition of misconduct charges. http://www.vsb.org/docs/Rosenberg-061917.pdf RPC 1.15(d)(3)(i-iv)(4), 5.3(b) http://www.vsb.org/docs/Goodpasture-051917.pdf Nicholas Caron Smith Mt. Holly, Virginia Leila Helen Kilgore 16-060-104001, 16-060-104859, 16-060-105281, 16-060-105911, Fredericksburg, Virginia 16-060-106252 16-060-106173 On April 28, 2017, the Virginia State Bar Disciplinary Board On May 18, 2017, the Sixth District Subcommittee of the suspended Nicholas Caron Smith’s license to practice law for Virginia State Bar issued a public reprimand to Leila Helen two years for violating professional rules that govern diligence, Kilgore for violating professional rules that govern diligence and communication, safekeeping property, declining or terminating communication. This was an agreed disposition of misconduct representation, candor toward the tribunal, truthfulness in state- charges. RPC 1.3(a), 1.4(a,b) ments to others, bar admission and disciplinary matters, and http://www.vsb.org/docs/Kilgore-061317.pdf misconduct. RPC 1.3(a,b), 1.4(a,b), 1.15(a)(1)(b)(4,5)(c)(1-4), 1.16(a)(1)(d), 3.3(a), 4.1, 8.1(a,c,d), 8.4(c) David Michael McCormick http://www.vsb.org/docs/Smith-061317.pdf Lightfoot, Virginia 15-022-102544, 16-022-103337, 16-022-104918, 16-022-105038, Pamela Bruce Stuart 16-022-106220 Washington, DC On April 6, 2017, the Virginia State Bar Second District 17-000-108841 Committee issued a public reprimand with terms to David Effective April 21, 2017, the Virginia State Bar Disciplinary Michael McCormick for violating professional rules that govern Board suspended Pamela Bruce Stuart’s license to practice diligence, communication, declining or terminating represen- law for one year and one day based on her suspension by the tation, and procedures for notification of clients when a lawyer Supreme Court of Florida. Stuart’s license had earlier been sum- leaves a law firm or when a law firm dissolves. This was an marily suspended effective April 28, 2017. agreed disposition of misconduct charges. RPC 1.3(a), 1.4(a), Rules Part 6, § IV, ¶ 13-24 1.16(c), 5.8(c) http://www.vsb.org/docs/Stuart-061317.pdf http://www.vsb.org/docs/McCormick-042517.pdf
William Peter Wittig Steven Marcus Miyares Arlington, Virginia Virginia Beach, Virginia 17-041-106873 17-021-108657 On May 24, 2017, the Virginia State Bar Disciplinary Board On May 3, 2017, the Virginia State Bar Second District revoked William Peter Wittig’s license to practice law based on Committee, Section I, issued a public reprimand to Steven his affidavit consenting to the revocation. In consenting to the Marcus Miyares for failing to comply with the terms of a private revocation, Wittig acknowledged that the allegations against reprimand issued October 3, 2014. This was an agreed disposi- him are true and that he could not successfully defend against tion. Rules Part Six, § IV, ¶ 13-15.F them. Rules Part 6, § IV, ¶ 13-28 RPC 1.1, 1.3(a), 1.4(a,b) http://www.vsb.org/docs/Miyares-051817.pdf http://www.vsb.org/docs/Wittig-061317.pdf Steven Marcus Miyares Virginia Beach, Virginia DISTRICT COMMITTEES 16-021-105642 On March 14, 2017, the Virginia State Bar Second District Sonya Borgaonkar Costanzo Subcommittee issued a public reprimand with terms to Steven Fredericksburg, Virginia Marcus Miyares for violating professional rules that govern 16-060-104804, 16-060-106139, 17-060-106529 communication. This was an agreed disposition of misconduct On May 18, 2017, the Sixth District Subcommittee of the charges. RPC 1.4(a,c) Virginia State Bar issued a public reprimand with terms to http://www.vsb.org/docs/Miyares-042517.pdf Sonya Borgaonkar Costanzo for violating professional rules that govern competence and diligence. This was an agreed disposi- tion of misconduct charges. RPC 1.1, 1.3(b) http://www.vsb.org/docs/Costanzo-061317.pdf www.vsb.org Vol. 66 | June 2017 | VIRGINIA LAWYER 53 Virginia Lawyer Register
DISCIPLINARY PROCEEDINGS
Suspension – Failure to Pay Disciplinary Costs Effective Date Lifted Vincent Mark Amberly Leesburg, VA April 25, 2017 Beverly Anne English Virginia Beach, VA May 4, 2017 Wayne Richard Hartke Reston, VA June 9, 2017 Christopher DeCoy Parrott Manassas, VA March 14, 2017 May 18, 2017
Suspension – Failure to Comply with Subpoena Shelly Renee Collette Winchester, VA April 12, 2017 April 21, 2017
NOTICES TO MEMBERS
MCLE ADMINISTRATIVE SUSPENSIONS NOMINATIONS SOUGHT FOR BOARD AND COMMITTEE Virginia State Bar members who have been administratively VACANCIES suspended for failure to comply with the Mandatory Continuing Legal Education requirements for 2016 are listed at http://www. Volunteers are needed to serve the Virginia State Bar’s boards vsb.org/site/members/administrative-suspensions#MCLE. The and committees. The Nominating Committee will refer nomi- requirements are described in Part 6, Section IV, Paragraphs 17, nees to the VSB Council for consideration at its October meet- 13.2, and 19 of the Rules of the Virginia Supreme Court. The ing. With the exception of the VLF Board, all appointments are VSB has been unable to contact some of these attorneys. The bar made by the Supreme Court of Virginia. requests that members report the location and practice status of any person on the list by contacting the MCLE Department at Vacancies in 2018 are listed below. All appointments or elec- (804) 775-0577 or [email protected]. The list was posted on- tions will be for the terms specified, beginning on July 1, 2018. line June 30, 2017. To determine whether a listed attorney has fulfilled MCLE obligations after that date, contact the MCLE Council Members at Large: 3 lawyer vacancies (of which 1 Department. incumbent is not eligible for reappointment and 2 incumbents are eligible for reappointment to a second term). May serve 2 DUES STATEMENTS MAILED consecutive 3-year terms. Dues statements were mailed June 16. The annual dues must be received at the Virginia State Bar by July 31, or delinquency fees Disciplinary Board: 5 lawyer vacancies and 1 lay member will be assessed. All active members must pay the Clients’ Pro- vacancy (of which 3 lawyer members are not eligible for tection Fund assessment and provide a completed and signed reappointment and 2 current members are eligible for reap- Mandatory Certification Regarding Professional Liability Insur- pointment to a second term, and 1 lay member is not eligible ance, also by July 31. Separate fines will be assessed for unpaid for reappointment). District committee service is required. May dues, unpaid CPF fees, and incomplete liability insurance certifi- serve 2 consecutive 3-year terms. cations. You may renew your membership, certify your liability insurance coverage, join VSB sections, and pay your dues online Mandatory Continuing Legal Education Board: 4 lawyer va- by going to Member Login on the VSB home page. Corporate cancies (of which 3 members are not eligible for reappointment Counsel Registrants may also use this feature. and 1 current member is eligible for reappointment to a second term). May serve 2 consecutive 3-year terms. MAILING OF MCLE INTERIM REPORT HAS BEEN DISCONTINUED Virginia Law Foundation Board: 2 lawyer vacancies. May serve In the interest of cost savings the MCLE Department will 2 consecutive 3-year terms. Appointment by VLF Board on discontinue mailing the MCLE Interim Report. Now is the time recommendation of VSB Council. to check your online record and plan your MCLE compliance. Apply now for any non-approved course that you have attended. Nominations, along with a brief résumé, should be sent by The MCLE compliance deadline is October 31, 2017. September 1, 2017, to Michael W. Robinson, Chair, VSB Nominating Committee, NOMINATIONS SOUGHT FOR TWO PRO BONO AWARDS Virginia State Bar, The Access to Legal Services Committee of the Virginia State 1111 E. Main St., Suite 700, Richmond, VA 23219-0026, or Bar is seeking nominations for the Lewis F. Powell Jr. Pro Bono e-mailed to [email protected]. Award and the Frankie Muse Freeman Organizational Pro Bono Award. The nomination deadline is August 18, 2017. http://www.vsb.org/site/news/item/vsb_seeks_nominations_ for_two_pro_bono_awards
54 VIRGINIA LAWYER | June 2017 | Vol. 66 www.vsb.org Professional Notices
Rodney K. Adams, a shareholder in Wyatt A. Deal has been pro- For an initial two-year term as direc- LeClairRyan’s Richmond office and an moted to partner at Hunton tor: Helivi L. Holland, Suffolk; Lesa J. adjunct professor at Virginia Common- & Williams LLP. Yeatts, Town of Herndon. For a second wealth University, is one of two recip- two-year term as director: Mark C. ients of the Jerry L. Norville Award for Stephanie M. Edwards Deal Popovich, County of Isle of Wight; Erin Outstanding Educator from the VCU founded Edwards Elder C. Ward, County of Fairfax. Master of Health Administration class Law PA St. Petersburg, FL. of 2018. Her practice focuses on Ibrahim A. Moiz has been elder law, estate planning, promoted to partner at The Wesley D. Allen has joined Blankingship probate, and trust adminis- Partners and Associates of & Keith PC as an associate in its Edu- tration. Edwards NOVA Business Law Group cation Law and Litigation practice. His LLP. He will continue to Moiz practice focuses on civil litigation with Michael P. Goldman has concentrate on corporate an emphasis on education matters. been promoted to partner at transactional and real estate law. Hunton & Williams LLP. Atlantic Law Group LLC of Leesburg Elizabeth Smith Olcott has joined has merged with Orlans Associates PC, Bonnie H. Hoffman has Goldman Christian & Barton LLP in Richmond as of Troy, MI, and Orlans Moran PLLC, been appointed director of an associate in the firm’s health care and of Waltham, MA, to form Orlans PC, Public Defense Reform and corporate practice groups. the second largest Women’s Business Training by the National Association of Enterprise National Council certified Criminal Defense Lawyers. Hoffman, a William F. O’Mara has been women-owned law firm in the United deputy public defender in Leesburg, has appointed a partner at Nor- States. As a result of the merger, Orlans been a member of NACDL since 1997. folk-based Cooper Hurley PC will operate in seven states and the Injury. He joins founding District of Columbia. Marie E. H. Johnson has partners John Cooper and O’Mara become a principal with Jim Hurley. He joined Coo- Maureen E. Carr has joined Bean, Chadwick, Washington, per Hurley Injury Lawyers Kinney & Korman as a shareholder. She Moriarty, Elmore & Bunn in 2014. is well versed in employment law, and PC, practicing in the Fairfax Johnson her experience includes representing office and focusing her J. Terry Parsley has joined clients in internal investigations by fed- practice in the area of com- Kaplan Voekler Cunning- eral agencies, assisting with EEOC and mon interest community association ham & Frank PLC as a FLSA disputes, and aiding clients with representation. partner practicing in the drafting effective employment policies firm’s Business & Corpo- Parsley and procedures. Kutak Rock has relocated its Richmond rate section. He brings over office to suite 1000 in the West Tower of thirty-five years of expe- Ginger T. Chapman has Riverfront Plaza, 901 East Byrd Street. rience advising clients on mergers and joined Wharton Aldhizer The firm’s presence in Richmond dates acquisitions, commercial lending, estate & Weaver PLC. She focuses back nearly two decades and consists planning and wealth management, ER- her practice in intellectual of eight lawyers working nationally ISA and ESOPs, and general corporate property with an emphasis Chapman on matters involving bankruptcy and and business planning. on patents. creditors’ rights, complex commercial litigation, public finance, and real estate. Cathryn Le Regulski has been promot- Cary Z. Cucinelli and ed to partner in DLA Piper’s Northern Valerie B. Geiger have The Local Government Attorneys of Virginia office. She is a member of DLA announced the merger of Virginia Inc. has elected the following Piper’s Employment practice, where she Cucinelli Geiger PC. The new officers and members of the board counsels management on employment new law firm will be in Fair- Cucinelli of directors for the 2017–18 year. law compliance issues, hiring and ter- fax with a satellite office in For a one-year term as officer: president, minating employees, effective manage- Reston. Cucinelli Geiger PC Tara A. McGee, Goochland County; ment of difficult employees, proprietary is a boutique law firm that vice president, Roderick B. Williams, information and trade secret protection, focuses on elder law, estate Frederick County; treasurer, Timothy workplace investigations, and devel- planning, and special needs R. Spencer, Roanoke; secretary, Lola oping and implementing personnel planning. Geiger Rodriguez Perkins, Hampton. practices. www.vsb.org Vol. 66 | June 2017 | VIRGINIA LAWYER 55 Professional Notices
John Thorpe Richards Jr., of Bogorad & Richards PLLC in Alexandria, and his Professional Notices wife Jordan Richards have E-mail your news and high-resolution been presented with The Richards Mariska McWilliams Cumings Hall professional portrait to hickey@vsb Tuberous Sclerosis Alliance’s .org for publication in Virginia Lawyer. Courage in Leadership Walsh, Colucci, Lubeley & Walsh PC Professional notices are free to VSB members and may be edited for length Award. In making the award the TS announced that Sara V. Mariska and and clarity. Alliance noted that “because of their Charles E. McWilliams Jr. have been leadership and dedication, Congress has named shareholders of the firm. They appropriated $65 million to the De- were previously associates of the firm. partment of Defense’s Congressionally Nicholas V. Cumings and Stephen Hall Directed TSC Research Program over have joined the firm as associates in the the years.” Land Use & Zoning Practice Group. For confidential, Leonard C. Tengco has free consultation joined Shapiro & Brown Ashley H. Waterbury, of LLP as an associate in its Wharton Aldhizer & Weav- available to all Virginia attorneys Manassas office, focusing er, was recently appointed on questions related to: his practice in financial Tengco interim town attorney of legal malpractice avoidance, claims services and real estate the Town of Mount Craw- Waterbury litigation. ford. She succeeds attorney repair, professional liability insurance Bob Lunger in the position. issues, and law office management, William (Bill) L. Walsh Jr., has been added as counsel in Hirschler Fleischer’s call Fairfax County lawyer, John J. Tysons office. Walsh was partner with Brandt, who acts under the auspices Venable for more than thirty years and of the Virginia State Bar at spent much of his career representing federal and state sector companies that (703) 659-6567 contract with the US Department of Defense and civilian agencies.
“Not in Good Standing” Search Available at VSB.org
The Virginia State Bar offers the ability to search active Virginia lawyers’ names to see if they are not eligible to practice because their licenses are suspended or revoked using the online Attorney Records Search at www.vsb.org/attorney/attSearch.asp. The “Attorneys Not in Good Standing” search function was designed in conjunction with the VSB’s permanent bar cards. Lawyers are put on not-in-good-standing (NGS) status for administrative reasons — such as not paying dues or fulfilling con- tinuing legal education requirements — and when their licenses are suspended or revoked for violating professional rules. The NGS search can be used by the public with other attorney records searches — “Disciplined Attorneys” and “Attorneys without Malpractice Insurance” — to check on the status and disciplinary history of a lawyer.
56 VIRGINIA LAWYER | June 2017 | Vol. 66 www.vsb.org Classified Ads
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Remarkable Words from Remarkable Award Winners
The historic 2017 VSB Annual Meeting accepted that I would not be sitting in and exclusion are resurgent. And we once again brought together more than the shade of this tree that I was planting. have to keep making the commitment to 600 lawyers and judges from across the How wrong I was! the pursuit of justice, to diversity and to state to talk policy, induct the new VSB The Young Lawyers Conference inclusion, again, and again, and again. president, attend CLEs, connect with accepted the challenge and brought other lawyers in the full spectrum of forth the Oliver Hill-Samuel Tucker Oliver White Hill Law Student practice areas, and celebrate those who Institute, and over the years hundreds Pro Bono Award have made a lasting contribution to the of black high school students dared to Amber A. Strickland profession. dream that they could become members Each year a number of awards are of this profession, and many of them are “Each time a man stands up for an idea, given at the annual meeting, and the practicing law today. or acts to improve the low of others, or words of the recipients as they accept … And we observe another glorious strikes out against injustice, he sends those awards are often as remarkable as milestone tonight, as Doris Causey forth a tiny ripple of hope, and crossing the recipients themselves. becomes the first African American, the each other from a million different cen- fifth woman, and the first legal ser- ters of energy and daring those ripples Following are excerpts from the vices lawyer to become president of the build a current which can sweep down speeches delivered by four of those Virginia State Bar. the mightiest walls of oppression and recipients. To read their full remarks The cool shade of this tree is the resistance.” — Robert F. Kennedy go to http://www.vsb.org/site/news/ more satisfying for its being so unex- This quote hands on a wall at the item/2017_annual_meeting_featured_ pected. bottom of the stairs of the UVA Law remarkable_words_and_moments … In the 2000 movie “Keeping the Library. I remember walking down the Faith,” there is a scene where a young stairs of that library early in by 1L fall Clarence M. Dunnaville Jr. priest is experiencing a crisis in his com- and seeing this quote. I was struck by Achievement Award mitment to his vows and his religious the way it summed up the way I wanted Joseph A. Condo vocation, and goes to see his mentor, a to approach law school and my legal monsignor. One of the things the mon- career. In my speech at my installation as signor tells him is this: This quote reminds me that the president of the Virginia State Bar 17 You cannot make a real commit- work of justice is a collective effort. years ago, I quoted this Russian proverb: ment unless you accept that it’s a choice None of us can accomplish our goals of “A man learns the meaning of life when you keep making again, and again, and reforming the criminal justice system, he plants a tree in whose shade he will again. ensuring the protection of civil rights, never sit.” And when I began this effort These are dangerous times. The or guaranteeing fair housing without to broaden access to our profession, I powerful forces of entrenched privilege relying on the work of others. But we
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1: Joseph A Condo, recipient of the Clarence M. Dunnaville Jr. Achievement Award, is flanked by Diversity Conference Chair Latoya A. Capers and Judge Manuel A. Capsalis.
2: Angela A. Ciolfi, recipient of the Virginia Legal Aid Award (left), and Amber Strickland, recipient of the Oliver Hill Law Student Pro Bono Award (right), pose with Don Sanders, vice president, Civil Legal Services, National Legal Aid & Defender Association. The awards are presented by the Special Committee on Access to Legal Services.
3: The family of James P. “Penny” Baber accepts the Tradition of Excellence Award, 5 presented by the General Practice Section, on his behalf.
4: James E. Moliterno, professor of law at Washington and Lee University, accepts the William R. Rakes Leadership in Education Award, presented by the Section on Education of Lawyers in Virginia. He is flanked by Rakes (left) and section Chair John M. Bredehoft.
5: Doris Henderson Causey is sworn in as president of the VSB by The Honorable Marilynn C. Goss of the Richmond J&DR District Court. Causey’s husband, Tracy L. Causey, holds the Bible.
6: Doris Henderson Causey (left) accepts the baton from outgoing VSB President Michael W. Robinson at the Saturday night banquet.
7: The Honorable Cleo E. Powell, of the Supreme Court of Virginia, speaks during 6 7 Causey’s induction ceremony.
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aren’t simply reliant on others to achieve So how do we fight poverty and re- our goals, we need each other to stay ject the narrative of wealth supremacy? motivated and to stay in the fight. Not through charity. As Marian Wright … This quote by Bobby Kennedy Edelman says, “With true structural has been a source of encouragement not change there would be far less need for just because it reminds me that justice is charity; without it the very best charita- a collective effort, but it has also served ble efforts will never be enough.” as a reminder to have hope. Each time Not through passion. As President I left the library I walked out remem- Obama said, “Passion is great, but you bering that the goal of justice is not an got to have a strategy.” insurmountable one. Our individual Our strategy — as members of the paths may have many turns, but despite legal aid community — is to do justice. the obstacles or hardships we face To change the structures that create and Real reform requires entirely new ourselves or on behalf of our clients, perpetuate poverty through organizing, ways of seeing law school curricula that together change is possible. Together we educating policymakers, and yes, impact connects students to the lives that law- can sweep down the mightiest walls of litigation. yers actually lead, placing students in the oppression and resistance. role of lawyer and guiding them as they William R. Rakes Leadership in try out their new life, their new skills, Virginia Legal Aid Award Education Award their new thought processes. Angela A. Ciolfi James E. Moliterno It requires new ways of seeing the world of lawyers and of academic You know, I look around this room and In my career as a legal education re- work. If you are bold, you stop seeing I have some regret and trepidation that former, I have learned that mild efforts academic life as existing at 30000 feet I chose to talk about race and poverty in have no hope of reforming anything above the earth, looking down on the front of so many luminaries who know as intransigent and stuck in its ways as place where the practicing lawyer lives. more about the subject than I do — but legal education. Instead I learned that Instead you start seeing academic work, no turning back now! whatever success occurs only happens teaching work, curricula being all about Back home in Charlottesville, we with a combination of determined, the ground lawyers walk on every day. have been talking a lot about how we persistent effort, humility, and a healthy It is about the place our feet take every confront our history of enslavement, amount of hubris. Without a healthy step, where lawyers learn to be better violence, and oppression toward people measure of boldness and belief that no lawyers from their experience, where of color, and how we deal with monu- goal is unreachable, reform efforts will lawyers face real challenges and solve ments glorifying and romanticizing that produce little more than a new clinical real problems of clients. Reaching for history. offering or a modest change in an exist- the stars does not mean flying higher; it For many of the descendants of for- ing legal writing course. And while these means seeing the significance of ground merly enslaved people, I am told, those modest things have value to be sure, to underneath the steps we walk every day. monuments evoke dread, a physically make real change requires real boldness. painful reminder of the physical vio- lence against the bodies of black people. But it is not only the monuments to oppression we build in our physical world that should give us pause. It is the monuments we build inside our heads; the stories we tell ourselves about why it is ok to justify the mass oppression of other people. … But as Nelson Mandela said, “Like slavery and apartheid, poverty is not natural. It is man-made and it can be overcome and eradicated by the actions of human beings. And overcom- ing poverty is not a gesture of charity. It Doris Henderson Causey is greeted by a long standing ovation from 280 friends, relatives, judges, and fellow lawyers as is an act of justice.” she is introduced as the 79th president of the Virginia State Bar at the banquet on Saturday night.
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6 1: More than 200 Virginia lawyers, who were admitted to the bar between July 1, 1966, and June 30, 1967, were honored with Fifty-Year Awards. Twenty-nine of them, including former Virginia Governor Gerald L. Baliles, attended the annual brunch hosted by the Senior Lawyers Conference. 2: Continuing a long tradition, outgoing President Michael W. Robinson receives a caricature depicting moments in his life and career from VSB Executive Director Karen A. Gould. 3,4: Outgoing members of the VSB Council were 5 honored at the Opening Reception and Dinner on Wednesday night. 5: Law student mentees, sponsored by the Diversity Conference, pose with their mentors. Mentees this year were Alexis Adams, University of Richmond; Mary Alvarez, Liberty University; Dedra Brown, Appalachian; Jacqueline C. Coplen, University of Virginia; Priscila Nogueira da Silva, Liberty University; Makiba Gaines, Regent University; Hassan Halim, William & Mary; Charu Kulkarni, Washington and Lee; Wai Sam Lao, Antonin Scalia; Angela London, Antonin Scalia; Jada Moss, William & Mary; Alicia Marie Penn, University of Virginia; Christopher Porsenna, Appalachian; Angelique 7 8 Rogers, Washington and Lee; and Michael Sylvester, Regent University. 6: Evangeline Ellis, a junior at George Mason High School in Falls Church, receives the VSB’s 2017 Law in Society Award from Litigation Section Chair Kristan E. Burch. 7: Three presidents — past, present, and future — take a moment together at the Saturday night reception. Pictured are Michael W. Robinson, Doris Henderson Causey, and Leonard C. Heath Jr. 8: A group of mentees pose with Justice Cleo E. Powell.
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4 7 1: Melissa A. Little (center, left) and Crystal S. Shin (center, right) receive the R. Edwin Burnette Jr. Young Lawyer of the Year Award during the Young Lawyers Conference luncheon. They are flanked by YLC President Dean E. Lhospital (left) and Judge Burnette. 2: The Republican and Democratic Party candidates for attorney general met in their first debate on Saturday morning. The debate between Republican John D. Adams of McGuireWoods LLP in Richmond (left), and incumbent Democrat the 3 Honorable Mark R. Herring (right) was moderated by Barbara Hamm Lee. 3: Adams and Herring shake hands before the debate. 4: Chris Fortier, 2017–18 president of the Young Lawyers Conference, attended the meeting with his new baby. They were warmly greeted by Doris Henderson Causey. 5: Heather Scott Miller, an associate at Sevila, Saunders, Huddleston & White in Leesburg, receives the Local Bar Leader of the Year Award presented by the Conference of Local and Specialty Bar Associations. Outgoing CLSBA Chair Barbara S. Anderson and outgoing VSB President Michael W. Robinson presented the award. 6: Andrew J. Reinhardt, of Reinhardt, Harper, Davis PLC, receives the inaugural Specialty Bar Leader of the Year Award for his work with the Virginia Workers’ Compensation American Inn of Court. 7: The Charlottesville-Albemarle Bar Association receives the Bar Association of the Year Award, also sponsored by the CLSBA.
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1: After the passing of the baton and the oath of office were administered to Doris Henderson Causey, the banquet crowd hit the dance floor. The banquet was spon- sored by The McCammon Group. 5 2: In addition to the long list of CLEs and official functions, the Annual Meeting is also a place to meet and mingle. Among 6 those attending were Caroline C. Thrasher III and Mikhail N. Lopez, president of the Hispanic Bar Association of Virginia. 3: Many people bring their families to the Annual Meeting to take advantage of the location — at the beach. Carolé C. Krogmann and her daughters were 7 among them. 4: The annual volleyball tournament on Saturday gets more popular every year. 8 5: Bingo is always good for laughs. Trenya Futrell Mason, her husband Ashanti Mason, son Asher, and daughter Johanna played multiple cards. 6: For early risers, the Annual Meeting offered yoga classes on Friday and Saturday morning. 7: Runners set their times as the annual 5K Run in the Sun, sponsored by Virginia Lawyers Weekly and the YLC, hit the boardwalk at 7:30 a.m. on Friday. 8: The Fore Diversity Golf Tournament is sponsored by the Diversity Conference at the Virginia Beach National Golf Course.
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