President’s Page ...... Jesse B. Wilson, III 2

The Battered Image of the Lawyer-- A Modest Proposal ...... Hardy Cross Dillard

The "Plain English" Trust ...... J. Rodney Johnson 11

The Proposed Revision o[ UCC Article Eight ...... Andrew W. McThenia, Jr. 15

A Brief Introduction to Qualified Employee Pension Plans ...... Louis .4. Mezzullo 19

The Good Samaritan in Virginia 22

Law Reform: Virginia’s Alcohol Safety Action Program ...... B. Waugh Crigler 27

31 THE VIRGINIA BAR ASSOCIATION OFFICERS AND EXECUTIVE COMMITTEE

President Past President Jesse B. Wilson, III Edward R. Slaughter, Jr. 4069 Chain Bridge Road P.O. Box 1191 Fairfax, Virginia 22030 Charlottesville, Virginia 22902

President-Elect Secretary- Treasurer L. Lee Bean A. Ward Sims 2045 15th Street, North P.O. Box 1029 Arlington, Virginia 22201 charlottesville, Virginia 22902

Chairman, Young Lawyers Section Chairman-Elect, Young Lawyers Section David Craig Landin Charles F. Midkiff P.O. Box 1191 1200 Mutual Building Charlottesville, Virginia 22902 Richmond, Virginia 23219

Director of Committee Activities John Ritchie P.O. Box 5206 Charlottesville, Virginia 22905

Executive Committee (Other than Ex-Officio Members)

Hugh L. Patterson, Chairman Kenneth S. White Lewis M. Costello 1800 Virginia National Bank Bldg. P. O. Box 958 Box 2760 Norfolk, Virginia 23510 Lynchburg, Virginia 24505 Winchester, Virginia 22601

Robert P. Buford John F. Kay, Jr. Thomas R. Watkins 707 East Main Street P. O. Box 1122 Tower Box 60 1 lth Floor Richmond, Virginia 23208 2101 Executive Drive Richmond, Virginia 23212 Hampton, Virginia 23666

Gerald L. Baliles John L. Walker, Jr. John C. Wood P. O. Box 1640 P. O. Box 720 P. O. Box 369 Richmond, Virginia 23213 Roanoke, Virginia 24004 Fairfax, Virginia 22030 rginia BarJlss0ciatioq Nour al

Volume VI Winter 1980 Number 1

EDITORIAL BOARD CONTENTS

Appointed Members President’s Page ...... 2 David W. Parrish, Jr. Jesse B. Wilson, III Chairman The Battered Image of the Lawyer--A Modest Proposal 4 Charlottesville Hardy Cross D-illard Vernon M~ Geddy, Jr Willi~imsburg The "Plain English" Trust ...... ~ ...... ! 1 ]. Rodney Johnson Thomas C. Gordon, Jr. Richmond The Proposed Revision of UCC Article Eight ...... 15 Edward S. Graves Andrew W. l~lcThenia, Jr. Lynchburg A Brief IntrOduction to Qualified Employee Pension Plans ...... 19 Ex-Officio Members Louis ,4. Mezzullo Jesse B. Wilson, III President The Good Samaritan in Virginia ...... 22 Fairfax Special Issues and Projects Committee, YLS L. Lee Bean Law Reform: Virginia’s Alcohol Safety President-Elect Action Program ...... 27 Arlington B. Waugh Crigler A. Ward Sims Bar Association Proceedings Secretary- Treasurer The Winter Meeting ...... Charlottesville 32 YLS Will Sponsor Program on "Associates" David Craig Landin at the Winter Meeting ...... 35 Chairman, Young Lawyers Section Announcements ...... 36 Charlottesville YLS Chairm~n’s Report.: ..... : ...... °: ...... 37 Memorials ...... 39 Editorial Staff

Charles E. Friend Editor The Virginia Bar Association Journal is published quarterly by The Virginia Bar Association as a service to the profession. Contributions are welcome, but the Bess Castle Wendell right is reserved to select material to be pul~lished. Publication of any article or Associate Editor statement is not to be deemed an endorsement of the views expressed therein by Douglas R. Maxwell th~ Association. The office of publication is located at 3849 W. Weyburn Road, "Richmond, Virginia 23235. Editor, Young Lawyers Contributions Membership dues include the cost of one subscription to each member of the Association. Subscription price to others, $8.00 per year; single copies $2.50. Second-class postage paid at University of Richmond, Virginia 23173. (ISSN 0360-385"7) ’ (USPS 093-110) JESSE B. WILSON, III

Delays, Costs and the Practice of Law

AS laypeople, we lawyers share with our fellow citi- congestion which adds to the overall delay in gettin~ zens the concern over allegations that doctors perform cases to trial. unnecessary examir~ations, testing and procedures and The reduction of the use of excessive discovery is an thereby increase the cost of medical services. As profes- improvement in trial practice plainly within the sionals, we lawyers must be concerned with the power of the bar to accomplish. By doing so, lawyers increasing number of complaints from clients and will be not only doing something for the image of the others about the long delays and high costs involved profession but also making a positive contribution to in taking a case through litigation. the administration of the court system, reducing the There may be many causes of delay in any given cost of litigation and, possibly, enhancing the in- case, but one which is as constant as any, and for which comes of individual lawyers by improving.the pros- lawyers have direct responsibility, is the excessive use pect that more people will seek the assistance of of discovery. A tool designed to narrow and define the lawyers in dealing with their problems. issues and to shorten and simplify the trial of cases has On the other hand, should nothing be done, one instead become the source of a flood of paperwork and may reasonably suppose that public dissatisfaction the cause of additional disputes between counsel with undue delay and cost will cause, first, the avoid- requiring further pleading and court appearances. In ance of the lawyers reputed to cause it and, ultimately, some cases, it is fair to say that excessive discovery has the development of alternate systems of dispute resolu- been resorted to for the sole purpose of delay. tion which limit or eliminate the need for licensed An immediate effect of the abuse of this valuable lawyers. tool is the increase in cost to our clients, giving those At present, lawyers enjoy the benefit of some contro- inclined to do so one more opportunity to charge that versial but generally accepted and, therefore, enforce- lawyers are more interested in fees than pushing cases able rules describing the practice of law and limiting to conclusion. An indirect effect is increased court those who may engage in it. Unauthorized Practice ¯ Rule ]-101, which was adopted by the Virginia State ation is past. During the year, I have, in this page and Bar Council in October, 1979 for recommendation to elsewhere, tried to focus the attention of the Associa- the Supreme Court of Virginia, severely limits the tion, and the bar at large, on a few of the important right of non-lawyers to represent others in court. The problems with which the lawyers in Virginia are rationale for this limitation, as the Attorney General faced. noted in his official opinion on that proposed Rule, is I have taiked about the need to restore public confi- that lawyers, as officers of the court, "are best able to dence in our disciplinary procedures and how the assist the court to proceed in [an] orderly and expedi- inclusion of laypeople in this process would help. I tious fashion" (emphasis supplied and citation omit- have suggested that two basic problems facing our ted). Thus the very foundation of our exclusive right profession are (1) the perception by the public that the to carry on the task of courtroom representation of our righ( lawyer for the problem at hand is too hard to clients is the assumption that lawyers can expedite the find and costs too much and (2) that the facts are large- proceedings. ly in accord with this perception. I have digcussed the These rules promulgated by the bar which seek to advantages of spot audits of lawyers’ trust accounts to limit the practice of law to licensed lawyers are under assist in proper record keeping and diminish the cost attack. The Surety Title case here in Virginia was such of maintaining the Client Security Fund, and, finally, an attack and isa warning that other challenges to the I hav~ ~ried to point out the need for and the advisabil- lawyers’ claim to the exclusive right to engage in cer- ity of having both a strong voluntary Virginia Bar tain activities described as the "practice of law" are Association and a strong unified Virginia State Bar likely to come. Our job is to see that a rational basis working together on the various matters of organized for sustaining our claim .can be clearly demonstrated. bar concern in Virginia. Some federal trial judges are now prohibiting the In the remaining space I have, I want to express my use of lengthy form interrogatories. We should not sincere appreciation to Lee Bean, our President:elect, need such prodding. The use of spare, concise and for his counsel throughout the year and his good work pointed discovery pleadings and procedures should in arranging the programs at our meetings; to the become the mark of a good trial lawyer. members of the. Executive Committee and, particu- The problem of delay and costs in trials is becoming larly, its chairman, Hugh Patterson, for the time and widely recognized. The American Bar Association is consideration which each has given to the work of the making it the focal point for.a~cti0n thro’ugh a new Association during the year; to Jack Ritchie for rea- Action Commission to Reduce Court Costs and Delay. sons I have previously expressed in this space, and to _ I expect that our Association will cooperate in this Ward Sims whose worLas our Secretary-Treasurer is effort. The solution, however, lies in the hands of the invaluable to ihe Association and who has always had individual lawyer. a ready supply of last-minute wisdom and calming assurance when those commodities were in g.reat demand. A Final Word It has been a great honor for me to have had the This article is being drafted in early November opportunity to serve as your President, and I thank ¯ when most of the work of the President of this Associ- you for it.

.3 HARDY CROSS DIL.LAi D

The Battered Image of the Lawyer. A Modest Proposal

1938 to 1942, he was a guest lecturer at various~univer-

EDITOR’S NOTE: The folldwing is an edited transcript sities, including being a Fulbright Lecturer at Oxford of the address of the Honorable Hardy C. Dillard Io The University and a Carnegie Lecturer at the Hague Virginia Bar Association at the Association’s Summe," Academy of International Law. "lZhe lectures that he Meeting at the Greenbrier, July 28, 1979. gave at the Hague academ~, were published under the title of "Sortie Aspects of Law and Diplomacy," which were subsequently described by a reviewer as a minor Introduction by President Jesse B. Wilson, IIl classic’. He whs a member of the commission which For those of you--and there are many in this revised the modern Virginia Constitution in 1968, he audience--who know our speaker this evening, it was President of th~ American Society of International might be sufficient introduction to tell you that when La~,~ from 1962 to 1963 and he is a member of the I saw some background information about him, what Council of the American Law I~stitute. I received was a printout from ,"Who’s Who in the Obviously, there are a lot of other things that.I World." I won’t comment on who sent it to me. How- could tell you about our speaker, but I’m constrained ever, recognizing that there may be a few in the by time and, in that respect, I discussed time and the audience who are not familiar with our speaker and length of the talk with him when we were talking his distinguished career, I’ve selected a few pertinent about this evening, and .I suggested that twenty to items from that printout. And let me say that if I were twenty-five minutes would be an appropriate period disposed to attempt eloquence in making this intro- of time, and he said, "Jesse, I can’t even get warmed duction, I’d be discouraged by the certain comparison up in twenty minutes," but he does have a strong with that which is to follow. reputation as a fifty minute man and without further Our speaker was born in New Orleans, Louisiana. ado, I’m very pleased to present to you Judge Hardy He received his preparatory education at the Virginia Diilard. Episcopal School. His undergraduate work was done at the United States Military Academy at West Point and he received his law degree at the University of Remarks of Judge Hardy Cross Dillard Virginia in the Class of 1927. After a fling at postgrad- uate work and practice in New York, he joined the JESSE, distinguished guests and ladies and gentle- faculty at the University in 1931, and in 1938 he men. I’m never asked to give a speech that my mind became the holder of the Chair as James Monroe Pro- doesn’t travel back--I’m going to come a little later on fessor of Law and he held that chair from 1938 to 1958. to your reference to the twenty minutes--to two inci- In 1963, he became Dean of the University of virginia dents in my own life. One was in England in World Law’School, held that position until 1968 when he War II. I had to give a talk to a bunch of English retired, and he was appointed in 1970 as a Judge on barristers on the American Conception of Military the International Court of Justice, "cornmonly known Government. I explained to these people in Wimbei- as the World Court, at the Hague, and held that posi- don, where they had a school similar to the one we had tion until he retired in 1979. at Charlottesville, that I was not a practicing lawyer Otherwise throughout his career, he found time to because I was a professor. On the other hand I was not serve as Director of the Institute of Public Affairs from a professor because I was then in uniform, but then again, I was not really a military man because I was basically a civilian. When the transcript came back, I was somewhat bemused, not to say startled, when the recorder said, "Our speaker has no known qualifica- tions" and then added somewhat, I thought gratui- tously, "a situation for which he’s eminently suited." The second incident occurred in China. I happened to go there because I’d been educated in France, so I ended up the war in China. Again I was involved in military government and they were setting up a Chi- nese school. The Chinese are very polite. I was intro- duced with all the oriental graces, but what lingers in my memory was the peroration. This Major General turned to me and he said, "Now we want you to know, sir, that our so great pleasure at having you with us is only marred by the anticipation of what you’re going to say!" Jesse warned me about the time factor. He said twenty minutes, and then he said I said I couldn’t even get warmed up in twenty minutes. Well, it happens that he’s warned the audience. Now, Jesse, I’m going to warn you. It happens that just night before last, I was reading this wonderful book--Guy Friddell’s book on Colgate Darden, "Conversations with Col- gate Darden." I really would like to recommend it to you. It costs less than one dinner at The Greenbrier. It immortalizes many famous men in this audience, including in particular Aibertis Harrison, because of George Grafton Wilson in Political Science. We had a Darden’s allusions to our Constitutional Revision fuss with Canada over fishing rights. We’re still hav- Commission and other things that Albertis was ing fusses over fishing rights, but this was quite a involved in. But in the course of reading this--it’s full serious fuss at the beginning of the century in 1908, of whimsies attd wisdom--I came across a little anec- near the banks of Newfoundland. It culminated in a dote. He was talking about the time when he was great big arbitration called the North Atlantic Fisher- inaugurating Clinch Valley College in Southwest Vir- ies Arbitration. Elihu Root, no less, argued the case ginia and he was told this story about a preacher. for the U.S. On the examination, George Grafton Wil- Now, this preacher had come hom out of state and he son asked his students a perfectly legitimate question, was preaching a sermon that went on endlessly and to discuss this great fisheries arbitration from the eco- endlessly and endlessly and an old native right there nomic, political and legal point of view of Great Bri- on the second row pulled out a revolver, put it on his tain and the economic, political and legal point of lap in full sight of the preacher, who got the message view of the United States. Now, Benchley was, shall and abruptly terminated his sermon. After the sermon we say, a casual student. He hadn’t the foggiest idea was over, the preacher said, "You wouldn’t really have >,’hat this arbitration was all about. Undaunted, he shot me, would you?" and the fellow said, "No, par- wrote "I can’t discuss this great fisheries arbitration son, I wasn’t going to shoot you, but that fellow who (a) from the economic, political and legal point of invited you here is in very deep trouble!" view of Great Britain, or that of the United States. I Despite the pressure of time, I’m going to start nay propose, therefore," he added, "to discuss it from the address, which is pretty serious--I’m going to start it point of view of the fish." I know it’s true because it with a little anecdote that’s a classic in the interna- was told to me by Ned Dickinson, who was at that tional field. Now, you ladies are too young to know time at Harvard, and it is perpetuated in the records of who Robert Benchley was, but he was one of the great the Readers Digest. The moral of that story is quite comic artists of the twentieth century. It happened he simple. It’s be~ter to have some point of view than went to Harvard and he took International Law under none, and so I will tell you my point of view. My point of view was captured by a little’sign I saw could apply equally to a banker or doctor or the owner outside a Unitarian Church near London. They have of an auto repair shop, but it is usually toid about a these little sermons on the road, and it said, "Between lawyer. dogmatism on the one hand and skepticism on the While we are used to all’ this from these literary other hand, there is a middle way, which is our way-- fellows and may take it in our stride, the indictment, openminded certainty!’~’ So in that mood of exuberant as we all know, has assumed.a new ~limension with humility, I shall now get down to business. the repeated accusations stemming from high quarters First, I’d like to" ask, can you hear me in the rear? about our. competence~ especially in trial advocacy. Can you hear all right in the rear? If you can’t, hold Nor is the indictment limited to the practitioner. The up your hand. You know, it’s awfully dangerous to law ~chools, too, are not only not without sin but, iff ask that question. John Battle likes to tell the story-- part at least, are generators of the malaise--they are incidentally if I tell stories, Jesse, it doesn’t count too complaisant, too concerned with theory, too against my time. Have you heard this story, Albertis, remote from reality--as if a university somehow was that John Battle used to tell when he was on the cam- not part of something very real.’~ The need, so runs the paign trail? He asked a fellow, "Can you hear me in familiar refrain, is for more and more "skill training." the rear?" Right away a fellow on the back row said, This refrain which has been sounded for a long, long "We-can’t heir a damn thing you say." Then ~a chap time has been recently renewed, in a spirited exchange on the third row promptly jumped up and said, "Tell of views in the Summer number of the Virginia Bar that fellow in the rear I’d be glad to change places Agsociation Journal.z with him!" Now this is a serious topic, and I have been told that -Now, let me get down to business. As all of us know, there are only two times a man should be serious. One all through the history of literature we lawyers have is when he is talking to his wife’s relations and the taken it 6n the chin from Rabelais and his wonderful other is when he is asked to return borrowed money. I satire on Judge Bridlegoose, who decided cases by have also been told that a banquet is no time for heavy" throwing dice--big dice for big cases and little dice for discourse, but for mutual ~ego"massaging. So I do not little cases--and they had him up for disbarment propose to enter into this discussion except to make because his eyesight was getting bad. That’s a famous two .incidental comments. satire, but from Rabelais through Shakespeare’s First, I do not feel competent to assess the validity of Henry VI and Dickens, of course, we’ve been depicted, the charge against the practicing bar. I can only say as we all know, at best as scriveners poring over the that the quality of advocacy that I have observed at the fine print in arcane documents, and at the worst, as World Court has been superb. fellows who are rather tricky; who don’,t care about Second, as to the law schools, I suspect that those truth and justice, but are just enamored of technicali- who are so sure that skill training is a major responsi- ties to take advantage of the other side and delay every- bility of the law schools are misguided on three thing as far as possible. Even the poets have taken counts. First, they are unaware of the extent that so- shots at us--Carl Sandburg, W. H. Auden and others. called skill training is already provi~ding. Second, and Even in folklore, in jokes, we get it on the chin. The more important, they misconceive the fundamental worst of these I think is--I really don’t like it--it’s purpose of a law school which reaches beyond a train- about the three men in the boat. I don’t know how ing exercise and finally, third, they commit what I many of you are aware of it, but it’s pretty Widely shall call "the injection fallacy." This fallacy consists disseminated. There were these three men in a boat. in assuming that to learn something you must have an The three men were a lawyer, a doctor and a preacher injection in the form of a formal course of instruction in a rowboat. They lost their oar. The oar drifted out or a mechanical simulated exercise. Thomas Jefferson, into the shark infested waters of the Pacific. They in addition to his many other accomplishments, was a drew straws to see who would retrieve it. The lawyer first-rate lawyer, and John W. Davis was the foremost lost. He dove in. Sure enough, the sharks converged advocate of the 20th century. You may be sure tha’t on him. Then, all of a suddeh, so runs the story, the George Wythe, who influenced Jefferson, find Charlie sharks formed a corridor so he could swim back peace- Graves at Washington g~ Lee, were concerned more fully to the rowboat. The preaeher got up and said, with enlargin.g the understanding and quickening the "My God, my God, a miracle, a miracle!" The doctor imagination of their charges than would have been wryly comme’nted: "No miracle, just professional possible through a heavy accent on skill training.3 courtesy!" Frankly, I don’t like that story which you The learning process does not end with a law degree. I am reminded of the incomparable Yogi Berra perhaps we should include a dash of Aimee Semple when he whimsically remarked that "you can see a lot McPherson. by just observing." And it was by observation that he How can we make the realization of this glowing was led to say that his predecessor, Bill Dickey, ideal more prevalent among all lawyers in every com- "learned me all my experience!" All this is merely a munity throughout the nation? Or more modestly, preliminary observation. The main thrust of this talk how can we, in Virginia, initiate any kind of pilot is pitched at a different level. I shall inquire, in a program with this end in view? I stibmit there is a role serious and perhaps tedious vein, whether there is not here for the Virginia Bar Association acting either something that bar associations are not doing and can independently or through its C.L.E. progr.ams. Nor is do to inspire and elevate the tone of our professions. the c.hallenge one of mere public relations. It goes deeper. Traditionally--and no doubt wisely--C.L.E, has The Ideal Lawyer not attempted to cover the whole spectrum of virtues I begin with the premise that in all intellectual noted above, but has limited itself to increasing the enterprises, including both the physical and social lawyer’s competence and quickening his sense of pro- sciences, it is not only permissible but desirabl~ to fessional responsibility. The former is an exercise in visualize an ideal. So I begin by asking what is our dispensing "knowledge"; the latter is perhaps less ideal? And how can we generate among all lawyers a concerned with dispensing knowledge than it is with more widely distributed approximation to the ideal? creating a mood or awareness. Both are, of course, Now it is not difficult to list the attribu(es of the eminently worthwhile, provided they are well done? ideal lawyer. As I tick off the inventory, I ask you only It is my bold submission that we might well under- to grade yourself. A passing grad~ is 60%. Because I do take an additional responsibility. This additional not want you to miss a single syllable, I shall read it responsibility might be prefaced by first visualizing a slowly. kind of intellectual hie~’archy. He is an able advocate, a wise counsellor, and an energetic defender of his client’s interests. He com- Levels of Mental Capacity bines inspired vision with precise craftsmanship. He At the base are [acts--the raw data pressing upon is endowed alike with legal imagination and a passion our senses--things felt and seen. But facts are inert. As for accuracy. He serves, his client well, be the client the great historian Carl Becker has reminded us, when rich or poor, popular or despised; yet he knows that they lift their heads all they can say is "here I am." serving his client is only a part of the larger demands They cannot tell us whether they are relevant or irrele- of his profession. vfint; significant or trivial, true or false. Above facts is He has a feel for language, a respect for clarity and knowledge--the apprehension, informed by theory of directness of expression, and a disdain of sloppy things felt and seen. Above this is understanding, draftsmanship. Heavoids logical flaws, while under- which is the comprehension of things apprehended. standing the limits of logic as a tool of creative By "comprehension" is meant an awareness of the thought. He is tolerant in judgment without being relationship of one aspect of knowledge to oiher bits weak, and forceful in argument, without being arro- of knowledge. gant. He seasons knowledge "with insight and under- Above understanding are insights--those rare intui- standing with humor, while realizing that knowledge tive flashes that reveal a new dimension to under- and understanding are themselves only the stepping standing. It is the revelation resulting.usually from stones to a rarer attribute called wisdom. prolonged effort and intermittent brooding, by which Finally, he realizes that law’s role is to serve the a fresh thought or a new approach to an old problem purposes of man, and not the other way around. That suddenly emerges. is to say, law is not an end in itself but an instrument Finally, at the apex, is wisdom--the capacity to designed to bring about justly the realization of reach beyond the limits of the rational faculties. It is human dignity in a commonwealth of mutual defer- the product of a reflective mind playing upon ex- ence. perience. In short the ideal--to name only a few deceased From this inventory, imagination :has been omitted. national figures--is a genial blending of Elihu Root, As its etymology suggests, it is the capacity to see sets John W. Davis, Henry Stimson, and John Lord of relationships as images and is, in fact, a kind of O’Brien. And because a touch of passion is needed bridge linking knowledge, understanding, and in- sight. One can imagine a unicorn even if one cannot that forbade public authorities to incur debts because touch it. of certain ceilings on debt limitations. What used to be Let me elaborate on this a little more. It is my sub- called the "special fund doctrine" was a legal con- mission that the imaginative quality does not look at struct that looked at the concept of "debt" in a fresh new phenomena iri a familiar way, as for instance way and thus made possible public constructions and when Robinson Crusoe drew the inference from a thereby provided a means for dominating the depres- footprint that Man Friday was on that island. That is sion. There are many other examples that could be a familiar, routine mental operation. The essence of cited to illustrate what is meant by creative legal the imaginative faculty is the reverse. It does not look imagination. at new phenomenon in a fa’miliar way; it looks at Of course this. quality does not emerge full pano- Jamiliar phenomenon in a new way. That is the key. plied out of the head of Minerva. It is the product of Its perceptions break out of the routine. They break reason tested by experience and experience nourished out of the rational order of events as previously per- by reason. It would be naive to assume that without ceived. Now it may surprise you if I suggest that the some tough experience that our insights and imagina- delightful instinct for humor does the same thing. tive faculties can develop. One is reminded of Mark At the risk of a large digression (and if it does not Twain’s quip about his own reactions. At fourteen, he count against my time) I will elaborate on this seem- once said: "I was astonished to notice how ignorant my ingly irrelevant point. The essence of humor--the father was. At twenty.-one I was surprised to see how ingredient, whether in an anecdote or an event, that much the old man had learned in seven short years!" induces a laugh or a smile lies precisely in the con- Experience does not guarantee the exercise of the junction of totally disparate and incongruent ele- imaginative faculties, but it is only out of experience ments. It is climaxed by the abrupt, unexpected that they can be generated. ending that catches the listener by surprise. The "Benchley" story to which I alluded earlier illustrates A Modest Proposal the point, and I will add one or two others.5 Projected against this b~ackground, I would like to The point is, of course, that there is an affinity submit the following proposal. It is that the bar, while between the recognition of humor and the exercise of retaining its emphasis on dispensing knowledge, the imaginative faculties. Both break out of a routine attempt, by a consciously directed effort, to supple- orderly process and sense that a familiar phenomenon ment the "knowledge" component by providing a can be viewed in a fresh and unexpected way. This is means for a wider sharing of the other qualities noted ’he end of the digression. in the hierarchy described above. The proposal is based on a triple premise: Application of the Imaginative Quality First, that we have a vast reservoir of accumulated In science this is true of Maxwell and Far’day’s dis- experience that remains untappedi coveries and the invention of e. lectricity; it is true of Second, that it is now tappable in a fashion that was the notion, springing from previous limited concep- not possible in the days of Root, Davis, Stimson & Co.; tions of shadows, that light travels in a straight line or and that heat is a form of motion.6 From Galil.eo to New- Third, to repeat, that the tapping and disseminat- ton to Einstein the great discoveries have exhibited ing efforts appropriately fall under the banner of the this quality. bar.s Examples of the use of creative imagination in law The "reservoir of experience" refers to the leading are, of course, not lacking. The notion of "debt" was members of the legal profession in almost all major familiar since ancient times, but the concept that it communities of the nation--those lawyers whose was a saleable commodity and that a "chose in action" knowledge of law is informed by understanding, was assignable was bred from the creative imagination insight, and imagination. of a lawyer. As one political economist has said, it did This proposal was suggested in part by the oral more to create wealth than all the gold and diamonds history project at Columbia University, under th~ in the world.7 Likewise the notion.that we could break guidance of Professor Allan Nevins. An interviewer through the familiar concept of "privity of contract" armed with a tape recorder is used to gather the remi- to permit a third party beneficiary to vindicate his niscences of noteworthy persons. By means of these interest was both novel and constructive. Back in the interviews, much gold has been mined ’that would depression we were stymied by a narrow legal concept have otherwise been lost forever. From the point of view of the historian, the inter~ mistakes and mousetraps to be avoided, as well as view need not be tightly structured, since all random novel devices that are not always currently known. In reminiscences may be grist to the historian’s mill. For keeping with the "pervasive" approach to profes- ~.L.E. purposes, however, the interview could be con- sional responsibility, advice might be included on the trolled to avoid mere anecdotal casuistry. In any event, kinds of temptations that may beset the unwary. extraneous material could be winnowed out through The sheerly practical aspects of the responses could subsequent editing. be tied to questions of considerable refinement, yet it This proposal is, of course, no longer novel, but its would not be necessary to take too narrow a view of application to "law" has been minimal. This is the what is meant by "practical." By drawing upon quali- general idea. /Is it worthwhile, and is it feasible? ties of imagination and insight, the problems could be given a dimension that may in the long run be even more practical than the immediate "know how" tech- Feasibility nique. Furthermore, as the legal profession moves Certainly it would not be difficult at each state level into areas of increased specialization, the opportuni- to select "leading" lawyers whose special competence ties through this technique for tapping the experience and qualities are to be solicited. Some might be reluc- of the specialist would be ahnost limitless. tant, but many of them would no doubt be not only flattered but eager to put their experience at the dispo- Charismatic Value sal of the profi~ssion, especially for the benefit of its Turning to the charismatic .side, I confess to an younger members. Nor need they be shy about unabashed belief in the magnetic appeal of the man ¯ responding to carefully thought out questions, pu.t to who symbolizes, through his ability, character and them in advance, touching specifics, including prob- personality, the ideals of his profession. Only a few lems of professional responsibility. moments’ reflection is needed to. appreciate the debt The machinery for selecting and interviewing the the judiciary and the b~ir o~,e to Marshall, Holmes, lawyers, structuring questions, and disseminating the B.randeis, Learned Hand, and others who have not product could be done as a bar association enterprise only enriched the substantive content of law but, by in which state and national agencies could collabo- virtue of their qualities as "men of the law," have rate. Responses. could be replayed live at local ’bar infused the entire profession with a heightened sense meetings. They could b~ typed, edited, collected, clas- of pride and even nobility. This is true also of our sified, printed and disseminated. great teachers--Williston, Corbin, Llewellyn, and Surely there is nothing insuperably difficult from Glenn, to mention only a few who are no longer with the feasibility angle, provided resources are available. US. Whether they can be made available will naturally Judges and teachers have ample opportunity to depend on whether the concept is deemed worthwhile. record their views on substantive matters. But v~em- I submit that this proposal is worthwhile at two bers of the practicing bar have little opportunity or distinct levels--at the practical level and at a level that inclination to do so. Furthermore, because theirs is a may, in the current vernacular, be called "charis- "talking profession," many lawyers possess neither matic." the skill nor patience demanded by the discipline of written composition. Yet surely the bar has it full Practical Value measure of quiet heroes whose reputation and profes- ~I’he appendix to the ALI-ABA book on A Proposal sional achievements would supply a kind of added for General Practice Courses, published some years dimension to the knowledge, understanding, and ago, concerns courses to meet the needs of the newly insights that might be gleaned from them orally and admitted lawyer. It lists four categories of problems that might otherwise be irrevocably lost. And, perhaps o dealing with "Organizing and Advising Small Busi- even more important, there coul~l be the inspirational nesses," "Litigation," "Real Estate Problems," and value that comes from even remote association with "Probate Problems." Surely in each of these areas those who ennoble our profession. there are insights to be gained from leading practi- This is the main burden of my song, and like the tioners that could supplement and enrich the learning preacher in the Darden story, I~ should abruptly bring experience of the new lawyer, and the range of su,bjects this sermon to an end. With.your indulgence, how- could easily be extended. ever, I cannot resist the temptation of ending on a Included in the insights would be warnings about more personal note, It is one I have sounded before.9 Postscript even anxiety, is bound to press upon him. That is part As an antique professor turned baby judge, I have of the job. reflected on the role of the professor, the judge and the But viewed in the large, I suggest at the risk of being practitioner in the turbulent business of managing a bit hortatory that, for the professor, the judge, and conflict. As we all know, "advocacy" i~ not a simple th~ practitioner the melding of the theoretical and the process whereby a bunch of facts are tied to theory or practical, coupled with the human element, justifies precedent. It is a subtle exercise in persuasion whereby Holmes’ aphorism that a man can live nobly in the stress and emphasis should be put on the significance law, and that it is not only a good way to make a of facts and their relevance to the outcome of the case. living but a grand way to make a life. I suspect that too few appreciate the extent the judge, It only remains to say a word about the future. We in forming and writing his opinion, is dependent on are told in many quarters that the country is suffering the learning and skill of the lawyers who appear before from a sense of disenchantment and that confidence in him. Adjudication is, in fact, a joint enterprise. Public our institutions and in the future is at a low ebb. attention and the l~udos and the criticism are usually Where are we heading? I will here inject one remain- focused on the judge. In many ways he is less impor- ing anecdote. It has to do with Lord Balfour, who was tant than the lawyers who /appear before him. the chief English delegate to the famous Naval .Con- Turning to the professor, Lord Denning is credited ference of 1922 presided over by Charles Evans Hughes with the apt remark that the difference between a as Secretary of State. judge and professor is quite simple. "A judge," he Lord Balfour was invited to spend the weekend said, "must find a solution for every difficulty whereas somewhere on the tip of Long Island by an expansive ~ professor must find a difficulty for every solution." 1 American hostess whom he did not know. But he do not see how any professor turned judge can avoid acdepted. When the conductor on the train asked for missing the challenging contact with students and the his ticket, Lord Balfour could not find it anywhere. thrill of exploring within the broad limits of his sub- Because his picture had been in all the papers, the ject, whatever engages his interest. The judge’s role is, conductor recognized hiin and graciously said, "It’s of course, different in that it is confined strictly to the all right, Lord Balfour. It’s on the house. When you kinds of problems and specific issues that are brought find it just send it in." Lord Balfour took out his to him. But there are compensations. glasses with a long black ribbon, looked up at him I have often thought that the single characteristic and replied," "Young man, it may be all right with that makes our discipline superior to all others lies in you, but it is not all right with me. Until I find that the fact that we can be as speculative and as theoretical ticket I haven’t the foggiest idea where I am going!" as the philosopher, the political scientist, the sociolo- Of course, there is no single ticket pointing the way gist, even, at times, the theologian but, at the same to the future. But it .is my submission, that while we time, we must always consider the concrete--the par- should give heed to our battered image, if we keep ticular case, statute, treaty or constitutional document. alive the notion of the ideal lawyer, attempt to Like Antaeus of old we gather strength b~ touching approximate it and capture and disseminate some of earth. Now the judge, as opposed, to the professor, has the insights and reflections of our leading colleagues, the particular satisfaction of participating in" the we can meet the future with a heightened measure of application of law at the point where theory and fact confidence, good humor and good will. That, to coalesce and where what he does has immediate prac- repeat, is the main burden of my song. tical consequences. In this respect, the judge is unlike the professor of mathematics who once was bold enough to ask on l~is examination: "What have you FOOTNOT~ learned in my course on Integral Calculus?" A student I. Dean Spies has addressed this problem in the Spring 1979 issue brashly replied: "Sir, what I have learned in your of the Virginia Law School Report at pp. 3-5. He sets out the ten recommendations of the Devitt Committee Report and the rejoinder course on Integral Calculus is how to solve questions, by.a Committee of the Association of Ar6erica’n Law Schools. that in God’s world, would never be asked except in 2. See, l.Vhat (IJ Anything) is Wrong with Legal Education?, V your course in Integral Calculus!" At the same time TH~ V~G~.~A BA~ ASSOC~ATtO~ JOU~YA~ 18-24 (Summer 1979). the judge’s sense of satisfaction is tempered by some- Both the articles by Seidman, (critical of law school education) anti Heinz. (in defense) are engagingly written. I have indicated my views thing else, Given the open-ended character of so many on this subject in several articleg including, in particular, Dillard, of our norms and the complex nature of the facts, how can he be sure that he is right? A sense of humility and (continued on page 30) j. RODNEY JO_HNSON

The "Plain English" Trust

THE adjective, "plain English," has become a buzz- the reception by and for said petitioners of such quan- tities of baked cereal products as shall, in the judg- word of the consumer movement during the past five ment of the aforesaid petitioners, constitute a suf- years that stands in proud, confident; and sometimes ficient supply thereof.’ --Federal government English defiant opposition to what its disciples delight in rather scornfully referring to as "gobbledygook," Translation: "mumbo-jumbo," and/or a variety of other derisive ’Give us this day our daily bread’ terms, all of which might be summed up generically --King James English as "legalese" which, in turn, has been defined as "the These allegations of confusion and obfuscation can language of lawyers that they would not otherwise.use generally be supported by measuring the language in in ordinary communi~ations but for the fact that they question by one of the standard tests designed to deter- are lawyers.’’~ The principal offenders or perpetrators mine the readability of English. One of the simplest of of "non-plain" English are regularly identified at all these tests to apply is Gunning’s Fog Index System. levels of government, institutions in the finance and The Fog Index is deterfiained by adding (average. sen- retail sectors as they deal with the consuming public, tence length per 100 words of text) to (the number of and lawyers in general, whose "misguided" efforts to words, containing three or more syllables per 100 be clear, precise, straightforward, and all inclusive, as words of text) and multiplying the resultant sum by manifested by great attention to detail, extensive use of 0.4. The following scale is then used to determine synonymous or near synonymous words, terms, readability: 15--easily readable; 17--requires reading and/or phrases, and the traditional recitation of skill of college graduate; "20--fairly difficult; 30-- ancient and/or archaic legal words, terms, and/or difficult; and 40--very difficult.3 The first paragraph phrases, as sanctioned by longstanding custom of this.article (excluding the illustration) has a Fog (though the reason therefore is often unknown and Index in excess of 40. It should not be assumed, ,how- equally as often non-existent), but not serving any ever, that a sentence will necessarily be readable generally recognizable purpose from the consumer’s merely because it has a relatively low Fog Index. The t~oint of view, are seen generally as more nearly calcu- following OS_HA definition of "exit," for example, lated to obfuscate rather than to communicate con- has a Fog Index of 17.2: "That portion of a means of cerning the subject matter under consideration and egress w, hich is separated from all other spaces of the thus leave the reader in an ultimate state of confusion building or structure by construction or equipment as as opposed to the desired state of elucidation concern- required in this subpart to provide a protected way of ing the idea, thought, concept, goal, end, and/or sub- travel to the exit discharge.TM ject, etc., under consideration such as occurs, for For some time the bar arid the bench have recognized example, in the following illustration. a degree of uncertainty concerning the use of some of their language and some of their forms. As early as Making it perfectly clear 1458, Sir John Fortescue, Chief Justice of the King’.s The Federal Register’s Bench, remarked as follows: ho~’rible example of bureaucratese: Sir, the law is as I say it is, and so it has "We respectfully petition, request and entreat thai due and adequate provision be made, this day and the been laid down ever.since the law began; and date hereinafter subscribed, for the satisfying of these we have several set forms which are held as petitioners’ nutritional requirements .and for the law, and so held and used for good reason, organizing of such methods o~ allocation and distribu- though we cannot at present remember that tion as may be deemed necessary and proper to assure reason.5

11 Lawyers, however, allegedly being a conservative always been believed that there was one bastion of the group dedicated more to following precedent than law that was immune to the simplification movement making it, have failed to exert the leadership necessary (though vocal critics oft wished aloud that it were not to bring consumer-oriented documents out of what so); a safe haven where not only have the quiddities many consider to be a semantic wilderness bristling and quillets.~ev~loped over centuries been preserved with unnecessary repetition, reiteration,’ r~edundan~y .in the f6fms handed down from senior partner to new and duplication. Instead, the bar is seen as standing in associate, but even added to as a result of the verbal opposition to the plain English movement because, in convolutions presently required in order to comply the word~ of one of the movement’s prophets, lawyers with, or avoid the impact of, our increasingly complex "equate simplified with simpleminded ... (and)... tax laws. In what other field, for example, could a the American Bar Association and law schools have state’s supreme court find that the words "young been" totally unresponsive to the logic and need for men" in a document providing for a fund to "be used simplified contracts.’’6 to aid and assist worthy and ambitious young men to Notwithstanding this alleged lack of leadership, acquire a legal education" are unclear "in the context however, the atmosphere is presently pregnant with of the entire agreement" and go on to hold that, in the potential for reform in both the government and the absence of express language to that effect, the testator private sector. During his "fireside chat" in the winter could not be said to have intended to exclude females of 1977, President Carter promised the country that from the group of prospective beneficiaries.~4 Edward "We will cut down on government regulations and we S. Schlesinger, who provides this illustration in his will make sure that those that are written are in plain paper, "E~nglish As A Second Language For Law- English for a change.’’7’ Following this cue, then yers," goes on to observe--~"One might guess what the HEW Secretary Califano initiated "Oper~ation Com- testator would have said to the draftsman if, out of a mon Sense, a five-year program to rewrite his depart- superabundance of caution, the phrase ’and I don’t ment’s thousands of rules in a clear and concise mean young women’ had been added to the will before manner.’’8 At the state level, the legislature of ’New it was executed. We can speculate further on what the York amended its General Obligations Law in 1977 by court would have done if faced with that apparent adding a section entitled "Requiremer~ts For Use of surplusage.’’~ Plain Language in Consumer Transactions.’’9 The But the walls of this citadel have now been leader of the plair~ English movement in the private breached. Citibank, the same institution that led the sector has been Citibank, N.A. Citibank issued its first simplification movement in the consumer contracts plain English form in 1975 and within the next several area, has now introduced the "Plain English Trust," a years it succeeded in translating all of its consumer revocable inter-viv.os trust the text of which follows documents into the new format. Many major national the end of this paragraph. Citibank maintains that the banks, and at least one statewide Virginia bank, have settlor of such a trust using its form will have a much decided to follow Citibank’s lead and are in various better understanding of the trust’s operation than he stages of progress towards their ultimate goal. Thus would if the document followed the more traditional far in Virginia, the plain E’nglish movement in the form, that this form provides for a h"igh degree of flexi- governmental sector seems to have been restricted to a bility, and that although the form was designed with series of statutes in the insurance area authorizing the small trusts, in mind (as low as $25,000), there is no. State Corporation Commission to establish guidelines particular need to restrict it to small trusts.~ Much can for the filing of simplified and readable policy forms be said in favor of this offering by Citibank insofar as for fire insurance,~° automobile insurance,~1 and acci- both form and content are concerned. The careful dent and sickness insurance.~z While it is still too. early reader will learn valuable lessons in the drafting of to judge the ultimate success of this Virginia begih- trusts, particularly for those cases where a personal as ning in the insurance area, it is hol~ed that we might opposed to a corporate fiduciary will be used because, exceed the example of the Delawar.e Insurance Com- while it is most desirable that the settlor unde?stand a missioner in his communication to local homeowner trust agreement, it is imperative that the trustee under- insurance companies concerning a similar project: stand it in order to function effectively. And now, k. "Initiation of a readability project affords the insurer instead of presenting a section by section analysis of a unique oppo(tunity to rearrange the contract into this form and dwelling on what in most instances logical thoug.ht outline-flow sequence.’’18 should be obvious, it has been decided to simply re- Regardless of what might happen elsewhere, it has produce the form in the belief that res ipsa loquitur.

12 "PLAIN ENGLISH" TRUST

How This Trust Works I set up this trust with you as the trustee. It will benefit me for my lifetime. On my death, you will pay the principal to and the trust will end. If does not survive tne, then you will pay to Setting Up The Trust I give you $ ~ to invest for the trust.

Payments During My Lifetime During my lifetime, you will pay me the net income of the trust. "Net income" is the income earned less your compensation. I’ll receive net income payments quarterly. I can withdraw any part or all of this trust by notifying you in writing. Each with- drawal must be for at least $1,000. Withdraw- als may not be made more often than once each month. You may use all or part of the priucipal in any way you believe will benefit me. Any decision you make in good faith >‘,ill fully protect you and will bind everyone with an interest in this trust. J. Rodney Johnson is a professor of law at the Uni- Your Investment Powers As Trustee versity of Richmond Law School. He received a J.D You may invest the funds from this trust in from William and Mary School of Law and an any assets you deem appropriate including LL.M. from New York University School of Law. any of the Collective Investment funds which He is the editor of Virginia Trust and Will Manual you maintain. and the author of a hum ber of articles in the fields of I am aware that you are not allowed to use estate planning and fiduciary administration. investment information known to Citibank but not generally available to the public. So, you won’t be responsible for not using such information even though it might affect the pay the person having care or control of the value of certain investments. incapable person, whether court appointed Your Compensation or not, or you may use it in any other way Your only compensation for acting as trus- you believe will benefit the incapable person. tee >,’ill be 1% of the total value of the princi- You will add to principal any income pay- pal of the trust charged annually with a merit you don’t make. minimum of $250 for" each full year or any part of a full year. Payments to Persons Under The Age of 21 You needn’t pay the principal or net Adding To The Trust income to any person under the age of 21. I may increase the principal of this trust by Instead, you may pay in any way you believe delivering cash to you. will benefit such person. You will add to the principal any income payment you don’t Ending The Trust make. When such person reaches the age of I may end this trust and withdraw all of its 21, you will pay him his remaining princi- assets by writing to you. pal. If he dies before, you will pay his estate. Changing My Beneficiaries Resigning I may change my beneficiaries by writing You may resign as trustee anytime by noti- to you. fying in writing me or the person then hav- Payments To Incapable Persons ing care arid control of any incapable person.

You needn’t pay principal or net income to No Other Changes anyone who in your judgment is incapable of I cannot make any other changes in this managing his own affairs. Instead, you may trust by my Will or otherwise.

13 Law That Governs 4. Sidey, "Trying to Regulate the Regulators," Time, December This trust will be governed by New York 5, 1977, p. 33. State law. 5. "Translating Legalese Into English," Business.Week, Octo- ber 25, 1976, p. 94. Date Of This Agreement 6. Alan Siegel in People, May 22, 1978, p. 93 and p. 94. This agreement will begin on the date you 7. "Waging War on Legalese," Time, January 16, 1978, p. 60. and I both sign it. I may, however, cancel it 8. "Government, Business Try Plain English For a Change," U.S. News and World Report, November’ 7, 1977, p. 46. by wriHng to you within 10 days"of this 9. Section 5-702. agreement. If I do, I won’t incur any charges a. Every written agreement entered into after November first or fees, except for out-of-pocket expenses you nineteen hundred seventy-eight, for the lease of space to may have had before my written cancellation be occupied for residential purposes, or to which a consu- reaches you. mer is a party and the money, property or service which is the subject of the transaction is primarily for personal, family or household purposes must be: Signature Date I. Written in a clear and coherent manner using words with common and everyday meanings; 2. Appropriately divided and captioned by its various sections .... Trustee Date ~ 7 10. Code of Virginia § 38.1-367.1 (1977). I1. Code of Virginia § 38.1-387.1 (1977). 12. Code of Virginia § 38.1-354.1 (1979). 13. Nader, "Gobbledygook," Ladies Home Journal, September, 1977, p. 68. FOOTNOTES 14. Ebitz v. Pioneer National Bank, 361 N.E.2d 225 (Mass. 1977). 1. Robinson, "Drafting--Its ~ubstance and Teaching,’" 25 Jour- 15. 12 Miami Institut~ on Estate Planning 7-8 (1978). nal of Legal Education 514 (1973). 16. Perhaps of even more interes’t to some than the language 2. "Turning Federalese Into ’Plain English’," Busines~ Week, being used is the fee structure employed by Citibank in plain Eng- May 9, 1977, p. 58. lish trusts--an annual principal fee of I% and no inco~ne fee (min- 3. lronman, "Writing the Executive Report," Funk K: Wagnalls imum annual fee is $250). To the best of the author’s knowledge, (1966) p. 41, as explained in Schlesinger, "English ,4s ,4 Second this is a lower fee for small trusts than is available at any of the Language For Lawyers," 12 Miami Institute on Estate Planning state-wide Virginia banks. 7-31 (1978). 17. Reproduced with the permission of Citibank, N.A. ANDREW W. McTHENIA, JR.

The Proposed Revision of UCC Article-Eight

Introduction National Conference of Commissioners on Uniform IN the late 1960’s the securities industry barely State Laws and the Council of the American Law averted its unique version of the China Syndrome-- Institute/The revision was approved by the National the "paper crunch.’q While a vision, of Wall Street Conference of Commissioners in 1977. The revised grinding to a halt as a clerk with quill pen e.ndorsed Article 8 was adopted by Minnesota in 1978, West stock certificates may have been a wry fantasy to the , Virginia and Connecticut in early 1979 and adoption neo-marxist, it was fi living nightmare to those by California appeared imminent in the spring of 1979. operating securities markets.Z The negotiable stock o certificate, a product of years of effort in the securities Until May of 1979 there was virtually no opposition industry and th~ legal profession designed to facilitate to the amendments. There were some who thought the transactions in another era, bumped into the age of amendments unnecessary and treated the whole issue technology and instant communications and nearly with a "ho hum" attitude. However, in May an article ground the system to a halt. by Professor Peter Coogan, a member of the Uniform Commercial Code Permanent Editorial Board, ap- The negotiable stock certificate has become the peared in 92 Harvard Law Review.7 The Coogan foundation of elaborate sets of relationships between article was extremely critical of the Article 8 revision. buyers .and sellers, corporations and their share- Within a short time, legislative efforts in California holders, creditors and debtors and many others. It also ground to a halt while lawyers and legislators con- came to be regarded as the villain of the. "paper cerned with the revision could unravel the Coogan crunch" and many proposals for reform looked to its criticisms~ What had been a noncontroversial but abolition/However, there were fears that abolition of somewhat arcane issue, suddenly took on the fervor of the stock cer.tificate, which is a conceptual cornerstone a Job’ian debate over the nature of God. of many important legal relationships, would require a I do not intend to join the debate here. A response to redefinition of those relationships. the Coogan article will be forthcoming by the Re- The Committee on Stock Certificates of the Section porter for the Article 8 revision, Martin Aronsteiri. To of Corporation, Banking and Business Law of th6 focus on the Coogan/Aronstein differences in this American Bar Association was charged by the ABA short piece would be unwise for several reasons. Not with resolving this dilemna and determining what the least of which is that it would tend to mask the legislation, if any, was needed to facilitate the elimi- large areas of agreement on the revision. An equally nation of the negotiable stock certificate and to draft compelling reason to refrain from restating the debate appropriate legislation. The Committee Report issued. ¯ is that Professor Coogan and Mr. Aronstein will be in 1975 contained two principal reco.mmendations. panelists at the midwinter meeting of the Association, One was a minor amendment to the state corporation and will doubtless air their differences at that time. To statutes to permit the issuance of uncertificated upstage them in the pages of the Journal would be securities. The second was a major revision of Article 8 inhospitable at best. However, for this author, the of the Uniform Commercial Code, which deals with most compelling reason for restraint is his own investment securities, to accdmmodate uncertificated ignorance of the subject matter. securities/ The major purpose of this piece, which is neither The proposed revision of Article 8 wfis submitted by scholarly nor exhaustive, is to alert the bar to the the Committee to the Permanent Editorial Board for proposed changes in Article 8/It is not intended as a the UCC which, in turn, referred it toan appropriate summary of or substitute for reading the proposed subcommittee for comment.~ The revision was sub- amendments. It is instead an invitation to read and stantively reviewed by the Permanent Editorial Board understand the statute. It may serve also as an and further drafts were presented in 1976 to’the introduction to the panel discussion in Williamsburg.

15 Summary of the Committee’s Efforts certificate becomes larger and holds certificates for Whatever else the negotiable stock certificate is, it is greater numbers of shareholders, the agency rationale the key to one of the most important aspects of stock becomes strained. For instance, the central deposi.tory ownership--the ability to transfer that ownership. holder is often acting as the agelat for both parties to a The certificate is a vital element in the transfer procesg transaction. When the depository is the issuer itself, and proposals for its abolition could not be taken i.e., the AT&T dividend reinvestment plan, the issuer, lightly. The Committee di~l not reach its conclusion to a party to the transaction, acts as an agent for the provide for a "certificateless society;’ idly and devoid purchaser.~3 Though the law permits this system, the of guidance from the real world.9 It considered various traditional tools of the law are a liitle dull and tend to suggestions for technical improvement in the move- blur the real relationships between the participants. ment of stock certificates which would make the For those segments of the industry operating without process less prone to error. The Committee concluded shareholder certificates the legislation seeks to clarify that none, of the. proposed technological solutions these existing relationships. which retained the importance of a stock certificate Another reason for the legislation is to encourage would significantly reduce the paper volume involved wider participation and the further development of in the transfer process.~° Other proposals, all accept- such systems. While the proposed legislation wisely ing the basic l~remise that the securities transaction does not mandate a certificateless world, it removes the must be settled by the delivery of a stock certificate, fetters which impede further development alon~ these were considered. They included such things as a lines. It is by no means certain that corporations reduction in the number of certificates~| by using the would issue uncertificated shares if there were no legal ju~nbo certificate and immobilization of certificates impediment. However, that decision should be made in a central depository.~2 Such methods are now used on economic and other bases without ~riction from the in the industry and in all of them the existence of the legal system. certificate seems but a fiction. However, for various The Proposed’ Amendments reasons the Committee did not think any of these proposals would be universally acceptable. Since the proposed legislation d,Ses not require The final proposal considered, and the one ulti- certificatele~s securities but only legitimates them, the mately adopted, was the elimination of the stock decision was made to have single integrated Article 8 certificate as a means of transfer.~3 Record and and to make the rules governing certificated and beneficial ownership would be primarily evidenced on uncertificated shares the same wherever possible. The the transfer books of the issuer and not on negotiable revised Article 8 restates the existing rules for certifi- certificates. cated shares and conforms the new rules for uncertifi- cated securities to the present law as closely as The Need for Legislation. possible. The following paragraphs attempt to point There are presently several models in operation out some significant differences between the present which are, in effect, "certificateless"; street name Article 8 and the proposed revision. brokerage accounts, bank custody accounts, mutual The major difference between a certificated and funds, monthly investment plans, and dividend rein- uncertificated security is that the former is represented vestment plans to name a few. The existing systems of by an instrument which may be treated as the property certificateless transfers "have flourished with little or it represents. Under present Article 8, the transfer of a no change in the law. Since major segments of the security is accomplished by delivery or by some other industry have in fact adopted certificateless systems method deemed to constitute delivery.~6 With an without explicit legal recognition, one might ask why uncertificated security there is no instrument to additional legislation is needed. Like most things in deliver. The basic rule for certificated securities-- life, commercial practices generally run ahead of the transfer by delivery is retained and restated~7 and a rule law and rely on legal fictions until the law catches for uncertificated securities transfer by registration is up.14 added. ~8 The legal basis for most of these existing certificate- Registration of transfer of a certificated security is less systems depends on the existence of a certificate accomplished by presenting the certificate, duly en- somewhere which is being held by someone--a dorsed, to the issuer:~9 With an uncertificated security broker, an issuing corporation, or a bank--as the the request for registration of transfer is submitted by shareholder’s agent. As the "someone holding" a an instructionz0 from an "appropriate person," the

16 registered owner (or his representative) of an unen- cumbered security.21 The issuer upon receipt of an instruction is under a duty to effect a duly requested registrationzz and within two business days after regis- tration must send a written statement confirming the registration to both the transferor23 and the trans- feree.24 This statement from the issuer, called the Initial Transaction Statement (hereinafter ITS), is the closest thing there is to a stock certificate?5 It will assure the transferee that the transfer has been made and will also serve as notice to him of any liens, restrictions, or claims to which the uncertificated security may be sub- ject. The statement will alert the transferor to take appropriate action if the transfer was unauthorized or otherwise improper. A security interest in a certificated security is created by the delivery of the security, with proper endorse- ment, to the secured party. To create a security interest in an uncertificated security, the security interest is registered with the issuer. The procedure for doing this is identical to the procedure for an initial transfer. An instruction is sent to and a statement Andrew W. McThenia, Jr., is a Professor of Law at returned from the issuer. Once registered, the owner Washington and Lee [lniversity School of Law. continues to have all power with respect to the secur- Professor McThenia received his A.B. degree from ity except the power of transfer,z6 Washington and Lee, his M.A. degree from Colum- The secured creditor (pledgee) of an uncertificated bia, and his LL.B. degree fiom Washington and Lee where he was Editor-in-Chief of the Law security gets more" protection than the holder of a cer- Review. tificated security who merely takes possession and Professor McThenia is a member of the State does not register the transfer. In the latter case, all Water Control Board and a member of the Execu- property distributed with respect to the pledged secur- tive Committee of the Ohio River Valley Water ity, i.e., stock dividends, will go to the registered Sanitation Committee. He is Chairman of the Busi- ness Law Committee of The Virginia Bar Associ- owner since the issuer is unaware of the pledgee’s ation. interests?7 However, when an uncertificated security is subject to a registered pledge, such additional secur- ities, if uncertificated, will be subject to the pledge,zs An appropriate transfer of uncertificated security ity. The transferee takes free of restrictions only if the will serve not only to create a valid security interest, ITS sent to him fails to note them. The purchaser must but to perfect it as well.29 The security interest of a seek a clear transaction statement before accepting pledgee of a certificated security is normally released by liability.:*~ redelivery to the debtor. The security interest in an Warranties between certificated and uncertificated uncertificated security is released by submission of an securities also differ. The face of the instrument pro- instruction to the issuer. The procedure is the same as vides the basis of warranties for certificated securities. that established for registration of transfer of pledge. The presentor to an issuer for registration, the trans- A purchaser may normally assume that the holder of feror to a purchaser, all warrant aspects of the transac- a certificated security is the owner and is entitled to tion because of the instrument and its enforcement transfer it. A purchaser of an uncertificated security and signature guarantees.~2 For uncertificated securi- cannot, however, rely on the Initial Transaction State- ties the only warranty can be on the part of the origi- ment of his transferor. The transferor’s ITS warrants nator of an instruction to the issuer. That person only that the acknowledged owner is so at the time of warrants to the issuer that the registration is proper the issuance?0 Subsequent to that time the transferor and to a purchaser for value that the transfer has no may have pledged or otherwise encumbered his secur- defects.~

17 Signature guarantees, anessential part of the transfer The General Assembl~ will soon be asked to take a process for widely held securities, also cannot be the position on the revision and doubtless will solicit the same for cer’tificated a~ad uncertificated securities. Th~ views of the organized bar. guarantor of a.certificated security-warrants that the endorser is an appropriate person acting for the

owner.34 This is evident to the" guarantor from the FOOTNOT~

instrument. Without the instrument,-the guarantees 1. During the paper crisis that developed on the New York Stock are limited to the genuineness of the gignature, and that Exchange in 1969, only 55% of the shares traded on the exchange the endorser purports to act for the owner or pledgee. reached the buying broker on settlement day. See R. Smith, A Piece of Paper, 25 Bus. Law 923, 925 (1972). There are special broader guarantees of an uncertifi- 2. Report of the Committee on Stock Certificates of the ABA, 15 cated security which cannot be d~manded by an issuer, Sept. 1975 (hereinafter Committee Report) p. 1. but which can be made to further secure transactions.35 3. Committee Report, p. 26, M. Aronstein, A Certificateless Arti- cle 8? We Can Have It Both Ways, 31 Bus. Law 727, 728 (1976). (The Adverse third party claims also provide a difference. author served as reporter for the committee.) ¯ For certificated securities, notice in writing to the issuer 4. Reporter’s Introductdry Comment to the 1977 Official Text of’ suffices.~6 For tmcertificated securities, the claim must UCC Article 8, Investment Securities. 5. Ibid. be in the legal process before the issuer has notice.~7 6. Ibid. Judicial liens are also treated differently. Seizure of the 7. P. Coogan, Security Interests in Investment Securities under security works for certificated security but not at.all of Revised Article 8 of the Uniform Cornmercial Code, 92 Harv. L.Rev. the uncertificated kind.3s It is necessary to serve process 1013 (1979). 8. The paper draws heavily on the committee report, a copy of on the issuer.39 which may be obtained by writing to the Chairman, Donald A. These are ~ome of the major differences which result Scott, Estl., The Fidelity Building, Philadelphia, Pennsylvania, from the addition of the uncertificated security to Arti- 19009 for $5.’00. M. Aronstein, A Certificateless Article 8? We Can Have It Both Ways, 21 Bus. Law 727 (1976) and the official com- cle 8. The amendments seek to incorporate the uncertif- ments to revised UCC Article 8. icated security with the least possible disturbance to the 9. Committee Report, pps. 1, 23. existing statutory scheme. There is, however, at least 10. ld. p. 23. I1. Id. p. 24. one instance where existing law was .not merely 12. ld. p. 25. restated. That has to do with the creation of a valid 13. Id. p. 50-55. judicial lien. Pregent Section 8-317(1) provides that no I’t. See L. Fuller, Legal Fictions (Stanford University Press 1970). 15. M. Aronstein, at 732, reports that ATgcT holds more than 9 lien on a debtor’s interest in a security is valid until the million shares of stock beneficially owned by some 5’t 1,000 dividend security is actually seized. This is wholly unworkable reinvestment plata participants. for uncertificat.ed securities and for nominee registra- 16. Present 8-301(I). tion where a broker may .be holding one certificate for 17. Pro)osed 8-313(1)(a). 18. Pro )osed 8-313(1)(b). thousands of shareholders. In that instance seizure is 19. Pro )osed 8-401(1). impossible and the rule is changed to provide that 20. Pro)osed 8-308(’t). service on the controlling party is required before the 21. Pro )osed 8-308(7)(a)and (8). 22. Pro)osed 8-401(1). judicial lien is valid. 23. Pro)osed 8-’t08(5). 24. Pro )osed 8-408(1). Conclusion 25. Pro)oscd 8-408(4), Official Comment, Introductory Com- ments~ p. 167. Various organizations in the Commonwealth which 26. Sec Proposed 8-207(2) and (13). will be affected by the proposed legislation are now 27. See M. Aronstein, supra n. 3 p. 736. 28. See proposed 8-207(b)(a). considering its potential impact. The Business Law 29. See proposed 8-321(2). Committee of the Association and the Business Law 30. Proposed 8-105(3)(d). Section of the State Bar have studied the revision for the 31. Proposed 8-302(l)(b). 32. See Official Comments Introductory Comment, p. 169. last year. As a part of the Committee’s effort to involve a 33. Proposed 8-306(5). broader segment of the Bar, we are sponsoring a panel 34. Proposed 8-312(1)(b). on the revision at the mid-winter meeting. I hope that 35. See Official Comment Introductory Comment, p. 17. this short piece will provide some basic understanding 36. Proposed 8-403(1). 37. Proposed 403(4)(a). of the legislatfon and encourage participation by 38. Present 8-317(1). members of the Association at that panel discussion. 39. Proposed 8-217(2).

18 LOUIS A. MEZZULLO

A Brief Introduction to Qualified Employee Pension Plans

FROM time to time, the business attorney will have benefits provided to participants under the plan. In to deal in one way or another with qualified employee this case, the participant includes the economic value pension plans. While there are many types of em- of the insurance coverage as part of his compensation ployee plans that receive favorable tax treatment from the employer for each year. under one or more provisions of the Internal Revenue The earnings and gains resulting from the invest- Code of 1954 (hereinafter referred to as the "Code"), ment of contributions to a pension plan are not sub- the present discussion will focus on qualified em- ject to income tax either to the plan .or to the ployee pension plans (which hereinafter are referred’to participants under the plan. As a result, the.total as "pension plans") that meet the rbquirements of Sec- amount in the pension fund increases more rapidly tion 401(a) of the Code. These plans include pension, than other investments because none of the earnings profit-sharing, and stock bonus plans. or gains are being lost through income taxes. The business attorney may be required to deal with Gift, estate, and income tax benefits are available to these plans in one or more of the following cir- the participant and his beneficiaries when the distri- cumstances: bution of benefits are made from the plan. A partici- a. advising a client who is beginning a new pant does not incur any gift tax liability when he business; exercises an election or option to have an annuity or other benefit paid to his beneficiar.y after his death. A b. advising a client op_erafing an existing business, benefit payable to a participant’s beneficiary upon his regardless of whether the business sponsors a pension death will not be included in the participant’s gross plan for its employees; estate for federal estate tax purposes unless the benefi- c. advising a client anticipating the acquisition, of ciary elects ten-year forward averaging. A lump sum an ongoing business that sponsors a pension plan for payment to the estate of the decedent, however, will be its employees; included in the decedent’s federal gross esta{e. d] advising a client anticipating terminating a busi- A lump sum distribution from a pension plan’of the ness that sponsors a pension plan for its employees; total amount then credited to a particil6ant’s account and may qualify for ten-year forward averaging in com- puting the participant’s federal income tax. The taxa- e. advising a client who is a participant, former ble amount of the distribu’tion is divided by ten for participant, retired participant or beneficiary of a par- ticipant in a pension plan. purposes of determining the applicable tax rate. For example, a distribution of $100,000 would be taxed by ¯ The employer and its employees, obtain significant calculating the tax on $10,000 using the Single tax- tax benefits through the establishment of a pension payer rate schedule and multiplying this amount by plan. The employer can deduct contributions t6 the ten. The result is a sizable reduction in the tax that plan on its current income tax return..The employee would otherwise be payable. If a beneficiary of a does not report any income on his personal income deceased participant elects ten-year forward averaging, tax return as a result of his participation in a plan the distribution will be included in the deceased par- until the plan distributes behefits to him, even though ticipant’s federal gross estate. Usually the decision his interest in the plan may be 100% vested (i.e., nor- whether to elect the ten-year forward averaging or forfeitable). The one exception to nonrecognition exclusion from the federal gross estate can best be occurs when life insurance protection is one of the made at ~he time the participant di~s. If th~ employee

19 was an active participant in the plan prior to 1974, determines each year what amount of its profits (either part of the distr.ibution may also qualify for long-term current or accumulated, or both) it wishes to contrib- capital gain treatment. ute to the plan. The total amount contributed in any A plan qualified under Section 401(a) of khe Code one year may not exceed 15% of the compensation of will be either a defined benefit plan or a defined con- all participants in the plan. A profit-sharing plan may tribution plan, depending upon how the benefit of the contain a formula that determines the amount of the plan is described and how th~ contributions to the contribution each year. No contribution may be made plan are determined. A defined benefit plan specifies if there are no current or accumulated, earnings the monthly benefit payment that a participant will profits. receive at his normal retirement date (usually age 65 On the other hand, a money purchase defined con- or, if later, the date the participant actually retires). tribution plan requires the employer to contribute a The payments will usually last for the lifetime of the specified percentage of each participant’s compensa- retired participant, and, in many cases, may provide tion to the account of each participant. The percen- for a guaranteed number of payments, so that if a tage may not exceed 25%. This type of plan, like the retired participant dies before the guaranteed number defined benefit plan, requires the employer to make has been made, the balance will be paid to his desig- the specified contribution regardless of whether the nated beneficiary. Under such a plan, it is the benefit employer has current or accumulated earnings or that is "defined." profits. Under a defined benefit plan, the employer will A stock bonus plan is designed to distribqte the contribute the amount necessary to provide the benefit .employer’s stock to participants. Either the employer payments to all the participants in th~ plan. This contributes its own stock to the .plan or the plan uses amount is usually determined by an actuary. Simply the employer’s cash contributions to purchase tl~e stated, the actuary calculates for each participant the employer’s stock. amount of money that must be deposited into a fund Defined benefit plans, but not defined contribution for a period of years (until the participant, retires) in plans, ar~ subject to plan termination insurance and order to ac.cumulate sufficient funds to make the speci- odier requirements concerning the termination of fied monthly payments to the participant, beginning plans administered by-the Pension Benefit Guaranty at his normal retirement date and continuing until his Corporation. In addition, all defined benefit plans death. In making the calculation the actuary uses var- and money purchase defined contribution plans are ious assumptions, for example, the rate of return on subject to the minimum funding standards of Section investments in the fund, the mortality rate of the 412 of the Code. The minimum funding standard group of participants, and the ~mployee turnover rate requires the employer to make sufficient contributions of the employer. to the plan eacl~ year to insure that the defined benefit From the employer’s standpoint, the most signifi- is properly funded, or, in the case of a money purchase cant feature of a defined benefit plan is the obligation plan, the employer contributes the specified percen- to make the required contributions each year, regard- tage of each participant’s compensation. less of the employer’s profit for the year. From the The amount of contributions to a pension plan are participant’s standpoint, the most important aspect is limited in two ways. Section 404 of the Code limits the the ~guarantee, assuming the employer makes the amount that an employer may deduct for contribu- required contributions each year, that the participant tions to a qualified plan, while Section 415 of the will receive a fixed monthly payment at his re- Code limits the amount that an employer may con- tirement.- tribute to a plan inone year on behalf of a participant. Under a defined contribution plan, the participant’s In the case of a defined benefit plan or a money pur- benefit is eqt~al to his account balance at the relevant chase plan, the deduction is limited to 25% of the com- time, for example, at his retirement, death or separa- pensation of all participants under the plan (here- tion from employment. His account balance will be inafter referred to as "covered compensation"). How- whatever amount has accumulated as a result of the ever, if a pension plan is subject to the minimum allocation of the employer’s contribution each year funding standard described in Section 412 of the Code, among all participants in tile plan,’and of his own the e~nployer may contribute the amount necessary to contributions to the plan; if any, as well as earnings satisfy the requirement.s of that Section, even if the and gains on the amount in his account. In a profit- contribution exceeds 25% of covered compensation. In sharing defined contribution plan, the employer the case of a profit-sharing or stock bonus plan, the

9O contribution is limited to 15% of covered compensa- tion. If less than 15% of covered compensation is con- tributed in any one year, the employer may make up the difference in a subsequent year, but the total of the contribution for the current year and make-up contri- butions for prior years may not exceed 25% of covered compensation for the current year. Contributions to a combination of a stock bonus or profit-sharing plan and a money purchase or defined benefit plan are limited to 25% of covered compensation. An employer cannot contribute to a defined contri- bution plan on behalf of a participant in one year more than $32,700 (which amount is adjusted each year by the Treasury to reflect cost of living increases), or 25% of the participant’s compensation,whichever is less. The annual benefit tinder a defined benefit plan can- not exceed the lesser of $98,100 (which amount is also adjusted each year by the Treasury to reflect cost of living increases) or 100% of the participant’s average compensation for the three years during which he has had the highest compensation. If an employer main- tains both a defined contribution plan and a defined benefit plan, the sum of the contributions under each plan cannot exceed one and four-tenths of the amount that would be deductible under each plan. By using a Louis A. Mezzullo received his B.A. and M.A. degrees from the University of Maryland and his combination of a defined benefit plan and a money J.D. degree from the T. C. Williams School of Law purchase plan, an employer can obtain the largest de- of the University of Richmond. He is presently in duction and make the greatest contribution on behalf the sole practice of law in Richmond. He was with of each of its employees. the firm of McGuire, Woods and Battle of Rich- As previously noted, in order to obtain favorable mond from February 1976 until March 1979. He is tax benefits, a pension plan must meet the require- an Adjunct Assistant Professor of Law at the T. C. Williams School of Law. ments of Section 401(a) of the Code. (Plans that cover self-employed persons, that is, sole proprietors or partners, and plans that covet shareholders in a Sub- holders, or highly compensated e~nployees, although chapter S corporation must meet additional require- allocations or benefits can be based on a percentage of ments and are subject to more severe limitations on each participant’s compensation; the amount of contributions.) The more significant e. The plan must satisfy the minimum vesting requirements of Section 401(a) are: standards of Section 411 of the Code (vesting refers to a. Contributions must be made for the purpose of the time when a participant obtains a nonforfeitable distributing income and principal to employees and right to some or all of his benefit under the plan); their beneficiaries; f. If the plan provides for the payment of an b. No part of the fund can be diverted to any pur- annuity as a form of benefit, it must provide for a joint pose other than to benefit employees and their and survivor annuity to a married participant unless beneficiaries; he elects otherwise; c. The plan must satisfy the minimum participa- g. The benefits under the plan must not be subject tion standards of Section 410 of the Code (generally to assignment or alienation by the participant; and requiring that an employee become eligible after he h. The benefits must be paid to the participant by a both completes one year of service and reaches age twenty-five); specified date (usually at age 65) unless he elects otherwise. d. The contributions or benefits under the plan must not discriminate in favor of officers, share- (continued on page ~0)

21 SPECIAL ISSUES AND PROJECTS COMMITTEE

YOUNG LAWYERS’SECTION

The Good Samaritan in Virginia

A certain man went down Jrom Jerusalem to Jericho, and Jell among thieves, which stripped him oJ his raiment and wounded him and departed, leaving him halJ dead. And by chance there came down a certain priest that way; and when he saw him, he passed by on the othe7 side. And likewise a Levite, when he was at the place came and looked on him and passed by on the other side. But a certain Samaritan, as he journeyed, came where he was; and when he saw him, he had compassion on him and went to him and bound up his wounds, pouring in oil and wine and set him on his own beast, and brought him to an inn and took care oJ him. LuKE 10:30-34

GOOD Samaritan Acts providing some form of pro- ~his articleis designed to acquaint police, firemen, tection of the volunteer from tort liability for ordinary physicians, nurses, teachers and others who are likely negligence in rendering emergency medical aid have to be faced with rendering emergency care or assist- been adopted in all fifty states, the District of Colum- ance with ~the basic legal background underlying- bia and the Virgin Islands) These laws were passed in Gooil Samaritan Legislation, and some.of the ques- response to the common law rule that although one is tions arising from interpretation of these laws, with not required to aid a person in peril, if one does so particular reference to the Virginia act. then he will be held liable for a failure to use reasona- ble care? As one commentator has pointed out, "The The Duty to Aid -- Generally result of all this i.s that the Good Samaritan who tries Generally, one had no duty to come to. the aid of to help may find himself mulcted in damages, while the priest and the Levite who pass by on the other side another who was in d.anger even though help could have been given without endangering one’s own go on their cheerful way rejoicing.’’3 By p~issing Good health or safety.5 This lack of duty t9 act was based on Samaritan Laws, state legislatures hoped to reduce the a distinction drawn be.tween "misfeasance" and "non- fears of liability for negligence and thereby to encour- feasance"; "a distinction still deeply rooted in the law age doctors, nurses and laymen to offer assistance in of negligence.’’6 Misfeasance has been defined as an ¯ emergencies.4 ~ictive misconduct working positive injury to others and nonfeasance as passive inaction or a failure to attempt to protect others from harm.7 Thus, one who EDITOR’S NOTE: In 1978, the Young Lawyers Section’s injured another through misfeasance was held liable, Special Issues and Projects Committee received a request in some cases even without regard for his fault; how- from one of the state’s volunteer fire departments for information on the potential liability of its members in ever, an ihdividual who did not act even though connection with providing emergency agsistance. A another might be harmed because of the failure to act comprehensive research memorandum on the:d~velop- t was not held liable for the resulting harm.8 The basis ment of "Good Samaritan" laws arid problems related tO their interpretation and implementation, with emphasis for this distinction was that by "’misfeasance’ a on the Virginia statute, was prepared as bacl(ground defenda.nt has cr6ated a new risk of harm to the plain- material for the project. The Committee has revised and tiff, while by ’nonfeasahce’ he has at least made his updated this research for publication in article form. A revised version of this material is also being offered to situation no worse, and has merely failed to benefit other interested groups, such as physicians, nurses, him by interfering in his affairs.’’9 rescue squads, and firefighters’ organizations for the The "misfeasance"--"nonfeasance" distinction has information of their members. resulted in some rather shocking decisions. Courts have held that one may rent a canoe to an intoxicated

22 individual and then sit back on one’s dock with a rope and boat at hand and watch the individual drown About the Special Issues when the canoe tips over,~0 incite a business visitor to and Projects Committee jump into the water and then allow him to drown,~ or The Special Issues and Projects Committee allow a child licensee to drown in a swimming pool of the Association’s Young Lawyers Section without making any attempt to save her.~z In addition, has the job of evaluating and repoi’ting on it has been held that a doctor has no duty to minister new directions for Section activities as well as to a person who is dying and could be saved~3 and that undertaking special projects that would an individual has no duty to render aid to a stranger otherwise be outside the structure of the Sec- who is bleeding to death.~4 ¯ tion’s other standing committees. During the Although it is still the majority rule that there is no current year, the Committee has, under the duty to come to the aid of another who is in danger, direction o’f Chairman Stephen H. Watts, II, some exceptions have been made in cases in which a substantially revised the Section’s By-Laws, special relationship exists between the parties which performed an analysis of model legislation justifies the imposition of a duty to aid.~5 Such a rela- on developmental disabilities, completed an tionship and a consequent duty to aid have been extensive research project for a General found between a. captain and a sailor,’6 carrier and Assembly legislative study commission on passenger,~7 innkeeper and guest,~s shopkeeper and Virginia’s mental health statutes and h~s be- customer,~9 host and guest?° jailer and prisoner,~ and gun work on a program to increase Section upon a school and pupil,z2 Courts have also held that participation in joint assistance projects with if the plaintiff’s harmful situation was caused by the other organizations. defendant’s negligence that aduty to aid arises~3 and Chairman Watts performed the final edit- in a few states, "hit and run" statutes have been ing of the accompanying article for publica- construed to impose a duty to stop and aid regardless tion, but points out that the article is of fault,z4 In one of the most’liberal applications of the sponsored by the Special Issues and Projects special relationship exception, it has been held that a Committee, and that special recognition is special relationship exists between friends engaged in due to Clifford A. Cutchins, IV, Chairman of a social outing, thus obligating one to come to the aid the Committee during 1978, to B. H. B. Hub- of the other if he can do so without endangering bard, who performed the initial revision and himself.25 _ updating, and especially to Janet R. Dunlop, Although thirteen European countries have estab- who prepared the research memorandum on lished criminal penalties for a failure to act in an "Good Samaritan" laws from which the arti- emergency sit.uation,z6 only one state, Vermont, has cle is derived. done so.27

The Duty of Those With Special Skill to Aid

As mentioned previously, it has been held that a ently shot a young girl who he was attempting to dodtor may with impunity refuse to offer emergency rescue from the jaws .of a lion was denied prote~tidn medical treatment to a person in need’zs even though Alaska’s statute,z~ the court ruling that "a holding such failure to offer aid would violaie’the American that police officers have no duty to rescue would not Medical Association’s Principles of Medical Ethics.Z9 comport with public conceptions of their role’’32 and If do.ctors have no duty to aid, then it follows that suggesting that policemen have "general responsibil- nurses also have no duty to do .so. ity of protecting the lives and welfare of ~itizens at As for policemen, although the case law is sparse, it large.’ could be argued that a policeman, at least while on Since there are so few case rulings in this area, it is duty, has a duty to aid. It has been held that the widow very difficult to predict whether a policeman, fireman, of a policeman who died while attempting to assist a or volunteer rescue squad worker could be held liable strhnded motorist could collect Workmen’s Compen- for failing to stop and render aid. However, it would sation because, although the general rule is that one appear that it is more likely that a policeman who is has no duty to come to the aid of another, a policeman employed by the state, or a city or county, would be does have such a duty.3° In a case involving Alaska’s required to aid than a~volunteer fireman or rescue Good Samaritan Law, a policeman who had inadvert- worker. Nonetheless, during the last century, liability

23 for "nonfeasance" has been extended still further to a ble for acts or omissions resulting from the rend- limited group of relations, in which custom, public ering of such emergency resuscitative treatments sentiment and views of social policy have led the or procedures. courts to find a duty of affirmative action. It is not D. Nothing contained in this section shall be construed to provide immunity from liability likely that the process of extension has ended.34 There- arising out of the operation of a motor vehicle. fore, it could be argued that the legal duty to aid coul~t E. For the purposes of this section, the term logically be extended to firemen and rescue workers "compensation" shall not be construed to include .who, although volunteers, have been specifically the salaries of police, fire or other public officials trained to handle emergency situations and have or emergency service personnel who render such emergency assistance, nor the salaries or wages of vowed to come to the aid of others in such situations. employees of a coal producer engaging in emer- gency medical technician service or first aid ser- Virginia’s Good Samaritan Law vice pur.suant to the provisions of § 45.1-101.1 or § 45.1-101.2. Virginia’s Good Samaritan Law provides as follows: F. Any licensed physician who directs the pro- vision of emergency medical services, as a~Jtho- Persons rende?ing emergency care ekempt from rized by the State Board of Health, through a liability.--A. Any person who, in good faith, communications device shall not be liable for any renders emergency care or assistance, without civil damages for any act or omission resulting compensation, to any injured person at the scene from the rendering of such emerg.e._ncy medical of an accident, fire or any life-threatening emer- services uialess such act 0r omission was the result gency or en route therefrom to any hospital, med- of such physician’s gross negligence or wilful ical clinic or doctor’s office, shall not be liable for misconduct. ,any civil damages for acts or omissions resulting G. For the purposes of this section, an emer- from the rendering of such care or assistance. gency medical care attendant 6r technician shall A1. Any person who provides assistance upon be deemed to include a person licensed or certified request of any police agency, fire department, as such or its equivalent by any other state when rescue or emergency squad, or any goyernmental he is performing services which he is licensed or agency in the event of an accident or other emer- certified to perform by such other state in caring gency involving the use, ~handling, transporta- for a patient in transit in ~his State, which care tion, transmission or storage of liquefied petro- originated in such other state.3~ leum gas or liquefied natural gas shall not be liable for an~ civil damagesresulting from any act In a recent article in the Spring 1979 issue of of commission or omission on his part in the Medico-legal News, a. publication of the American course .of his rendering such assistance in good Society of Law and Medicine, "Miles J. Zaremski has faith. suggested that the Good Samaritan Laws as enacted by B. Any emergency medical care attendant or technician possessing a valid certificate issued by many states lack clarity and are often ambiguous leav- authority of the Sthte Board of Health who in ing the judicial interpretation uncertain. good faith renders emergency care or assistance Although the Virginia law is less ambiguous thfin without compensation, to any injured or ill per- most, its language gives rise to some of the questions son, whether at the scene of an accident, fire or and possible problems considered by Mr. Zaremski. any other place, or while transporting such While the Virginia statute does not specifically define injured or ill person to, from or between any hos- pital, medical facility, medical clinic, doctor’s "emergency care or assistance" it does imply that it office or other similar or related medical facility, must be a life threatening emergency and that the shall not be liable for any civil damages for acts or emergency might continue from the scene of the acci- omissions resulting from the rendei*ing of such dent to the hospital, medical clinic, or doctor’s office. emergency care, treatment, or assistaiace. In defining emergency care or assistance, the question o C. Any person having attended and successfully is presented as to what was intended by the legislature completed a course in cardio-pulmonary resusci- tation, cardiac defibrillation or other emergency in designating "good faith" as the standard of care. life-sustaining or resuscitative treatments or pro- Good faith may refer to a subjective state of mind and cedures which have been approved by the State honesty of purpose, thus exempting all misconduct Board of Health to any sick or injured person, except that accompanied by an.intention to inflict whether at the scene of a fire, an accident or any harm, or it can be defined to protect only misconduct other place, or while transporting such person to or from any hospital, clinic, doctor’s office or amounting to ordinary negligence, thus av6iding the othbr medical facility, shall be deemed qualified "granting (of) a carte blanche to recklessness or to to administer such emergency treatments and wholly unnecessary disregard of life, limb and prop- procedures; and such individual shall not be lia- e[ty.~6 As to the requirement that the services be provided plaintiff was injured. The plaintiff sued. The court "without compensation," the definition is left to com- held that if the defendant had been providing care to mon usage except to the extent that the statute pro- the plaintiff, she was in no manner rendering emer- rides that the term does not include the salaries of gency care and thus she was not protected by New persons likely to render emergericy services. However, Mexico’s Good Samaritan statute.40 The result in this as Mr. Zaremski points out, there is still a question of case indicates the importance of acting only in an whether a" paramedic who receives expenses, or other emergency situation.4~ .... non-salary compensation is covered. It has been sug- In a previously mentioned case, the court held that gested that a clever plaintiff might dupe a doctor rend- Alaska’s Good Samaritan law could be invoked only ering him Good Samaritan-type services into forfeit- by those who had no pre-existing duty to aid.4z Appar- ing his statutory protection by sending the physician a ently, the Alaska Supreme Court’s interpretation of its check for his services whicl{ the physician accepted Good Samaritan law would not apply to the Virginia before suspecting that a suit was being planned.37 law which specifically provides that the term "’com- As mentioned above, the Virginia statute allows the pensation’ shall not be construed to include the salar- service to be rendered at the scene and en route there- ies of police, fire or other public officials or emergency from to any hospital, medical clinic or doctor’s office. service personnel who render such emergency assist- It does not specify whether the Good Samaritan is ance ...43 thus indicating that policemen, firemen and required, in order to preserve his statutory .protection, emergency service personnel are covered by the Virgi- to discontinue his care or assistance en .route if the nia Act. emergency ceases. It is also unclear whether doctors Although it has been suggested that personnel will be protected from liability for abandonment if trained specifically-to act in emergency situations they terminate their.services after rendering emergency should not be shielded from liability for negligence,44 first aid and sending the patient to a hospital without it is clear that they are as long as they act in good faith consent to terminate being given by the patient. The and without compensation as. defined by the Virginia Virginia Good Samaritan law protects the doctor for Act. injuries caused by acts or omissions in rendering emergency care, but abandonme~at would not be Conclusion deemed to o~cur in rendering the aid, but in intention- The lack of detailed definitions of statutory lan- ally terminating it.3s guage and the lack of case law on the interpretation of At present, Virginia-does not spdcifically require or the Virginia Statute and similar statutes produce not require a Good Samaritan to obtain the ~onsent of many unanswered questions. However, the law in Vir- the injured party before care or assistance is rendered. ginia at present does protect "any person who in good Its silence could be interpreted as not requiring con- faith renders emergency care or assistance without sent, but as Mr. Zaremski points out, the question is compensation to any injured person" and as such ]he not free from doubt. protection provided is quite broad in sc6pe. Thus, while there are uncertainties, it seems clear that under of Good Samaritan Statutes Judicial Interpretations Virginia law the Good Samaritan may stay on his side Case law interpreting the Good Samaritan statutes of the road and render emergency assistance without is scarce. Several federal cases39 have held that in order being forced to pass by on the other side in order to for a rescuer’s immunity under the Good Samaritan to avoid potential liability as a result of his compassion. be removed, the rescuer must worsen the condition of the person in peril. Thus, for example, if a person FOOTNOT~ undertakes to rescue an individual, but because of his 1. For state and District of Columbia code citations see, Com- own negligence fails, he will not be held liable for his ment, First Aid to Passengers: Good Samaritan Statutes and Con- failure if by undertaking the rescue he did not prevent tractual Releases [tom Liability, 31 S. W. L. ]. 695, 704 nn 86 & 87 anyone else from attempting the rescue. (1977). Currently, nineteen states and the District of Columbia pro- tect only physicians and other licensed medical personnel from.lia- Only seven other cases involving an interpretation bility and the remaining thirty-one states protect all volunteers, ld. of a Good Samaritan law have been located. In one, at 704. the defendant agreed to transport the plaintiff who 2. Slater v. Illinois Cent. R. Co., 209 F. 480 (M. D. Tenn 1911). had been only slightly injured in an automobile acci- (No Virginia case law located.) 3. Prosser, Law o] Torts, at 34’~. dent to a motel. En route the defendant was involved 4. The need for Good Samaritan laws has been debated. No in an automobile accident as a result of which the United States appellate court cases in which a doctor or layman has

25 been sued for rendering emergency aid have been reported. A com- 27. Vermont’s "Duty to Aid the Endangered Act" provides: mission examining the medical malpractice problem had received (a) A person who knows that another is exposed to grave information of only one such case in a trial court and had no infor- physical harm shall, to the extent that the same can be ren- mation about out-of-court settlements arising from emergency care. dered without danger to himself or without interference with 31 S. W. L. J. at 704 n 82. important duties owed to others, give reasonable assistance to 5. W. Prosser, Law o[ Torts § 56 at 340 (4th ed. 1971). the exposed person unless that assistance or care is being pro- 6. ld. .at 338. vided by others. 7. ld. (b) A person who provides reasonable assistance in com- 8. ld. pliance with subsection (a) of this section shall not be liable in 9. Id. at 339. divil damages unless his acts constitute gross negligence or 10. Osterlind v. Hill, 263 Mass. 73, 160 N.E. 301 (1928). unless he will receive or expects to receive remuneration. 11. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959). Nothing contained in this subsection shall alter existing law 12. Handiboe v. McCarthy, 114 Ga. App. 541, 151 S.E. 2d 905 with respect to tort liability of a practitioner of the healing (1966).. arts for acts.committed in the ordinary course of his practice. 13. Hurley v. Edding]ield, 156 Ind. 416, 59 N.E. 1058 (1901). (c) A person who willfully violates subsection (a) of this 14?/1lien v. Hixson, 111 Ga. 460, 36 S.E. 810 (1900). sectionshall be fined not more than $100.00. VT. STAT. AttN. 15. Prosser, Law o] To~ts at 341. titl. 12, § 519 (Supp 1971). 16. Gai’dner v. National Bulk Carriers, Inc., 310 F. 2d 284, (4th 28. Hurley v. Edding[ield, 156 Ind. 416, 59 N.E. 1058 (1901).

Cir. 1962), cert. d.enied, 372 U.S. 913 (1963), rehearing denied 372 29. JUDICIAL COUNCIL, AMERICAN MEDICAL ASSOCIATION, U.S. 961 (1963)." OPINIONS AND REPORTS OF TIlE JUDICIAL COUNCIL 23--(1969): "A 17. Yu v. New York, N. H. ~r H. R. Co., t45 Conn. 451, 144 A.2d physician may choose whom he will serve. In an emergency, how- 56 (1958). ever, he" should render service to the. best of his ability. Having 18. Dove v. Lowden, 47 F. Supp. 546 (W.D. No. 194~). undertaken the care of a patient he may not neglect him; and unless 19. L. S. Ayres & Co. v. Hicks, 220 Ind. 86,,40 N.E. 2d 334 (1942)’. he has been discharged he may discontinue his services only after (No Virginia case law located.) giving adequate notice. He should not solicit patients." 20. Hutchinson v. Dickie, 162, F. 2d 103, (6th Cir.) cert. denied 30. County o] Peoriav. Industrial Commission, 31 I11, 2d 562, 202 332 U.~. 830 (1947). (No Virginia case law located.) N.I~. 2d 504 (1964). 21. Farmer v. State, 224 Misg. 96, 79 So.2d 528 (1955). (No Virgi- 31. Lee v. State, 490 P.2d 1206 (1971); ALASKA STAT, § 09.65.090 nia case law located.) (1973). 22. See Pirklke v. Oakdale Union Grammar School Dist., 40 Cal. 32. 490 P.2d at 1209. 2d 207, 253 P.2d 1 (1953). (No Virgihia case law located.) 33. ld. at 410. 23. Parrish v. Atlantic Coast Line R. Co., 221 N.C. 293, 20 S.E. 2d 34. PROSSER, LAW OV TORTS at 339. 299 (1942). (No Virginia case law located.) 35. VA. COnE § 540276.9 (Interim Supp. 1979). Effective October 24. Brooks v. E. J. Willig Truck Transp. Co., 40 Cal.2d 669, 235" 1, 1979, this section is redesignated as § 8.01-225. P.2d 802 (1953). Section 46.1-176 of the Virginia Code requires that a 36. 64 CALIV. LAW. REV. 1301, 1308 (1964). driver involved in an automobile accident "render reasonable assist- 37. Note and Comment, Criticism o] Existing Good Samaritan ance to any person injured in such accident, inclu~ling the carrying Statutes, 42 ORE. L. REV., 328, 332 (1963). of such injured person to a physician, surgeo.n or hospital for medi- 38. Id., p. 334. cal treaiment if it is apparent that such treatment is necessary or is 39. See e.g., Tilden v. United States, 365 F.2tl 148 (7th Cir. 1966); requested by the injured person. Va. Code § 46.10176 (Supp. 1978). United States v. De Vane, 306 F.2d 182 (5th Cir. 1962); United States 25. Farwell v~ Keaton, 396 Mich. 281,240 N.W. 2d 217,222 (1976). v. Gavagan, 280 F.2d 319 (5th Cir. 1960). " 25. Czechoslovakia, Denmark, France, Germany, Hungary, Italy, 40. Dahl v. Turner, 80 N.M. 564, 458 P.2d 816 (Ct. of Appeals The Netherlands, Norway, Poland, Portugal, Rumania, Russia, 1969) cert. denied 80 N.M. 608, 458 P.2d 860 (1969). and Turkey. For a discussion of the statutes in these countries, see 41. Comment, First Aid to Passengers: Good Samaritan Statutes Rudinski, The Duty to Rescue: /1 Comparative /1nalysis, in The and Contractual. Releases ]tom Liability, 31 S. W. L. J. 695, 707 Good Samaritan and the Law, 91-92 (J. Ratcliffe ed. 1966). See also, (1977). Feldbrugge, Good and Bad Samaritans, A Comparative Survey o] 42. Lee v. State, 490 P.2d 1206 (1971). Criminal Law Provisions Concerning Failure to Rescue, 14. Am. J. 43. VA. CODE § 54-276.9 (Interim Supp. 1979). o] Comp. L. 630 (1965-1966). 44. See 12 GONZ. L. REV. 676, 688 (1977).

26 Refor B. WAUGH CRIGLER

Virginia’s Alcohol Safety Action Program

Introduction eral District Courts imposed the maximum allowable ENACTED by the General Assembly in 1975,’Va. charge in committing an offender to VASAP. This has Code § 18.2-271.1 provided a new dimension for the created a revenue source for the localities which has disposition of cases charging a violation of Va. Code. not only funded the rehabilitation program but has § 18.2-66, more commonly known as driving under the also funded such projects as additional local police influence ("DUI"). Under the statute, a person ac- personnel and equipment. L’ikewise, the Virginia cused of driving under the influenc.e, upon a plea of Department of Transportation Safety (VDT&S) se- guilty to the charge or upon a fiiading of guilt by the cures revenue from the General Assembly for the pur- Court, is permitted to enter a pro’gram designed to pose of establishing driver education programs in educate and rehabilitate the offender. Upon successful connection with highway safety. These programs have completion, the charge is either dismissed 0r the been utilized as qualified VASAP schools. See, VDT&S offender is convicted of a lesser included or amended The Fourth VASAP Annual Report, 1978. offense, which almost invariably does not mandate the Because of the growth of the program there has suspension .of the defendant’s dri.ving privileges. developed a concern with whither it is being uni- Some practitioners have viewed this administrative formly applied by the courts of the C.ommonwealth, procedure as providing a much needed means of alter- especially in light of the permissive rather than man-. native sentencing to mandatory suspension of opera- datory nature of the statute. It i~ to this concer~ ’that tor’s privileges and often imposed severe fines. See, Va. the Committee has directed its attention. Code § 18.2-270. Others, however, have viewed it as a method by which the dangerous drunk driver is set Informal Fi .ndings . back upon the highway to threaten the safety of the Informal data collection by Committee members, traveling public. through discussion of the subject with legislators, Whatever the view, there has developed an adminis- judges and other practitioners, has led the Committee trative machinery which has been funded not only to conclude that there exists among the General Dis- because of the enabling legislation but also as a direct trict Courts a mixed.opinion concerning the merits of result of the .widespread implementation of the pro- the VASAP program. It is also apparent that dispari- gram throughout the Commonwealth. It was the ties exist throughout those courts, as well as the Cir- investigative finding of the Committee that most Gen- cuit Courts, as to the application and availability of the program to DUI offenders. In light of the fact that most cases are resolved in the General District Courts, the Committee set out to gather more sophisticated EDrroR’s NorE: In January, 1979, the Criminal Law & Corrections Committee of the Young La.wyers Section, data from that source. Virginia Bar Association, B. Waugh Cr!gler, Chairman, undertook to analyze the application of the Virginia Resources Alcohol Safety Action Program (VASAP) in the General . District Courts of the Commonweahh of Virginia. This The VASAP program has existed since July 1975. article summarizes the results of that study, and presents Some data collection on its operation was carried out the recommendations based upon it. by the Washington & Lee Izaw Review in the Spring of 1978 and by the Com .monwealth of Virginia, Highway "

27 individual judges representing all Districts except two-A (2A), eleven (11) and fourteen (14). Some responses could not be identified either by court or district, and may well have represented those listed as nonresponding. In any event, 58% of all Virginia Gen- eral District Court judges responded, either by com- pleting the final questionnaire, by responding to a draft questionnare (which differed only slightly from the final), or by responding by telephone or letter.

Survey Findings and Committee Conclusions Issues ranging from the availability of the program, to indigents, to sentencing of repeat offenders, were covered by the questionnaire. It is possible that the results favor VASAP since those judges who apply the program are more likely to respond than those who don’t. Additionally, some responses were subjective, thus requiring the results to be viewed as reflecting trends rather than absolutes. This survey, together with those previously con- ducted, did, however, confirm the Committee’s initial

B. Waugh Crigler received his B.A. degree from informal findings that disparities existed in Virginia Washington and Lee University and his J.D. regarding court treatment of DUI and other related Degree from the University of Tennessee College of offenders. In that regard, the available material com- Law. He is a principal in the firm of Davies, pelled a conclusion that three (3) types of disparity or Crigler, Barrell, and Will, P.C., in Culpeper. non-uniformity exist, namely: Mr. Crigler serves on The Virginia Bar Associa- tion Criminal Co,mniuee, is President of ll~c Cnl- 1. In some districts, the administrative ~nachinery peper Bar Association and is Chairman of ~tle for a VASAP program does not exist. Young Lawyers Section of the Criminal Law and Corrections Committee of The Virginia Bar As- 2. Even where the machinery is a\’ailable, some sociation. (;eneral District Courts refuse to utilize it in any case. 3. Notwithstanding the availability of the program and the use of it by the courts, various judges use it ge Transportation Research Council in the fall of that differently. year. Both sources surveyed Virginia courts as to var- Because the overwhelming majority of responding ious aspects of VASAP, but neither focused on the judges favored retention of some judicial discretion issues with which the Committee wished to deal. over the program, and in light of the Committee’s Accordingly, in addition to the points covered in belief that availability of the program is a ~nore press- those previous surveys, a twelve (12) point question- ing issue than its judicial or nonjudicial administra- naire was formulated and forwarded to all General tion, the Committee limited its analysis to the first two District Court and Juvenile and Domestic Relations cited types of non-uniformity or disparity. Court judges. Tyler M. Moore and Allen L. Button, In that regard, the Committee first recommends that John Marshall Fellows working under the direction of the General Assembly amend Va. Code § 18.2-271.1 to Roger Groot of the Washington &: Lee School of Law, require that the administrative machinery be available were responsible for collection and collation of the in every judicial district. Secondly, the legislature responses. should require that the program be made available by the courts to all first offenders. Survey Responses Regarding the first recommendation, it would Of the approximately one-hundred-five (105) Gen- appear that Virginia now has an administrative eral District Court judges in the thirty-two (32) dis- framework which, by funding through the courts and tricts, responses were received from sixty-two (62) the General Assembly, has branched out to develop

28 related programs and services. This administrative Accordingly, the Committee suggests the legislature machinery; however, is not being utilized to its fullest define the term "first offender" as all persons who potential. Therefore, in lieu of continuing to use it have never undertaken or been involved in a driver haphazardly, or jettisoning it altogether, the Commit- alcohol or drug rehabilitation program, or such sim- ted opted for recommending full utilization, by mak- ilar program as may be recognized in this or aiay other ing the program available in every jurisdiction. jurisdiction. Once "first offender" is defined, VASAP With respect to judicial application of VASAP, it should be available, as of right to each "first of- was clear that a person could travel about Virginia fender" if he or she so elects. and be treated quite differently for DUI or related The purpose of the Committee’s recommendations offenses by the courts in the various counties, towns or is to eliminate threshold disparities. While proposing cities through which he or she passed. Some courts use mandatory availability and application in the cited VASAP, others don’t, and still others use it to varying instances, it leaves with the courts flexibility to deal degrees. At the same time, whether the courts which with "second or other subsequent offenders" and to utilize the program view it as rehabilitative or as an dispose of all DUI and related offense cases as circum- alternative sentencing device, the general consensus of stances of that particular matter may indicate or the responding judges was to give an offender only requirel "one bite at the apple."

At th~ir:,regular meetings held in OCtober, ~he Executive Committees of the Virginia Bar ASsociation.* and OLthe Young Lawyers Section .of the Association considered this report 6f the Criminal Lawand o Corrections Committee as a whole .and endorsed’the conclusions of the Committee as expressed therein, The Battered Image of the Lawyer-- briefly describes John W. Davis’ studies at Washington & Lee on pp. 19-24. In an Appendix he lists the titles of all the cases argued by ¯ A Modest Proposal Davis orally before the~ Supreme Court. The number (140), we are told, exceeds that of any other 20th century lawyer and is exceeded (continued ]rom page 10) only by Walter Jones and Daniel Webster in the 19th century. 4. We are, of ,~ourse, fortunate in Virginia in having our Contin- uing Legal Education.programs placed under th.e joint sponsorship of both of our bar associations and in the appointment some 19 Law and Learning, 49 Va. La~; Rev. 647-659 (19~63). For a recent years ago of Professor Peter Manson as Director. A more felicitous anaiysis, see McGowen, The University Law School and Practical appointment can hardly be imagined. Education, 65 A.B~A. Journal 374-379 (1979). 5. These anecdotes have been deleted in the ~rinted script. 3. Jefferson’s politicai career, w~rld renown and versatility in so 6. See Tho’mson, The Inspiration o[ Science p. 6( 1961 ) and Toul- many fields have tended to obscure his role as a lawyer. The balance rain, The Philosophy of Science, 19-20 (1952). Cf. Dillard, supra n.2 is now being redressed. For many years, the Thomas Jefferson Me- at 657 et seq. morial Foundation gave an annual award to an outstanding archi- 7. It is tempting to quote in its entirety the following extract tect in recognition of Jefferson’s interest and contributions in that from Macleod The Principles 9[ Economical Philosophy, Vol. I area. It is now giving a similar award to an outstanding lawyer. The (1872) pp. 481-483: first three recipients havebeen Judge Carl McGowen, Judge Henry If We were asked--Who made the discovery whicb has Friendly and Professor Paul Freund. most deeply affected the fortunes of the human race? We Dumas Malone, in" the first volume of hi.s monumental treatise on think after full consideration, we might safely answer-- Jefferson, of which the 6th volume is now being completed, tells us The man who first discovered that a Debt is a Saleable that Jefferson was skeptical of the "apprentice system as such." Commodity. ]el[erson, The Virginian 0948) at p. 67. It is well known that, as I am indebted to Fuller and Braucher, Basic Contract Law (1946) p.. Governor, Jefferson established the first law professorship in Amer- 493 for this quotation. White, The Legal Imagination, Studies in ica at William and Mary and entrusted the chair to bis old precep- the Nature of Legal Thought and Expression (1973) especially tor, George Wythe. It should be added, however, that Jefferson’s low chap. 6 has some interesting material on tbis whole subject that is, however, extraneous to my approach. opinion of the al~prentice system was due to his fear that the senior 8. In’what follows, I have drawn heavily on an address I delivered would shift too much business onto the junior. See Dumbauld, about ten years ago at a meeting in Chicago sponsored jointly by the Thomas ]e][erson and the Law (1978) at p. 7. For the most part American Law Institute and tbe American Bar Association. 10 The Jefferson taught himself through his extensive readings. Practical Lawyer 13 et seq. (1969). , The definitive biography of John W. Davis is that of Professor 9. Dillard, The World Court: Rellections o[ a ProJessor Turned Harbaugh and is appropriately titled Lawyer’s Lawyer (1973). He Judge. 27 The American University Law Review 205, 239 (1978).

A Brief Introduction to Qualified then be allocated pro rata according to each par- Employee Pension Plaias ticipant’s total compensation. °Once a qualified plan has been adopted by the (continued [rom page 21) employer, it should be submitted to the Internal Revenue Service for a determination whether the plan satisfibs the requirements of the Code. Often, the Ser- vice will require minor changes in the language of the Under the Social Security laws now in effect, an plan to conform to the Service’s everchanging inter- employer pays 6.13% of an employer’s salary up to pretation of the statutory requirements, and, occasion- $22,900 in F.I.C.A. taxes. An employer may take into ally, a significant alteration of the plan may be account these taxes in determining either the alloca- required. tion of contributions under a defin’ed contribution The benefits to an employer and its employees in plan or the participant’s normal retirement benefit most cases greatly outweigh the expense and time under a defined benefit plan. For example, under a involved in adopting and maintaining a qualified profit-sharing plan, the employer’s contribution.may pension plan. However, to insure that the employer first be allocated to those participants making over the d6es not lose the tax benefits, careful attention must be ta~able wage base ($22,900 in 1979), until the amount given to the legal requirements under the Internal allocated equals 7% of the compensation of such par- Revenue Code and Labor Laws, not only at the incep- ticipants in excess of the taxable wage base. The tion of the plan, but also during its operation and, if remaining portion of the employer’s contribution will necessary, upon termination.

3O Bar lssociatio

The Winter Meeting ...... 32

YLS Will Sponsor Program on "Associates’." at the Winter Me~ting ...... 35

Announcements

Notice of Amendment ...... 36

YLS Nominations for Officers and Executive Committee ...... 36

CLE Programs SchedUled ...... 36

YLS Chairman’s Report ...... 37

Memorials ...... 39 Participants in Friday Afternoon Sessions

MARTIN J. ARONSTEIN is Counsel to the firm of Ballard, Spahr, An- The Winter Meeting drews and Ingersoll, Philadelphia, Pennsylvania. A graduate of Yale (B.E. 1944), Harvard (M.B.A. 1948~. and the University of Pennsylvania (LL.B. 1965), he was a Professor of The Virginia Bar Association Law ai the University of Pennsyl- vania Law School from 1969 January 10-13, 1980 1977. As Reporter for the ABA Com- mittee on Stock Certificaws, .4 ro nstein Aronstein was the principal author PROGRAM of that Committee’s Reporl and the principal draftsman for the revision to Article 8. He is an (All events will take place in the Conference alternate Member of the Permanent Editorial Board for Center unless otherwise specified.) Uniform Commercial Code.

THURSDAY, JANUARY 10, 1980

Executive Committee Meeting~Confer- PE’rER COOC, AN is a Visiting Protes- sor at the School of Law, University enceCenter of Georgia. For many years he taught a course or seminar at Har- FRIDAY, JANUARY 11, 1980 vard Law School while a partner at Morning Roper and (;ray, Boston. Part of that time tw also taught with Pro- 9:00 Registration--$35.00--East Gallery lessor Grant Gihnore at Yale Law 9:30 Meetings of Association and Young School. He has also taugh~ tot short periods at Duke l rniversity, Uniwu- Lawyers Section Committees (old and sity of Virginia and Uuiversity ot new membership). Meetings are open Southern California. to all Association members and their Since the early 1950’s, he has been guests--The Virginia Room associated with various committees charged¯ with examining various suggestions for amendments to the Uniform Com- 9:$0 Conference of Local Bar Associations-- mercial Code, priucipally Article 9. He, along u’ill~ Profes- sor Gihnore, was a consultant to the Committee to Review Rooms A and B Article 9, which was responsible for the 1979 anwndinenis. Presiding: Jesse B. Wilson, III, President He is now a member of the Permanent Editorial Board. His latest publication is an article in the April 1979 issue of the 11:00 Meeting of the Editorial Board of The Harvard Law Review on Revised ArtMe 8. Virginia Bar Association Journal~ Professol Coogan has a Master of Laws hom ttarvard The Virginia Room Afternoon 12:00 Luncheon Meeting of Executive COm-

GERALD L. BAI.ILES is a ])arlner in mittee and Chairmen of Association the Richmond law firm of Bell. and Young Lawyers Section Com- Ellyson, Lacy and Baltics and is a mittees-Room B Member of the House of Delegates of the General Assembly of Vir- 2:00 General Session--Auditorium ginia. He served as Assistant Attof hey General of Virginia from 1967 Presiding: L. Lee Bean, President-Elect to 1972 and was assigned to prob- "’Proposed Changes to Article VIII, Uni. lems of natural resources and the environment, conservation and form Commercial Code: Watch Out economic development. He served For the ITS" Baliles as Deputy Attorney General of Vir- ginia fiom 1972 to 1975 and was Panelists: responsible for coordinating and supervising legal problems Martin Aronstein, Esquire; Ballard, and cases o[ the Civil Division in areas of environmental protection, land use, health and mental heahh, welfare, con- Spahr~ Andrews and Ingersoll, Phila- sumer protection and nuclear regulation. delphi~ Mr. Baltics received his B.A. de~ee from Wesleyan [rni- versity, Middletown, Connecticut, and his LL.B. degree Peter Coogan, Professor, University of fi’om the University of Virginia. Georgia School of Law. Athens WALT~. J. WADLIN6TON is a James Madison Professor at the University of Virginia School of Law. Professor Wadlington received his A.B. degree from Duke University and his LL.B. from Tulane. He was a Fulbright Scholar and Tutor in Civil Law at the University of Edinburgh in 1959-60. Professor Wadlington was an Assistant Professor at Tulane from 1960- 62, an Associate Professor at the University of Virginia flom 1962-64, and a Professor there from 1964-70. He has been a James Madison Professor since 1970 and has taught Children and the Law and Domestic Relations, as well as other courses.

RICHARD J. PODr~ is a Partner in the firm of Podell, Hodan 8c Podell of Milwaukee, Wisconsin. Mr. Podell received his A.B. Degree from Colgate University and his J.D. degree from the University of Wisconsin. He served as an Advisor on Consumer Affairs, Federal Trade Commission, in 1966. He has been a Court Commissioner since 1973. He was a member o1 the Alimony & Support Committee of the American Bar Association from 1972 to 1977. Mr. Podell is a member, Board of Directors, Family Law Section and a Fellow, American Academy of Matrimonial Lawyers.

WILLIAM A. PERKINS, JR., is a Part- her with McGuire, Woods & Battle in Charlottesville. He is a past presi- dent of the Virginia Trial Lawyers Association and is a present member of the Council of the Virginia State Bar. Mr. Perkins is at present Chair- man of the Domestic Relations Committee of TH~ V1RGINIA BAR ASSOCIATION and was a member of the Virginia Advisory Legislative Commission, Special Committee on Domestic Relati~as.

Friday Evening Dinner Speaker

SEAN DONLON Born County Meath 1940 Educated: Saint Finian’s College, Mullingar Saint Patrick’s College, Maynooth. University College, Dublin. Entered Department of Foreign Af- fairs as Third Secretary 1963 having previously served as an Administrative Officer in De- Donlon partment of Finance. Third Secretary, Embassy, Bonn 1964 First Secretary, Embassy, Bonn 1968 Consul General, Boston, 1969 First Secretary, Dept. of Foreign Affairs 1971 Counsellor, Dept. of Foreign Affairs 1972 Assistant Secretary, Dept. of Foreign Affairs 1974 to Sep- tember 1978 Presented Credentials as Ambassador Extraordinary and Plenipotentiary to the United States on October 2, 1978. Participants in Saturday Morning Session

JOHN JAY OSI~ORN, JR. grew up in San Francisco and graduated from Harvard College and Harvard Law School. After clerking for a Federal Circuit Court of Appeals judge in Philadelphia, he worked for several years at a New York law firm. As a law student, Mr. Osborn wrote his first novel, "The Paper Chase," a story about life at Harvard Law School, which was made into an Academy Award-winning movie, and was made into a CBS-TV series. His second novel, "The Only Thing I’ve Done Wrong," the story of a young man’s first love affair, was published in 1977. An accomplished sailor, Mr. Osborn has written on special assignment for Yachting Magazine. He presently teaches at the University of Miami Law School in Florida. Mr. Osborn and his family make their home in Garrison, New York.

RAYMOND E. MABUS, JR., received his B.A. degree from the University of Mississippi, his M.A. degree from Johns Hopkins University and his J.D. degree from Harvard. Mr. Ma- bus was a clerk on the 5th Circuit and was a sub-committee counsel for the House of Representatives before joining the Washington firm of Fried, Frank, Harris, Shriver and Kampelman.

Mabus

RICHARD L. W1LLIAMS received his LL.B. degree from the University of Virginia Law School in 1951. He was a Judge in the Circuit Court of the City of Richmond for four years. Mr. Williams has been in the prac- tice of law with McGuire, Woods g: Battle since July 1976 and has re- cently been nominated for a U.S. District Judgeship for the Eastern District of Virginia.

Williarns

Lois R. WEINER: Age 36; Founder (1971) and President of Genesis Management Corp., consulting specialists to the legal profession; married, one child. YQung Lawyers’ Section Will Sponsor Program on "Associates" at The Winter Meeting

At the Winter Meeting of the Virginia Bar Associa: realistic possibility, prospective associates are examin- tion the Young Lawyer’s Section will sponsor a Satur- ing more critically than ever the quality of’individual day morning program which will explore in detail the law firms training programs. problems of law firm associates. Many law firms have recently experienced interro-, The question of the rights, responsibilities, and gation by associates concerning criteria fox" acceptance expectations of associates is a matter of growing con- into the partnership. Law firms outside of New Yoi’k cern in today’s law firms. have, like their New York brethren, increasingly aban- Traditionally, law firm associates learned to accept, doned the notion that parmership status awaits any without question, that their professional lives were to associate who lives at his law firm desk for the req ui- be governed by inscrutable and unart~culated firm site number of years. Correspondingly, associates lmve policies. Increasingly, however, associates are becom- insisted that they be apprised of their status long ing .the beneficiaries of better defined policies concern- before the climactic final decision date arrives. In ing compensation, training,° work hours and attain- some instances, associates spurned by tlaeir wonld-be ment of partnership status. Evidenqe of chmage in the fellow parmers have even asserted their right to’part- traditional associate-law firm relationship is abund- nership status in court. ant. Compensation fox" associates in New Yo r k ’ s larg- At the Winter Meeting, the YLS program will est law firms is now in the $30,000 plus range. explore lhe topic of "Assodiates" in detail. The pro- Similarly. salaries fox" starting associates in other areas gram’s four panelists are eminently qualified to deal of the country have jumped dramatically as sought with these sensitive issues. They have promised that after law school graduates have recognized their candor is the program’s watchword and that all areas increasing bargaining power. Many recent law school of the associate-firm relationship are open to scrutiny. graduates also expressed an unwillingness to sacrifice The participants will be John J. Osborne, author of their personal lives for the often heavy workload that’ Papey Chase and The Associates; Lois Weiner, associates have traditionally borne. founder of Genesis Management Corporation, an An increasing mobility of associates ha~ placed executive search company specializing in lawyer additional pressure upon law firms to insure that their placement.: Richard L. Williams, a senior partner in non-partner work force is content. Evidence of that the firm of McGuire, Woods & Battle, Richmond. Vir- mobility is seen in the highly suc’cessful and growing ginia ~and recent appointee to the United States Dis- field of lawyer "headhunting." Associates. especially trict Court for the Eastern District of Virginia: and in larger law firms, are often approached by these Raymond E Mabus. Jr., an associate ~;,ith Fried, companies with offers that make lateral transfers Frank..Harris. Shriver and Kampelman of Washing- attractive. ton, D.C. The current public debate concerning the quality of The panelists are expected to explore all areas that legal education ~nd cont.inuing postgraduate training affect an associate’s professional life, from the initial has also had an effect upon many law firms’ pre- interview to gaining, or failing to gain, parmership viously unstructured and haphazard training of asso- status. Topics will include negotiation by associates ciates. Law school graduates themselves have recog- for compensation and other firm benefits, training, nized the inadequacy of formal law school training as client cohtact, working hours, input into fi~:m poli- a foundation for private practice. Understanding that cies, specialization, departmental change and criteria there are no assurances of becoming a partner in a law for partnership. firm or that a voluntary move to a smaller practice is a PATR1CIA M. SWARZSCHILD

¸35 Whittington W. Clement ...... Southwest Division Danville, Virginia

Announcements Elizabeth S. Woodruff ...... Southside Division Abingdon, Virginia

Paul D. Fraim ...... Tidewater Division Norfolk, Virginia Notice of Amendment H. Allen Glover, Jr ...... Valley Division Roanoke, Virginia Pursuant to Article IX of the By-Laws of the Young Laywers Section of the Virginia Bar Association, B. Waugh Crigler ...... At Large Culpeper, Virginia notice is hereby given of a proposed amendment to Section 2, Article III as follows: Benjamin B. Cummings ...... At Large Petersburg, Virginia The Executive Committee shall be composed William L. S. Rowe ...... At Large of the Chairman of the Section, who shall pre- Richmond, virginia side at its meetings as Chairman of the Executive Stephen H~ Watts, II ...... At Large Committee, the Chairman-Elect, the Secretary- Richm. ond, Virginia Treasurer and no more than eleven other mem- Nominations from the floor are invited. bers who shall be elected at the annual meeting of the Section. No more than four of these may be elected at large, and seven shall be elected as CLE Programs Scheduled regional representatives, with one being elected ~ from each of the following geographic divisions Pet(r C. Manson, Director of Continuing Legal of the Commonwealth .... Education, announces the following CLE seminars for the winter and spring: The purpose of the amendment is to increase the Business Organization _ potential at-large seats to four. Jan. 31, 1980 ...... Roanoke Feb. 1, 1980 ...... Richmond Feb. 14, 1980 ...... Tysons Corner YLS Nominations for Officers Feb. 15, 1980 ...... Norfolk

and Executive Committee 10th Annual Criminal Law Seminar Feb. 22, 1980 ...... Fredericksburg All YLS members of the Virgini’a Bar Association are Feb. 29, 1980 ...... Virginia Beach invited to attend the annual business meeting of the Administration of Estates Section on Saturda),~ January 12, 1980at 4:15 p.m. Mar. 13, 1980 ...... Roanoke The meeting will take place at the Williamsburg Mar. 14, 1980 ...... Abingdon Lodge/Conference Center in gonjunction with .the Mar. 20, 1980 ...... Tysons Corner annual meeting of the Virginia Bar Association. Mar. 21, 1980 ...... Staunton Mar. 27, 1980 ...... Richmond Among other items to be considered, ~he YLS mem- Mar. 28, 1980 ...... Norfolk bership will elect officers and executive committee Construction Law members. The Nomifi.ating Committee recommends Apr. 17, 1980 ...... Roanoke the following individuals to the YLS membership: Ap~. 18, 1980 ...... Tysons Corner OHicers Apr. 24, 1980 ...... Richmond Apr. 25, 1980 ...... Norfolk Thomas C. Brown~ Jr ...... Chairman-Elect Alexandria., Virginia Real Estate Law Clifford A. Cutchins, IV ...... Secretary-Treasurer May 8, 1980 ...... Norfolk Richmond, Virginia May 9, 1980 ...... Richmond May 15, 1980 ...... Alexandria Executive Committee May 16, 1980 ...... Roanoke Blue Ridge Division J. E. Wetsel, Jr ...... 32nd Annual Virginia Conference Winchester, Virginia on Federal Taxation Patricia M. Schwarzschild ...... Capitol Division June 5, 6, 7, 1980 ...... Charlottesville Richmond, Virginia 6th Annual Recent Developments John A. C. Keith ...... Potomac Division in the Law-Seminar Alexandria, Virginia June 19, 1980 ...... Virginia Beach

36 Prompted by the fact that the vitality of the Young Lawyers Section is a direct reflection of the creativity and dedication of members whose only recognition was often that they became increasingly behind in their law practice, the Executive Committee and Council of the YLS felt that it was important to recog- nize and honor the most significant contributions of David Craig Landin is a Partner in the Charlottes- these individuals. ville office of the firm of McGuire, Woods & Battle. Refusing to let Jim Dauiel recover fi’om his labors Mr. Landin received his B.A. degree from the Uni- last year as Chairman of the Section, I appointed him versity of Virginia in 1968 and his J.D. in 1972. to head a special committee to consider the award, criteria for the award and nominees. At the Executive Committee and Council meeting of the YLS held on Sciences at the U.S. Military Academy, West Point, October 13, Jim’s committee recommended that the New York. award be named "Fellow of the Young Lawyers Sec- Dan’s involvement in the Section centered arotmd tion of the Virginia Bar Association" and that the the Youth and the Law Committee, which had as its award recognize those outstanding individuals whose primary goal the implementation <)f an effective law- accomplishments on behalf of the Section furthered related education program in the primary and sccon- the purposes of the Virginia Bar Association in "culti- dary schools in the Commonwealth in the hope of vating and advancing the science of jurisprudence, rendering our citizenry more responsible [hrough a promoting reform in the law and in judicial proce- better understanding of Ihe laws by which wc are gov- dure, facilitating the administration of justice in this erned and the values underlying those laws. The pro- state, and upholding and elevating the standard of gram quickly expanded to encompass no~ only our honor, integrity and courtesy in the legal profession." Section, but the Young Lawyers Conference of the In considering these standards, the committee Virginia State Bar and many local Bar Associations. recommended only two nominees to the Executive Ultimately. Dan was instrumental in working, to Committee: Daniel A. Carrell of Richmond and found the only joint committee ot tt~e Virginia Bar Robert H. Powell, III, of Norfolk. The Executive Association and the Virginia State Bar at the young Committee unanimously voted to present the award lawyers level, denominated the Virginia Young Law- jointly to these gentlemen. yers Joint Committee on Law-Related Education. Dau Daniel A. Carrell is a partner in the firm of Hunton became Chairman of that Joint Committee and ably and Williams. He is a graduate of Davidson College worked to develop funding for a statewide program and holds a M.A. degree from Oxford University, and the hiring of a statewide coordinator of law- where he studied as a Rhodes scholar. He graduated related education, to teach the teachers in the school from Stanford Law School and served, while a Cap- systems. tain in the Ar~ny, as Assistant Professor of Social Dan’s interest in this program was so strong and his

37 contribution so great that he continued to serve as a responded to the concern of the profession that ever- representative from the Young Lawyers Section even increasing numbers of young lawyers are entering the after he had crogsed that arbitrary time line which practice of law without knowing the "how-to’s" of constitutes members of this Association as being no actual practice. Therefore, a program was imple- longer "young" lawyers. mented by which practitioners could lecture to novice ¯ Robert H. Powell, III, is a partner in the Norfolk lawyers about the basics of handling cases in the var- firm of Williams, Worrell, Kelly and Greer. Bob holds ious substar~tive areas of law practice. Bob’s committee undergraduate and law degrees from Washington & developed the outlines which were used by the lectur- Lee University, his law degree being with honors. ers and coordinated the efforts, through the Section, of Bob’s practice has been generally in the area of busi- local bar organizations to conduct the seminars on a ness law. In addition to the responsibilities of practice, yearly basis statewide. From Bob’s initial efforts, the Bob and his wife, Elayne, are raising two children. concept has now grown to the point that it will be However, amidst these other obligations and com- presented on a yearly basis as Septem.ber Seminars munity involvement, Bob has devoted himself to the with the able assistance of the Joint Committee on Virginia Bar Association through work with the Continuing Legal Education of the Virginia State Bar Young Lawyers Section. His activities have been var- and the .Virginia Bar Association. ied. For example, at the summer meeting in 1978, he It was the clear consensus of the Executive Commit- devoted [ais energies to the Section’s program on the tee in adopting this award tiaat it should not be given Economics of Law Practice. on a routine basis, but only in recognition of truly Most importantly, though, Bob was a founding outstanding contributions to the Section. Therefore, farrier in the Bridge-the-Gap program now conducted the vote of the Executive Committee to make a joint by the Section under the name September Seminars. award is a sincere expression of the esteem which the As many of you undoubtedly know, the Section has Section holds for these gentlemen.

38 The Association notes with deepest regrets the passing of the following members :

Henry Armistead Boyd ...... 1912 - 1979

Archibald Chapman Buchanan (Judicial) ...... 1890 - 1979

Joseph F. Hall (Life) ...... 1893 - 1979

William Perkins Hazelgrove (Life) ...... 1892 - 1979

Samuel A. Kushner ...... 1908 - 1979

William LeRoy Parker (Life) ...... 1892 - 1979

William Cottrell Pender (Life) ...... 1893 - 1979

39